Farm Fresh Direct by a Cut Above, LLC v. Downey (Maryland U.S.D.C.)

Filed: October 26, 2017

Opinion by: Judge Ellen Lipton Hollander

Holding:

Under Maryland law, the liability protections afforded to limited liability company (“LLC”) members with respect to obligations of an LLC did not support dismissal of claims that an individual engaged in unfair competition and deceptive trade practices by forming and participating in an LLC, where the plaintiff alleged conduct supporting direct claims against the individual.

Facts:

A Maryland LLC, Farm Fresh Direct by a Cut Above LLC (“Plaintiff”), brought suit against multiple defendants, including another Maryland LLC, Farm Fresh Direct Home Food Services, LLC (“Defendant LLC”), and an individual who allegedly filed Defendant LLC’s Articles of Organization with the Maryland State Department of Assessments and Taxation (“Defendant Individual” and together with Defendant LLC, the “Defendants”), alleging that the Defendants engaged in unfair competition in violation of both Section 43(a) of the Lanham Act, codified at 15 U.S.C. § 1125(a), and Maryland common law, by establishing and engaging in a competing business under a name which was confusingly similar to the name of the Plaintiff.  The Defendant Individual moved, pro se, to dismiss the action.  Despite construing the motion liberally in favor of the Defendant Individual, the district court denied the motion, holding that the Plaintiff had alleged sufficient facts to satisfy the pleading requirements of Fed. R. Civ. P. 8(a).    

Analysis: 

The district court analyzed as a threshold issue whether the Defendant Individual was subject to suit in light of the Defendant LLC’s status as a Maryland LLC.  The district court’s analysis begins with a review of Maryland and Fourth Circuit law regarding the corporate shield and the corresponding LLC shield.  The court then notes that, notwithstanding the LLC shield, which generally protects LLC members from personal liability for obligations of the LLC, the LLC shield does not protect LLC members from direct liability for that member’s own actions.  Because Plaintiff alleged that the Defendant Individual formed the Defendant LLC and acted as its resident agent, the district court held that Plaintiff had alleged sufficient facts to plead direct claims against the Defendant Individual.  Further, because Plaintiff alleged that the name of the Defendant LLC was confusingly similar to the name of the Plaintiff and that the Defendant LLC engaged in substantially the same business as the Plaintiff, the district court held that Plaintiff alleged sufficient facts to plead claims of unfair competition and deceptive trade practices under Maryland and Federal law.  Accordingly, the district court denied Defendant Individual’s motion to dismiss.

The full opinion is available in PDF.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.

White Oak Power Constructors v. Alstom Power, Inc. (Maryland U.S.D.C.)

Filed: November 7, 2017

Opinion by: Catherine C. Blake, United States District Judge

Holding: Tort claims based on conduct prior to the execution of a contract are not outside the scope of the agreed to forum selection clauses and that enforcing said clauses, which refer to “any legal action” related to the agreement.

Facts: In 2013, Defendant, Old Dominion Electric Cooperative (“Old Dominion”) entered into an Equipment Purchase Agreement (“Alstom Agreement”) with Defendant Alstrom Power, Inc. (“Alstrom”) for three generators for use in the Wildcat Point Generation Facility under development in Rising Sun, Maryland (“the Plant”). In 2014, Old Dominion entered into an Engineer, Procure and Construct Contract (“White Oak Agreement”) with Plaintiff, White Oak Power Constructors (“White Oak”) to construct the Plant and prepare it for operation. All three parties also signed an Assignment, Assumption, and Consent Agreement (“Assignment Agreement”) assigning certain of Old Dominion’s rights and responsibilities from the Alstrom Agreement to White Oak.

The Alstrom Agreement forum selection clause states:

 “Any legal action with respect to this Agreement shall exclusively be brought in the state courts of Virginia located in Henrico County, Virginia or in the United States District Court for the Easter District of Virginia located in Richmond, Virginia…each of the parties irrevocably waives any objection…further irrevocably waives and agrees not to plead or claim in any such court that any action or proceeding brought in any such court has been brought in an inconvenient forum.”       

The Assignment Agreement contains a substantively identical forum-selection provision. In addition, the White Oak Agreement forum selection clause states:

“Both parties hereto agree…to submit to the exclusive jurisdiction of the United States District Court for the Eastern District of Virginia located in Richmond, Virginia, in any litigation between the parties or, if the federal court lacks jurisdiction, the state courts of the Commonwealth of Virginia located in Henrico County, Virginia…contractor hereby waives any objection that it may now or hereafter to the venue of any such suit or any such court or that such suit is brought in an inconvenient forum.”

Plaintiff argued that its tort claims were outside the scope of the forum selection clauses and, even if the tort claims are within the scope of the forum selection clauses, enforcing the clauses would be unreasonable. The court denied all of Plaintiff’s arguments.

Analysis: The court first acknowledged the Supreme Court’s holding that: “When the parties have agreed to a valid forum-selection clause, a district court should ordinarily transfer the case to the forum specified in that clause. Only under extraordinary circumstances unrelated to the convenience of the parties should a §1404(a) motion be denied.” Plaintiff made the following arguments against enforcement of the forum selection clauses, and for the following reasons, the court denied each argument in turn:

(1)  Plaintiff’s tort claims were outside the scope of the forum selection clauses.

The court relied on the language of the Agreements to dismiss this claim, citing, “the Alstrom Agreement referred to ‘any legal action or proceeding with respect to this agreement’ and ‘actions of proceedings arising out of or in connection with this agreement.’ Both of these clauses therefore encompass pre-execution conduct of the parties related to the bidding on and negotiation of the agreements, including the alleged fraud in the inducement.”

(2)  Enforcing the clauses would be unreasonable.

The court cited the fourth circuit, explaining, “a forum selection clause may be found unreasonable if: (i) its formation was induced by fraud or overreaching; (ii) the complaining party will for all practical purposes be deprived of his day in court because of the grave inconvenience or unfairness of the selected forum; (iii) the fundamental unfairness of the chosen law may deprive the plaintiff of a remedy; or (iv) its enforcement would contravene a strong public policy of the forum state.”

The court found none of the above circumstances present, explaining, “[Plaintiff] has not advanced any facts to show that the forum selection clause specifically was obtained by fraud or overreaching…[and Plaintiff] offered no evidence that it will be gravely inconvenient or that it would be unfair to litigate this case in the forum state to which it agreed.” Similarly, there was no discussion of contravening a strong public policy by enforcing the clause. The court concluded, “allowing [Plaintiff] to escape its obligations under the forum selection clause…would be permitting forum shopping.”

(3)  Plaintiff did not bargain for the forum selection clause in the Alstrom Application.

The court quickly dismissed this final argument, explaining, “[Plaintiff] knew it would be subject to assignment of the Alstrom Agreement when it entered in the White Oak Agreement and the Assignment Agreement…[Plaintiff] could have bargained for a different forum selection clause. Instead, it agreed to inclusion of an identical clause in the Assignment Agreement. Further, the forum selection clause in the White Oak Agreement is even broader than that in the Alstrom Agreement.”

The opinion is available in PDF.

Schuster v. SLM Corporation (Maryland U.S.D.C.)

Opinion by Judge Catherine C. Blake

Filed:  October 23, 2017

Holding:  A company does not owe a duty to a non-customer, who it has no direct relationship with, absent special circumstances.

Facts: Plaintiff brought suit against SLM Corporation (hereinafter referred to as company) alleging that the company negligently allowed his daughter to use him as a co-signer on several student loan agreements without his consent. Previously, plaintiff had willingly co-signed for loans for daughter through the same company using a different email address and phone number.  The plaintiff contended that the company should’ve been aware of the fact that he did not consent to being a co-signer on a separate set of loans because there was a new phone number and email address listed on the applications for the new loan. Plaintiff also asserted that the company owed a duty to protect him from the possibility of being fraudulently listed as co-signer. Defendant company submitted a Motion to Dismiss on the basis that it did not owe Plaintiff a duty to protect him from fraud.

Analysis:

Under Maryland law a negligence claim must demonstrate that there is a relationship between the parties, that one require one party to owe a duty to the other. Balfour Beatty Infrastructure, Inc. v. Rummel Klepper & Kahl, LLP, 451 Md. 600, 610 (2017). There must be an “intimate nexus.” Id. at 614. The “intimate nexus” only exists where there is contractual privity or its equivalent. Id. at 620.  “[B]anks do not typically owe a duty to their customers beyond whatever contractual relationship might bind them.” 

The court considered plaintiff to be a “non-customer” of the company as it pertained to the claims regarding the separate set of loans. For “non-customers”, a bank owes no duty with whom it has no direct relationship, absent special circumstances.  The court disregarded plaintiffs’ argument that the use of new contact information created a special circumstance because plaintiff failed to raise the argument in his complaint. The court instead considered that argument to demonstrate the scope of its’ analysis detailing the duty a company owes a non-customer.  It stated that the company owes a duty to a customer “limited to the terms of the agreement it arises”. Spaulding v. Wells Fargo Bank, N.A., 714 F. 3d 769, 778-79 (4^th Cir. 2013). The court went on to state that the new contact information was not indicative of fraud as “new contact information is not facially suspect”. And, there is no indication that plaintiff relied on the company or that the company knew or should have known of such reliance. Since plaintiff failed to demonstrate an intimate nexus between himself and the company in this new contract, the court granted the Motion to Dismiss submitted by company.

The opinion is available in PDF.  

Thomas v. Progressive Leasing (Maryland U.S.D.C.)

Filed: October 25, 2017

Opinion by: Judge Richard D. Bennett

Holding: A non-signatory to a contract containing an arbitration clause can be compelled to arbitrate when it receives a direct benefit from the contract, and/or when the claims arise from the contract containing the clause.

Facts:

From September 2015 to February 2017, Plaintiff applied for financing from Defendant. Plaintiff applied a total of six times, and each time, Defendant denied the applications. In November 2015, Plaintiff's wife successfully applied for and entered into a lease with Defendant. The lease contained both an arbitration provision and express permission allowing Defendant to call Plaintiff's wife at any number provided.

In December 2015, Defendant called Plaintiff's wife in an attempt to collect a payment that had not gone through. Plaintiff's wife allowed her husband to speak with the Defendant; Plaintiff then informed Defendant to defer to him for debt collection, provided his phone number, and instructed the Defendant to remove her information and transfer the account over to his own.

Afterwards, Plaintiff received calls from Defendant in an attempt to collect the account balance owed under the lease. Plaintiff alleged that Defendant made the calls using a telephone dialing system. In addition, Plaintiff claimed that he requested Defendant stop calling, yet despite this, the calls continued for multiple times a day. Plaintiff then filed suit under the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227. Defendant filed a Motion to Compel Arbitration and to Dismiss or Stay the Litigation based on the lease's arbitration agreement between Defendant and Plaintiff's wife.

Analysis:

Plaintiff did not dispute the validity of the arbitration agreement but rather argued that because he was neither a signatory nor a beneficiary to the lease, the arbitration agreement was not enforceable against him. Defendant countered by asserting the theory of equitable estoppel. In an arbitration context, the theory of equitable estoppel recognizes that under some circumstances, a party may agree to submit to arbitration by means other than personally signing a contract containing an arbitration clause. When the signatory to an arbitration agreement seeks to compel a non-signatory to arbitrate, the Fourth Circuit has applied the "direct benefit" test. This test prevents a non-signatory from refusing to comply with an arbitration clause when it receives a direct benefit from a contract containing an arbitration clause, and/or when the claims arise from the the contract containing the clause. 

The Court turned to the following facts: the lease giving Defendant the right to call any telephone number provided to it, and Plaintiff voluntarily giving his phone number to Defendant with the intention of his information being associated with his wife's account. By doing so, the Court determined that Defendant had the right to call him. Plaintiff's TCPA claim, stemming from Defendant's actions, were a result of Plaintiff giving Defendant that right. The Court held that Plaintiff's allegations arose from and were directly related to the duties imposed within the lease, and arbitration should be compelled.

The Court also pointed to Plaintiff's instructions informing Defendant to transfer his wife's account to his own, voluntarily assuming the obligation of payment under the lease.  The Court concluded that by doing so, Plaintiff derived a benefit from the lease. The Court then determined that it would be inequitable to allow Plaintiff to pursue his TCPA claim against Defendant for calls it made to Plaintiff to collect on the lease, and yet permit him to avoid the arbitration provision in that same lease. The Plaintiff objected to enforcing the arbitration agreement against him as a whole, yet he did not contend that if the agreement applies, his claim against Defendant is beyond the scope of the lease. Furthermore, the Court has previously held that TCPA claims may be properly subjected to arbitration.

The Court granted Defendant's motions and dismissed the case.

The full opinion is available in PDF.

Sprye v. Ace Motor Acceptance Corp. (Cir. Ct. Mont. Cnty)

Filed:  September 29, 2017

Opinion by:  Judge Anne K. Albright

Holding:  Although Maryland is a “two-party” consent state under the Maryland Wiretapping and Electronic Surveillance Act and therefore requires prior consent by all parties to the communication prior to its interception, the Act does not reach interceptions made outside of Maryland.

Facts:  Plaintiffs were Maryland residents.  Defendant is a North Carolina corporation that provides sub-prime auto loans to Maryland consumers.  Defendant registered to do business in Maryland.  The sister of one Plaintiff listed the Plaintiffs as references on a car loan application without their knowledge.  When the loan went into default, Defendant began calling the Plaintiffs.  The calls were made from a Voice over Internet Protocol system provided by another company, which also operated outside of Maryland.  The calls were routed through servers in states other than Maryland, recorded and downloaded in data centers outside of Maryland. 

Plaintiffs alleged Defendant violated the Maryland Wiretapping and Electronic Surveillance Act (the “MWA”) by telephoning them from out-of-state and recording their conversations without their consent.  Defendant argued that the MWA neither reaches, nor imposes civil liability for, recordings made outside Maryland.

Analysis:  The MWA renders it unlawful to intercept any wire, oral or electronic communication and to disclose or use the contents of any such communication knowing or having reason to know that the information obtained through interception violates the MWA.  It is lawful under the MWA to intercept a communication where the intercepting person is a party to the communication and all of the parties have given their prior written consent.  The Court highlighted that interception is key and that for Plaintiff’s claim to be viable, the Court must conclude that the MWA reaches the out-of-state interception alleged.  Upon a plain reading of the statute, the Court held that the MWA does not reach out of state interceptions. 

Further, the Court disagreed with Plaintiff’s attempts to extend precedent regarding investigative and co-conspirator telephone calls involving admissibility of evidence.  Plaintiffs also argued that by agreeing to do business in Maryland, Defendant agreed to abide by the laws of Maryland.  The Court noted that Defendant did assent to the laws of Maryland by doing business in Maryland; however, the Court reiterated that the MWA does not proscribe the interception of telephone calls when it is done out-of-state.

The full opinion is available in PDF.  

Small Business Financial Solutions, LLC v. Pearl Beta Funding, LLC (Cir. Ct. Mont. Cnty)

Filed: September 29, 2017

Opinion by: Harry C. Storm

Holding: A claim that a small business finance lender tortiously interfered with a contract and with the rights of a senior secured lender under the UCC could not be resolved on summary judgement because the lender had entered into a loan agreement with a customer despite having notice of the terms of an agreement between the customer and another lender, and questions of intentionality and collusion central to the plaintiff’s claims were questions of fact.

Facts: Plaintiff loaned a Kentucky-based chiropractic practice (the “Practice”) monies, which would be repaid through daily bank account debits. Under the loan agreement, Plaintiff had a security interest in the personal property and proceeds of the Practice. Also, the Practice was prohibited from disposing of Plaintiff’s collateral outside the ordinary course of business. Furthermore, as conditions of default, the Practice was prohibited from (1) selling any existing or future account receivables to any third party without the Plaintiff’s consent or (2) entering into any financing agreement requiring daily or weekly repayments. 

Plaintiff filed a UCC-1 Financing Statement and sent Notice Letters to small business finance lenders, including a predecessor-in-interest to Defendant. The Notice Letters notified the businesses of the terms of the loan agreements and warned that engaging in activities that violated the terms constituted an interference with Plaintiff’s contracts.

Subsequently, the Practice sought additional loans, including one from Defendant. In its application, the Practice disclosed the existing loans with Plaintiff. Defendant learned of the daily debits to Plaintiff and of the UCC-1 Financing Statement. Defendant required the Practice to represent and warrant that contracting with Defendant would not cause it to default on any other loans. Under the loan agreement, Defendant would receive all of the Practice’s future accounts and payments from its clients, and a grant of a security interest in its property.

Two weeks later, the Practice asked Defendant to reduce the amount of its daily debits. One of Defendant’s representatives concluded that the Practice was overfunded, and Defendant temporarily reduced the debits. Subsequently, the Practice stopped paying both parties. Eventually, Defendant was repaid in full and the Practice and Plaintiff came to a settlement.

Analysis: 

Plaintiff sought relief under two theories: tortious interference of the loan agreement and interference of Plaintiff’s rights as a senior secured lender under Maryland UCC Section 9-625. Defendant moved for summary judgment, which the Court denied because the issues could not be resolved as a matter of law. The summary judgement standard requires the Court to enter judgement where there is no genuine dispute as to any material fact and a party is entitled to judgment under matter of law.

Tortious interference with contract has five elements; one is intentional interference. “Intentional interference” requires intentionality, interference, and impropriety. The intentionality issue hinged on several facts, including the receipt of the Notice Letter, the filing of the UCC-1 Financing Statement, and the information known to Defendant through the application process.  Next, purposeful conduct, however subtle, may be enough to constitute inducement. Furthermore, if a fact-finder determined that Defendant interfered with the contract, this determination may suffice to show that the interference was improper. Thus, these issues were matters of fact rather than of law. 

As for damages, Plaintiff claimed that Defendant’s funding caused the Practice to breach its loan agreement because it was unable to sustain the volume of debits. Defendant argued that its infusion of funds actually allowed the Practice to make some repayments to Plaintiff. Both positions had support in the record; thus, summary judgement was inappropriate. 

As for the UCC claim, Section 9-625(b) states that a “transferee of funds from a deposit account takes the funds free of a security interest in the deposit account unless the transferee acts in collusion with the debtor in violating the rights of the secured party.” Defendant is a transferee of the collateral shared with Plaintiff. Its rights to the collateral depend on whether it colluded with the practice. A comment to another UCC section defines the term “collusion” to include a scenario where one party knows that the other’s conduct constitutes a breach and gives substantial assistance or encouragement to the other. This is a question for the fact-finder. 

The opinion is available in PDF here.

Bainbridge St. Elmo Apts v. White Flint Express Realty (Ct. of Special Appeals)

Filed: July 18, 2017

Opinion By: Raker

Holding: Bainbridge was liable for White Flint's attorney's fees under an express attorney fees shifting provision found in the indemnification agreement between the parties.

Facts: The case involves a written easement agreement between the parties that permitted Bainbridge St. Elmo Apartments ("Bainbridge") access to White Flint Express Realty's ("White Flint") property for a construction project of a 17 story high rise building immediately adjacent to White Flint's property in Bethesda, Maryland.  Bainbridge promised in the agreement to perform in a professional manner and would not use a pile-drive system to secure the hole for the foundation of the apartment building.  In exchange, Bainbridge received the right of access to the White Flint property, including air rights for a crane, as a part of the construction.

Article 9 of the agreement provided that "[t]he prevailing party in any arbitration shall be awarded reasonable counsel fees, expert and non-expert witness costs and expenses and all other costs and costs and expenses reasonably incurred, directly or indirectly, in connection with said arbitration, and all costs and fees of such arbitration shall be borne exclusively by the non-prevailing party.”  Article 19 provided the following indemnification language: "Bainbridge hereby indemnifies, and agrees to defend and hold harmless White Flint . . . from any and all claims, demands, debts, actions, causes of action, suits, obligations, losses, costs, expenses, fees, and liabilities (including reasonable attorney’s fees, disbursements, and litigation costs) arising from or in connection with Bainbridge’s breach of any terms of this Agreement or injuries to persons or property resulting from the Work, or the activities of Bainbridge or its employees, agents, contractors, or affiliates conducted on or about the White Flint Property, including without limitation, for any rent loss directly attributable to any damage to the White Flint Property caused by the construction of the Project, however Bainbridge shall not be liable for matters resulting from the negligence or intentional misconduct of White Flint, its agents, employees, or contractors. The indemnification obligations set forth herein shall survive the termination of this Agreement indefinitely.”

During construction, damaged occurred to the buildings on White Flint's property, resulting in a stop work order from Montgomery County, leading to White Flint terminating the agreement for material breach by Bainbridge.  Subsequently, White Flint filed an action against Bainbridge, resulting in the grant of a motion for summary by the trial court, finding: "that Bainbridge’s obligations survived the termination, that Bainbridge materially breached the agreement ... [and] under Article 19 of the Agreement, White Flint was entitled to attorney’s fees."  After a hearing, the trial court then entered an order awarding a total of $3,931,648.47 in attorney's fees and costs to White Flint.  Bainbridge appealed the fee order.

Analysis: The Court of Appeals analyzed the dispute over first-party attorney fee shifting by using traditional contract interpretation principles, including interpreting language in a contract based on its customary meaning, and looking at the entire agreement for context of a disputed provision. Under Maryland law, the American Rule for attorney fee shifting means that each party typically bears its own attorney's fees in a lawsuit, absent an applicable exception to that rule.  One such exception - where the parties have agreed to a fee shifting provision - is at issue in the present litigation.  Under the American Rule, typically an agreement to indemnify a party may include a fee shifting provision, but that Rule distinguishes between first and third party attorney's fees.  The former - where a party expends attorney's fees to determine the existence of an indemnification obligation - is distinguished from the latter - where a party expends attorney's fees to defend itself from a third party claim which was the obligation of the other party to defend.  Generally, first party attorney's fees are not recoverable under the American Rule in indemnification clauses where third party attorney's fees are recoverable in such clauses.

The Court then explains that the Nova Research v. Penske, 405 Md. 435 (2008), case required that first party fee shifting provisions must be express and strictly construed in indemnity agreements to be enforceable, using traditional contract interpretation principles.  The Court goes on to distinguish Nova Research from the present case, as Article 19 of the agreement here expressly provided for recovery of attorney's fees as a part of the indemnification obligations of Bainbridge to White Flint.  The Court then construed Article 19 by examining the purpose of the agreement - to make sure White Flint was made whole in the event that Bainbridge caused damage during construction - and then by examining the specific language in the indemnification provision itself.  The Court held that the clause involved three different clauses of indemnification, and that each clause was read independently.  Only the latter two of these clauses involved defense of third-party claims by Bainbridge, meaning that Bainbridge was still obliged "to defend and hold harmless White Flint" in the event that Bainbridge breached the agreement.  This first clause contained an express provision to shift attorney's fees.

The Court's view was that the indemnity agreement between the parties.  "Bainbridge and White Flint designed the agreement to ensure that Bainbridge, and not White Flint, carried all of the risk from the construction work; otherwise, White Flint had no incentive to support Bainbridge’s plans. Thus, the parties designed Article 19 to ensure that White Flint would be made whole if Bainbridge breached the agreement, which supports first-party fee shifting."

As a result, the Court affirmed the Court of Special Appeals and the trial court's order, directing Bainbridge to pay White Flint's attorney's fees incurred in the litigation.

The full opinion is available in PDF.