NACM-NEW ENGLAND, INC., d/b/a BUSINESS CREDIT INTELLIGENCE, Plaintiff, Appellee,
NATIONAL ASSOCIATION OF CREDIT MANAGMENT, INC., Defendant, Appellant.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Timothy S. Hillman, U.S. District Judge]
Michael J. Lambert, with whom Sheehan, Phinney, Bass &
Green, P.A. was on brief, for appellant.
K. Merrill, with whom KSR Law was on brief, for appellee.
Lynch, Lipez, and Barron, Circuit Judges.
BARRON, CIRCUIT JUDGE.
appeal arises out of a breach of contract suit between a
national trade association of credit professionals, National
Association of Credit Management, Inc. ("NACM"),
and one of its regional affiliates, NACM-New England, Inc.,
which does business under the name Business Credit
Intelligence ("BCI"). NACM appeals from the
District Court's September 24, 2018 order granting
injunctive and declaratory relief to BCI. We affirm in part,
vacate in part, and remand in part the order of injunctive
relief. We vacate and remand the declaratory judgment.
following facts were found by the District Court and are not
in dispute on appeal. NACM is a national trade association of
commercial credit professionals that provides services, such
as educational programs and legislative advocacy, to a series
of regional "Affiliates." BCI is one of those
Affiliates. Under the contract at issue, it has exclusive
rights to provide credit services as a NACM Affiliate in the
New England area.
have customers, called "members," to whom they
provide "core services." These include access to
credit information, education on credit issues, and
collection services. Members of Affiliates are also members
of NACM. NACM also provides education and professional
certification coursework to members.
Affiliate signs an identical contract with NACM. This appeal
arises out of NACM's termination of the 2011 version of
this agreement ("2011 Agreement") between BCI and
2011 Agreement provides, among other things, that NACM will
provide services to Affiliates on certain terms and that NACM
will not "disclose the specific membership list, or
portions thereof, of any Affiliate to any person or
entity" that provides "core services." The
2011 Agreement permits either NACM or the Affiliate to
terminate the agreement "for cause upon 90 days written
notice to the other."
2011 Agreement was automatically renewed on October 28, 2016.
Thus, it would remain in effect until October 28, 2021 if not
terminated for "cause." On May 12, 2017, however,
NACM sent the Chief Operating Officers of the Affiliates
("Affiliate COOs") a new agreement to be discussed
at a meeting of the NACM Board of Directors in June of 2017
and at a meeting of the Affiliate COOs that same month.
those meetings, on June 14, 2017, Jon Flora, a member of the
NACM Board, informed BCI that the NACM Board had approved a
new Affiliate agreement. NACM circulated the new agreement to
Affiliate COOs on July 13, 2017, and informed them that the
NACM Board had "voted to simultaneously terminate all
NACM Affiliated Association Agreements . . . and adopt the
new NACM Affiliation Agreement . . . on August 18[, 2017] at
12 noon ET." Affiliates were required to return signed
versions of the new agreement by that time "in order to
maintain . . . Affiliate status." BCI was not happy with
the new agreement's terms and refused to sign, thus
risking disaffiliation upon termination of the 2011
August 21, 2017, NACM's President, Robin Schauseil,
emailed BCI. She informed BCI that seventeen of the
twenty-two Affiliates had signed the 2017 Agreement and thus
that there was "now a super majority of support for the
2017 Agreement." In that email, Schauseil indicated that
the 2011 Agreement would terminate effective November 17,
2017, pursuant to Article IV, Section 4.D of the 2011
Agreement. That section provides that the agreement may be
"terminated . . . for cause upon 90 days written
notice." Schauseil further explained that "[d]uring
the 90-day termination period, NACM will work towards
ensuring that members . . . have access to NACM products,
services and benefits after November 17th." In
anticipation of the termination of the 2011 Agreement with
BCI, NACM awarded BCI's territory to NACM Connect, the
Affiliate for the Chicago area.
November 8, 2017, BCI filed a complaint in Massachusetts
state court against NACM. The complaint alleged, among other
things, breach of contract. The case was removed a week later
to the United States District Court for the District of