• November 14, 2011

In early May, it seems that a company enXco had concluded that negotiations with Northern States Power over a terminated wind energy transaction (complicated by a risk of “lethal take of whooping cranes” and, possibly, our economic free-fall) had reached impasse requiring litigation and enXco filed a lawsuit against NSP in U.S. District Court for the District of Minnesota.

That same day, Northern States Power reached the same conclusion and filed its own complaint against enXco in the same court.

This past week, NSP failed in its effort to get enXco’s complaint dismissed, arguing that enXco had failed to uphold its side of the bargain and, thus, could not bring a breach of contract claim.  enXco had argued that its failure to meet a deadline was attributable to “temporary impracticability.”  enXco had run into regulatory issues that caused delays.  NSP’s rebuttal argument, that enXco’s inability to meet the contractual deadlines was foreseeable and insufficient to trigger a legal justification or excuse for it failure to meet its obligations under the contract.

Chief Judge Michael J. Davis concluded that factual issues barred dismissal of enXco’s breach of contract claim at this time.

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