Blizzard (Photo by Emily Bell)
Minnesotans know that the weather here can be terrible (see this past winter). Personally, as a child who vividly remembers the 1991 blizzard on Halloween, I am well aware that the weather in Minnesota can be treacherous and derail important plans. However, sometimes those important plans (ones that have greater impact than not collecting a pillowcase full of candy) need to be completed by a certain date, like when a contract clause says that “time is of the essence” or there is an express condition precedent.
So what happens when weather threatens a deal closing when performance is due? We know that a defendant could argue that the weather made it impossible to close and therefore performance was excused; but could a plaintiff argue that the defendant still had to perform under the contract, even though the contract included an express condition precedent, because performance was temporarily impossible?
This was one of the arguments enXco made an attempt to avoid summary judgment in a huge breach of contract suit against Northern States Power (“NSP”) over a failed wind energy generation project in North Dakota. enXco claimed that NSP’s failure to perform caused over $245 million in damages.
In 2000, JJ Holland hired Fredrikson to file an intent to use application for the YES! trademark. The application claimed the trademark for use on 21 different goods including cigarettes and related products like lighters and cigars but it was only using the trademark on cigarettes. When JJ Holland was ready to have the mark registered, Fredrikson lawyers allegedly advised that this posed no problem. It was a problem.