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Apr 3, 2024
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ADVISORY MEMO 1
Fact Pattern and Prompts
BA 671
Game Depot is a national toy retailer selling a wide range of entertainment products in its brick and mortar and online stores. Deb Dixon owns a small business dedicated to the production of a new and wildly popular board game she invented – and copyrighted - called “DEDEKATION,” in which players overcome obstacles to reach the end of a journey before the other players. Since its launch three months ago, Deb has produced 6,000 units of the game per month (18,000 units total) but has struggled to keep up with sales demand generated through her online website, which has resulted in a stockpile of 4,000 units of unsold inventory. Deb knows that her printing equipment will need to be out of service for scheduled maintenance sometime in the next two months and hoped to use that time to clear out the inventory.
Game Depot wants the exclusive right to sell Deb’s game for $20 in its stores and online spaces over the next six months. Hoping to lessen her burden on the sales side of the business, Deb tells Game Depot that because she can easily hire more employees, which is true in her area, she estimates she can produce 10,000 units per month for six months, which was agreeable to Game Depot. That estimate was included in a valid written contract for the purchase by Game Depot of as many units as Deb can produce each month during the next six months, for a price of $10 each. Because no other supplier can provide the games, and lost profits could be difficult to predict, the contract includes a $25,000 liquidated damages clause in favor of Game Depot in the event of Deb’s breach. During the first month of the contract, Deb often went away on vacation. Since she was not paying attention to her business, she failed to hire the additional employees she needed, and only produced 6,000 units. To fulfill her delivery for the month to Game Depot, she added 4,000 units from her stock of unsold inventory. Thereafter, her printing press was taken out of service for two weeks as scheduled, further limiting production to 3,000 units per month for months two and three. After those three months, Game Depot demanded in writing that Deb confirm her ability to produce more, but she did not reply. During the fourth month, Deb produced only 2,000 more units, and Game Depot now wants to get out of the contract. You are the COO of Game Depot and are tasked with assessing (using your layperson understanding of the law) the best path forward for the company and to prepare a memo to the Board of Directors analyzing the following:
1.
What contract claims, if any, may Game Depot make against Deb; what defenses, if any, may Deb assert; and what is the likely outcome? Discuss. 2.
If Game Depot prevails, what damages, if any, should it be awarded? Discuss.
3.
What, if any, are Game Depot’s non-litigious options? Discuss.
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