Tyco and IDT entered into a joint venture agreement. Numerous litigations commenced, which were settled by a 2000 settlement agreement. That settlement agreement provided for IDT to use Tyco’s yet unbuilt infrastructure, upon the parties’ mutual agreement. As time went on, negotiations failed to produce mutually agreeable terms and conditions for IDT’s use, and litigation followed.
The Court of Appeals agreed with IDT that the settlement agreement was enforceable, but refused to enforce Tyco’s obligation to negotiate in good faith to mean that the parties were compelled to negotiate without end. The court stated that an “obligation [to negotiate] can come to an end without a breach by either party. There is such a thing as a good faith impasse; not every good faith negotiation bears fruit.” The court extended that position to a case where market conditions made the proposed deal untenable or even uninteresting and one party walked away. As a result, the court dismissed IDT’s case, finding that IDT stated no cause of action upon which relief could be granted.
The dissent would not have dismissed IDT’s complaint because IDT’s allegations did raise questions of Tyco’s negotiation tactics. While the dissent addressed dismissal, it clearly disagreed with the majority’s finding as to Tyco’s conduct and questioned whether Tyco acted in good faith.
Often, preliminary agreements, which are often enforceable–to the surprise of a party–contain language similar to that which was under consideration here. Writing that protects the parties but also binds them, is critical to an enforceable agreement.