MEMORANDUM OF OPINION
This adversary proceeding, easily resolved once the merits are reached, presents a thicket of legal issues — post-confirmation subject matter jurisdiction, res judicata and other equitable defenses (and whether those unpleaded affirmative defenses were waived), standing to assert the claims contained in the complaint, amendment of the pleadings pursuant to Fed.R.Civ.P. 15 to conform to the pretrial order and proof, and choice of law— that must be cleared away before the merits of the claims can be reached. The plaintiffs, Cross Media Marketing Corporation and its wholly owned subsidiary, Media Outsourcing, Inc. (collectively, “Cross Media” or the “Plaintiff’), were debtors in a chapter 11 case filed in this Court on June 16, 2003. A liquidating chapter 11 plan was confirmed on May 19, 2004, and became effective on July 23, 2004. 1 The case has not yet been closed however.
On October 20, 2005, Cross Media commenced this adversary proceeding against CAB Marketing, Inc. and Carol Bolak (collectively the “Defendants”). The Plaintiff alleged that Defendants misappropriated Plaintiffs customer lists and other trade secrets, engaged in unfair competition through deceptive marketing, tortiously interfered with Plaintiffs existing and prospective business relations, were unjustly enriched by the misappropriation of the customer lists, and that Carol Bolak, formally employed by Cross Media, diverted corporate opportunities and breached her duty of loyalty to Plaintiff. In the joint pretrial order Defendants raised two issues of law, contending that Plaintiff lacked standing to bring these claims and that Plaintiffs claims were barred by the doctrines of res judicata, judicial estoppel and/or equitable estoppel. The Court conducted a two-day trial on December 4 and 5, 2006. Thereafter, the parties submitted post-trial briefs, and on February 7, 2007, the Court heard closing arguments. The following constitute the Court’s findings of facts and conclusions of law pursuant to Fed.R.Civ.P. 52(a) made applicable to this adversary proceeding by Fed. R. Banke.P. 7052.
I. BACKGROUND 2
Cross Media, primarily through telemarketing, sold magazine subscriptions to consumers who purchased “bundles” of several magazines with subscription periods ranging from one to four years. (PTO at 3). Cross Media also engaged in the business of renewing these subscription bundles for those customers whose subscriptions were about to expire (the “Renewal Business”). Through the course of its business, Cross Media compiled lists of its customers, which included confidential customer information including: the customer’s name, address, origin of the source lead, credit or debit information, titles of magazines the customer subscribed to, current subscriptions up for renewal and other miscellaneous information (the “customer lists”). (PTO at 3). The software used to compile the customer lists was unique to Cross Media’s magazine business and access to the customer lists was protected by a three-tier security structure that only certain employees had access to based on their role in the company. (Tr. (12/4) at 70, 71).
A separate part of Cross Media’s business involved the acquisition and sale of potential customers, known in the industry as “leads.” (PTO at 3). Leads provide the key contact information for customers, to try to sell magazine subscription bundles. (Tr. (12/4) at 65). Cross Media acquired leads through third parties and either contacted the leads or sold the leads to independent telemarketing dealers who contacted the potential consumers directly. (Tr. (12/4) at 65; PTO at 3). If the independent dealer made a magazine subscription sale through a lead provided by Cross Media or another lead source, the dealer would then “clear” the sale through Cross Media or another clearinghouse and would receive a commission on the sale. (Tr. (12/4) at 65-66; PTO at 3).
The customer lists differ from the leads lists, as the customer lists provide information about unique attributes of the customer after the customer has gone through the entire sales process. (Tr. (12/4) at 67). For example, the customer lists include key contact information about the customer, payment method, as well as the particulars of the magazine bundle, whether or not the customer accepted a cross sale, an up sale, or down sale offer of a magazine
Carol Bolak’s Employment at Cross Media
Carol Bolak (“Bolak”) was employed by Cross Media and its predecessor entity for over ten years. (PTO at 5). Bolak served as a lead broker for Cross Media until her termination in February 2003. (PTO at 5). As a lead broker, Bolak’s responsibilities included contacting other lead brokers from whom Cross Media purchased names of potential magazine subscribers, managing the list of potential magazine subscribers, determining which entities were not viable leads, and distributing a revised list to dealers. (PTO at 5). In February 2003, Bolak was released from employment at Cross Media. 3 (Tr. (12/5) at 57).
In October 2002, while still employed at Cross Media, Bolak formed CAB Marketing, Inc. (“CAB”), but CAB did not conduct business until after Bolak’s termination from Cross Media. (Tr. (12/5) at 64). Bolak formed the corporation because she recognized that Cross Media was having financial difficulties and could soon go out of business. Id. Bolak formed CAB for the purpose of conducting business as a lead management company for acquiring and selling leads, (Tr. (12/5) at 65), and the company also did business as Community Reading Club of Canton, for the portion of the business that cleared magazine orders for independent dealers. (PTO at 8; Tr. (12/5) at 68-69).
Brad Barlow & the BCM Partnership
Beginning in 2000, Brad Barlow became the director of sales at Cross Media, and his duties included overseeing the renewal department. (PX 9 at 10). In June 2003, when Cross Media initially closed its renewal department upon filing for bankruptcy protection, Barlow was terminated along with the rest of the sales department. (PTO at 6, 9). In the summer of 2003, after Barlow had been laid off, Carol Bolak, Marcella Jones (another former Cross Media employee), Brad Barlow, and Robert Bolak (an independent dealer), discussed forming a partnership called “BCM.” (PTO 8-9; Tr. (12/5) at 23). The partners agreed to divide profits equally, each receiving 25%, and attempted to hold regular meetings. (PTO at 9; Tr. (12/5) at 24). The purpose of this business was to obtain potential renewal orders from Tom Meehan, an independent magazine dealer. (Tr. (12/5) Jones testimony unavailable);
4
(Tr. (12/5) at 76). Meehan sent leads to CAB and CAB forwarded these leads to Barlow who was in charge of contacting the potential customers. (Tr. (12/5) at 25-28). Barlow would then forward any sales to CAB to “clear” the orders. (Tr. (12/5) at 26-28). Jones contributed to the partnership through her involvement in back office operations at CAB, and she also obtained additional renewal orders from
In July 2003, when Cross Media decided to reopen its renewal department, it rehired Barlow to again manage the department. (PTO at 6, 9). Between June 2003, when Barlow was terminated by Cross Media, and July 2003 when Barlow was rehired, Barlow hired key Cross Media employees including Rennie Abrams to work for a company that he later incorporated as “A Magazine Café.” 5 (PTO at 9). When Barlow was re-hired by Cross Media he did not disclose his involvement with A Magazine Café. (PTO at 9). While Barlow worked at Cross Media, Rennie Abrams ran A Magazine Café’s day to day operations. (Tr. (12/5) at 78).
The purpose of A Magazine Café’s operations was to contact the potential renewal orders that Barlow received from CAB, pursuant to their agreed venture. (Tr. (12/5) at 27-28). Barlow also obtained cold leads from independent sources and contacted them, although this was not part of the original plan contemplated by BCM. (PX 9 at 35). Problems soon arose between Barlow and the other BCM partners. Barlow had attempted to independently acquire a PPSB license, and he was obtaining leads from sources other than CAB, in contravention of the partnership agreement. (Tr. (12/5) at 79). In March or April 2004, the remaining partners— Carol Bolak, Marcella Jones, and Robert Bolak — stopped sending potential renewal orders to Barlow and severed their business relationship with him. (Tr. (12/5) at 82).
Discovery of Misappropriation
Cross Media began experiencing financial difficulties in 2002, and on June 16, 2003, it filed for bankruptcy protection. (PTO at 4-5, 6). Upon commencement of the bankruptcy case, Cross Media closed its entire sales and marketing department, terminated its sales force and reduced the number of employees from 750 to 40. (PTO at 6). Cross Media maintained only those employees needed to collect the remaining accounts receivable, manage its renewal portfolio, and wind-down the company’s affairs. (PTO at 6). Initially, as part of the wind-down process, Cross Media closed its magazine renewal department. But, in July 2003, Cross Media reopened its renewal department, rehired Barlow as its manager, and directed all of its marketing efforts toward its renewal business, until February 2004 when the department was again closed. (PTO at 7).
Members of the renewal department had direct access to those customers whose accounts receivables had matured. (Tr. (12/4) at 77). Upon successful collection of the accounts receivable from a current customer, the customer’s name would return to the queue and a member of the renewal department would call the customer in attempts to renew the customer’s subscription.
Id.
As head of the renewal department, Barlow had direct access to the renewals and reclamations
6
modules of the customer lists. (Tr. (12/4) at 78). However, Barlow’s access was limited to print
However, in June 2003, Cross Media discovered that an anonymous party was attempting to auction its customer lists on the internet. (PTO at 6);
Cross Media Mktg. Corp. v. Nixon,
Adv. Proceeding No. 03-08278 (ECF Doc. No. 69) (Bankr.S.D.N.Y. April 6, 2006),
aff'd,
No. 06 Civ. 4228,
In August 2003, during routine calls to renewal customers, notifying them of a promotion and advising them that their subscriptions were due for renewal, Cross Media discovered that third-party competitors had already contacted its customers seeking to secure their renewal business. (PTO at 7). During this period, numerous Cross Media customers declined to renew their subscriptions with Cross Media because they believed that they had already renewed these subscriptions with Cross Media, when they had in fact renewed with another entity. (PTO at 7). These customers informed Cross Media that these representatives knew the exact magazines to which they had subscribed, knew their personal identification information, and some customers indicated that the representatives possessed their credit card information. (PTO at 7). Additionally, some customers indicated that these entities had invoiced or charged customers amounts that had clearly exceeded the limit that Cross Media representatives were authorized to charge. (PTO at 7). The information that these representatives possessed was not publicly available, but was something that was maintained in Cross Media’s customer lists. 9 (PTO at 7).
In October 2005, Cross Media sold approximately 391,000 customer accounts (extracted from the customer lists) with open receivable balances to Cavalry Portfolio Services (“Cavalry”). (PX 26 at 11; PX 27). Plaintiff has been unable to access its original customer lists with all of its 944,000 customers, which would indicate those customers who had paid in full and were not delinquent. (PX 26 at 20). CAB’s customer list of 1,450 names was compared against the 391,000 names sold to Cavalry, and seven customers with matching names and addresses were found to be on both lists. (PX 26 at 18-25).
II. DISCUSSION
A. Subject Matter Jurisdiction
This adversary proceeding, which alleges pre&emdash;and post-petition misconduct by Defendants, was brought after the confirmation of the Plaintiffs confirmed chapter 11 liquidation plan. Although the parties have not challenged the Court’s jurisdiction in this proceeding, the court has an obligation to inquire
sua sponte
into its subject matter jurisdiction.
In re Recticel Foam Corp.,
In the pleadings and the joint pretrial order the parties disputed whether the matter before the Court was a core proceeding pursuant to 28 U.S.C. § 157(b)(2). However, on the second day of trial, on
B. Unpleaded Affirmative Defenses
Defendants now contend that Plaintiffs claims are barred by res
judica-ta
by virtue of the Plaintiffs confirmed chapter 11 plan, which Defendants assert did not expressly preserve the claims against Defendants in this adversary proceeding. Defendants waived the
res judi-cata
defense by failing timely to assert it in their answer or amended answer. Under Federal Rule of Civil Procedure 8(c), made applicable by Rule 8 of the Federal Rules of Bankruptcy Procedure, parties are required to raise affirmative defenses, such as estoppel and
res judicata,
in the pleadings.
10
Fed.R.Civ.P. 8(c). It is a generally accepted principle that a party’s failure to plead such affirmative defenses results in the waiver of those defenses. 5 Charles Alan Wright & Arthur R. Miller, FEDERAL PRACTICE & PROCEDURE § 1278 (3d ed.2006) (cases collected);
see also Arizona v. California,
In
Evans v. Syracuse City Sch. Dist.,
In the instant case, Defendants failed to raise any affirmative defenses until the eve of trial. It was not until November 29, 2006, only days before trial, that Defendants first raised the affirmative defense of
res judicata,
judicial estoppel, and/or equitable estoppel in the Joint Proposed Pre-Trial Order submitted to the Court. Defendants did not move to dismiss these causes of action until December 4, 2006, the first day trial. Defendants failed to raise these affirmative defenses in the answer or the amended answer, dated December 28, 2005, one year prior to the submission of the Joint Pretrial Order. Further, Defendants amended answer only contained a general defense for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) and a general equitable defense stating that the “[p]rinciples of waiver, estoppel, laches and equity provide Defendants a defense to the cause of action alleged in the complaint.” (Amend. Answer ¶¶ 69, 71);
see Saks v. Franklin Covey Co.,
The affirmative defenses that Defendants now seek to assert were available at the pleading stage. Defendants’
res judi-cata
defense is based on the assertion that Plaintiff failed properly to preserve all claims against Defendants in its confirmed chapter 11 plan. Plaintiffs chapter 11 plan was confirmed on May 19, 2004, approximately one year and five months before this action was commenced. As such, Defendants cannot allege that the
res judi-cata
defense was unavailable at the commencement of this litigation. Accordingly, on the eve of trial and almost one year after Defendants submitted their amended answer, to allow Defendants now to raise these defenses, would unduly prejudice the Plaintiff.
See Evans,
Even if Defendants timely plead the defense of
res judicata,
Plaintiffs claims would survive dismissal because the elements of
res judicata
have not been met.
Res judicata
precludes the parties from re-litigating claims if the earlier decision was (1) a final judgment on the merits, (2) by a court of competent jurisdiction, (3) in a case involving the same parties or their privies, and (4) involving the same claim.
In re Indesco Int’l, Inc.,
It is well settled that a bankruptcy court’s order confirming a chapter 11 plan is treated as a final judgment on the merits with full
res judicata
effect.
Goldin Assoc., LLC v. Donaldson, Lufkin & Jenrette, Inc.,
No. 00 Civ. 8688,
In the instant case, the Plaintiffs chapter 11 plan cannot be considered a final judgment on the merits for Defendants because Defendants are not bound by the Plan. Defendants were not creditors or a party in interest in the chapter 11 case and therefore are not bound by it. Further, there is no identity of parties between the bankruptcy case and the adversary proceeding.
See LJM2 Co-Inv., L.P. v. Dodson (In re LJM2 Co-Inv., L.P.),
Upon review of the Plaintiffs chapter 11 plan, Defendants’ challenge to Plaintiffs standing to bring suit must fail. Plaintiffs standing to sue is challenged on two grounds. First, Defendants assert that Plaintiff lacks standing to litigate these causes of action because section 5.13 of the Plaintiffs chapter 11 plan transferred all “Other Actions” and “Avoidance Actions” to the Unsecured Creditor Trust. Defendants assert that Plaintiffs causes of action falls into the definition of “Other Actions,” preventing the Plaintiff from bringing suit. Second, Defendants assert that all other property of the Plaintiffs estate not otherwise distributed by the Plan’s effective date was vested in Reorganized Cross Media, an entity that Defendants assert is separate and apart from the Plaintiff. The Court will address each issue in turn.
Section 1141(b) of the Bankruptcy Code states that “[e]xcept as otherwise provided in the [chapter 11] plan or the order confirming the plan, the confirmation of the plan vests all of the property of the estate in the debtor.” 11 U.S.C. § 1141(b). Section 1123 of the Bankruptcy Code governs the contents of the chapter 11 plan. Section 1123(b)(3)(A) and (B) provide as follows:
(b) Subject to Subsection (a) of this section a plan may — ...
(3) provide for—
(A) the settlement or adjustment of any claim or interest belonging to the debtor or to the estate; or
(B) the retention and enforcement by the debtor, by the trustee, or by a representative of the estate appointed for such purpose, of any such claim or interest.
11 U.S.C. § 1123(b)(3)(A) & (B).
Unless a chapter 11 plan provides for the retention and enforcement of a claim or interest in an entity other than the debtor, the claim will vest in the reorganized debtor.
Section 5.13(a) of the Plaintiffs chapter 11 plan, “Transfer of Rights of Action,” states in pertinent part:
(a) Except as otherwise specifically provided in this Plan, in accordance with section 1123(b) of the Bankruptcy Code, on the effective Date, the Debtors shall transfer the Other Actions and Avoidance Actions ... to the Unsecured Creditor Trust.... The Unsecured Trust Administrator shall retain and may exclusively enforce any and all such Avoidance Actions and Other Actions transferred, and shall have the exclusive right to pursue, institute, abandon settle or compromise any and all such Avoidance Actions or Other Actions transferred.
(Plaintiffs Third Amended Joint Plan, § 5.13, p. 19 (May 19, 2004)).
Plaintiff has raised six different tort related causes of action against CAB Marketing, BCM partnership and Carol Bo-lak. 13 Defendants assert that Plaintiff lacks standing because these claims are included in the definition of “Other Actions” and were therefore transferred to the Unsecured Trust Administrator for enforcement. “Other Actions” is defined in the Plan as:
[A]ll actions, causes of action, suits or claims of the Debtors or their estates arising under any theory of law or equity, including for breach of contract,breach of fiduciary duty, negligence, tort or otherwise, with respect to former officers and directors of the Debtors or subsidiaries of the Debtors or that may be satisfied from that certain directors’ & officers’ insurance policy, or against prepetition professionals or agents of the Debtors (other than parties released under the Plan).
(Plaintiff’s Third Amended Joint Plan, § 1.61, p. 7).
As evidenced from the language in the Plan, this definition does not encompass all actions against any prospective defendant, but it could include Carol Bolak if the Plan considered prepetition former employees to be agents of the Plaintiff. Under the Plan definition of “Other Actions,” Plaintiff transferred all claims “arising under any theory of law or equity” against “prepetition agents of the Debtors” to the Unsecured Creditor Trust. Since Carol Bolak was a former prepetition employee of the Plaintiff, as a matter of contract construction, if the term employee is used interchangeably with the term agent, then all claims against Carol Bolak will fall into the category of “Other Actions” and Plaintiff will lack standing to pursue these claims.
The Plaintiffs chapter 11 plan and the accompanying disclosure statement (hereinafter the “Disclosure Statement”) use the term “agents” and “employees” in many different contexts.
14
There are several instances in both the Disclosure Statement and the chapter 11 plan where the words “agent,” and “employee” are used consecutively.
15
Furthermore, there are several instances in the chapter 11 plan where the drafters will only refer to either “agents” or “employees” without referring to the other.
16
From these examples, and
Defendants also challenge Plaintiffs standing to bring suit based on the theory that other property of the estate not otherwise distributed by the Plan’s effective date was vested in Reorganized Cross Media, an entity that Defendants assert is separate and apart from the Plaintiff. The Court must look elsewhere in the Plan to determine if Defendants’ second challenge to Plaintiffs standing has merit. Under sections 5.7 and 5.11(b)(iv) of the Plan, the remaining causes of action are vested in Reorganized Cross Media.
18
The Court must now determine if Plaintiff and Reorganized Cross Media are substantially the same entity, entitling the Plaintiff to bring these causes of action against Defendants. Defendants assert that Plaintiff, the debtors in possession, are a separate entity from Reorganized Cross Media and, therefore, Plaintiff lacks standing to bring these claims. To support Defendants’ argument, they point to sections 1.24, 5.7, 5.8 and 12.1(n) and (q) of the Plan to emphasize
Sections 5.3
20
of the Plan addresses the status of Reorganized Cross Media and makes clear that “Cross Media shall continue to exist as Reorganized Cross Media after the Effective Date.” It simply requires Cross Media to amend its Charter and By-Laws to reflect the merger with former subsidiary Media Outsourcing.
See, e.g., In re Boston Reg’l Med. Ctr., Inc.,
E. The Rule 15 Motion to Amend the Pleadings is Granted
In Plaintiffs post-trial memorandum of law, it moved pursuant to Rule 15(b) of the Federal Rules of Civil Procedure to amend and conform the pleadings to the evidence presented at trial, arguing that the parties expressly consented in the joint pretrial order to try issues relating to the BCM Partnership.
21
Rule 15(b) is “mandatory, not merely permissive,” and requires that “issues that are tried, though not raised in the pleadings, be treated as though they were raised in the pleadings.”
Ostano Commerzanstalt, v. Telewide Sys., Inc.,
In considering whether to allow an amendment pursuant to Rule 15(b), the court must consider “whether the new issues were tried by the parties’ express or implied consent and whether the defendant would be prejudiced by the implied amendment....”
United States v. 890 Noyac Rd.,
Plaintiffs motion to amend the pleadings to have it conform to the evidence presented at trial is granted because Defendants stipulated to certain facts regarding the BCM partnership in the pretrial order (PTO at 8), the issue of BCM’s liability was clearly identified as a legal issue for trial (PTO at 19), and without any objection from Defendants, several witnesses testified about the BCM partnership at trial.
22
The purpose of Plaintiffs motion is to modify its legal theory to impose liability on Bolak both vicariously because of the alleged misconduct of other BCM partners and based on her own allegedly tortious conduct. Defendants were on notice that Plaintiff was seeking to impose liability on Bolak through the BCM partnership and they defended by challenging the formation of a partnership in the factual contentions in the pretrial order (PTO at 16-17), and at trial during the direct examination of Carol Bolak and Marcella Jones.
See supra,
n. 22. Further, at trial, Defendants failed to object when Plaintiff raised issues on cross-examination relating to the BCM partnership.
23
There
F. Choice of Law
The Court will apply New York state law to all of the state law causes of action alleged. None of the parties raised any choice of law issues in the pleadings, joint pretrial order or post-trial briefing. For the most part, the parties briefed the issues applying New York law. The Plaintiff was a Georgia corporation with its principal place of business in Georgia. Bo-lak, Jones and Barlow were employed by Cross Media in Georgia, and the alleged tortious conduct took place in Georgia. The Court raised the choice of law issue during the closing arguments. (Tr. (2/7) at 5). The parties then agreed that the Court should apply New York law. (Tr. (2/7) at 5);
see Am. Fuel Corp. v. Utah Energy Dev. Co.,
G. Plaintiff Has Failed to Prove Its Claims By a Preponderance of the Evidence
Finally, reaching the merits of the claims, the Court concludes that Plaintiff has failed to prove any of its claims by a preponderance of the evidence. Each claim will be examined in turn, but the overriding conclusion is that Plaintiff failed to establish that Bolak, or in the case of the activities of the BCM partnership for which Bolak may be chargeable, that Bo-lak, Barlow, Jones, or anyone else acting on behalf of the partnership, took or converted any of Cross Media’s trade secrets or corporate opportunities in the form of its customer lists.
Plaintiff offered no direct evidence, by testimony or documents, that Defendants took or converted any trade secrets from Cross Media. While it is clear from the earlier Nixon adversary proceeding that Cross Media’s customer lists were improperly taken by someone — Nixon, and for all the Court knows, by others as well — no direct evidence was presented to show that these Defendants took the lists. The un-controverted evidence shows that Cross Media suspected Bolak of diverting potential customer leads, or of participating with or assisting others in doing so. (PX 7 at 10-12; PX 8 at 8-9). Bolak’s employment with Cross Media was terminated based on these suspicions. (Tr. (12/5) at 57). But suspicions are not enough to establish misappropriation or the other alleged torts by a preponderance of the evidence as required for liability. 24
When and how A Magazine Café received information about Frey, utilized in the telephone call to Frey, was never established at trial. While it could well have come in some way at some time from Cross Media, it likewise could have come from some other source, as Frey purchased products from other telemarketers as well. 25 (Tr. (12/4) 43, 46, 106-07; PX 1 at 488-490). Plaintiff was unable to offer any proof that Bolak, Barlow, Jones, or anyone else who was associated with Cross Media took or obtained the information about Frey from Cross Media and gave it to A Magazine Café.
Over the life of its magazine subscription business, Cross Media had 944,000 names apparently reflected in its computerized customer lists. (PTO at 14). Because of the shut-down and liquidation of Cross Media’s business following its bankruptcy, Plaintiff was unable to offer proof of the actual customer lists. (PX 16 at 26-28). Apparently, no paper copies ever existed (Tr. (12/4) at 128), and Plaintiffs evidence established that neither Bolak nor Barlow or any BCM partner had access to or the ability to copy or download Cross Media’s electronic customer list files because of security protection built-in to the system. (Tr. (12/4) at 78, 123, 126-27). Under these circumstances, while Plaintiff cannot be faulted for its inability to produce the customer lists during discovery or to offer the lists in evidence at trial, Plaintiff also cannot be excused from meeting its evidentiary burden in proving its claims.
As part of its liquidation, Cross Media sold 391,000 past-due customer accounts (part of its much larger customer lists) to Cavalry. (PX 26 at 11). Only seven former Cross Media customers from this list had matching names and addresses to names found on CAB’s 1,450 name customer list. (PX 26 at 18-25). Plaintiff acknowledged that it did not contact any of these matches other than Frey to find out whether Defendants made any improper solicitations of these customers, and Plaintiff offered no other evidence to support liability against Defendants for these accounts. No evidence was presented that any additional names on CAB’s list
In short, the Court is left at most with some proof that one of 944,000 Cross Media customers may have been improperly-solicited by or on behalf of Defendants resulting in a single transaction totaling $24.57 that was promptly reversed and for which Plaintiff admits that it suffered no damages. (PX 2 at 489-90; Tr. (2/7) at 32).
While the Court has concluded that judgment should be entered for Defendants on all claims because of the failure of the proof, the Court will nevertheless briefly address each of the theories of liability advanced by Plaintiff. Plaintiff asserts that Bolak is liable vicariously as a partner of BCM for tortious conduct by Barlow in furtherance of the partnership business, and that she and CAB are also liable directly based on her own conduct. As explained below, the Court concludes that Plaintiff has succeeded in proving that the BCM partnership existed, and that Bolak would therefore be liable vicariously for tortious acts committed by Barlow in furtherance of the partnership business if the proof supported that conclusion. Plaintiff, however, failed to prove that Barlow on behalf of the BCM partnership misappropriated Cross Media’s trade secrets. Plaintiff also failed to prove that Bolak and CAB are liable directly for Bo-lak’s own conduct as Plaintiff failed to prove that Bolak misappropriated the customer lists.
H. Bolak Would Be Jointly and Severally Liable As a BCM Partner
At trial, Bolak disputed the existence of the BCM partnership, and also disputed that Plaintiff established any actionable wrongs by BCM for which she could be liable.
To demonstrate the existence of a partnership, a plaintiff must prove four elements: (1) the parties’ sharing of profits and losses; (2) the parties’ joint control and management of the business; (3) the contribution by each party of property, financial resources, effort, skill, or knowledge to the business; and (4) the parties’ intention to be partners.
Kidz Cloz, Inc. v. Officially For Kids, Inc.,
The trial testimony of Marcella Jones and Carol Bolak, and the deposition testimony of Brad Barlow introduced at trial, along with supporting documentary evidence, established that the parties intended to and did form a partnership. See (PX 9 at 101-04, 119-20) (Barlow’s testimony regarding the formation of the partnership). Both Jones and Bolak admitted that it was the parties’ intent to create a partnership. (Tr. (12/5) at 23, 39, 97). In email correspondence between the parties they referred to each other as partners and indicated that money left after expenses was to “pay back partners.” (PX 11 at 308-309). At one point, the parties contemplated trying to create a formal agreement. (Tr. (12/5) at 24). Evidencing that the partners shared joint control and management, the BCM partners attempted to hold regular meetings to discuss the business affairs of the partnership, including the number of orders that had been cleared and how the partnership could obtain additional subscription orders. (Tr. (12/5) at 24-25, 97; PX 9 at 152-153). The partners also scheduled a meeting to discuss costs and division of profits. (PX 11 at 305-306).
Furthermore, there is considerable testimony to substantiate the claim that each partner contributed property, financial resources, effort, skill, or knowledge of the
Most telling, both Jones and Barlow attested to the fact that each of the BCM partners was entitled to and received a 25% share of the profits. (Tr. (12/5) at 30; PX 9 at 101-104, 197). It was established in Bolak’s testimony and in emails documenting partnership distributions, that profits were split equally among the four parties. (PX 11 at 308-309; Tr. (12/5) at 97, 107-108). In a December 2, 2004 email from Carol Bolak to Barlow, Jones and Marsha Mann, the partnership’s accountant, Bolak informed Barlow of an unaccounted for balance and informed him that he was entitled to % of that amount. (PX 11 at 308). After indicating that she, Jones and Robert Bolak were paid their share, she also stated that Donnie West was due a one-time payment for work done for A Magazine Café since West “was not a partner and not entitled to any compensation from profits.... ”
Id.
Although no evidence was presented indicating that the partners agreed to equally share in the losses, evidence that each individual receives a share of profits is
prima facie
evidence that the individual is a partner in the business.
Olson v. Smithtown Med. Specialists, P.C.,
As a partner in the BCM partnership, under New York law, Carol Bolak would be jointly and severally liable for the wrongful acts or omissions performed by another partner while acting in the ordinary course of partnership business. N.Y. PartneRship Law § 24 (McKinney 2006); N.Y. Partnership Law § 26(a) (McKinney 2006) (partners are held jointly and severally liable for acts chargeable to the partnership under § 24). Under New York law, general partners have joint and several liability for torts committed by the partnership, and plaintiff may bring an action against the partner individually, and does not have to sue the partnership first. Lewis v. Rosenfeld, 138 F.Supp.2d. 466, 476 (S.D.N.Y.2001).
While Plaintiff proved by a preponderance of the evidence the existence of the BCM partnership, Plaintiff failed to prove misappropriation of the customer lists either by Bolak or by Barlow or someone else acting on behalf of CAB or the BCM partnership.
I. Plaintiff Failed to Prove Misappropriation of a Trade Secret by Bolak or Barlow
A plaintiff claiming misappropriation of a trade secret must prove: (1) it possessed a trade secret, and (2) defen
In determining whether information constitutes a trade secret, New York courts have considered the following factors:
(1) the extent to which the information is known outside of the business; (2) the extent to which it is known by employees and others involved in the business; (3) the extent of measures taken by the business to guard the secrecy of the information; (4) the value of the information to the business and its competitors; (5) the amount of effort or money expended by the business in developing the information; (6) the ease or difficulty with which the information could be properly acquired or duplicated by others.
Integrated Cash Mgmt. Servs.,
In a reprise of its evidence in the earlier Nixon case, Plaintiff has easily established by a preponderance of the evidence that its customer lists were protected trade secrets. For the reasons given by Judge Lifland in Nixon, and affirmed by the District Court in that case by Judge Mukasey, I find that Cross Media’s customer lists were protected trade secrets.
In
Nixon,
the evidence was clear that the defendant misappropriated Cross Media’s entire customer lists, offering them for sale over the internet.
Nixon,
In this case, the same protected trade secrets are at issue, but the Plaintiff failed to prove by a preponderance of the evidence that the customer lists were misappropriated by the Defendants, or by Barlow or anyone else acting for the BCM partnership.
1. Plaintiff Failed to Prove that Bo-lak Misappropriated the Customer Lists
Bolak was employed by Cross Media as a lead broker. (PTO at 5). Her duties included purchasing names of potential magazine subscribers and distributing a revised list to targeted dealers. (PTO at 5; Tr. (12/5) at 48-49, 51-52). In the winter and the following spring of 2002, Cross Media began to monitor the activity of suspected employees, including Bolak, due to a noticeable decline of verified sales. (PX 7 at 10-12). Bolak was ultimately fired in 2003, but was not fully informed of the circumstances for her firing. (Tr. (12/5) at 57-58). When Bolak heard rumors that she had been fired for theft and fraud, she contacted Andy Nelson, to whom she had reported, to explain the conduct that management may have misinterpreted. (Tr. (12/5) at 58-64; DX L 20-22). Bolak had been contacting dealers that Cross Media was no longer doing business with due to downsizing, and helped them place business with magazine
Even if Bolak diverted leads to other dealers, Plaintiff has not established that these leads were part of Plaintiffs customer lists. (Tr. (12/4) at 66-67) (“explaining that customer lists are different from leads in that a customer list speaks to the unique attributes of a customer after they’ve gone through the entire [described] process”). Instead, Plaintiff attempts to use the business and an allegedly personal relationship between Bolak and West to establish that West was remotely accessing the customer lists through Ricky Wilson, a domain administrator who had access to all systems at Cross Media. (Tr. (12/4) at 136, 138, 150). However, Plaintiff failed to provide any evidence establishing that it was possible to remotely access and download Cross Media’s customer lists. Plaintiff introduced testimony of Chris Hamburg, the former vice president of operations, who said that Wilson’s activities were being monitored, but Plaintiff failed to provide any evidence that Wilson had downloaded the customer lists. (Tr. (12/4) at 122-136). Plaintiffs suspicions about Bolak, West or Wilson are not a substitute for proof. Therefore, Plaintiffs has failed to prove by a preponderance of the evidence that Bo-lak, on her own behalf or on behalf of CAB, misappropriated Plaintiffs customer lists.
2. Plaintiff Failed to Prove That Barlow Misappropriated The Customer Lists
The evidence failed to establish that Barlow had access to Cross Media’s customer lists. Chris Hamburg testified that when Barlow returned to Cross Media as renewal manager, when that business was reopened after the bankruptcy filing, Barlow’s access was limited to the renewals and reclamations modules of the customer lists. (Tr. (12/4) at 78). The renewals modules only included information about those customers whose payment structure was about to be completed and was up for renewal. (Tr. (12/4) at 77-78). The reclamation modules only included information as to customers who during the verification process cancelled their magazine order— the Cross Media representative would attempt to reclaim these orders by selling the customers a smaller bundle. (Tr. (12/4) at 125-26). Further, if Barlow wished to copy even this customer information, he would have had to print each customer form individually — his access did not allow him to download the entire renewal list. (Tr. (12/4) at 78-79). No evidence was presented that Barlow printed-out or took information about even this limited subset of customers from Cross Media’s customer lists.
The only evidence of possible misconduct by Barlow relates to the solicitation of an order from Sandy Frey by Barlow’s business, A Magazine Café, already discussed above,
see supra,
at Section G, which is insufficient to establish liability for misappropriation of Cross Media’s customer lists. The solicitation of Frey is a
During trial Defendants tried to distance themselves from Barlow and A Magazine Café. (Tr. (12/5) 39-40, 42, 77, 79). Bolak and Jones testified that Barlow created A Magazine Café on his own, and that they were not affiliated with it. (Tr. (12/5) 26, 79-80). According to Bolak and Jones, the purpose of the BCM partnership was limited to clearing orders from Tom Mee-han, but the evidence shows that the partnership benefited from clearing at least 600-700 orders from A Magazine Café that were not Meehan orders. (Tr. (12/5) 26-27, 76). The Court concludes that the testimony by Bolak and Jones about their lack of involvement with A Magazine Café is not credible. Rather, A Magazine Café was an entity that Barlow established to utilize his skills to benefit the BCM partnership. The email correspondence between Bolak, Jones, Barlow and Marsha Mann (PX 11 at 308) indicates that as early as December 2, 2004, the BCM partners were aware of A Magazine Café, and the partners had loaned the company money for its operations. Id. Bolak writes in reference to the money received, and monies due to other partners, “[h]ere is what we have now that we have paid back all monies loaned to AMC.... We also agreed to pay Donnie [West] a one time payment of $ 1500 for work that was done for AMC since he is not a partner and not entitled to compensation from profits and was never paid for services due him.” Id. The court understands the reference to “AMC” to mean “A Magazine Café.”
The Court is left with a clear sense that neither Bolak nor Jones was entirely truthful in their trial testimony. Barlow, with whom Bolak and Jones had a serious falling-out, was likewise not a credible witness. But the Court’s discomfort about the testimony of these witnesses is not enough to overcome the lack of proof of misappropriation by or on behalf of Defendants. Plaintiff has simply failed to prove that Barlow, acting on behalf of the BCM partnership, misappropriated Cross Media’s customer lists.
J. Plaintiff Failed to Prove Unjust Enrichment
Plaintiff cannot establish a claim for unjust enrichment because it failed to establish that Defendants misappropriated Plaintiffs customer lists. The elements of an unjust enrichment claim under New York law are (1) a benefit to the defendant, (2) at the Plaintiffs expense, and (3) that “equity and good conscience” require restitution.
Kaye v. Grossman,
K. Plaintiff Failed to Prove Unfair Competition
Plaintiffs claim for unfair competition, based on the misappropriation claim, also must fail. The essence of un
At trial, Plaintiff failed to prove that Defendants misappropriated the customer lists. Therefore, Plaintiff solely relies on the argument that Defendants, through the BCM partnership, engaged in deceptive marketing by “falsely representing” to Plaintiffs customer, Sandy Frey, that they were her magazine subscription company. (PI. Memorandum of Law, at 31; Tr. (12/4) at 20-21). Although Frey testified that the company that called her in March identified itself as her “magazine subscription company,” the caller never identified the company as MOS or Cross Media. (Tr. (12/4) at 36-37). In fact, when Frey called MOS to verify if they had changed their name, in the recorded conversation Frey said, “I got a call from somebody saying they are ACI Magazine. Is that you guys?” (PX 1 at 0002). Furthermore, Plaintiff has admitted that it suffered no damage with respect to the loss of Sandy Frey as a customer. (Tr. (2/7) at 32).
Plaintiff also cannot establish the “bad faith” requirement for its unfair competition claim. Plaintiff asserts that bad faith is clearly established through the misappropriation of Plaintiffs customer lists, but since the Court has not found that Defendants misappropriated the customer lists, the Court does not find that the alleged deception was done in bad faith. Plaintiff has failed to establish that Defendants deceived any other former Cross Media customers. Therefore, this claim also fails.
L. Plaintiff Failed to Prove Tortious Interference with Business Relationships
Plaintiff has failed to establish by a preponderance of the evidence that Defendants have tortiously interfered with Plaintiffs existing business relations. To prevail on a claim for tortious interference with existing business relations, a plaintiff must establish: (1) the existence of a valid contract between plaintiff and a third party; (2) the defendant’s knowledge of that contract; (3) the defendant’s intentional procuring of the breach, and (4) damages.
White Plains Coat & Apron Co., v. Cintas Corp.,
Plaintiff admits that it has not suffered any actual damages with respect to Frey, but instead is seeking punitive damages for the alleged misconduct. (Tr. (2/7) at 32; PL Post-Trial Memorandum, at 32-33). The Court does not need to reach the issue of punitive damages, because Plaintiff cannot establish the third element of the claim, that Defendants intentionally procured the breach of the contract. 30 Plaintiff cannot establish this element because there was no requirement that Frey breach her existing contract with MOS in order to execute a new contract with the Defendants. In effect, Frey executed a new agreement with Defendants that had no bearing on Frey’s prior contract with MOS. If Frey had not contacted MOS about ACI, both contracts would have run simultaneously. Plaintiff has failed to establish that Defendants had the requisite intent to cause the breach of the contract with Frey, because the procurement of the new contract with Frey did not require a breach of the prior contract. Therefore, Plaintiffs claim for tortious interference with existing business relations fails.
M. Plaintiff Failed To Prove Diversion of a Corporate Opportunity
Plaintiff failed to establish by a preponderance of the evidence that Carol Bolak diverted corporate opportunities
The corporate opportunity doctrine prohibits a former employee from utilizing information obtained in a fiduciary capacity to appropriate a business opportunity belonging to the corporation.
American Fed. Group,
Plaintiff failed to prove that Bolak misappropriated the confidential customer lists from Plaintiff while employed at Cross Media, or at any time thereafter.
31
Therefore, Plaintiffs claim of diversion of corporate opportunity cannot rest on this factor and ultimately fails because of this.
See, e.g., Schneider Leasing Plus, Inc. v. Stallone,
Plaintiff fundamentally failed to establish a factual basis for the diversion of a corporate opportunity. While it is true that Bolak did owe a fiduciary duty to Plaintiff, the only possible evidence relating to the diversion of customers occurred close to a year after Bolak was terminated
III. CONCLUSION
For the foregoing to reasons, Defendants are entitled to have judgment entered in their favor on all claims asserted against them. Defendants’ counsel shall prepare and present a judgment in accordance with this opinion.
Notes
. Under the confirmed Plan, Media Outsourcing, Inc. merged into Cross Media Marketing Corporation, and thus did not exist as a separate entity when the adversary complaint was filed. As explained in Section D, infra at 450-51, Cross Media is referred to in the Plan as "Reorganized Cross Media,” but it is merely a continuation of the pre-existing corporate entity. Therefore this Court refers to the two merged entities as "Plaintiff.”
. The following conventions are used in citing to the trial record. The daily transcript is cited by date and page. For example, "Tr. (12/4), at 7” refers to page 7 of the December 4, 2006 transcript. "PX” refers to the Plaintiff's trial exhibits and "DX” refers to the defendants trial exhibits. The Joint Pre-Trial order will be cited as "PTO.”
. Bolak was terminated for suspected theft of leads due to correspondence that had been monitored on Bolak's computer between Bo-lak and Donnie West, a former Cross Media employee. (Tr. (12/5) at 62-63). After meeting with Andrew Nelson, the person Bolak directly reported to at Cross Media, and explaining the communication, Nelson assured her that she was not let go for theft and promised to correct the miscommunication. (DX L at 23).
. The testimony on the second day of trial, on December 5, 2006, was recorded through the court’s ECRO system. The electronic sound file was corrupted and the recorded testimony could not be retrieved. All references to this testimony are made based on the Court's notes from that morning or from the parties recollections.
. Barlow incorporated A Magazine Café on August 8, 2003. (Px. 9 at 24).
. A reclamation order is an order that was submitted for verification, but during the verification process the customer chose to cancel the order — typically because the order was too expensive. (Tr. (12/4) at 125-26). A representative would attempt to contact the customer again and reclaim the customer by configuring a smaller magazine bundle at a less expensive price. (Tr. (12/4) at 126). These reclamation order forms would have included credit card information and the magazines that the customer had initially selected. Id. at 127.
.The adversary proceeding went forward against Marie Nixon only because prior to trial Michael Nixon filed for bankruptcy protection, staying the action against him pursuant to § 362 of the Bankruptcy Code. On the morning of trial, the Bankruptcy Court granted Cross Media’s oral motion to sever the action against Michael Nixon and the action proceeded against Marie Nixon.
Cross Media Mktg. Corp. v. Nixon,
. In computing the actual damages, the Court found that the customer lists contained 944,-000 customers and each lead cost Cross Media $0.25 to develop. (PTO at 6). Therefore, Cross Media was entitled to $236,000 in compensatory damages.
. No evidence was presented at trial further identifying these customers, or indicating that these customers were contacted by CAB or by an entity related to CAB.
. Rule 8(c) provides in relevant part:
In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.
Fed.R.Civ.P. 8(c) (emphasis added).
. In footnote 4 of Defendants trial memorandum, Defendants cite to the Eleventh Circuit to support the proposition that failure to assert an affirmative defense in an answer can be cured by inserting the defense in the pretrial order.
Pulliam v. Tallapoosa County Jail,
. Section 1141(a) provides:
[T]he provisions of a confirmed plan bind the debtor, any entity issuing securities under the plan, any entity acquiring property under the plan, and any creditor, equity security holder, or general partner in the debtor, whether or not the claim or interest, equity security holder, or general partner is impaired under the plan and whether or not such creditor, equity security holder, or general partner has accepted the plan.
11 U.S.C. § 1141.
. The causes of action that Plaintiff has raised, all relating to Plaintiff’s customer lists, are: common law misappropriation, misappropriation of trade secrets, unfair competition, tortuous interference with Plaintiff’s existing and potential business relations, unjust enrichment, and diversion of corporate opportunity by Carol Bolak.
. Since the definition of "Other Actions,” refers to "agents” with a lower-case “a” the court must determine what the drafters intended this term to mean. The use of the term "Agent” with an uppercase "A” is a defined term in the Plan.
. Section L paragraph 4 of the Disclosure Statement states that "all holders of Claims and Equity Interests and other parties in interest, along with their respective present or former employees, agents, officers, directors, or principals, shall be enjoined from taking actions to interfere with the implementation or consummation of the Plan.” Disclosure Statement, § L ¶ 4 (emphasis added). In the section providing for a limited release of the Creditor’s Committee and Professionals, the Disclosure Statement states that "each of their respective current agents, current employees, and current representatives shall be released by the Debtors.” Disclosure Statement, § L ¶ 6. Section 11.6 of the chapter 11 plan, also directed at limited releases of the Creditor's Committee and Professionals, contained identical language. Section 11.6 also provides that "each of their respective current agents, current employees, and current representatives shall be released by the Debtors.” Plaintiff’s Third Amended Joint Plan, § 11, p. 32 (emphasis added). In providing for the release of the Agent and Lender, the Plan states that "the Former Agent and Former Lenders and counsel to the Agent and Lenders and Former Agent and Former Lenders and each of their respective agents, employees, attorneys and representatives shall be release by the Debtors and the Debtors' estates, each of their agents, employees, attorneys and representatives.” Plaintiffs Third Amended Joint Plan, § 11.6, p. 32 (emphasis added).
.The following sections make reference to agents without referring to employees. Section 6.1 of the Plan provides that, “the various transfer registers for each of the classes of Claims or Equity Interests as maintained by the Debtors or their
respective agents
shall be deemed closed.”
Plaintiffs Third Amended Joint Plan,
§ 6, p. 23 (emphasis added). Section 8.3 provides that “a Claim for such damages ... shall not be enforceable against the Debtors, or their respective properties or interests in property as
agents,
successors, or assigns.”
Id.
§ 8, p. 29 (emphasis added). The following sections in the Plan only refer to employees. Section 5.11(c) provides that "[a]ny professionals retained or other
employees
hired by the Plan Administrator shall be entitled to reasonable compensation for services rendered.... The payment of fees and
. Under the confirmed chapter 11 liquidation plan and the Disclosure Statement, Cross Media's unsecured creditors were to receive, among other things, 85 percent (85%) of proceeds, if any, from the Avoidance Actions and Other Actions. Disclosure Statement, § II, p. 3-4. Cross Media’s Lenders, SummitBridge National Investments LLC and Signature Bank, would receive 15 percent (15%) of the net recovery from any Avoidance Actions or Other Actions up to a total amount of $750,000. Plaintiff's Third Amended Joint Plan, § 1.5, p. 7. All remaining actions that are not Avoidance Actions or Other Actions vest in Reorganized Cross Media, and are sold, liquidated or disposed of in a matter compatible with the best interests of the Agents and Lenders. Plaintiff s Third Amended Joint Plan, § 5.7, p. 16. The Lenders will receive 100% of the recovery from these non-Cash assets.
. Section 5.7 "Vesting of Other Assets,” provides:
Other than Cash and as provided under the Plan, the property of the Debtors' estate not otherwise distributed as of the Effective Date shall be vested in Reorganized Cross Media on the Effective Date. Such property shall continue to be subject to the jurisdiction of the Bankruptcy Court. The Plan Administrator shall sell or otherwise dispose of, and liquidate or convert into Cash, any non-Cash assets of the Debtors’ estates in a manner compatible with the best interests of the Agent and the Lenders.
Plaintiffs Third Amended Joint Plan, § 5.7, p. 16.
Section 5.11(b) "Rights, Powers and Duties of Reorganized Cross Media and the Plan Administrator,” provides in relevant part: Reorganized Cross Media shall retain and have all the rights, powers and duties necessary to carry out its responsibilities under this Plan.... [Sjuch rights, powers and duties shall include: (iv) initiating or continuing litigation to recover amounts due to Cross Media.
Plaintiffs Third Amended Joint Plan, § 5.11, p. 17.
. For example, Defendants cite to section 1.24, "Contributed Assets," which refers to "the Debtors, Newco or Reorganized Cross Media or holders of Credit Facility Claims," when addressing possible reserves and remittances of assets. Plaintiff’s Third Amended Joint Plan, § 1.24, p. 3. Section 5.7 provides that "the property of the Debtors’ estate not otherwise distributed as of the effective date shall be vested in Reorganized Cross Media on the Effective Date.” Plaintiff’s Third Amended Joint Plan, § 5.7, p. 16. The Defendants argue that since the Plan refers to them separately they are separate entities.
. Section 5.3, "Continued Corporate Existence; Amended and Restated Charter and By-laws; Dissolution of Reorganized Cross Media,” provides that: "Cross media shall continue to exist as Reorganized Cross Media after the Effective Date in accordance with the laws of the State of Delaware and pursuant to the Amended Charter and By-laws to be filed with the Bankruptcy court as part of the Plan Supplement.” Plaintiff’s Third Amended Joint Plan, § 5.3, p. 14.
.Rule 15(b) provides in relevant part:
(b) Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.
Fed.R.Civ.P. 15(b).
. Both Marcella Jones and Carol Bolak testified about BCM. See Jones testimony (Tr. (12/5) at 22-25, 26, 27-28, 30-31, 33, 39) and Bolak testimony (Tr. (12/5) at 76, 84, 97, 98, 106-108).
. Defendants now object to the amendment on the grounds that Brad Barlow is an indispensable party, and that allowing Plaintiffs new theory would prejudice the Defendants by exposing them to the possibility of incon
. Plaintiff never attempted to impose liability on Defendants for diversion of prospective customer leads. Even if Plaintiff attempted to argue that customer leads were a protectable trade secret that is covered under the misap
. At trial, Marcella Jones testified that one customer could come from various lead sources. (Tr. (12/5) at (unavailable)). If the customer is an impulse buyer, then the customer’s name might appear on several lead lists from sales of exercise equipment, vitamins, or other sources. Id.
. Further, in Plaintiff's Post-trial Memorandum of Law, Plaintiff limits the argument to
. Plaintiff cannot as a matter of law assert that Defendants tortiously interfered with prospective business relations with respect to Frey because Plaintiff closed its renewal department before Frey’s contract was up for renewal. (Tr. (12/4) at 82). Therefore, Plaintiff had no intention of renewing Frey's subscriptions in the future.
. After Frey was asked whether she believed her subscriptions were paid up when she received her statements from MOS, she stated that: "[o]nly after the conversation I had with MOS&emdash;after I called them that day. She said that my magazine subscription had been paid up and was good for another year and I wasn’t going to get another bill for it.” (Tr. (12/4) at 39).
. If this is the case, MOS may have benefited to Frey’s detriment, because it was required to pay for and deliver a years worth of a magazine bundle.
. The facts do point to some evidence that Defendants may have had knowledge of Plaintiff’s prior contract because Plaintiff was aware that Frey was paying $ 15 a month for magazines. (PX 1 at 02).
. This last claim for diversion of corporate opportunity was only brought against Bolak, not against CAB Marketing or BCM.