Page:Alabama v. North Carolina, 560 U.S. (2010) slip opinion.pdf/23

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commit a breach that would of itself give the obligee a claim for damages for total breach,” Restatement §250(a), or performs “a voluntary affirmative act which renders the obligor unable or apparently unable to perform without such a breach,” id., §250(b). Neither event occurred here. North Carolina never informed the Commission (or any party State) that it would not fulfill its Article 5(C) obligation to take appropriate steps toward obtaining a license. Rather, it refused to take further steps that were not appropriate. Nor did North Carolina take an affirmative act that rendered it unable to perform. To the contrary, it continued to fund the Authority for almost two years; it maintained the records of the Authority; and it preserved the work completed to date while waiting for alternative funding sources that would enable resumption of the project. Plaintiffs further argue that a repudiation was effected by North Carolina’s refusal to take further steps toward licensing “except on conditions which go beyond” the terms of the Compact, Restatement §250, Comment b (internal quotation marks omitted)—i.e., the provision of external-financial assistance. But, as we have discussed, external-financial assistance was contemplated by the Compact.

Plaintiffs’ final exception is to the Special Master’s recommendation to deny their motion for summary judg­ment, and to grant North Carolina’s cross-motion for summary judgment, on their claim that North Carolina violated the implied duty of good faith and fair dealing when it withdrew from the Compact in July 1999. Plain­tiffs concede that North Carolina could withdraw from the Compact, but contend it could not do so in “bad faith.” And, they assert, its withdrawal after accepting $80 million from the Commission, and with monetary sanctions pending against it, was the epitome of bad faith.