## Facts

- Oregon Potato Company (OPC) manufactured and sold “Jamba At Home Smoothies” and used yogurt cubes as an ingredient.
- Kerry Inc. supplied yogurt cubes to OPC from 2017 to 2019.
- In 2018–2019, OPC sent purchase orders by email; Kerry sent acknowledgments listing “ship” and “delivery” dates with caveats that dates were based on plant confirmation and could change due to raw-material availability.
- The dispute centered on 2019 orders (January–May) that Kerry delivered late or could not timely fulfill.
- Kerry experienced production disruptions in 2019 (including equipment problems, contamination issues, and staffing turnover) that reduced output.
- Despite reduced capacity, Kerry continued supplying other customers and used an internal customer-segmentation approach to allocate limited production; the record did not establish that allocation was fair and reasonable to OPC.
- OPC cancelled open orders, claimed Kerry’s delays were material breaches, and sought damages for losses tied to its smoothie business.
- Kerry raised defenses including waiver, estoppel, commercial impracticability under U.C.C. § 2-615, and failure to mitigate.

## Issues

1. Whether Kerry’s 2019 delivery delays were unreasonable breaches of the parties’ purchase-order contracts, and whether acknowledgment “ship”/“delivery” dates operated as binding deadlines.
2. Whether OPC could pursue promissory estoppel where purchase orders and acknowledgments governed the relationship.
3. Whether Kerry’s conduct supported liability under the Washington Consumer Protection Act (WCPA), including requirements beyond a private contract dispute.
4. Whether Kerry could prevail on affirmative defenses of waiver, estoppel, U.C.C. § 2-615 commercial impracticability (including allocation obligations), and failure to mitigate.
5. Whether certain claimed damages categories were legally unavailable or too unsupported to reach a jury.

## Decision

- Denied summary judgment to both parties on OPC’s breach-of-contract claims because liability turned on fact questions about reasonableness, course of dealing, and the meaning/effect of the parties’ communications.
- Granted summary judgment for Kerry on OPC’s promissory estoppel claim because enforceable contracts governed the subject matter and OPC did not identify a distinct extra-contractual promise.
- Granted summary judgment for Kerry on OPC’s WCPA claim because OPC did not show the required statutory elements beyond a contractual performance dispute.
- Granted summary judgment for OPC on Kerry’s defenses of waiver and estoppel due to lack of evidence of clear intentional relinquishment (waiver) or the elements of estoppel (including detrimental reliance).
- Granted summary judgment for OPC on Kerry’s U.C.C. § 2-615 impracticability defense because Kerry did not show the contingency was sufficiently unforeseen and did not establish fair and reasonable allocation among customers.
- Granted summary judgment for OPC on Kerry’s failure-to-mitigate defense as a categorical bar, finding the mitigation theory insufficiently supported for judgment as a matter of law.
- Granted partial summary judgment for Kerry limiting certain categories of damages, narrowing what OPC could seek at trial.

## Legal Principles

- Summary judgment is improper where breach depends on disputed facts about reasonableness, course of performance, and interpretation of contracting communications.
- Promissory estoppel generally does not lie when an express contract governs the same subject matter and the plaintiff cannot identify a separate actionable promise.
- A consumer-protection statutory claim requires proof of statutory elements distinct from breach of contract; a private performance dispute alone is insufficient.
- Waiver requires a clear, intentional relinquishment of a known right; continued dealings amid performance problems, without more, may be insufficient.
- Estoppel requires proof of the doctrine’s elements, including detrimental reliance; unsupported reliance theories fail at summary judgment.
- Under U.C.C. § 2-615, a seller asserting commercial impracticability must satisfy statutory requirements, including (when capacity is limited) fair and reasonable allocation among customers; foreseeability and prior notice of problems may defeat the defense.
- Damages may be limited on summary judgment where particular categories are legally unavailable or too speculative or untethered to the alleged breach.

## Conclusion

The court sent OPC’s contract-based claims over delayed 2019 yogurt-cube deliveries to a jury, but dismissed OPC’s promissory estoppel and WCPA theories, struck Kerry’s main affirmative defenses (including U.C.C. impracticability), and narrowed the damages theories available for trial.


Oregon Potato Co. v. Kerry Inc., 575 F. Supp. 3d 1064 (W.D. Wis. 2021)