No. 08-3921-cv.United States Court of Appeals, Second Circuit.
July 21, 2009.
UPON DUE CONSIDERATION of the appeal from the United States District Court for the Southern District of New York (Sweet, J.) IT IS HEREBY ORDERED, ADJUDGED,AND DECREED that the judgment of the District Court isAFFIRMED.
Lawrence J. Bernard, Jr., Washington, DC, for Plaintiff-Appellee.
Alfred R. Fabricant (Lawrence Drucker, Peter Lambrianakos, on the brief), Dickstein Shapiro LLP, New York, N.Y., for Defendant-Appellant.
PRESENT: GUIDO CALABRESI, PETER W. HALL, Circuit Judges, and WILLIAM K. SESSIONS III, District Judge.
Defendant-Appellant JMD, Inc. (JMD) appeals the United States District Court for the Southern District of New York’s (Sweet J.) decision granting summary judgment for Plaintiff-Appellee Arbitron, Inc. (Arbitron) and awarding $487, 853, 91, plus interest, in damages. We assume the parties’ familiarity with the facts of the
case, its procedural history, and the scope of the issues on appeal.
In Arbitron Inc. v. Tralyn Broadcasting, Inc. (Arbitron I), 400 F.3d 130 (2d Cir. 2005), this Court held that the “escalation clause” in a 1997 agreement between Arbitron and Defendant Tralyn Broadcasting, Inc., which Arbitron later assigned to JMD, was not unenforceably vague. Arbitron I remanded the case for consideration of whether JMD could show that Arbitron violated the implied covenant of good faith and fair dealing, which inheres in all New York contracts, or an analogous requirement under the New York Uniform Commercial Code. On remand, however, JMD sought principally to reargue questions this Court decided in Arbitron I and failed to present evidence sufficient to survive summary judgment on any material questions of fact relevant to whether Arbitron performed the contract at issue in bad faith. Accordingly, we affirm the District Court’s judgment for the reasons ably stated by that court.