PCA: Unjust Enrichment

I think I've found what the PCA trustee may rely on in asserting unjust
enrichment. I think the argument fails, but my guess is that the following is
the basis.

It is black letter law that "[a] remedy such as unjust enrichment that is
based
on quasi-contract or a contract implied in law is unavailable when a valid,
express contract governing the subject matter of the dispute exists. . . .
Similarly, the doctrine of unjust enrichment does not apply when the
contractual
duty has been performed." "The fact that a party to a contract has made a
profit is an insufficient ground on which to order restitution on a theory of
unjust enrichment. . . . The doctrine does not operate to rescue a party from
the consequences of a bad bargain, and the enrichment of one party at the
expense of the other is no unjust enrichment where it is permissible under the
terms of an express contract. . . . Unjust enrichment is not a proper remedy
merely because it might appear expedient or generally fair that some
recompense
be afforded for an unfortunate loss to the claimant or because the benefits to
the person sought to be charged amount to a windfall." Burlington Northern
Railroad Co. v. Southwestern Electric Power Co., 925 S.W.2d 92 (Tex. App --
Texarkana 1996), aff'd, 966 S.W.2d 467 (1998).

That is all great for us. There are, however, cases that echo what appears to
be an exception to the rule that unjust enrichment is unavailable when a
contract exists: "the principle of unjust enrichment suggests that
restitution
is an appropriate remedy in circumstances where the agreement contemplated is
unenforceable, impossible, not fully performed, thwarted by mutual mistake, or
void for other legal reasons." PCA will argue that First Energy's failure
made PCA's continued performance of all of its obligations impossible, and the
profits made by the defendants when they resold their power to parties other
than PCA constitutes unjust enrichment.

As to the other defendants who don't have a payment default but terminated or
suspended because of lack of adequate assurance, that argument at least might
(I underscore might) pass a red-face test. However, Enron terminated because
of
non-payment -- which was not rendered impossible because of First Energy's
failure. Further, construing this exception as PCA might suggest would
swallow the general rule that unjust enrichment is unavailable when an
express
contract governing the subject matter of the dispute exists.

I have not yet found any cases that use this exception in a fact pattern
similar
or analogous to ours. Most of the cases that use this exception are
completely
distinguishable (negotiations over contract not completed, but one party
received benefit from anticipated contract, mutual mistake existed in
connection
with contract, money was provided for special services that became impossible
to
carry out).

As I said in my voice mail, look at your calendar and let me know some
proposed
dates for an initial conference call with the Trustee. Thanks and let me know
if you have any questions.

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