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BBJ, Inc. v. MillerCoors, LLC

United States District Court, D. Massachusetts

March 8, 2017

BBJ, INC., and WESTON O. GRAVES, Plaintiffs,
v.
MILLERCOORS, LLC, COORS BREWING COMPANY, MILLER BREWING COMPANY, and RENEE CUSACK, Defendants.

          MEMORANDUM & ORDER

          Indira Talwani United States District Court.

         This dispute arises from the termination of a business relationship. Presently before the court are Defendants' Motion for Summary Judgment [#204] and Plaintiffs' Cross-Motion for Summary Judgment and Motion to Dismiss And/Or for Summary Judgment on Counterclaim of MillerCoors, LLC (“Cross-Motion for Summary Judgment”) [#217]. For the reasons that follow, Defendants' Motion for Summary Judgment [#204] is GRANTED on all counts in Plaintiffs' Third Amended Complaint. [#127]. Plaintiffs' Cross-Motion for Summary Judgment [#217] is GRANTED as to the counterclaim, and otherwise DENIED.

         I. Facts

         Except as indicated, the facts are taken from the parties' Local Rule 56.1 statements and responses, and are undisputed or not properly disputed for purposes of summary judgment. See Fed. R. Civ. P. 56(c), (e)(2).

         In 1998, Plaintiff Weston O. Graves formed Plaintiff BBJ, Inc. (“BBJ”), a corporation doing business as The Sports Team. Graves was BBJ's president and sole owner. Starting in 1998, and continuing annually thereafter through 2008, BBJ entered into a licensing agreement with Molson Coors Global Properties, LLC (“Molson Coors Global”), which gave BBJ the right to manufacture and sell certain Molson Coors Global licensed promotional products. In exchange, BBJ agreed to pay Molson Coors Global a license fee and royalties. The licensing agreement has a forum selection clause requiring all disputes to be resolved by the courts of the state of Colorado.

         As a Molson Coors Global licensee, BBJ participated in its licensed promotional merchandise (“LPM”) program through which licensees sold certain Molson Coors Global licensed promotional items through a printed catalog (the “LPM catalog”) and online website. The LPM catalog was developed by Molson Coors Global and its licensees. A new LPM catalog was published each year and sent to beer distributors and brewery representatives to allow licensees to sell approved promotional items. Licensees such as BBJ managed their own inventory, were responsible for booking sales, and would fill orders placed by distributors or brewery representatives.

         In the summer of 2007, Defendant Renee Cusack, then a Molson Coors Global employee whose responsibilities included coordinating Molson Coors Global's licensing program and the LPM catalog, met with BBJ representatives over two days in Massachusetts. At the meeting, Cusack discussed the items BBJ would like to supply for the 2008 LPM Program. During that meeting, Cusack and Graves also had preliminary discussions about a “PTO program, ” also administered by Molson Coors Global. The PTO program was a promotional and thematic sales program, offering items for specific holidays or events, such as St. Patrick's Day. According to Plaintiffs, at the meeting, Cusack promised that BBJ would be manufacturing big orders, and that Defendant Coors Brewing Company (“Coors”) would pay for the program “100 percent.” Pls.' Mem. Supp. Pls.' Opp'n Defs.' Mot. Summ. J, Cross-Mot. Summ. J., Cross-Mot. Dismiss And/Or Summ. J. Counterclaim (“Pl.s' Mem. Supp.”) 5 [#221].

         In or about October of 2007, BBJ began participating in the PTO Program. Under the PTO Program, the licensee was not responsible for booking sales. Instead, the PTO Program had six ordering periods throughout the course of a year, and distributors or Molson Coors Global could “pre-book orders” for PTO merchandise on the “Coors Resource Center” website. Once pre-booked orders were finalized, Molson Coors Global would give the licensee a final order to produce, and the licensee would fulfill the order and submit an invoice to Molson Coors Global. Molson Coors Global would approve the invoice, and the invoice would be sent to Coors for payment. The licensee would be paid for all final orders that it fulfilled. BBJ's participation was guided by Cusack, who would email BBJ's account sales representative Dave Doucette, telling him which BBJ items would be featured in a given period, when orders would be finalized, and when items would need to be delivered to customers.

         On February 6, 2008, Kris Coisman of Molson Coors Global sent an email to Doucette with the subject line “PTO Order Processing and Invoicing.” Coisman's email asked BBJ to review the attached “2008 Coors LPM Pre-Order (PTO) Final Order Processing and Invoicing Manual” (“PTO Manual”) and send an email confirming BBJ's understanding of the processes outlined therein. The PTO Manual was marked with the Molson Coors Global logo and name, and was entitled “LPM Pre-Order (PTO) Final Order Processing and Invoicing Manual.” The PTO Manual stated, “[a]fter we have provided you with your PTO/Pre-Order final quantities and drop ship lists, please follow the process [set forth in the manual] for finalizing and invoicing your orders.” It specified further that “[a]ll invoices must be approved by [Molson Coors Global] prior to submission to [Coors Accounts Payable]” and that “[t]his will allow us to track the amounts going against your PO. If the amount comes close to the total amount then we will have your PO adjusted.”

         Coisman's February 6 email noted that upon receipt of a confirmation email from BBJ, Coisman would send a Purchase Order and Finalizing Spreadsheet. The following day, after receiving the requested confirmation, Coisman sent an email attaching a Purchase Order and “Finalizing Spreadsheet for the 2008 Coors PTO Program.” The email continued with several reminders, including that “[a]ll invoices have to be approved by [Molson Coors Global] before being submitted to [Coors] for payment.” The attached Purchase Order, dated February 6, 2008, bears Coors' name and logo on one corner and lists “The Sports Team” as the supplier, the Item purchased as “2008 PTO Merchandise Program, ” the “Quantity” as 1, 900, 000 units, the “Price per Unit” as $1.00, the Net Value as $1, 900, 000.00, and the delivery as December 28, 2008. On May 26, 2008, Molson Coors Global dissolved and assigned its intellectual property assets to Coors. On July 1, 2008, Coors, Defendant Miller Brewing Company (“Miller”), and two other entities began operating Defendant MillerCoors, LLC (“MillerCoors”) as a joint venture. As part of the joint venture, Coors assigned all of its United States intellectual property assets to MillerCoors, including those assets associated with the 2008 Molson Coors Global License Agreement. Cusack's employment moved with the intellectual property assets, from Molson Coors Global to Coors in May 2008, and then to MillerCoors in July 2008.

         On March 19, 2009, MillerCoors and BBJ executed a new License Agreement, enabling BBJ to manufacture and sell products displaying MillerCoors trademarks, copyrights, and trade dress. Like the Molson Coors Global agreements, this agreement also has a forum selection clause.

         On April 13, 2009, MillerCoors informed BBJ that the 2009 MillerCoors License Agreement was being terminated for unethical conduct.

         In June 2009, a sales manager for MillerCoors forwarded to distributors an email from an account director for the Integer Group (a MillerCoors subsidiary) stating that BBJ was let go and that Doucette works for a BBJ competitor, along with a note from a MillerCoors employee stating that BBJ “will no longer be a preferred vendor.” At the time of the termination, BBJ had a PTO order in progress that BBJ subsequently completed. BBJ also had available for sale additional branded inventory of the same items that were presold through the PTO program. MillerCoors' Manager of Strategic Sourcing and Licensing subsequently wrote that MillerCoors would extend BBJ's sell-off period for existing inventory to December 31, 2009. In a December 15, 2009, email, Graves requested that MillerCoors purchase BBJ's remaining branded merchandise in inventory, but MillerCoors' manager responded that MillerCoors would not purchase the inventory.

         In May 2010, another MillerCoors employee sent an internal email to other MillerCoors employees stating that MillerCoors was no longer conducting business with BBJ due to some “past unethical conduct.”

         Also in 2010, BBJ assigned its assets and claims to another entity for the benefit of BBJ's creditors.

         On November 26, 2013, the company to which the claims were assigned released back to BBJ the right to sue MillerCoors and any other person or persons.

         II. Standard

         Summary judgment is appropriate in the absence of a genuine issue of material fact, when the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Where the parties have cross-moved for summary judgment, the court “evaluate[s] each motion independently and determine[s] ‘whether either of the parties deserves judgment as a matter of law on facts that are not disputed.'” Matusevich v. Middlesex Mut. Assurance Co., 782 F.3d 56, 59 (1st Cir. 2015) (quoting Barnes v. Fleet Nat'l Bank, N.A., 370 F.3d 164, 170 (1st Cir. 2004)). To the extent facts are disputed, they are considered in the light most favorable to the non-movant and reasonable inferences will be drawn in favor of the non-movant. Tolan v. Cotton, 134 S.Ct. 1861, ...


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