American Bottling Company v. BA Sports Nutrition, LLC

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
THE AMERICAN BOTTLING )
COMPANY, )
)
Plaintiff, )
)
v. ) C.A. No.: N19C-03-048 AML CCLD
)
BA SPORTS NUTRITION, LLC and )
THE COCA-COLA COMPANY, )
)
Defendants. )
Submitted: October 14, 2021
Decided: December 15, 2021
Publicly Issued: December 22, 2021
MEMORANDUM OPINION
Upon Plaintiff’s Motion for Partial Summary Judgment: GRANTED
Upon Defendant BodyArmor’s Motion for Summary Judgment: DENIED
Upon Defendant Coca-Cola’s Motion for Summary Judgment: DENIED
Garrett B. Moritz, Esquire, Elizabeth M. Taylor, Esquire of ROSS ARONSTAM &
MORITZ LLP, Wilmington, Delaware, Robert C. Walters, Esquire, Russell H.
Falconer, Esquire, Sophie C. Rohnke, Esquire, Andrew H. Bean, Esquire, Megan Z.
Hulce, Esquire, and Emily A. Jorgens, Esquire of GIBSON DUNN & CRUTCHER
LLP, Dallas, Texas, Attorneys for Plaintiff The American Bottling Company.
A. Thompson Bayliss, Esquire, and Daniel J. McBride, Esquire of ABRAMS &
BAYLISS LLP, Wilmington, Delaware, David H. Bernstein, Esquire, Jyotin Hamid,
Esquire, Jared I. Kagan, Esquire, Matthew J. Petrozziello, Esquire, Danielle
Vildostegui, Esquire, and Sebastian Dutz, Esquire of DEBEVOISE & PLIMPTON,
New York, New York, Attorneys for Defendant BA Sports Nutrition, LLC.
Rolin P. Bissell, Esquire, James M. Yoch, Jr., Esquire, Michael A Laukaitis II,
Esquire, and Kevin P. Rickert, Esquire of YOUNG CONAWAY STARGATT &
TAYLOR, LLP, Wilmington, Delaware, Michael C. Holmes, Esquire, Craig E.
Zieminski, Esquire, and Andrew E. Jackson, Esquire of VINSON & ELKINS LLP,
Dallas, Texas, Attorneys for The Coca-Cola Company.
LEGROW, J.
For a period of three years, the plaintiff, American Bottling Company
(“ABC”), and defendant, BA Sports Nutrition, LLC (“BodyArmor”), enjoyed a
mutually profitable and productive relationship in which ABC was the nationwide
distributor for BodyArmor’s sports drinks under a distribution agreement negotiated
between the parties. In 2018, ABC’s corporate great-grandparent underwent a
merger that resulted in a new entity controlling a majority of the corporate great-
grandparent’s stock. Although ABC’s legal existence and ownership remained
unchanged, and ABC retained responsibility for carrying out its obligations under
the distribution agreement, changes did occur in the identity of various ABC
managers and board members as a result of the merger. BodyArmor, put off by the
new controlling entity’s perceived lack of interest in acquiring BodyArmor as a
whole, and concerned about personnel changes at ABC, took the position that the
merger triggered BodyArmor’s right to terminate the distribution agreement
immediately, with cause, and without paying the substantial termination fee that
BodyArmor otherwise would have been required to pay under the parties’
contract. BodyArmor simultaneously signed a new distribution agreement with
ABC’s competitor, defendant The Coca-Cola Company (“Coca-Cola”). In
connection with that new distribution agreement, Coca-Cola also purchased 15% of
BodyArmor.
This litigation followed. ABC’s claims have gone through various iterations,
but ABC presently maintains a breach of contract claim against BodyArmor and a
tortious interference with contract claim against Coca-Cola. After extensive
pleadings-based motion practice and exhaustive discovery, each party filed a motion
for summary judgment. ABC seeks summary judgment in its favor as to whether
BodyArmor breached the distribution agreement by terminating it. BodyArmor
similarly seeks summary judgment on this question, as well as on whether certain
damages calculations ABC advances are barred under either the contract or because
they are speculative. Finally, Coca-Cola contends the Court should award it
summary judgment on ABC’s tortious interference claim. This opinion resolves all
three motions.
The dispute between ABC and BodyArmor requires this Court first to
interpret the distribution agreement’s termination provision, which gave BodyArmor
a right to terminate the agreement “with cause” if (i) ABC transferred its rights or
privileges under the distribution agreement by, inter alia, a change of control or a
change of management, and (ii) ABC did not first obtain BodyArmor’s consent,
which BodyArmor could not withhold unreasonably. ABC argues no “transfer”
occurred as a result of the merger, while BodyArmor argues the merger resulted in
a change in management and a change of control, which transferred ABC’s rights
2
and privileges to the control and oversight of new individuals at ABC and a new
corporate great-grandparent.
The question before the Court is whether BodyArmor’s interpretation is a
reasonable one. If it is, the Court then must reach collateral issues regarding (1)
whether ABC sought BodyArmor’s consent, (2) whether BodyArmor refused to
consent, and (3) if so, whether BodyArmor’s refusal to consent was
reasonable. Those collateral issues are irrelevant, however, because the Court
concludes ABC’s interpretation of the termination provision is the only reasonable
one. That is, BodyArmor’s right to terminate “with cause” was limited to
circumstances in which ABC transferred its rights or privileges, which could happen
– but does not necessarily happen – in connection with a change in management or
a change of control. Because (1) ABC retained its rights and privileges under the
agreement after the merger; and (2) ABC (as opposed to one of its upstream entities)
did not take any action that resulted in either a transfer or a change in management
or control, BodyArmor had no right to terminate when it did. Accordingly, ABC is
entitled to summary judgment on the question of whether BodyArmor breached the
contract. The issue BodyArmor raises regarding ABC’s damages calculations
cannot be resolved on the present record because whether the calculations are
speculative turns on disputed issues of fact that must be presented at trial.
3
As to Coca-Cola’s motion, the primary dispute between the parties on
summary judgment is which state’s law applies to Coca-Cola’s tortious interference
claim. Although Coca-Cola urges the Court to apply Georgia law to the claim
because many of the contractual negotiations between Coca-Cola and BodyArmor
occurred in Georgia or were conducted by Coca-Cola personnel located in Georgia,
the factors applicable to a choice-of-law analysis favor applying Delaware
law. Delaware is the unifying jurisdiction among the three parties: all three are
incorporated in Delaware and all three selected Delaware as the law or forum that
would apply if their various contractual relationships resulted in litigation. Because
Delaware law applies, ABC’s tortious interference claim must be considered by a
jury, who will determine whether Coca-Cola acted “without justification” in
interfering with the contract between ABC and BodyArmor.
Accordingly, and for the reasons explained below, the Court grants partial
summary judgment to ABC on its breach of contract claim and denies summary
judgment on the balance of the parties’ motions.
FACTUAL & PROCEDURAL BACKGROUND
The following facts are drawn from the record submitted by the parties and
are undisputed unless otherwise noted.
4
A. ABC and BodyArmor’s Distribution Agreement
In 2015, BodyArmor entered into a distribution agreement (the “Distribution
Agreement”) with ABC, giving ABC the exclusive right to distribute BodyArmor’s
products throughout the United States.1 At the time the parties entered into the
agreement, BodyArmor was relatively unknown in the beverage industry and
looking to expand its presence.2 From 2015 to 2018, the number of stores selling
BodyArmor more than tripled.3
The Distribution Agreement’s initial term was ten years and automatically
renewed for successive five-year terms.4 ABC’s primary performance obligation
under the Distribution Agreement was to develop a plan “to maximize distribution
and sales” of BodyArmor’s products through marketing and maintaining supply to
meet customer demand.5 Distribution rights were “entered into by [BodyArmor], on
the basis of careful investigation of [ABC’s] reputation, experience and knowledge
of its personnel.”6
1
Plf.’s Mot. for Partial Summ. J., (hereinafter, “Plf.’s Mot.”), Ex. 6.
2
D.I. 438, Mem. Op. at 2.
3
Plf.’s Mot., Ex. 5.
4
D.I. 413, Mem. Op. at 2.
5
Plf.’s Mot., Ex. 6 § 4.
6
Def. BodyArmor’s Mot. for Summ. J., (hereinafter, “Def. BA’s Mot.”), Ex. 60, at § 10.2.
5
B. Mike Repole’s Relationship with ABC Personnel
Mike Repole (“Repole”) is the co-founder and Chairman of BodyArmor. 7
By 2018, Repole had established a relationship of “trust, respect, and friendship”
with various individuals at ABC, particularly Larry Young (“Young”), Marty Ellen
(“Ellen”), and Rodger Collins (“Collins”).8 Young, ABC’s CEO, had over thirty
years’ experience in the beverage industry and had received numerous industry
accolades due to his “excellent reputation.”9 Ellen, ABC’s CFO, had worked in the
beverage industry for more than a dozen years.10 Collins, an Executive Vice
President at ABC, had spent nearly forty years distributing beverages, served in
leadership roles within the beverage industry, and had “extensive knowledge” about
the industry.11 Young and Ellen, in addition to serving as ABC’s CEO and CFO,
were two of the three members of its Board of Directors and the only two with
operating roles.12
Repole’s strong relationship with ABC personnel was due in part to a previous
distribution contract between ABC and VitaminWater, an earlier beverage brand
Repole co-created.13 That collaboration with the ABC team was successful; Repole
7
D.I. 413, Mem. Op at 3.
8
Def. BA’s Mot., Ex. 21 at ¶¶ 1-3, 31-32, 43-45.
9
Id., Ex. 10, at 20:9-24, 26:23-27:14, 27:21-28:17; Exs. 11, 12.
10
Id., Ex. 10, at 267:11-16; Ex. 5, at 18:6-9, 18:23-19:1.
11
Id., Ex. 4, at 21:16-24:11.
12
Id., Ex. 2, at 32:19-25; Ex. 13.
13
Id., Ex. 10, 76:7-17; Ex. 4, at 43:21-44:3.
6
and his partners eventually sold VitaminWater for a significant sum.14 Following
that success, Repole frequently met and communicated with Young, Ellen, and
Collins regarding the new beverage brand, BodyArmor.15 He repeatedly expressed
that BodyArmor placed a high value on its relationship with those three ABC
executives.16
C. The Distribution Agreement’s Termination Provisions
The Distribution Agreement gave BodyArmor only limited rights to
terminate the parties’ agreement; it could terminate either (1) “Without Cause” or
(2) “With Cause.”17 BodyArmor could terminate the Distribution Agreement
“Without Cause” on three occasions: five, seven, or nine years into the initial term.18
If BodyArmor terminated Without Cause or elected not to renew the Distribution
Agreement after the initial term, it was required to pay a termination fee.19 The
Distribution Agreement also allowed BodyArmor to terminate the contract “With
Cause” in limited circumstances.20 Section 11.3.1(d) of the Distribution Agreement
allowed BodyArmor to terminate “With Cause” if “[ABC] transfers or attempts to
14
Id., Ex. 21, at ¶¶ 1-3, 31-32, 43-45.
15
Id., Ex. 10, at 81:2-4; Ex. 5, at 85:10-14; Ex. 4, at 127:12-17.
16
Id., Ex. 23; Ex. 24; Ex. 25; Ex. 26; Ex. 27; Ex. 28; Ex. 29.
17
D.I. 188, Mem. Op at 3; Plf.’s Mot., Ex. 6 § 11.2; Ex. 6 § 11.3.1(d).
18
Plf.’s Mot., Ex. 6 § 11.2; Ex. 8 § 11.2.
19
Id., Ex. 6 §11.5; Ex. 8 §11.5.
20
Id., Ex. 6 § 11.3.1(d).
7
transfer, directly or indirectly, any of its rights or privileges hereunder in violation
of Section 10.2 [of the Distribution Agreement].”21 Section 10.2 provides:
This Agreement is being entered into by [BodyArmor], on the
basis of careful investigation of [ABC’s] reputation, experience and
knowledge of its personnel. This Agreement and [ABC’s] duties and
privileges may not, without the prior written approval of [BodyArmor]
(which consent shall not be unreasonably withheld) be transferred by
assignment, pledge or hypothecation, merger, consolidation,
reorganization or similar event, change in the management or control
of [ABC], sale or transfer of securities or otherwise by operation of law,
or sale of all or a substantial portion of [ABC’s] business or assets, or
otherwise.22
Because the two provisions work in tandem, the Court refers to Sections 11.3.1(d)
and 10.2 as the “Termination Provision” throughout this opinion.
D. The Merger and ABC’s Structure
Before January 2018, ABC was a wholly-owned subsidiary of Dr. Pepper
Snapple Group (“DPSG”), its publicly traded upstream parent company.23 DPSG
owned ABC through two intermediate entities.24
From 2015 to 2018, the parties each performed their obligations under the
Distribution Agreement and enjoyed a productive partnership.25 On January 29,
2018, however, DPSG announced an intent to enter into a transaction (the “Merger”)
21
Id.
22
Id., § 10.2.
23
D.I. 188, Mem. Op. at 2.
24
Id.
25
Plf.’s Mot., Ex. 9.
8
involving JAB Holding Company (“JAB”).26 Through a reverse triangular merger,
(1) Keurig Green Mountain, Inc. (“Keurig”) would become an indirect wholly-
owned subsidiary of DPSG, (2) JAB would receive a majority of DPSG’s shares, (3)
and DPSG would change its name to Keurig Dr. Pepper (“KDP”).27 The Merger
was accomplished when a JAB subsidiary, Maple Parent Holdings Corp, merged
with a DPSG subsidiary, Salt Merger Sub, Inc, with Maple Parent surviving the
transaction as a wholly-owned subsidiary of DPSG.28 Neither ABC nor its parent or
grandparent entities was one of the merging entities.29
After the Merger, DPSG changed its name to KDP but remained the same
corporation.30 Just as before the Merger, ABC was owned by DPS Holdings, Inc.
and Snapple Beverage Corporation.31 DPS Holdings, Inc. was wholly-owned by
DPS Americas Beverages, LLC. Ownership of DPSG, however, did shift as a result
of the Merger. Before the Merger, all DPSG’s stock publicly was owned and traded.
26
Id., Ex. 12.
27
Id.
28
Id., Ex. 15.
29
Id., Ex. 14; Ex. 15 at 510. ABC’s parent company is DPS Holdings Inc., and its grandparent
company is DPS Americas Beverages, LLC.
30
D.I. 413, Mem. Op. at 3.
31
Plf.’s Mot., Ex. 15. Before and after the Merger, DPS Holdings owned 95.6% of ABC, with
Snapple Beverage Corp. owning the remaining 4.4%. DPS Holdings owned Snapple Beverage
Corp., effectively giving DPS Holdings complete control of ABC.
9
After the Merger, JAB owned 87% of DPSG’s stock, while the remainder was
owned publicly.32 The Merger closed in July 2018.33
E. Changes to ABC’s Board and Management Post-Merger
Following the Merger, Keurig/JAB became responsible for selecting ABC’s
management and board members.34 Two Keurig executives, Robert Gamgort
(“Gamgort”) and Ozan Dokmecioglu (“Dokmecioglu”) replaced Young and Ellen
as ABC’s CEO and CFO, respectively.35 Gamgort and Dokmecioglu also replaced
Young and Ellen as members of ABC’s board.36 Collins was to resign from his
position within one year of the Merger’s closing.37 Additionally, Gamgort selected
a new management team for ABC which resulted in the departure or replacement of
twelve of ABC’s officers.38 Two of the three regional managers were transitioned
out in connection with the Merger.39 After working with JAB’s replacements,
Repole expressed concern that he and JAB had “incompatible styles and
philosophies[.]”40
32
Id., Exs. 12, 14, 15, 16.
33
D.I. 413, Mem. Op. at 2-3.
34
Def BA’s Mot., Ex. 18 at ‘898; Ex. 75 (confirming that “the D&O slates for after the effective
time [of the Merger]” would “come from [Keurig]”).
35
Id., Ex. 31, at ‘759.
36
Id., Ex. 34; Ex. 14.
37
Id., Ex. 4, at 60:15-61:8, 62:13-63:2; Ex. 35.
38
Id., Ex. 6, at 150:1-153:1.
39
Id., Ex. 40; Ex. 4, at 31:19-32:10, 66:25-67:20.
40
Id., Ex. 49; Ex. 50.
10
F. Repole Contacts The Coca-Cola Company
Although ABC and BodyArmor contest whether ABC sought and whether
Repole withheld his consent to the Merger,41 it is undisputed that Repole’s consent
would be necessary under the Distribution Agreement if the Merger resulted in a
transfer by change in management or control.42 The record reflects that Repole
spoke extensively with ABC and JAB in the months after the Merger’s
announcement.43
After the Merger was announced, but before it closed, Repole also contacted
The Coca-Cola Company (“Coca-Cola”).44 Repole told Coca-Cola the Merger
effectively was a change in control as defined in the Distribution Agreement,
permitting BodyArmor to terminate “With Cause.”45 Discussions with Coca-Cola
41
D.I. 615; D.I. 618; D.I. 623.
42
See Plf.’s Mot., Ex. 6 § 11.3.1(d). ABC filed a supplemental submission regarding its partial
summary judgment motion concerning Repole’s recent deposition testimony (hereinafter, “Plf.’s
Supp. Sub.”). ABC contends Repole gave unequivocal testimony that ABC repeatedly sought
BodyArmor’s consent. (“When I spoke to [Collins] the day of the deal, . . . [Collins] clearly said
‘Mike, we need you to consent.’”) Plf.’s Supp. Sub. Ex. 1, 105:12-15. See also Ex. 1 at 123:5-10,
124:12:21, 195:8, 198:14-15; 199:8-10; 199:20; 226:12-14; 250: 14-15. BodyArmor alleges
Repole did not testify “either (a) that ABC ever made a formal request that BodyArmor consent to
the transfer of distribution rights through the changes in the management and control of ABC that
would occur upon the closing of the merger, or (b) that BodyArmor unequivocally would have
refused such a formal request had it ever been made. Rather, Mr. Repole testified [] that Collins .
. . tried to pressure him early in 2018 (just after the merger was announced) to confirm that he
would consent at a later date when and if ABC formally sought consent…” Def. BodyArmor’s
Resp. to Plf.’s Supp. Sub. at 2; see also Ex. 1 at 201:10-19; 124:5-125:16; 200:1-21.
43
Plf.’s Mot., Ex. 21-23.
44
D.I. 438, Mem. Op. at 2.
45
Def. Coca-Cola’s Mot. for Summ. J. (hereinafter, “Def. Coca-Cola’s Mot.”), Ex. 7, Hastie Dep.
88:11-24; Ex. 8, BODYARMOR00138992, AT ‘002.
11
about BodyArmor’s distribution rights commenced, with Repole making it “very
clear that [BodyArmor] had a change-of-control provision [in the Distribution
Agreement] that allowed [BodyArmor] to move distribution” to another partner.46
Coca-Cola was interested in being that partner.
G. Negotiations between Coca-Cola and BodyArmor
In mid-February 2018, Coca-Cola executives met in Atlanta to consider the
company’s strategic fit for BodyArmor.47 Coca-Cola spent months creating
projections and valuation models.48 While negotiating with BodyArmor, Coca-Cola
became concerned that a partnership with BodyArmor exposed Coca-Cola to a
potential claim for tortious interference with the Distribution Agreement.49 But
Coca-Cola’s attorneys and outside counsel reviewed the Distribution Agreement and
concluded it allowed BodyArmor a broad right to terminate because the Merger
resulted in a change of control of ABC.50 First, Coca-Cola’s counsel presumed that
because ABC was part of an integrated organization that underwent a change of
46
Id., Ex. 7, Hastie Dep. 88:11-24; Ex. 8, BODYARMOR00138992, AT ‘002.
47
Def. Coca-Cola’s Mot., Ex. 10, at ‘487-89; ‘493.
48
Id., Ex. 35, COCA-COLA_0037001; Ex.36, Drucker Dep. 79:14-82:12.
49
Id., Ex. 37, UyHam Dep. 39:11-16, 40:22-41:19, 42:15-43:7, 47:4-49:12.
50
Id., Ex. 37, UyHam Dep. 97:21-25; Ex. 38, Baglio Dep. 33:9-15. Coca-Cola’s in-house counsel
analyzed SEC filings related to the Transaction and concluded that based on (1) a new controlling
stockholder, (2) changes to the majority of the board, and (3) the fact that ABC was a subsidiary
of DPSG, there was a change in control at DPSG’s “integrated” enterprise, including its
distribution subsidiary, ABC. Def. Coca-Cola’s Mot., Ex. 37, UyHam Dep. 98:7-23, 125:7-126:22;
see also Ex. 42, Dr. Pepper Snapple Group, Schedule 14A (Preliminary Proxy Statement) at 12-
14, 39, 41, 49 (May 14, 2018).
12
control, the Distribution Agreement’s Termination Provision was triggered.51
Additionally, Coca-Cola’s counsel believed the Termination Provision allowed
BodyArmor to terminate because ABC directly or indirectly transferred its rights or
privileges in violation of that provision.52 Lastly, Coca-Cola confirmed during its
due diligence that ABC had not requested BodyArmor’s consent to the Merger.53
Repole was “consistent and clear” that he had a change-of-control provision.54
Based on these considerations, Coca-Cola’s lawyers were comfortable moving
forward with a transaction with BodyArmor.55
Even so, Coca-Cola recognized the risk of litigation and liability and
negotiated for BodyArmor to indemnify Coca-Cola if ABC sued. The Unit Purchase
Agreement (“UPA”) Coca-Cola and BodyArmor ultimately signed included a
detailed clause requiring BodyArmor to indemnify Coca-Cola if it incurred liability
to ABC.56 That UPA included Delaware forum and choice of law provisions.57
51
Def. Coca-Cola’s Mot., Ex. 37, UyHam Dep. 97:17-98:23.
52
Id., Ex. 41, ABC0089996 at ‘003.
53
Id., Ex. 37, UyHam Dep. 100:19-25; Ex. 43, COCA-COLA_0054736, at ‘738 (BodyArmor’s
termination letter clearly stated that ABC had not requested consent); Ex. 37, UyHam Dep. 101:10-
23 (document review reflected no such request).
54
Id., Ex. 7, Hastie Dep. 89:13-90:16, 93:9-22, 94:16-19.
55
Id., Ex. 37, UyHam Dep. 97:17-25, 195:8-197:24; Ex. 38 Baglio Dep. 141:4-13.
56
Id. Ex. 36, Drucker Dep. 137:8-12, 138:5-12, 141:3-25, 151:3-10, 213:2-8, 213:13-23; Ex. 47,
Lewendon Dep. 116:13-18; Ex. 50, COCA-COLA_0002698; Ex. 49, Quintero-Johnson Dep.
151:1-8, 152:4-10, 154:4-13.
57
Plf.’s Br. in Opp. to Def. Coca-Cola’s Mot. for Summ. J. (hereinafter, “Plf.’s Br. in Opp. to
Def. Coca-Cola”), Ex. 43.
13
The initial in-person meeting between BodyArmor and Coca-Cola was held
on April 19, 2018, in Atlanta.58 Over the next few months, the parties negotiated by
phone and email from various geographical locations and conducted due diligence
in New York.59 On July 19, 2018, Coca-Cola’s Board of Directors met in Atlanta to
authorize the deal team to negotiate an agreement with BodyArmor.60 A Letter of
Intent (“LOI”)61 was finalized on July 27, 2018, indicating BodyArmor would
terminate the Distribution Agreement with ABC and transfer exclusive distribution
rights to Coca-Cola.62 On August 13, 2018, BodyArmor officially terminated the
Distribution Agreement with ABC “With Cause.”63 BodyArmor simultaneously
signed a two-step deal with Coca-Cola where Coca-Cola paid $300 million to
acquire (1) a 15% ownership stake in BodyArmor, (2) distribution rights for
BodyArmor’s products, and (3) a right to purchase the remaining 85% of
BodyArmor in November 2021.64 Repole sent ABC notice the same day, advising
58
Def. Coca-Cola’s Mot., Ex. 11, COCA-COLA_0001283, at ‘283; Ex. 78, COCA-
COLA_0002658.
59
Plf.’s Br. in Opp. to Coca-Cola’s Mot., Ex. 80, 109, 110 (reflecting negotiations from
Australia, California, and Italy); Ex. 107 (reflecting due diligence conducted in New York).
60
Def. Coca-Cola’s Mot., Ex. 44, COCA-COLA_ 000567, AT ‘567, ‘576, ‘579-80. The deal
documents negotiated between the parties reflected BodyArmor’s assertions that it had a change
of control provision, it wanted to leave KDP, and no termination payment was required as part of
DPSG’s change of control.
61
Plf.’s Mot., Ex. 42.
62
Def. Coca-Cola’s Mot., Ex. 46, Hadley Dep. 276:9-24; Ex.47, Lewendon Dep. 48:7-49:12; Ex.
48, BODYARMOR00019208, at ‘211-12.
63
Def. BA’s Mot., Ex. 57.
64
Plf.’s Mot., Ex. 43 at COCA-COLA000131, COCA-COLA000142-45.
14
that BodyArmor signed a deal with Coca-Cola and was terminating the Distribution
Agreement “With Cause.”65
H. Relevant Filings in this Court66
On March 11, 2019, ABC filed this case against BodyArmor and Repole.67
ABC’s complaint alleged (1) a breach of contract claim against BodyArmor, (2) a
promissory estoppel claim against BodyArmor, and (3) a tortious interference with
contract claim against Repole.68 Both Repole and BodyArmor moved to dismiss the
complaint under Superior Court Civil Rules 12(b)(2) and 12(b)(6).69
In its motion to dismiss, BodyArmor argued that under the Distribution
Agreement’s Termination Provision, each of the transactions listed after the words
“transferred by” (“assignment,” “pledge or hypothecation,” etc., “or otherwise”)
was, by definition, a transfer of the Agreement.70 The Merger, BodyArmor argued,
resulted in a change in management and a change in control of ABC, and
BodyArmor was entitled to terminate the agreement “With Cause” since ABC did
not seek BodyArmor’s prior written approval.71 ABC argued the Termination
65
Id., Ex. 3.
66
The motion practice in this case has been prolific. A complete description would take on the
length of a Tolstoy novel, with none of the plot twists or literary interest. What follows is a bare
summary of the relevant procedural events.
67
Plf.’s Initial Compl.
68
Id. ¶¶ 17-19.
69
D.I. 29, Defs. BA’s and Repole’s Mot. to Dismiss.
70
D.I. 40, Def. BA’s Reply Br. at 5-6.
71
D.I. 29, Def. BA’s Br. in Supp. of Mot. to Dismiss at 1-2.
15
Provision provided a non-exclusive list of events that might constitute a transfer, but
that the Termination Provision only could be triggered if ABC actually transferred
the Distribution Agreement or its duties and privileges thereunder.72
The Court denied BodyArmor’s motion to dismiss and held that (1) the
critical question is whether a transfer occurred, and (2) ABC’s interpretation of the
Termination Provision was “reasonable.”73 As to Repole’s motion to dismiss the
tortious interference claim against him, the Court granted that motion but gave ABC
leave to replead its claim.74 ABC filed an amended complaint, and Repole and
BodyArmor filed an answer and affirmative defenses.
After conducting some discovery, including third-party discovery of Coca-
Cola, ABC moved for leave to file a second amended complaint in order to add a
new tortious interference claim against Coca-Cola.75 This second amended
complaint contained new allegations of fact, prompting Repole and BodyArmor to
file new motions to dismiss the tortious interference claim against Repole and the
promissory estoppel claim against BodyArmor. After briefing, the Court dismissed
the claim against Repole, holding that ABC had not alleged facts to overcome the
72
Plf.’s Initial Compl. ¶ 61.
73
D.I. 47, Tr. 84:13-14, 86: 9-11, 86:21-87:2. Because that conclusion was sufficient to allow
ABC’s claims to proceed, the Court declined to determine at that early stage whether ABC’s
interpretation was the only reasonable interpretation of the Termination Provision.
74
Id., Tr. 92:8-16, 93:1-4.
75
D.I. 52.
16
legal presumption that Repole acted in BodyArmor’s best interests.76 As to the
promissory estoppel claim, the Court held the second amended complaint’s
allegations supporting that claim had not changed materially and therefore the
Court’s previous ruling denying dismissal remained law of the case.77 ABC,
however, later voluntarily dismissed the promissory estoppel claim.78
On July 30, 2021, all three parties - ABC, BodyArmor, and Coca-Cola - filed
their motions for partial or complete summary judgment.79 The case is scheduled
for a two-week jury trial to begin on January 31, 2022.
I. Parties’ Contentions
In its motion for partial summary judgment, ABC contends the Court should enter
judgment as a matter of law in its favor as to whether BodyArmor breached the
Distribution Agreement.80 According to ABC, the Termination Provision only is
triggered upon a transfer of ABC’s duties or obligations under the Distribution
Agreement, including by change in management or change in control. Undisputed
facts, it contends, show no such transfer took place. The rights and obligations
associated with the Distribution Agreement remained with ABC after the Merger.
ABC alternatively argues that even if this Court finds a transfer of rights or
76
American Bottling Co. v. Repole, 2020 WL 7787043, at *6 (Del. Super. Ct. Dec. 30, 2020).
77
Id. at *8.
78
D.I. 483.
79
D.I. 487, 489, 491.
80
See Plf.’s Mot.
17
obligations did occur, or that there is a factual dispute regarding the transfer question,
judgment as a matter of law in ABC’s favor nevertheless is appropriate because
BodyArmor had no reasonable basis to withhold its consent.
In response, and in its own motion, BodyArmor contends summary judgment
should be entered in its favor because there is no genuine dispute that ABC’s
distribution rights were transferred to new management and a new controller without
BodyArmor’s approval.81 The new management placed new leadership personnel
in key positions that disrupted the relationships Repole previously enjoyed with
ABC’s pre-merger personnel.82 BodyArmor argues ABC never sought
BodyArmor’s consent, and the Court therefore should rule in BodyArmor’s favor
and need not determine whether BodyArmor had a reasonable basis to withhold
approval of the transfer.83
Finally, Coca-Cola contends the Court should grant its summary judgment
motion on ABC’s claim that Coca-Cola tortiously interfered with the Distribution
Agreement.84 Coca-Cola argues Georgia law applies to the tortious interference
claim against it, and ABC has not alleged that Coca-Cola committed “improper
action or wrongful conduct,” which is a necessary element of such a claim under
81
Def. BA’s Mot. at 10.
82
Id. at 2.
83
Id. at 1.
84
Def. Coca-Cola’s Mot. at 1.
18
Georgia law.85 Additionally, Coca-Cola asserts this Court should rule in its favor
even if Georgia law does not apply to the tortious interference claim against it,
because BodyArmor’s termination of the Distribution Agreement did not constitute
a breach of contract.86 Echoing BodyArmor’s arguments, Coca-Cola contends
BodyArmor’s termination of the Distribution Agreement was permitted as a matter
of law because a merger of ABC’s upstream corporate parent caused fundamental
changes at the parent and ABC that required BodyArmor’s consent, which ABC
never sought or obtained.87
ABC responds to Coca-Cola’s argument by contending that it orchestrated a
lengthy effort to lure BodyArmor away from ABC, knowing that doing so would
require BodyArmor to breach the Distribution Agreement with ABC.88 ABC
contends Delaware law applies to its tortious interference claim, but asserts that
regardless of the law governing this claim, it is entitled to present the tortious
interference claim against Coca-Cola to a Delaware jury.89
A determination of whether BodyArmor breached the Distribution Agreement
potentially is dispositive of Coca-Cola’s motion for summary judgment on the
85
Id.
86Id.
87Id.
88Plf.’s Br. in Opp. to Coca-Cola’s Mot. for Summ. J. at 1.
89
Id. at 2.
19
tortious interference claim against it. For that reason, I begin with ABC’s and
BodyArmor’s motions.
ANALYSIS
Summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits” show “there is
no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.”90 The movant bears the initial burden of
demonstrating its motion is supported by undisputed material facts.91 If that burden
is met, the non-movant then must demonstrate that there is a “genuine issue for
trial.”92 To determine whether material facts are in dispute, the Court construes the
record in the light most favorable to the non-movant.93
I. BodyArmor breached the Distribution Agreement by terminating it in
contravention of the Termination Provision.
Before this Court resolves a breach of contract claim, it first must decide the
state’s law that applies to the contract. In this case, Illinois law governs the breach
of contract question because of the contractual choice of law provision included in
90
Del. Super. Ct. Civ. R. 56(c).
91
Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979) (citing Ebersole v. Lowengrub, 180 A.2d
467 (Del. 1962)).
92
Del. Super. Ct. Civ. R. 56(e); see also Brzoska v. Olson, 668 A.2d 1355, 1364 (Del. 1995) (“If
the facts permit reasonable persons to draw but one inference, the question is ripe for summary
judgment.”)
93
Judah v. Del. Tr. Co., 378 A.2d 624, 632 (Del. 1977).
20
the Distribution Agreement.94 Under Illinois law, the elements of a breach of
contract claim are: (1) existence of a valid and enforceable contract; (2) performance
by the plaintiff; (3) breach of contract by the defendant; and (4) resultant injury to
the plaintiff.95 No dispute exists between the parties as to any element other than
breach.96
The rules governing Illinois contractual interpretation generally track those of
Delaware. The construction of a contract is a question of law.97 A contract is
ambiguous if it is subject to more than one reasonable interpretation.98 But the mere
fact that parties disagree over the contract’s interpretation does not suffice to
establish ambiguity.99
A. ABC offers the only reasonable interpretation of the Termination
Provision’s contractual language.
In denying BodyArmor’s motion to dismiss ABC’s breach of contract claim, this
Court already held that ABC’s interpretation of the Termination Provision was
94
Plf.’s Mot., Ex. 6 § 19.1.
95
Henderson-Smith & Assocs., Inc. v. Nahamani Fam. Serv. Ctr., Inc., 752 N.E.2d 33, 43 (Ill.
App. Ct. 2001).
96
The parties dispute the amount of damages the plaintiff may be entitled to if BodyArmor
breached the agreement. See Section II, infra.
97
People ex rel. Dept. of Pub. Health v. Wiley, 843 N.E.2d 259, 268 (Ill. 2006) (citing, e.g., Farm
Credit Bank of St. Louis v. Whitlock, 581 N.E.2d 664 (Ill. 1991) (“The intention of the parties to
contract must be determined from the instrument itself, and construction of the instrument where
no ambiguity exists is a matter of law.”)
98
Gomez v. Bovis Lend Lease, Inc., 22 N.E. 3d 1, ¶ 14 (Ill. App. Ct. 2013) (citing William Blair &
Co., LLC v. Fl Liquidation Corp., 830 N.E.2d 760 (Ill. App. Ct. 2005)).
99
Id. (citing Intersport, Inc. v. Nat’l Collegiate Athletic Ass’n, 885 N.E.2d 532 (Ill. 2008)).
21
reasonable.100 That ruling is the law of the case. In order to resolve ABC’s Motion
for Partial Summary Judgment, therefore, this Court first must determine whether
BodyArmor’s interpretation also is reasonable. BodyArmor contends that a change
in management or change in control at ABC or its upstream entities constituted a
transfer under the parties’ agreement. ABC argues this is not a reasonable reading
of the Termination Provision.
Illinois courts interpret contracts to give effect to the parties’ intent.101 The
best indication of the parties’ intent is the plain meaning of the contract’s
language.102 To accord undefined terms their plain, ordinary, and popular meanings,
Illinois courts and this Court look to dictionary definitions of the words the parties
chose.103
The word “Transfer” generally means:
“To convey or remove from one place, person, etc., to another; pass or
hand over from one to another; specifically, to change over the
possession or control of (as, to transfer a title to land).”104
100
D.I. 47, Tr. 84:13-14, 86: 9-11, 86:21-87:2.
101
Shapich v. CIBC Bank USA, 123 N.E.3d 93, 98 (Ill. App. Ct. 2018) (“In construing a contract,
our primary objective is to give effect to the intent of the parties.”) (citing Thompson v. Gordon,
948 N.E.2d 39 (Ill. 2011)).
102
Gomez, 22 N.E. at ¶ 13 (citing Gallagher v. Lenart, 874 N.E.2d 43 (Ill. 2007)).
103
Valley Forge Ins. Co. v. Swiderski Elecs., Inc., 860 N.E. 2d 307, 316 (Ill. 2006); see also
Tetragon Fin. Grp. Ltd. v. Ripple Labs Inc., 2021 WL 1053835, at *4 (Del. Ch. Mar. 19, 2021)
(citing Lorillard Tobacco Co. v. Am. Legacy Found., 903 A.2d 728, 738 (Del. 2006)
“...[D]ictionaries are the customary reference source that a reasonable person in the position of a
party to a contract would use to ascertain the ordinary meaning of words not defined in the
contract.”) Id.
104Black’s Law Dictionary 1342 (5th ed. 1979) (adopted in People v. McGee, 628 N.E. 2d 867(Ill. App. Ct. 1993)).
22
Under the Termination Provision’s plain language, there must be a transfer of
the Distribution Agreement or ABC’s duties and privileges thereunder to trigger
BodyArmor’s right to terminate “With Cause.” Evidence that a change in
management or change in control occurred at ABC or at its parent or grandparent
levels is not enough to indicate a “transfer” occurred. BodyArmor’s interpretation
to the contrary (i.e., that a change in management or a change in control alone
constitutes a transfer) is not a reasonable one because it conflates “transferred” with
“change in control” or “change in management.” That result contravenes settled law
that courts should endeavor to interpret contracts in a way that accords meaning to
each term.105
BodyArmor’s interpretation also ignores the word “by” in Section 10.2’s
second sentence. “By” is defined as “through the instrumentality of.”106 Under
Section 10.2’s plain terms, ABC’s rights or obligations must be transferred by, that
is through the instrumentality of, a transaction or event. The word “by” confirms
that the examples that follow must actually affect a transfer and do not themselves
automatically constitute a transfer.
105
See, e.g., RBC Mortg. Co. v. National Union Fire Ins. Co. of Pittsburgh, 812 N.E.2d 728, 735
(Ill. App. Ct. 2004); Boise Cascade Home & Land Corp. v. Utilities, Inc., 468 N.E.2d 442, 447
(Ill. App. Ct. 1984).
106
By, Merriam-Webster (online ed.), www.merriam-webster.com/dictionary/by (last visited Oct.
23, 2021). See also Loughrin v. U.S., 573 U.S. 351, 363 (2014) (defining “by means of” as
“through the instrumentality of: by the use of as a means”) Webster’s Third New International
Dictionary 1399 (2002).
23
The parties intended the Termination Provision to be triggered only upon a
transfer of ABC’s rights and privileges, with the language that follows “transferred
by “providing non-exclusive exemplars of ways in which such a transfer could
occur. This interpretation is consistent with the “or otherwise” catchall at the end of
the Termination Provision. ABC’s interpretation also is consistent with the fact that
some of the other listed examples, in addition to changes in management or control,
would not automatically result in a transfer under the law. Whether a transfer
occurred concerning a merger, consolidation, or reorganization would depend on the
facts.107
Other portions of the Distribution Agreement confirm that BodyArmor’s
reading is not a reasonable one. The Termination Provision is not drafted as a “key
man” provision, which is a clause that identifies particular individuals whose
departure would constitute a basis to terminate the contract. If BodyArmor intended
to condition the Distribution Agreement’s continuation on BodyArmor’s right to
107
In re Verizon Appeals, 222 A.3d 566, 580 (Del. 2019) (holding that the parenthetical
“(including, but not limited to, the purchase or sale or offer or solicitation of an offer to purchase
or sell securities)” after “regulating securities” (1) did not restrict the meaning of “regulating
securities” to laws specific to securities transaction because it was expressly “not limited;” (2) the
“purchase or sale” clause provided only a non-exhaustive example of the type of “regulation, rule
or statute regulating securities” that the definition sought to cover; and (3) including one example
did not mean the definition was no longer tethered to laws regulating securities. See also Meso
Scale Diagnostics, LLC v. Roche Diagnostics GmbH, 62 A.3d 62,87 (Del. Ch. Feb. 22, 2013) (in
a reverse triangular merger, change of ownership, “without more [] is not regarded as assigning or
delegating” contractual rights of the purchased entity); Lewis v. Ward, 2003 WL 22461894 at *4,
n. 18 (Del. Ch. Oct. 29, 2003) (in a reverse triangular structure, rights and obligations of target are
not transferred or affected).
24
consent to a change in key management or board positions, it could have drafted
language to accomplish that result. Such provisions exist within commercial
practice.108
Moreover, under the interpretation BodyArmor urges this Court to adopt, the
Termination Provision inevitably would be triggered by natural attrition or
retirements at the management and board level. This result would render
meaningless the parties’ negotiated provisions regarding the terms of the
Distribution Agreement and its renewal process. Under BodyArmor’s
interpretation, at some (undefined) point, with enough changes in management or
board roles, the Termination Provision inevitably would be triggered. But when that
would occur or how the parties would know it occurred remains unclear.
When pressed at oral argument, BodyArmor could not coherently respond to
this concern, except to acknowledge that it would require a fact-intensive inquiry
and would be subject to the requirement that BodyArmor provide “reasonable”
consent.109 This response is particularly remarkable when coupled with
BodyArmor’s contention that, if ABC did not seek BodyArmor’s consent,
108
See, e.g., Beard Research, Inc., v. Kates, 8 A.3d 573, 583 (Del. Ch. 2010) (describing contract
containing “a ‘key man clause’ which state[d]: ‘The following shall constitute events of
termination . . .: departure or reassignment of [two identified individuals] unless [contracting
parties] agree to a replacement.’”)
109
D.I. 592, Tr. 55.
25
BodyArmor’s obligation to provide reasonable consent would be waived.110
BodyArmor’s interpretation therefore would place ABC in the untenable position of
not knowing when BodyArmor would contend a particular management or board-
level change crossed the threshold and resulted in a “transfer.” This result
effectively would require ABC to seek BodyArmor’s consent for every such change,
giving BodyArmor a veto right over all personnel decisions. Even then, ABC still
would be powerless to avoid triggering the Termination Provision because ABC
would have no power to prevent resignations or retirements.
BodyArmor seeks to avoid the unambiguous effect of the Termination
Provision’s terms by pointing to Section 10.2’s first sentence, which states: “[t]his
Agreement is being entered into by [BodyArmor], on the basis of careful
investigation of [ABC’s] reputation, experience and knowledge of its personnel.”
But the Termination Provision’s first sentence neither introduces ambiguity nor
renders BodyArmor’s interpretation reasonable.111 The Distribution Agreement’s
110
Def. BA’s Answering Br. in Opp., at 23 (“In fact, by choosing not to request BodyArmor’s
prior approval in the face of uncertainty about BodyArmor’s position, and by choosing to refrain
from articulating its own position, ABC waived its right to insist that BodyArmor articulate any
reasonable basis for withholding approval under Illinois law.”) Id.
111The parties dispute the meaning of Section 10.2’s first sentence, with ABC arguing it indicates
BodyArmor entered into the Distribution Agreement based on ABC’s own knowledge of its
personnel, not (as BodyArmor contends) based on BodyArmor’s knowledge of ABC’s personnel.
Although there is some grammatical basis for ABC’s proffered interpretation, it makes little sense
in the context of the entire paragraph and the transaction as a whole. In any event, the Court
accords the sentence the meaning urged by BodyArmor, but nonetheless concludes the sentence
does not support BodyArmor’s interpretation of the Termination Provision’s meaning.
26
vague references to BodyArmor’s knowledge of ABC’s personnel cannot change the
parties’ agreement to condition BodyArmor’s termination right on a transfer of
ABC’s duties or privileges. The first sentence of Section 10.2 must be read in
conjunction with that section’s remaining sentence and with Section 11.3.1(d),
which incorporates Section 10.2. Read as a whole, those sections did not give
BodyArmor the right to terminate whenever ABC’s personnel changed. Again, had
BodyArmor intended to give itself a right to withdraw from the contract upon the
departure of particular individuals, it could have drafted language to that effect.
B. No transfer by change of control or change in management occurred in
conjunction with the Merger.
1. The Merger did not result in a transfer by change of control within
ABC.
The Distribution Agreement allowed BodyArmor to terminate its arrangement
with ABC if a change of control occurred. The parties disagree whether change of
control is a board-level or stockholder-level inquiry.112 But under either analysis,
no transfer occurred here. ABC did not cause any transfer by change of control as
required by the Termination Provision because ABC did not effectuate the Merger.
The parties have not pointed to any binding precedent controlling the
resolution of this issue. But courts in other jurisdictions have held a change of
control in an upstream parent company does not transfer a contract held by a
112
D.I. 596, Tr. 51:19-52:3.
27
downstream subsidiary.113 For example, in Foundation for Seacoast Health v. HCA
Health Servs. of New Hampshire, Inc., the New Hampshire Supreme Court
addressed a right of first refusal that was triggered if the defendant, its successors,
or its wholly-owned subsidiary “directly or indirectly by merger or transfer of stock
or otherwise sell, transfer, assign, or otherwise dispose of all or any substantial part
of the assets” of the hospital at issue in the case.114 The plaintiff in that case argued
two transactions that occurred at the defendant’s parent level triggered the right of
first refusal because, inter alia, the contractual provision referred to transfers
conducted “directly or indirectly.”115 The New Hampshire Court disagreed,
focusing on the provision’s language stating “neither [defendant] nor [defendant’s
subsidiary] will” transfer the assets. The Court held that language unambiguously
specified that only two actors – the defendant and its subsidiary – could trigger the
right of first refusal.116 The Court therefore reasoned that an action taken by a parent
or upstream entity could not trigger the right of first refusal.117
113
See, e.g., Found. for Seacoast Health v. HCA Health Servs. of New Hampshire, Inc., 953 A.2d
420, 430 (N.H. July 15, 2008). Although this case is from New Hampshire, Illinois law accords
with its holding. See, e.g., Transamerica Commercial Fin. Corp. v. Stockholder Sys., Inc., 1990
WL 186088, *2 (N.D. Ill. 1990). In Transamerica, the Court held that a contract signed by a party
and prohibiting that party from transferring a software license was not violated by a merger
involving the party’s parent company because the agreement did not prohibit the parent company
from doing anything. Id.
114Found. for Seacoast Health, 953 A.2d at 423.
115
Id. at 425-26.
116
Id. at 425.
117
Id. In so holding, the New Hampshire Court distinguished several cases on which BodyArmor
relies, including H-B-S P’ship v. Aircoa Hosp., 114 P.3d 306 (N.M. Ct. App. 2005); In re Asian
Yard Partners, 1995 WL 1781675 (Bankr. D. Del. Sept. 18, 1995); Con’l Cablevision v. United
28
Here, Section 11.3.1(d) gives BodyArmor a right to terminate with cause if
“[ABC] transfers or attempts to transfer, directly or indirectly, any of its rights or
privileges hereunder in violation of Section 10.2 [of the Distribution Agreement].”118
As in Foundation,119 this language expressly encompasses only transfers undertaken
by ABC. Certainly, BodyArmor could have drafted language in the Distribution
Agreement expressly providing that transactions by a parent could trigger Section
11.3.1(d). Having chosen not to do so, the scope of BodyArmor’s termination right
was limited to actions or transactions taken by ABC that resulted in a transfer.
Moreover, even if Section 11.3.1(d) could be triggered by transactions
undertaken above the ABC level, control of ABC did not change following the
Merger in a way that transferred ABC’s rights or privileges under the Distribution
Agreement. ABC still had the same stockholders and the same controlling
stockholder post-Merger. BodyArmor points out that the identity of two board
members changed after the Merger, but a mere change in the individuals appointed
to particular board seats is not a transfer by change of control when there has been
no change in the entity with the power to appoint and remove those board members.
Broad., 873 F.2d 717 (4th Cir. 1989). Although recognizing that those cases held that parent-level
stock transactions triggered rights of first refusal, the New Hampshire Court found those cases
included broadly worded transfer provisions that overcame the general rule that a transaction at
the parent level does not constitute a transfer at the subsidiary level. Id. For similar reasons, this
Court finds BodyArmor’s reliance on those cases unpersuasive.
118
Plf.’s Mot., Ex. 6 § 11.3.1(d).
119
Found. for Seacoast Health, 953 A.2d at 427.
29
This ruling is consistent with the respect for and recognition of corporate
separateness that is an essential part of both Illinois and Delaware law.120
2. The Merger did not result in a transfer by change in management.
Like the Court’s finding that no change in control occurred, no change in
management occurred that would entitle BodyArmor to be released from its
contractual obligations under a plain reading of the Distribution Agreement. As set
forth above, the Merger involved no action, direct or indirect, by ABC. Accordingly,
Section 11.3.1(d) was not triggered. Although the identity of members of
management changed, ABC’s rights and privileges under the Distribution
Agreement did not shift. ABC personnel remained responsible for the day-to-day
and big picture decisions regarding ABC’s relationship with BodyArmor. The fact
that certain individuals assigned to oversee ABC’s performance under the
120
See, e.g., Manichaean Capital, LLC v. Exela Techs., Inc., 251 A.3d 694 (Del. Ch. May 25,
2021) (“Delaware embraces and will protect ‘corporate separateness.’”) (citing NAMA Hldgs, LLC
v. Related WMC LLC, 2014 WL 6436647, at *26 (Del. Ch. Nov. 17, 2014) (“Delaware law respects
corporate separateness.”)); Pauley Petrol., Inc. v. Cont’l Oil Co., 231 A.2d 450, 454 (Del. Ch.
1967) (“[T]he law must and does respect the separateness of the corporate entity . . .”); see also
Forsythe v. Clark USA, Inc., 836 N.E.2d 850, 854 (Ill. App. Ct. 2005) (“Under Illinois law, a
corporation is deemed a distinct legal entity, separate from other corporations with which it may
be affiliated.”); Tower Inv’rs, LLC v. 111 East Chestnut Consultants, Inc., 864 N.E.2d 927, 941
(Ill. App. Ct. 2007) (“Illinois courts will pierce the corporate veil where: (1) there is such a unity
of interest and ownership that the separate personalities of the corporation and the parties who
compose it no longer exist, and (2) circumstances are such that adherence to the fiction of a
separate corporation would promote injustice or inequitable circumstances.”) (citing Pederson v.
Paragon Pool Enter., 574 N.E.2d 165, 167 (Ill. App. Ct. May 24, 1991)).
30
Distribution Agreement changed did not transfer ABC’s rights and duties to a new
person or entity.
BodyArmor, however, argues the Merger effectively gave JAB authority over
ABC’s management and further contends BodyArmor always treated the
Distribution Agreement as being with DPSG even though the agreement formally
was between BodyArmor and ABC. BodyArmor’s argument elides the involvement
of multiple corporate lawyers in the drafting process as well as the bargained-for
plain language of the Distribution Agreement as being a contract between ABC and
BodyArmor. How BodyArmor “treated” or “viewed” the relationship does not alter
the Distribution Agreement’s plain terms identifying the agreement’s parties.
Again, a simple example of how BodyArmor’s interpretation of the
Distribution Agreement would play out illustrates that no transfer by change in
management occurred. It is undisputed that ABC formally held rights under the
Distribution Agreement both before and after the Merger. Following the Merger,
ABC’s stockholders did not change, and its legal existence remained the same.
Under BodyArmor’s interpretation of the Distribution Agreement, although ABC
legally remained responsible for executing the Distribution Agreement’s terms,
ABC nevertheless was obligated to seek BodyArmor’s consent to a merger that
occurred at ABC’s corporate great-grandparent and that ABC had no power to
prevent or alter. This obligation to seek BodyArmor’s consent purportedly arose
31
simply because the identity of certain individuals managing ABC changed in
connection with the Merger. This reading is not a reasonable interpretation of the
Distribution Agreement.
In light of this Court’s conclusion that the Merger did not trigger
BodyArmor’s right to terminate, ABC’s secondary argument about whether
BodyArmor reasonably could withhold its consent to the Merger is moot. ABC is
entitled to summary judgment that BodyArmor breached the Distribution
Agreement. Conversely, BodyArmor’s motion seeking summary judgment in its
favor as to the breach of contract claim must be denied.
II. Factual issues preclude judgment as a matter of law regarding
whether ABC’s damages analysis is too speculative to be presented to
the jury.
BodyArmor and Coca-Cola also moved for summary judgment as to two of
ABC’s three proffered damages calculations, arguing the calculations are
speculative and based in part on lost profit damages, which BodyArmor argues the
Distribution Agreement entirely prohibited. ABC’s expert intends to offer three
different damages calculations that vary based on how long the Distribution
Agreement would have remained in place but for BodyArmor’s breach in August
2018. The Distribution Agreement had an initial term of ten years, January 2015 to
32
January 2025, and automatically renewed for successive five-year terms.121 During
its initial term, BodyArmor could terminate without cause in January 2020, January
2022, or January 2024.122 If BodyArmor terminated without cause on any of those
dates, or if it did not renew in January 2025, it had to pay ABC a substantial
termination fee.123
Rajiv Gokhale (“Gokhale”) calculated damages as ABC’s damages expert.
Gokhale’s first scenario hypothesizes that if BodyArmor would have terminated
Without Cause in January 2020, ABC’s damages would be its direct lost profits from
August 2018 to January 2020 plus the termination fee.124 Gokhale’s second scenario
assumes BodyArmor would not have renewed in January 2025, in which case ABC’s
damages would be its direct lost profits from August 2018 to January 2025 plus the
termination fee.125 Lastly, Gokhale calculates ABC’s lost profit damages into
perpetuity under the third scenario, which assumes BodyArmor would not have
terminated the Distribution Agreement at any point.126
BodyArmor contends the second and third scenarios are speculative because
it would have terminated the Distribution Agreement in January 2020.127 ABC
121
Plf.’s Opp. to Def. BA’s Mot. for Summ. J (hereinafter, “Plf.’s Opp. to Def. BA’s Mot.”), Ex.
6 § 3.
122
Id. § 11.2.
123
Id. §§ 11.2, 11.5.
124
Id., Ex. 124 at 7, n.25; 36, n.95.
125
Id.
126
Id.
127
D.I. 535, Def. BA’s Reply Br. at 17-20.
33
argues it has developed proof that if BodyArmor had not terminated the Distribution
Agreement in 2018, it also would not have terminated in January 2020.128
A. ABC presents sufficient evidence from which a jury could conclude the
Distribution Agreement would have remained in effect beyond 2020.
The evidence ABC cited in its opposition to BodyArmor’s summary judgment
motion reveals disputed factual issues as to whether the Agreement would have
remained in place beyond January 2020. ABC contends the Distribution Agreement
renewed automatically for successive five-year terms, indicating a contractually
created default for the Distribution Agreement to continue.129 The cost for
BodyArmor to terminate in January 2020 would have been between $182 million
and $264 million, producing an exit cost that might have served as a substantial
barrier to termination.130 Further, ABC cites additional fact witnesses and expert
testimony supporting its position that BodyArmor would not have terminated the
Distribution Agreement in January 2020.131 This Court cannot resolve factual issues
on a motion for summary judgment. If BodyArmor has conflicting evidence on this
point, that conflict also is to be resolved by a jury.
128
Plf.’s Opp. to Def. BA’s Mot. at 34.
129
Id.
130
Id., Ex. 124, Ex. 8.
131
Id., Ex. 113 § VI.; Ex. 125 at 243:10-25; Ex. 29 at 339:18-340:18.; Ex. 126 at 261:2-19; Ex. 29
at 208:2-10.
34
B. Whether Gokhale’s calculations are speculative will depend on the facts
developed at trial.
Illinois prohibits damage calculations based on speculation.132 Damages are
speculative if there is no evidence in the record to support them. 133 BodyArmor
argues that under Illinois law ABC’s assumption that the Distribution Agreement
would be renewed or not terminated at the earliest permissible time is speculation.134
But the law is more nuanced and depends on the jury’s determination of facts.
In BTG International, Inc. v. Wellstat Therapeutics Corp., the Delaware Court
of Chancery held after trial that awarding damages for the breached contract’s
renewal period would be too speculative.135 The Court noted, however, that courts
will award damages for a renewal term when a plaintiff can prove with reasonable
certainty that the contract would have been renewed.136 The BTG International
Court acknowledged there was a “sound argument” that the plaintiff should receive
132
Raytheon Co. v. BAE Sys. Tech. Sols. & Servs. Inc., 2017 WL 5075376, at *9 (Del. Super. Ct.
Oct. 30, 2017) (“If the profits a party seeks are merely speculative, possible or imaginary they
cannot be recovered.”) (internal quotation marks omitted).
133
Republic Bank of Chi. V. Desmond, 579 B.R. 466, 491 (N.D. Ill. 2016).
134
Def BA’s Mot. at 30. (“Any damages premised on the hypothetical assumption that BodyArmor
would have declined to exercise that right would not make ABC whole for the allegedly improper
termination before that date but rather would provide ABC an unwarranted windfall based on
speculation and conjecture.”) Id.
135BTG Int’l, Inc. v. Wellstat Therapeutics Corp., 2017 WL 4151172, at *20 (Del. Ch. Sept. 19,
2017). The BTG International, Inc. court applied Delaware law to its damages analysis, but
BodyArmor cited the case in its motion for summary judgment. See Def. BA’s Mot. at 30-31. The
parties did not identify any differences between Illinois and Delaware law with respect to the
availability of contractual damages.
136
Id. at *20, n. 208 (citing M&G Polymers USA, LLC v. Carestream Health, Inc., 2009 WL
3535466, at *9 (Del. Super. Ct. Aug. 9, 2009); Supervalu, Inc. v. Assoc. Grocers, Inc., 2007 WL
624342, at *3 (D. Minn. Jan. 3, 2007)).
35
damages for the renewal term.137 The Court of Chancery also concluded the plaintiff
was entitled to damages for the entire initial term of the contract notwithstanding the
defendant’s right to terminate early “for convenience.”138 Although this Court
remains skeptical that ABC will be able to show with reasonable certainty that the
parties would have continued their relationship into perpetuity,139 the factual
disputes preclude summary judgment at this time. Defendant may, however, renew
this argument at trial after ABC’s presentation of its evidence.140
BodyArmor also mistakenly relies on Monetti S.p.A. v. Anchor Hocking Corp.
to support its argument that damages for the renewal period would be speculative.141
In that case, the Court granted a motion to exclude evidence on prejudgment interest
separately or as a component of present value.142 In Monetti, however, neither party
had an option to renew the contract.143 Here, the contract automatically renewed
unless terminated, and BodyArmor would have to pay a substantial termination fee
if it did not renew. Contrary to BodyArmor’s position, several issues of fact
137
Id. at *20.
138
Id. at *19.
139
Illinois courts generally find contracts that extend into perpetuity invalid. See, e.g., Rico Indus.,
Inc. v. TLC Group, Inc., 6 N.E.3d 415, 420 (Ill. App. Ct. 2014) (“[W]e find that perpetual contracts
are contrary to public policy.”).
140
Super. Ct. Civ. R. 50.
141
Monetti S.p.A. v. Anchor Hocking Corp., 1992 WL 67852, at *3 (N.D. Ill. Mar. 23, 1992)
(dismissing as “mere speculation” plaintiff’s damages claim based on a “substantial likelihood the
contract would be renewed”).
142
Id. (“Lost profits are rarely determinable with enough precision to be considered liquidated
and to merit prejudgment interest.”)
143
Id.
36concerning when the Distribution Agreement would have been terminated exist in
this case, including: (1) BodyArmor’s CFO’s testimony regarding whether
BodyArmor would have considered staying after 2020;144 (2) Repole’s statements
regarding wanting to stay long term;145 and (3) the existence of a significant
termination fee if BodyArmor did not renew the Distribution Agreement.146
C. Section 21 bars only consequential lost-profits damages.
Section 21 of the Distribution Agreement provides that “Neither
[BodyArmor] nor [ABC] will be liable to the other party for any indirect, incidental,
consequential, exemplary, special or punitive damages, including any loss of
profit…”147 BodyArmor argues Section 21 bars the inclusion of any lost profits in
a damages calculation.148 But BodyArmor’s argument is not consistent with settled
law. Under Illinois law, where a contract includes the phrase “including loss of
profits…” after an exclusion of consequential damages, the phrase is meant to
illustrate the types of consequential damages barred by the contract and does not
preclude the recovery of direct lost profits.149 Accordingly, Section 21 of the
144
Plf.’s Opp. to Def. BA’s Mot., Ex. 29 at 339:18-340:18.
145
Id., Ex. 127; Ex. 128; Ex. 129.
146
Id., Ex. 124, Ex. 8.
147
Id., Ex. 6 §21.
148
Def. BA’s Mot. at 32.
149
Aculocity, LLC v. Force Mktg. Holdings, LLC, 2019 WL 764040, at *3 (N.D. Ill. Feb. 21, 2019).
37
Distribution Agreement does not bar all lost-profit damages, but only consequential
lost-profit damages.150
Because ABC is seeking to recover direct lost-profit damages, Section 21 does
not bar Gokhale’s calculations. Direct damages are “the benefit of the bargain that
the party lost from the contract itself, while consequential damages [are] economic
harm beyond the contract’s immediate scope.151 To the extent BodyArmor contends
some of ABC’s damages calculation includes consequential lost profits, that
classification issue is a fact question for the jury.152
III. Coca-Cola is not entitled to summary judgment because Delaware law
governs ABC’s tortious interference claim.
In a separate motion, Coca-Cola argues this Court should enter judgment in
Coca-Cola’s favor for two reasons: (1) Georgia and not Delaware law applies to
ABC’s tortious interference claim under the “most significant relationship” test; and
(2) ABC has not adduced evidence that Coca-Cola committed any “wrongful
conduct” necessary to sustain the tortious interference claim against it. 153 Under
Georgia law, “wrongful conduct” is required for a court to find that tortious
150
Plf.’s Opp. to Def. BA’s Mot., Ex. 6 § 21. (“Neither [BodyArmor] nor [ABC] will be liable to
the other party for any indirect, incidental, consequential, exemplary, special or punitive damages,
including any loss of profit . . .”)
151
Westlake Fin. Grp., Inc. v. CDH-Delnor Health Sys., 25 N.E.3d 1166, 1175 (Ill. App. Ct. 2015).
152
See Dyson, Inc. v. Syncreon Tech. (Am.), Inc., 2019 WL 3037075, at *8 (N.D. Ill. July 11,
2019); Frank’s Maint. & Eng’g v. C.A. Roberts Co., 408 N.E.2d 403, 409 (Ill. App. 1980).
153
Def. Coca-Cola’s Mot. for Summ. J. (hereinafter, “Def. Coca-Cola’s Mot.”) at 1.
38
interference has occurred.154 But for the reasons set forth below, this Court holds
that Delaware law, not Georgia law, applies to the tortious interference claim. The
parties’ arguments regarding whether Coca-Cola engaged in an “independently
wrongful act” therefore are irrelevant. And whether Coca-Cola’s actions were
“without justification,” which ABC must establish to sustain its tortious interference
claim under Delaware law, is a question to be left for the jury.155 Coca-Cola’s
summary judgment motion therefore is denied.
A. Delaware has the “most significant relationship” to the parties and the
current litigation under the Restatement’s choice-of-law analysis.
When considering Coca-Cola’s motion for summary judgment, the Court first
must determine which state’s law governs ABC’s tortious interference claim.156
Delaware has adopted the Restatement (Second) of Choice of Law’s157 “most
significant relationship” test for analyzing choice-of-law disputes like the one before
the Court.158 The Court begins this task by using the conflict-of-law framework,
which involves two steps: (1) the Court first determines whether an actual conflict
154
Id. Specifically, in Georgia, tortious interference with a contract requires proof of (1) an
independent wrongful act of interference by a stranger to the contract; (2) malicious intent to cause
injury; and (3) resulting damage. See Hylton v. American Assn., etc., 448 S.E.2d 741 (Ga. 1994);
Singleton v. Itson, 383 S.E.2d 598 (Ga. 1989).
155
Bhole, Inc. Shore Invs., Inc., 67 A.3d 444, 453 (Del. 2013). Under Delaware law, the elements
of a claim for tortious interference with contract are: (1) contract; (2) about which defendant knew,
and (3) an intentional act that is a significant factor in causing the breach of such contract; (4)
without justification; (5) which causes injury. Id.
156KT4 Partners LLC v. Palantir Techs. Inc., 2021 WL 2823567, at *12 (Del. Sup. Ct. June 24,
2021).
157
RESTATEMENT (SECOND) OF CONFLICT OF LAWS (1971).
158
Certain Underwriters at Lloyds, London v. Chemtura Corp., 160A.3d 457, 459 (Del. 2017).
39
between the states’ laws exists and, if so, (2) the Court next decides which state has
the “most significant relationship” to the present case.159 For the reasons discussed
below, Delaware law will apply to the tortious interference claim against Coca-Cola
because an actual conflict between Delaware and Georgia law exists, and Delaware
has the most significant relationship to this case when considering all the factors
relevant to the Restatement’s test.
1. Actual conflict exists between the laws of Delaware and Georgia for
tortious interference claims.
The first step in a choice-of-law analysis is to decide if an actual conflict
between the states’ laws exists.160 If no conflict is found, no choice-of-law analysis
is necessary, and the forum state’s laws will apply.161 Here, both parties agree that
a conflict in fact exists between Delaware and Georgia law for tortious interference
claims.162 The Court therefore must engage in a choice-of-law analysis because
actual conflict between Delaware and Georgia law is undisputed.163
159
KT4 Partners LLC, 2021 WL 2823567, at *12.
160
Id.
161Id.
162D.I. 596, Tr. 101:6-11.
163
KT4 Partners LLC, 2021 WL 2823567, at *12 (reasoning that the Court can avoid a choice-
of-law analysis altogether if the result would be the same under either state’s laws and Delaware
law will apply because there is no conflict).
40
2. Delaware has the “most significant relationship” to the present case
under the Restatement (Second) of Conflict of Laws § 145.
Delaware’s choice-of-law analysis next requires this Court to decide which
state (and therefore which state’s law) has the “most significant relationship” to the
present case.164 This assessment requires an examination of the parties’ contacts
with the different states. The analysis is not mathematical, and the state determined
as having the “most significant relationship” to the parties may not necessarily be
the state with the most contacts.165 Precedent holds that this Court may assign
differing weight to the contacts as appropriate for the case’s particular facts and
issues.166
In KT4 Partners LLC v. Palantir Technologies, Inc., this Court recently
explained the mechanics of Delaware’s choice-of-law analysis in the context of a
tortious interference claim.167 That Court, confronting a conflict between California
and Delaware law, explained that the Restatement (Second) of Conflict of Laws §
145 provides a list of contacts intended to identify the state with the highest degree
of interest in the parties and the subject matter of the litigation.168 Specifically,
Section 145 points Delaware courts to the following contacts to determine which
state has the “most significant relationship” to the current case:
164
Id. at *16.
165
Id.
166
Id.
167
Id.
168
Id.
41
(a) the place where the injury occurred;
(b) the place where the conduct causing the injury occurred;
(c) the domicile, residence, nationality, place of incorporation and place of
business of the parties; and
(d) the place where the relationship, if any, between the parties is
centered.169
Delaware courts evaluate these contacts according to their relative importance
to the issues in each case.170 No one contact is more important than another as a
rule. Rather, the “most significant relationship test” requires a case-specific analysis
that adheres to the Restatement’s “core focus” of promoting legal consistency and
honoring the parties’ reasonable expectations.171
Section 145’s factors lead this Court to apply Delaware law to the present
litigation. First, the place of injury depends on the tort involved in the case.172 For
tortious interference cases, the place of injury is the plaintiff’s headquarters.173
Although Coca-Cola’s principal place of business is Georgia, ABC’s principal place
of business is in Texas, not Georgia or Delaware. This contact will not be given
much weight since neither party has argued that Texas law should apply.
Next, the alleged tortious conduct, in contrast to Coca-Cola’s contentions, did
not take place only in Georgia. ABC’s evidence shows much of Coca-Cola’s
169
RESTATEMENT (SECOND) OF CONFLICT OF LAWS §145 (2) (1971).
170
Wavedivision Holdings, LLC v. Highland Capital Mgmt., L.P., 2011 WL 5314507, at *9 (Del.
Sup. Ct. 2011).
171
KT4 Partners LLC, 2021 WL 2823567, at *16.
172
Id. at *17.
173
Id.
42engagement with BodyArmor took place across multiple different states even though
some in-person meetings with BodyArmor and the office locations of some Coca-
Cola personnel were in Georgia.174 The Court therefore is unable to give this factor
considerable weight because the allegedly tortious conduct did not occur in one
principal location. This is true in part because there is not one precise moment in
time when this tort was committed. Rather, unlike some other torts, Coca-Cola’s
alleged tortious interference took place over a period of months and through complex
negotiations between parties who were located in different places. The protracted
and dispersed nature of the challenged conduct makes it difficult for the Court to
identify a “principal” location for Coca-Cola’s conduct.
The location of ABC and Coca-Cola’s principal places of business
distinguishes the parties from one another.175 But Coca-Cola and ABC do share one
contact in common: both are incorporated in Delaware.176 In fact, all three parties
to this dispute are incorporated in Delaware. Even though mere incorporation is not
necessarily the determinative factor in the “most significant relationship” test, it
remains an important factor when determining which law to apply.177 Further,
174
Specifically, ABC contended during oral argument that several actions concerning the
Distribution Agreement took place in California and New York as well as Georgia. See also
Plf.’s Mot. at 19.
175
ABC’s principal place of business is Texas while Coca-Cola’s is Georgia.
176
The parties do not share a principal place of business in Georgia. In fact, BodyArmor’s
principal place of business in New York and ABC’s is Texas.
177
Wavedivision Holdings, 2011 WL 5314507, at *9.
43
Delaware courts have held that where there are two or more different principal places
of business, a mutual nexus to Delaware controls.178 This contact therefore weighs
in favor of applying Delaware law to the present case.
Finally, the parties’ relationship centers around Delaware, not Georgia. The
Distribution Coordination Agreement between Coca-Cola and BodyArmor included
Delaware choice of law and Delaware forum provisions. Both ABC and BodyArmor
selected Delaware as their chosen forum for any disputes that arose between them.
And significantly, the UPA between Coca-Cola and BodyArmor, which set out the
terms of Coke’s new investment in BodyArmor and prompted BodyArmor to breach
the ABC-BodyArmor Distribution Agreement, included a specific indemnification
clause that chose Delaware as the forum and governing law for any dispute involving
Coca-Cola’s liability to ABC.179 Therefore, even though none of the allegedly
tortious conduct occurred in Delaware, the relationship of all the parties to the
current dispute does center around Delaware.
In considering the facts above, the Court here can adopt a commonsense
approach similar to that employed by the KT4 Court in resolving the choice-of-law
question before it. In that case, the “thread unifying [the] parties [was] their shared
178
KT4 Partners LLC, 2021 WL 2823567, at *17.
179
Plf.’s Br. in Opp. to Def. Coca-Cola, Ex. 43.
44
state of incorporation: Delaware.”180 Here, that thread unifies the parties not just by
a shared state of incorporation but by contract terms that point the parties toward
Delaware courts for dispute resolution. Delaware meets the “most significant
relationship” test. Therefore, the tortious interference claim against Coca-Cola will
be analyzed under Delaware law.
3. The choice-of-law policy factors in the Restatement (Second) of
Conflict of Laws § 6 do not alter this Court’s conclusion that Delaware
law applies to this case.
In addition to considering the contacts listed in the Restatement (Second) of
Conflict of Laws § 145, Delaware courts also consider policy factors set out in the
Restatement (Second) of Conflict of Laws § 6, such as relevant policies of the forum,
the protection of justified expectations, certainty, predictability, and ease in the
determination of the law to be applied.181 Although these policy factors may be
180
KT4 Partners LLC, 2021 WL 2823567, at *17. Delaware courts have held that where there
are two or more different principal places of business, a mutual nexus to Delaware controls. Id.(citing as examples, Wavedivision Holdings, LLC v. Highland Cap. Mgmt. L.P., 2011 WL
5314507, at *9 (Del. Super. Nov. 2, 2011), aff'd, 49 A.3d 1168; Soterion Corp. v. Soteria
Mezzanine Corp., 2012 WL 5378251, at *12 (Del. Ch. Oct. 31, 2012), aff'd, 74 A.3d 655; cf.
Eureka Res., LLC v. Range Res.-Appalachia, LLC, 62 A.3d 1233, 1238 (Del. Super. Ct. Nov. 27,
2012) (deeming [principal place of business] “a wash” because the parties were headquartered in
two different states and one of the parties was not incorporated in Delaware); UbiquiTel Inc. v.
Sprint Corp., 2005 WL 3533697, at *4, n. 35 (Del. Ch. Dec. 14, 2005) (inferring that where, as
[in KT4], at least one of the parties does “little or no business” at its headquarters, the Second
Restatement’s emphasis on headquarters should be diminished).
181
Id. at *16. Specifically, the guiding factors are: (a) the needs of the interstate and international
system; (b) the relevant policies of the forum; (c) the relevant policies of other interested states
and the relative interests of those states in the determination of the particular issue; (d) the
protection of justified expectations; (e) the basic policies underlying the particular area of law;
(f) certainty, predictability, and uniformity of results; and (g) ease in the determination and
45
considered in a choice-of-law analysis, the Court need not defer to them completely.
The policy considerations do not assist in suggesting which state’s law to apply in
this case. Accordingly, those factors have little-to-no bearing on the Court’s
analysis.
B. At a minimum, a question of genuine material fact exists as to whether
Coca-Cola tortiously interfered with the Distributing Agreement.
Having concluded that Delaware law governs ABC’s tortious interference
claim against Coca-Cola, Coca-Cola’s contention that ABC cannot prove wrongful
conduct under Georgia law is moot. In Delaware, the focus of a claim for tortious
interference with contractual relations is on the defendant’s wrongful inducement of
contract termination.182 To prevail on a tortious interference claim under Delaware
law, ABC must show (1) a contract existed, (2) about which Coca-Cola knew, (3)
an intentional act by Coca-Cola was a significant factor in causing the breach of
contract, (4) the act was without justification, and (5) the act caused injury.183
It is undisputed that the Distribution Agreement was a valid contract between
ABC and BodyArmor, and Coca-Cola knew about this contract. A tortious
interference claim will fail without an actual breach of contract; mere termination of
a contract is not sufficient to meet this standard.184 Coca-Cola argued in its summary
application of the law to be applied. See RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 6
(1971).
182
ASDI, Inc. v. Beard Research, Inc., 11 A.3d 749, 751 (Del. 2010).
183
WaveDivision Holdings, LLC, 2011 WL 5314507, at *6.
184
Beard Research Inc., v. Kates, ASDI, Inc. 8 A.3d 573, 607 (Del. Ch. 2010).
46
judgment motion that BodyArmor’s termination of the Distribution Agreement was
permissible.185 But this Court, for the reasons stated in Section I of this Opinion, has
concluded BodyArmor did not have the right to terminate the Distribution
Agreement as a result of the Merger. Coca-Cola’s negotiation and creation of its
own distribution agreement with BodyArmor while BodyArmor was still under a
valid contract with ABC therefore was an intentional act that a jury could conclude
was a significant factor in causing the breach and ABC’s associated injury.
These facts, however, are not enough to establish ABC’s tortious interference
claim. ABC also must demonstrate that Coca-Cola’s intentional acts that caused the
breach were “without justification.” Coca-Cola contends it did not engage in
actionable misconduct.186 But at the very least, a question remains as to whether the
negotiations with BodyArmor and Coca-Cola’s insistence on a new distribution
agreement while a valid contract between BodyArmor and ABC existed was
“without justification.” This element of the tortious interference claim will involve
a consideration of many factors and is challenging to meet.187 The Court may not
185
Def. Coca-Cola’s Mot. at 17.
186
Id.
187The following factors help Delaware courts decide whether the act was “without
justification:” (a) the nature of actor’s conduct; (b) the actor’s motive; (c) the interest of the
other with which the actor’s conduct interferes; (d) the interests sought to be advanced by the
actor; (e) the social interest in protecting the freedom of action of the actor and the contractual
interests of the other; (f) the proximity or remoteness of the actor’s conduct to the interference;
and (g) the relationships between the parties. WaveDivision Holdings, LLC, 2011 WL 5314507,
at *11.
47
rule as a matter of law as to this element because there are factual questions that the
jury must resolve as to whether Coca-Cola’s conduct was “without justification.”
CONCLUSION
For the foregoing reasons, ABC’s motion for partial summary judgment is
GRANTED and BodyArmor’s motion for summary judgment is DENIED on the
issue of breach of contract. A question of fact remains for the damages calculation,
and BodyArmor’s motion for summary judgment regarding that issue also is
DENIED. Because Delaware law governs the tortious interference claim, and
whether Coca-Cola’s conduct was justified is a factual issue for the jury, Coca-
Cola’s motion for summary judgment likewise is DENIED. IT IS SO ORDERED.
48