Schwartz v. Urban Compass, Inc ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JILL SCHWARTZ,
Plaintiff,
v. Civil Action No. 1:19-cv-00340 (CJN)
ALEXANDRA THOMAS SCHWARTZ,
Defendant.
MEMORANDUM OPINION
Jill Schwartz, a real estate agent in the D.C. Metropolitan area, filed this lawsuit against
her former colleague Alexandra Thomas Schwartz. See generally Am. Compl., ECF No. 40.
Thomas Schwartz (Thomas for short) responded with several counterclaims. See generally Def.’s
Ans. & Countercls. (“Def.’s Ans.”), ECF No. 41. Both Schwartz and Thomas have now moved
for summary judgment. See generally Pl.’s Mot. for Summ. J. (“Pl.’s Mot.”), ECF No. 57; Def.’s
Cross-Mot. for Summ. J. (“Def.’s Mot.”), ECF No. 59. For the following reasons, the Court grants
summary judgment to Thomas as to all of Schwartz’s claims, and to Schwartz as to Thomas’s false
advertising and tortious interference counterclaims. But the Court denies Schwartz’s motion for
summary judgment as to Thomas’s defamation counterclaim and her unfair competition
counterclaim.
I. Background
Schwartz initiated this suit when she sued her former broker, Urban Compass, Inc., and
three of her former team members: Thomas, Danielle Spira, and Raymond Ferrara. Schwartz’s
dispute with Compass has since gone to arbitration and her claims relating to Spira and Ferrara
have been resolved. See Order, ECF No. 63. That leaves Thomas as the lone Defendant. Id.
1
Schwartz joined Compass in August 2016. Her Independent Contractor Agreement
provided her with office space, marketing, and technical support in exchange for fifteen percent of
her commissions. Am. Compl. ¶¶ 8, 45; see also Jill Schwartz’s ICA, ECF No. 27-2. Over the
course of the next year, Schwartz recruited Thomas, Spira, and Ferrara to form the “Jill Schwartz
Group.” Am. Compl. ¶¶ 10–13.
In February 2017, Schwartz appointed Thomas as Senior Vice President of the Group. Id.
¶ 15. Thomas, like Schwartz, signed her own Independent Contractor Agreement with Compass.
See generally Thomas’s ICA, ECF No. 47-2. She also signed a “Team Contract” with Schwartz,
which detailed (1) the commission splits among the team members and (2) the support provided
by the Group (including access to the Group’s digital assets and marketing materials). See Team
Contract (“Team Contract”), ECF No. 20-1 at 2. The agreement permitted Thomas to utilize the
Group’s customer relation management system and its marketing database to “target market her
sphere of influence.” Id. It also provided that, in the event of a member of the team’s dissolution,
all the Group’s “internal plans, procedures, processes and group infrastructure [would] remain
completely confidential,” and the “CRM Database that house[d] the client names [would] revert
to the original client ownership profile.” Id. at 3.
In the summer of 2018, the team members informed Schwartz of their intention to leave.
Def.’s SOMF (“Def.’s SOMF”), ECF No. 59-1 at ¶¶ 37, 41. Schwartz and the team members
agreed on a payout plan for the properties that were still under contract. Id. ¶¶ 62–63. After their
departure, the team members co-listed three separate properties, but never formed a team of their
own. Id. ¶ 72. Compass terminated Schwartz in October 2018; she now operates the Group
through a different broker. Id. ¶ 217.
2
Both Schwartz and Thomas claim that the other engaged in tortious conduct in the months
surrounding the exit of the team members from the Group. Schwartz claims that Thomas exploited
the Group’s resources to steal listings and clients, see generally Am. Compl. In particular,
Schwartz sues Thomas for (1) breach of contract, (2) conspiracy, (3) breach of a fiduciary duty,
and (4) tortious interference with contract. Id. Thomas, on the other hand, claims that Schwartz,
acting out of spite, stole credit for several of her listings and defamed her in emails sent to Compass
management. See generally Def.’s Ans. She filed counterclaims for (1) false advertising,
(2) defamation, (3) unfair competition, and (4) intentional interference with prospective economic
opportunities. Id.
Schwartz has moved for summary judgment on all four of Thomas’s counterclaims. See
generally Pl.’s Mot. Thomas has filed her own motion for summary judgment, seeking judgment
in her favor on both her own counterclaims and all of Schwartz’s claims against her.1 See generally
Def.’s Mot.
II. Legal Standard
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as
to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). “A dispute about a material fact is not ‘genuine’ unless ‘the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’” Mogenhan v. Napolitano, 613
F.3d 1162, 1165 (D.C. Cir. 2010) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). “When the moving party does not bear the burden of persuasion at trial, its burden ‘may
be discharged by showing—that is, pointing out to the district court—that there is an absence of
1
Thomas and the other team members filed a joint motion for partial judgment on the pleadings. See Mot. for J. on
the Pleadings, ECF No. 47. That motion is now moot in light of both Thomas’s cross-motion for summary judgment
and the other team members’ dismissal from the case. See Def.’s Mot.
3
evidence to support the nonmoving party’s case.’” Mokhtar v. Kerry, 83 F. Supp. 3d 49, 60–61
(D.D.C. 2015) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). After the moving
party has met its burden, the nonmoving party must designate “specific facts showing that there is
a genuine issue for trial” to defeat the motion. Celotex, 477 U.S. at 324. Though the Court “may
not resolve genuine disputes of fact in favor of the party seeking summary judgment,” Tolan v.
Cotton, 572 U.S. 650, 656 (2014) (citation omitted), the nonmoving party must show more than
“[t]he mere existence of a scintilla of evidence in support of its position,” Anderson, 477 U.S. at
252. In other words, “there must be evidence on which the jury could reasonably find for [the
nonmoving party].” Id. “[T]he determination of whether a given factual dispute requires
submission to a jury must be guided by the substantive evidentiary standards that apply to the
case.” Id. at 255.
“Credibility determinations, the weighing of evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a judge.” Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150–51 (2000) (quoting Anderson, 477 U.S. at 255). But the
nonmoving party’s opposition must consist of more than unsupported allegations or denials; they
must be supported by facts from affidavits, declarations, or other competent evidence that show
there is a genuine issue for trial. See Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324.
III. Analysis
A. Schwartz’s Claims against Thomas
a. Breach of Contract
To prevail on a breach of contract claim, a plaintiff must prove: “(1) a valid contract
between the parties; (2) an obligation or duty arising out of the contract; (3) a breach of that duty;
and (4) damages caused by [the] breach.” Xereas v. Heiss, 987 F.3d 1124, 1130 (D.C. Cir. 2021)
(citation omitted). When contract “language is clear and unambiguous, its plain language is relied
4
upon in determining the parties’ intention.” GLM P’ship v. Hartford Cas. Ins. Co., 753 A.2d 995,
998 (D.C. 2000) (quotation marks and citations omitted).
Schwartz claims that Thomas breached various oral and written contracts with respect to
listing agreements for two properties. Pl.’s Count IV Br., ECF No. 76 ¶¶ 1–2. To prevail,
Schwartz must identify not only a contractual obligation that Thomas owed her but also a breach
of that obligation. The Court turns first to the circumstances surrounding each listing agreement
to show why Schwartz’s claim fails.
7537 12th St. NW. In August 2018, a client signed a listing agreement with Compass for
agents Thomas and Ferrara to represent him on the sale of 7537 12th St NW. See Def.’s SOMF
¶ 144. Following the team members’ departure from the Group, the client and Schwartz agreed
that Thomas would serve as the lead agent for the listing. Id. ¶ 147. The property sold for a
purchase price of $1.2 million a couple months later. Id. ¶ 154. In her deposition, Schwartz
acknowledged that, in accordance with the agreed-upon payout plan, she received 50% of the net
commissions for that listing. Id. ¶ 155.
6315 Broad Branch Rd. Thomas represented the purchaser of 6315 Broad Branch Rd.
pursuant to a Buyer Agency Agreement dated September 17, 2018. Pl.’s Count IV Br. at Ex. D.
The transaction closed a month later at a purchase price of $1.2 million. Def.’s SOMF ¶ 193. In
accordance with the payout agreement, Jill Schwartz did not receive a commission on this
transaction. Id. ¶ 194.
***
Schwartz has conceded that only the terms of the Team Contract govern the relationship
between her and Thomas, meaning that no supposed oral agreement between the two is at issue
here. Def.’s Opp’n to Pl.’s Mot. Summ. J., ECF No. 71 at 4–5. With that the case, Schwartz
5
claims that Thomas had a contractual obligation under the Team Contract to include her on both
of the listings discussed above and that Thomas breached that obligation. Am. Compl. ¶ 52.
The Team Contract, however, does not demand the inclusion of Schwartz on either listing.
See Team Contract at 1. The listing template does not even contain a line on which to notate
Schwartz. Id. Sure, Thomas listed the Group on sales contracts while she was still a member of
the team. Id. at 7–8. But Thomas had departed the Group before both listings were finalized, see
Pl.’s Count IV Br. at Ex. B, Ex. D, meaning that Thomas could not have breached a duty owed to
Schwartz or the Group because she had exited a contractual arrangement with both by that point.
Schwartz challenges this conclusion by asserting that the Team Contract required
commission splits, which implies a general duty of loyalty to include Schwartz on both listings.
See Team Contract at 1. Schwartz, however, proffers no evidence from which a reasonable juror
could conclude that the Team Contract required Thomas to include her on the listings. What’s
more, splitting commissions is different from an obligation to include an agent on a listing.
Schwartz has failed to show a genuine issue of material fact on her breach of contract claim, see
Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324, which therefore requires summary judgment for
Thomas on that claim.
b. Breach of a Fiduciary Duty
To succeed on a claim for breach of a fiduciary duty, a plaintiff must establish: “(1) the
defendant owed plaintiff a fiduciary duty; (2) a breach of that duty; and (3) proximate cause and
injury to be inferred from those facts.” Xereas, 987 F.3d at 1130 (citation omitted). In some
circumstances, “a fiduciary relationship could exist . . . where circumstances show that the parties
extended their relationship beyond the limits of contractual obligations to a relationship founded
upon trust and confidence.” Id. at 1132. In determining whether a fiduciary relationship existed,
6
the Court must conduct a “searching inquiry into the nature of the relationship, the promises made,
the types of services given, and the legitimate expectations of the parties.” Id. at 1131 (citation
omitted).
A fiduciary duty may also arise where an agency relationship exists. Transamerica
Leasing, Inc. v. La Republica De Venez., 200 F.3d 843, 849–50 (D.C. Cir. 2000) (quoting
Restatement (Second) of Agency §1)). Whether an agency relationship exists “is a factual question
for which the person asserting the relationship has the burden of proof.” Alkanani v. Aegis Def.
Servs., LLC, 976 F. Supp. 2d 1, 11 (D.D.C. 2013). Courts consider such factors as: “(1) the
selection and engagement of the servant, (2) the payment of wages, (3) the power to discharge,
(4) the power to control the servant’s conduct, (5) and whether the work is part of the regular
business of the employer.” Id. (citation omitted). The inquiry searches for evidence of consent
between the parties to establish a principle-agent relationship. Henderson v. Charles E. Smith
Mgmt., Inc., 567 A.2d 59, 62 (D.C. 1989). And the question often turns on evidence of the
principle’s right to control the agent, rather than its actual exercise. Judah v. Reiner, 744 A.2d
1037, 1040 (D.C. 2000).
Schwartz alleges that Thomas owed her a fiduciary duty and that Thomas breached that
duty when she entered into listing agreements for the two properties. Pl.’s Count IV Br. ¶¶ 1–2.
In particular, Schwartz contends that Thomas owed her a duty of loyalty under the terms of her
employment agreement as well as under agency principles. Am. Compl. ¶ 60. But Schwartz has
failed to proffer any evidence that Thomas owed her a fiduciary duty or, if such a duty existed,
that she breached it.
Because the existence of a contract does not in and of itself create a fiduciary duty, Xereas,
987 F.3d at 1132, Schwartz must proffer evidence in addition to the Team Contract as the source
7
of that duty. The language of the Team Contract, however, goes a long way toward showing why
Schwartz cannot come up with an additional source. The contract encourages team members to
pursue their own self-interest, as it awards larger commission splits for independent transactions.
Team Contract at 1. It also states that Thomas could access the Group’s shared resources to “target
market her sphere of influence,” id., and Schwartz has admitted that she allowed team members to
“begin their own practice” while part of the Group. Def.’s Opp’n to Pl.’s Mot. for Summ. J., ECF
No. 58 at 17. Schwartz points to nothing aside from the Team Contract to suggest a fiduciary duty
existed. And the Team Contract itself suggests otherwise.
Schwartz turns to the law of agency in an attempt to salvage her claim. During oral
argument, Schwartz explained that Thomas’s position as Senior Vice President of the Group gave
rise to an agency relationship. Oral Arg. Tr. 7:19–21. But Schwartz did not have the requisite
control over Thomas to establish an agency relationship. It was Compass after all, not Schwartz,
that hired Thomas. Def.’s SOMF ¶ 17. Thomas received her commissions from Compass. Def.’s
Opp’n to Pl.’s Mot. for Summ. J., ECF No. 58 at 20. And Compass alone had the power to
terminate her. Id. at 20–21. What’s more, Thomas had no authority over the other team members.
Id. Adding all that up leads to the conclusion that Schwartz has failed to proffer evidence sufficient
to create a material fact regarding her control over Thomas sufficient to give rise to an agency
relationship.
Even assuming that Thomas owed Schwartz a fiduciary duty, Schwartz has failed to proffer
evidence from which a reasonable jury could conclude that Thomas breached that duty. Schwartz
makes a bare assertion that Thomas’s having listed both properties breached a fiduciary duty, but
she fails to explain how that would constitute a breach even if such a duty existed. See generally
8
Am. Compl; Def.’s Opp’n; Pl.’s Count IV Br. The Court therefore grants summary judgment to
Thomas as to Schwartz’s claim of a breach of a fiduciary duty.
c. Conspiracy
Civil conspiracy “depends on performance of some underlying tortious act,” Halberstam
v. Welch, 705 F.2d 472, 479 (D.C. Cir. 1983), which turns a civil conspiracy claim into a means
“for establishing vicarious liability for the underlying tort,” id. Establishing a claim of civil
conspiracy when a plaintiff has suffered an underlying tortious act requires: “(1) an agreement
between two or more persons, (2) to participate in an unlawful act, and (3) an injury caused by an
unlawful overt act performed by one of these parties to the agreement in furtherance of the common
scheme.” Id. at 477.
Schwartz claims that Thomas and the other former team members “acted in concert and as
part of a coordinated plan, motivated by greed, self-interest, and in direct contravention of their
duty of loyalty, and their duty to use their best efforts on behalf of Plaintiff.” Am. Compl. ¶ 56.
As explained above, however, Schwartz proffers no evidence to show that Thomas owed her a
fiduciary duty, and even if she did, Schwartz has not demonstrated a breach of that duty.
Schwartz’s claim of conspiracy therefore hinges on a purported agreement between Thomas and
one of the former team members to breach a duty of loyalty owed to Schwartz. True, Thomas and
the other team members did co-list three properties together after their departure from the Group.
Def.’s SOMF ¶¶ 72. Yet that fact alone does not constitute evidence that the two parties
contemplated an unlawful act or breached a duty of loyalty owed to Schwartz. Schwartz proffers
no other facts to support her claim, and thus a reasonable jury could not conclude that that Thomas
engaged in an unlawful civil conspiracy.
9
d. Tortious Interference with Contract
To prevail on a claim of tortious interference with contract, a plaintiff must show: “(1) the
existence of a contract; (2) knowledge of the contract; (3) intentional procurement of a breach of
the contract; and (4) damages resulting from the breach.” IMark Mktg. Servs., LLC v. Geoplast
S.p.A., 753 F. Supp. 2d 141, 163 (D.D.C. 2010).
Schwartz claims that Thomas tortiously interfered with her listing agreements. Am.
Compl. ¶ 67. In particular, Schwartz argues that she secured listings for multiple properties and
that Thomas interfered with them. See Pl.s’ Opp’n Def.’s Mot. Summ. J., ECF No. 71 at 7. Yet
Schwartz has not produced evidence to suggest that the listings she purportedly secured for these
properties were valid contracts. Nor has Schwartz demonstrated that she would have taken the
lead on these alleged contracts but-for Thomas’s interference.2
B. Thomas’s Counterclaims against Schwartz
Thomas counterclaims for false advertising, defamation, unfair competition, and tortious
interference with business expectancy. The Court addresses each claim in turn.
a. False Advertising
The Lanham Act creates a federal cause of action against those who publish false or
misleading information in connection with interstate commerce. See 15 U.S.C. § 1125(a)(1)(B).
2
Schwartz initially brought a claim of tortious interference with contract, Am. Compl. ¶¶ 64–69, but later recast the
claim as a tortious interference with business expectancy. See Pl.s’ Opp’n Def.s’ Mot. Summ. J., ECF No. 71 at 7.
Tortious interference with business expectancy is a distinct tort in the District of Columbia and is not interchangeable
with tortious interference with contract. See, e.g., Banneker Ventures, LLC v. Graham, 798. F3d 1119, 1134 (D.C.
Cir. 2015) (alleging both tortious interference with contract and tortious interference with prospective business
advantage and stating different standards for both). Had Schwartz’s claim of tortious interference with business
expectancy been properly before this Court, the result would have been identical. To state a claim of tortious
interference with business expectancy, a plaintiff must plead: “(1) the existence of a valid business relationship or
expectancy, (2) knowledge of the relationship or expectancy on the part of the interferer, (3) intentional interference
inducing or causing a breach or termination of the relationship or expectancy, and (4) resultant damage.” Jankovic v.
Int’l Crisis Grp., 593 F.3d 22, 29 (D.D.C. 2017) (citation omitted). Schwartz has failed to present evidence that the
listings constituted a valid relationship or expectancy such that a claim for tortious interference would have withstood
a motion for summary judgment. See Pl.’s Opp’n at 7.
10
To prevail on a Lanham Act claim for false advertising, a plaintiff must show that the defendant
made statements of fact in her commercial advertising promotion that were: “(1) false or
misleading, (2) actually or likely deceptive, (3) material in their effects on buying decisions,
(4) connected with interstate commerce, and (5) actually or likely injurious to the plaintiff.”
Fernandez v. Jones, 653 F. Supp. 2d 22, 31–32 (D.C. Cir. 2009) (citation omitted).
Thomas asserts that Schwartz violated the Lanham Act when she published eight of
Thomas’s past listings as her own work. Def.’s Ans. ¶¶ 90–99. No one disputes that Schwartz
has falsely claimed eight of Thomas’s past transactions as her own in public records and on public
websites. Id. ¶ 92. The false listings were likely deceptive in that potential clients credited
Schwartz for Thomas’s work. Def.’s Opp’n to Pl.’s Mot. Summ. J., ECF No. 58 at 28–29. And a
sufficient nexus exists between Schwartz’s falsified listings and interstate commerce. Indeed,
Schwartz does not dispute the sufficiency of the nexus. See Paleteria La Michoacana, Inc. v.
Productos Lacteos Tocumbo S.A. De C.V., 743 F. App’x 457, 469 (D.C. Cir. 2018). So this claim
boils down to whether the false listings were material in their effects on consumer buying decisions
and whether Thomas suffered injury as a result.
Schwartz argues that, in order to demonstrate a material effect on buying decisions,
Thomas must present evidence that consumers likely saw the false information advertised or that
they factored the false information into their decision-making. Pl.’s Mot. at 4. Thomas responds
that where, as here, published representations are literally false, both actual deception and
materiality are presumed. Def.’s Opp’n to Pl.’s Mot. Summ. J., ECF No. 58 at 29. But falsity
alone does not suffice. See, e.g., Paleteria, 743 F. App’x at 470 (holding that the plaintiff’s false
advertising claim failed because they could not prove that any consumer had seen the false
statements, let alone that the information factored into the “decision whether to purchase [the
11
product].”); Aristotle Int’l., Inc. v. NGP Software, Inc., 714 F. Supp. 2d 1, 14 (D.C. Cir. 2010).
Thomas has not proffered any evidence that Schwartz’s false representations had a material effect
on buying behavior. Even where a plaintiff offers expert testimony in support of a material effect
on buying behavior, courts in this district have found such evidence insufficient when not
supported by additional data demonstrating a causal link between the false information and
consumer decision-making. See, e.g., Paleteria 43 F. App’x at 469–70. Because Thomas has put
forth inadequate evidence to suggest that Schwartz’s falsified listing motivated a client to hire
Schwartz, she cannot defeat Schwartz’s motion on this claim.
Thomas has also failed to proffer evidence of “an injury to a commercial interest in
reputation or sales.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 119
(2014) (internal citations omitted). She contends that, although unable to calculate monetary
damages or lost profits, her reputational injury alone suffices. But the law requires more: Thomas
must support her false advertising claim with a showing of actual damage. See, e.g., ALPO
Petfoods, Inc. v. Ralston Purina Co., 913 F.2d 958, 969 (D.C. Cir. 1990); Paleteria La
Michoacana, Inc. v. Productos Lacteos Tocumbos S.A. De C.V., 69 F. Supp. 3d 175, 218 (D.D.C.
2014) (stating that a party pursuing monetary damages for false advertising under the Lanham Act
must establish actual damage). She has not done so.
b. Defamation
For a statement to be actionable as defamatory, it must at least express or imply a verifiably
false fact about the plaintiff. Milkovich v. Lorain Journal Co., 497 U.S. 1, 19–20 (1990). And
while statements of opinion regarding matters of public concern cannot be defamatory if they do
not contain or imply a provably false fact, they are actionable if they imply a provably false fact
or rely upon stated facts that are provably false. Id. at 20. “In deciding whether a reasonable
12
factfinder could conclude that a statement expressed or implied a verifiably false fact about [the
plaintiff], the court must consider the statement in context.” Weyrich v. New Republic, Inc., 235
F.3d 617, 624 (D.C. Cir. 2001).
Thomas argues that Schwartz made defamatory statements about her in a series of emails
to Compass management. See Def.’s Opp’n to Pl.’s Mot. Summ. J., ECF No. 58 at 33–40. In the
wake of the team members’ departure from the Group, Schwartz exchanged a number of emails
with Compass management calling the team members “[c]heats, liars, [and] thieves,” and stating
that they had engaged in “[u]nethical documented behavior” including “stealing deals, self-
approving commission, failing to upload contracts to keep them off the business center.” Id. at
34–35.
Though Schwartz contends that these statements were merely opinions expressed in the
heat of the moment and not actionable statements of fact, Oral Arg. Tr. 27:5, this Court concludes
that a genuine issue of material fact exists over whether Schwartz’s statements were defamatory.
A reasonable reader, for example, might have taken “cheats, liars, and thieves” to signify
Schwartz’s discontent with the dissolution of the Group. But a reasonable reader (and therefore
juror) could also interpret the words as accusing Thomas of serious misconduct (which Thomas
claims did not happen). So too with the accusation that the team members were “stealing deals.”
A reasonable juror could interpret the statement as nothing more than jealousy, or a juror could
view the statement as an accusation of unethical conduct. All in all, a reasonable juror could
conclude that these comments were defamatory statements of fact. Schwartz’s motion for
summary judgment on this claim is therefore denied.
13
c. Unfair Competition
The law does not define unfair competition in terms of specific elements, but rather “by
various acts that would constitute the tort if they resulted in damages.” K&D LLC v. Trump Old
Post Off. LLC, 951 F.3d 501, 509 (D.C. Cir. 2020) (citation omitted). Those acts may include
“defamation, disparagement of a competitor’s goods or business methods,” and “interference with
access to the business.” Intelsat USA Sales Corp. v. Juch-Tech, Inc., 935 F. Supp. 2d 101, 120
(D.D.C. 2013) (quoting B & W Mgmt., Inc. v. Tasea Inv. Co., 451 A.2d 879, 881 n.3 (D.C.1982)).
Thomas’s unfair competition counterclaim rests on her defamation counterclaim, as she argues
that the act underlying her unfair competition claim is Schwartz’s defamatory statements. See
Def.’s Opp’n to Pl.’s Mot. Summ. J., ECF No. 58 at 45. Given the symbiotic relationship between
Thomas’s counterclaims of defamation and unfair competition, the Court cannot grant summary
judgment as to the unfair competition counterclaim when a genuine issue of material fact exists
with regards to the underlying relevant tort. Intelsat, 935 F. Supp. 2d at 120.
d. Tortious Interference with Business Expectancy
Thomas withdrew her opposition to Schwartz’s motion for summary judgment as to her
tortious interference with business expectancy counterclaim. Oral Arg. Tr. 50:1–3. The Court
therefore grants Schwartz’s motion as to that claim. See e.g., Dawn J. Bennett Holding, LLC v.
FedEx TechConnec, Inc., 217 F. Supp. 3d 79, 82 (D.D.C. 2016).
IV. Conclusion
For the foregoing reasons, Schwartz’s Motion for Summary Judgment is GRANTED as to
Thomas’s false advertising and tortious interference with business expectancy counterclaims. But
it is DENIED as to Thomas’s defamation and unfair competition counterclaims. Thomas’s Motion
for Summary Judgment is GRANTED as to Schwartz’s breach of contract, breach of a fiduciary
duty, conspiracy, and tortious interference with contract claims. And Thomas’s Motion to take
14
judicial notice of a couple exhibits is DENIED as MOOT. An Order will be entered
contemporaneously with this Memorandum Opinion.
DATE: October 6, 2021
CARL J. NICHOLS
United States District Judge
15