America’s Test Kitchen, Inc. v. Kimball

          File Date: March 25, 2019

          MEMORANDUM OF DECISION AND ORDER ON DEFENDANT WILLIAM THORNDIKE, JR.’S MOTION FOR SUMMARY JUDGMENT

          Janet L. Sanders, Justice of the Superior Court

          This 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 "America’s Test Kitchen," owned and operated by the plaintiff, America’s 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 ATK’s 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, § 11 (Count X).^[1] This Court concludes that there are genuine issues of material fact so that the Motion must be DENIED .

          BACKGROUND

          The circumstances of Kimball’s 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 America’s 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 ATK’s 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, ATK’s CEO. Thorndike was never himself a general or limited partner in ATK. Nevertheless, because of his participation in Board meetings, he had access to ATK’s financial and other information, including information which could be considered proprietary and confidential.

          Beginning in the middle of 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. Matters came to a head on August 24, 2015, when Kimball, Wadsworth, and Denny met to discuss Kimball’s future. Following that meeting, Thorndike took Kimball’s 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 Kimball’s 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 ATK’s past performance in an effort to convince potential investors that their investment in Kimball’s 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 Kimball’s new company CPK Media, Inc. (CPK) and has described himself to investors as CPK’s "quasi-Board Chair going forward."

          DISCUSSION

         Count I of ATK’s 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. ATK’s 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 party’s 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.

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