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America’s Test Kitchen, Inc. v. Kimball

Superior Court of Massachusetts, Suffolk, Business Litigation Session

March 20, 2019

AMERICA’S TEST KITCHEN, INC., as the Sole General Partner of America’s Test Kitchen Limited Partnership
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


          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). Plaintiff America’s Test Kitchen, Inc. (ATK) responded to Kimball’s decision by filing a multi-count Complaint against him and others, including defendant Christine Gordon, Kimball’s executive assistant. Gordon now moves for summary judgment on those claims asserted against her in ATK’s Amended Complaint, which allege aiding and abetting breach of fiduciary duty (Count VII) and breach of contract (Count IX). Gordon contends that ATK has no reasonable expectation of proving the elements of either claim. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711 (1991). This Court agrees and concludes that Gordon’s Motion must be ALLOWED .


          The facts as revealed by the summary judgment record are as follows.

          ATK owns, operates, and produces a series of television shows, radio shows, magazines, cookbooks, websites, and other ventures related to food and cooking. Kimball is a founder of ATK and for many years, served as the face and leader of the company. In 2009, Gordon began working for ATK as Kimball’s executive assistant. Her primary duties consisted of coordinating Kimball’s schedule and managing his travel. With ATK’s permission, Gordon also handled certain of Kimball’s personal affairs, including management of Vermont property that Kimball owns. She had no role in the management or operation of ATK.

          When Gordon joined ATK in 2009, she signed an employment agreement. The agreement contained restrictive covenants prohibiting her from disclosing confidential information of ATK and from competing or assisting anyone else in competing with ATK. In August 2013, Gordon resigned from ATK to work for Ab Initio in Lexington, Massachusetts at a position that paid her more money. After two weeks, she decided to leave Ab Initio and to return to ATK, which rehired her. She did not sign a new employment agreement.

          Beginning in May 2015, rifts developed between Kimball and certain members of ATK’s Board of Directors. Matters came to a head on August 24, 2015 when Kimball met with certain Board members. As described in a separate memorandum of decision on a summary judgment motion filed by Kimball, the parties have different interpretations of what happened at that meeting. For his part, Kimball believed that he was effectively fired and would be working for ATK after that meeting only on a freelance basis. For the next three months, the parties engaged in negotiations regarding the terms of Kimball’s transition. As between Kimball and ATK, there are disputes of fact concerning whether either of them engaged in unlawful conduct. Regardless, what is undisputed is that Gordon herself did not take part in the August 24 meeting or the negotiations that followed it. The record is also devoid of any evidence to suggest that she knew Kimball was engaged in any wrongdoing. Rather, the summary judgment record shows only that Gordon undertook certain tasks at Kimball’s direction during the months at issue in her capacity as his executive assistant. Kimball had not himself signed any agreement that would have prevented him from starting a business in competition with ATK, so there was no reason why Gordon would know that Kimball’s plan to do so would be wrong.

          Gordon was terminated from her position at ATK on November 16, 2015. Around this same time, Kimball too was officially terminated. Kimball founded a new company, CPK Media, LLC, which operates Milk Street. Gordon now works for CPK Media, LLC.


         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 Gordon.

         Count VII of ATK’s Amended Complaint alleges that Gordon aided and abetted Kimball in breaching his fiduciary duty to ATK. In order to prevail on that claim, ATK must prove not only that Gordon knew that Kimball was in breach of his fiduciary obligations but also that she actively and substantially participated in or encouraged such 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). It is undisputed that whatever Gordon did for Kimball was in her capacity as his executive assistant. Under his supervision and at his direction, she performed what were largely ministerial tasks in keeping with that position. With Kimball himself convinced that he was being forced out of ATK, Gordon had no reason to suspect Kimball was doing anything wrong. In short, this Court agrees with Gordon that no rational jury could find for ATK on this claim, based on the summary judgment record before this Court.

          Count IX alleges that Gordon breached the employment agreement with ATK that she entered into in 2009. With respect to this Count, this Court agrees with Gordon that this agreement terminated in 2013 when Gordon went to work for Ab Initio. That she came back to ATK within a short time and received the same salary does not change that fact. Gordon signed no new employment agreement upon her being rehired. Moreover, even if the 2009 agreement were still in effect, the summary judgment record contains insufficient evidence to suggest that Gordon disclosed or used confidential information or was otherwise in violation of the restrictive covenants that agreement contained.

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

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