*2 KAYATTA, Before THOMPSON MASTROIANNI,* Judges, and Circuit Judge. District KAYATTA, Judge. Circuit (“CNE”) Direct, is a Massa- Inc. corporation the business chusetts technological buying' reselling In components. November Asset Recov- reached an Worldwide, (“Asset”) Ltd. ery Associates phone parts manufactured (“BlackBerry”). BlackBerry Corporation to make the failed Assét thereafter causing price, agreed-upon at the available loss in connec- to suffer a substantial to resell the tiоn with its own commitment * Massachusetts,- sitting by designation. Of the District of will, discuss, nothing to su As we parties. addition
parts to other about, Asset, foregoing to hold transaction deal- ing CNE seeks liable, ings October and November 2013 contending that Asset was act itself support argument act- or BlackBerry’s actual ing as apparent agent as an ed actual 2013 transaction. agent in the November *3 out, points Berry. though, it had As'CNE party marshalled its best evi After each deаlings purchase prior with Asset discovery, and after following full- dence of BlackBerry parts. and sale Those entering against default Asset,' argues, provide CNE a course dealings, court en district now-defunct conduct, context, to in favor of at least sufficient summary judgment tered Direct, cast the aborted 2013 transac- Black November BlackBerry. Inc. v. CNE to 14-CV-10149-FDS, light. tion in a we turn different So Corp., Berry No. (D.Mass. *6, 10, prior dealings. those 4750847, Aug. *11 consider at WL 2015). considering appeal, After 2011, May Tejeda, then a Christopher ' we affirm. CNE, BlackBerry to trader at first called inventory. inquire purchasing excess about Background
I. Efstathiou, He reached' Chris the individu- grant from a appeal responsible managing BlackBerry’s As this is an al for facts in summary judgment, inventory. During we recite initial excess their CNE, conversation, non- Tejeda most phone favorable Efstathiou told .to movant, purchase BlackBerry’s and draw all reasonable that if wanted inferences he Petrenko, favor. inventory, speak See Martinez excess should he Ste- (1st Cir.2015). 173, 175 Miele, phen the individual control of time, At Asset. Asset was 2013, Asset an On October received many Black- third-party resellers which BlackBerry stating it email Berry inventory. sold .its excess 'sus- “looking memory parts to move” excess this pected was the case October listing for- and its excess units. Asset to be true October and knew email to CNE. CNE thereaf- warded the notwithstanding best efforts Miele’s into ter entered with Asset discussions hold himself out the “exclusive” source pursuant the terms to which Asset would parts BlackBerry’s BlackBerry or as parts supply BlackBerry CNE. Ac- “agent” lack CNE, cording to Asset eventual- CNE and helping interest in connect CNE with a ly on the terms a reached (cid:127) different reseller. purchase sale. CNE sent a then order, An agreed-upon to confirm the deal. dealt Miele. thereafter CNE. Tejeda purchase phone The identified as the initial call order “supplier” parts May led to additional conver- stated agreed-upon regarding back- sations price. Asset then the available tracked, demanding price negotiations first increase over CNE’s bid 2%, parts. then an CNE and Asset reached Once approximately increase agreement, “purchase an approximately 28%. CNE claims that As- CNE prepared back-tracking price, list- set’s order” to confirm an orchestrated attempt by BlackBerry ing a as the company .advantage take affiliated this docu- “position supplier. passed of CNE’s of weakness.” When Asset complained Asset, along BlackBerry, BlackBer- sought and also inter- mentation it instead be by BlackBerry, ry objected cession which and asked that declined. BlackBerry parts that followed changed the this listed as рattern approximately to accommodate amounted to form purchase order invoice from $836,000. parties’ At no in the request, received deal- return,“and funds di- Berry in ings physical possession wired take did Asset turn, BlackBerry, in rectly goods.. retrieved the percent Asset a five commission paid parts BlackBerry’s warehouse.
the sale. time, grew Over frustrated with transaction, August next relevant 30, 2012, August On Miele’s conduct. slightly different course. followed expressed CNE emailed favorably most Viewing the record On frustration with Miele. October that' fifst appears BlackBerry CNE emailed com- along list of on-hand excess passed plain professionalism. about Miele’s lack *4 inventory to Asset. Asset disseminated CNE at that had determined that customers, including to its the lists untrustworthy Miele was had lied to and seeking per-unit Asset then collated bids. repeatedly. BlackBerry’s response, the the received аnd shared bids manager from a who had taken over new of the bid- amounts and identities bids Asset, BlackBerry’s dealings with charac- BlackBerry, profiting by reserv- ders with acquisition1 parts of the as terized CNE’s products the ing markup itself a transactions, involving one between two approximately 10% varied between- Asset, BlackBerry á be- and and second agree- No written and.50% the bid.1 tween and CNE. Consistent with Asset governed of Asset’s rela- ment the terms characterizatiоn, response this the emailed though BlackBerry, par- with the tionship as follows: concluded understanding that operated ties under an standards, professional As for business refuse, right the .to retained purchase the of the LCD’s between on the sell Asset based amount you Stephen and that is forum and the identity pay or the willing parts the is it that should be maintained not? purchaser,2 of the intended downstream get Sorry, but I wish the don’t and placed bid with Asset Once yourself Stеphen and middle between BlackBerry had Asset that -the informed relationships important mysélf are acceptable, the bid was CNE confirmed I suggest you a whole. and RIM as by issuing purchase -to transaction Asset a I Stephen. on this with am need to deal memorializing agreed-upon the order you I in this help how can sure else “pro forma” price. Asset then remitted situation.' quantity to confirm invoice the exact When CNE thereafter emailed goоds As with the that would be sold. dealings try to address Miele’s transaction,
original CNE’s purchase order CNE, BlackBerry called and turned down Un- identified flatly, telling that it “ha[d] transaction, pay like the first CNE did discuss it with Mr. Miele.” to As- but instead wired funds or its set affiliates. conversation, and Asset After August into additional transaction August Between entered Then, August 2012. transactions Miele told parties seven conducted reasons, BlackBerry preferred profited. For how obvious 1. CNE knew that this was competi- selling parts to its excess avoid tors. & principal].” on fu- half of Theos supplier [the listed change ONE Trucks, Inc., Asset, 431 Mass. than Inc. v. Mack orders to rather ture (2000). so, 1113, 1119 entered BlackBerry. ONE did to- additional transactions into -at least six Massachusetts follows Second $730,000 following taling approximately principal-agent Restatement rela view to the aborted No-t practice this new ingredients” of tionships, essential “the During this 2013 transaction. vember which are: time, BlackBerry appear and Asset 1) agent’s power legal to alter save, .comjnunication, have had further relationships principal exchanges relating brief perhaps, 2) parties; fiduciary relationship third picking up logistics principal regarding matters toward occasionally in- Berry’s warehouse. 3) agency; scope within pick- BlackBerry to facilitate terfaced control principal’s .to In one October 2013 behalf. up agent’s conduct matters within Stephen Catherine email sent Miele— scope agency. em- apparently Miele’s wife Block, Inc., v. H R& 107 Fed. Sorenson she explained ployee—to Cir.2004) 227, 231-(1st Appx. (unpublished) sold, I parts. ordered “[Asset] alia, (Second) (citing, inter Restatement Direct they [sic] CN .to .are *5 (1958)). §§ their, Agency According to 12-14 to pick sending up trucker courts, particularly Massachusetts salient parts.”
amоng principal’s right criteria these is Analysis II. Doyle, Spencer to control. See v. 50 Mass. (2000) 6, 1082, App.Ct. 733 1086 N.E.2d grant of a district court’s We review (an of ’agency “essential characteristic is Martinez, novo. summary judgment de right control principal to what moving party is F.3d at 179. The 792 agent or shall not shall do before summary if it “shows entitled to (internal omitted) ).3 agent quotation acts” genuine dispute any as to that there is ho an.d„ judg- that, is to argues agent, material fact еntitled ONE an [it] Civ, P. of law.” R. ment' as a matter Fed. was cloaked with both actual and 56(a). authority principal, to bind argument in contract. address each We parties agree that Massachusetts turn. governs. agency,” of “[T]he law Supreme the Massachusetts- Judicial Court Authority A. Actual held, an fact usually has “is issue finder,” authority is of summary judgment product can be but Actual consent, or appropriate party asserting implied, if the the exis- “mutual express is act on behalf relationship of an to agency “fail[s] tence to subject of to specific principal, facts to estab- benefit advance sufficient Sons, genuine principal’s'"control.” Theos & lish the existence issue agent’s] points to no evi putative’ material fact N.E.2d at 1119. ONE [the apparent authority any express- or dence of consent manifested actual act- b‘é- (D.Mass. 2014). Rather, 12, law, principal “the cru- 3. Under “the Mаr. Massachusetts fact that control” an inquiry need not in exercise over has a [it] cial control,” whether Inc., Entm’t, agent. Concorde No. DiMaria v. Id. -1139-FDS, 991567, *4 12-cv-1 2014 WL at planned it parts both Asset and resell to one of agree- argues implied there an BlackBerry’s competitors or to a customer au- pursuant foreign country ment which controlled a loath to act on behalf of Black- regime. thorized Asset some These basic commerсial rules, Berry agreeing ground sell CNE. “merely reflective-of or (“Implied authority id. at 1120 n. 13. dinary See desire manufacturers "set suffi authority by implication that evolves actual cient minimum' performance quality parties.” (citing from the conduct of the protect good standards name Corp., trademark,” Downing T.D. Co. Shawmut their simply approach do not (1923))). N.E. Mass. principal “kind close control” a n 'expected would be ássert over an argument, support agent’s operations. Theos & represéntatioñs by points Only' to 1120; at see also Brown-Forman an that he' had secured with . Corp. v Beverages Alcoholic Control buyers BlackBerry that Asset would find Comm’n, Mass.App.Ct. pay simply and that As (2006) (finding 1269-71 that an alco fee. set a 5% finder’s After June hol distributor not the however, is zero evidence though wholesaler even the wholesaler had into- ever entered such power over the distributor’s veto market agreement, impliedly or To otherwise. structures). ing plan and pricing contrary, transaction at issue (and all points November 2013 Authority Apparent B. 2011) than June finder’s involved fee, turn, therefore, leaving upside. We to CNE’s primary argument: spread between That Asset acted downside what apparent authority agreed pay BlackBerry behalf and what BlackBer ry. Unlike agreed pay respect, authority, apparent it. In this the fact actual au *6 thority provenance not find its unsuccessfully sought pro that Miele need an agreement’ ceed on a between commission basis the fixed rebuts the supports any principal. apparent authority than claim that there rather implied agreement principal, an that act arises when the here BlackBer that, ry, Bl^ckBerry’s agent. Downing says something See T.D. “reason as does Co., ably the (declining interpreted, person at 526 an causеs third 139 N.E. find principal that implied principal-agent relationship the, believe consents when by on his of ... the have the act done behalf the risks contracts between “[t]he person to act for wholly [putative purporting the two him.” Theos with the Sons, agent] (quoting & at 1120 profits whom alone 729 Re 27). accrue”). (Second) § Agency, of statement (cid:127) argues parties’ that BlackBerry’s correctly CNE- further *7 Asset, from from and then
held out Asset as its would have CNE, while the re See, e.g., bеen tenuous best. Moreau v. mained at warehouses. See (1st River-Otis, Inc., 6, 10 James 767 Stores, City Inc. Circuit v Comm’r Cir.1985) (applying Second Restatement Revenue, 636, 629, Mass. view, 439 apparent authority un inference (title (2003) to goods may pass 641 even only reasonable where manifestation in posses in though goods physical remain ternational union bound could be vendor). fact that representatives signature its local sion The Miele did was on. agree- damаge not take the risk loss bargaining master collective on weigh conflicting ambiguity We earlier irrele- need not evidence on events rendered ambiguous ascertaining identity record to reach this conclu- CNE’s vant that, Rather, simply recognizing sion. we are putative counterparty in that aborted 2013 ambiguity may whatever existed have deal. 2013, logic chronology subsequent holding apparent § no relevant as to- 2-509 sheds dissent from U.C.C. under ' in on the light this context authority. short, nothing about the size agency. summary On de novo review of a our the fact operation of his or manner belied motion, court is to view the him as its not hold out did in most record favorable negotiating in the aborted deal. CNE, non-moving party, in case These, giv- force findings particular have all in its Maldona draw favor. inferences commercially sophisticat- is a en that CNE Castillo-Rodriguez, do-Denis v. 23 F.3d prudence party ed ‘‘third rеasonable Cir.1994). (1st words, In other Binkley, as Asset. business” [same] n summary judgment. stage “at This is not at 337. 831 F.2d say Asset’s, judge’s weigh relation- function not CNE must have assumed himself parallel ship with truth evidence and determine is to its customers. with Inc., Liberty Lobby, matter.” Anderson v. sophisticated parties commercial out that 242, 249, 477 U.S. S.Ct. in which the terms of operate in a world (1986). exactly But L.Ed.2d this- exchanged forms one an- comfnercial majority majority done. The what has customarily controlling. See оther are opinion that, has laid out the facts 2-207(2). controlling § The forms U.C.C. hand, apparent authority, would establish here made clear that and Asset that, other, suggest those nearly identical business model: shared has majority none. The then buy products manufacturers set of concluded that the second facts out re-sell them other customers cpuld weighs that CNE not the firsthand other markets “downstream.” Just Black have believed Asset Asset, supplied not CNE’s сustom- Berry’s agent. I think- a But reasonable ers; Asset, supplied n way, jury out. could come CNE:
summary judgment proper is therefore III. Conclusion here. arrangement sophis- between these relationship by way An agency exists parties during
ticated the relevant time authority putative where the As- period only was that CNE dealt party principal’s conduct led “third set, Asset and not Black- listed in the business to prudence reasonable paid supplier, аnd that CNE Berry as authority.” Binkley rely agent’s on the Asset, BlaekBerry’s only all accord with Inc., (1st Tank, Co. v. E. 831 F.2d express rejection request of CNE’s that it Cir.1987); see Theos & Inc. v. also exercise some control over Asset. On such Inc., record, Trucks, rationally fact finder could 431 Mass. Mack BlackBerry gave CNE rea- (2000). conclude that Viewing 1121-22 acting son to think that Asset was us, could jury I think a record before BlackBerry’s agent negotiating believed, on a that CNE based conсlude *8 price of the aborted November 20Í3 deal. BlackBerry’s interpretation reasonable ruling district The court’s affirmed. conduct, Black Recovery that was Asset Berry’s agent.
THOMPSON, Judge, dissenting Circuit part. in originally that The shows CNE record BlackBerry buy to in order to reached out majority’s I conclu- agree with the
While that it authority question, technological parts, on I its and was sion the actual you in help am not how else I can this CNE to Asset sure that rеferred BlackBerry situation_” BlackBerry represen- During first transaction The Recovery. CNE’s subsequent in a parts, pur- tative then reiterated purchase get not phone BlackBerry call that company a affiliated listed chase order Recovery but involved. supplier, as the Asset to BlackBerry explicitly CNE directed majority’s position It is that these to list BlackBer- change purchase order irrefutably it clear communications mаde pay- supplier. CNE also wired ry as the Recovery not that Asset was parts directly to ment agent, jury that no could conclude and up parts directly from picked then and At beg I to differ.' the sum- otherwise. first BlackBerry After this warehouse. stage, are to mary, judgment we view began payments to make payment, in the most favorable to facts Recovery, but at least seven to Asset in favor. It and draw all inferences subsequent it transactions remained certainly way interpret that true BlackBerry as the practice that was' listed those would be to emails conclude .that orders, that on the and supplier refused, to BlackBerry get embroiled in picked up products always spat Recovery Asset and between Recovery indepen- because Asset was point, appears major- BlackBerry’s agent. it not Up until this dent actor and It ,however, reasonable, in be ity equally I that'it would would be and are get BlackBerry that a find conclude argue fair to factfinder could refused that believed, it not reasonably simply that based because did want involved dealing, Recovery that that one of its this undermine decisions course of in BlaekBerry’s agent. According agents handling' to the had made customer was however, majority, scope the- be- that fell within the that conversations business agent’s authority. interpretations Both BlackBerry and in October tween CNE plausible. are change everything. first majority may be that the The October communications majority interpretations convincing, is more which refers consist of an these call, subsequent phone convincing it more in which and that made email later, year August request Stephen it refused CNE’s when get CNE to Recovery’s change in CNE Miele directed pur- involved relationship. again,' chase time to list Specifically, orders once this souring late August Recovery to Asset as the But CNE wrote when complain toss-up there is this kind of at the sum- could “do business through anymore” mary judgment stage this channel as to how the evi- —the being weighed, Stephen “channel” of Asset be which inter- dence should or. Recovery. disagreements pretation plausible, As more the evidence is between continued, Recovery question go jury. CNE and must In this case, later again question wrote whether the October disabused response, BlackBerry repre- October communications notion that Asset “Sorry, sentative told but I don’t CNE CNE: get BlackBerry’s agent wish is a yourself middle interpreting of Stephen relationships important requires weighing such are as,a, To would be myself suggest RIM I ourselves whole. evidence. decide you engage I in an we are Stephen. need deal exercise *9 n summary permitted wpuld ex- preclude from
phase,' and trial ercising its to a constitutional
jury. majority’s I
Finally, briefly address “commercially sophis-
point that CNE is a (i.e., party whose business model
ticated”
buying reselling parts) near-
ly . Recovery. identical. suggest that be- majority,,seems to
The. its own
cause CNE conducted business
autonomously, and behalf
prinсipal, CNE have known should Recovery independent was also an I
actor not an agree. Why I could it not
am certain compahy
be the case that one conducted independently and another business the same business as an
conducted principal? Regardless,
of a extent CNE and Asset is relevant
Recovery engaged the same busi-
ness, is, again, something jury weigh, along rest of the evi- with the
dence, determining it was whether rea- n for CNE to that Asset sonable believe agent. reasons, respectfully
For I these dissent majority’s holdihg ques- apparent authority.
tion of WALSH, Plaintiff, Appellant
Siobhan SYSTEMS, INC.,
TELTECH
Defendant, Appellee.
No. 15-1987. Appeals,
United States Court
First Circuit.
2,May notes dealing” control Asset was that- Asset of is over such rеlevant “course for of the-passing ascertaining as a “mere conduit the existence au- acted Tank, Inc., Blackberry E. prices thority. Binkley terms betweenJ Co. v. 831 [and] (1st Cir.1987); BlackBerry’s generally and CNE.” “control” over see 337 (“A to, l-303(b) most, § operations ch. Asset’s extended Mass. Gen. Laws ability sequence is a conduct dealing’ decline sell Asset its ex ‘course inventory price concerning cess if the previous Asset named transactions high if enough parties particular was not or Asset to a transaction that stated ment); 1121- establishing Theos & N.E.2d at regarded as fairly to be is (inference understanding for apparent authority inter- unrea- common basis expressions parties’ pres- on preting party where relied sonable third conduct.”). parties’ prior Pointing principal’s logo ence of and name would-be here, fairly argues transactions displayed agent’s invoices and putativе reasonably could a factfinder conclude business, place addition that, transactions in given origin by by agent). putative statements made request that given BlackBerry’s dissenting colleague pos- Our nevertheless orders list as interpreted perhaps its that reasonably supplier, could have- you-deal-with-Asset Berry’s October BlackBerry was its formed a belief that simply indicating as that Black- directives acting only as counterparty, with Berry, suрplier, had in-house and out- selling agent. agents, side and CNE need deal with CNE, problem though, is that latter. we find difficult read While subsequent phone emails and conver the communications in in this man- context in October constituted obvi ner, sation simpler is that CNE there- express ous clarification that should changed after to list order forms relying- any of- have disabused simply There no rea- is respective relationships. such view the sonable basis to claim that CNE thereaf- Prop. Ins. Hudson Mass. Under ter viewed as its supplier.4 Cf. Ass’n, writing 386 Mass. CNE, lastly, points out that Asset never (1982) (apparent authority con physical possession goods took principal [that] ferred “conduct operation”, was a “one-man person reasonably to causes a third be offices, run from lacking Miele’s warehous particular person that a has ... lieve of its It was clear to es own. never (citation omitted)); authority” see [such] theless, in reselling BlackBerry’s ex (Second) generally Agen Restatement inventory, cess his own “act[ed] §cy, (“Apparent authority cmt. c exists name to the prop receive[d] title only the extent that it is reasonable erty which he thereafter to trans [was] ... person the third to believe that the (Second) Agency fer.” Restatement authorized.”). of the Oc § any 14K cmt. a. reason Nor communications, tober 2012 the reason why pass title to the could ableness of belief that