The California Court of Appeal has upheld Mattel’s 2011 defense verdict over its alleged failure to adhere to a license agreement for the board game Outburst. Mattel was represented at trial and again on appeal by KWIKA lawyers Larry Iser, Kristen Spanier and Chad Fitzgerald.
A three-judge panel upheld Los Angeles Superior Court Judge Kevin Brazile’s judgment against board game licensor Hersch & Co., which followed a nonsuit on its claim for breach of the implied covenant of good faith and fair dealing and a jury verdict in favor of Mattel on Hersch’s claim for breach of contract. The Court of Appeal limited its decision to an analysis of Hersch’s claim for damages, affirming Judge Brazile’s conclusions that Hersch cannot recover liquidated damages for breach of an implied covenant in a contract, and that Hersch’s claim for future lost profits are special damages that are expressly barred by the license agreement.
“Hersch is entitled to nothing, and all other issues are moot,” wrote the appellate panel.