Unreported / Non-Citable
Background
Finite Utility Consulting, an energy broker, entered client-representation agreements with supermarket operator Tawa. Two agreements made Finite Tawa’s exclusive consultant for energy-related initiatives. Finite later sued after Tawa revoked its authority and obtained energy-supply agreements without Finite, claiming more than $2.5 million in lost commissions.
Tawa counterclaimed over an energy contract for a Massachusetts store. The store’s first bill was substantially higher than expected because Finite had underestimated mandatory market charges. Tawa alleged breach of contract, promissory estoppel, negligent misrepresentation, and unjust enrichment based on Finite’s pricing representations and later statement that it would provide “appropriate reimbursement” if necessary.
The district court excluded Finite’s damages expert, German Ibanez, and late-disclosed rebuttal opinions from Finite executive Thomas Lee. It then entered summary judgment against Finite for lack of damages evidence and against Tawa on all counterclaims. Both sides appealed.
The Court’s Holding
The Fifth Circuit affirmed the exclusion of both Finite witnesses. Ibanez’s damages model assumed the highest commissions permitted by a single supplier agreement and a three-year contract term without analyzing the market variables that he acknowledged would determine those inputs. The court held that this fundamentally unsupported methodology was inadmissible ipse dixit. It also upheld the exclusion of Lee’s rebuttal opinions because Finite disclosed them after Rule 26’s deadline, without adequate justification, and their admission would have prejudiced Tawa.
Without those opinions, Finite had no admissible, nonspeculative evidence from which a jury could calculate lost commissions. Its list of commissions from other clients lacked facts establishing comparable transactions, and Tawa’s expert did not estimate commissions attributable to hypothetical Tawa contracts. Summary judgment on Finite’s claims was therefore proper.
The court also affirmed judgment against Tawa. The pricing documents described the total all-in price as an estimate, required only Finite’s best efforts to resolve rate issues, and expressly disclaimed a guaranteed supplier rate. Tawa also failed to show recoverable loss or detrimental reliance because the resulting arrangement reduced its energy costs. For similar reasons, its negligent-misrepresentation and unjust-enrichment claims failed.
Key Takeaways
- A damages model may be excluded when its critical assumptions disregard the market factors that the expert concedes would determine the actual result.
- Rebuttal opinions must be disclosed within Rule 26’s deadline; labeling new rebuttal testimony a “supplement” does not make it timely.
- Even when expert testimony is unnecessary, a claimant must present admissible, nonspeculative evidence permitting a reasonable calculation of damages.
- An estimated all-in energy price and a best-efforts assurance did not amount to an unconditional price guarantee, particularly where the documents expressly disclaimed one.
Why It Matters
The decision illustrates the evidentiary risk of calculating lost commissions from contractual maximums rather than comparable transactions and relevant market conditions. A plaintiff cannot survive summary judgment merely by arguing that damages are simple enough for lay calculation; the record must still provide a reliable basis for calculating them.
The opinion also underscores that courts will enforce expert-disclosure deadlines when late opinions would require renewed discovery. For energy brokers and their clients, it shows the importance of distinguishing estimated total costs, contracted supply rates, and guarantees in representation agreements and related communications.