Curtis Evans v. PlusOne Sports, LLC
686 F. App'x 198
| 4th Cir. | 2017Background
- Evans (Virginia) developed a throwing‑stick for “throw golf” and filed patent applications; Van Alen/PlusOne (Massachusetts) developed a competing FlingStick and began sales in 2014.
- The parties signed a four‑page Term Sheet (Nov. 2, 2014) outlining a non‑exclusive license with royalty rates and a $10,000 annual minimum, but the Term Sheet stated the parties would “work in good faith to record the terms of this Term Sheet in a binding Non‑Exclusive License Agreement.”
- Several material terms were left open or vague (e.g., definition of “gross sales,” duration/term of the license, detailed arbitration provisions), and subsequent draft negotiations broke down.
- Evans demanded the $10,000 minimum and then $50,000 under an acceleration clause; PlusOne refused and terminated negotiations.
- PlusOne counterclaimed alleging slander of title, trademark abandonment declaratory relief, and Massachusetts Chapter 93A claims; the district court granted summary judgment to PlusOne on Evans’s breach claim (i.e., ruled Term Sheet unenforceable) and granted summary judgment to Evans on all counterclaims.
Issues
| Issue | Plaintiff's Argument (Evans) | Defendant's Argument (PlusOne/Van Alen) | Held |
|---|---|---|---|
| Whether the Term Sheet is a binding contract or an unenforceable agreement to agree | Term Sheet fixes key terms (royalty rates, minimums) and parties intended to be bound; Massachusetts law applies and is more favorable | Term Sheet expressly contemplates a later “binding” agreement and leaves material terms open; Virginia law applies and disfavors agreements to agree | Term Sheet unenforceable under either Virginia or Massachusetts law; summary judgment for PlusOne/Van Alen affirmed |
| Choice of law: Virginia vs. Massachusetts | Massachusetts law should govern because contract formation occurred there (Van Alen signed there) | Virginia law governs because performance and place of performance (payments, delivery, interactions) occurred in Virginia | Court assumed choice‑of‑law issue unnecessary to decide because Term Sheet unenforceable under either state; district court applied Virginia law but outcome same |
| Slander of title from Evans’s trademark filings | Evans falsely declared bona fide intent to use and that no one else had rights; filings injured PlusOne | Evans had bona fide intent and sought counsel; filings occurred after PlusOne’s applications abandoned | PlusOne failed to show falsity or malice/reckless disregard; summary judgment for Evans affirmed |
| Chapter 93A claim for unfair/deceptive practices | PlusOne: Evans’ negotiations, alleged appropriation, and trademark filings were unfair and harmed PlusOne in Massachusetts | Evans: Conduct occurred primarily in Virginia (communications, filings, manufacture, demand) | Center of gravity is Virginia; Chapter 93A requires conduct primarily and substantially in Massachusetts; summary judgment for Evans affirmed |
Key Cases Cited
- Navar, Inc. v. Fed. Bus. Council, 784 S.E.2d 296 (Va. 2016) (agreements to negotiate are unenforceable under Virginia law)
- Rosenfield v. U.S. Trust Co., 195 N.E. 323 (Mass. 1935) (agreement to reach agreement imposes no obligation)
- Goren v. Royal Invs. Inc., 516 N.E.2d 173 (Mass. App. Ct. 1987) (language looking to execution of a final written agreement gives strong inference against enforceability)
- Duff v. McKay, 52 N.E.3d 203 (Mass. App. Ct. 2016) (preliminary agreement enforceable only if terms are sufficiently complete and parties intended to be bound)
- Poindexter v. Mercedes‑Benz Credit Corp., 792 F.3d 406 (4th Cir. 2015) (summary judgment review standard and malice/recklessness requirement in slander of title context)
- Seabulk Offshore, Ltd. v. Am. Home Assurance Co., 377 F.3d 408 (4th Cir. 2004) (choice‑of‑law principles in diversity cases)
- Kuwaiti Danish Comput. Co. v. Dig. Equip. Corp., 781 N.E.2d 787 (Mass. 2003) (Chapter 93A center‑of‑gravity test)
- Kenda Corp. v. Pot O’Gold Money Leagues, Inc., 329 F.3d 216 (1st Cir. 2003) (no Chapter 93A liability when virtually all complained conduct occurs outside Massachusetts)