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AGFA-GEVAERT, A.G. v. A.B. DICK CO.

August 22, 1991

AGFA-GEVAERT, A.G., and AGFA-GEVAERT, N.V., Plaintiff,
v.
A.B. DICK COMPANY, Defendant



The opinion of the court was delivered by: NORGLE

 CHARLES R. NORGLE, UNITED STATES DISTRICT JUDGE

 Before the court is the motion of defendant A.B. Dick Company ("A.B. Dick") for partial summary judgment on the plaintiffs' "best efforts" claim. For the following reasons, the motion is granted.

 FACTS

 The plaintiffs, a pair of affiliated European firms -- Agfa-Gevaert, A.G., based in the Federal Republic of Germany, and Agfa-Gevaert, N.V., based in Belgium (collectively "Agfa") -- brought the present lawsuit in 1983, alleging that Chicago-based A.B. Dick breached a contract to purchase a supply of Agfa's A-1 model copiers for distribution in North America. The action was tried before a different judge, with Agfa winning a $ 10.1 million judgment. On appeal, the Seventh Circuit reversed the judgment *fn1" and the case was remanded to this court.

 Agfa initially raised a pair of alternative claims against A.B. Dick: 1) breach of a requirements contract (i.e. failure to buy all of its requirements for low-volume, plain paper copiers from Agfa), and 2) failure to use its best efforts to sell A-1s. At the first trial, during the jury instruction conference after all evidence had been taken, Agfa withdrew its "best efforts" claim. *fn2" The record of the instruction conference includes the following discussion:

 
MR. BRANSON [Agfa's counsel]: Your Honor, I would like to tell you this morning before we have a debate about the best efforts instruction that I will withdraw the request for that instruction in its entirety.
 
THE COURT: Which instruction?
 
MR. BRANSON: A best efforts instruction of any kind.
 
. . . .
 
MR. BRANSON: I withdraw that assuming they don't put in the one they have, which is too confusing for me to understand.
 
THE COURT: What's your position on that?
 
MR. HANDLER [A.B. Dick's counsel]: If best efforts is ...

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