Thursday, December 20, 2007
I'll be on hiatus today. Hopefully, we'll have a decision by tomorrow on URI. I am very curious to see if Chandler finds that there was no common understanding of the parties on specific performance [for the legal background on this statement see my post here]. In such circumstances, he is the one who is required to fashion an equitable ruling and remedy. I increasingly think that this will be his decision. And it raises a host of questions. Does he then rule for:
- URI, as it has the better contract reading on a harmony basis and the ambiguity is Cerberus's responsibility? This ruling also has the virtue of being a better default rule to guide future parties towards more careful contract language. NB. Chandler has previously criticized in his order on the Coates testimony poor drafting practices, and so this may display a predisposition towards this one.
- Cerberus, as the limited guarantee comes into play in the failure of the section 8.2(e) and section 9.10 language?
- Either Cerberus or URI, as the party with least unclean hands (at this point I am not sure who this is, Cerberus doesn't come off great for attempting to repudiate the contract and URI may have been a less than forthright negotiator).
- Cerberus or URI, and leave damages up to another stage (at this point the fact that Ram Holdings is a shell comes into play).
It's a nail-biter . . . .
Final Note: Interesting that URI did not put up a single witness from the URI special committee and invoked attorney/client privilege for some of the communications between Simpson and the board. . . . .