Full opinion text
ORDER DAVIS, District Judge. This matter is before the Court upon plaintiff and defendants’ objections to and appeal of United States Magistrate Judge Erickson’s Order and Report and Recommendation dated February 28, 1996. Pursuant to statute, the Court has conducted a de novo review of the record. 28 U.S.C. § 636(b)(1); Local Rule 72.1(c). Based upon that review and all the arguments of the parties, the Court ADOPTS the Report and Recommendation in its entirety. The Court must also modify or set aside any portion of the Magistrate Judge’s Order found to be clearly erroneous or contrary to law. See 28 U.S.C. § 636(b)(1)(A); Fed. R.Civ.P. 72(a); Local Rule 72.1(b)(2). Based on a review of the record and the submissions of parties, the Court concludes that the Magistrate Judge’s Order is neither clearly erroneous nor contrary to law. Therefore, it is HEREBY ORDERED that: 1. Plaintiffs Motion for Summary Judgment as to the Statute of Frauds defense is granted; 2. Plaintiffs Motion for Summary Judgment as to the commercial impracticability defense is granted; 3. Plaintiffs Motion for Summary Judgment as to defendants’ affirmative termination of contract defense is denied; 4. Defendants’ Motion for Summary Judgment as to plaintiffs intentional misrepresentation claim is granted' 5. Defendants’ Motion for Summary Judgment as to plaintiffs negligent misrepresentation claim is granted; 6. Defendants’ Motion for Summary Judgment as to plaintiffs claim of unjust enrichment is granted; 7. Defendants’ Motion for Summary Judgment as to plaintiffs claim for equitable es-toppel is granted; 8. That in all other respects, defendants’ Motion for Summary Judgment is denied; 9. Plaintiffs Amended Motion in limine to exclude the testimony of Timothy Covington is denied; 10. Plaintiffs Amended Motion in limine to exclude the testimony of Kathy Hillman, John Romano and George Fields is granted; 11. Defendants’ Motion for Leave to Amend their Answer is denied; 12. Defendants’ Motion to Compel Discovery is denied; and 13. Defendants’ experts Timothy Covington and Rholan Larson shall amend their expert reports as instructed in the text of this Order no later than Wednesday, July 10 at 9:00 am. ORDER AND REPORT AND RECOMMENDATION ERICKSON, United States Magistrate Judge. At Duluth, in the District of Minnesota, this 28th day of February, 1996. I.Introduction This matter came before the undersigned United States Magistrate Judge pursuant to a general assignment, made in accordance with the provisions of Title 28 U.S.C. § 636(b)(1)(A) and (B), upon the following Motions: 1. The parties’ cross-Motions for Partial Summary Judgment on the Defendants’ Statute of Frauds defense. 2. The parties’ cross-Motions for Partial Summary Judgment on the Defendants’ termination of contract defense. 3. The Plaintiffs Motion for Partial Summary Judgment on the Defendants’ commercial impracticability defense. 4. The Defendants’ Motion for Partial Summary Judgment on the Plaintiffs breach of contract claim, that is premised upon the parties’ asserted intention to only be bound by a written contract. 5. The Defendants’ Motion for Partial Summary Judgment on the Plaintiffs breach of contract claim, on the ground that no agreement was reached on the alleged contract’s exclusivity. 6. The Defendants’ Motion for Partial Summary Judgment on the Plaintiffs breach of contract claim, on the ground that the alleged contract contained an open price term. 7. The Defendants’ Motion for Partial Summary Judgment on the Plaintiffs damage claim for lost profits. 8. The Defendants’ Motion for Partial Summary Judgment on the Plaintiffs implied contract claim. 9. The Defendants’ Motion for Partial Summary Judgment on the Plaintiffs equitable estoppel claim. 10. The Defendants’ Motion for Partial Summary Judgment which would limit the Plaintiffs entitlement to reliance damages to its promissory estoppel claim. 11. The Defendants’ Motion for Partial Summary Judgment on the Plaintiffs claim of intentional misrepresentation. 12. The Defendants’ Motion for Partial Summary Judgment on the Plaintiffs damage to business reputation claim. 13. The Plaintiffs Amended Motion in limine to limit or exclude the Defendants’ expert testimony. 14. The Defendants’ Motion for Leave to Amend their Answer. 15. The Defendants’ Motion to Compel Discovery. A Hearing on these Motions was conducted on November 21, 1995, at which time the Plaintiff appeared by Edward F. Fox and Jonathan C. Miesen, Esqs., and the Defendants appeared by George G. Eck, Esq. For reasons which follow, the Defendants’ Motions to Amend their Answer, and to Compel Discovery, are denied. We recommend that the Plaintiffs Amended Motion in limine be granted in part, and denied in part; that the Plaintiffs Motion for Summary Judgment on the Statute of Frauds and the commercial impracticability defenses be granted; that the Defendants’ Motion for Summary Judgment on the intentional misrepresentation and equitable estoppel claims be granted; and that the remaining Motions for Summary Judgment be denied. II. Factual and Procedural History The Plaintiff, Upsher-Smith Laboratories, Inc. (“USL”), is a distributor of generic pharmaceutical products, while the Defendants Mylan Laboratories, Inc., and Mylan Pharmaceuticals, Inc. (“Mylan”), manufacture generic pharmaceuticals. In this action, USL alleges that Mylan contractually agreed to supply USL with all of its requirements for a drug known as Cimetidine. USL also contends that Mylan wrongfully breached their contract by refusing to supply Cimetidine to USL. Cimetidine is part of a family of drugs known as “H2-receptor antagonists.” These drugs reduce stomach acid and, as a consequence, they are widely used in the treatment of ulcers and other gastrointestinal disorders. The parties agree that the domestic market for H2-receptor antagonists is extremely large, with annual sales in the billions of dollars. Cimetidine was first manufactured and marketed by SmithKline Beacham (“SKB”), which merchandises Cim-etidine under the brand name Tagamet®. Other H2-reeeptor antagonists include Zan-tac®, Pepcid® and Asid®. As the innovator of Cimetidine, SKB held an exclusive patent on the drug, which enabled SKB to charge an inflated price for Tagamet. SKB’s Cimetidine patent expired on May 17,1994, and, with that expiration, the generic pharmaceutical companies had an opportunity to enter the Cimetidine market with their own generic labels. The parties agree that, when generic drug companies enter a market that has recently been opened by a patent’s expiration, the initial price, of their generically competing product, is quoted at a certain percentage below the price of the formerly patented brand. Thereafter, as the competition between the generic companies escalates, the generic price will “erode” to a level that is determined by the competitive market forces. The erosion in prices can occur rapidly, depending upon the number of generic companies that have entered that market upon the expiration of the pertinent patent. Therefore, based upon the dynamics of the market, in order to ensure the maximum potential for profit from the sale of a new generic drug, the new product must enter the market at, or shortly after, the date of patent expiration. Complicating the process is the fact that a manufacturer of generic pharmaceuticals must receive approval, from the Food and Drug Administration (“FDA”), before it may produce a new generic drug. The approval is provided by the FDA’s award of an Abbreviated New Drug Approval (“ANDA”). To obtain an ANDA, the FDA must first approve the generic manufacturer’s raw material supplier. As a consequence, once an ANDA is approved, the generic manufacturer becomes dependent upon its approved raw material supplier, unless the manufacturer has gained approval for a second supplier — a process which can consume up to two years in time. In October of 1993, Mylan became the first generic manufacturer to receive an ANDA for Cimetidine. Mylan intended to market its generic Cimetidine to its customer base of warehousing chains, wholesalers and distributors, beginning on May 18, 1994 — the date on which SKB’s patent would expire. Mylan selected Lek d.d. Ljubljana (“Lek”), a Slovenian materialsman, as the supplier of the active ingredient in Cimetidine, and Lek received the FDA’s approval. Mylan had selected and received FDA approval for Lek d.d. Ljubljana (“Lek”), a manufacturer headquartered in Slovenia. It was Mylan’s expectation that the generic Cimetidine market would flourish and, accordingly, in November of 1993, Mylan submitted a large initial purchase order with Lek, for Cimetidine active ingredient. As a result of restrictions, that were imposed by the Federal Patent Regulations, Mylan was unable to stockpile either the raw materials, or finished Cimetidine product, prior to the expiration of SKB’s patent. However, prior to the expiration of the SKB patent, the Regulations allowed Mylan to manufacture three lots of each dosage strength of Cimeti-dine, for FDA validation purposes. On May 18, 1994, these “validation lots” would be available for commercial sale. In the Winter of 1994, Lek shipped the raw materials that were required for the validation lots. In November of 1993, while placing its initial raw materials purchase order, Mylan sensed that Lek might be either unwilling, or unable, to fill an initial order that was any larger than that Mylan had submitted. By February of 1994, however, Mylan decided to “be bullish” on Cimetidine. Accordingly, Mylan commenced negotiations with Lek so as to increase the volume of the initial purchase order, and these negotiations proved successful in securing some additional deliveries of raw material, which would arrive about 30 days after SKB’s patent expiration date. In addition, in March of 1994, Mylan commenced its search for a second supplier of Cimetidine raw materials. At the same time — in March of 1994— Mylan began accepting pre-book orders for its generic Cimetidine product. At that time, Mylan was the only generic manufacturer to hold an ANDA for Cimetidine. Consequently, Mylan’s pre-book orders for March and April ran extremely high but, according to Mylan, the reliability of these pre-book orders was discounted since, predictably, these orders were an imperfect indicator of likely future sales. Mylan asserts that it reasonably anticipated that several other generic manufacturers would receive Cimetidine AN-DAs before the expiration of the SKB patent. Upon the entry of those competitors into the Cimetidine market, Mylan assumed that the rate of its pre-book orders would decrease, and many of the existing pre-book orders would cancel as other sources of Cimetidine would appear. The anticipated expansion in the competitive sources of Cimetidine, however, did not develop and, by the end of April in 1994, only two other generic manufacturers — Endo Laboratories, Inc. (“Endo”), and Novapharm Laboratories, Inc. (“Novapharm”) — had received ANDAs for Cimetidine. To further complicate matters, both Endo and Novap-harm received their raw materials from Lek, who also supplied Mylan, while another competitor — Lederle Laboratories, Inc. (“Led-erle”), was supplied by SKB, the original patent-holder of Cimetidine. In February of 1994, USL arranged to meet with Rod Jackson (“Jackson”), who was then Mylan’s Vice President for Business Development, in order to inquire whether Mylan would be interested in supplying Cim-etidine to USL. The two companies had not previously conducted business with one another. USL proposed a “private label” arrangement, whereby Mylan would supply Cimetidine to USL, and USL would then market the product through its own trademarked private label brand. The private label product would be merchandised, by USL, to certain “niche markets” in which USL already had a strong relationship, such as to independent pharmacies and to managed care groups. USL’s marketing strategy was to create a demand for the product by directly competing for a market share with Tagamet, and with the other ^-receptor antagonists, such as Zantac. USL maintained that it did not intend to target other generic Cimetidine products, and that it hoped to “launch” its private label product either at, or shortly after, the expiration of the SKB patent. Mylan contends that, after learning of this proposal, Jackson explained to the USL representatives that Mylan would not generally sell to generic wholesalers or distributors under a private label. Nevertheless, Mylan acknowledges that USL’s proposal interested Jackson, as the private label that USL proposed would not compete with other generic products but, rather, would be rivaling branded products like Tagamet, and certain of the other brand name H^-receptor antagonists. Mylan, however, had already signed a formal co-marketing Cimetidine agreement with Eli Lilly & Co. (“Lilly”). As a consequence, Jackson informed the USL representatives that the approval of Lilly had to be secured before Mylan could conduct further negotiations concerning USL’s private label proposal. Subsequently, USL met with Lilly and, on March 28, 1994, Jackson told USL that Lilly did not have any objections to USL’s proposal. After receiving this clearance from Lilly, in April of 1994, USL undertook a series of efforts to launch its private label brand of Cimetidine. USL obtained the Cimecon trademark in order to distinguish its Cimeti-dine product, and it hired a market research firm to develop a market survey that was to reveal the sales potential of its product line. USL also hired new sales representatives to support the Cimecon project, it designed the required labels and package inserts, and it retained advertising agencies to develop a media campaign to announce the imminent release of Cimecon following the expiration of SKB’s patent. According to USL, these marketing activities were taken with the full knowledge and encouragement of Mylan. On April 8,1994, USL transmitted to Jackson a listing of the information that was required of Mylan in order to facilitate the potential launch of Cimecon, including details on labeling, on package inserts, on order forecasting, on logistics and on regulatory affairs. On April 19, 1994, USL telefaxed a revised listing of requested information to Jackson and, later, called Jackson with a request for price quotes on a Cimecon contract. Jackson responded that Mylan’s Sales & Marketing Department was responsible for all price negotiations, and he directed USL to work with that Department in discussing the details of a supply arrangement. Jackson also informed USL that Dale Martin (“Martin”), who was Mylan’s Director of Advertising and Promotions, would be the individual responsible for obtaining the information requested in USL’s revised list. As a precautionary measure, however, Jackson and USL executed a “Mutual Secrecy Agreement,” prior to submitting USL’s information listing to Martin. Mylan contends that the Mutual Secrecy Agreement was the only contract that was ever consummated between the parties as a result of their negotiations. On April 26, 1994, Martin participated in a telephone conference call with Paul Kralovec (“Kralovec”), USL’s Vice President of Finance, and with three other USL executives. The substance of this call is in serious dispute. According to Mylan’s version of the events, the parties merely addressed some of the details of a potential supply arrangement. In the course of their conference, the parties agreed that USL would draft a written contract that would be sent to Mylan as soon as possible. In response to the suggested prices, that USL had earlier provided Jackson, Martin countered with a set of higher prices which were referred to as “first-stage prices.” Martin is said to have advised USL that its purchases would be required in “lot quantities,” which meant production lots. USL agreed to purchase the 300mg and 400mg tablet strengths in lot quantities, but asked to be able to purchase the 200mg and 800mg tablet strengths in lesser quantities because they would be a smaller volume product. This issue was not resolved. Martin also informed USL that, in order to be entered into Mylan’s production calendar, it would be necessary for USL to submit formal purchase orders, together with a 12-month forecast of its orders, which the parties referred to as a “rolling forecast.” USL did not object to these conditions, but never forwarded either a purchase order or a rolling forecast to Mylan. The parties never discussed whether USL would be obligated to purchase Cimetidine exclusively from Mylan, nor did they specify the duration of the supply arrangement, or the manner in which their expected contract could be terminated. Martin did inform USL that Mylan could not ship USL’s product out of the validation lots, which contained the only product that Mylan would have available for sale immediately after the expiration of SKB’s patent. Martin also predicted that it would take Mylan 60 days in which to process USL’s labels. As a consequence, the parties expected that Mylan would deliver its first shipments of Cimecon to USL in late June of 1994. USL requested that Mylan agree to provide it with “price protection.” According to Mylan, in the pharmaceutical industry, the term “price protection” customarily refers to price adjustments on those products that have been purchased and shipped to the customer’s inventory. If the manufacturer should lower its list price for that product, before the purchaser resells the entire shipment, then the manufacturer will provide that purchaser a credit that would be equal to the difference between the invoice price and the lower price on each product remaining in the purchaser’s inventory. Mylan has a formal price protection agreement, which it enters with some customers, but not with others, and, while Mylan discussed price protection with USL, the parties did not agree to any such terms. On the other hand, USL’s version of the parties’ conference call differs markedly from that recounted by Mylan. According to USL, during the conference, the parties reached an oral contractual agreement that bound Mylan to supply USL with its Cimeti-dine requirements. Furthermore, Martin is said to have informed the USL executives that a formal written contract would not be necessary, as USL could trust Mylan to hon- or its word. Although USL responded that it was comfortable in dealing with Mylan on such a basis, it expressed an intent to send Mylan a short letter that would confirm the pricing and the other basic terms of their agreement. According to USL, the parties agreed that Mylan would be the exclusive supplier of USL’s Cimetidine requirements, and that Mylan consented to providing USL with price protection so as to protect USL’s profitability. USL submitted an opening order for Cimetidine during this conference call, in addition to informing Mylan that it would be placing orders, in lot quantities, every three to four months. No formal written forecasts were submitted, because Mylan advised USL that USL would not need to submit any written forecasts during the first six months of the supply agreement. USL also maintains that, throughout these negotiations, Martin and Jackson extended assurances that USL could receive its initial Cimetidine delivery by June 1,1994. On April 29, 1994, Kralovee telefaxed a letter to Martin which USL claims is confirmatory of the parties’ agreement. In that letter, Kralovee relates that he “thought it might be helpful to summarize what has been agreed upon.” The letter then lists the prices for the various strength dosages of Cimetidine, and specifies the place of delivery as “FOB Upsher-Smith Laboratories, Inc., Minneapolis.” The letter also recounts that “no specific price protection arrangement was defined,” but that Mylan had agreed to “address changes in [USL’s] acquisition cost in order to help protect our profitability in light of any changes in market conditions.” The letter mentions minimum order sizes, which are listed as lot size quantities for the 300mg and 400mg tablet strengths, and as a “reasonable quantity” for the 200mg and 800mg strengths. Finally, with respect to the frequency of orders, the letter states that purchases “will be submitted via a rolling 12 month forecast,” to be updated “by the 15th of each month,” and firm purchase orders would be sent 90 days in advance of shipment. In the course of that letter, Kralovee expresses USL’s understanding, that the fre-queney of orders would retain some flexibility during the first six months of the arrangement, but that the flexibility would be limited thereafter. Mylan admits to receiving Kralovec’s letter, and it further acknowledges that it never objected to the letter in writing. After sending that letter, USL claims to have engaged in further activities in preparation for its expected Cimecon launch. These activities included the publication, in national trade journals, of advertisements that announced the Cimecon launch, and the direct mailing of advertisements to over 67,-000 independent pharmacies and other USL customers. According to USL, it was then completing a full-color print advertising campaign, in support of its Cimecon launch. Throughout all of this advertising, USL maintained that Cimecon would be available in the marketplace promptly upon the expiration of the SKB patent. On or about April 6, 1994, Mylan became aware that its pre-book orders for Cimetidine were double its supply of raw material. At this time, Mylan’s executives determined that Mylan would have to allocate Cimetidine to its customers. Indeed, Mylan asserts that, later in that same month, it began to hear, for the first time, industry rumors that My-lan, Endo and Novapharm would be the only three generic manufacturers to have received Cimetidine ANDAs by the time of the expiration of SKB’s patent. These rumors led Mylan to conclude that the anticipated cancellations in its pre-book orders might not transpire and that, as a consequence, Mylan would not have sufficient raw materials to produce the amounts of Cimetidine that would be necessary to fill its orders. As a result of these occurrences, Mylan states that, in late April of 1994, it began notifying its customers that, due to the shortage of raw materials, Mylan would have to allocate its supply of finished Cimetidine amongst its customers, and that the orders of some of Mylan’s customers would have to be back-ordered altogether. On April 29, 1994, Robert Lombardi (“Lombardi”), who was Mylan’s Vice President for Sales and Marketing, contacted USL to advise that, because of a shortage in raw materials, Mylan might be unable to supply USL with Cimetidine by June 1,1994. On May 2, 1994, Jackson telephoned Kralo-vec and informed him that, in light of the raw materials shortage, Mylan could not supply USL with any Cimetidine in support of the Cimecon project. After Jackson’s telephone call, Kenneth Evenstad (“Evenstad”), USL’s Chief Executive Officer, and Milan Puskar (“Puskar”), the Chief Executive Officer of Mylan, engaged in a series of telephone calls in which Mylan’s decision, to deny USL any supply of Cimetidine, was discussed. USL has averred that, in view of USL’s protests and after consultation with other Mylan executives, Puskar stated that Mylan would supply USL with Cimetidine in order to support the Cimecon project. Nevertheless, USL offers somewhat conflicting evidence as to when Mylan would begin to supply it with Cimetidine. Kralo-vec, who participated in the conference calls, avers that Puskar agreed that Mylan would supply USL with a “fair share” allocation of Cimetidine, at or about the time of patent expiration. Evenstad, however, has avowed that Puskar informed USL that Mylan could not supply Cimetidine to USL until September of 1994. Evenstad responded that any such delay was unacceptable, and that USL required some Cimetidine by the end of May. According to Evenstad, “it was sort of left up in the air in terms of when we were actually going to get product,” but he maintains that Puskar assured him that he understood USL’s problems, that he was “going to take care of it,” and that, in light of this statement, Evenstad assumed that USL was “going to be getting [the] product within a couple of weeks.” On May 24, 1994, several USL executives travelled to Mylan’s offices in Morgantown, West Virginia, in order to meet with several high-ranking Mylan executives, including C.B. Todd (“Todd”), who was the President of Mylan Pharmaceuticals. In Mylan’s view, this meeting was nothing more than a USL sales presentation, but USL claims that its executives visited Mylan’s offices in order to inspect Mylan’s facilities and to finalize the remaining details concerning the launch of Cimecon. After this meeting, Todd met privately with the USL executives and informed them that Mylan would not supply USL with any Cimetidine to support the Cimecon launch. Todd advised that Mylan’s supply problems with Lek precluded any delivery of Cimetidine at that time, however, Todd believed that the supply difficulties would resolve in three to six months, and he suggested that USL reopen negotiations with Mylan at that time. USL maintains that its executives protested this announcement, and argued that the supply agreement between USL and Mylan had been confirmed by Puskar and Jackson. According to USL, Todd responded to these protests by denying any knowledge of USL’s discussions with Puskar and Jackson, and voiced additional objections to any immediate supply of Cimetidine to USL’s Cimecon project. Specifically, Todd maintained that the stated prices were too low, and that Mylan was not interested in supplying a private label product. In the period between this meeting and mid-July of 1994, Mylan contends that almost no communication occurred between USL and Mylan. USL disputes this contention, however, and asserts that it continued to converse with Mylan in the hope of convincing Mylan to supply it with Cimetidine. Notwithstanding these attempts, USL found My-lan’s representatives to be both evasive and nonresponsive. On July 21, 1994, Evenstad wrote a letter to Puskar which requested an immediate meeting between the parties in order to arrange the delivery of Cimetidine to USL at the earlier discussed prices. In August of 1994, Mylan finalized a formal supply agreement with Lek, by which Lek had agreed to ship specific quantities of raw materials, over a period of years, pursuant to an express delivery schedule. Mylan states that, at this juncture, it reconsidered USL’s proposal and, in a letter dated August 12, 1994, Mylan offered to sell private-label Cimetidine to USL, with delivery commencing in October of 1994, and at prices which were 40% higher than those discussed during the telephone conference of April 26, 1994. Mylan contends that the increased prices directly corresponded to a 40 percent increase in Mylan’s cost for raw materials. In turn, USL maintains that these increased prices would not only have sustained Mylan’s profit margins, but would have increased them. As USL views the matter, even allowing for the increased cost of raw materials, Mylan’s profit margins would have exceeded 50%, if Mylan would have sold Cimetidine to USL at the earlier prices. USL rejected Mylan’s offer and, on September 8, 1994, commenced this action in Minnesota District Court, seeking to recover on causes of action for breach of contract, breach of an implied contract, promissory and equitable estoppel, intentional misrepresentation, negligent misrepresentation and unjust enrichment. On October 5,1994, My-lan removed the action to this Court. The parties now seek to resolve a host of the claims and counter-charges by summary disposition. III. Discussion We first address those Motions which fall within our non-dispositive jurisdiction, followed by a consideration of the Motions over which our jurisdiction is dispositive. A. The Parties’ Motions For Partial Summary Judgment. 1. Standard of Review. Summary Judgment is neither an acceptable means of resolving triable issues, nor is it a disfavored procedural shortcut when there are no issues which require the unique proficiencies of a Jury to weigh the evidence and to render credibility determinations. Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2554-55, 91 L.Ed.2d 265 (1986). Summary Judgment is warranted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Rule 56, Federal Rules of Civil Procedure. For these purposes, a disputed fact is “material,” if it must inevitably be resolved and the resolution will determine the outcome of the case, while a dispute is “genuine,” if the evidence is such that a reasonable Jury could return a Verdict for the non-moving party. See, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986) (“An issue of material fact is genuine if it has a real basis in the record.”); Allison v. Flexway Trucking, Inc., 28 F.3d 64, 66-67 (8th Cir.1994). As Rule 56(e) makes clear, once the moving party presents a properly supported Motion, the burden shifts to the non-moving party to demonstrate the existence of a genuine dispute. While the Court views the evidence in favor of the nonmoving party and gives that party the benefit of every justifiable inference that may be drawn from that evidence, “an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but * * * must set forth specific facts showing that there is a genuine issue for trial.” Rule 56(e), Federal Rules of Civil Procedure, [emphasis supplied]; Krenik v. County ofLeSueur, 47 F.3d 953, 957 (8th Cir.1995); State of Nebraska ex rel. Nelson v. Central Interstate Low-Level Radioactive Waste Commission, 26 F.3d 77, 80 (8th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 483, 130 L.Ed.2d 395 (1994); see also, Cram v. Lamson & Sessions Co., 49 F.3d 466, 471 (8th Cir.1995); Barnard v. Jackson County, Missouri, 43 F.3d 1218, 1223 (8th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 53, 133 L.Ed.2d 17 (1995). The non-moving party may not rest upon the mere denials or allegations of its pleadings, nor may it simply argue that operative facts will be subsequently developed which will support its claim. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., supra at 586, 106 S.Ct. at 1355-56 (“[O]pponent must do more than simply show there is some metaphysical doubt as to the material facts.”); see, generally, S. Childress, A New Era for Summary Judgments: Recent Shifts at the Supreme Court, 116 F.R.D. 183, 188 (1987). Moreover, a party is entitled to Summary Judgment where its opponent has failed “to establish the existence of an element essential to [its] case, and on which [it] will bear the burden of proof at trial.” Celotex Corp. v. Catrett, supra at 322,106 S.Ct. at 2552; St. Paul Fire & Marine Ins. Co. v. Federal Deposit Ins. Corp., 968 F.2d 695, 699 (8th Cir.1992). In such a case, no genuine issue of material fact will be found to exist because “a complete failure of proof concerning an essential element of [that party’s] case necessarily renders all other facts immaterial.” Id. at 323, 106 S.Ct. at 2552; Fischer v. NWA, Inc., 883 F.2d 594, 599 (8th Cir.1989), cert. denied, 495 U.S. 947, 110 S.Ct. 2205, 109 L.Ed.2d 531 (1990). “In determining whether a material factual dispute exists, the court views the evidence through the prism of the controlling legal standard.” Nebraska v. Wyoming, 507 U.S. 584, 590, 113 S.Ct. 1689, 1694, 123 L.Ed.2d 317 (1993). If reasonable minds could differ as to the import of the evidence, however, Summary Judgment should not be granted and, in exercising its function, the Court is not to weigh the evidence. Anderson v. Liberty Lobby, Inc., supra at 250-51, 106 S.Ct. at 2511-12; AgriStor Leasing v. Farrow, 826 F.2d 732, 734 (8th Cir.1987). 2. Legal Analysis. We first address the parties’ eross-Motions for Summary Judgment, then proceed to USL’s Motion for Partial Summary Judgment, and conclude with an assessment of Mylan’s Partial Summary Judgment Motions. a. The Parties’ Cross-Motions For Partial Summary Judgment. 1) Mylan’s Statute of Frauds Defense. Mylan has asserted a Statute of Frauds defense, and has moved for the entry of Summary Judgment on USL’s breach of contract claim. In response, USL has countered by moving for Summary Judgment on My-lan’s Statute of Frauds defense. The Statute of Frauds, as contained in the Uniform Commercial Code (“U.C.C.”), is conceded by both parties as controlling our ruling on the pending cross-Motions, and is clear in requiring that a contract for the sale of goods, which entails a price of $500 or more, is not enforceable unless the agreement is supported by a writing which: 1. evidences a contract for the sale of goods; 2. is signed by the party against whom enforcement of the alleged contract is sought; and, B. specifies a quantity. Minnesota Statutes Section 336.2-201(1). In evidencing an enforceable contract, it is not necessary that the writing state all of the material terms of the agreement, for “[a]ll that is required is that the writing afford a basis for believing that the offered oral evidence rests on a real transaction.” Minnesota Statutes Section 336.2-201, U.C.C. Comment 1. With respect to the specification of the quantity involved, the number of items “need not be accurately stated but recovery is limited to the amount stated.” Id.; W.H. Barber Co. v. McNamara-Vivant Contracting Co., 293 N.W.2d 351, 356 (Minn.1979); Starry Const. Co., Inc. v. Murphy Oil USA, Inc., 785 F.Supp. 1356, 1361 (D.Minn.1992), aff'd, 986 F.2d 503 (8th Cir.1993). Moreover, in sales transactions which involve merchants, an otherwise satisfactory writing need not be signed by the party to be charged if, “within a reasonable time,” a “writing in confirmation of the contract * * * is received,” and the recipient has failed to object, in writing, to the contents of the confirmation within ten days of its receipt. Minnesota Statutes Section 336.2-201(2). This method of satisfying the Statute of Frauds is sometimes referred to as the “merchant’s exception.” See, M.K. Metals, Inc., v. Container Recovery Corp., 645 F.2d 583, 591 (8th Cir.1981); Stan"y Const. Co., Inc. v. Murphy Oil USA, Inc., supra. As a consequence, between merchants, the failure to answer an adequate confirmatory letter deprives the defaulting party of any resort to the Statute of Frauds defense. This failure to respond, however, does not establish the existence of an allegedly enforceable contract, for the party, who asserts the validity of the alleged contract, maintains the burden of persuading the trier-of-fact that a contract actually exists, as well as in establishing the actual terms and conditions of that contract. UFE Inc. v. Methode Electronics, Inc., 808 F.Supp. 1407, 1412-13 (D.Minn.1993); see also, Minnesota Statutes Section 336.2-201, U.C.C. Comment 3. In simple terms, the Statute of Frauds is an affirmative defense and, as such, the party who raises that defense bears the burden of proving its existence. Starry Const. Co., Inc. v. Murphy Oil USA, Inc., supra. Therefore, the determination of whether the Statute of Frauds has been satisfied is, generally, a question of law. UFE Inc. v. Methode Electronics, Inc., supra; Starry Const. Co., Inc. v. Murphy Oil USA, Inc., supra. Mylan insists that no writing exists, which confirms that an agreement was reached between the parties on April 26, 1994 — or on any other date — and which adequately conforms to the requirements’ of Minnesota’s Statute of Frauds. Accordingly, Mylan requests that Summary Judgment be granted on the Plaintiffs breach of contract claim. In return, USL urges that its letter of April 29, 1994, which was telefaxed from Kralovec to Martin, was a confirmatory writing which adequately satisfies the merchant’s exception to the Statute of Frauds. Therefore, our analysis turns to USL’s letter of April 29, 1994, so as to determine if that letter conforms to the prerequisites of the Statute of Frauds. Given the Record before us, we have no difficulty in concluding that USL’s letter amply evinces a contract for the sale of goods. The letter makes reference to “the collaboration” between the parties, and memorializes that its express purpose was “to summarize what has been agreed upon.” Thereafter, the letter details the material terms of the parties’ purported agreement, inclusive of the pricing terms and of the place of delivery. Indeed, in its concluding paragraph, the letter states: We at Upsher-Smith Laboratories, Inc. appreciate the opportunity to work with your company and to demonstrate the effectiveness of our unique methods of marketing products. We look forward to the start of what we hope will be a mutually beneficial and profitable relationship, and hope that we can look at other products which will fit into this joint strategy in the future. Without serious question, these passages “afford a basis for believing,” that the oral agreement, which USL seeks to enforce at Trial, “rests [up]on a real transaction.” In fact, Mylan admits that this aspect of the Statute of Frauds has been fully satisfied by USL’s letter of April 29. Moreover, we conclude that USL’s letter satisfies the signature requirement of the Statute of Frauds, as it is undisputed that both Mylan and USL are “merchants.” Although Mylan received USL’s letter on April 29, 1994, and knew of its contents as of that date, the Record is uncontroverted that My-lan never objected, in writing, to the representations contained therein. Rather, My-lan argues that the April 29 letter did not satisfy the requisites of the Statute of Frauds, because the letter fails to specify the quantity of product to be purchased. To this, USL counters by asserting that the letter adequately addresses the quantity requirement by revealing that the parties were intending a “requirements contract.” A requirements contract “is generally defined as a contract in which the seller promises to supply all the specific goods or services which the buyer may need during a certain period at an agreed price in exchange for the promise of the buyer to obtain his required goods or services exclusively from the seller.” Propane Industries, Inc. v. General Motors Corp., 429 F.Supp. 214, 218 (W.D.Mo.1977). A writing, which contemplates a requirements contract, satisfies the Statute of Frauds even though the writing does not detail any specific quantities. Zayre Corp. v. S.M. & R. Co., Inc., 882 F.2d 1145, 1154 (7th Cir.1989). Mylan maintains, however, that the confirmation letter fails to satisfy the Statute of Frauds because it fails to record any agreement, on USL’s part, to exclusively purchase its Cimetidine requirements from Mylan. We disagree. A writing, which confirms a requirements contract, comports with the Statute of Frauds when there is some language present “which indicates that the quantity to be delivered under the contract is a party’s requirements or output.” Eastern Dental Corp. v. Isaac Masel Co., Inc., 502 F.Supp. 1354, 1364 (E.D.Pa.1980). Furthermore, “the U.C.C. does not require certain particular words to enforce a requirements contract.” Essco Geometric v. Harvard Industries, 46 F.3d 718, 728 (8th Cir.1995); see also, Koch Hydrocarbon Co. v. MDU Resources, Inc., 988 F.2d 1529, 1541 (8th Cir.1993) (The U.C.C. does not require certain “buzz words” to establish a requirements contract). In our view, USL’s confirmatory letter contains sufficient detail to reflect the formation of a requirements contract between the parties. The letter opens with the phrase “[s]o much exciting news has transpired in the last week regarding the collaboration between Mylan Laboratories and Upsher-Smith Laboratories, Inc. * * [Emphasis supplied]. Thereafter, the letter states, “[w]e at Upsher-Smith look forward to marketing an exclusive private label brand of Cimetidine.” The letter then specifies minimum order quantities for Cimetidine, with “lot size quantities]” serving as the minimum order for the 300mg and 400mg tablet strengths and “reasonable quantities]” as the minimum order for the 200mg and 800mg strengths. The letter further specifies that USL’s minimum orders were to be “submitted via a rolling 12 month forecast which will be updated by the 15th each month,” with “[f]irm purchase orders” to be “sent 90 days in advance of shipment.” Finally, the letter concludes by stating “[w]e look forward to the start of what we hope will be a mutually beneficial and profitable relationship, and hope that we can look at other products which will fit into this joint strategy in the future.” [Emphasis supplied]. Mylan argues, however, that when each of these provisions is considered in isolation, they do not allow the reasonable inference that USL’s letter confirms the existence of an exclusive requirements contract. In this respect, Mylan contends that the phrase “exclusive private label brand of cimetidine” demonstrates only that USL intended to exclusively market its own private label brand of Cimetidine, and that the phraseology does not confirm that USL would purchase its Cimetidine requirements exclusively from Mylan. In addition, Mylan maintains that the words “rolling forecasts” only refer to a planning tool and do not reveal any obligation on USL’s part to include all of its Cimetidine requirements in its rolling forecasts. Contrary to Mylan’s argument, however, we believe that the provisions of USL’s letter must be read as a unified whole, and not parsed out into individually unrelated fragments. In satisfying the Statute of Frauds, there is no invariable requirement that a writing, in confirmation of a requirements contract, must explicitly state that the buyer will buy its requirements exclusively from the seller. Rather, “in certain instances, the promise to buy exclusively from the seller can be implied from the contract.” Zayre Corp. v. S.M. & R. Co., Inc., supra at 1154-55. We believe those circumstances to be present here. Perhaps, when viewed in detached segregation, the phrases that Mylan has isolated may not evince a Cimetidine requirements contract but, when viewed as an integrated whole, we believe that USL’s voices an unmistakable intent to commit USL, exclusively, to Mylan for USL’s Cimetidine needs. In so concluding, we underscore that the inference, which we have reasonably drawn from the letter’s provisions, does not establish the existence of a requirements contract between the parties, for USL must still prove the existence of such a contract to the trier-of-fact. As the U.C.C. clearly commands, its provisions are to “be liberally construed and applied to promote its underlying purposes and policies,” which include “the continued expansion of commercial practices through custom, usage, and agreement of the parties.” Minnesota Statutes Section 366.1-102(1). We believe that our reading of USL’s letter is not only consistent with common commercial practices, but is a faithful application of the U.C.C. “Justice would be thwarted by denying enforceability upon the basis of a lack of a specific quantity[,J [as] [t]he code was enacted to prevent just such an inequitable result.” O.N. Jonas Co., Inc. v. Badische Corp., 706 F.2d 1161, 1165 (11th Cir.1983) (holding that the phrase “[a] potential program utilizing our yarn was discussed in 1977 and we indicated that we would supply the yam if we were provided a Heller guarantee on our form” sufficiently evidenced a requirements contract for Statute of Frauds purposes). Therefore, we recommend that Mylan’s Motion for Partial Summary Judgment be denied, that USL’s Motion for Partial Summary Judgment be granted, and that Mylan’s Statute of Frauds defense be stricken. 2) Mylan’s Termination of Contract Defense. Mylan has also argued that, if a requirements contract had been formed between the parties, it retained the right to terminate that contract at will, under Minnesota Statutes Section 336.2-309, since the contract contained no durational term. Further, My-lan contends that, in fact, it terminated that contract on May 24, 1994, when Todd informed the USL executives that Mylan would not supply USL with Cimetidine for the Cimecon launch. Therefore, Mylan asserts that it is entitled to Summary Judgment, on USL’s breach of contract claim, since there was no contract that could have been breached. In response, USL contends that their contract with Mylan was not terminable-at-will because it was a requirements contract which, inherently, contained a durational term. In support of this contention, USL relies upon that portion of the Court’s opinion, in UFE Inc. v. Methode Electronics, Inc., supra at 1413, which provides as follows: “[A] requirements contract contains a du-rational term by definition because it reflects an agreement to supply a specified product for as long as the buyer requires it. Thus, an agreement to enter into a requirements contract necessarily contains a durational term within the meaning of section 336.2-309(2).” As a consequence, USL also seeks a Summary Judgment on this issue as, in its view, Mylan was not at liberty to unilaterally terminate their requirements contract at its own will. As here pertinent, Minnesota Statutes Section 336.2-309 provides as follows: (2) Where the contract provides for successive performances but is indefinite in duration it is valid for a reasonable time but unless otherwise agreed may be terminated by either party. (3) Termination of a contract by one party except on the happening of an agreed event requires that reasonable notification be received by the other party and an agreement dispensing with notification is invalid if its operation would be unconscionable. Since Mylan has raised the contract’s termination as an affirmative defense, it has the burden of proving that each of these statutory elements have been satisfied. See, e.g., Krueger v. Saiki 19 F.3d 1286, 1286 (8th Cir.1994) per curiam, cert. denied, — U.S. -, 115 S.Ct. 269, 130 L.Ed.2d 187 (1994); Paul v. Missouri Pacific Railroad Co., 963 F.2d 1058, 1059 (8th Cir.1992), cert. denied, 506 U.S. 999 (1992). Therefore, Mylan bears the burden of demonstrating that its contract with USL was indefinite — and, therefore, terminable at will — and that USL received reasonable notice of Mylan’s termination. Minnesota Statutes Section 336.2-309. We find USL’s argument that, by definition, a requirements contract contains a du-rational term, to be unavailing. Whatever may have been the circumstances in UFE Inc., every contract — including one that includes an indefinite length of performance— has a durational element. The crux of the issue, therefore, is not whether a requirements contract has a durational term, but whether that term, as here agreed upon by the parties, was indefinite. Unquestionably, the agreement at issue was for an indefinite period. Notwithstanding our conclusion that Mylan could terminate their arrangement with USL at will, we are unable to conclude that Mylan has satisfied the second element of its required proof, at least as a matter of law. Whether Mylan provided reasonable notice of its termination to USL is a determination fraught with genuine issues of material fact. As Comment 8 to Section 336.2-309 states, “the application of principles of good faith and sound commercial practice normally call for such termination of a going contract relationship as will give the other party reasonable time to seek a substitute arrangement.” Accordingly, “[t]he consideration of what constitutes sufficient or reasonable notice of termination depends on the circumstances of the particular case,” and “hinge[s] closely upon the amount of time necessary to enable the distributor to look for a new source of supply.” Aaron E. Levine & Co., Inc. v. Calkraft Paper Co., 429 F.Supp. 1039, 1050 (E.D.Mich.1976); see also, Jo-Ann, Inc. v. Alfin Fragrances, Inc., 731 F.Supp. 149, 160 (D.N.J.1989); Teitelbaum v. Hallmark Cards Inc., 25 Mass.Ct.App.Ct. 555, 520 N.E.2d 1333, 1336 (1988). Here, the amount of time that would have been necessary for USL to obtain an alternate source of Cimetidine, following Mylan’s refusal to supply the Cimecon launch, is disputed by the parties. Mylan’s expert is of the opinion that USL could have quickly located another supplier, while USL’s expert has opined that at least two to three months would have been required to secure a replacement private label supply agreement, which would be comparable to that which, assertedly, existed between Mylan and USL. Indeed, USL’s expert has expressed the view that such a delay could have precluded USL from entering the generic Cimetidine market altogether. In view of these material issues of fact, Mylan’s contract termination defense is not resolvable by Summary Judgment, and the parties’ cross-Motions should be denied. b. USL’s Motion For Partial Summary Judgment On The Defense Of Commercial Impracticability. Mylan has raised commercial impracticability as an affirmative defense, by arguing that, even if a Cimetidine requirements contract had been formed on April 26, 1994, Mylan’s performance of that contract would have been excused because the shortage of the requisite raw materials for Cimetidine made that performance commercially impracticable. In turn, USL argues that Mylan cannot establish commercial impracticability and, therefore, that Summary Judgment on that issue should be granted to USL. 1) Standard of Review. To succeed on its defense of commercial impracticability, Mylan must prove three basic elements. First, it must demonstrate that an unforeseen event occurred, the nonoccurrence of which was a basic assumption underlying the agreement, and that the event made performance of Mylan’s contractual obligations commercially impracticable. Second, Mylan must demonstrate that it made “fair and reasonable” allocations of Cimeti-dine to its customers. Lastly, Mylan must establish that it provided USL with seasonable notice, both of the delay or nondelivery, and of the estimated amount of supply that would be available to USL. Minnesota Statutes Section 336.2-615; Barbarossa & Sons, Inc. v. Iten Chevrolet, Inc., 265 N.W.2d 655, 658 (Minn.1978). 2) Legal Analysis. According to USL, Mylan cannot establish the first two of these elements. Given the state of the Record before us, we concur in USL’s view that Mylan will not be able to demonstrate that the shortage of raw material was an unforeseen contingency and, therefore, we recommend that USL’s Motion for Summary Judgment be granted. Under the doctrine of commercial impracticability, the element of unforeseeability requires a “determination of whether the risk of the given contingency was so unusual or unforeseen and would have such severe consequences that to require performance would be to grant the promisee an advantage for which he could not be said to have bargained in making the contract.” Barbarossa & Sons, Inc. v. Iten Chevrolet, Inc., supra. Expressed somewhat more fully, the test to be applied, under Section 336.2-615, is as follows: [W]hether the contingency which developed was “one which the parties could reasonably be thought to have foreseen as a real possibility which could affect performance” and was thereby “one of that variety of risks which the parties are tacitly assigning to the promisor by their failure to provide for it explicitly.” If it was, performance was required; if not, performance is excused. Id., quoting Mishara Construction Co., Inc. v. Transit-Mixed Concrete Corp., 365 Mass. 122, 310 N.E.2d 363, 367 (1974). Moreover, “if the factors which create the event are within the control of the party asserting commercial impracticability, then the inability to perform is the result of the party’s conduct rather than the event itself.” Roth Steel Products v. Sharon Steel Corp., 705 F.2d 134, 150 (6th Cir.1983). Here, the evidence is undisputed that Mylan knew, as early as April 6,1994— that is, nearly three weeks before the telephone conference of April 26, which USL claims consummated the alleged requirements contract — that its pre-book orders for Cimetidine were nearly double the amount of its available supply. At that time, according to Mylan’s own executives, Mylan knew that it would have to allocate Cimetidine to its customers. Mylan also admits that it knew, at that time, that it was the only generic manufacturer who had received an ANDA for Cimetidine. Although both Novapharm and Endo subsequently received ANDAs before the end of that month, Mylan admits that it knew, at all relevant times, that both of these companies would be supplied by Lek, the same supplier who was causing Mylan’s supply problems. Indeed, Mylan has acknowledged that, because of these supply problems with Lek, it began looking for a second source of raw materials in March of 1994. The only other generic supplier of Cimetidine, as of that date, was Lederle. As a result, the evidence of Record demonstrates that, if Mylan and USL did, in fact, enter into a requirements contract on April 26, their arrangement was made at a time when Mylan knew that its existing orders were double its supply of raw material, and that three of the four existing manufacturers of Cimetidine were being supplied with raw material from the same uncertain supplier. Furthermore, if a contract was consummated, it was entered barely three weeks before the time at which SKB’s patent would expire. Obviously, at that point, Mylan could foresee that no other generic manufacturers were likely to enter the Cimetidine market before the critical date of patent expiration. In this respect, we are closely guided by the Court’s analysis in Roth Steel Products v. Sharon Steel Corp., supra. There, the defendant steel manufacturer sought to invoke the defense of commercial impracticability so as to excuse its performance, during a period of materials shortage, of a steel supply contract. In affirming the District Court’s rejection of this defense, the Court reasoned as follows: The record indicates that Sharon continued to accept an unprecedented amount of purchase orders during the first half of 1973 even though it knew that raw materials were in short supply. In light of these facts, we believe that sufficient evidence supports the district court’s conclusion that Sharon’s inability to perform was a result of its policy of accepting far more purchase orders than it was capable of fulfilling, rather than as a result of the existing shortage of raw material. Id., at 150. The same may be said here. As we have noted, Mylan had accepted pre-book orders which vastly exceeded its existing supply of raw materials. Further, by the time that the alleged contract was formed, Mylan knew, or should have known, of the crucial lack of competition amongst the generic Cimetidine manufacturers and, therefore, Mylan could reasonably foresee that the cancellation of pre-book orders, that it had earlier projected, would not occur. Therefore, given these circumstances, we believe that, at the time of the alleged contract, the shortage of raw material was a contingency which the parties “could reasonably be thought to have foreseen as a real possibility which could affect performance” and was, therefore, “one of that variety of risks which the parties were tacitly assigning [to Mylan] by their failure to provide for it explicitly.” Barbarossa & Sons, Inc. v. Iten Chevrolet, Inc., supra. Aceord-ingly, if Mylan did commit itself to supply Cimetidine to USL, it did so with an indisputable awareness that the requisite raw materials might well be in short supply. We conclude, as a result, that Mylan cannot demonstrate that the shortage of Cimetidine raw materials was an unforeseen event at the time of the alleged contract, and we recommend that USL’s Motion for Summary Judgment on this issue be granted. c. Mylan’s Remaining Motions for Partial Summary Judgment. Mylan has advanced a series of Motions to strike individualized claims, which we address seriatim. 1) Whether The Parties Intended Only To Be Bound By A Written Contract. Mylan contends that the parties did not intend to be contractually bound until a written contract had been signed. In support of this contention, Mylan directs us to a number of handwritten notations, which were prepared by certain of the participants in the April 26 telephone conference, and which make reference to a contract. Since no written contract was ever executed, Mylan argues that it should be granted Summary Judgment on USL’s breach of contract claim. In response, USL does not dispute the content of the notations which have been attributed to its executives, but asserts that the comments have been taken out of context, and insists that the absence of a formal, written agreement is solely attributable to Mylan’s assurance that its word was its bond. Of course, “where the parties know that the execution of a written contract was a condition precedent to their being bound, there can be no binding contract until the written agreement was executed.” Data-sen Equip, v. Technology Finance Leasing, 364 N.W.2d 838, 841 (Minn.Ct.App.1985) review denied (May 31,1985); see also, Northway v. Whiting, 436 N.W.2d 796, 799 (Minn.Ct.App.1989). In this ease, however, a genuine issue of material fact separates the parties — Mylan contends that a formal written contract was agreed to be consummated, while USL disputes that Mylan expected anything more formalized than to be committed by its word. Accordingly, we recommend that this aspect of Mylan’s Motion for Summary Judgment be denied. 2)Whether the Parties Agreed That The Alleged Contract Would Be Exclusive. Mylan contends that it should be granted Summary Judgment, on USL’s breach of contract claim, because a requirements contract demands that the buyer agree to purchase all of its requirements from the seller and, in this case, USL and Mylan never even discussed whether USL would purchase Cimetidine exclusively from Mylan. USL disputes this contention, and has offered the testimony of two of its executives, who participated in the telephone conference of April 26,1994, and who have testified that the parties agreed that USL would purchase its Cimetidine requirements exclusively from Mylan. Since the dispute presents a genuine issue of material fact, we recommend that Mylan’s Motion be denied. 3)Whether The Alleged Contract Contains An Open Price Term. Mylan contends that the parties’ alleged contract anticipated that the price of Cimetidine would change over time, but that the parties left unresolved how the price would change and, therefore, the contract is too indefinite to be enforced. Alternatively, Mylan urges us to apply the “gap-filler” provision of Minnesota Statutes Section 336.2-305(1), to supply the missing price formulation. This Section provides that, when a contract price is left open or unsettled, “the price is a reasonable price at the time for delivery * * *.” Minnesota Statutes Section 336.2-805(1). We find neither argument to have merit. Whether the alleged contract includes an open price term is a very disputed topic. Mylan contends that the prices, which were discussed during the telephone conference of April 26, were “first stage,” that is, they were subject to change. On the other hand, USL attests that the agreed upon prices were fixed and, in support of that contention, USL has offered the opinion of its expert, Edward Thwaite (“Thwaite”), that fixed prices are customary in the pharmaceutical ind