Foley Hoag Wins Appeal for Bariven, S.A., PDVSA Services Inc.

August 3, 2011

Foley Hoag LLP won a favorable decision from the 11th Circuit for clients Bariven, S.A. and PDVSA Services Inc. in a dispute over food-purchase contracts with Validsa Inc., with the court reversing summary judgment and remanding the case for trial on liability. In addition, the court affirmed key rulings which limited the scope of possible damages and upheld a monetary award in favor of Bariven.

The 11th Circuit reversed a district court ruling that granted summary judgment in favor of Validsa. The district court had found that Bariven anticipatorily repudiated two of the contracts by failing to provide adequate assurances of its performance to Validsa after Validsa had demanded assurances. The 11th Circuit resurrected Bariven’s counterclaims and remanded the case to the district court for a trial on whether Bariven had provided adequate assurances of performance. The appellate court’s additional rulings ensured that, at retrial, Bariven would recover a minimum of several million dollars, and could recover significantly more. 

The 11th Circuit also reversed the district court’s decision finding PDVSA Services, Bariven’s international purchasing agent, also individually liable on the contracts. The appellate court entered judgment in favor of PDVSA Services based on the rule that an agent cannot be liable for the contracts of its principal. That ruling ensures that PDVSA Services will not be involved in a new trial.

The Foley Hoag legal team included partner Anthony Mirenda; associates Neil Austin, Tom Ayres, Jeff Bone, Nabeel Ahmad and Diana Jong; and senior litigation paralegal Margaret McKane, with assistance from partner Ron Goodman; counsel Melida Hodgson and Gwen Jaramillo; and associates Mark Finsterwald, Richard Baldwin and Amy Senier.

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