Antitrust Law Daily Wrap Up, FRANCHISING & DISTRIBUTION—D. Md.: Court refuses to cut distributor’s contract damages after fulfillment center’s post-judgment closure, (Jun 25, 2026)

By Martin A. Steinberg, J.D.

Post-judgment closure of Kroger fulfillment center was not an extraordinary circumstance warranting Rule 60(b)(6) relief from distributor’s final damages award.

The federal district court in Greenbelt, Maryland, denied Bimbo Foods Bakeries Distribution, LLC’s motion to amend a $452,343.41 damages award entered in favor of a distributor after a bench trial. The court previously found that Bimbo breached the parties’ distribution agreement by using another distributor to service a Kroger automated fulfillment center located within the plaintiff’s exclusive territory, and it calculated damages based on projected lost revenue over 15 years. The Fourth Circuit affirmed the underlying contract ruling in January 2026, and Kroger closed the fulfillment center later that same month. Bimbo then sought relief under Rule 60(b)(6), arguing that the closure made the damages award unreasonable. The court rejected that argument, holding that later events disproving a reasonable predictive damages calculation do not constitute the extraordinary circumstances required to reopen a final judgment (Davis v. Bimbo Foods Bakeries Distribution, LLC, No. 8:22-cv-00663-DLB (D. Md. Jun. 22, 2026)).

Background. Walter Davis, a longtime grocery-industry distributor, had a distribution agreement with Bimbo Foods Bakeries Distribution, LLC that gave him the exclusive right to distribute Bimbo products to covered outlets in Frederick County, Maryland. The agreement defined those outlets to include retail stores, restaurants, and institutional accounts that purchased products by store-door delivery, and Davis earned revenue from the spread between the price at which he obtained Bimbo products and the wholesale price paid by the outlet. The contract did not contain a termination date.

The dispute arose after Kroger planned and opened an automated grocery fulfillment center in Frederick County. Although the facility was located within Davis’s exclusive territory, Bimbo decided to use a different distributor to service it. Davis sued, alleging breach of contract and seeking declaratory and injunctive relief. At trial, the parties disputed whether the Kroger facility qualified as an “Outlet” under the agreement. Bimbo argued that the facility was not a retail store and did not purchase products by store-door delivery; Davis argued that it functioned as a retail outlet because it sold products to consumers and could be serviced by delivery.

Bench trial. After a bench trial, the court ruled in Davis’s favor on his breach of contract claim. The court entered a declaratory judgment that the Kroger fulfillment center qualified as an Outlet within Davis’s exclusive distribution territory and awarded Davis $452,343.41 in damages, plus court costs. The damages award was based on the court’s projection of the revenue Davis would have earned from servicing the facility over the next 15 years, less fuel expenses. The court declined to issue an injunction requiring Bimbo to use Davis going forward, in part because such relief would require continuing judicial supervision. Bimbo appealed the contract ruling, but did not challenge the damages calculation, and the Fourth Circuit affirmed in January 2026.

Fourth Circuit decision. The Fourth Circuit affirmed the district court’s underlying contract ruling in an unpublished opinion. The appellate court upheld the determination that the Kroger automated grocery fulfillment center qualified as an “Outlet” under the distribution agreement, which gave Davis exclusive rights to distribute Bimbo products to “retail stores restaurants [sic] and institutional accounts which purchase Products by store door delivery.” The district court had found the terms “retail store” and “store door delivery” ambiguous as applied to the fulfillment center and relied on parol evidence to interpret them. The Fourth Circuit agreed that the fulfillment center fell within the agreement’s definition of an Outlet and that Davis therefore had the exclusive right to service it.

Fulfillment center closure. Later that same month, Kroger closed the Frederick fulfillment center after struggling to make its e-commerce business profitable. Bimbo then moved under Rule 60(b)(6) to amend the judgment, arguing that the facility’s closure undermined the court’s 15-year damages projection and gave Davis a windfall rather than compensation for an actual loss. Bimbo asked the court to reduce the award to $88,651.05, which it said would compensate Davis only for the period during which the fulfillment center actually operated. Davis opposed the motion, arguing that Bimbo had not satisfied the demanding standard for post-judgment relief under Rule 60(b)(6).

Failure to show extraordinary circumstances. The court denied Bimbo’s Rule 60(b)(6) motion because Bimbo failed to show the extraordinary circumstances required to disturb a final judgment. The court explained that the original damages award was based on a reasonable prediction of future events, namely, how long Davis would have continued to earn revenue from servicing the Kroger fulfillment center. Predictive damages calculations are common, and the fact that later events prove a projection wrong does not make the judgment extraordinary. If that were enough to reopen a judgment, parties could repeatedly return to court whenever post-judgment developments made a damages award appear too high or too low. The court emphasized that such a rule would undermine finality in nearly any case involving future lost profits, future earnings, life expectancy, or other forward-looking damages assumptions.

The court found persuasive the Sixth Circuit’s decision in Davis ex rel. Davis v. Jellico Community Hospital, Inc., 912 F.2d 129 (6th Cir. 1990), where a damages award based on a projected normal lifespan was not reopened after the plaintiff died shortly after trial. The court also relied on similar reasoning from Boyd v. Bulala, 672 F. Supp. 915 (W.D. Va. 1987), where a defendant was not permitted to reduce a damages award after a child whose future medical expenses had been awarded died sooner than expected. Those cases supported the principle that courts do not reopen final judgments to achieve “perfect justice” with hindsight. Applying that principle here, the court held that Kroger’s closure of the fulfillment center after judgment did not constitute an extraordinary circumstance merely because it disproved the court’s assumption that the facility would remain open for 15 years.

The court rejected Bimbo’s attempts to distinguish those cases. Although Bimbo argued that the facility’s closure eliminated uncertainty and showed the exact amount of Davis’s actual loss, the court found that argument no different from the cases involving plaintiffs who died sooner than expected: in each instance, later events revealed facts that were unknowable at trial. The court also rejected Bimbo’s reliance on Fourth Circuit precedent involving a judgment entered without statutory authority, explaining that the court here had authority to award projected lost-revenue damages when it entered judgment.

Finally, the court rejected Bimbo’s assertion that the original 15-year projection was unreasonable. The court noted that the projection was supported by evidence that Kroger had opened multiple automated fulfillment centers, planned to build more, and that warehouse automation was viewed as an important development in supply-chain management. Although the projection ultimately proved too optimistic, it was reasonable at the time. The court also observed that Bimbo could have challenged the damages calculation on appeal, but did not. Because Bimbo failed to establish extraordinary circumstances justifying relief under Rule 60(b)(6), the court denied the motion to amend the judgment.

The Case is No. 8:22-cv-00663-DLB.

Judge: Boardman, D.

Attorneys: Daniel R. Miktus (Akerman LLP) for Walter R. Davis. Kaiser H. Chowdhry (Morgan, Lewis & Bockius LLP) for Bimbo Foods Bakeries Distribution, LLC.

Companies: Bimbo Foods Bakeries Distribution, LLC

Cases: FranchisingDistribution MarylandNews