JOM INC. v. Adell Plastics, Inc.
Case Date: 08/04/1998
Court: United States Court of Appeals
Docket No: 97-2131
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FOR THE FIRST CIRCUIT No. 97-2131 JOM, INC., d/b/a CHIPCO INTERNATIONAL, LTD., Plaintiff, Appellee, v. ADELL PLASTICS, INC., Defendant, Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. David M. Cohen, U.S. Magistrate Judge] Before Torruella, Chief Judge, Selya, Boudin, Stahl, Lynch and Lipez, Circuit Judges, Coffin and Cyr, Senior Circuit Judges. John M.R. Paterson, with whom Mary Elizabeth Fougere and Bernstein, Shur, Sawyer & Nelson were on brief for appellant. Catherine R. Connors, with whom Peter W. Culley, Geraldine G. Sanchez and Pierce Atwood were on brief for appellee. October 4, 1999 OPINION EN BANC Per Curiam. Adell Plastics, Inc. ("Adell") appealed from a district court judgment awarding JOM, Inc., d/b/a Chipco International, Ltd. ("Chipco"), $884,332 in compensatory damages for breach of contract. The panel opinion affirmed the liability ruling, but remanded to the district court for a recalculation of damages in accordance with a contractual damages-limitation clause. Chipco's motion for rehearing en banc having been granted, we vacate the panel opinion. Having concluded that oral argument is unnecessary, we rely instead on the parties' written submissions. We now reinstate that portion of the panel opinion affirming the district court's liability ruling, but remand to the district court for its determination as to whether the damages cap constituted a "material alteration" excludable from the contracts of the parties. I BACKGROUND Chipco produces and sells casino gaming chips manufactured from pelletized polyester resin. From 1986 to 1994, Chipco acquired its resin exclusively from General Electric. In September 1994, Chipco decided to purchase a less expensive resin produced by Adell, which Adell represented to be equal or superior in quality to the resin supplied by General Electric. The purchase orders which Chipco forwarded to Adell contained no language relating to warranties or remedies in the event of breach. In contrast, the reverse side of the invoices Adell forwarded to Chipco with each resin shipment listed numerous conditions of sale, one of which |