The opinion
UNITED STATES DISTRICT COURT 7/22/202 6 4:22 pm
EASTERN DISTRICT OF NEW YORK U.S. DISTRICT COURT
-----------------------------------------------------------------X EASTERN DISTRICT OF NEW YORK
ARIZONA BEVERAGES USA LLC., LONG ISLAND OFFICE
MEMORANDUM
Plaintiff, AND ORDER
- against - Civil Action
No. 25-4525 (GRB)(ARL)
ARDAGH METAL PACKAGING USA CORP.,
Defendant.
-----------------------------------------------------------------X
GARY R. BROWN, United States District Judge:
This case concerns a contractual dispute between plaintiff AriZona Beverages
USA, LLC (“AriZona”) and Ardagh Metal Packaging USA Corp. (“Ardagh”). AriZona
contends that the parties entered into a three-year supply contract, under which Ardagh
was to supply AriZona with its trademark 24 ounce “big cans.” However, AriZona
claims that Ardagh repudiated the agreement and attempted to leverage AriZona for a
higher price per can than the contract provided. Ardagh responds that there was no
agreement between the parties and, even if there was such an agreement, it is
unenforceable under the statute of frauds.
Presently before the Court is Ardagh’s motion for judgment on the pleadings.
Docket Entry (“DE”) 46 (“Mot.”). For the reasons that follow, that motion is granted in
part and denied in part.
Factual Background
As alleged in the Complaint, AriZona is a major producer and distributor of iced
tea, juice cocktails, and other products. DE 17 (Arizona’s Am. Compl. (“Compl.”) { 1.
The company is best known for 24 ounce “big can” drinks, which are often pre-priced to
retail at 99 cents, much less than competitor products. Id. { 2. That pricing has held
constant since 1998 and has generated substantial goodwill for the brand, which
AriZona asserts is especially important to its business model because the company does
not advertise by print or on television. Id. {| 3-4.
e
AriZona 4
See THE BIG CAN
<=. THAT CHANGED
THE GAME
Compl. {3 (AriZona logo and depiction of Big Can)
That is where Ardagh enters the picture. Ardagh is one of the few
manufacturers of big cans in the United States, a capacity it developed when AriZona’s
previous supplier, Ball Corporation (“Ball”), merged with its competitor Rexam
Beverage Can Company (“Rexam”) and divested to Ardagh several can manufacturing
facilities in order to clear the merger with the FTC. Compl. 4 25, 28-30, 35. Ardagh
also hired several former Rexam employees, who had pre-existing relationships with
AriZona executives. Id. 9 33-34, 37. One such employee was Robert Sladewski, who
became Ardagh’s Chief Commercial Officer. Id. After AriZona and Ball’s business
relationship deteriorated due to a dispute regarding Ball’s failure to meet AriZona’s can
requirements (from which AriZona received a large arbitration award in 2022), AriZona
turned to Ardagh as a new supplier. Id. ¶¶ 32, 35.
AriZona initially purchased cans from Ardagh on an ad hoc, “spot” basis, but in
2024, the parties sought a longer-term agreement, eventually negotiating the parameters
of a three-year agreement. Compl. ¶ 35–36. Between June and August 2024, Mr.
Sladewski negotiated with AriZona’s Vice Chairman David Menashi and other AriZona
executives, during which time Mr. Sladewski made a long-term proposal that AriZona
considered too expensive. Id. ¶¶ 35, 37. That September, Ardagh allegedly indicated
that it would accept a lower price point, and between September and October 2024, the
parties then negotiated both by email and by phone price adjustment formulas that
were to incorporate inflationary and metal market factors to accommodate both parties.
Id. ¶¶ 38–45. On October 16th, Mr. Menashi emailed Mr. Sladewski that: “The
following is our agreement for 24 oz can supply” and included a comprehensive list of
terms including duration, a total forecasted volume of 200 to 325 million units annually
with “no minimum requirement,” and a complicated metal pricing methodology. DE
50, Ex. B; Compl. ¶¶ 46, 48. Mr. Sladewski responded:
Thanks David.
A few clarifications that I highlighted below including adding a release on the
alleged freight issue.
You note that there is no minimum volume. While there isn’t a minimum annual
volume, aren’t we still talking about 100% of your SE requirements(although no
volume specified for this geography)?
On orders being satisfied in accordance with the required schedule, have no
issues with this concept however lead times need to be reasonable.
Will work with Pat to finalize the inflationary and metal adjustment
mechanisms. Thx
DE 50, Ex. B; Compl. ¶ 47. (hereinafter, the “October 16th emails”).
Following the October 16th emails, the parties continued to discuss the
outstanding terms by phone, and allegedly agreed on several outstanding issues, which
Mr. Menashi then memorialized in an email on October 18th (the “October 18th email”).
Compl. ¶¶ 49–53. In that email, Mr. Menashi wrote:
Hi Bob,
I have updated my email to you of October 16 in order to reflect our conversation
of today.
The orange items are for you and Pat to complete.
The green items are changes or additions to which we agreed.
Please call me upon receipt.
DE 50, Ex. C. The October 18th email included a marked-up version of Mr. Menashi’s
October 16th email, as follows:1
Hi Bob,
The following is our agreement for 24 oz can supply:
Term: now to 12/31/2027
Forecasted volume/year in millions of units (no take or pay):
Your Winston-Salem, N. Carolina plant: 150 to 175
Your Chicago plant: 50 to 150
1 Bold text reflects text highlighted in green. Italicized text indicates text highlighted in
orange.
Inflation factors: to be applied for purchases commencing 1/1/2026 (note to
Bob: consider which year to apply)
Calculation TBD as between you and [AriZona finance VP] Pat
Catalina, including as to which indices to use
Calculation parameters discussed are: 25% Ardagh Profit Margin
65% pass-through to Az
1 year holiday
Metal pricing: M-1 methodology, as you and Pat Catalina agree, metal lock
permitted
Pricing (at LME
and MWP of S1.20): All calculations are performed from the date of the
first purchase and over the following 12 months (FOB
plant):
Initial invoice for bodies/thousand units (epoxy
coating): $117.00/000
Upon cumulative purchases from both plants add up
to 75 million units, with at least 80% of purchases
being from Winston, invoice price for bodies drops to
$115.80/000
AND a rebate of $1.20/000 is paid for all prior
purchases from can one
AND the 80% requirement is dropped once the
purchases from Winston add up to 150 million
units
Upon cumulative purchases from both plants add up
to 140 million units, with at least 80% of purchases
being from Winston, invoice price for bodies drops to
$115.30/000
AND an additional rebate of $0.50/000 is paid
for all prior purchases from can one
AND the 80% requirement is dropped once the
purchases from Winston add up to 150 million
units
Upon cumulative purchases from both plants add up
to 150 million units, with at least 80% of purchases
being from Winston, invoice price for bodies drops to
$114.80/000
AND an additional rebate of $0.50/000 is paid
for all prior purchases from can one
AND the 80% requirement is dropped once the
purchases from Winston add up to 150 million
units
Rebates are cumulative
BPANI coating upcharge, if required, is $0.50/000
Invoice for lids/thousand units (epoxy coating):
$25.35
BPANI coating upcharge, if required, is $0.50/000
A 5% discrepancy is permitted between can and body
purchases
All artwork and plate changes are included in pricing
Ardagh to supply technical assistance at co-packers as
needed
Payment terms: net 30
Ardagh will ensure that all orders are satisfied in
accordance with the required schedules, absent a
declared force majeure, so long as lead times are
reasonable
If Ardagh is unable to satisfy an order and Az satisfies that order from another
supplier, the number of cans so supplied will count towards the can count
differential from the relevant Ardagh plant (Bob: what if there is a freight
differential?)
Az will release Ardagh from the 2022/ freight claim.
DE 50, Ex. C; Compl. ¶ 54.
AriZona calls attention to several features of the email. First, that AriZona’s
“release” of the “2022 [ ] freight claim” references a dispute over $5 million in allegedly
overcharged freight. Compl. ¶¶ 55–56. Second, that the inflationary pricing would
allegedly only make sense on a multi-year contract because the figure could only be
calculated after a year. Id. ¶¶ 57–58. Third, that the reference to a “1 year holiday” to
exempt one year of the deal from inflationary pricing would similarly be curious in a
single year agreement. Id. The parties also seem to agree that the “no take or pay” term
means there was no minimum volume. Mot. at 10; DE 50 (AriZona’s Response Br.
(“Opp.”) at 10–11. In any event, the parties agree that Mr. Sladewski never responded
to the October 18th email. Compl. ¶ 59; Mot. at 4.
The parties later began separate discussions for Ardagh to supply AriZona with
smaller “sleek cans,” during which Mr. Sladewski referred to a pricing structure that
would “utilize[ ] the same methodology as agreed on 24 oz.” big cans. DE 50, Ex. D. At
one point during the negotiations, another Ardagh representative referred to a “New
Agreement” that was to be “effective December 2024.” DE 50, Ex. F; Compl. ¶¶ 63–68.
AriZona also claims that Ardagh produced, and AriZona purchased, cans at
rates in conformance with the alleged agreement, further asserting that Ardagh
performed complicated pricing adjustments in conformance with the pricing structure
laid out in the October 18th email that would be inconsistent with a spot-buy structure.
Opp. at 14. The Complaint describes the pricing reconciliation process as:
Ardagh would use a metal adjustment that was based on the average of the
metal prices during a three month period. On a quarterly basis, however,
the Parties would perform a “reconciliation” pursuant to which prices for
the three months of the preceding quarter would be reconciled back to a
traditional “M-1” methodology (i.e., the price for one month prior to the
month of the invoice). Depending on the outcome of that reconciliation,
AriZona would either owe an additional payment to Ardagh or be entitled
to a refund from Ardagh.
Compl. ¶ 69. And AriZona alleges that the parties performed in conformance with that
process over the succeeding months. Id. ¶¶ 70–76. Specifically, AriZona alleges that
from October 2024 to June 2025:
Ardagh proceeded exactly as one would expect an aluminum can supplier
that had entered into a Can Supply Agreement with AriZona to proceed: it
performed that agreement. Throughout this period, Ardagh: (a)
manufactured the cans ordered; (b) affixed AriZona’s trademarks graphics
and logos to those cans; (c) invoiced AriZona for the cans; (d) shipped the
cans to AriZona’s co-packers; (e) quoted prices computed in accordance
with the agreement; (f) accepted payment from AriZona; and (g) performed
contractually-required quarterly metal reconciliations, all in accordance
with the terms agreed to in the Can Supply Agreement, including the PPI
adjustment and metal reconciliation.
Id. ¶ 76. In total, Ardagh “manufactured and supplied over 112 million cans and 66
million ends/lids to AriZona and its co-packers, in over 1,162 separate shipments, and
invoiced AriZona and was paid and accepted over $15 million.” Id. ¶ 78.
In June 2025, however, Ardagh allegedly repudiated the agreement and sought a
higher price-point per can. On June 24th, Mr. Sladewski sent an email to AriZona
stating that “that negotiations were ongoing and that we needed to reach agreement on
a number of key terms including: inflationary mechanism, metal adjustment and freight
reconciliation,” and Mr. Sladewski argued that the performance during 2025 could be
referenced to an agreement for a “spot buy.” Compl. ¶¶ 84–86. AriZona rejected the
repudiation of the alleged agreement the next day, and Mr. Sladewski responded by
email that he would send “a draft to you in the next few days outlining the commercial
terms that we’d be agreeable to moving forward with for continuing supply to AZ
beyond July 30, 2025.” Id. ¶ 93. The email ultimately proposed a 25% to 30% increase in
can pricing over the alleged 2024 agreement. Id. ¶ 94. Despite those communications,
AriZona alleges that a different Ardagh representative emailed AriZona on July 8th to
discuss the price reconciliation process outlined above for the Second Quarter of 2025,
which would not make sense if no agreement existed and the parties were instead
operating on a spot-buy basis. DE 50, Ex. J; Compl. ¶¶ 96–97.
The parties then attempted to negotiate a resolution to the dispute, but the
discussions were unsuccessful. Compl. ¶¶ 99–109, 123–124. This litigation followed.
Standard of Review
“In deciding a Rule 12(c) motion, we employ the same standard applicable to
dismissals pursuant to Rule 12(b)(6).” L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419,
429 (2d Cir. 2011) (alterations omitted). A Rule 12(b)(6) motion would, in turn, pose the
question of whether, assuming the allegations of the complaint to be true solely for the
purposes of the motion, the Complaint sets forth factual material to render the claims
plausible. Burris v. Nassau Cnty. Dist. Att’y, No. 14-CV-5540 (JFB) (GRB), 2017 WL
9485714 at *3–4 (E.D.N.Y. Jan. 12, 2017), adopted by 2017 WL 1187709 (E.D.N.Y. Mar. 29,
2017). Accordingly, courts adjudicating motions under Rule 12(c) “accept all factual
allegations in the complaint as true and draw all reasonable inferences in [the
plaintiff’s] favor.” L-7 Designs, Inc., 647 F.3d at 429.
Legal Analysis
The alleged contract between the parties concerns the purchase of beverage cans,
a type of goods. Therefore, the contract is governed by Article 2 of New York’s
Uniform Commercial Code. See Vista Food Exch., Inc. v. Comercial De Alimentos Sanchez S
De R L De C.V., 147 F.4th 73, 89 (2d Cir. 2025). New York has recently amended its
U.C.C. (effective June 2026), but “[t]he general rule, . . . is that contracts are interpreted
in accordance with the law in effect at the time of their formation.” Maryland Cas. Co. v.
Cont’l Cas. Co., 332 F.3d 145, 159 (2d Cir. 2003) (citing Bloomfield v. Bloomfield, 97 N.Y.2d
188, 194 (2001)). Therefore, the 2025 version of the U.C.C. governs this case.
I. Statute of Frauds
Ardagh first contends that regardless of whether the Complaint plausibly alleges
an agreement between the parties, the statute of frauds would bar enforcement.
Because Article 2 of the U.C.C. governs the instant dispute, the relevant statutory
provision is N.Y. U.C.C. § 2-201.2 Subsection (1) of that provision, as operative in 2025,
states:
2 Counsel for Ardagh suggests that both § 2–201 of the N.Y. U.C.C. and the general statute
of limitations expressed in N.Y. G.O.L. § 5–701 apply to the alleged contract here. See
Mot. at 17. However, “where the provisions of the U.C.C. and the G.O.L. conflict, a
specific provision of the Statute of Frauds such as Uniform Commercial Code § 2–201
prevails over a general one such as General Obligations Law § 5–701.” E. Mishan & Sons,
Inc. v. Homeland Housewares, LLC, No. 10-CV-4931 (DAB), 2012 WL 2952901, at *4
(S.D.N.Y. July 16, 2012). Ardagh’s primary contention under N.Y. G.O.L. § 5–701 that the
Except as otherwise provided in this section a contract for the sale of goods
for the price of $500 or more is not enforceable by way of action or defense
unless there is some writing sufficient to indicate that a contract for sale has
been made between the parties and signed by the party against whom
enforcement is sought or by his authorized agent or broker. A writing is
not insufficient because it omits or incorrectly states a term agreed upon but
the contract is not enforceable under this paragraph beyond the quantity of
goods shown in such writing.
The default rule under the U.C.C. is therefore that the party against whom enforcement
of an agreement is sought must have signed a writing evidencing the agreement.
However, the writing “need not be incorporated in a single document but may be
pieced together from several documents which relate to each other.” Reforestacion
Cafetalera Agro-Indus. S.A. v. Campesino Food Corp., No. 97-CV-5553 (RCC), 1999 WL
4964, at *2 (S.D.N.Y. Jan. 6, 1999) (quoting Weitnauer Trading Co. Ltd. v. Annis, 516 F.2d
878, 880 (2d Cir. 1975)). And application of that rule is not meant to be formulistic. See
Vinifera Imports Ltd. v. Societa Agricola Castello Romitorio SRL, No. 16–CV–00103
(ADS)(ARL), 2020 WL 1184962, at *8 (E.D.N.Y. Mar. 12, 2020) (“the Statute of Frauds
protects unwitting parties from certain transactions particularly susceptible to fraud. It
is not designed to permit parties to escape agreements they knowingly entered into
through gamesmanship and mere technicalities.”) (internal citations omitted). To the
writing does not “contain expressly or by reasonable implication all the material terms of
the agreement” is expressly contradicted by New York law because “a contractual
writing covering the sale of goods which is sufficient for enforceability under U.C.C. [§]
2–201 is valid despite its insufficiency under General Obligations Law § 5–701.” AP
Propane, Inc. v. Sperbeck, 555 N.Y.S.2d 211, 213 (3d Dep’t 1990), aff’d, 77 N.Y.2d 886 (1991).
Furthermore, Ardagh appears to have substantively abandoned the G.O.L. argument on
reply. Therefore, the Court evaluates the substance of the statute of frauds defense only
under the U.C.C.
contrary, the statute “simply requir[es] ‘that the writing afford a basis for believing that
the offered oral evidence rests on a real transaction.’” Bazak Int’l Corp. v. Mast Indus.,
Inc., 73 N.Y.2d 113, 120 (1989) (quoting U.C.C. § 2-201 official cmt. 1).
Ardagh submits that there is no writing endorsed by an Ardagh representative
that would satisfy the statute of frauds, noting that the October 16th and 18th emails
were both sent by AriZona representatives and therefore cannot bind Ardagh under
any construction of subsection (1). Even assuming the October 16th and October 18th
emails are the universe of expressions of the parties’ alleged agreement, however, the
October 18 email qualifies as a merchant’s confirmatory memorandum under the U.C.C.
The confirmatory memorandum exception to the statute of frauds, codified in
New York’s U.C.C. at § 2–201(2), provides:
Between merchants if within a reasonable time a writing in confirmation of
the contract and sufficient against the sender is received and the party
receiving it has reason to know its contents, it satisfies the requirements of
subsection (1) against such party unless written notice of objection to its
contents is given within ten days after it is received.
“There are no rigid requirements as to the form or content of a confirmatory writing. A
writing is sufficient so long as it affords a basis for believing that it reflects a real
transaction between the parties.” Hilord Chem. Corp. v. Ricoh Elecs., Inc., 875 F.2d 32, 37
(2d Cir. 1989); see also Apex Oil Co. v. Vanguard Oil & Serv. Co. Inc., 760 F.2d 417, 423 (2d
Cir. 1985) (finding confirmatory memorandum requirements satisfied even where a
“telex did not in terms state that [defendant] was under an unconditional obligation to
sell” because “all that is required is that the writing afford a basis for believing that the
offered oral evidence rests on a real transaction,” and the evidence “provided a basis for
the District Court to accept the testimony of [plaintiff’s] witnesses concerning the nature
of th[e] contract.”) (cleaned up). Here, the October 18th email references a conversation
between Mr. Sladewski and Mr. Menashi that resulted in a purported agreement
memorialized in the October 18th email. That posture is sufficient for the confirmatory
memorandum rule to be invoked, subject to its specific requirements.
As for those requirements, it is uncontested that both AriZona and Ardagh are
merchants, and it is similarly uncontested that Ardagh never replied to the October 18th
email. See Mot. at 4 (“Mr. Sladewski never responded to Mr. Menashi’s October 18
email, and AriZona makes no effort to plead he did.”). Therefore, the live issue for
statute of frauds purposes is whether the October 18th email is “sufficient against”
AriZona. If so, the question becomes whether the expressions in the email plausibly
detail the terms of the alleged contract.
“Sufficient against” in subsection (2) carries the same meaning as “signed” in
subsection (1) because “writings [a]re not sufficient against the sender [if] they [a]re not
signed by the sender. Smith Packing Co. v. Quality Pork Int’l, Inc., 561 N.Y.S.2d 970, 971
(4th Dep’t 1990). The U.C.C. definitions section, in turn, states that “signed” includes
“using any symbol executed or adopted with present intention to adopt or accept a
writing.” N.Y. U.C.C. § 1-201(37).3
To authenticate the confirmatory memorandum, the “signature” may be
provided electronically, and “[a]n e-mail suffices as much as a letter, a telegram or a fax
to provide such objective indication of an existing agreement.” Bazak Int’l Corp. v.
Tarrant Apparel Grp., 378 F. Supp. 2d 377, 384 (S.D.N.Y. 2005); see also Henry Avocado
Corp. v. Z.J.D. Brother, LLC, No. 17-CV-4559 (ARR)(RLM), 2019 WL 1586865, at *11 n.10
(E.D.N.Y. Apr. 12, 2019) (“Defendants argue that the fact that the invoices are not
signed by any individuals who work for [plaintiff] renders them invalid as
confirmatory agreements. However, a physical signature is not necessary for a
document to be ‘sufficient against the sender.’ To the contrary, electronic signatures,
stamps, and other forms of authentication satisfy the merchants exception to the statute
of frauds.”) (internal citations omitted); Antifun Ltd. T/A Premium Vape v. Wayne Indus.
LLC, 616 F. Supp. 3d 291, 308 (S.D.N.Y. 2022) (“Electronic communications between
merchants—provided that they are sufficiently precise—can also serve as writings
confirming an agreement.”); Norminjil Sportswear Corp. v. T G & Y Stores Co., 644 F.
3 Subsection 37 has since been amended to read:
“Sign” means, with present intent to authenticate or adopt a record:
(A) execute or adopt a tangible symbol; or
(B) attach to or logically associate with the record an electronic symbol,
sound, or process.
“Signed, “signing”, and “signature” have corresponding meanings.
N.Y. U.C.C. § 1-201(37) (effective June 3, 2026). The new standard is, if anything, more
permissive towards AriZona and so would not alter the analysis here.
Supp. 1, 4 (S.D.N.Y. 1985) (“The question before us is whether a reasonable merchant,
seeing the memorandum in question would understand it to be a confirmation of
consummated oral agreement.”).
Yet, courts have still spent many years perseverating over the distinction
between a “typed” email signature and signature blocks generated automatically. See
e.g. Garcia v. Dezba Asset Recovery, Inc., 665 F. Supp. 3d 390, 403 n.2 (S.D.N.Y. 2023)
(collecting cases). That debate stems from the New York Court of Appeals’ decision in
Parma Tile Mosaic & Marble Co. v. Estate of Short, 87 N.Y.2d 524 (1996), which held that
pre-programmed imprinting on fax transmissions of the sender’s contact information
did not sufficiently authenticate those documents for statute of frauds purposes.
Nevertheless, as email increasingly replaces paper transactions as the dominant
mode of business communication, courts including the Appellate Division directly
bound by the Court of Appeals have determined that the “distinction between
prepopulated and retyped signatures in emails reflects a needless formality that does
not reflect how law is commonly practiced today” because “[i]t is not the signoff that
indicates whether the parties intended” to contract via email, “but rather the fact that
the email was sent.” Philadelphia Ins. Indem. Co. v. Kendall, 151 N.Y.S.3d 392, 396 (1st
Dep’t 2021) (explaining in the settlement agreement context, “if an attorney hits ‘send’
with the intent of relaying a settlement offer or acceptance, and their email account is
identified in some way as their own, then it is unnecessary for them to type their own
signature. This rule avoids unnecessary delay caused by burden-shifting swearing
contests over whether an individual typed their name or it was generated automatically
by their email account.”) (internal quotation marks omitted).
The Court agrees with Judge Oetken’s view that “[a]lthough it appears that
neither the First Department nor any other New York appellate court has extended
Philadelphia to the Statute-of-Frauds context, the Court can discern no reason why the
result should differ.” Lehrman v. Lovo, Inc., 790 F. Supp. 3d 348, 361 n.3 (S.D.N.Y. 2025).
As a result, where email “messages were sent from accounts that are identified with
persons we now know to be agents of” a corporate party, the corporate party is “bound
by those messages,” absent conflicting authority from the New York Court of Appeals
or Second Circuit. Id. at 361.
This reading comports with the U.C.C.’s pragmatic orientation, which instructs
that the statute “must be liberally construed and applied to promote its underlying
purposes and policies,” including “to simplify, clarify, and modernize the law
governing commercial transactions.” N.Y. U.C.C. § 1-103; see also Dell’s Maraschino
Cherries Co. v. Shoreline Fruit Growers, Inc., 887 F. Supp. 2d 459, 471 (E.D.N.Y. 2012)
(“practical business people cannot be expected to govern their actions with reference to
nice legal formalisms. Thus, when there is basic agreement, however manifested and
whether or not the precise moment of agreement may be determined, failure to
articulate that agreement in the precise language of a lawyer, with every difficulty and
contingency considered and resolved, will not prevent formation of a contract.”)
(quoting Kleinschmidt Div. of SCM Corp. v. Futuronics Corp., 41 N.Y.2d 972, 973 (1977)).
There may of course be circumstances where sending an email does not objectively
indicate adoption of the email’s contents. But here, the objective indicia of the October
18th email suggest that Mr. Menashi meant to authenticate the contents of the email by
sending it. The email references the alleged oral agreement and makes specific
representations about discrete terms in the putative contract.4 Under the circumstances,
Mr. Menashi evidenced a contemporaneous intent to authenticate the contents of the
email for purposes of the statute of frauds by sending it to Mr. Sladewski.
Ardagh also argues that there is no quantity term in the agreement, and so
AriZona cannot prove existence of a contract even under the U.C.C.’s lenient standard.
However, the October 18th email references a projected range of 200 to 325 million units
per year. DE 50, Ex. C. As AriZona recounts, the Second Circuit has recognized that a
quantity range can represent a sufficiently definite quantity in certain circumstances.
See Nora Beverages, Inc. v. Perrier Grp. of Am., Inc., 164 F.3d 736, 749 (2d Cir. 1998)
(applying identical Connecticut provision and finding that “description of quantity in
terms of a range satisfies the Statute of Frauds”). Furthermore, to the extent that the
“no take or pay” provision disclaims a minimum, the evidence is also plausibly
consistent with a regional requirements contract, given Mr. Sladewski’s emailed
reference to the contract covering “100% of [AriZona’s] SE requirements.” DE 50, Ex. B.
4 Ardagh cites a January 20, 2025 email from Mr. Sladewski to Mr. Menashi which
includes a statement that “we are operating without a formal supply agreement” as
evidence that the parties never entered into a contract. Mot. at 13–14 (citing DE 11, Ex.
A). In context, that quotation could plausibly refer to the quantity of cans to be supplied
varying depending on the month. Therefore, reconciliation of that email with the alleged
contract is more appropriate after discovery concludes.
In such circumstances, the U.C.C. may imply a best-efforts clause into the contract,
which would establish a minimum volume.
In any event, the precise meaning of any ambiguous terms are issues of fact that
are inappropriate to adjudicate on a 12(c) motion and indeed could be inappropriate to
adjudicate at summary judgment. See Consarc Corp. v. Marine Midland Bank, N. A., 996
F.2d 568, 577 (2d Cir. 1993) (“Summary judgment is improper where “there exist
genuine issues of material fact with respect to whether the parties reached an oral
agreement”); Adler v. Payward, Inc., No. 18-CV-8100 (RMB), 2024 WL 1138941, at *3
(S.D.N.Y. Mar. 14, 2024) (“where, as here, a plaintiff raises issues of fact as to whether
the parties entered into an actual contract and as to the specific terms incorporated into
such contract, summary judgment should be denied.”) (quoting Tokio Marine & Fire Ins.
Co. v. Fed. Marine Terminal, Inc., 397 F. Supp. 2d 530, 535 (S.D.N.Y. 2005)) (cleaned up).5
5 Whether the October 18th email reflects a minimum quantity is, in the universe of this
litigation, an issue of existential importance that could materially affect both liability and
damages. Accordingly, the parties are directed to work with Magistrate Judge Lindsay
to prioritize discovery of materials and testimony bearing on that issue. See Bonchon LLC
v. LKRG Provisions & Holdings, LLC, No. 20-CV-3938 (DLC), 2021 WL 5042858, at *4
(S.D.N.Y. Oct. 29, 2021) (granting summary judgment where “the Supply Agreement
omits the quantity of the [products] to be purchased by [plaintiff]” because “[w]hile it
lists the ‘Estimated Volume’ . . . the Agreement explicitly describes that volume as an
estimate rather than a commitment by [defendant] to produce that volume or by
[plaintiff] to purchase that volume.”); cf. Nora Beverages, 164 F.3d at 749 (“The
commentary to the U.C.C. [§ 2–201] indicates that quantity ‘need not be accurately stated
but recovery is limited to the amount stated.’ This language suggests that description of
quantity in terms of a range satisfies the Statute of Frauds but that the plaintiff may be
limited in its recovery to the lower end of the range.”) (construing Conn. Gen. Stat. Ann.
§ 42a–2–201, which is identical to New York U.C.C. § 2–201); see also INEOS Americas LLC
v. Dow Chem. Co., 378 F. App’x 74, 80 (2d Cir. 2010) (affirming district court’s award of
only nominal damages for breach of a requirements contract).
Accordingly, the October 18th email from Mr. Menashi would be “sufficient
against” AriZona and satisfies the statute of frauds.6
However, that is not the end of the analysis, for the confirmatory memorandum
exception “does not eliminate the requirement of mutual assent to a contract.”
Spinnerin Yarn Co. v. Apparel Retail Corp., 614 F. Supp. 1174, 1179 (S.D.N.Y. 1985).
Otherwise, a plaintiff would be able to “rely on a transmitted confirmation of a contract
that never existed and then hold [the] defendant to the non-existent contract because
[the] defendant failed to object.” Id. Thus, AriZona still must plausibly allege the
existence of a contract to survive the 12(c) motion.
II. Existence of Contract
Ardagh argues that AriZona has not provided sufficient evidence of an
agreement between the parties. Under the U.C.C., while the ultimate question of
contract formation is one of law, foundational issues including intent are issues of fact
where disputed evidence must be considered alongside a writing.7 Mallad Const. Corp.
6 Any remaining issues related to the statute of frauds would be premature to consider at
this stage. See e.g., E. Mishan & Sons, Inc, 2012 WL 2952901, at *5 (“the issue of what form
of response constitutes an objection is a question of fact dependent on trade usage.”);
Bazak Int’l Corp., 378 F. Supp. 2d at 387 (“[w]hether receipt of a confirmatory writing has
occurred is a question of fact, inappropriately determined on summary judgment.”).
7 Ardagh cites Vacold LLC v. Cerami for the proposition that “[u]nder New York law,
whether a binding agreement exists is a legal issue, not a factual one.” 545 F.3d 114, 123
(2d Cir. 2008). That principle only applies where the existence of the contract is not
disputed or where the evidentiary record consists solely of writings. Id. Indeed, as Vacold
itself explained: “so long as the evidence does not point unerringly in a single direction
but is capable of supporting conflicting inferences, the question of whether a contract has
been formed . . . is a question of fact.” Id.
v. Cnty. Fed. Sav. & Loan Ass’n, 32 N.Y.2d 285, 291 (1973) (“where the intent must be
determined by disputed evidence or inferences outside the written words of the
instrument [ ] a question of fact [is] presented”); see also U.S. Titan, Inc. v. Guangzhou
Zhen Hua Shipping Co., 241 F.3d 135, 145 (2d Cir. 2001) (“[t]he determination of whether
there was a meeting of the minds sufficient to constitute a contract is one of fact.”)
(citing Interocean Shipping Co. v. National Shipping & Trading Corp., 523 F.2d 527, 534 (2d
Cir. 1975)).
Questions surrounding formation of disputed contracts are therefore frequently
within the province of the trier of fact. See e.g., Nora Beverages, 164 F.3d at 748 (denying
summary judgment on claim asserted under identical provision of Connecticut’s U.C.C.
because “there are issues of fact as to whether [the parties] arrived at a contract”);
Jamuna Fashion Wears Ltd. v. Micom Trading Corp., No. 09-CV-5339 (BSJ)(MHD), 2012 WL
13140780, at *5 (S.D.N.Y. Dec. 28, 2012) (explaining in U.C.C. case that “‘[w]hen the
language of a contract is ambiguous and there is relevant extrinsic evidence regarding
the actual intent of the parties, an issue of fact is presented’ for the fact finder to
resolve.”) (quoting Scholastic, Inc. v. Harris, 259 F.3d 73, 83 (2d. Cir. 2001)); see also
DiLorenzo v. Est. Motors, Inc., 802 N.Y.S.2d 516, 517 (2d. Dep’t 2005) (“there is an issue of
fact as to whether the parties intended to conclude the contract despite the fact that the
sales price was not settled”) (citing U.C.C.); Marquette Co. v. Norcem, Inc., 494 N.Y.S.2d
511, 513 (1985) (“this question of the real intent of the parties is a question properly . . .
addressed by the trier of fact.”); Diversified Prods., Inc. v. Tops Markets, Inc., No. 99-CV-
0457 (EF), 2001 WL 640697, at *4 (W.D.N.Y. June 7, 2001) (“The U.C.C. [ ] allows parties
to enter into a contract for the sale of goods even though the sales price is not yet
settled, if the parties intend to do so and whether the parties intended to conclude a
sales contract before settling on a price is usually an issue of fact to be decided by the
jury.”).
Thus, simply stated, “[w]hen determining whether the parties intended to be
bound, it is the responsibility of the Court to interpret written instruments, while other
evidence about intent, from which differing inferences can be drawn, is left for the trier
of fact.” Alessi Equip., Inc. v. Am. Piledriving Equip., Inc., 578 F. Supp. 3d 467, 497
(S.D.N.Y. 2022) (cleaned up).
And formation is particularly a question of fact where an oral agreement is
alleged. Spa World Corp. v. Lipschik, No. 09-CV-1711 (TCP), 2010 WL 11632681, at *6 n.3
(E.D.N.Y. Sept. 9, 2010) (“Pursuant to New York law, whether or not an oral contract
exists is typically a question for the trier-of-fact.”) (citing McCallum v. Pickens, 213 N.Y.S.
119, 121 (N.Y. Sup. Ct. 1925)); Henry Avocado Corp., 2019 WL 1586865, at *9 (denying
motion to dismiss where plaintiff’s “version of the oral agreements between the parties
[wa]s specific and grounded in evidence.”); Whitemarsh Indus., Inc. v. Sears Roebuck &
Co., 595 N.Y.S.2d 763, 764 (1st Dep’t 1993) (“the issues surrounding the alleged oral
agreement, the confirmatory writing, and the objection thereto present factual issues
inappropriate for summary resolution”) (citing Mast Indus., Inc., 73 N.Y.2d at 123).
The U.C.C. is substantially more permissive than the common law when it comes
to proving the existence of a contract. Under the U.C.C., “a contract for the sale of
goods may be made in any manner sufficient to show agreement, including conduct by
both parties which recognizes the existence of such a contract.” City Calibration Centers
Inc. v. Heath Consultants Inc., 727 F. Supp. 3d 332, 356 (E.D.N.Y. 2024). And while a
contract for the sale of goods presumptively must include quantity, price, and manner
of delivery terms, “under the N.Y. U.C.C., if the parties have intended to contract, and if
an appropriate remedy may be fashioned, a contract for sale does not fail for
indefiniteness if terms, even important terms, are left open.” Antifun Ltd., 616 F. Supp.
3d at 306. Therefore, even where the parties to a contract fail to specify either a time,
price, and/or manner-of-delivery term, a contract is not necessarily unenforceable since
“the U.C.C.’s ‘gap filling’ provisions supply ‘a reasonable time’ for shipment or
delivery; ‘a reasonable price at the time of delivery;’ and ‘the seller’s place of business ...
[,] [the seller’s] residence’ or any other location of the goods known by the parties” for
the manner-of-delivery.” City Calibration Centers, 727 F. Supp. 3d at 356. The quantity
term can also be gap-filled by a best-efforts obligation in an exclusive or requirements
contract. See N.Y. U.C.C. § 2–306; Alessi Equip., Inc. v. Am. Piledriving Equip., Inc., No. 22-
2317, 2025 WL 3257058, at *2 (2d Cir. Nov. 21, 2025) (“section 2-306(2) of the N.Y. U.C.C.
supplied the contract’s missing ‘quantity’ term”).
Here, AriZona alleges Mr. Sladewski and Mr. Menashi reached an oral
agreement, which Mr. Menashi then purportedly memorialized in the October 18th
email. Because that email explicitly references an earlier conversation and because the
Complaint plausibly alleges that the parties subsequently performed in conformance
with the agreement, as memorialized in the email, the Court finds that AriZona
plausibly alleges that the parties reached an oral argument. See City Calibration Centers,
727 F. Supp. 3d at 358 (finding breach of contract claim plausible, in part because “the
allegations in the [complaint] that the parties performed under the 2021 Agreement for
a year . . . lends further credence to [defendant]’s intent to be bound.”).
That conclusion is buttressed by the fact that the parties discussed pricing
adjustments which, according to the Complaint, would not have made sense in the
context of an agreement running less than a year. Furthermore, the Complaint
plausibly alleges that at least one Ardagh representative discussed pricing adjustments
in conformance with the alleged agreement even after Mr. Sladewski had repudiated
and claimed that no contract existed. And the Complaint states that Ardagh provided
AriZona with 112 million cans in exchange for over $15 million, amounts which
plausibly establish that the parties were operating in conformance with the alleged
supply agreement.
While Ardagh contends that the October 18th email lacks essential terms, the
U.C.C. could supply all but one of those terms through gap-fillers, even assuming that
those terms were not expressed with sufficient clarity. As noted, the quantity term can
plausibly be established by the projected range provided in the October 18th email or,
alternatively, through an implied best-efforts clause if the alleged agreement were to be
deemed a requirements contract. Given the subsequent performance by both parties
and the specificity of the agreement expressed in the October 18th email, the Court
finds the existence of an agreement to be plausible.
III. Promissory Estoppel and Implied Covenant of Good Faith
Ardagh also argues that AriZona’s claims for promissory estoppel and breach of
the implied covenant of good faith and fair dealing should be dismissed.
As for the covenant of good faith, Ardagh’s motion assumes that the breach of
contract claim was dismissed for failure to comply with the statute of frauds. See Mot.
at 20. Because the Court denies the motion as to the breach of contract claim, Ardagh’s
argument is, at best, premature. Therefore, the motion is denied as to the breach of the
covenant of good faith claim.
However, the motion is granted as to the promissory estoppel claim. “Under
New York law, a claim for promissory estoppel requires a clear and unambiguous
promise, reasonable and foreseeable reliance by the party to whom the promise is
made, and an injury sustained in reliance on that promise.” Steinbeck v. Steinbeck
Heritage Found., 400 F. App’x 572, 577 (2d Cir. 2010) (cleaned up). The emails between
the parties do not establish any clear and unambiguous promises, and AriZona does not
argue otherwise. See Opp. at 19–20. AriZona therefore waived the argument, and the
claim is appropriately treated as abandoned. See Malik v. City of New York, 841 F. App’x
281, 284 (2d Cir. 2021) (“a court may infer from a party’s partial opposition that relevant
claims or defenses that are not defended have been abandoned.”); see also Maroney v.
Woodstream Corp., 695 F. Supp. 3d 448, 468 (S.D.N.Y. 2023) (“In the Second Circuit, a
plaintiff’s failure to respond to contentions raised in a motion to dismiss constitutes an
abandonment of those claims and necessitates their dismissal.”) (cleaned up).
The Court therefore grants the motion for judgment on the pleadings as to the
promissory estoppel claim, but not as to the breach of the implied covenant of good
faith.
Conclusion
Accordingly, the Court grants Ardagh’s motion for judgment on the pleadings as
to AriZona’s promissory estoppel claim. The motion is otherwise denied.
SO ORDERED.
Dated: July 22, 2026
Central Islip, New York
/s/ Gary R. Brown
GARY R. BROWN
United States District Judge