On February 15, 2001, Rohm & Haas Company (R&H) and Crompton Corporation entered into a contract pursuant to which Crompton agreed to satisfy all of its needs for 2-Mercaptoethanol (product) with product purchased from R&H, and R&H agreed to supply Crompton with all of the product it required during a three-year term. The contract obligated R&H to maintain a minimum of 150,000 pounds of product at its facility in Moss Point, Mississippi, and to have available to Crompton, on-site at a North American location, not less than 150,000 pounds of product from an approved source. The contract contained a force majeure provision that stated: “Deliveries may be reduced or suspended by either party upon the occurrence of any event beyond the reasonable control of such party.”
One month prior to execution of the contract, a U.S. district court entered a consent decree that resolved a suit brought by the federal and Mississippi governments on account of certain operational practices at the Moss Point facility. R&H alleged that it was forced to close the facility in December 2001, as a result of the dramatic costs associated with bringing it into compliance with the consent decree. R&H sought a declaratory judgment to determine whether it was relieved of its contractual duties to Crompton, and Crompton filed a counterclaim for damages. What arguments will R&H make in support of its claim that its performance should be excused? Who will prevail? [Rohm & Haas Co. v. Crompton Corp., 2002 WL 1023435 (Pa. Com. Pl. 2002).]