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Vesta Corp. v. Amdocs Management Ltd.

United States District Court, D. Oregon

September 12, 2018

VESTA CORPORATION, Plaintiff,
v.
AMDOCS MANAGEMENT, LTD; and AMDOCS, INC., Defendants.

          Stephen F. English Erick J. Haynie Julia E. Markley PERKINS COIE Attorneys for Plaintiff

          Robert A. Shlachter Joshua L. Ross STOLL STOLL BERNE LOKTING & SHLACHTER P.C. Bruce G. Vanyo Andrew G. Klevorn Richard H. Zelichov Christina L. Costley Yonaton M. Rosenzweig KATTEN MUCHIN ROSENMAN LLP Attorneys for Defendants

          OPINION & ORDER

          MARCO A. HERNÁNDEZ UNITED STATES DISTRICT JUDGE.

         Plaintiff Vesta Corporation brings this action for theft of trade secrets and breach of contract against Defendants Amdocs Management, Ltd., and Amdocs, Inc. Defendants move for summary judgment or, in the alternative, partial summary judgment, on both of Plaintiff's claims. Oral argument on Defendants' motion was held on June 25, 2018. The Court grants in part and denies in part Defendants' Motion for Summary Judgment.[1]

         BACKGROUND

         I. The Parties

         Defendant Amdocs “is a publicly-traded company that provides software solutions to mobile network operators (‘MNOs').” Def. Mot. Summ. J (“Def. Mot.”) 5 (citing Fourth Am. Compl. (“FAC”) ¶ 8; Zelichov Decl. Ex. 38 (Zepeda Dep.) at 98:7-10), ECF 574. Defendants primarily provide billing systems for MNOs. Haynie Decl. Ex. 24 (Zepeda Dep.) 236:8-15, ECF 592. Defendants first entered the payments market in 2006 when they acquired a company called Qpass and its digital payment solution Digital Commerce Manager (“DCM”). Zelichov Decl. Ex. 60, 47 (Pelegero Reb. Rept.) ¶ 193, ECF 576, 577, 579. According to Defendants, this product contained features including “bifurcated funds capture, ” auto-pay, APIs for digital goods sales, and a payment repository or “e-wallet.” Zelichov Decl. Ex. 13 (Agte Dep.) at 23:18-24:15, 24:23-25:1, 86:23-87:10; Mangal Decl. ¶¶ 6, 7, ECF 582; Agte Decl. ¶¶ 30, 31, 35, ECF 578, Exs. B-C. Defendants allege that the product at issue here-Amdocs' Enterprise Payment Processing solution or “EPP”-was created based on their prior experience with DCM, its “offspring” Amdocs Mobile Payments or “AMP, ” and customer requirements. Zelichov Decl. Ex. 13 (Agte Dep.) 25:10-22, 32:23-34:15. In addition, Defendants provided a billing solution called “Ensemble” for the mobile prepaid market, Zelichov Decl. Ex. 28 (Mangal Dep.) at 160:13-16, which they also allege had auto-pay functionality and the ability to “manage the recharging (top-up) of balances through multiple payment methods and recharge channels, ” Zelichov Decl. Ex. 61 at 15.

         Plaintiff Vesta “is a privately held electronic payments processing solutions provider headquartered in Portland, Oregon.” Fieldhouse Decl. ¶ 3, ECF 593. It specializes in “prepaid ‘top-up' payment solutions that manage customer payments to MNOs” where the MNO does not have immediate access to the consumer's credit card, including text-to-pay, auto-pay, interactive voice response, and internet websites. Id. at ¶ 4. Plaintiff's payment and management solution, Mobile Payments Platform or “MPP, ” both addresses the specific risks presented by anonymous prepaid wireless payments and includes other features such as customer authentication, wallet management, channel hosting, and order fulfillment. Id. at ¶ 5.

         Beginning in 2009, the parties have, at various points, exchanged information to explore collaboration and acquisition. What follows is a brief discussion and timeline of the events that are central to this dispute. Additional facts that are relevant to the discussion are included in the analysis that follows.

         II. 2010 Acquisition Attempts

         In 2009, the parties executed a Non-Disclosure Agreement (NDA) in order to exchange information and explore closer collaboration. Zelichov Decl. Ex. 59; Khare Decl. Ex. 4, ECF 597; FAC ¶ 14. In February of 2010, Amdocs initiated acquisition discussions. Fieldhouse Decl. ¶ 15. Plaintiff provided various documents to Defendants that pertained to its business plans and financial performance. Zelichov Decl. Ex. 6; Khare Decl. ¶ 24, Exs. 5, 7-27. Defendants ultimately did not acquire Plaintiff, Zelichov Decl. Exs. 70, 71, but Plaintiff alleges that, taken together, the information that was shared “explains, in detail, how Plaintiff made money with each major customer-its financial dynamic, pricing strategies, expense levels, and margins-all of which would be highly valuable in the hands of a company that wished to enter the top-up market and compete with Vesta, ” Pl. Opp'n Def. Mot. Summ. J. (“Pl. Opp'n”) 5 (Abbey Decl. Ex. 1 at ¶ 19), ECF 590.

         III. 2010 & 2011 MetroPCS Collaborations

         In 2010, the parties pursued collaboration on a joint proposal for MetroPCS. Zelichov Decl. Ex. 72 at 4; Markley Decl. Exs. 4, 5, ECF 607-608. Though Defendants were already the billing system for MetroPCS and provided certain payment services through DCM, Zelichov Decl. Ex. 13 (Agte Dep.) 28:3-9, Plaintiff brought to the table a top-up payment solution with fraud indemnification features, Zelichov Decl. Ex. 16 (Eldar Dep.) 72:11-73:3.

         As the parties explored possible collaboration, Plaintiff provided Defendants with various documents describing its recommended approach and technical information. Hassold Decl. ¶¶ 17-31, ECF 600. It also conveyed some of this information orally in meetings and teleconferences. Id. This information included v0.2 of a Scope of Services paper sent by email to Defendants on August 17, 2010, Zelichov Decl. Ex. 75, and v0.7 of a Scope of Services Paper sent by email on September 14, 2010, Zelichov Decl. Ex. 81. V0.7 of the paper included information about its high-level architecture, sequence flow diagrams, text-to-pay, and bifurcated funds capture. Zelichov Decl. Ex. 30 (Pelegero Dep.) 274:14-275:1.

         In early September, MetroPCS gave both parties a list of requirements for its billing and payment system and requested separate proposals from each. Zelichov Decl. Ex. 76, 78. Before a call on September 9, 2010, Plaintiff provided Defendants with a list of topics to discuss based on the requirements they had received from MetroPCS. Zelichov Decl. Ex. 79. Less than a minute later, Defendants sent Plaintiff an initial draft of their “Payment Architecture” slides, which would become the basis for Defendants' proposal in 2010 to MetroPCS. Zelichov Decl. Ex. 80. Plaintiff alleges that it was never provided with the final proposal that was submitted to MetroPCS but has since learned that Defendants portrayed themselves as the payment solution provider. Markely Decl. Ex. 17; Pelegero Ex. 2 ¶¶ 154-158, ECF 598; Hassold Decl. ¶ 41, Ex. 13, ECF 600.

         Meanwhile, on September 16, 2010, Plaintiff submitted its own proposal to MetroPCS, which Defendants allege “included an even further expanded version of the scope of services and Vesta's Pricing, ” to MetroPCS without an NDA in place. Def. Mot. 8 (citing Zelichov Decl. Ex. 82). Plaintiff informed MetroPCS that it “contemplated an integrated solution with . . . Amdocs” but was open to working with other vendors. Id. Ultimately, MetroPCS contracted with Fiserv, Shamos Decl. Ex. 1 ¶¶ 517-29, ECF 580; Zelichov Decl. Ex. 36 (Willcock Dep.) at 195:3-8, in part because Plaintiff's price was “more than double the next bidder, ” Zelichov Decl. Exs. 84, 86.

         A year later, Defendants notified Plaintiff that MetroPCS was unhappy with Fiserv. RZ Ex. 88. Once again, the parties exchanged information, including the 2011 version of Plaintiff's Scope of Services Paper. Zelichov Decl. Ex. 89. The parties also participated in a series of calls and meetings, during which Plaintiff claims it disclosed its technical information. Zelichov Decl. Exs. 90, 55.

         V. 2012 Acquisition Process

         In 2012, Plaintiff launched another sales process. FAC ¶ 37; Zelichov Decl. Ex. 18 (Fieldhouse 30(b)(6) Dep.) at 21:5-11. Plaintiff ultimately engaged with Credit Suisse, which valued Vesta at between $450 and $550 million, to assist in a potential sale. FAC ¶ 37; Zelichov Exs. 91, 92 at 4; see also Fieldhouse Decl. ¶ 21. On June 29, Credit Suisse notified Amdocs it was one of 33 potential buyers approved to participate in the auction process and at some point early on in the process authorized their review of material from the 2010 discussions. Zelichov Decl. Exs. 98, 99; see Zelichov Decl. Exs. 94, 12 (Abbey Dep.) 65:15-67:20, - 34 (Shmuel 30(b)(6) Dep.) 95:23-96:9.

         As part of this process, the parties once again exchanged information. In mid-2012, Plaintiff circulated a “teaser” for 30 potential acquirers that included its revenue and Earnings Before Interest, Taxes, Depreciation and Amortization (“EBITDA”) for 2010 and 2011, forecasted revenue and EBITDA for 2012, and other investment considerations. Zelichov Decl. Exs. 94-97. Though NDAs were not required to receive this document, Zelichov Decl. Ex. 17 (Fieldhouse Dep.) 107:18-22, on July 3, 2012, Defendants signed another NDA that protected Plaintiff's “evaluation material” received as part of the 2012 acquisition discussions, Zelichov Decl. Ex. 100; Khare Decl. Ex. 34; FAC ¶ 74. Plaintiff alleges that pursuant to this NDA, it provided Defendants with detailed confidential financial, business, and customer information both orally and in writing. Fieldhouse Decl. ¶ 24; Khare Decl. ¶ 26, Exs. 28-33. It also answered Defendants' expanded follow-up questions in writing and in a conference calls. Fieldhouse Decl. ¶¶ 26-27; Markley Decl. Ex. 10. Defendants' M&A team had a “high level” meeting with Plaintiff's executives, and Plaintiff provided a “preliminary discussions” presentation including limited business and financial information regarding Plaintiff. Zelichov Decl. Ex. 106; id. at Ex. 17 (Fieldhouse Dep.) 40:20-41:19, 42:9-14.

         On August 9, 2012, Defendants' M&A team presented a valuation analysis to Defendants' executive management, and Defendants presented a nonbinding letter of intent to acquire Plaintiff. FAC ¶ 42; Zelichov Decl. Exs. 104, 105. They assessed a valuation range of $380 to 500 million. Zelichov Decl. Ex. 105 at 6. According to Plaintiff, Defendants' bid was “much lower” than others. Markley Decl. Ex. 14. On August 15, 2012, Credit Suisse told Defendants they were excluded from the second round of bidding, and Defendants did not participate in “true” due diligence or have access to Plaintiff's data room. Zelichov Decl. Ex. 106; Fieldhouse Decl. ¶ 3, ECF 138; Zelichov Decl. Ex. 6 at 16.

         Ultimately, the acquisition process was unsuccessful, and Plaintiff began to seek debt financing to fund a tender offer or shareholder dividend. In doing so, it provided a debt solicitation memorandum (that Defendants emphasize was labeled “public version”) to lenders, in many instances without an NDA in place. Zelichov Decl. Exs. 111, 112. According to Defendants, this document included a wide range of Plaintiff's financial and business information, including Plaintiff's revenue, growth, risk management, contract expiration dates, investment highlights, how it directed customers to lower cost channels, fraud rates, and transaction decline rates. See id. It also provided information to Moody's and Standard & Poor's, which disclosed some of Plaintiff's financial information for 2011 and 2012 as well as forecasted results for 2013. Zelichov Decl. Exs. 101-103. Ultimately, this debt solicitation process was also unsuccessful, and Plaintiff obtained a loan from Bank of America to pay a multimillion dollar dividend to its shareholders. Zelichov Decl. Ex. 113.

         IV. The Parties' Separate 2012 Pitches to MetroPCS

         In early 2012, both parties again were informed of MetroPCS's dissatisfaction with Fiserv. Zelichov Decl. Exs. 114-15. Plaintiff pitched its payment solution to MetroPCS in May of 2012 without Defendants, Zelichov Decl. Exs. 116, 117 at 7, but MetroPCS ultimately declined because it did not want to pay for Plaintiff's fraud indemnification, Zelichov Decl. Ex. 118.

         According to Defendants, they were approached by MetroPCS in July of 2012 about developing a replacement for Fiserv. Markley Decl. Ex. 5. As part of this process, Amdocs worked closely with MetroPCS to upgrade its existing payment functionality and ultimately develop EPP. Zelichov Decl. Ex. 120; Mangal Decl. ¶¶ 8-15, Exs. 1-3. MetroPCS provided Defendants with detailed functional and technical requirements that were allegedly used to develop EPP. Zelichov Decl. Ex. 120, 121; Mangal Decl. ¶¶ 8-13, Exs. 1-3.

         On October 22, 2012, Defendants presented MetroPCS with a proposal for a payment platform. Zelichov Decl. Ex. 122. After negotiating a price, MetroPCS “greenlighted development” in December of 2012. Zelichov Decl. Ex. 124; Agte Decl. ¶ 42. Defendants' executive management met in November of 2012 and April of 2013 to discuss whether to move forward with the MetroPCS project. Zelichov Decl. Exs. 125, 126. Defendants contend that during this process, they did not consider anything that Plaintiff claims as proprietary or a trade secret. See id.

         Before Defendants and MetroPCS executed a contract, MetroPCS sent “Business Requirement Documents” to Defendants detailing the specific features that it wanted in EPP. Agte Decl. ¶¶ 43, 47; Mangal Decl. ¶¶ 22-24, Ex. 11. Defendant alleges they used these documents, which total over 500 pages, to build EPP. Agte Decl. ¶¶ 44-47, Ex. E; Mangal Decl. ¶¶ 22-24, Ex. 11. From October 2012 to January 2014, more than 400 of Defendants' employees spent hundreds of thousands of hours writing code for EPP. Agte Decl. ¶¶ 58-62, Exs. F, H. Defendants allege that it was built upon Amdocs' “legacy solutions” (DCM and AMP) by using engineers who had been developing payment solutions for years. Zelichov Decl. Ex. 118 at 4; Agte Decl. ¶¶ 7-35, Exs. B-D. EPP was launched at MetroPCS in January of 2014. FAC ¶ 44.

         VI. Defendants' Agreement with Sprint

         Defendants also launched a payment solution at Sprint in April of 2015. FAC ¶ 63. Sprint was not interested in pursuing any work with Plaintiff because of its payment architecture and the added cost of fraud indemnification. Zelichov Decl. Exs. 132, 133 at 19. Defendants contend that they spent “253, 000 hours developing EPP for Sprint using documents drafted by Sprint called system Design Specifications, ” Def. Mot. 14 (citing Agte Decl. ¶¶ 63-66, 69, Ex. I), and “performed over 200, 000 hours of general payment solution related research and development spending a total of 700, 000 hours on EPP, ” id. at ¶¶ 59-62, 69, Ex. G.

         SUMMARY JUDGMENT STANDARDS

         Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the initial responsibility of informing the court of the basis of its motion and identifying those portions of “‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting former Fed.R.Civ.P. 56(c)).

         Once the moving party meets its initial burden of demonstrating the absence of a genuine issue of material fact, the burden then shifts to the nonmoving party to present “specific facts” showing a “genuine issue for trial.” Fed. Trade Comm'n v. Stefanchik, 559 F.3d 924, 927-28 (9th Cir. 2009) (internal quotation marks omitted). The nonmoving party must go beyond the pleadings and designate facts showing an issue for trial. Bias v. Moynihan, 508 F.3d 1212, 1218 (9th Cir. 2007) (citing Celotex, 477 U.S. at 324).

         The substantive law governing a claim determines whether a fact is material. Suever v. Connell, 579 F.3d 1047, 1056 (9th Cir. 2009). The court draws inferences from the facts in the light most favorable to the nonmoving party. Earl v. Nielsen Media Research, Inc., 658 F.3d 1108, 1112 (9th Cir. 2011). If the factual context makes the nonmoving party's claim as to the existence of a material issue of fact implausible, that party must come forward with more persuasive evidence to support his claim than would otherwise be necessary. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “Summary judgment is improper where divergent ultimate inferences may reasonably be drawn from the undisputed facts.” Fresno Motors, LLC v. Mercedes Benz USA, LLC, 771 F.3d 1119, 1125 (9th Cir. 2014) (internal quotation marks omitted); see also Int'l Union of Bricklayers & Allied Craftsman Local Union No. 20, AFL-CIO v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir. 1985) (“Even where the basic facts are stipulated, if the parties dispute what inferences should be drawn from them, summary judgment is improper.”).

         DISCUSSION

         Defendants move for either summary judgment on all of Plaintiff's claims or partial summary judgment on Plaintiff's individual trade secrets and breach of contract claims. Defendants generally contend that: (1) Plaintiff failed to keep its alleged trade secrets confidential either by failing to comply with the terms of the NDAs or by disclosing them to third parties without an NDA; (2) Plaintiff's information does not meet the statutory definition of a trade secret because it is similar to publicly available information; and (3) Plaintiff fails to provide evidence showing either breach of the NDAs or misappropriation. Both parties also make various evidentiary objections. Because Plaintiff has failed to put forth any evidence regarding its Best Practices Scorecard or compilation trade secret, the Court grants Defendants' Motion for Partial Summary Judgment as to these alleged trade secrets. The Court otherwise denies Defendants' motion.

         I. Evidentiary Objections

         Both parties move to strike evidence submitted in connection with this motion. The Court addresses the relevant objections below. To the extent it has not relied on the objected-to evidence, however, the Court declines to rule on the parties' objections.[2]

         A. Plaintiff's Objections

         Plaintiff objects to Exhibits 21 through 24 attached to the declaration of Saurabh Mangal, Exhibits 2 and 6 attached to the declaration of Defendants' expert Michael Shamos, and Exhibits 101, 102, and 103 attached to the declaration of attorney Richard Zelichov. First, with regard to Exhibits 21-24, Plaintiff argues that the exhibits as used amount to inadmissible hearsay. See Fed. R. Evid. 801. Defendants cite these exhibits, which contain the label “confidential, property of Sprint, ” to suggest that the documents were the property of Sprint. See Def. Mot. 38. The Court, however, only cites this information to show that Defendants believed the information was from Sprint and did not know or have reason to know the information was acquired under circumstances giving rise to a duty to maintain its secrecy. See Or. Rev. Stat. § 646.461. The exhibits therefore are used to demonstrate notice or the effect on Defendants and do not constitute inadmissible hearsay.[3] United States v. Bundy, No. 2:16-CR-46-GMN-PAL, 2017 WL 4582263, at *1 (D. Nev. Oct. 13, 2017) (“[O]ut-of-court statements introduced to show the effect on the listener are not hearsay.”); Friedman v. Medjet Assistance, LLC, No. CV 09-07585 MMM VBKX, 2010 WL 9081271, at *16 (C.D. Cal. Nov. 8, 2010) (citing Ninth Circuit case law and finding that “[c]ourts often admit out-of-court statements for the non-hearsay purpose of their effect on the listener”).

         Second, Plaintiff objects to Exhibit 2 of the declaration of Dr. Shamos on the grounds that it is an “attempt to use [Dr. Shamos] as a conduit for documents that are unauthenticated, hearsay, and in many cases . . . not attached to [Defendants'] summary judgment papers.” Pl. Mot. Strike 2, ECF 606. Defendants respond that Dr. Shamos relies on authentic public documents and that the documents are not hearsay because they are offered to show evidence of publication rather than for their truth. The Court agrees with Defendants. Defendant relies on these documents to show that similar information was available in the public domain. It is immaterial whether the information contained within the documents is true. Plaintiff's objection is overruled.

         Third, Plaintiff objects to Exhibits 101, 102, and 103-reports from Moody's and Standard & Poor's-attached to Mr. Zelichov's declaration and Exhibit 6 from Dr. Shamos's declaration arguing that Defendants failed to lay a proper foundation for these documents. Defendants respond that they have made a prima facie showing of authenticity. “Generally, evidence will be admissible if sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity or identification. In considering internet print-outs, courts have considered the distinctive characteristics of the website in determining whether a document is sufficiently authenticated, ” including, “distinctive . . . designs, dates of publication, page numbers, and web addresses.” Ciampi v. City of Palo Alto, 790 F.Supp.2d 1077, 1091 (N.D. Cal. 2011) (internal citations and quotations omitted). Here, Exhibits 101, 102, and 103 contain trade logos, 2012 publication dates, and 2017 print dates. Mr. Zelichov declares they are true and correct copies of the publications. Zelichov Decl. ¶¶ 102-104. Similarly, Dr. Shamos declares that Exhibit 6 is a true and correct copy and the document includes a trade logo and publication date. Shamos Decl. ¶ 27. The Court finds that Defendants have accordingly laid a proper foundation for these documents. Plaintiff's objection is overruled.

         B. Defendants' Objections

         Defendants object to paragraphs in the declarations of Bruce Hassold and Sanjay Khare as improper lay opinion. Defendants also object to parts of the declarations of Rich Greene and Rocky Scales on the ground that they amount to sham declarations. Finally, Defendants object to Plaintiff's Exhibit 73 attached to the declaration of Julia Markley claiming it is inadmissible hearsay.

         First, Defendants object to ¶ 41 of Mr. Hassold's declaration as improper lay or expert opinion and ¶¶ 29 and 34 of Mr. Khare's declaration because his assertions are speculative and not based on personal knowledge. Fed.R.Evid. 701. As Plaintiff notes, Mr. Hassold was a sales engineering manager involved in the 2010 and 2011 joint pitch processes and therefore has personal knowledge about the information disclosed during this time. Mr. Hassold's statement reviewing the contents of Defendants' presentation and comparing it with the information that he personally disclosed to Defendants in his role as a sales engineering manager for Plaintiff therefore does not constitute expert opinion. See Fed. R. Evid. 701 advisory committee note (permitting lay testimony based on particularized knowledge by virtue of position in a business). As to ¶ 29 of Mr. Khare's declaration, the Court finds that Mr. Khare's statements are based on personal knowledge of what he observed and understood as part of the 2012 debt offering and is supported by the attached exhibits. With regard to ¶ 34 of Mr. Khare's declaration, the Court only relies on this statement for its assertion that the one-way H3G NDA may have been misunderstood by Plaintiff. As Mr. Khare signed the NDA, his understanding of the Italian NDA at the time of its signing is based on his own personal knowledge. Thus, Defendants' objections are overruled.

         Second, Defendants object to ¶¶ 5-6 of Mr. Greene's declaration and ¶ 7 of Mr. Scales's Declarations on the ground that they are sham declarations. The Court disagrees. “[A] party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony.” Yeager v. Bowlin, 693 F.3d 1076, 1080 (9th Cir. 2012). The Ninth Circuit has cautioned that this rule “should be applied with caution” and requires the “inconsistency between a party's deposition testimony and subsequent affidavit [to] be clear and unambiguous.” Id. (internal citations and quotations omitted). During his deposition, Mr. Greene testified that he spent less than an hour reviewing documents and that his response was not thorough. Markley Decl. Ex. 18 (Green Dep.) 85:1-22, 87:3-9, 99:9-100:9, ECF 626. In his declaration he states that he spent little time looking into the matter, had a brief discussion with a colleague, and reviewed a couple of documents. Greene Decl. ¶¶ 5-6, ECF 599. These assertions are not inconsistent. Similarly, at his deposition Mr. Scales testified that there was no NDA in place with MetroPCS. Zelichov Decl. Ex. 31 (Scales Dep.) 91:18-21. In his declaration, he asserts that he “did not realize until years later that Vesta could not locate a copy of any signed NDA with MetroPCS.” Scales Decl. ¶ 7, ECF 601. These, too, are not clearly or unambiguously inconsistent. Defendants' objections are overruled.

         Finally, Defendants object to Exhibit 73 attached to the declaration of Ms. Markley, arguing that it constitutes hearsay. The exhibit contains an email exchange between Defendants and MetroPCS, a third-party. Defendants object to Plaintiff's reliance on the statement by a MetroPCS employee that they “were not sure that AMP is the right solution anymore.” Markley Decl. Ex. 73. The email is used, however, to show its effect on Defendants rather than to show that MetroPCS was truly unhappy with Defendants' previous payment product. Friedman, 2010 WL 9081271, at *16 (citing Ninth Circuit case law and finding that “[c]ourts often admit out-of-court statements for the non-hearsay purpose of their effect on the listener”). Defendants' objection is overruled.

         II. Breach of Contract

         Defendants argue that Plaintiff fails to establish breach of the 2009 and 2012 NDAs as to either its technical information (primarily disclosed during the 2010 and 2011 joint pitch process) or financial information (disclosed during the 2010 and 2012 acquisition attempts). Def. Mot. 15-18. New York Law governs Plaintiff's breach of contract claim. See Opinion & Order, ECF 42 at 7-8. To succeed on a breach of contract claim under New York Law, the plaintiff “must prove . . .: (i) the existence of a contract; (ii) the adequate performance of the contract by [the plaintiff]; (iii) the ...


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