United States District Court, D. Oregon
Stephen F. English Erick J. Haynie Julia E. Markley PERKINS
COIE Attorneys for Plaintiff
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
A. HERNÁNDEZ UNITED STATES DISTRICT JUDGE.
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
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.
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.
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
2010 Acquisition Attempts
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.
2010 & 2011 MetroPCS Collaborations
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
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
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.
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.
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.
2012 Acquisition Process
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.)
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,
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.
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.
The Parties' Separate 2012 Pitches to MetroPCS
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.
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.
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.
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.
Defendants' Agreement with Sprint
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.
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)).
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).
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
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
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
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. 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
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.
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.
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
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.
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
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.
Breach of Contract
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 ...