Delaware Business Litigation Report

Supreme Court Finds Enforceable Preliminary Agreement

Cox Communications v. T-Mobile, No. 340, 2021 (Del. Mar. 3, 2022)
Delaware courts have a “general aversion” to enforcing agreements to agree. But Delaware law also recognizes enforceable preliminary agreements that create an obligation to try to negotiate a final agreement on all material terms in good faith. Here, two companies, Cox Communications and T-Mobile, disputed whether a particular provision of a settlement agreement was enforceable and to what extent. The provision related to Cox partnering with a mobile network provider and generally obligated Cox to negotiate with T-Mobile. Those negotiations failed, Cox partnered with Verizon, and this suit resulted. The Court of Chancery entered an injunction that enforced the provision by prohibiting Cox from partnering with another provider besides T-Mobile. On appeal, the Delaware Supreme Court vacated the injunction and reversed, finding the provision left open several material terms of a future definitive agreement, was not itself an enforceable agreement, and instead was a “Type II” preliminary agreement that obligated the parties to negotiate open items in good faith. The Supreme Court remanded the case for a determination of whether the parties fulfilled that obligation.

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