Kenneth W. Miller, II v. Eric Flegenheimer

Robinson, J.,

¶ 33. concurring. I concur in the result because the “claw-back” is an essential component of the purported deal, and the parameters of the claw-back are sufficiently complex and individualized that a general reference to the broad concept of a claw-back is insufficient to establish a binding contract. Notwithstanding the purported agreement for the sale of the shares, without a meeting of the minds as to the way the claw-back would operate, the parties did not truly have a deal. There is no evidence of any customary trade practices that would reasonably enable a court to fill in…