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Cunney v. Patrick Communications, LLC

United States District Court, D. Maryland

June 13, 2016

JOHN J. CUNNEY, Plaintiff


          James K. Bredar United States District Judge.

         John J. Cunney ("Plaintiff"), a citizen of Connecticut, brought an action in diversity[1]against Patrick Communications, LLC ("PCL"), a limited liability company organized under the laws of Maryland; W. Lawrence ("Larry") Patrick, a Maryland citizen and PCL principal; and Larry's wife Susan Patrick, also a Maryland citizen and PCL principal (collectively, "Defendants"). Plaintiff seeks to recover certain commissions he allegedly earned in his former capacity as a vice president and broker at PCL. Against PCL, Plaintiff brought claims sounding in breach of contract and quantum meruit. Against each Defendant, Plaintiff asserted violations of the Maryland Wage Payment and Collection Law ("MWPCL"), Md. Code Ann., Lab. & Empl. §§ 3-501 et seq.; Plaintiff further accused each Defendant of "intentional misrepresentation / fraud." Finally, Plaintiff requested a declaratory judgment with respect to the ownership of an equitable interest in an entity formed for purposes of broadcast spectrum investment and arbitrage, NRJ TV, LLC ("NRJ" or the "NRJ Venture").[2]

         Now pending before the Court is Defendants' Motion for Summary Judgment. (ECF No. 60.)[3] The issues have been briefed (ECF Nos. 60-1, 68-1 & 70), and no hearing is required, see Local Rule 105.6 (D. Md. 2014). For the reasons explained below, Defendants' motion will be GRANTED.

         I. Factual Background and Procedural Posture

         PCL is a brokerage firm specializing in "broadcast media, tower, telecom and wireless transactions." (ECF No. 60-3 ¶ 3.) The firm represents buyers and sellers in the purchase and sale of television and radio stations as well as wireless towers, telecommunications systems, and electromagnetic spectrum licenses. (Id. ¶ 5.) In April 2009, Plaintiff joined PCL as a vice president and commissioned broker: the basic terms of his employment are outlined in a memorandum drafted by Larry Patrick on March 13, 2009 ("Employment Memorandum"). (ECF No. 60-10 at 59.) Pursuant to that memorandum, Plaintiff was entitled to an annual base salary of $100, 000 as well as commissions on certain transactions that he originated, executed, or assisted in executing to a reasonable degree. Specifically, Plaintiff was entitled to (1) 30% of all collected fees paid to PCL for telecom, wireless, or tower transactions that he originated and executed; (2) 30% of all collected fees for broadcast media transactions that he originated; and (3) 20% of all collected fees for broadcast media transactions that he executed or reasonably assisted in executing. (Id.)[4] The memorandum further specified that Plaintiff's telecom/wireless/tower commissions would increase to 40% once he generated $1 million in fees from originating such transactions; his broadcast media commissions would likewise increase to 40% once he generated $1 million in fees from originating those transactions. (Id. at 60.)[5]Despite this seemingly attractive compensation package, Plaintiff earned just $10, 365 in commissions during his first eighteen months at PCL. (ECF No. 70-2 at 2.)

         On March 17, 2010, the Federal Communications Commission ("FCC") unveiled a National Broadband Plan ("NBP"), a comprehensive roadmap to expanding broadband coverage and access that included as a goal the reallocation of electromagnetic spectrum to next-generation services.[6] Under the NBP, the FCC determined to conduct a "reverse auction" at some unspecified date, acquiring spectrum from television stations in exchange for fees; the FCC would then conduct a "forward auction, " licensing the newly reacquired spectrum to wireless service providers. (ECF No. 60-3 ¶ 16.) Larry Patrick avers that, upon learning about the NBP, he envisioned two distinct and potentially lucrative business opportunities-the first being an arbitrage opportunity whereby he and Susan could create an investment vehicle for the purpose of purchasing and holding underperforming television stations in advance of the reverse auction; the second being a marketing opportunity whereby PCL could sell its brokerage services to other investors who shared Larry's appetite for arbitrage. (Id. ¶¶ 20-21.) Thereafter, Larry reached out to two fellow businessmen with whom he had longstanding relationships: Urchie Bertram ("Bert") Ellis, Jr., the president of Titan Broadcasting Management, LLC, a company that operates television stations nationwide; and Teddy ("Ted") Bartley, an employee at Fortress Investment Group ("Fortress"), a global investment firm. (Id. ¶ 24.) Together, Larry, Ellis, and Bartley (the "NRJ Partners") agreed to form a partnership-what would become the NRJ Venture-for the purpose of engaging in spectrum arbitrage.[7]

         On August 13, 2010, the NRJ Partners met with representatives of Fortress to discuss the venture and the possibility of securing a loan facility from Fortress. (Id. ¶ 25.) Around that same time, as negotiations continued, Bartley contacted Plaintiff on several occasions seeking his input on spectrum valuation, but Larry instructed Plaintiff to refrain from providing any such information until a final deal was reached. (See ECF No. 66-6 at 25-31.) Plaintiff testified that he complied with Larry's instructions. (ECF No. 60-10 at 7.) Plaintiff further averred that on "October 8, 2010, Larry told [him] the deal was funded and the investment partnership, known as NRJ, was up and running." (ECF No. 66-5 ¶ 29.)[8] At that point, Plaintiff was free to supply Bartley and the other NRJ Partners (and Fortress) with spectrum valuation reports: Larry viewed these reports as a "marketing tool that would lead to brokerage engagements for PCL, " resulting in "substantial fees to PCL and, in turn, commissions to its brokers who executed or assisted in executing the specific television station sale[s] . . . which would include Plaintiff." (ECF No. 60-3 ¶ 32.)

         Although Bartley had at one point circulated a draft term sheet proposing that PCL could sign an exclusive brokerage agreement with NRJ in exchange for equity in the venture (ECF No. 66-6 at 66), no such agreement was ever executed (ECF No. 66-1 at 21). Instead, as Bert Ellis explained, the three NRJ Partners themselves "agreed to an equal split of the NRJ equity because of the value [they] understood each of [them] inherently brought to NRJ through [their] knowledge, experience and relationships . . . and because [they] had jointly developed, created and formed NRJ and brought it to fruition." (ECF No. 70-6 ¶ 15.)[9] Bartley testified that Larry, in particular, received equity in NRJ because the two had a longstanding, valuable professional relationship. (ECF No. 66-1 at 33.)[10] The final operating agreement, which was executed on December 23, 2010, reflects the equal shares to which the NRJ Partners agreed: each received one-third of membership units issued at the time of formation; Larry's units were allocated to Drumcree, LLC ("Drumcree"), a limited liability company that Larry co-owns with Susan. (ECF No. 61 at 46.)[11]

         Unlike the NRJ Partners, Plaintiff received no share of equity in NRJ as he "had no involvement in the creation, formation or capitalization of the venture." (ECF No. 70-6 ¶ 12.) Even so, the venture redounded substantially to Plaintiff's economic benefit. Whereas he had earned just $10, 365 in commissions during his first eighteen months at PCL, he brought in $586, 516 in commissions during his last eighteen months of employment, $306, 400 of which amount was attributable to his work on NRJ transactions. (ECF No. 70-2 at 2-3.) In spite of these significant gains, Plaintiff began inquiring at an early stage about the possibility of receiving either equity in Drumcree or a cash payment upon final, post-auction liquidation of the NRJ Venture, either of which amount would be calculated based on the commission schedule laid out in the Employment Memorandum. According to Plaintiff, on November 3, 2010, he asked Susan for a portion of Drumcree's equity as his commission, "just like any other deal." (ECF No. 66-5 ¶ 32.) Plaintiff avers that Susan expressed "concerns about paying [him] a commission in equity, " ostensibly because he might leave PCL before completing his work on NRJ transactions; however, he claims she "confirmed that [he] would get paid [his] percentage of any money they received in the future." (Id.)

         Plaintiff had subsequent conversations with both Larry and Susan about his desire for a profit share in NRJ. On November 9, 2010, Plaintiff e-mailed a proposed "NRJ COMMISSION AGREEMENT" for Larry's review; Larry responded that the document "mis-states several key facts, " and he did not sign it. (See ECF No. 66-6 at 80-81.) On November 28, 2010, Susan e-mailed Plaintiff to advise him that she had spoken with Larry at length about Plaintiff's proposed "deal"; that Larry was "willing to consider some sort of vesting in the NRJ stuff over time"; but that Larry felt it was "important that discussion of any vesting structure prior to just a simple payday at the end of the auction be tied to covering [their] investment in [Plaintiff] and some elements of financial performance." (Id. at 82.)[12] However, on December 10, 2010, Susan sent Plaintiff another e-mail, asking to meet and advising him that Larry was "extremely annoyed and frustrated" with Plaintiff's proposed "deal." (Id. at 83.) According to Plaintiff, during their conversation, Susan told him they would "pay [him] when the deal ‘closed[, ]' which they considered was the time they received cash for their shares in NRJ, " and she advised him not to press the issue. (ECF No. 66-5 ¶ 40.) It appears that the parties had no further discussion about Plaintiff's desire for a slice of NRJ's profits until Plaintiff's April 2012 exit interview, at which point he avers that Susan "told [him] since [he] was no longer employed, they would not have to pay [him] commissions for NRJ." (Id. ¶ 49.) In an e-mail following up on the exit interview, Plaintiff acknowledged that the parties were "not able to agree on the NRJ investment deal" and that, for the time being, he suggested they "agree to disagree on that matter." (ECF No. 66-6 at 86-87.)

         In sharp contrast with Plaintiff's testimony, both Larry and Susan have consistently testified that they promised Plaintiff neither equity in Drumcree nor any kind of profit share in NRJ. Larry attested that

[i]n or around late October or early November 2010, Plaintiff approached both Susan and [Larry] separately and requested that he be given an equity interest in NRJ. . . . Plaintiff . . . proposed that PCL enter into a written agreement, which would provide him with equity in NRJ at the same commission rate he received for broadcast media transactions under the [Employment] Memorandum. Both Susan and [Larry] explicitly rejected Plaintiff's request. Plaintiff continued to ask for equity in NRJ and, when repeatedly rebuffed, he asked for a cash payment in connection with the profitability of NRJ. Both Susan and [Larry] also rejected Plaintiff's requests for a cash payment in connection with the profitability of NRJ.

(ECF No. 60-3 ¶ 35.) Susan made similar, unequivocal statements in her declaration (see ECF No. 60-4 ¶ 15), and Greg Guy, a PCL broker, recalled a "couple of instances" in which the Patricks informed Plaintiff that he was "not going to receive a commission" with respect to the formation and capitalization of NRJ (ECF No. 70-5 at 3).

         Despite his April 2012 proposition that the parties should "agree to disagree, " Plaintiff filed suit on August 29, 2013, bringing claims sounding in breach of contract (Count I) and quantum meruit (Count II) against PCL; charging each Defendant with violating the MWPCL (Count III); and requesting a declaratory judgment as to the equitable ownership of Drumcree (Count IV).[13] (See ECF No. 1.) Plaintiff later amended his Complaint ("First Amended Complaint") to plead a claim against each Defendant for "intentional misrepresentation / fraud" (Count V). (See ECF No. 57.) On February 12, 2016, Defendants filed their pending Motion for Summary Judgment. (ECF No. 60.) Plaintiff opposed Defendants' motion (ECF Nos. 66 & 68), [14] and Defendants replied (ECF No. 70). The motion is ripe for adjudication.

         II. Standard of Review

         "The court shall grant summary judgment 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing predecessor to current Rule 56(a)). No genuine issue of material fact exists if the opposing party fails to make a sufficient showing on an essential element of his case as to which he would have the burden of proof. Celotex Corp., 477 U.S. at 322-23. The "mere existence of a scintilla of evidence in support of the [opposing party's] position" is insufficient to defeat a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). The facts themselves, and the inferences to be drawn therefrom, must be viewed in the light most favorable to the party opposing summary judgment. Scott v. Harris, 550 U.S. 372, 378 (2007); Iko v. Shreve, 535 F.3d 225, 230 (4th Cir. 2008). Even so, the opponent may not rest upon the mere allegations or denials of his pleading but must instead set out specific facts, supported by evidentiary materials, showing a genuine dispute for trial. Fed.R.Civ.P. 56(c)(1). Supporting and opposing affidavits must be made on personal knowledge with such facts as would be admissible in evidence and must affirmatively show the competence of the affiant to testify to the matters stated therein. Fed.R.Civ.P. 56(c)(4).

         III. Breach of Contract Claim Against PCL (Count I)

         A. Legal Principles

         1. Choice of Law

         "A federal court sitting in diversity is required to apply the substantive law of the forum state, including its choice-of-law rules." Francis v. Allstate Ins. Co., 709 F.3d 362, 369 (4th Cir. 2013). Maryland courts apply the rule of lex loci contractus, which requires that "the construction and validity of a contract be determined by the law of the place of making of the contract." Am. Motorists Ins. Co. v. ARTRA Grp., Inc., 659 A.2d 1295, 1300 (Md. 1995); see also Konover Prop. Tr., Inc. v. WHE Assocs., Inc., 790 A.2d 720, 728 (Md. Ct. Spec. App. 2002) ("For choice-of-law purposes, a contract is made where the last act necessary to make the contract binding occurs."). In this case, although neither party disputes that the Employment Memorandum is a valid and enforceable agreement that governed Plaintiff's employment relationship with PCL, [15] the memorandum itself is unsigned: the Court presumes, in the absence of any argument or evidence to the contrary, that Plaintiff impliedly accepted the terms of the memorandum through his subsequent performance. See Sharp Elecs. Corp. v. Deutsche Fin. Servs. Corp., 216 F.3d 388, 393-94 (4th Cir. 2000). Since PCL's offices are located in Maryland, and since Plaintiff moved from Connecticut to Maryland in order to commence his employment with PCL, the Court assumes that (1) he accepted Defendants' offer in Maryland and (2) Maryland law therefore controls. Moreover, while the parties do not specifically address the choice-of-law question in their briefs, both parties rely on case law authored by courts sitting in Maryland. Under such circumstances, the Court may appropriately apply Maryland law. See Chambco v. Urban Masonry Corp., 659 A.2d 297, 299 (Md. 1995) ("Where the parties to an action fail to give . . . notice of an intent to rely on foreign law . . . a court in its discretion . . . may presume that the law of [an] other jurisdiction is the same as Maryland law."); see also Howes v. Wells Fargo Bank, N.A., Civ. No. ELH-14-2814, 2015 WL 5836924, at *24 (D. Md. Sept. 30, 2015) (applying the Chambco presumption); Kent Constr. Co. v. Glob. Force Auction Grp., LLC, Civ. No. TJS-12-2839, 2015 WL 5315565, at *3 (D. Md. Sept. 10, 2015) (same); Danner v. Int'l Freight Sys. of Wash., LLC, 855 F.Supp.2d 433, 447-48 (D. Md. 2012) (same).

         2.Maryland's Law of Contract Enforcement and Interpretation

         To prevail in an action for breach of contract, a plaintiff must prove "that the defendant owed the plaintiff a contractual obligation and that the defendant breached that obligation." Taylor v. NationsBank, N.A., 776 A.2d 645, 651 (Md. 2001). Under Maryland law, the proper interpretation of a contract is a question of law for the Court to resolve; the "purpose of contract interpretation is to determine and effectuate the intent of the parties, and the primary source for identifying this intent is the language of the contract itself." Gresham v. Lumbermen's Mut. Cas. Co., 404 F.3d 253, 260 (4th Cir. 2005). Thus, in analyzing contract terms, Maryland courts adhere to the doctrine of objective contract interpretation: "[t]he written language embodying the terms of an agreement will govern the rights and liabilities of the parties, irrespective of the intent of the parties at the time they entered into the contract, unless the written language is not susceptible of a clear and definite understanding." Dumbarton Improvement Ass'n v. Druid Ridge Cemetery Co., 73 A.3d 224, 232 (Md. 2013) (alteration in original) (quoting Slice v. Carozza Props., Inc., 137 A.2d 687, 693 (Md. 1958)). Courts will deem a contract ambiguous only if, from the perspective of a reasonably prudent person, the contract is "susceptible of more than one meaning. The determination of whether language is susceptible of more than one meaning includes a consideration of "the character of the contract, its purpose, and the facts and circumstances of the parties at the time of execution[.]" Calomiris v. Woods, 727 A.2d 358, 363 (Md. 1999) (citations omitted). An ambiguity "‘does not exist simply because a strained or conjectural construction can be given to a word.' Nor does an agreement become ambiguous merely because two parties, in litigation, offer different interpretations of its language." Huggins v. Huggins & Harrison, Inc., 103 A.3d 1133, 1140 (Md. Ct. Spec. App. 2014) (alteration in original) (quoting Dumbarton Improvement Ass'n, 73 A.3d at 233).

         Where certain words or terms take on a specific trade usage in a particular industry, it is "competent for the parties to a contract in which such words and terms are used to show the peculiar meaning of them in the business or trade to which the contract relates, " not for the purpose of modifying the contract but rather for the purpose of "elucidating the language used as a means of enabling the court to interpret the contract language according to the intention of the parties." 8621 Ltd. P'ship v. LDG, Inc., 900 A.2d 259, 269 (Md. Ct. Spec. App. 2006) (quoting Della Ratta, Inc. v. Am. Better Cmty. Developers, Inc., 380 A.2d 627, 635 (Md. Ct. Spec. App. 1977)); see also Restatement (Second) of Contracts § 202(3) (Am. Law Inst. 1981) ("Unless a different intention is manifested . . . technical terms and words of art are given their technical meaning when used in a transaction within their technical field."); cf. Calomiris, 727 A.2d at 363 ("[W]hile evidence of prior intentions and negotiations of the parties is inadmissible, the parol evidence rule would not bar a court from considering the context of the transaction or the custom of the trade in a determination of ambiguity.").

         B. The NRJ Venture

         In his First Amended Complaint, Plaintiff proclaims that, as "originator and procuring cause" of the NRJ Venture, he is contractually entitled to a commission equal to 40% of the profits PCL will receive upon liquidation of the venture. (ECF No. 57 ¶¶ 29, 37.)[16] Plaintiff's contract claim fails for three independent reasons: (1) the formation of NRJ did not constitute a broadcast media transaction as that term is understand in the media brokerage industry; (2) PCL neither received nor is entitled to receive any payment associated with the formation of NRJ or the ultimate liquidation of the venture; and (3) in any event, the record evidence flatly contradicts Plaintiff's notion that he was the "originator and procuring cause" of the venture.

         1.The Formation of NRJ Was Not a Broadcast Media Transaction

         As noted above, Plaintiff was entitled, pursuant to his Employment Memorandum, to commissions on two (and only two[17]) classes of transactions: telecom/wireless/tower transactions that he originated and executed; and broadcast media transactions that he originated or executed or assisted in executing to a reasonable degree. (ECF No. 60-10 at 59.)[18] The Employment Memorandum, which is admittedly a rather spare document, does not define "broadcast media transaction, " and Plaintiff testified that he does not recall any discussions with Larry or Susan Patrick concerning the meaning of the term (id. at 4). In the absence of an express definition in the contract, and given that the document relates to a professional relationship in a particular, highly technical, industry, the Court may properly consider extrinsic evidence of industry usage strictly for the purpose of understanding the parties' objectively manifested intent. See 8621 Ltd. P'ship, 900 A.2d at 269; Calomiris, 727 A.2d at 363.

         Defendants' expert witness, George R. Reed (a media broker and consultant with over forty-three years of experience in the broadcasting industry) opined that the term "broadcast media transaction" refers to the "purchase or sale of a broadcast property, such as a radio or television station, and in certain transactions the arrangement of financing for the purchaser."[19](ECF No. 60-15 at 10.) Reed explained that the "NRJ Transaction was not the purchase or sale of a broadcast property" but was instead the "creation, formation and funding of a new entity . . . that had a business plan to purchase television stations"-purchases that "occurred after NRJ was formed and a funding arrangement with Fortress established and were totally separate from the NRJ Transaction." (Id.) Plaintiff's expert, Brian Byrnes, did not contradict Reed's definition: on the contrary, Byrnes testified that a "broadcast media transaction is where a station is purchased or sold, a broadcast station. That's it." (ECF No. 60-16 at 9.) He further concurred with defense counsel that the mere act of forming a company that may engage in the purchase and sale of broadcast stations does not, by itself, constitute a broadcast media transaction. (Id. at 9-10.)[20]

         In his opposition brief, Plaintiff does not introduce evidence tending to discredit the experts' definition of "broadcast media transaction, " nor does he offer a competing definition of that term of art. Instead, he observes that the word "transaction" (by itself, without any modifiers) can refer to the "act or an instance of conducting business or other dealings;" "[s]omething performed or carried out;" and "[a]ny activity involving two or more persons." (ECF No. 68-1 at 36 (citing Transaction, Black's Law Dictionary (10th ed. 2014).) "A reasonably prudent person, " Plaintiff muses, "would therefore have a broader understanding of ‘transaction' than the mere purchase and sale of certain items." (Id.) But, of course, the Employment Memorandum does not make the payment of commissions contingent on the performance of transactions; rather, it entitles Plaintiff to commissions only where he performs specified transactions. Plaintiff's preferred interpretation of "broadcast media transaction" would strip the qualifying language of meaning, violating the cardinal tenet that "[c]ontract terms must be construed to give meaning and effect to every part of the contract, " United States v. McLaughlin, 813 F.3d 202, 204 (4th Cir. 2016) (quoting Goodman v. Resolution Tr. Corp., 7 F.3d 1123, 1127 (4th Cir. 1993)).

         Plaintiff complains that Defendants' interpretation of the NRJ transaction is "hyper-technical": in his view, "[s]egregating the formation of the entity from its revenue producing activities is the ultimate Shylockian triumph of form over substance." (ECF No. 68-1 at 35.) Not so. The decisions that parties to a commercial venture make during the formation stage- such as how the venture will be structured, who is entitled to an equitable stake and on what terms, how the project will be capitalized, and so forth-are legally significant and independent from decisions the parties subsequently make in their capacity as partners in an established enterprise.[21]Because the formation of NRJ was not a broadcast media transaction, Plaintiff is not entitled to a commission based on the equity Larry Patrick received as a partner in NRJ.

         2.The Formation of NRJ Generated No Fees for PCL

         Even were the Court persuaded that the formation of NRJ somehow amounted to a broadcast media transaction, the Court would still conclude that Plaintiff is not contractually entitled to a commission for his (limited) involvement with that transaction. This is so because (1) the transaction generated no fees for PCL but (2) Plaintiff's Employment Memorandum bases his commissions on "collected fees paid to [PCL]." (ECF No. 60-10 at 59.) Forty percent (or thirty percent) of $0 is $0.

         In an effort to avoid this arithmetical quandary, Plaintiff attempts to argue that Larry's equity (through Drumcree) was a de facto fee payable to PCL for the brokerage services PCL would eventually perform on behalf of the venture.[22] The first and most obvious problem with this argument is that it is belied by the NRJ operating agreement and the financing agreement between NRJ and Fortress. These lengthy, comprehensive documents include no reference to PCL's services or, for that matter, PCL itself. The operating agreement assigns 50, 000 Class B membership units to Drumcree (ECF No. 61 at 46);[23] the financing agreement enumerates conditions precedent to the agreement's effectiveness and conditions precedent and subsequent to the issuance of loans, yet it makes no loans conditional on performance by PCL (ECF No. 61- 1 at 52-58). Moreover, each NRJ Partner has testified that Larry (through Drumcree) received his equity interest in consideration for his partnership and not as compensation for the future services of his firm. Larry himself attested that "Drumcree . . . received the equity in NRJ because [he], together with Bartley and Ellis, had devised and developed the idea of forming the NRJ investment entity, and convinced Fortress to capitalize the venture." (ECF No. 60-3 ¶ 28.) Susan echoed Larry's sentiment, adding that she and Larry were "not required to perform any services to NRJ or Fortress to receive or retain [the] equity interest in NRJ" (ECF No. 60-4 ¶ 13); Susan further testified that "Ted Bartley, Larry Patrick, and Bert Ellis were going to be given equity for bringing the idea to Fortress" and that "the equity was given to them without regard to anything that they were going to do subsequent to that" (ECF No. 60-14 at 4). Ellis averred that "[e]ach of the NRJ Partners had the capability to provided needed services to assist NRJ in the acquisition, operation and ultimately sale of the acquired television stations and/or their spectrum" but that the "one-third equity interest received by each of the NRJ Partners was not in consideration for providing [such] services to NRJ." (ECF No. 70-6 ¶¶ 14-15.) Rather, each of the NRJ Partners "vested in their respective equity interest in NRJ at the time NRJ was formed." (Id. ¶ 15.) Finally, Bartley affirmed that there was "no agreement that Larry and Susan Patrick and Patrick Communications would receive equity interest in the payment of commissions for doing work for NRJ": simply put, "[t]hat agreement does not exist." (ECF No. 66-1 at 33.)

         True enough, Plaintiff has managed to adduce some flimsy evidence in support of his de facto fee theory. He cites two vague e-mails drafted by Larry in July and early September 2010 that could be read to suggest that Larry initially contemplated PCL would receive equity in the venture. (See ECF No. 68-1 at 39-40.) He also references an undated, unexecuted term sheet drafted by Ted Bartley: paragraph 4 of the term sheet reflects that PCL would "sign an exclusive agreement with [NRJ] where [PCL] [would] show any and all potential TV station acquisition opportunities in the Top 100 markets . . . during the five year period October 1, 2010- September 30, 2015, " in exchange for "1/3 of the mgmt equity of [NRJ subsidiaries]." (ECF No. 66-6 at 66.) At first blush, the term sheet seems helpful for Plaintiff's position. But on deposition, Bartley explained that "there were changes that were made between this term sheet and the legal documents." (ECF No. 66-1 at 21.) He elaborated that "there was never an exclusive agreement signed, " that "[paragraph] 4 did not take, " and that paragraph 4 "did not get reduced to a legal agreement." (Id.) Bartley's testimony is consistent with Ellis's declaration that "[a]lthough each of the NRJ Partners informally agreed to provide services to NRJ and discussed the nature and scope of the services, [they] never reached or signed any formal written agreement obligating any of [them] to provide [such] services." (ECF No. 70-6 ΒΆ 16.) On the ...

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