You Makes Your Choice And Takes Your Chances
The Federal Circuit in the Winstar -related case of Old Stone Corp. v. U.S. (May 25, 2006, http://www.fedcir.gov/
opinions/05-5059.pdf) struck down a $118 million restitutionary damages award to the bank, explaining that, because the bank decided to continue operating after the breach occurred, attempting to make a go of it despite the government's breach, it had waived its right to declare a "total breach" and collect restitutionary damages to put it back in the pre-contracting situation when it went under several years later. On the other hand, foreseeable damages directly related to mitigating the effects of the breach, in this case $74.5 million, were available, and that part of the judgment was affirmed.
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