UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS
) PLZ CORP. f/k/a PRECISE ) PACKAGING, LLC, ) ) Plaintiff, ) ) v. ) No. 1:23-cv-13175-JEK ) JEUNESSE, INC. f/k/a/ ) JEUNESSE, LLC, ) ) Defendant. ) )
MEMORANDUM AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
KOBICK, J. Plaintiff PLZ Corp., formerly known as Precise Packaging, LLC, brought this action against defendant Jeunesse, Inc. for breaching its contractual obligations to either purchase and take a minimum amount of cosmetic products for ten calendar quarters or pay for any unit shortfall. The complaint asserts claims for breach of contract and account stated. Pending before the Court are cross-motions for summary judgment filed by PLZ and Jeunesse. For the reasons that follow, the Court concludes that PLZ is entitled to judgment on its breach of contract claim and that there is no dispute of material fact regarding damages. PLZ acquired the right to enforce a contract entered into by Precise Packaging and Jeunesse in 2018, and the take-or-pay provision in that contract is enforceable. PLZ’s success on its breach of contract claim precludes recovery on its account stated claim. Accordingly, the Court will grant in part and deny in part the parties’ respective motions. BACKGROUND The following facts are either undisputed or recounted in the light most favorable to the non-moving party, where supported by record evidence. See Roberge v. Travelers Prop. Cas. Co. of Am., 112 F.4th 45, 51 (1st Cir. 2024) (“This lens . . . do[es] not change where the parties file
cross-motions for summary judgment.”). Precise Packaging was a manufacturer of aerosol and liquid products for personal care and home fragrance brands. ECF 1, ¶ 3. Jeunesse markets and sells personal care and nutritional products. Id. ¶ 2. Precise Packaging first began doing business with Jeunesse in 2017. ECF 84, ¶ 1. That year, Jeunesse issued a purchase order under which Precise Packaging was to manufacture, produce, and package two million units of certain “NV”-branded cosmetic and youth enhancement products. Id. ¶ 2. Jeunesse was to pay Precise Packaging approximately $5.96 million in connection with the purchase order. Id.; ECF 78-3, at 2. To fulfill this order, Precise Packaging spent $802,424 on materials and components. ECF 84, ¶ 3; see ECF 78-6, § 7 (noting Jeunesse’s existing materials liability of approximately $802,424). But because Jeunesse did not have
sufficient demand for the products, it informed Precise Packaging that it would not fulfill its obligations under the purchase order. ECF 84, ¶ 4. Shortly after, the parties began to negotiate a term sheet. Id. ¶ 5. And on October 29, 2018, Precise Packaging and Jeunesse signed a contract titled “Term Sheet for Manufacturing Agreement” (the “Term Sheet”). ECF 84, ¶ 6; ECF 78-6, at 3, 8. The Term Sheet was governed by Florida law. ECF 86, ¶ 10; ECF 78-6, § 14. The Term Sheet had an initial term of two and a half years, starting on January 1, 2019 and lasting through the end of the second quarter of 2021. ECF 84, ¶ 8; ECF 78-6, § 4. It provided that Precise Packaging would “manufacture, produce and package” certain “‘NV’-branded cosmetic and youth enhancement products, including make-up primers, bronzers, shimmers and foundations.” ECF 78-6, § 2. It also included a take-or-pay provision1 that required Jeunesse “to purchase no less than 200,000 units of the [p]roducts each calendar quarter during the initial term of the Agreement” and, if Jeunesse failed to do so, to pay Precise Packaging “an amount equal to the unit shortfall multiplied by the Product Price (i.e. such calculation initially shall be (200,000 -
actual number of units ordered)*Product Price).” ECF 78-6, § 6; see ECF 84, ¶ 7. The take-or-pay provision did not provide any mechanism by which Jeunesse could later take products that it had paid for but not taken. ECF 86, ¶ 5. The Term Sheet further addressed the raw materials needed for production and the price of each cosmetic product. An “Existing Materials Liability” provision required Jeunesse to pay Precise Packaging for “semi-finished [p]roducts, [p]roduct components, [p]roduct bulk, and [p]roduct packaging materials” that Precise Packaging procured in connection with the earlier purchase order. ECF 78-6, § 7 & Ex. B. Jeunesse committed to paying three equal installments— in October, November, and December 2018—to reimburse Precise Packaging for the $802,424 it had expended on those raw materials. Id. § 7; ECF 84, ¶ 24. While that existing materials liability
remained outstanding, the price Jeunesse owed for each cosmetic product under the Term Sheet was $2.98 per unit. ECF 78-6, § 7; ECF 84, ¶ 9. Once Jeunesse paid off its existing materials liability, it assumed title to the existing raw materials and the price for each cosmetic product dropped to $1.67 per unit. ECF 78-6, §§ 3, 7 & Ex. C. That reduced price was to remain in effect until Jeunesse purchased from Precise Packaging all products made from the raw materials
1 A take-or-pay contract “requir[es] the buyer to either purchase and receive a minimum amount of a product (‘take’) or pay for this minimum without taking immediate delivery (‘pay’).” Take- Or-Pay Contract, Black’s Law Dictionary (12th ed. 2024). “Designed to allocate the risks of production and supply to the seller and the risk of market demand to the buyer,” take-or-pay clauses “requir[e] a buyer to accept delivery of some goods in a minimum amount or pay for the goods in any event.” 11 Corbin on Contracts § 59.10 (2026). associated with the existing materials liability, at which point the product price would revert to at least $2.98 per unit. Id. §§ 3, 7. Jeunesse made the three installment payments required by the Term Sheet for the existing materials liability. ECF 84, ¶ 25. But it did not meet its cosmetic product purchase obligations
under the contract. Id. ¶¶ 10-11, 15-16, 20. In each quarter of 2019, it failed to order at least 200,000 units of product, instead purchasing a total of 272,399 units across all four quarters. Id. ¶¶ 10-11. Jeunesse also failed to order at least 200,000 units of product in each quarter of 2020, purchasing a total of 88,654 units across all four quarters. Id. ¶¶ 15-16. And in the first two quarters of 2021, Jeunesse likewise failed to order at least 200,000 units of product, purchasing a total of 30,332 units across both quarters. Id. ¶ 20. Precise Packaging sent Jeunesse one invoice for $881,093.67, reflecting the 527,601-unit shortfall in 2019; a second invoice for $1,187,947.82, reflecting the 711,346-unit shortfall in 2020; and a third invoice for $617,345.56, reflecting the 369,668-unit shortfall in 2021. Id. ¶¶ 12, 17, 21. Jeunesse failed to pay any part of the three invoices. Id. ¶¶ 14, 19, 23.
Effective December 31, 2022, Precise Packaging merged with Plaze, Inc. ECF 86-3, at 2- 3. The following day, on January 1, 2023, Plaze, Inc. merged with PLZ Corp., leaving PLZ Corp. as the surviving corporation. ECF 86-4, at 2-3. Invoking this Court’s diversity jurisdiction, PLZ initiated this action against Jeunesse on December 21, 2023. ECF 1. The complaint asserts claims for breach of contract (Count I) and account stated (Count II), both arising out of Jeunesse’s non-payment of the invoices for payment owed under the Term Sheet. Id. ¶¶ 38-55. In February 2026, after discovery, the parties filed competing motions for summary judgment. ECF 77, 80. After receiving the opposition and reply briefs, the Court held a hearing and took the motions under advisement. ECF 90. STANDARD OF REVIEW Summary judgment is appropriate when, based upon the record, “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute is “one that must be decided at trial because the evidence, viewed
in the light most flattering to the nonmovant, would permit a rational factfinder to resolve the issue in favor of either party.” Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990) (citation omitted). To prevail, the moving party must show that “there is no factual determination which a rational factfinder could make as to the existence or nonexistence of a fact that has the potential to change the outcome of the suit.” Gibson Found., Inc. v. Norris, 88 F.4th 1, 5 (1st Cir. 2023) (quotation marks omitted). Courts “must consider the record and the reasonable inferences drawn therefrom in the light most favorable to the nonmovant,” but “need not credit conclusory allegations, improbable inferences, and unsupported speculation.” Dixon-Tribou v. McDonough, 86 F.4th 453, 458 (1st Cir. 2023) (quotation marks omitted). Where, as here, the parties have filed cross-motions for summary judgment, courts “review each motion separately, drawing facts and
inferences in favor of the non-moving party.” Roberge, 112 F.4th at 51 (quotation marks omitted). DISCUSSION PLZ claims that, under the plain terms of the Term Sheet, Jeunesse was obligated to take or pay for at least 200,000 units of product for each of ten calendar quarters, but it failed to do so. As a result of Jeunesse’s breach of the contract, PLZ argues, Jeunesse owes it $2,686,387.05, which reflects the sum of the three invoices. Jeunesse disputes that PLZ has the right to enforce the Term Sheet, which was signed by Precise Packaging rather than PLZ. In the alternative, Jeunesse contends that the take-or-pay provision in the Term Sheet is unenforceable. I. PLZ’s Right To Enforce The Contract. Jeunesse first contends that PLZ lacks the right to pursue its breach of contract and account stated claims because it was not a party to the Term Sheet. In Jeunesse’s view, the fact that PLZ acquired Precise Packaging through a merger does not establish that PLZ acquired the right to enforce the Term Sheet against Jeunesse.2
Where, as here, subject matter jurisdiction is premised on diversity of citizenship, “state law supplies the substantive rules of decision.” Conformis, Inc. v. Aetna, Inc., 58 F.4th 517, 528 (1st Cir. 2023). The Term Sheet provides, and the parties agree, that Florida law applies to PLZ’s claims. ECF 78-6, § 14; ECF 86, ¶ 10. But because the certificates of merger were filed with the Delaware Secretary of State, see ECF 86-3 and 86-4, the parties disagree about whether Florida law or Delaware law controls the question of whether PLZ acquired the ability to enforce the Term Sheet when it acquired Precise Packaging through merger.3 The Court need not resolve this dispute, because the outcome is the same under either state’s substantive law. See Okmyansky v. Herbalife Int’l of Am., Inc., 415 F.3d 154, 158 (1st Cir. 2005) (“[W]hen the resolution of a choice-
of-law determination would not alter the disposition of a legal question, a reviewing court need not decide which body of law controls.”).
2 In its answer, Jeunesse failed to raise PLZ’s alleged inability to enforce the Term Sheet as an affirmative defense. ECF 12, at 7-8. That failure alone would likely justify rejecting Jeunesse’s argument. See Carrasquillo-Serrano v. Mun. of Canovanas, 991 F.3d 32, 42 (1st Cir. 2021) (“[A]ffirmative defenses not included in an appropriate responsive pleading are waived.”); Wolf v. Reliance Standard Life Ins. Co., 71 F.3d 444, 449 (1st Cir. 1995) (“An affirmative defense must be pleaded in the answer in order to give the opposing party notice of the defense and a chance to develop evidence and offer arguments to controvert the defense.”). But because the defense fails on the merits, the Court need not decide whether Jeunesse waived the argument by failing to notify PLZ of that defense in its answer. 3 At the hearing, Jeunesse alluded to the possibility that the merger agreements may have included a choice-of-law provision requiring the application of substantive law other than Delaware or Florida law. This argument is unavailing, as Jeunesse cannot defeat summary judgment through sheer speculation. See Dixon-Tribou, 86 F.4th at 458. Under Delaware law, after a merger, the surviving corporation “assume[s] the obligations of the constituent” corporation, including its contractual rights and obligations. Fitzsimmons v. Western Airlines, Inc., 290 A.2d 682, 685 (Del. Ch. 1972); see 8 Del. C. § 259(a). “[A]ll property, rights, and privileges of the corporation continue as the property of the surviving entity.” Delaware
Ins. Guar. Ass’n v. Christiana Care Health Servs., Inc., 892 A.2d 1073, 1077-78 (Del. 2006). No assignment is necessary, because the transfer of the constituent corporation’s contractual rights and obligations to the surviving corporation occurs automatically, by operation of law. Great Hill Equity Partners IV, LP v. SIG Growth Equity Fund I, LLLP, 80 A.3d 155, 157 n.6, 162 (Del. Ch. 2013). Here, the Delaware Secretary of State issued two relevant certificates of merger. ECF 86- 3; ECF 86-4. First, Precise Packaging, which signed the Term Sheet, merged with Plaze, Inc., leaving Plaze as the surviving corporation. ECF 86-3. Plaze then merged with PLZ Corp., a Delaware corporation, leaving PLZ as the surviving corporation. ECF 86-4. Under Delaware law, Plaze and then PLZ, in turn, acquired Precise Packaging’s contractual rights and obligations by operation of law through the mergers. As a matter of law, PLZ therefore has the right to seek to
enforce Precise Packaging’s agreement with Jeunesse. The same analysis applies under Florida law. As that state’s Supreme Court has explained, “[w]here a merger take[s] place, the subsisting corporation is answerable for the liabilities of the corporation which goes out of business.” Barnes v. Liebig, 1 So.2d 247, 253 (Fla. 1941). That is, “on the date of a merger the surviving corporation becomes ‘liable for the debts, contracts and torts’ of the former corporation.” Corp. Exp. Office Prods., Inc. v. Phillips, 847 So.2d 406, 413 (Fla. 2003) (quoting Barnes, 1 So.2d at 253). Section 607.1106 of the Florida Statutes codifies this principle, providing that “[w]hen a merger becomes effective . . . [a]ll debts, obligations, and other liabilities of each domestic or foreign eligible entity that is a party to the merger, other than the survivor, become debts, obligations, and liabilities of the survivor.” Fla. Stat. Ann. § 607.1106(1)(d). And as under Delaware law, no assignment of contractual rights is necessary, because “in a merger, the two corporations in essence unite into a single corporate existence,” providing the surviving corporation “the right to enforce [an] agreement entered into . . . [by] the
merged corporation by operation of law.” Phillips, 847 So.2d at 414. Thus, under Florida law, Plaze and then PLZ acquired the right to enforce contracts entered into by Precise Packaging through the mergers, and PLZ therefore has the right to enforce the Term Sheet against Jeunesse. II. Breach of Contract Claim. The next question is whether, under Florida law, Jeunesse breached the Term Sheet by failing to take or pay for at least 200,000 units of cosmetic products for each of the ten calendar quarters. To establish breach of contract under Florida law, a plaintiff “‘must prove (1) a valid contract; (2) a material breach; and (3) damages.’” Dagnesses v. Target Media Partners, 711 F. App’x 927, 933 (11th Cir. 2017) (quoting Murciano v. Garcia, 958 So.2d 423, 423 (Fla. Dist. Ct. App. 2007)). “[T]he question of whether a valid contract exists is a threshold question of law
that may be properly decided by the court.” Kolodziej v. Mason, 774 F.3d 736, 740 (11th Cir. 2014). Jeunesse disputes the first and third elements of this test. On the first element, Jeunesse asserts that the Term Sheet is not binding and that the take-or-pay provision in the Term Sheet is unenforceable. On the third element, Jeunesse contends that PLZ suffered no actual damages. The Court addresses each argument in turn. A. Binding Nature of the Term Sheet. An agreement is binding “if the parties agree on the essential terms and seriously understand and intend the agreement to be binding on them.” Blackhawk Heating & Plumbing Co., Inc. v. Data Lease Fin. Corp., 302 So.2d 404, 408 (Fla. 1974). “The definition of ‘essential term’ varies widely according to the nature and complexity of each transaction and is evaluated on a case-by-case basis.” Lanza v. Damian Carpentry, Inc., 6 So.3d 674, 676 (Fla. Dist. Ct. App. 2009). Nonetheless, “[f]ailure to sufficiently determine quality, quantity, or price may preclude the finding of an enforceable agreement.” Jacksonville Port Auth. v. W.R. Johnson Enters., Inc., 624 So.2d
313, 315 (Fla. Dist. Ct. App. 1993). PLZ argues, and Jeunesse does not genuinely dispute, that the contracting parties agreed on the essential terms. Terms governing the product price, minimum quantity to order and manufacture, quality of the products, payment and shipping terms, and duration of the agreement are clearly laid out in the contract. ECF 78-6, §§ 2-4, 6, 9, 10-11. Still, Jeunesse contends that it did not intend to be bound by the Term Sheet, as evidenced by its failure to pay any of the contested invoices and its attempt to renegotiate the contract after receiving the invoices. Courts use an objective test to determine the parties’ intent. Kolodziej, 774 F.3d at 741 (quoting Robbie v. City of Miami, 469 So.2d 1384, 1385 (Fla. 1985)). They may consider “written or spoken words,” or can infer intent “in whole or in part from the parties’ conduct.” Id. The Term Sheet states, in pertinent part, that “[t]he parties expressly acknowledge
and agree that this Term Sheet shall be binding upon the signatures of both parties to this Term Sheet.” ECF 78-6, at 3. It further states that “the Parties hereby agree to the provisions of this Term Sheet with the intent to be legally bound hereby.” Id. at 8. “[I]n the absence of some ambiguity, the intent of the parties to a written contract must be ascertained from the words used in the contract, without resort to extrinsic evidence.” Wheeler v. Wheeler, Erwin & Fountain, P.A., 964 So.2d 745, 749 (Fla. Dist. Ct. App. 2007). Based on the unambiguous text of the Term Sheet, there is no genuine dispute of material fact that Jeunesse and Precise Packaging intended to be bound by that contract. B. Enforceability of the Take-Or-Pay Provision. Jeunesse next contends that the take-or-pay clause of the Term Sheet is an unenforceable liquidated damages provision. “A take-or-pay contract obligates a [buyer] to purchase a specified volume of [product] at a specified price and, if it is unable to do so, to pay for that volume.” Mobil
Oil Expl. & Producing Se. Inc. v. United Distrib. Cos., 498 U.S. 211, 229 (1991). “Such agreements are alternative performance contracts, whereby [the] buyer has the option to take or not to take the [product], but it must pay the contracted amount regardless.” World Fuel Servs., Inc. v. John E. Retzner Oil Co., Inc., 234 F. Supp. 3d 1234, 1239 (S.D. Fla. 2017). Take-or-pay provisions are also risk allocation mechanisms, whereby the buyer agrees to compensate the manufacturer for its “efforts and promise to supply the [product] rather than the [product] itself.” Id. (citing Universal Res. Corp. v. Panhandle E. Pipe Line Co., 813 F.2d 77, 80 (5th Cir. 1987)). While take-or-pay clauses are often used in the energy and oil-and-gas industries, they are not limited to those contexts. See, e.g., Superfos Invs. Ltd. v. FirstMiss Fertilizer, Inc., 821 F. Supp. 432, 433 (S.D. Miss. 1993) (agricultural context); Hemlock Semiconductor Corp. v. Kyocera Corp., 747 F. App’x
285, 286 (6th Cir. 2018) (manufacturing context); Lake River Corp. v. Carborundum Co., 769 F.2d 1284, 1286 (7th Cir. 1985) (same); Digital Ally, Inc. v. Z3 Tech., LLC, 754 F.3d 802, 815-16 (10th Cir. 2014) (same). Under Florida law, courts use a two-step inquiry to determine whether a take-or-pay provision is a valid alternative performance clause or an unenforceable penalty. The first step requires the court to evaluate “whether the [take-or-pay] provision . . . is intended to secure performance, or is an alternative available to the buyer in place of his obligation to purchase.” Dillard Homes, Inc. v. Carroll, 152 So.2d 738, 741 (Fla. Dist. Ct. App. 1963). If the provision “was intended to give a real option . . . [that] either alternative might prove the more desirable, the contract will be enforced according to its terms.” 14 Williston on Contracts § 42:10 (4th ed.); see also Hemlock Semiconductor, 747 F. App’x at 288 (“[T]he key question is whether the take-or-pay provisions offer [the buyer] two viable performance options.”). To determine the provision’s “real character and purpose,” the court considers the “nature of the contract, the terms and purposes of
the whole instrument, the natural and ordinary consequences of a breach and the peculiar circumstances attending each case.” Pembroke v. Caudill, 37 So.2d 538, 540 (Fla. 1948), overruled on other grounds by Hutchison v. Tompkins, 259 So.2d 129, 132 (Fla. 1972). The court proceeds to the second step only if the take-or-pay provision does not offer two viable performance options. The second step assesses whether the “pay” option constitutes lawful liquidated damages or an unlawful penalty. “It is well settled that in Florida the parties to a contract may stipulate in advance to an amount to be paid or retained as liquidated damages in the event of a breach.” Lefemine v. Baron, 573 So.2d 326, 328 (Fla. 1991). Such provisions are upheld if (1) “the damages consequent upon a breach [are] not . . . readily ascertainable”; and (2) “the sum stipulated to be forfeited [is] not . . . so grossly disproportionate to any damages that might
reasonably be expected to follow from a breach as to show that the parties could have intended only to induce full performance, rather than to liquidate their damages.” Id. This Court’s analysis starts and ends at the first step, because the undisputed facts show that the parties understood Jeunesse to have two viable performance options under the Term Sheet. Precise Packaging and Jeunesse began doing business in 2017. That year, Jeunesse issued a $5.96 million purchase order for Precise Packaging to manufacture two million units of cosmetic products. Jeunesse later informed Precise Packaging that it would not fulfill its obligations under the purchase order due to insufficient customer demand, even though Precise Packaging had already bought some materials and components to manufacture the products. Shortly after, the parties negotiated the Term Sheet, whereby Jeunesse agreed to order at least 200,000 units in each of ten calendar quarters from 2019 to 2021, for a total of at least two million units, or pay Precise Packaging an amount equal to the unit shortfall multiplied by the agreed-upon product price. Under the take option in the Term Sheet, Jeunesse could, and did, purchase and take certain quantities of
cosmetic products manufactured by Precise Packaging to then resell to its customers. And under the pay-only option, Jeunesse secured several benefits: it avoided storage costs for cosmetic products it could not resell in light of softening demand, it gained a more gradual schedule for Precise Packaging’s manufacturing of the products, and it attained the certainty that Precise Packaging would source in advance the raw material needed to satisfy Jeunesse’s order of at least two million units of cosmetic products in the event demand increased. That latter benefit existed for Jeunesse even though Precise Packaging had on hand some existing raw materials from the prior purchase order, because once that raw material was exhausted, the take-or-pay provision guaranteed that Precise Packaging would timely source the remaining raw material to continue manufacturing the cosmetic products Jeunesse had ordered. In this way, the take-or-pay clause
operated as a typical take-or-pay provision, “designed to allocate the risks of production and supply to the seller and the risk of market demand to the buyer.” 11 Corbin on Contracts § 59.10 (2026). It did not, contrary to Jeunesse’s view, operate as a mere penalty. In view of these considerations, Jeunesse has not met its burden to demonstrate that the take-or-pay provision in the Term Sheet is unenforceable, and it has not overcome the presumption under Florida law that contracting parties “inten[d] a binding, valid agreement.” J.R.D. Mgmt. Corp. v. Dulin, 883 So.2d 314, 316 (Fla. Dist. Ct. App. 2004); see SHEDDF2-FL3, LLC v. Penthouse South, LLC, 314 So.3d 403, 408 (Fla. Dist. Ct. App. 2020) (While courts may “refuse to enforce a contract,” the burden is “on the party seeking to invalidate the contract.”). Disagreeing, Jeunesse points to Superfos Investments Limited v. FirstMiss Fertilizer, Inc., a case involving the enforceability of a take-or-pay clause in a contract governed by Virginia law. 821 F. Supp. at 434 n.1. The court in Superfos concluded that the take-or-pay provision was not enforceable because, among other things, the agreement contained a force majeure clause relieving the manufacturer of
its performance obligations if it was unable to source raw materials from another supplier. Id. at 435-36. The contract thus wholly eliminated the manufacturer’s risk of production. Id. at 436. The Term Sheet, in contrast, does not include a similar clause that would excuse Precise Packaging from its production obligations if raw material could not be sourced. Precise Packaging retained the risk of production—i.e., to manufacture at least 200,000 units per quarter for the duration of the agreement. Superfos does not call into question the enforceability of the take-or-pay clause here. Jeunesse also argues that the lack of a make-up clause in the Term Sheet signals that the take-or-pay provision operated more like a penalty than an alternative performance contract. Make-up clauses allow buyers “to ‘make-up’ for [products] paid for but not taken,” id., and “are
common in enforceable take-or-pay arrangements,” Hemlock Semiconductor, 747 F. App’x at 289. While some cases consider the lack of a make-up clause to undercut the enforceability of a take- or-pay provision, see id., the lack of a make-up clause, without more, is insufficient to show that the provision is coercive. Indeed, under Florida law, “take or pay agreements are enforced without such make up clauses.” World Fuel Servs., 234 F. Supp. 3d at 1241 (citing cases and holding that a lack of a make-up clause does not negate the clear take-or-pay language). Considering the language and purposes of the Term Sheet and the attendant circumstances, the Court concludes that the take-or-pay provision is enforceable as written. C. Damages. Under Florida law, “in a breach of contract action, ‘[a] non-breaching party is entitled to recover the benefit of its bargain under a contract.’” Perera v. Diolife LLC, 274 So.3d 1119, 1124 (Fla. Dist. Ct. App. 2019) (quoting Nat’l Educ. Ctrs., Inc. v. Kirkland, 635 So.2d 33, 34 (Fla. Dist.
Ct. App. 1993)). The goal of damages “is to place the injured party in the same position in which it would have been had the breach not occurred.” Id. (quotation marks omitted). And the breach of a take-or-pay agreement “entitles the non-breaching party to payments it would have received under the contract with no duty to mitigate damages.” World Fuel Servs., 234 F. Supp. 3d at 1241. PLZ asserts that because the Term Sheet includes a damages calculation, there is no genuine dispute as to the damages Jeunesse owes to PLZ. The take-or-pay provision states, in pertinent part, that “[i]n the event that [Jeunesse] fails to purchase 200,000 units in a particular calendar quarter as required under the Agreement, [Jeunesse] agrees to pay to [Precise Packaging] . . . an amount equal to the unit shortfall multiplied by the Product Price (i.e. such calculation initially shall be (200,000 - actual number of units ordered)*Product Price).” ECF 78-6, § 6. It is
undisputed that during every quarter of the two-and-a-half-year contract, Jeunesse failed to order at least 200,000 units of product. The shortfall amounted to 527,601 units in 2019, 711,346 units in 2020, and 369,668 units in 2021. Multiplying the unit shortfall by the discounted product price of $1.67 per unit,4 Precise Packaging sent three invoices for $881,093.67, $1,187,947.82, and $617,345.56, respectively, for each calendar year. Jeunesse did not pay any of these invoices. Jeunesse nevertheless contends that PLZ may not recover any damages because it has suffered no actual damages. Relying on Secrist v. National Service Industries, Inc., Jeunesse argues
4 PLZ does not dispute that the reduced product price of $1.67 per unit, as opposed to the higher price of $2.98 per unit, is the appropriate price to use in calculating its damages. that PLZ “may recover only the actual damages which were pled and specifically proven at trial.” 395 So.2d 1280, 1282 (Fla. Dist. Ct. App. 1981). But PLZ would need to prove actual damages only if the take-or-pay provision were a liquidated damages provision and an unenforceable penalty. See id. That analysis is inapplicable where, as here, the Court has determined that the take-
or-pay provision is enforceable. Jeunesse does not otherwise dispute that, to the extent the take- or-pay provision is enforceable, $2,686,387.05—the total of the three invoices—is an accurate measure of PLZ’s damages. Accordingly, PLZ is entitled to judgment on its breach of contract claim and damages in the amount of $2,686,387.05. III. Account Stated Claim. Count II asserts an account stated claim against Jeunesse. “For an account stated to exist as a matter of law, there must be an agreement between the parties that a certain balance is correct and due and an express or implicit promise to pay this balance.” Merrill-Stevens Dry Dock Co. v. Corniche Exp., 400 So.2d 1286, 1286 (Fla. Dist. Ct. App. 1981). It is “an action for a sum certain” and “may be attacked only by proof of fraud, duress, mistake or other grounds cognizable in
equity.” Id. at 1286-87. However, a party pursuing an account stated claim “is not entitled to recovery on another theory.” Id. at 1287; see also Tuscany Cheese, LLC v. True Grade, LLC, No. 22-cv-20415-CMA, 2022 WL 3701184 (S.D. Fla. 2022) (“When asserted alongside a breach of contract claim, an account stated claim must be ple[aded] in the alternative because an account stated claim may not be utilized simply as another means to collect under a disputed contract.” (alteration in original) (citation omitted)). Because PLZ is entitled to judgment on its breach of contract claim, it cannot also prevail on its account stated claim against Jeunesse. Accordingly, the Court will grant Jeunesse’s motion for summary judgment with respect to the account stated claim in Count II. CONCLUSIONS AND ORDERS For the foregoing reasons, PLZ’s motion for summary judgment, ECF 77, is GRANTED with respect to Count I and DENIED with respect to Count II. Jeunesse’s cross-motion for summary judgment, ECF 80, is DENIED with respect to Count I and GRANTED with respect to
Count II. Judgment will enter in favor of PLZ for $2,686,387.05 in damages. SO ORDERED.
/s/ Julia E. Kobick JULIA E. KOBICK Dated: August 18, 2026 UNITED STATES DISTRICT JUDGE