The Avon Company et al v. Fareva Morton Grove, Inc. et al

Filing 332

ORDER granting in part and denying in part 266 Motion for Partial Summary Judgment; denying 288 Motion for Summary Judgment. Avon's motion is granted insofar as it asks the Court to recognize that the $621,000 2020 PPV Invoice was t he subject of a material dispute. Avon repeatedly told Fareva it would hold back payment of the PPV Invoice because of ongoing NSLP1 disputes of the kind previously resolved by reconciliation. ECF No. 270 at 10-11. Fareva's internal emails affir med its knowledge that Avon was disputing the PPV Invoice, stating that 1.4 million of Avon's outstanding payments were "disputed related to labor ($.08M) and 2020 PPV ($0.6M)[.]" See ECF No. 268 at paragrapgh 18-19. Further, one of Fareva's internal records used to track overdue payments referred to Avon's outstanding balance, which encompassed the 2020 PPV Invoice, as a "disputed balance." ECF No. 270 at 17. The record thus clearly shows that ther e was a dispute as to the PPV Invoice underlying the termination. Avon's motion also requests that the Court order Fareva to pay $28,000,000 in early termination fees. Plaintiff Avon's motion invokes Section 13 of the MSA. The enforcea bility of this clause is the subject of ongoing discovery, and so this part of the plaintiff's request is premature and is therefore denied. Fareva's motion is denied. First, its request that the Court rule the $28,000,000 Section 13 damages are unrecoverable is premature, as it depends upon further discovery into contract negotiation and the reasonableness of the liquidated damages provisions. Second, its request that the Court rule that the 2020 PPV Invoice was undisputed is denied because of the reasons stated above. Fareva's pretext for notice that Avon was in default is without merit. I hold that Fareva's notice of termination was an improper notice and did not excuse Fareva's failure to make continued timely production. The consequence of its improper termination awaits further proceedings. The Clerk of Court shall terminate ECF Numbers 266 and 288. SO ORDERED. (Signed by Judge Alvin K. Hellerstein on 2/5/2024) (mml)

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