UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term 2022

(Argued: June 5, 2023 Decided: February 13, 2025)

Docket No. 22-1711-cv

GIVAUDAN SA, Plaintiff-Appellant,

PHYTO TECH CORP., DBA BLUE CALIFORNIA,

Plaintiff, v.

CONAGEN INC., Defendant-Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

Before: CHIN and MENASHI, Circuit Judges, and KOMITEE, District Judge. *

∗ Judge Eric R. Komitee of the United States District Court for the Eastern District of New York, sitting by designation. 1 Appeal from a decision and order of the United States District Court for the Southern District of New York (Koeltl, J.), following a bench trial. The district court held that Conagen, Inc. was not liable to Givaudan SA for breach of contract, promissory estoppel, or unjust enrichment, and dismissed the case. Givaudan appealed this ruling only as to their breach of contract claim.

AFFIRMED.

Judge Menashi dissents in a separate opinion.

Jonathan M. Bernstein, Goldberg Segalla LLP, New York, NY, for Plaintiff-Appellant.

Martin J. Black (Katherine A. Helm, on the brief), Dechert LLP, New York, NY, for Defendant-Appellee.

KOMITEE, District Judge:

Plaintiff-Appellant Givaudan, S.A. (“Givaudan”), based in Switzerland, is a multinational manufacturer and seller of flavors and fragrances. Defendant-Appellee Conagen Inc. (“Conagen”), based in Massachusetts, is in the “synthetic biology” business. Sometime prior to 2014, a Conagen affiliate began supplying a sweetener to Givaudan. 2 From that point, the relationship expanded. On September 15, 2016, the two companies executed a term sheet (the “Term Sheet”) that is at the center of this case. The Term Sheet described the broad parameters of certain transactions being contemplated by the companies and their affiliates. “Key Term 1” of the document described a stock purchase in which Givaudan would pay $10 million for a 5% equity stake in Conagen. Other key terms contemplated additional agreements, including one by which Givaudan would gain exclusive rights to Conagen’s intellectual property.

After both parties signed the Term Sheet, Givaudan wired $10 million as payment for the stock purchase contemplated in Key Term 1, and Conagen later delivered the corresponding shares. But negotiations regarding other key terms, including the exclusivity arrangement, ultimately broke down, and no further agreements were reached.

Givaudan then sued Conagen, asserting claims for breach of contract, promissory estoppel, and unjust enrichment, and seeking return of its $10 million. Following a bench trial, Judge Koeltl found that Conagen was not liable for any of Givaudan’s claims and dismissed the case. Givaudan appealed the dismissal of its breach of contract claim (but not its other causes of action).

3 For the reasons that follow, we affirm the judgment of the district court.

BACKGROUND I. Factual Background 1

Prior t