NL Enterprises, LLC v. United Pacific Pet, LLC

Filing 157

ORDER that on or before November 18, 2016 the parties shall file simultaneous supplemental briefs addressing: a. Whether there is evidence of "mutually agreed upon purchase objectives" within the meaning of article 5 of the distribution con tract, and what legal principles control that determination; and b. What effect a failure to reach "mutually agreed upon purchase objectives" would have on the enforceability of the distribution agreement, the renewal provision, or any obligation to meet purchase objectives. Ordered by Judge John M. Gerrard. (CCB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
NL ENTERPRISES, LLC,
Plaintiff,

4:15-CV-3163

vs.
ORDER
UNITED PACIFIC PET, LLC,
Defendant.
The Court, on its own motion, directs the parties to provide
supplemental briefing on the defendant's motion for preliminary injunction
(filing 49).
The heart of this case is the parties' dispute over article 5 of the
distribution contract, and whether the defendant failed to meet the "mutually
agreed upon purchase objectives" referred to by that article. See filing 51-2 at
4. The Court's initial assessment of that provision is that it is an agreement
to agree in the future, and generally, when an agreement stipulates that
certain terms shall be settled later by the parties, such terms do not become
binding unless and until they are settled by later agreement. See, e.g.,
Gibbons Ranches, L.L.C. v. Bailey, 857 N.W.2d 808, 812-815 (Neb. 2015); TV
Transmission, Inc. v. City of Lincoln, 374 N.W.2d 49, 52-54 (Neb. 1985);
Alward v. United Mineral Prods. Co., 250 N.W.2d 623, 624-25 (Neb. 1977).
While the parties' briefing discusses whether or not various conduct by
their employees did or did not result in "mutually agreed upon purchase
objectives," the briefing does not provide much guidance to the Court on the
legal principles that govern that determination. Nor do they provide the
Court with authority discussing the legal effect of a finding (should the Court
reach one) that the evidence of "mutually agreed upon purchase objectives" is
insufficient—whether, for instance, the contract as a whole fails, whether the
renewal provision fails such that the contract does not automatically renew,
or whether the contract automatically renews without being conditioned by
purchase objectives. Accordingly, the Court will direct the parties to brief
those issues.

IT IS ORDERED:
1.

On or before November 18, 2016, the parties shall file
simultaneous supplemental briefs addressing:
a.

Whether there is evidence of "mutually agreed upon
purchase objectives" within the meaning of article 5
of the distribution contract, and what legal principles
control that determination; and

b.

What effect a failure to reach "mutually agreed upon
purchase objectives" would have on the enforceability
of the distribution agreement, the renewal provision,
or any obligation to meet purchase objectives.

Dated this 8th day of November, 2016.
BY THE COURT:

John M. Gerrard
United States District Judge

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