United States District Court, D. Massachusetts
MEMORANDUM OF DECISION
WILLIAM G. YOUNG, DISTRIT JUDGE
a case abounding in irony. CellInfo, LLC
("CellInfo"), a Massachusetts-based business that
works with wireless companies to improve their consumers'
cellular coverage, Compl. ¶¶ 2, 19, ECF No. 1,
brought this action against American Tower Corporation,
American Tower LLC, American Tower do Brasil - Cessao de
Infraestruturas Ltda ("American Tower do Brasil"),
and ATC IP LLC ("ATC IP") (collectively,
"American Tower") alleging misappropriation of
confidential information and trade secrets in order to create
unfair competition between the parties, breach of contract,
unjust enrichment, unfair and deceptive trade practices,
conversion, and aiding and abetting misappropriation of trade
secrets. Compl. ¶¶ 1, 8.
Tower Corporation owns, operates, and develops communications
real estate, Defs.' Mem. Dismiss/Stay 1, ECF No. 18, and
is the parent company of American Towers LLC, ATC IP, and
American Tower do Brasil, Compl. ¶¶ 12-14.
and American Tower engaged in business that included the
purchase of lease options, site acquisition services, and
consulting services. Compl. ¶¶ 21, 30, 43.
and ATC IP entered into a Master Consulting Services
Agreement (the "Agreement") on January 23, 2017.
CellInfo's Mot. Prelim. Inj.: Master Consulting Services
Agreement, Ex. 2 ("MCSA"), ECF No. 29-5. The
Agreement defines certain professional and legal obligations
between CellInfo and ATC IP that govern CellInfo's
provision of consulting services to ATC IP. Compl.
reliance on the Agreement, American Tower filed a motion to
dismiss or, in the alternative, stay and compel arbitration,
Defs.' Mot. Dismiss/Stay ("Defs.' Mot.")
1-2, ECF No. 17, which CellInfo opposed, Pl.'s Opp'n
Mem. Dismiss/Stay ("Pl.'s Opp'n") 3-8, ECF
portion of the Agreement under contention here is the
"Dispute Resolution" provision, article seven.
Defs.' Mem. Dismiss/Stay 2-3, 6-15; see MCSA 13.
The parties disagree over whether article seven, which
compels arbitration of controversies between the parties
(section 7.1), provides an exception to arbitration where the
moving party seeks injunctive relief (section 7.2).
Defs.' Mem. Dismiss/Stay 4-15; Pl.'s Opp'n 3-8;
see MCSA 13-14. American Tower argues that sections
7.1 and 7.2 of the Agreement require that this Court stay and
compel arbitration of this action, Defs.' Mem.
Dismiss/Stay 5-17, while CellInfo insists that these sections
preclude this Court from granting American Tower's motion
to dismiss or stay, Pl.'s Opp'n 3-8.
light of what follows, it is perhaps helpful to describe the
course of proceedings in some detail. CellInfo filed its
complaint with this Court on June 15, 2018. Compl. 26.
Forty-five days later, American Tower filed a motion to
dismiss CellInfo's complaint or, in the alternative, stay
this action and compel arbitration, as well as an
accompanying memorandum. Defs.' Mot. Dismiss/Stay 1-2;
Defs.' Mem. Dismiss/Stay 18. Nearly a month passed; then,
on August 27, 2018, CellInfo filed its opposition to American
Tower's motion to dismiss, Pl.'s Opp'n 9, and -
signaling a change of course - a motion to expedite
discovery, CellInfo's Mot. Expedited Disc.
("Pl.'s Mot. Disc") 1-2, ECF No. 26.
next day, CellInfo further moved for a preliminary injunction
against American Tower. CellInfo's Mot. Prelim. Inj. 1-2,
ECF No. 29. American Tower duly filed their opposition to
CellInfo's motions for expedited discovery and
preliminary injunction on September 14, 2018. Defs.' Mem.
Opp'n Pl.'s Mot. Expedited Disc, ECF No. 34;
Defs.' Mem. Opp'n Pl.'s Mot. Prelim. Inj., ECF
October 24, 2018, this Court heard argument on the motion to
dismiss or stay this action. Hr'g Tr. 1, ECF No. 47. The
Court expressed a willingness to collapse a further hearing
on the preliminary injunction with trial on the merits,
Fed.R.Civ.P. 65(a), and asked CellInfo when it wanted to try
the case. Hr'g Tr. 3:18-23. Facing the prospect of an
actual evidentiary hearing as opposed to dueling affidavits,
CellInfo promptly lost its appetite for emergency relief.
While it welcomed the prospect of complete equitable relief,
it indicated that a trial could wait until late January 2019.
Hr'g Tr. 3:18-4:3. This Court then denied the motion to
dismiss and turned to the preliminary injunction request.
Hr'g Tr. 9:2, 11:9-10. American Tower agreed that there
was a need to resolve the motion for
preliminary injunction, but argued that,
under the Agreement's arbitration clause, the Court's
role was limited to considering whether to issue a
"stand still" injunction. Hr'g Tr. 6:7-21.
Everything else, American Tower argued, had to go to the
arbitrators. Hr'g Tr. 6:23-25. Both parties agreed that
the Court should construe the Agreement and resolve this
initial question. Hr'g Tr. 9-11. Frankly baffled, the
Court took the matter under advisement. Hr'g Tr. 11. As
it turns out, both parties are wrong.
to construe an agreement is to start with the Agreement
itself. This one has a broad arbitration clause. It is
important to note that this is not "forced
arbitration," that one-sided species of arbitration
unconscionably forced on vulnerable consumers and workers and
almost universally reviled, enforceable only due to the
mandate of a slim majority of the Supreme Court. See
American Express Co. v. Italian Colors Rest., 570 U.S.
228, 238-39 (2013); AT&T Mobility LLC v.
Concepcion, 563 U.S. 333, 344-52 (2011).
appears that the broad arbitration clause here is the product
of mutual negotiation among independent equals, each
represented by skilled counsel. This is precisely the knowing
mutual resort to arbitration to which the Federal Arbitration
Act, 9 U.S.C. §§ 3-4, applies. The Court must
strive therefore to give effect to the expressed intention of
Section 7.1, entitled "Arbitration Procedure,"
The Parties agree to submit any dispute, controversy, or
claim arising out of or related to any portion of this
Agreement other than those involving Article Six of this
Agreement, or the creation, validity, interpretation, breach,
or termination of this Agreement that the Parties are unable
to resolve through informal discussions, to binding
arbitration in accordance with the provisions of this
article. The arbitration will be: (a) held in Suffolk County,
Massachusetts; (b) conducted before a panel of three (3)
arbitrators, each knowledgeable in fields related to the
subject matter of the dispute, one chosen by each Party
within ten (10) days of a demand for arbitration and the
third by the two (2) so chosen; (c) governed by the
Commercial Arbitration Rules of the American Arbitration
Association ("AAA") except as otherwise expressly
provided in this section; and (d) administered by the AAA
unless the Parties agree otherwise. The arbitrators: (a) may
not add to, amend or disregard this Agreement in whole or in
any part; (b) will allow such discovery as is appropriate to
the purposes of arbitration in accomplishing fair, speedy ...