180 A.3d 268
N.H.2018Background
- The Freedom Companies (plaintiffs) and the Provider Power Companies (defendants) compete in supplying electricity/natural gas in New England. Dispute arose after defendants hired a Freedom employee who allegedly misappropriated plaintiffs’ confidential customer information and sales leads.
- Plaintiffs sued for, among other claims, tortious interference with customer contracts, tortious interference with economic relations, tortious interference with the employee’s contract (non-compete/confidentiality), and misappropriation of trade secrets; a jury returned verdicts largely for plaintiffs and awarded $556,208 (including $93,000 in prior attorney’s fees).
- Defendants moved for JNOV and post-trial relief on multiple grounds (contract termination following PNE’s ISO suspension, adequacy of consideration for the non-compete, duplicative recovery, damages methodology, recoverability/reasonableness of prior attorney’s fees).
- The trial court denied JNOVs and submitted attorney’s-fee issues to the jury, later awarding additional statutory attorney’s fees under the NH Uniform Trade Secrets Act (NHUTSA).
- On appeal the Supreme Court of New Hampshire affirmed: it limited review to preserved and briefed claims, affirmed denial of JNOVs, upheld jury instructions (including on contract existence/consideration and recovery of prior attorney’s fees as damages), and affirmed the trial court’s discretionary NHUTSA fee award and refusal to apportion fees between claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether PNE’s customer contracts survived PNE’s ISO suspension so JNOV should be granted | Contracts continued; temporary utility transfer was contemplated and plaintiffs maintained customer relationships | Suspension and transfer to PSNH terminated contracts, so no contract existed to be interfered with | Denied JNOV — conflicting evidence supported jury finding that contracts continued after suspension |
| Whether Resident Power’s contracts terminated (JNOV) because it ceased to "conduct business in the ordinary sense" | Contracts remained; clause ambiguous and jury should decide | Reputation/operational disruption after PNE suspension triggered contract termination clause | Denied JNOV — clause ambiguous; reasonable jury could find business continued in ordinary sense |
| Whether non-compete in employee contract lacked consideration, requiring a jury instruction and JNOV | Non-compete lacked new consideration so interference claim should fail | Continued at-will employment, commission access, and resolving a bona fide commission dispute provided adequate consideration | Instructions adequate and JNOV denied — court’s charge required jury to find consideration; continued employment/resolution of dispute supplied consideration |
| Whether jury improperly awarded duplicative damages for both tortious interference with contracts and with economic relations | Plaintiffs entitled to damages on both theories | Award created double recovery; jury should be instructed to avoid duplicative awards | No reversible error — court instructed against double recovery; presumption that jury followed instruction; plain-error review failed |
| Whether plaintiffs could recover prior attorney’s fees (from suit vs. employee) as damages and whether those fees were reasonable | Prior fees were natural/proximate consequence of defendants’ torts; jury may award them; plaintiffs later prevailed on NHUTSA fees | Fees are not recoverable from defendants (no tort-of-another adoption); reasonableness not proved | Affirmed — evidence supported that defendants’ conduct forced suit vs. employee; defendants waived challenge to legal basis and to reasonableness timing; jury properly awarded $93,000 |
| Whether trial court erred in awarding NHUTSA attorney’s fees and failing to apportion time spent on misappropriation claim | NHUTSA permits fees for willful/malicious misappropriation; claims were factually intertwined so no segregation needed | Award was improper or required detailed apportionment between recoverable and non-recoverable claims | Affirmed — trial court reasonably applied totality test under UTSA, found willful misconduct, and reasonably declined to segregate fees because claims were not analytically severable |
Key Cases Cited
- State v. Blackmer, 149 N.H. 47 (N.H. 2003) (contemporaneous objection requirement to preserve appellate review)
- Murray v. McNamara, 167 N.H. 474 (N.H. 2015) (standard and review for JNOV; view evidence in non-movant’s favor)
- Ellis v. Candia Trailers & Snow Equip., 164 N.H. 457 (N.H. 2012) (de novo review for questions of law)
- Smith, Batchelder & Rugg v. Foster, 119 N.H. 679 (N.H. 1979) (continued employment can constitute consideration for covenant not to compete)
- Snelling v. City of Claremont, 155 N.H. 674 (N.H. 2007) (jury charge objections waived if not made before jury retires; double recovery principle)
- Blouin v. Sanborn, 155 N.H. 704 (N.H. 2007) (damages need not be calculated with mathematical certainty; trial court’s review of verdict amount)
- Nilsson v. Bierman, 150 N.H. 393 (N.H. 2003) (presume jury follows instructions)
- Carlisle v. Frisbie Mem. Hosp., 152 N.H. 762 (N.H. 2005) (objection to sufficiency of evidence must be timely to avoid waiver)
- In the Matter of Mason & Mason, 164 N.H. 391 (N.H. 2012) (standard of review for attorney’s fees awards)
- In the Matter of Ball & Ball, 168 N.H. 133 (N.H. 2015) (interpretation of uniform acts and reliance on drafters’ intent)