Updated: Dec 27, 2019
Judge Royce Lamberth has set the stage for the trial between Whole Foods and their Glover Park store landlord Wical LP. If God sent the rodents, Whole Foods wins! If Whole Foods invited them, they lose. Ok, I twisted his words a bit, but the Judge has boiled down the case to one simple issue among all the complexities presented by the lawyers: Was the rodent problem "an act of God?"
The Judge denied the motions of both sides for judgment in their favor because, he said, neither side has shown “that there is no genuine dispute as to any material fact.” If Whole Foods can prove that the rodent infestation was an "act of God" then the force majeure [unforeseeable circumstances that prevent someone from fulfilling a contract] clause in the lease can be used as justification to close the store for more than 60 days, and their claim that their landlord breached the lease holds water. If Wical proves that Whole Foods caused the infestation, then their claim that Whole Foods breached the lease by closing the store for more than 60 days can be justified. If Whole Foods proves force majeure, they will have the opportunity to recover rents and decide if they want to stay or go. If Wical disproves force majeure, Whole Foods loses millions in rent, legal fees and demolition costs, and likely will not be invited back. The judge has placed an even higher burden of proof on Whole Foods by stating that "the infestation must be of such character that it could not have been prevented or avoided by foresight or prudence.” This is a high hurdle to prove. Each side already has lined up their expert witnesses with PhD's to prove their side.
The Judge has set a hearing for tomorrow, Friday 10/25/19, to set a trial date. Considering the way the judge presented a laser-focus on the single issue which will decide the case, the trial could be quick.