AMERICAâS TEST KITCHEN, INC., as the Sole General Partner of Americaâs Test Kitchen Limited Partnership
Christopher KIMBALL et al. Christopher Kimball et al.
Americaâs Test Kitchen, Inc., as General Partner of Americaâs Test Kitchen Limited Partnership et al.
Date: March 25, 2019
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT WILLIAM
THORNDIKE, JR.âS MOTION FOR SUMMARY JUDGMENT
L. Sanders, Justice of the Superior Court
memorandum addresses the last of six summary judgment motions
filed simultaneously in litigation that arises from the
departure of Christopher Kimball from the television and
radio show "Americaâs Test Kitchen," owned and
operated by the plaintiff, Americaâs Test Kitchen, Inc.
(ATK). Following his departure, Kimball opened up a competing
cooking show "Milk Street Kitchen," owned and
operated by defendant CPK Media, LLC (CPK). In the motion now
before the Court, defendant William Thorndike moves for
summary judgment on all claims asserted against him in ATKâs
Amended Complaint, which are as follows: misappropriation of
trade secrets and confidential information (Count I), aiding
and abetting breach of fiduciary duty (Count VII) and a
violation of G.L.c. 93A, Â§ 11 (Count X). This Court concludes
that there are genuine issues of material fact so that the
Motion must be DENIED .
circumstances of Kimballâs departure from ATK have already
been set forth by this Court in separate decisions on the
five other summary judgment motions. The following additional
facts in the summary judgment record pertain to the motion
now before me.
Thorndike is a founder and managing partner of Housatonic
Partners, a private equity firm that has a one percent
investment and limited partnership interest in Americaâs Test
Kitchen Limited Partnership (ATK LP). ATK is the sole general
partner of ATK LP. ATK is owned in equal shares by Eliot
Wadsworth, John Halpern and George Denny, each of whom is
also a member of ATKâs Board of Directors. Thorndike served
as an advisor to ATK and its Board, participating in Board
meetings without compensation. He also served as a personal
advisor to Kimball, ATKâs CEO. Thorndike was never himself a
general or limited partner in ATK. Nevertheless, because of
his participation in Board meetings, he had access to ATKâs
financial and other information, including information which
could be considered proprietary and confidential.
Beginning in the middle of 2015, rifts developed between
members of ATKâs Board and Kimball regarding his role at the
company. Kimball suspected that he was being pushed out of
ATK. Matters came to a head on August 24, 2015, when Kimball,
Wadsworth, and Denny met to discuss Kimballâs future.
Following that meeting, Thorndike took Kimballâs side in the
dispute with the Board, and stopped attending Board meetings.
Kimball (who had not signed any employment agreement
prohibiting him from competing with ATK), began making plans
to open his own business.
Thereafter, Thorndike provided Kimball with advice in
connection with starting this new venture in competition with
ATK. He offered funding and reviewed Kimballâs draft business
plans. ATK contends that the business plans contained ATK
proprietary information. Thorndike disputes that. Thorndike
also reviewed and commented on materials that Kimball planned
to use to solicit prospective investors, and used his own
connections to assist Kimball in finding those investors. ATK
contends that Thorndike used financial information regarding
ATKâs past performance in an effort to convince potential
investors that their investment in Kimballâs new company
would be a profitable one. Thorndike disputes that. Thorndike
was aware that Kimball was recruiting ATK employees for this
new venture during the fall of 2015. Thorndike called upon
others to look into the risk of litigation against Kimball.
Kimball was officially terminated from ATK in November 2015.
In March 2016, Thorndike became a major investor in Kimballâs
new company CPK Media, Inc. (CPK) and has described himself
to investors as CPKâs "quasi-Board Chair going
of ATKâs Amended Complaint alleges that Thorndike
misappropriated ATK trade secrets and confidential
information. Count VII alleges that Thorndike assisted
Kimball in breaching his fiduciary obligations to ATK. As the
Background section of this Memorandum makes clear, the
parties view the facts in the summary judgment record quite
differently. Thorndike contends that ATK cannot identify with
any specificity any particular "trade secret" that
he misappropriated. He also argues that the aiding and
abetting claim is "vaporous," lacking any detail as
to any specific conduct by Thorndike that would be sufficient
to show that he substantially assisted Kimball. ATKâs
allegations against Thorndike are not entirely lacking a
factual foundation, however. Given his participation in ATK
Board meetings, he clearly had access to information (for
example, financial information) that could be entitled to
protection under the case law. Following the rift with the
ATK Board, Thorndike worked closely with Kimball as Kimball
made plans to open a competing venture. Even as he did so,
Thorndike understood that Kimball faced the risk of being
sued by ATK, and that ATK could very well claim that Kimball
was in breach of his fiduciary obligations. Thorndike may
very well be successful in defending against claims that he
regards as meritless. But that is not the standard that this
Court applies at this stage of the case. A court should not
grant a partyâs motion for summary judgment "merely
because the facts he offers appear more plausible than those
tendered in opposition, or because it appear that the
adversary is unlikely to prevail at trial." Parent
v. Stone & Webster, 408 Mass. 108, 113 (1990) (citations
omitted). The movant is held to a "stringent
standard," with the party opposing the motion given the
benefits of all favorable inferences that can be drawn from
the facts in the summary judgment record. Id.
Applying this standard, this Court concludes that summary
judgment on these two counts is inappropriate.
Thorndike has also moved for summary judgment on Count X,
which asserts a violation of Chapter 93A. As Thorndike
acknowledges, this count is based on the same allegations
that underlie Counts I and VII. If summary judgment is
inappropriate for those counts, it necessarily follows
summary judgment would not be proper on this count either.
Thorndike further contends that ATK will not be able to show
a loss of money or property. That is an issue better resolved
at trial by way of a motion for directed verdict, however.