GENERAL NUTRITION CORPORATION V. GARDERE WYNNE SEWELL, LLP.
2008 WL 3982914 (W.D. Pennsylvania)
NATURE OF THE CASE: Pending now before the Court is a MOTION TO DISMISS filed by Gardere
(D).
FACTS: Acting on Gardere's (D) allegedly faulty advice, GNC (P) terminated contracts with
Franklin in the expectation that Franklin's damages, if any, would be limited under the
Uniform Commercial Code (UCC) to $1-3 million and that Franklin would be precluded from
recovering its lost profits estimated at approximately $34.5 million. Franklin filed suit
and D defended the litigation by contending that the contract involved a sale of goods which
was governed by the UCC, which did not permit recovery of consequential damages. The Ohio
court ruled on summary judgment that the contract predominantly involved the sale of
services, such that the UCC did not apply to limit Franklin's damages. After this adverse
development, P fired D, hired replacement counsel, and paid a substantial sum to Franklin to
settle the case. P asserts claims against D for negligence, breach of contract, and breach
of fiduciary duty.
ISSUE:
RULE OF LAW:
HOLDING AND DECISION:
LEGAL ANALYSIS:
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