                                                                                     PUBLISH

                  IN THE UNITED STATES COURT OF APPEALS
                                                                               FILED
                            FOR THE ELEVENTH CIRCUIT                  U.S. COURT OF APPEALS
                                 _______________                        ELEVENTH CIRCUIT
                                                                            JUNE 25, 2001
                                       No. 99-11451                      THOMAS K. KAHN
                                     _______________                          CLERK


                         D. C. Docket No. 95-03193-CV-RWS-1


THERATX, INC.,

                                                    Plaintiff-Counter-Defendant-
                                                    Appellee-Cross-Appellant,


       versus


JAMES DUNCAN,
TIMOTHY S. SMICK, et al.,

                                                    Defendants-Counter-Claimants-
                                                    Appellants-Cross-Appellees.

                          ______________________________

                      Appeals from the United States District Court
                          for the Northern District of Georgia
                         ______________________________
                                    (June 25, 2001)

Before BIRCH, BARKETT and ALARCON*, Circuit Judges.
_____________
*Honorable Arthur L. Alarcon, U.S. Circuit Judge for the Ninth Circuit, sitting by designation.
BIRCH, Circuit Judge:

      In TheraTx, Inc. v. Duncan, 234 F.3d 1240 (11th Cir. 2000), we certified the

following question to the Supreme Court of Delaware:

      What is the proper measure of damages when a defendant’s contractual
      obligation to cause a shelf registration, under which plaintiff is entitled
      to trade a restricted stock, to remain in effect for a specified period of
      time is breached by defendant’s temporary suspension of plaintiffs’
      ability to trade the restricted stock?

Id. at 1251. After a thorough review of the question, the Supreme Court of

Delaware issued the following opinion:

      Under Delaware law, contract damages caused by the temporary
      suspension of a shelf registration in violation of the terms of a contract
      are measured by calculating the difference between (1) the highest
      intermediate price of the shares during a reasonable time at the beginning
      of the restricted period and (2) the average market price of the shares
      during a reasonable period after the restrictions were lifted.

Duncan v. TheraTx, Inc., __ A.2d __ (Del. June 1, 2001).

      Accordingly, we REMAND the to the district court with instructions to enter

damages for Duncan, et al., calculated in the manner described by the Supreme

Court of Delaware.




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