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Allen v. American Commercial Barge Line LLC

United States District Court, S.D. Indiana, New Albany Division

September 20, 2019

TIM ALLEN, Plaintiff,
TIM ALLEN, Counter Defendant.



         This cause is now before the Court on (1) the Motion for Summary Judgment [Dkt. 64] and Supplemental Motion for Summary Judgment on Conversion Claim [Dkt. 77] filed by Defendant and (2) Counter Claimant American Commercial Barge Line LLC[1] (“ACBL”) and the Motion for Summary Judgment [Dkt. 69] filed by Plaintiff Tim Allen. Mr. Allen brought this lawsuit against ACBL, his former employer, alleging various state law claims, including claims for breach of contract (Count I), defamation (Count II), and conversion (Count III).[2] ACBL has filed a counterclaim for breach of contract (Count I), trade secret misappropriation under the Indiana Trade Secrets Act (“IUTSA”) (Count II), tortious interference with contract (Count III), and declaratory judgment (Count IV) against Mr. Allen. We have jurisdiction under diversity of citizenship. 28 U.S.C. § 1332(a)(1) (diversity jurisdiction exists “where the matter in controversy exceeds … $75, 000, exclusive of interests and costs, and is between … citizens of different States”).

         ACBL seeks summary judgment in its favor on all of Mr. Allen’s claims as well as on Count I of its counterclaim for breach of contract. Mr. Allen, in turn, has moved for partial summary judgment on his breach of contract claim as well as on Counts I and II of ACBL’s counterclaim for breach of contract and trade secret misappropriation. For the reasons detailed below, we GRANT ACBL’s Motions and DENY Mr. Allen’s Motion.

         Factual Background

         Mr. Allen was employed by ACBL on two separate occasions. From 1987 to 1993, he worked as a sales representative in ACBL’s liquid sales department. Then, from 2005 to 2016, Mr. Allen worked for ACBL as Director of Liquid Sales and Vice President of Liquid Sales, both of which are senior management positions. During his employment with ACBL, he sold barge transportation services and directed the negotiation of thousands of contracts as the head of an eight-member team.

         The ACBL-Statoil Negotiations

         In early 2015, Mr. Allen represented ACBL throughout ninety days of negotiations for a master service agreement with energy company Statoil Marketing & Trading (US) Inc. (“Statoil”). Those negotiations resulted in the signing of the Master Liquid Cargo Contract between ACBL and Statoil (the “ACBL-Statoil Contract”), which included a confidentiality provision prohibiting the disclosure to third parties of the terms and conditions of the contract. Mr. Allen was not responsible for drafting the agreement, but he did review and comment on the various iterations of the contract throughout the negotiating process. According to Mr. Allen, this contract used terms and conditions “standard in the industry that any other carrier would apply the same way.” Allen Dep. at 15.

         The Parties’ Severance Agreement

         On December 29, 2016, due to restructuring of ACBL’s senior staff positions, Mr. Allen executed a Severance Agreement and Release (the “Severance Agreement”), voluntarily terminating his employment in exchange for certain severance benefits to be paid out over time. Specifically, pursuant to the terms of the Severance Agreement, ACBL promised to provide Mr. Allen his normal weekly rate of pay based on his annual salary at the time of his termination for one full year, along with any vacation and other paid leave he had accrued. These terms were in line with ACBL’s salaried severance policy that provides benefits based on the severed employee’s length of employment.

         As consideration for those severance benefits, Mr. Allen agreed, inter alia, to comply with non-disclosure obligations regarding ACBL’s confidential business information, including refraining from using or disclosing any such information and immediately returning any property of ACBL, including confidential information, which might subsequently come into his possession. The Severance Agreement provides that the non-disclosure obligations do “not apply to information that is in the public domain or that becomes part of the public domain through no fault of Employee’s.” Severance Agreement and Release, § 5.3.6.

         The Severance Agreement, defines “confidential information” as follows:

any information of any kind, nature or description concerning any matters related to the Released Parties which are not generally known or readily accessible to the public and which, if divulged, disclosed or otherwise communicated to a person or entity other than the Released Parties or their agents or employees, would be deemed by a person exercising reasonable judgment to, or likely to, adversely impact or affect the Released Parties’ business interests or to aid or assist a competitor of the Released Parties. Confidential information includes, but is not necessarily limited to, information pertaining to the Released Parties’ products, services, business procedures, marketing plans, customer lists, inventions and other information, as well as all other trade secrets, intellectual property and information proprietary to the Released Parties including, but not limited to, information pertaining to strategies, finances, sales, markets, business plans and methods, future business plans and methods, future product and services, discounts, profit margins, wholesale prices, identities of existing and prospective customers, suppliers and vendors of the Released Parties (including lists thereof), and technical information pertaining to the Released Parties’ business, products, services, manufacturing practices and techniques, tooling, machinery, fixtures, formulas, compositions, research and computer programs.

Id. §[3] The Severance Agreement further provides that “[i]nformation that arguably meets the above description [of confidential information] shall be deemed ‘confidential information’ under this Agreement, regardless of whether it has been stamped, marked or otherwise expressly identified as such.” Id. §

         Mr. Allen admits that he read and understood these non-disclosure obligations at the time he signed the Severance Agreement. The Severance Agreement specifically provides that Mr. Allen’s compliance with the non-disclosure obligations is material to ACBL’s performance of its contractual obligations. Id. § 5.3.

         The Statoil-Kirby Negotiations

         A few months after his departure from ACBL, Mr. Allen began working as a broker for Omega Partners (“Omega”). His duties in that position included arranging deals between barge carriers and customers needing commodities shipped. In this capacity, he was approached by Kirby Inland Marine, LP (“Kirby”), one of ACBL’s competitors, to negotiate a master service agreement with Statoil, his former ACBL customer. It is standard in the barge industry to begin negotiations with a draft contract, originating either from the shipper or the carrier. Kirby sent Statoil its own Master Agreement of Affreightment as a draft to use to open negotiations. Instead of using Kirby’s draft contract, on June 21, 2017, Statoil forwarded Mr. Allen a version of the ACBL-Statoil Contract to serve as a starting point for its negotiations with Kirby (hereinafter, the “Statoil Draft”).

         The only substantive difference between the ACBL-Statoil Contract and the Statoil Draft sent to Mr. Allen to forward to Kirby was that ACBL’s name had been replaced throughout the document with generic references to “Barge Company.” All of ACBL’s contracts have distinctive formatting that distinguish them from other carriers, including “the way the parties’ names are identified, the location of the title, the location of the contract number, effective date sort of in a box at the beginning, [and] the order of the sections in general.” Gallagher Dep. at 20. The Statoil Draft retained ACBL’s formatting characteristics.

         Mr. Allen had not drafted the ACBL-Statoil Contract and testified that he was unaware of the origin of the draft Statoil sent him as it did not contain ACBL’s name nor was ACBL’s name mentioned in the emails he received regarding the Statoil draft. According to Mr. Allen, the Statoil draft was basically a “blank document” containing common industry terms and conditions without any details, including names or rates, that make a contract personal. It also did not contain a completed schedule, which is the attachment to a standard contract that contains details unique to the parties. According to ACBL’s agent, Robert Blocker, ACBL’s master service agreements include a variety of general, industry-accepted terms and conditions as well as a separately attached schedule that sets forth the particularized details of the deal that pertain to the parties involved. The schedule contains “the commercial terms and conditions relative to the actual volume, rates, and the task at hand relative to the general [terms and conditions] of the [master service agreement].” Blocker Dep. at 39. Although the majority of the details specific to the contracting parties are set forth in the schedule, Mr. Allen testified that certain provisions of the master service agreements, while covering standard topics in the industry, can involve unique negotiations between the parties particularly with regard to risk allocation, insurance, and indemnification. Allen Dep. at 44–47.

         Before Mr. Allen sent the Statoil Draft to Kirby, he was assured by Statoil that its legal group had reviewed the draft to make sure it was not a confidential document. Based on this assurance, Mr. Allen viewed the contract given to him by Statoil only long enough to ensure it was indeed a draft contract and not a mistakenly attached document before forwarding it to Kirby. He admits that he also ...

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