ESPN, Inc. v. Office of the Commissioner of Baseball’s Empirical Analysis

Citation profile

2 federal appellate · 2 district · 1 state decisions

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 37 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. “When a party materially breaches a contract, the non-breaching party must choose between two remedies — [it] can elect to terminate the contract and recover liquidated damages or [it] can continue the contract and recover damages solely for the breach. A party can indicate that [it] has chosen to continue the contract by continuing to perform under the contract or by accepting the performance of the breaching party. Once a party elects to continue the contract, [it] can never thereafter elect to terminate the contract based on that breach, although [it] retains the option of terminating the contract based on other, subsequent breaches. ESPN, Inc. v. Office of Com’r of Baseball, 76 F.Supp.2d 383, 387-88 (S.D.N.Y.1999) (quoting Bigda v. Fischbach Corp., 898 F.Supp. 1004, 1011-12 (S.D.N.Y.1995)). Further, in accordance with the doctrine, "[a] party cannot elect to continue with the contract, continue to receive benefits from it, and thereafter bring an action for rescission or total breach.” Id. at 392 (internal quotation marks and citation omitted).”

   2 later decisions quote this exact passage · from the majority
   e.g. 506 F. Supp. 2d 1230 - Houlihan Lokey Howard & Zukin Capital, Inc. v. Protective Group, Inc. · 842 F. Supp. 2d 682 - MBIA Insurance v. Patriarch Partners VIII, LLC

2. “[W]here a party with the right to terminate chooses instead to continue, the only inference to be drawn is that the party will derive a worthwhile benefit from its contractual relationship. Therefore, the party’s election to continue rather than end the contract essentially moots its legal justification for termination. Once a party recognizes contractual benefits in the wake of a material breach, that particular breach can no longer be considered the antithesis of the contract, and it can no longer serve as the basis for termination. Of course, if a party chooses to continue with the contract and the other party subsequently commits another material breach, the party has the right to terminate based on the new breach.”

   1 later decision quote this exact passage · from the majority
   e.g. 295 F. Supp. 2d 1091 - Civic Center Drive Apartments Ltd. Partnership v. Southwestern Bell Video Services

3. “The various rights and remedies of either party contained herein shall not be considered exclusive of, but shall be considered cumulative to, any rights or remedies now or hereafter existing at law, in equity or by statute.”

   1 later decision quote this exact passage · from the majority
   e.g. 444 F. Supp. 2d 231 - SOFI CLASSIC SA DE CV v. Hurowitz