Bulldog N.Y. LLC v. Pepsico, Inc., Civil No. 3:08cv1110(AWT).

• Decision Date: 31 March 2014
• Docket Number: Civil No. 3:08cv1110(AWT).
• Court: U.S. District Court — District of Connecticut
• Parties: BULLDOG NEW YORK LLC, Plaintiff, v. PEPSICO, INC., and Pepsi–Cola Advertising and Marketing, Inc., Defendants.

8 F.Supp.3d 152

BULLDOG NEW YORK LLC, Plaintiff,
v.
PEPSICO, INC., and Pepsi–Cola Advertising and Marketing, Inc., Defendants.

Civil No. 3:08cv1110(AWT).

United States District Court, D. Connecticut.

Signed March 31, 2014

Motion granted.

[8 F.Supp.3d 157]

Jonathan J. Kelson, Matthew C. Wagner, Diserio Martin O'Connor & Castiglioni LLP, Stamford, CT, for Plaintiff.

Catherine Dugan O'Connor, Day Pitney LLP, One Canterbury Green, Stamford, CT, Elizabeth Ann Alquist, Michael A. Bucci, Day Pitney LLP, Hartford, CT, for Defendants.

RULING ON MOTION FOR SUMMARY JUDGMENT
ALVIN W. THOMPSON, District Judge.

Bulldog New York LLC (“Bulldog”), a Delaware limited liability company with its principal place of business in Connecticut, filed a nine-count First Amended Complaint against defendants Pepsico, Inc. (“Pepsico”) and Pepsi–Cola Advertising and Marketing, Inc. (“PCAM”) (collectively, “Pepsi”). Count 1 alleges breach of contract based on a May 18, 2007 letter of intent between Bulldog and PCAM. Count 2 alleges misappropriation of trade secrets in violation of the Connecticut Uniform Trade Secrets Act (“CUTSA”), Conn. Gen.Stat. § 35–51, based on actions taken by representatives of PCAM and Pepsico, and Count 3 alleges common law misappropriation of trade secrets in violation of New York law for the same actions. Count 4 alleges tortious interference with business opportunity in violation of both Connecticut and New York law based on actions taken by Pepsico and PCAM during the

[8 F.Supp.3d 158]

course of their relationship with Bulldog. Count 6 alleges a violation of the Connecticut Unfair Trade Practices Act (“CUTPA”), Conn. Gen.Stat. § 42–110. Counts 5, 7, 8, and 9 were previously dismissed by the court.

I. Factual Background

In late 2004, Bulldog approached Pepsico and PCAM to pitch the idea of developing a Pepsi-branded consumer experience in Times Square, New York City. This project was codenamed “Sinatra” (the “Bulldog Project”) in order to maintain its confidentiality and to prevent information from leaking to both Pepsi's competitors and customers. The Bulldog Project evolved over time, particularly as it changed potential locations within the Times Square area. On occasion, Bulldog presented to various Pepsi representatives slide shows, referred to as “decks,” demonstrating the potential attractions and aspects of the Bulldog Project, including presentations that referred to the Bulldog Project using the title “Rise.” At least one in-person meeting occurred on Friday, May 4, 2007 between the Bulldog team and the Pepsico and PCAM teams at Pepsi headquarters in Purchase, New York, where a presentation about the Bulldog Project was made. On May 18, 2007, Bulldog and PCAM entered into a letter of intent (the “Bulldog LOI”). It was signed by David Marchi (“Marchi”) on behalf of Bulldog and Russell Weiner on behalf of PCAM. Throughout the parties' relationship, all in-person meetings took place either at the Pepsi headquarters or in Times Square, New York.

Prior to the signing of the Bulldog LOI, a number of emails were exchanged among Pepsico, PCAM, and Bulldog, as well as counsel representing the three parties, to determine the scope of the Bulldog Project at Times Square and to negotiate the language of the Bulldog LOI. The parties agreed that New York law would govern the Bulldog LOI. Both before and after the execution of the Bulldog LOI, Bulldog worked closely with Pepsi's Director of Marketing, Kristina Mangelsdorf (“Mangelsdorf”). Pepsi's then President and CEO of PepsiCola North America and Pepsico Food Service, Dawn Hudson (“Hudson”), was also a party to several emails and meetings with respect to the Bulldog LOI and the Bulldog Project.

On or about June 6, 2007, Mangelsdorf made a phone call to Marchi informing him that Pepsi would not be going forward with the Bulldog Project at Times Square. Subsequent to that phone call, Marchi sent an email to Mangelsdorf requesting, inter alia, that final costs expended by Bulldog during the presentations of the Bulldog Project be reimbursed by PCAM pursuant to the Bulldog LOI. The parties disagree about whether that phone call and email exchange terminated the agreement, or whether the agreement was terminated only after a confirmatory writing was sent to Marchi on June 23, 2008, more than a year later, indicating that the contract was terminated.

Pepsico and PCAM claim that as early as December of 2006, Matti Leshem (“Leshem”), president of Protagonist, a third party vendor to Pepsi, brought to Pepsi's attention a sponsorship opportunity with a company called Xanadu Ventures for a project at “Meadowlands Xanadu” in New Jersey (the “Xanadu Project”). Bulldog claims that confidential information regarding its Bulldog Project was misappropriated by the defendants and divulged to the Xanadu Project team during and after the time that the Bulldog LOI was in effect. It is undisputed that at least one in-person meeting occurred in May 2007 that included Leshem, the Xanadu Project team, and the Pepsico and PCAM teams.

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The parties disagree about whether any confidential information regarding the Bulldog Project was divulged to the Xanadu Project team.

The parties also disagree about whether the Bulldog LOI was entered into in good faith or was an effort on the part of Pepsico and PCAM to delay Bulldog from further developing the Bulldog Project or marketing it to Pepsi competitors while the final details of the Xanadu Project were being completed with Protagonist.

A contract was signed committing Pepsi to the Xanadu Project on or around January 2, 2008. In February 2008, through a press release, Xanadu Ventures announced that Pepsi was entering into a 10–year “tenant/naming rights” agreement with Meadowlands Xanadu. Bulldog claims that various aspects of the Xanadu Project that were highlighted in this press release are identical or substantially similar to aspects originally included in the Bulldog Project.

II. Legal Standard

A motion for summary judgment may not be granted unless the court determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no such issue warrant judgment for the moving party as a matter of law. Fed.R.Civ.P. 56(c). See Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223 (2d Cir.1994). When ruling on a motion for summary judgment, the court may not try issues of fact, but must leave those issues to the jury. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir.1987). Thus, the trial court's task is “carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined ... to issue-finding; it does not extend to issue-resolution.” Gallo, 22 F.3d at 1224.

Summary judgment is inappropriate only if the issue to be resolved is both genuine and related to a material fact. Therefore, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. An issue is “genuine ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505 (internal quotation marks omitted). A material fact is one that would “affect the outcome of the suit under the governing law.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. As the Court observed in Anderson: “[T]he materiality determination rests on the substantive law, [and] it is the substantive law's identification of which facts are crucial and which facts are irrelevant that governs.” Id. Thus, only those facts that must be decided in order to resolve a claim or defense will prevent summary judgment from being granted. Immaterial or minor facts will not prevent summary judgment. See Howard v. Gleason Corp., 901 F.2d 1154, 1159 (2d Cir.1990).

When reviewing the evidence on a motion for summary judgment, the court must “assess the record in the light most favorable to the non-movant and ... draw all reasonable inferences in its favor.” Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir.2000) (quoting Delaware & Hudson Ry. Co. v. Consolidated Rail Corp., 902 F.2d 174, 177 (2d Cir.1990)). However, the inferences drawn in favor of the nonmovant must be supported by the evidence. “[M]ere speculation and conjecture” is insufficient to defeat a motion for summary judgment.

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Stern v. Trustees of Columbia University, 131 F.3d 305, 315 (2d Cir.1997) (quoting Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir.1990)). Moreover, the “mere existence of a scintilla of evidence in support of the [nonmovant's] position” will be insufficient; there must be evidence on which a jury could “reasonably find” for the nonmovant. Anderson, 477 U.S. at 252, 106 S.Ct. 2505.

III. Discussion

First, the court must determine which law governs each of the plaintiff's claims in accordance with Connecticut choice of law rules. Then the court must determine with respect to each claim whether genuine issues of material fact exist based on the substantive law that governs that claim. At each stage, the evidence in this case must be assessed in a light most favorable to the non-movant, here the plaintiff. See e.g., Doninger v. Niehoff, 642 F.3d 334, 344 (2d Cir.2011).

A. Choice of Law

A federal trial court sitting in diversity jurisdiction must apply the law of the forum state, which in this instance is Connecticut, to determine the choice-of-law rules. Bigio v. Coca–Cola Co., 675 F.3d 163, 169 (2d Cir.2012). Here, the Bulldog LOI provides that the “letter of intent and all matters or issues collateral thereto shall be governed by the laws of the State of New York, without regard to its conflict...