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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

          OPINION

          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," owned and operated by the plaintiff, America’s Test Kitchen, Inc. (ATK). Kimball was for many years the face and leader of ATK; in November 2015, he was officially terminated, and he started a new company, CPK Media, LLC (CPK), which operates a show in direct competition with ATK. ATK responded to this by suing Kimball, CPK and four other individuals, each of whom has moved for summary judgment as to the claims against him or her. This Memorandum of Decision concerns the motion by defendant Deborah Broide, a media consultant for ATK who now provides services to CPK. ATK has asserted two claims against Broide: misappropriation of trade secrets and confidential information (Count I), and aiding and abetting breach of fiduciary duty (Count VII). This Court concludes that Broide’s Motion must be ALLOWED because ATK has no reasonable expectation of proving the elements of either claim. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711 (1991).

          BACKGROUND

          The circumstances of Kimball’s departure from ATK have already been set forth by this Court in separate decisions regarding other defendants issued this same date. Those additional facts relevant to this Court’s decision on the instant motion are as follows.

          Broide is a media publicist who operates her own company from the New York City area. She began working with ATK in 1992, providing media relations and publicity services. She reported directly to Kimball and became a close friend. At all times during her work with ATK, Broide was an independent contractor. At no time did she enter into any non-competition, non-solicitation or non-disclosure agreement with the company. As part of her consulting services, Broide provided ATK with a list of media contacts; she used these lists to promote Kimball, whom she saw as the face of ATK.

          In August 2015, Kimball told Broide that he might be fired from ATK and, not wishing to retire, was contemplating opening up his own company. Kimball had not entered into any agreement with ATK that would prohibit that. Kimball asked Broide to map out a public relations plan for him in the event that happened. In two emails, Broide shared with Kimball her thoughts on how he might announce and prepare for his departure, "if this is a go." She also told Kimball to make sure that his ATK business contacts were backed up and accessible via his personal Gmail account.

          On November 3, 2015, Broide sent to Kimball three lists. One was a list of individuals who worked for various print, television, and radio media outlets, together with their contact information (the Core Media List). The others were a list of National Public Radio (NPR) stations and a National TV Media List. As Broide testified at her deposition, the two media lists were lists that she had developed and used for a variety of clients, including ATK. Apart from specific contact information (which Broide obtained on her own), the information on these lists is publicly available. Although she had provided the same lists to ATK, her work for ATK (as Broide explained it) was less about developing these lists and more about using her personal contact and relationships with people on those lists to promote her client’s interests. ATK has cited no evidence in the summary judgment record that would contradict Broide’s description of these lists or how they were developed, except to state that ATK’s newly hired in-house publicist had updated Broide’s media lists in April and June of 2015.

          ATK formally terminated Kimball in November 2015. Broide continued to provide consulting services to ATK through the end of 2015. In early 2016, she began providing consulting services to Kimball’s new company. This lawsuit ensued.

          DISCUSSION

         The standard that this Court applies to the instant motion is well established. "[A] party moving for summary judgment in a case in which the opposing party [has] the burden of proof at trial is entitled to summary judgment if he [or she] demonstrates ... that the party opposing the motion has no reasonable expectation of proving an essential element of that party’s case." Brooks v. Peabody & Arnold, LLP, 71 Mass.App.Ct. 46, 50 (2008), quoting Kourouvacilis v. General Motors Corp., 410 Mass. at 716. The opposing party cannot simply rest on the pleadings or mere assertions that there are disputed facts. Although this Court must draw all reasonable inferences in favor of the nonmovant, that does not require the Court to accept conclusory allegations, draw improbable inferences, or engage in unsupported speculation. See Taylor v. American Chemistry Council, 576 F.3d 16, 24 (1st Cir. 2009) (affirming summary judgment on fraud and conspiracy claims where there was insufficient evidence of defendant’s knowledge or intent). This Court concludes that ATK has no reasonable expectation of proving either of its claims against Broide.

         Count I alleges that Broide misappropriated ATK trade secrets and proprietary business information. In determining whether information is entitled to protection as confidential, this Court applies the multi-factored test set forth in Jet Spray Cooler, Inc. v. Crampton, 361 Mass. 835, 840 (1972) (adopting factors set forth in Restatement of Torts, Section 757, comment b). As this Court noted in its decision denying Kimball’s motion for summary judgment on the same claim asserted against him, the Jet Spray factors are fact specific, making it difficult to dispose of this claim by way of summary judgment. However, unlike the claim against Kimball, who is accused of misappropriating a wide variety of allegedly proprietary information, the claim against Broide relies exclusively on the lists that she sent to Kimball in November 2015. This Court concludes that ATK has no reasonable expectation of proving that the media lists satisfy any of the Jet Spray factors and incorporates herein the reasons set forth at pages three through five of Broide’s Memorandum in Support of her Motion as well as page two or her Reply.

          Count VII accuses Broide of aiding and abetting Kimball in breach of his fiduciary duties.[1] In order to prevail on that claim, ATK must prove not only that Broide knew that Kimball was in breach of his fiduciary obligations, but also that she actively and substantially participated in or encouraged this unlawful conduct, such that she herself could not reasonably be held to have acted in good faith. Arcidi v. National Ass’n of Gov’t Employees, Inc., 447 Mass. 616, 623-24 (2006). See Spinner v. Nutt, 417 Mass. 549, 556 (1994). As to the requirement of knowledge and intent, the summary judgment record contains no evidence to suggest that Broide had any reason to suspect that Kimball’s plan to set up his own company was wrong. Indeed, it is undisputed that Kimball had not entered into any restrictive covenants that would have prevented him from opening up a competing business; thus, that he was talking with Broide about doing just that would not cause her to suspect him of engaging in tortious conduct. As to Broide’s alleged assistance in any such breach, ATK can point to only a handful of emails in which Broide provided Kimball with general advice as to how he might handle his departure from ATK from a public relations point of view. This hardly constitutes the kind of substantial assistance necessary for the tort of aiding and abetting breach of fiduciary duty. That Broide also shared with him the media lists she had herself compiled is also not enough.

          For these and other reasons set forth in Broide’s Memoranda in support of her Motion, Broide’s Motion for Summary Judgment is ALLOWED, and ...


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