Foodmark, Inc. v. Alasko Foods, Inc. , 768 F.3d 42 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 13-2188
FOODMARK, INC.,
Plaintiff, Appellee,
v.
ALASKO FOODS, INC.,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Thompson, Stahl, and Kayatta,
Circuit Judges.
Robert L. Hamer, for appellant.
Peter S. Brooks, with whom Zachary W. Berk and Saul Ewing LLP,
were on brief, for appellee.
October 1, 2014
THOMPSON, Circuit Judge. Appellant Alasko Foods, Inc.
("Alasko") and appellee Foodmark, Inc. ("Foodmark") wage a pitched
battle over the meaning of certain provisions in their "U.S.
Representation Agreement [and] Sales Management Agreement," which
governed their nearly five-year relationship. The district court
found that, in accordance with its contractual obligations, Alasko
owed Foodmark a "Non-Renewal Termination Fee" when it decided to
part ways with Foodmark. Having so concluded, the district court
granted Foodmark's motion for summary judgment, and Alasko
appealed. At stake is approximately $1.1 million. Although Alasko
attacks the district court's decision on a multitude of fronts,
Alasko's contractual obligations are clear, and the record reveals
no genuine issue of fact for trial. Accordingly, we affirm.
I. BACKGROUND
The underlying facts are generally undisputed. We set
them forth in the light most favorable to Alasko as the non-moving
party, Rivera-Colón v. Mills, 635 F.3d 9, 10 (1st Cir. 2011),
reserving some for our discussion of the parties' specific legal
arguments.
Foodmark is a Massachusetts corporation that assists food
manufacturers in marketing "branded-label" and "private-label"
products to retailers.1 Alasko is a Canadian corporation
1
The parties inform us that a "branded-label food" product
appears on store shelves under its manufacturer's name. A
"private-label food" product, by contrast, bears a name differing
-2-
headquartered in Montreal, Québec that sells frozen fruit and
vegetables to retail outfits. Sometime in 2006, Foodmark
approached Alasko to discuss the possibility of marketing Alasko's
products in the United States, a market Alasko had yet to tap into.
After a period of negotiation, on July 20, 2007, the parties signed
a "U.S. Representation Agreement [and] Sales Management Agreement"
("Agreement").
1. Terms of the Agreement
Alasko retained Foodmark to provide "private label sales
management" and act as its "exclusive private label sales
management team" with respect to "Target Accounts," which consisted
of supermarkets and so-called "club stores" in the United States.
See Agreement §§ 1-4. Foodmark was to manage sales of Alasko's
frozen fruit and vegetable products, referred to in the Agreement
as "Product Lines." Agreement § 2. The Agreement sets forth the
scope of Foodmark's duties as follows:
5. [Foodmark's] Responsibilities and
Obligations:
a. To exclusively represent [Alasko] and
the designated Product Lines to the Target
Accounts within the Territory;
b. To review and to familiarize its
staff with all facets of the current
product line, production costs and margin
requirements;
from that of its manufacturer.
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c. To manage and/or appoint brokers and
insure [sic] that the product line is
presented to the specified Target
Accounts;
d. If necessary, to process all orders
from accounts and brokers, including EDI
when applicable;
e. To assume all normal expenses in the
performance of its assigned
responsibilities (includes entertainment,
travel, food and lodging);
f. To hold in strictest confidence all
information deemed to be sensitive
(includes product c o mposition,
manufacturing procedures, distribution
methods and customer lists)[.]
Agreement § 5. In exchange, Alasko promised to pay Foodmark a
"Management Fee" of 5% of "the net invoice sales of all Products"
in the United States.2 Agreement §§ 6.e, 7.a.
But Foodmark's compensation was not limited to its
management fee. Alasko agreed that, under certain circumstances,
it would pay Foodmark a "termination fee" at the end of their
business relationship. Although the Agreement provides different
mechanisms for ending the parties' work together, we need only
concern ourselves with those few sections applicable here.
The Agreement broke the parties' relationship into terms
of one or three years that would renew automatically unless either
party notified the other of its intent not to renew. Section 11,
2
Alasko further agreed that it would compensate "all brokers"
with a "3% Broker Commission based on the net invoice sales of all
Products." Agreement §§ 6.f, 7.b.
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inserted at Alasko's behest, allowed it to terminate the Agreement
during the middle of any term upon ninety-days notice. Agreement
§ 11. Should it "elect[] not to renew the Agreement for any 3-year
term," Alasko would pay Foodmark a "Non-Renewal Termination Fee."
Agreement § 10.d. This fee was to be calculated "based on the net
invoice sales for the last 13-week period of the term, annualized,
for accounts managed by [Foodmark]." Agreement § 10.f. As
applicable here, the Termination Fee amounted to 10% of Alasko's
sales up to $10 million, 8% of sales between $10 million and $25
million, and 6% of sales over $25 million. Agreement § 10.f.
The Agreement also envisioned a circumstance in which
Alasko could end its relationship with Foodmark without owing a
termination fee. Section 13, "Breach of Agreement," provides each
party the right to terminate if the "other party defaults in the
performance of any material obligation hereunder or materially
fails to comply with any provision of this Agreement or materially
breaches any representation contained herein." Agreement § 13.
Unlike Section 10, Section 13 makes no provision for a termination
fee.
2. The Agreement's Life and Death
With the Agreement in place, Foodmark started trying to
secure United States buyers for Alasko's products. It began by
familiarizing itself with Alasko's products, capabilities, and
strategies. It then "engaged in discussions [with Alasko] about
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the best course of action for U.S. sales and decided to pursue
retail private label sales." Having charted this course, Foodmark
analyzed the relevant market, made appointments with retailers to
present Alasko's products, and obtained feedback from its own pre-
existing clients to determine whether any of Alasko's products
needed "fine-tun[ing]" before being put on the market. All told,
Foodmark peddled Alasko's products to twenty-two retailers in the
United States, all at its own expense.
By December 2007, Foodmark had brought in a broker, TBG,
LLC ("TBG"), to assist it in pitching Alasko's products to Sam's
Club, a major United States retailer.3 At some point (the record
does not disclose exactly when), Foodmark decided it would
introduce TBG to Alasko. In July 2009, Sam's Club committed to
purchase private-label frozen food from Alasko. Alasko
subsequently entered into a direct Brokerage Agreement with TBG for
its new Sam's Club account.4
The Brokerage Agreement sets TBG up as Alasko's "broker"
with respect to Alasko's sales to Sam's Club. See Brokerage
Agreement § 1 and Schedule A. Its specific obligations were
spelled out as follows:
3
TBG is an American company and is headquartered in
Fayetteville, Arkansas.
4
The Brokerage Agreement also contemplated sales to Wal-Mart,
Inc. Any such sales--the record does not reveal whether or not
there were any--are irrelevant to the issues we must decide.
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[TBG] shall maintain a business organization
and workforce adequate in every way to:
A. Regularly contact its Accounts' buying
office;
B. Diligently and with reasonable frequency
solicit and promote the sales of all [Alasko]
Products.
C. Work diligently at an acceptable frequency
to secure orders from [Alasko's] Accounts
listed in Schedule A [i.e., Sam's Club and
Walmart] attached hereto.
D. On sales of Products on orders submitted
by Broker and accepted by [Alasko], Broker
will lend complete and regular assistance in
effecting prompt and full payments by
customers for all deliveries of Products sold;
and
E. Broker agrees to adhere to [Alasko's]
schedule of prices, terms, and conditions of
sale, and to submit orders taken under these
conditions to [Alasko] for approval in the
routine manner; and
F. Meet sales goals and objectives for the
business.
Brokerage Agreement § 4. TBG further agreed to assist Alasko with
"any customer disputes, inquiries or deductions," "product
problems, product withdrawals or recalls," and collections.
Brokerage Agreement § 9A.
The Brokerage Agreement does not state TBG will "manage"
any accounts, assume any sort of "management role" over anything,
or seek to secure new accounts. Neither was TBG declared to be a
"sales management team" like Foodmark. And Alasko agreed to pay
TBG a 3% broker fee (not a "management fee") based on Alasko's net
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sales to the Sam's Club account. Brokerage Agreement § 7 and
Schedule C. This fee, we note, is equal to the 3% broker fee
contemplated by Foodmark and Alasko's Agreement.
Alasko subsequently renegotiated Foodmark's management
fee on the Sam's Club account, and Foodmark ultimately accepted a
reduced fee of 2%.5 Alasko began shipping products to Sam's Club
in October 2010. It sent Foodmark management fees, calculated from
Alasko's sales to Sam's Club, in the months that followed.
Meanwhile, private equity firm Catterton Partners
acquired a controlling interest in Alasko in July 2010. At the
request of the new owners, Foodmark ceased its work--for the most
part--while the company reconsidered its United States sales
strategy.6 On October 17, 2011, Alasko informed Foodmark it had
opted, pursuant to Section 11, to terminate the Agreement as of
January 15, 2012. Alasko did not say that Foodmark had failed to
perform any of its contractual obligations, nor did it mention
Section 13's provisions governing termination for cause.
Alasko continued to pay Foodmark's management fee for the
Sam's Club account through the end of their relationship. Payments
5
Although the parties do not agree on the reasoning behind
this reduction, the disagreement is immaterial because it is
uncontested that Alasko continued to pay Foodmark a management fee
(albeit a reduced one) with respect to the Sam's Club account, even
after the renegotiation.
6
Foodmark asserts it continued to present Alasko with new
business opportunities, a claim to which Alasko has not responded.
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between the notice of termination and January 15, 2012, amounted to
$56,329.72. Over the entire life of the Agreement, Alasko paid
Foodmark a total of $205,509.00 in management fees, all of which
related to the Sam's Club account.
After receiving the notice of termination, Foodmark
demanded payment of the Non-Renewal Termination Fee contemplated by
Section 10.f, but Alasko refused.
3. The Litigation
Unwilling to surrender, Foodmark filed a two-count
complaint in Massachusetts state court. Count 1 alleged that
Alasko's refusal to pay the termination fee constituted a breach of
the Agreement and of its covenant of good faith and fair dealing.
Count 2 requested relief under the business-to-business provisions
of Massachusetts's consumer protection statute. Alasko removed the
case to federal court on the basis of diversity jurisdiction. The
parties proceeded to bombard the district judge with a flurry of
dispositive motions and cross-motions.
Alasko sought summary judgment on all counts, arguing
that its termination of the Agreement in the middle of a three-year
term pursuant to Section 11 did not trigger its obligation to pay
a termination fee. Foodmark returned fire with its own cross-
motion, asserting that regardless of whether Alasko ended the
Agreement during or at the end of a term, Foodmark was entitled to
a termination fee because Alasko had opted not to renew the
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Agreement. The district court--whose reasoning is not germane
here--sided with Foodmark and permitted the parties to conduct
limited discovery on damages.
Foodmark filed a follow-up summary judgment motion, this
time seeking $1,101,275.45 in damages based on Alasko's sales to
Sam's Club during the final thirteen weeks of the Agreement.
Alasko resisted, arguing Foodmark was not entitled to anything
because it did not actually manage the Sam's Club account, as the
Agreement required. The district court rejected Alasko's
arguments, found that Foodmark did "manage" the Sam's Club account,
and entered judgment awarding Foodmark $1,101,275.45.
Refusing to admit defeat, Alasko's timely appeal
followed.7
7
We note a jurisdictional wrinkle not mentioned by the
parties. Foodmark's summary judgment motions raised only the first
count of its two-count complaint. The district court's judgment,
however, resolved all questions of liability and damages, and
imposed pre- and post-judgment interest. This disposed of the case
in its entirety and left nothing further for the district court to
do. For its part, Foodmark affirmatively relied on the judgment's
finality by applying for a writ of execution.
There is no doubt that the district court entered final
judgment in Foodmark's favor. See In re Forstner Chain Corp., 177
F.2d 572, 576 (1st Cir. 1949) ("A final judgment is the concluding
judicial act or pronouncement of the court disposing of the matter
before it . . . ."); see also Hickey v. Duffy, 827 F.2d 234, 237-38
(7th Cir. 1987) (finding jurisdiction over an appeal where the
district court "believe[d]" a particular ruling ended the
litigation). Accordingly, we have jurisdiction over this appeal.
See 28 U.S.C. § 1291 (limiting our appellate jurisdiction to "final
decisions of the district courts").
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II. STANDARD OF REVIEW
Although the Agreement's choice of law provision
implicates the substantive law of Québec, where foreign substantive
law applies we nonetheless utilize our own procedural rules. See
Servicios Comerciales Andinos, S.A. v. Gen. Elec. Del Caribe, Inc.,
145 F.3d 463, 478 (1st Cir. 1998). Accordingly, we review "the
district court's grant of summary judgment . . . de novo, and we
draw all reasonable inferences in favor of the nonmoving party."
Ponte v. Steelcase, Inc., 741 F.3d 310, 319 (1st Cir. 2014). We
affirm "if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law." Fed. R. Civ. P. 56(a).
III. ANALYSIS
On appeal, Alasko does not contest the district court's
allowance of Foodmark's first motion for summary judgment, or the
denial of its own. Rather, it only challenges the district court's
resolution of Foodmark's second summary judgment motion on damages.
Before diving into our analysis of the Agreement, we
briefly set forth the controlling legal principles.
1. Contract Interpretation Under Québec Law
The parties agree that Québec law governs their
contractual obligations, and we see no reason to disturb this
choice. See Barclays Bank PLC v. Poynter, 710 F.3d 16, 21 (1st
Cir. 2013) (forgoing choice of law analysis where the parties
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agreed to utilize the substantive law of a particular jurisdiction
and there was "at least a reasonable relationship between [their]
dispute" and that jurisdiction). Each party has submitted an
affidavit from a Québec legal practitioner setting forth the
substantive rules of law, which is an appropriate method of proving
the law of a foreign country. See Elec. Welding Co. v. Prince, 86
N.E. 947, 948 (Mass. 1909) ("The proof of the law of a foreign
country may be by the introduction in evidence of its statutes and
judicial decisions, or by the testimony of experts learned in the
law, or by both."); Evans Cabinet Corp. v. Kitchen Int'l, Inc., 593
F.3d 135, 143-44 (1st Cir. 2010) (applying Québec law as set forth
in the affidavit of a Canadian attorney).
After carefully reviewing the parties' submissions, we
find their views of Québec law are substantially similar. We do
not hesitate, however, to supplement their submissions with our own
research, where necessary.
Our ultimate goal under Québec law is to give effect to
the contracting parties' intent. To that end, "[t]he common
intention of the parties rather than adherence to the literal
meaning of the words shall be sought in interpreting a contract."
Civil Code of Québec, S.Q. 1991, c. 64 ("Code"), art. 1425 (Can).
Although the parties do not contend their Agreement is ambiguous,
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we are permitted to refer to the Code's principles to guide our
analysis of their contractual obligations.8
When dealing with contractual language, each individual
"clause . . . is interpreted in light of the others so that each is
given the meaning derived from the contract as a whole." Code art.
1427. "A clause is given a meaning that gives it some effect
rather than one that gives it no effect." Code art. 1428. Should
there be any doubt, "a contract is interpreted in favour of the
person who contracted the obligation and against the person who
stipulated it." Code art. 1432.
Further, we may take into account "the nature of the
contract, the circumstances in which it was formed, [and] the
interpretation which has already been given to it by the parties."
Code art. 1426. And we can also look to the parties' "usage," that
is, the manner in which they have performed. Id.
With these underlying principles in mind, we soldier on.
8
This is where the parties' interpretations of Québec law
diverge. Foodmark tells us we may resort to the Code's principles
even where a contract is not ambiguous, but Alasko would have us
forgo their use altogether unless we find ambiguity in the
Agreement. The authority Alasko cites in favor of this proposition
does not go so far, providing only that we may not vary or alter
the terms of an unambiguous agreement under the guise of
interpretation. See Aff. of Peter S. Martin, ¶ 3. This says
nothing about incorporating the Code's underlying principles into
our determination of contractual obligations, and we accept
Foodmark's essentially uncontested view of Québec law on this
point.
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2. Did Foodmark Manage the Sam's Club Account?
Alasko begins by arguing Foodmark was required to perform
"all" of its contractual obligations in order to have "managed" any
particular account. According to Alasko, Foodmark's "obligations
under Section 5 of the Agreement . . . were collectively deemed to
comprise account management." Appellant Br. at 11.9 Foodmark does
not contest this proffered definition, and so we adopt it for
purposes of this appeal.
This brings us to the central issue in this case:
whether there is a disputed issue of fact with respect to
Foodmark's "management" of the Sam's Club account. We address the
parties' arguments in turn, providing necessary details as we go
along.
i. TBG's Involvement with the Sam's Club Account
Alasko's front-line argument is that no termination fee
is owed because TBG, not Foodmark, managed the Sam's Club account.
Foodmark, however, says that bringing TBG on-board was consistent
with its own contractual duties to "manage" that account.
9
Alasko separately raises the concept of "conjunctive
obligations." See Appellant Br. at 15. A "conjunctive obligation
. . . is an obligation where the debtor is required to perform
several duties." Jean-Louis Baudouin, Pierre-Gabriel Jobin &
Nathalie Vézina, Les obligations § 605 (7th ed. 2013) (Appellant's
Translation). See Addendum to Appellant Br. at 47. Because the
parties' accepted definition of "manage" as collectively comprising
Foodmark's Section 5 duties embraces this notion, we need not
consider it separately.
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The Agreement expressly provides for Foodmark's
appointment of brokers for the accounts it landed, and for brokers
to oversee the day-to-day handling of those accounts. Agreement
§ 5.c. Foodmark's hands-off responsibilities with respect to any
particular broker-run account are obvious, as Foodmark was required
to "process all orders from accounts and brokers" only "[i]f
necessary." Agreement § 5.d. The Agreement also calls for a 3%
broker fee, which is exactly what Alasko agreed to pay TBG with
respect to the Sam's Club account. Agreement § 7.b. Thus, the
parties plainly envisioned Foodmark working with or through a
broker on any U.S. account it secured.
Furthermore, comparing Foodmark's responsibilities to
TBG's shows the two companies fulfilled quite different roles for
Alasko. The Brokerage Agreement limited TBG's obligations to the
Sam's Club Account itself.10 Foodmark's job, on the other hand, was
to go out and pitch Alasko's products to numerous United States
vendors in order to drum up business and secure new accounts for
Alasko. It was also tasked with managing any brokers brought in to
handle these new accounts to ensure their performance was up to
par.
10
The Brokerage Agreement also made TBG responsible for
Alasko's sales to Walmart. The record does not reveal whether
Alasko ever sold any products to Walmart, but whether or not it did
does not affect our analysis.
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In sum, Foodmark was involved in Alasko's "big picture"
business concerns in a way TBG simply was not. That TBG provided
broker services on the Sam's Club account was foreseen by and
entirely consistent with Foodmark's own management
responsibilities. Nothing in the Agreement's clear language
precluded both Foodmark and TBG from fulfilling their own, unique
obligations with respect to the Sam's Club account. We conclude,
therefore, that TBG's involvement did not preclude Foodmark from
managing the account within the meaning of the Agreement.11
This determination, however, does not get us through the
battle lines: we must still answer the final question of whether
there is a triable issue as to whether Foodmark actually managed
the Sam's Club account within the meaning of the Agreement. Our
march continues.
ii. The Parties' Course of Conduct
As we hone in on our objective, we consider the evidence
as to how the parties performed under the Agreement and how they
interpreted their responsibilities during the course of their
business relationship. See Code art. 1426.
Foodmark argues the undisputed evidence demonstrates
Alasko recognized its management of the Sam's Club account because
11
Ironically, but for this conclusion, Alasko's reference to
TBG "managing" the account would be akin to admitting it breached
its promise to utilize Foodmark as its "exclusive" sales management
team on U.S. accounts.
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it paid Foodmark's management fee without complaint, even after TBG
entered the scene. Alasko, however, explains that the Agreement
entitles Foodmark to management fees with respect to all of
Alasko's sales in the United States (even if it did nothing to
bring about a particular sale), but that Foodmark only gets a
termination fee for accounts it affirmatively managed. Thus,
Alasko would have us find that its payment of management fees does
not by itself mean that Foodmark managed the Sam's Club account.
Alasko's position must give way in the face of the
Agreement's plain language and the uncontested evidence in the
record. For starters, Alasko's argument is irreconcilable with its
proffered definition of "management," to wit, fulfillment of every
one of Foodmark's Section 5 responsibilities. The idea that
"management" could mean Foodmark did not have to do anything to
earn management fees (which ultimately exceeded $200,000) defies
all bounds of common sense and commercial logic, and is contrary to
the plain meaning of the Agreement. Indeed, this construction
reads the bargained-for nature of Foodmark's duties out of the
Agreement and runs afoul of the Québec Civil Code's admonition to
interpret contractual language in a way "that gives it some effect
rather than one that gives it no effect." Code art. 1428.
And apart from being inconsistent with the Agreement's
language, Alasko's position is flatly contradicted by the
uncontested evidence in the record. There is no dispute that
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Alasko continued to pay Foodmark's "management fee" (albeit reduced
to 2% from the originally-agreed-upon 5%) with respect to the Sam's
Club account after it entered into its Brokerage Agreement with
TBG. Alasko never gave Foodmark any notice of nonperformance, nor
did it seek to terminate the Agreement for cause, as would be
expected had Alasko felt Foodmark was not providing the services
required of it and which would have relieved Alasko of any
obligation to pay a termination fee. See Agreement § 13. Thus, we
reject Alasko's implication that it would have paid Foodmark more
than $200,000 for no work.
What's more, Alasko has turned a blind eye to the
commercial reality that it did not have any United States sales
before hiring Foodmark as its exclusive sales management team.
Given this exclusivity provision, any U.S. sales Alasko realized
would likely have been procured through Foodmark's work. Yet,
throughout this appeal Alasko ascribes no value at all to
Foodmark's contributions towards developing the Sam's Club account,
an account which Alasko does not dispute is expected to generate
approximately $10 million in annual sales. Nothing in the record
suggests--nor does Alasko argue--that it would have realized any
United States sales but for Foodmark's groundwork at the beginning
of their relationship and its later introduction of TBG.
All told, the undisputed evidence demonstrates Alasko
acknowledged Foodmark's management role with respect to the Sam's
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Club account. And as we discuss below, there is no evidence in the
record from which to draw a contrary conclusion, as would be
necessary to raise a genuine issue of fact for trial.
iii. Uncontested Evidence of Management
Alasko does not contest any of Foodmark's evidence
showing that it spent time familiarizing itself with Alasko's
products, that it conducted market research and met with Alasko and
its own clients to discuss sales strategy and the competitiveness
of Alasko's offerings, and that it ultimately presented Alasko's
products to twenty-two retailers in the United States. Alasko
admits Foodmark introduced it to TBG, and the uncontested evidence
is that Alasko landed the Sam's Club account sometime after TBG
became involved. All of these activities are plainly within the
scope of Foodmark's Section 5 duties.
Furthermore, the record reveals that Foodmark's work with
TBG was directed specifically at Sam's Club. This evidence comes
in the form of affidavits from Foodmark employees describing just
what Foodmark did on Alasko's behalf, along with email
communications between Foodmark and TBG appended to each affidavit.
Alasko has not contested the authenticity or contents of any of
these emails.12
12
The closest Alasko comes is its submission of two conclusory
affidavits from TBG employees stating that Foodmark played no role
in the day-to-day management of the Sam's Club account. These do
not suffice to create a genuine issue of fact in light of Alasko's
failure to contest the information contained in Foodmark's email
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Foodmark's affidavits and emails span 126 pages of the
summary judgment record. The emails were exchanged both before and
after TBG entered into its Brokerage Agreement with Alasko. They
show that Foodmark was actively involved with product packaging,
product pricing, and delivery of sample products, and that it
coordinated meetings and assisted TBG's presentations. They also
detail Foodmark's market research into the activities and pricing
strategies of competing companies. All of these activities
directly related to the Sam's Club account. Furthermore, the
emails detail Foodmark's and TBG's attempts to establish a separate
account with Walmart. Thus, the uncontested evidence demonstrates
Foodmark played a role in managing TBG, as provided for by the
Agreement.
Alasko marshals one final effort to get around the
Maginot Line presented by the uncontested evidence. The evidence
in the record here provides a much more effective defense than did
France's physical bulwarks.
communications. See Torrech-Hernandez v. Gen. Elec. Co., 519 F.3d
41, 47 (1st Cir. 2008) (recognizing "unsupported, subjective,
conclusory, or imaginative statement[s]" do not create a factual
dispute at the summary judgment stage). Moreover, given our
conclusion that Foodmark and TBG each had different business
responsibilities, TBG's opinion that Foodmark did not manage the
Sam's Club account on a day-to-day basis is not inconsistent with
a finding that Foodmark managed the account within the meaning of
the Agreement. We reject Alasko's argument that these affidavits
present an issue for trial.
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Alasko says that the parties' renegotiation of Foodmark's
management fee from 5% to 2% of sales to Sam's Club is indicative
of Foodmark's "vastly diminished role--something far less than
account management--relative to this particular account."
Appellant Br. at 11. But the renegotiation only strengthens the
conclusion that Foodmark continued to manage the account. A
diminished management role remains, by definition, a management
role. And the fact that the parties did not simultaneously
negotiate any alteration to the termination fee buttresses our
conclusion that Alasko recognized Foodmark continued to "manage"
the Sam's Club account within the meaning of the Agreement, despite
the renegotiation.
IV. CONCLUSION
After cutting through the fog of war, we find that the
uncontested evidence in the record demonstrates both that Foodmark
fulfilled its Section 5 duties with respect to the Sam's Club
account, and that Alasko recognized its management role even after
concluding the Brokerage Agreement with TBG. Accordingly, there is
no genuine issue of fact for trial, and Foodmark is entitled to a
termination fee in the amount calculated by the district court.
Affirmed.
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