But capitalizing the Broadway production, especially after most of the producing establishment had passed on the project, turned into a series of costly mishaps. After several false starts that included a mystery investor who turned out to have been the fabrication of a flim-flam artist, Sprecher and Forlenza appeared to have been close to raising the necessary funds when Thibodeau sent the emails to an angel who thought he was investing $2.25 million anonymously. Thibodeau, a highly regarded veteran of the Broadway p.r. trade, claimed that he could not stand by as a potential investor was kept in the dark about the show’s financial history, especially when he had been instructed by Sprecher “not to go there” when reporters asked about the show. Thibodeau argued that those orders constituted a breach of the producers’ contract with him. Both courts disagreed.
“It is difficult to imagine a plainer case of a party to a contract utterly defeating the purpose for which the other party had entered into that contract, or a more blatant example of an agent’s disloyalty to his principal,” according to the Appellate Court ruling filed today. “[A] first material breach of the parties’ agreement by RBLP [i.e., Sprecher and Forlenza], if there was one, would not have justified Thibodeau’s remaining in RBLP’s employ while using confidential information entrusted to him to sabotage the production. A party to a bilateral contract, when faced with a breach by the other party, must make an election between declaring a breach and terminating the contract or, alternatively, ignoring the breach and continuing to perform under the contract. Such a party has no right to represent himself as continuing to perform under the contract — and continuing to receive the other party’s performance in exchange — while at the same time surreptitiously breaching his own duty by flouting his own implied duty of good faith and fair dealing…”
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