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America’s Test Kitchen, Inc. v. Kimball

Superior Court of Massachusetts, Suffolk

March 19, 2019

AMERICA’S TEST KITCHEN, INC., As the Sole General Partner of America’s Test Kitchen Limited Partnership
v.
Christopher KIMBALL et al. America’s Test Kitchen, Inc., As General Partner of America’s Test Kitchen Limited Partnership and America’s Test Kitchen Limited Partnership

          File Date: March 20, 2019

          MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS CHRISTOPHER KIMBALL’S, CPK MEDIA, LLC’S, AND CPK HOLDCO, LLC’S MOTION FOR PARTIAL SUMMARY JUDGMENT

          Janet L. Sanders, Justice of the Superior Court

          This litigation arises from the departure of Christopher Kimball from the television and radio show "America’s Test Kitchen," and Kimball’s decision to open up a competing cooking show, "Christopher Kimball’s Milk Street" (Milk Street). America’s Test Kitchen, Inc. (ATK) responded to Kimball’s decision by filing a multi-count Complaint against him and others, including Kimball’s wife and his executive assistant. Kimball as well as some of the other named defendants filed counterclaims. Now before the Court are a total of six summary judgment motions, three of which are only partially dispositive.[1] Because the relevant facts with respect to the different motions differ (as do the legal arguments), this Court has issued separate decisions on each motion. This Memorandum concerns the motion by Kimball and two related entities, CPK Holdco, LLC and CPK Media, LLC, seeking summary judgment as to certain counts in ATK’s Amended Complaint asserted against them. This Court concludes that the Motion must be DENIED in part and ALLOWED in part.

          BACKGROUND

          The factual record for this motion consists of 181 exhibits, among them scores of emails as well as excerpts from depositions. Many of the relevant facts— particularly the inferences to be drawn from them— are in dispute. In broad terms, the summary judgment record reveals the following.

          ATK owns, operates and produces a series of television shows, radio shows, magazines, cookbooks and other ventures related to food and cooking. ATK is the sole general partner of America’s Test Kitchen Limited Partnership (ATK LP). ATK is owned in equal shares by Eliot Wadsworth, John Halpern and George Denny, each of whom is also a member of ATK’s Board of Directors. Kimball is and has been at all relevant times a limited partner in ATK LP; he was never a member of ATK’s Board. Up until the latter part of 2015, however, Kimball served as ATK’s top executive officer and its CEO. He effectively served as the face and leader of the company.

          Beginning in May 2015, rifts developed between members of ATK’s Board and Kimball regarding his role at the company. Kimball suspected that he was being pushed out of ATK. For their part, certain Board members wanted to move ATK in a different direction and began to discuss other roles that Kimball could fill short of being CEO. Matters came to a head on August 24, 2015, when Kimball, Wadsworth, and Denny met to discuss Kimball’s future. The participants emerged from that meeting with different understandings.

          Immediately following the meeting, Wadsworth sent an email to Kimball and the other ATK Board members (Denny, Halpern, David Nussbaum, and Peni Garber) that recapped the August 24 meeting from his perspective. Briefly summarized, that email stated that the Board intended to replace Kimball as CEO once a replacement was found after a search process, but that Kimball would continue to be involved with ATK and receive his same salary and bonuses for the remainder of 2015. Wadsworth expressed the "deep desire" to retain Kimball and hoped that ATK’s collaboration with him would "continue for many years." Nussbaum immediately responded with his own email, which stated that "Chris [Kimball] needs to know definitively [that] he is out of the company ..." The next day, August 25, Board member Denny sent an email to Kimball and other Board members giving his own summary of the "key points" of the August 24 meeting: although Kimball would retain his salary through the end of 2015, he would also sign a noncompetition agreement and vacate the premises by the end of November 2015. Kimball would (according to this recap) be replaced as CEO but continue to assist ATK on branding and strategy through a separate consulting company, with specific details to be negotiated. Three other board members replied to Denny’s email with a "statement of unanimity" sent to Nussbaum purporting to endorse the contents of Denny’s email and stating that "we all hope that Chris [Kimball] will stay for the next four months on the terms" that Denny’s email outlined. Kimball’s understanding of what happened at the August 24 meeting was much starker: as he testified at his deposition, he believed that he was effectively fired as of August 24, 2015. He ceased working regularly at ATK’s Brookline offices as of early September 2015 and was stripped of all management responsibilities. In Kimball’s view, he was, after August 24, working only on a freelance basis for ATK.

          Between September and November 2015, the parties discussed the terms of Kimball’s transition. According to Kimball, Denny and Wadsworth asked him to start a new company to handle production of television and radio for ATK and discussed with him how many employees he would bring to that new company. On September 12, 2015, a term sheet was circulated among Board members and Kimball which proposed that Kimball continue to assist ATK in producing its television shows, radio/podcasts and other events. It also proposed that Kimball sign noncompetition, nonsolicitation and nondisparagement agreements in return for a guaranteed amount of annual compensation from ATK. Those same conditions were reiterated in a "final offer sheet" that Denny sent to Kimball on October 7, 2015. On October 12, 2015, Kimball responded that he would not agree to any noncompetition provision and as to the nonsolicitation provision, he requested that he be allowed to bring six current ATK employees to his new company.

          Nussbaum was named ATK’s new CEO on October 14, 2015. On November 20, 2015, Kimball was formally terminated from ATK without having signed any noncompetition or nonsolicitation agreement.

          While these negotiations were going on, Kimball (together with his wife, defendant Melissa Baldino) made plans to start their new company, CPK Media, LLC. Kimball has testified that he took no steps toward forming that company until after August 24, 2015. ATK disputes that. By September 2015, Kimball had obtained initial funding for his company from ATK investor William Thorndike; he also scouted locations for the new venture. ATK contends that Kimball (together with others) did much more than that, misappropriating ATK’s trade secrets and confidential information. Specifically, Kimball (according to ATK) attempted to save and secure a list of ATK business contacts, retained lists of ATK’s media contacts and subscriber lists, and used ATK’s confidential financial information to secure investors in his new business.

          On May 31, 2016, Kimball formally unveiled "Christopher Kimball’s Milk Street Kitchen" through a press release. According to the press release, Milk Street is a multimedia company focused on "a fresh, healthier approach to home cooking." In ATK’s view, Kimball has effectively misappropriated a "brand" that ATK developed over many years and took an idea developed by ATK’s creative team that was intended to expand its franchise. From Kimball’s perspective, he has done nothing more than engage in legitimate competition and, when ATK was unable to compel him to agree not to do so, it filed this lawsuit in an effort to drive him out of the marketplace. These very different perspectives on the underlying facts pervade the parties’ pleadings submitted in connection with the instant Motion.

          DISCUSSION

          Kimball’s motion seeks summary judgment on the following claims in ATK’s Amended Complaint: misappropriation of trade secrets and confidential information (Count I); breach of fiduciary duty (Counts II and III); unjust enrichment (Count IV); breach of contract (Count V); and repayment of ...


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