In the New York Law Journal column, “First Dept. Forms Bright-Line Rule To Cap Damages From Breach of ‘Agreement to Agree,’” Partner Curtis Leitner discusses the limits of damages available for the breach of a preliminary “agreement to agree.” Curtis’s March 2023 column analyzed a trial court decision, Cresco Labs v. Fiorello Pharms., that opened the door to expansive damages from a preliminary agreement. In a recent decision, the First Department slammed the door shut with a bright-line rule: the remedy for the breach of a preliminary “agreement to agree” cannot exceed out-of-pocket costs absent specific contract language stating otherwise. Curtis’s latest column explains the decision and suggests lessons for drafting and litigating parties.
9.19.2023