Virginia high court urged to adopt “reasonable assurances” doctrine in anticipatory-breach law

T. Wayne Biggs, counsel for Under Wild Skies Inc., asked the Virginia Supreme Court during oral argument to recognize the doctrine of “reasonable assurances” as part of Virginia common law governing anticipatory breach, saying that the court should permit juries to consider a party’s request for assurances as evidence in such cases. Jim Hundley, counsel for the National Rifle Association of America, told the court the trial record and existing law do not support the instruction Under Wild Skies sought and that the court should defer to the General Assembly.

The case centers on counts 3 and 4 of Under Wild Skies’s complaint — anticipatory-breach claims tied to an advertising agreement and a sponsorship agreement for a hunting show that, counsel said, aired for 26 years until litigation began in 2019. Biggs told the court, “what we're asking this court to do is recognize that the doctrine of reasonable assurances exists as part of the common law of Virginia, as more specifically, as part of the Common Law of Virginia in the context and jurisprudence of anticipatory breach.” Hundley responded that the NRA “holds the most favorable position known in the law,” noting the jury returned a verdict for the NRA and the trial court’s judgment is entitled to deference on review.

Why it matters: recognizing reasonable or adequate assurances would let an obligee demand assurances of future performance in ambiguous circumstances and could change when a party may treat a contract as repudiated. During argument, justices pressed both sides on separation-of-powers concerns and on whether the Restatement (Second) of Contracts § 251 (and related UCC provisions) represent new law that the court should adopt or a legislative matter. A justice asked, “Shouldn't the legislature make that decision?” and counsel debated whether prior Virginia decisions and statutory enactments already limit or create the doctrine in narrow contexts.

Arguments for recognition: Biggs urged the court that the common law evolves and that other jurisdictions and the Restatement have adopted reasonable-assurances rules. He argued the August 2 letter sent by the NRA — which, counsel said, “put them on notice” that Under Wild Skies believed an anticipatory breach was likely — and the NRA’s silence could have supported a jury instruction on adequate assurances. Biggs told the court a jury question exists about whether communications are adequate to put the other side on notice and whether circumstances warranted seeking assurances.

Arguments against recognition and factual defense: Hundley said Virginia has not recognized the doctrine broadly outside limited, legislatively grounded contexts (sale of goods under the UCC and some commercial-lease settings) and that the Restatement’s comment that “ordinarily, an obligee has no right to demand reassurance” shows the doctrine is an innovation. He told the court the trial record did not supply the necessary elements even if the doctrine applied: he said there was no evidence the NRA was insolvent or had a pattern of nonpayment, and that the NRA’s request for metrics was driven by a publicized investigation by the New York attorney general rather than an intent to repudiate. Hundley argued the trial court properly declined the proffered instruction and that the jury’s verdict for the NRA was supported by ample evidence.

Record and procedural posture: Under Wild Skies asked the court for a new trial based on the denial of a jury instruction (identified in argument as instruction 21) about adequate assurances; the Court of Appeals affirmed the trial court’s refusal to give that instruction. Hundley emphasized the standard on review — that a trial-court judgment is presumed correct and that denial of the instruction should be reviewed for abuse of discretion — and argued any purported error would be harmless because the jury was instructed on anticipatory repudiation and related doctrines and still found for the NRA.

Factual highlights quoted from the record: counsel noted an August 2 letter (referenced repeatedly in argument) and evidence that Under Wild Skies’ owner admitted late payments occurred historically but that production stopped after the company returned from filming abroad. Hundley highlighted testimony by Wayne LaPierre and other evidence the jury heard showing the NRA’s continuing interest in the program and the absence of insolvency evidence.

What the court must decide next: The justices must resolve two linked questions: whether Virginia common law should recognize the Restatement’s reasonable-assurances doctrine outside the UCC and other legislative contexts, and whether the trial record here contained sufficient evidence to require the jury instruction Under Wild Skies proposed. The transcript ends with Under Wild Skies’ counsel renewing the request for recognition of the doctrine and the NRA asking the court to affirm the Court of Appeals.

Ending: The Virginia Supreme Court will issue an opinion deciding whether to expand the anticipatory-breach doctrine to include reasonable assurances and whether the denial of the requested jury instruction warrants a new trial. No date for a decision was given during oral argument.