In LHC Nashua Partnership, LTD. v. PDNED Sagamore Nashua, LLC, 659 F.3d 450 (5th Cir. 2011) (No. 10-20331), defendant entered into a contract to sell shopping-mall property to plaintiff; a condition of the sale was defendant delivering at closing a lease signed by Lowe’s Home Improvement for commercial space on the property. Although defendant repeatedly assured plaintiff that Lowe’s would sign the lease, it never did and the sale to plaintiff never closed; instead, defendant ended up selling the property directly to Lowe’s. Plaintiff sued, alleging claims for promissory estoppel and misrepresentation. A jury returned a verdict in favor of plaintiff, awarding it more than $500,000 in out-of-pocket costs and $25.5 million in lost profits. On appeal, the Fifth Circuit affirmed the judgment on the misrepresentation claims and the award of out-of-pocket damages, but vacated the lost-profits award. Citing to the Restatement (Second) of Torts, the court found that plaintiff could not recover lost profits flowing from an agreement that never closed due to the failure of a condition precedent. The court reasoned that because plaintiff never actually purchased the property, its losses did not arise from the property itself, but rather from plaintiff’s reliance on defendant’s misrepresentations in anticipation of purchasing the property, and that the out-of-pocket award provided full compensation for those losses.