Select Creations, Inc. v. Paliafito America, Inc.

DECISION AND ORDER

Now before the Court are the cross-motions for summary judgment filed by defendant and third-party plaintiff Paliafito America Inc. (Paliafito) and third-party defendants Stephen Composto (Composto) and Forman Marketing & Sales Corp. (Forman) (collectively “the Forman defendants”) in the above-captioned action. In this small piece, of the much larger Paliafito litigation, the plaintiff has asserted claims against the For-man defendants for breaching their fiduciary duties to Paliafito and for tortiously interfering with Paliafito’s contractual and prospective economic relationship with Toys R Us. The Forman defendants have asserted a counterclaim against Paliafito for allegedly unpaid commissions.

The cross-motions for summary judgment relate to each of these claims. For the following reasons, Paliafito’s motion for partial summary judgment declaring the Forman defendants liable for breaching their fiduciary duties will be granted, its motion for partial summary judgment declaring the defendants liable for tortiously interfering with Paliafito’s current and prospective economic relations will be granted in part, and its motion for summary judgment dismissing the Forman defendants counterclaim will be granted. Correspondingly, the defendants’ motion for summary judgment dismissing all claims against it and declaring Paliafito liable for commissions allegedly owed will be denied. The Court’s findings of fact and conclusions of law follow.

I.FINDINGS OF FACT 1

A. Parties and Related Nonparties.

1. Paliafito is an Illinois corporation with its principal place of business in Illinois. Paliafito was in the business of marketing and distributing the Grip Ball game, and is owned by Mark and John Paliafito and Mike Barker. See Paliafito’s Second Amended Counterclaim and Third-Party Complaint (“2nd Am.Ctcl.”) ¶ 4; Answer of Counterdefendants Steven Composto and Forman Marketing & Sales Corp. (“Composto Ans.”) ¶ 5.

2. Counterdefendant Stephen Composto is a citizen and resident of the State of New York. He is president of counterdefendant Forman Marketing & Sales Corp., a New York corporation. See 2nd Am.Ctcl. 1Í1T 19, 20; Composto Ans. ¶¶ 9, 10.

3. Judgment debtor and former counter-defendant Miryoung (“Joy”) Lee was, at all relevant times, a Korean national with residences in or near Seoul, Republic of Korea, California, and New York. At all relevant times, Joy Lee was president of Many Amazing Ideas, Inc. (“MAI”) and Grip Toys and the sole director and shareholder of MAI. See 2nd Am.Ctcl. ¶ 5; Composto Ans. ¶ 1. On August 13, 1993, the Court entered judgment against Joy Lee, and in favor of Paliafi-to, in the amount of $8 million on Paliafito’s claims contained in its Second Amended *1137 Counterclaim and Third-Party Complaint. See Select Creations, Inc. v. Paliafito America, Inc., 830 F.Supp. 1223, 1240-41 (E.D.Wis.1993) (“Select II”).

4. Former counterdefendant Many Amazing Ideas, Inc. (“MAI”) was a New York corporation with its principal place of business in California. On February 22, 1993, Joy Lee caused MAI to file a chapter 11 petition commencing the proceeding In re Many Amazing Ideas, Inc., LA93 15924 (Bankr.C.D.Cal.) (Greenwald, J.) to avoid enforcement of the Court’s Writ of Attachment, Preliminary Injunction, and Appointment of a Receiver requiring MAI to deposit $8 million with a court-appointed receiver. See Select II, 830 F.Supp. at 1232. On December 8,1993, the Bankruptcy Court, at the request of Paliafito, converted the ease to chapter 7. Pursuant to a Settlement Agreement approved by the Bankruptcy Court, the Court dismissed MAI from this action. In its Order Approving the Settlement Agreement, the Bankruptcy Court granted to Paliafito a $10 million unsecured claim, a $500,000 chapter 11 administrative claim, and other consideration.

5. Former counterdefendant Select Creations, Inc. (“Select”) is a Wisconsin corporation with its principal place of business in Milwaukee, Wisconsin. See 2nd Am.Ctcl. ¶ 11; Composto Ans. ¶ 7. Former counter-defendant Samuel Petrovich is a citizen and resident of Wisconsin and president and sole stockholder of Select. See 2nd Am.Ctcl. ¶ 12; Composto Ans. ¶ 8. Former counterdefen-dant Thomas Meisenheimer is a citizen and resident of Wisconsin and, at all relevant times, was a vice president of Select. See 2nd Am.Ctcl. ¶ 13; Composto Ans. ¶ 1. Former counterdefendant Robert C. Hooper (“Hooper”) is a citizen and resident of the State of California and, at all relevant times, was the executive vice president of Select. See 2nd Am.Ctcl. ¶ 14; Composto Ans. ¶ 1. Former counterdefendant John Burke (“Burke”) is a citizen and resident of the State of California and, at all relevant times, was a vice president of Select. See 2nd Am.Ctcl. ¶ 15; Composto Ans. ¶ 1.

6. Robert H. Storm (“Storm”) is a citizen and resident of the State of Wisconsin, is an attorney admitted to practice in Wisconsin, and is a member of the Wisconsin law firm Canellos & Storm, S.C. At all pertinent times, Storm and Canellos & Storm have acted as agents for Select, Petrovich, Meisen-heimer, Hooper, and Burke. See 2nd Am. Ctcl. ¶ 16; Composto Ans. ¶ 1.

B. Jurisdiction and Venue.

7. The amount in controversy in the Counterclaim exceeds the sum or value of $50,000, exclusive of interest or costs. See 2nd Am.Ctcl. ¶ 26.

8. This Court has subject matter jurisdiction over this action under 28 U.S.C. § 1332(a)(1), by reason of the complete diversity of citizenship between Paliafito and the counterdefendants, and also under 28 U.S.C. § 1367 (supplemental jurisdiction). See 2nd Am.Ctcl. ¶ 27; Composto Ans. ¶ 1.

9. This Court has personal jurisdiction over Composto and Forman because the undisputed facts set forth herein establish that they, individually, and through their agents, committed acts within Wisconsin that gave rise to injury to Paliafito’s property. Wis. Stat. § 801.05(3).

10. The undisputed facts set forth herein establish that venue is proper over this Counterclaim in the Eastern District of Wisconsin because a substantial part of the events giving rise to the Counterclaim occurred in this District (28 U.S.C. § 1391(a)(2)), and because Forman and Composto are subject to personal jurisdiction in this District (28 U.S.C. § 1391(a)(3)).

C. Marketing and Distribution of Grip Ball.

11. In 1990, Forman and Select entered into a “Representative Agreement.” Declaration of Susan Jacobson (“Jacobson Dec.”), Exhibit 1. In it, Select granted to Forman a territory in the eastern part of the United States and stated that Forman would be paid a 10% commission for all sales within the territory. Select and Forman also agreed not to disclose to any person or entity confidential information furnished by either party.

12. On February 15, 1991, MAI and MCL, on the one hand, and WAAC (prede *1138 cessor in interest to Paliafito) on the other hand, entered into the exclusive distributorship contract (the “Exclusive Distribution Agreement”). See Select Creations, Inc. v. Paliafito America, Inc., 828 F.Supp. 1301, 1319 (E.D.Wis.1992) (“Select I”) (finding of fact ¶203) (citing DX 11A)).

13. The Exclusive Distribution Agreement provided that MAI would grant Paliafi-to the exclusive right to distribute Grip Ball products in the United States subject to certain conditions. Id. (finding of fact ¶207) (citing DX 11A).

14. In exchange for the grant of these exclusive rights, the Exclusive Distribution Agreement required Paliafito to pay MAI $1,000,000, payments for which were to be made in four installments, the first due on signing, the second on March 1, 1991, the third on May 1, 1991 and the final payment on July 1, 1991. Id. (finding of fact ¶ 217) (citing DX 11 A, ¶2.) Paliafito made these payments in accordance with the terms of the agreement.

15. Paliafito was also required to expend $00.70 per game on advertising, (DX 11A, ¶ 12.2), to “cooperate and consult” with MAI in all advertising and to give MLAI the right to approve all such advertising. Id. (finding of fact ¶ 215) (citing DX HA, U12.3.)

16. After Paliafito signed a letter of intent to enter into the Exclusive Distribution Agreement, Paliafito retained Select and its representatives, including Forman and Com-posto, to act as Paliafito’s “mass merchandising consultant in order to promote the sales of the [Grip Ball game.]” See DX 65; FRPFF § 30.

17. In mid-February 1991, Paliafito held a sales meeting at Forman’s showroom in New York. At this meeting, Scott Hupe of Paliafito announced to Composto and other Select representatives that Paliafito had signed a letter of intent to purchase the exclusive rights to Grip Ball. Hupe discussed sales strategies with the representatives. See Declaration of Scott Hupe (“Hupe Dec.”) ¶¶ 4-5.

18. The next day, Composto told Hupe that Paliafito should package the Grip Ball in clam shell. Composto told Hupe that it would be critical to package the game, which he termed “your product,” in this fashion in order to sell the game to mass market retailers he intended to approach, specifically, Toys R Us. Id. ¶ 6.

19. Effective February 15,1991, and later memorialized on April 11, 1991, Select and Paliafito entered into a mass marketing consultant agreement (the “Select/Paliafito Agreement”). See Select I, 828 F.Supp. at 1333 (finding of fact ¶367) (citing DX 65).

20. The Select/Paliafito Agreement contained the following express grant of rights.

Paliafito hereby employs Select as its sole and exclusive mass merchandising consultant to develop and carry out a trade advertising program for “Super Grip Ball,” the purpose of which shall be to obtain mass merchandising orders for “Super Grip Ball.” Select is authorized to enter into contracts with third parties to carry out the purpose of this Agreement; provided, however, that such contracts are subject to the prior written approval of Paliafito.

See DX 65 ¶ 1.

21. Paliafito and Select recognized that Select, pursuant to the Select/Paliafito Agreement, acted as Paliafito’s agent with respect to the sale of Grip Ball to the mass market. In an affidavit submitted to the New York Supreme Court, Petrovich, Select’s president, testified that “Select’s duties under its Agreement with [Paliafito] was to be the marketing agent for the mass market.” See Select I, 828 F.Supp. at 1334 (finding of fact IT 371) (citing DX 66 ¶3).

22. Pursuant to this agreement, Select agreed to forward “all orders received by Select, its agents and/or reps’ ... to Paliafi-to,” (DX 65 ¶ 3(D)), to “act as the mass marketing consultant and perform [certain services] to the extent necessary to meet Paliafito’s needs,” (DX 65 ¶ 2), and warranted that “it shall not enter into any contract with any party regarding the sales, promotion or advertising of [the game] without the prior written consent of Paliafito.” (DX 65 ¶ 9(3)). Id. at 1334 (finding of fact ¶361).

23. The Select/Paliafito Agreement also provided that Select, to the extent necessary *1139 to meet Paliafito’s needs, would “contract with sales representatives, subject to the approval of Paliafito, to sell and promote Super Grip Ball in the mass market defined in the exhibit hereto.” See Select I, 828 F.Supp. at 1334 (finding of fact ¶ 368) (citing DX 65 ¶ 2(B)).

24. The agreement between Forman and Select to sell Grip Ball products was made pursuant to this provision of the Seleet/Pal-iafito Agreement, and pursuant to the authority conferred upon Select by that agreement. See Brief of Counterdefendants For-man Marketing and Stephen J. Composto in Support of their Motions to Dismiss the Complaint of Paliafito and for Affirmative Relief Against Paliafito in the amount of $213,801.69 (“Composto Brief’) at 6 (Forman and Composto’s Proposed Findings of Fact (“Composto Findings”) ¶ 9).

25. All of the orders that Forman and Composto procured on behalf of Paliafito, and for which Forman now seeks commissions from Paliafito, were obtained pursuant to the Seleet/Paliafito Agreement. See Declaration of Mark C. Paliafito (“Paliafito Dec.”) ¶ 3.

26. Under the Seleet/Paliafito Agreement, Select and its representatives agreed to procure orders in the toy industry’s mass market for Paliafito for the game in exchange for a five percent commission payment to itself and an additional commission payment to the Select sales representative (in the case here, Forman and Composto) procuring the order. Id. at 1333-34 (finding of fact ¶ 368) (citing DX 65 § 4(A) & (C); 1 Tr. 169:5-20 (Paliafito); 4 Tr. 648-49:16-25, 1-10 (Hupe)).

27. Under the Agreement, Paliafito agreed to pay Select a five percent commission for all sales made under the Seleet/Pal-iafito Agreement:

Select shall receive a commission of five percent of the net list price received by Paliafito on all sales generated by Select and other entities with whom Select contracts for the sales and/or licensing of “Super Grip Ball” ... for purposes of this Agreement, the term “net list” shall mean the wholesale price less all applicable discounts.

Id. at 1334 (finding of fact ¶ 368) (citing DX 65 t2(B) and ¶4^)).

28. Paliafito also agreed to pay to Select a sum equal in amount to commissions ranging between five and fifteen percent earned by Select’s sales representatives such as For-man and Composto:

Select shall receive a payment from Pal-iafito equal in amount to all “rep fees” or sales commissions incurred by Select from third parties who have been contracted to represent and/or sell “Super Grip Ball” which shall be no greater than the range of five percent to fifteen percent of the net list prices per order.

See DX 65 ¶ 4(C). Under the Seleet/Paliafito Agreement, Select indemnified Paliafito from and against any loss, liability, or damage arising out of any claim brought by any sales representative claiming a commission pursuant to the payment terms of contracts between Select and the sales representatives. Id. § 11.

29. Under the Seleet/Paliafito Agreement, Paliafito was obligated to pay commissions to Select (and, through Select, its representatives, such as Forman and Composto), within thirty days of the date orders for Grip Ball were shipped or within fifteen days of the date payment for orders was received by Paliafito, whichever was later. Id. at 1334 (finding of fact ¶ 369) (DX 65 § 5(A)). Because under these terms Paliafito might have had to issue commissions payments on a daily basis, Paliafito and Select verbally agreed that the payments could be made once a month, usually on the 15th day of the month. Id. (citing 2 Tr.2d 110:7-21 (Hupe)).

30. Neither Forman nor Composto ever objected to Select’s verbal agreement that commissions could be paid on the fifteen day of the month following the month during which Paliafito received payments from customers as opposed to fifteen days after the date of payment. See Hupe Dec. ¶ 17.

31. In the event of a commission dispute, Select (or any other representative) was free to visit Paliafito’s office and review Paliafito’s records. Select I, 828 F.Supp. at 1334 (find *1140 ing of fact ¶ 370) (citing 9 Tr.2d 968:7-16 (Hart)).

32. Neither Forman nor Select ever bought Grip Ball on their own account for resale to customers; they merely sold the product on behalf of Paliafito for a commission. See Hupe Dec. ¶ 10. Paliafito was the vendor of record with all of the customers serviced by Select and Forman. Paliafito sold product to the customer, invoiced the shipment, received payment, accepted returns, and was liable to the customer for any breach of contract. Paliafito provided product insurance to the customer, provided requested television advertising and advertising allowances/credits, negotiated prices, and provided trademark and patent protection.

33. Paliafito had approval rights concerning Select’s choice of sales representatives including the right to discuss the performance of existing sales representatives, and the right to give prior approval on all decisions to replace existing representatives or retain new representatives. See DX 65 ¶¶ 2(B), 9(5). Also, Paliafito had the right to prior approval of modifications to the trade merchandising techniques used. See DX 65 ¶2(0).

D. The Paliafito/Select/Forman System in Operation.

34. In a letter dated February 26, 1991 from Meisenheimer to the “Select Creations Sales Force,” and stamped received by For-man that next day (and produced by Forman to Paliafito), Meisenheimer requested the Select representatives to fax to Select’s office the names of all of their accounts in order to “coordinat[e] our relationship with Paliafi-to_” See Jacobson Dec., Exh. 2 (emphasis added). The letter added that “Paliafito will be taking on representatives in specific areas where there is no coverage.... Since you are a valued rep, we do not want to have any overlap. I will keep you informed if there is any other rep in your territory appointed to cover areas you have never covered or do not intend to cover.” Id.

35. At all relevant times, Forman was part of the “Select Creations Sales Force,” a sales force which, inter alia, acted on behalf of Paliafito pursuant to the Seleet/Paliafito Agreement to procure orders for Grip Ball from the mass market on behalf of Paliafito.

36. On March 18, 1991, Meisenheimer sent a cover letter enclosing a “Sales and Informational Kit on Super Grip Ball” to the “Sales Force of Select Creations, Inc.” See Jacobson Dec., Exh. 3. In his cover letter, Meisenheimer instructed the sales representatives to establish MAI/Paliafito America, Inc. as the vendor of the product. Meisen-heimer added that “Select Creations, Inc. is the only marketer of the product for mass merchandising. You have been hired by us to be our exclusive representative to the mass merchandisers in your territory.”

37. Meisenheimer added that if a buyer told the Select representative that he had been approached by another representative group, the buyer could contact Paliafito to confirm that Select and its representatives were the only authorized representative group to sell Grip Ball. Id. at 212. Meisen-heimer also told the representatives that Grip Ball was available in net packaging, only while supplies lasted, at a per unit price of $7.99 FOB. Id.

38. A letter from Scott Hupe at Paliafito to “all sales representatives and distributors of Super Grip Ball” (including Forman) references an enclosed sales kit and reads:

I am excited to have your expertise associated with our great product Super-Grip Ball. It is our intention to make your job easy by providing you with the tools you need to make your sales efforts profitable. In conjunction with Select Creations, Inc., I have prepared a sales kit to make your presentations smooth and professional.

It is extremely important that you study this kit and become familiar with all details regarding Super Grip Ball.

It is the philosophy of Paliafito America, Inc. to represent to the American consumer that our products are high in quality and superior in craftsmanship. It is my hope that you will have success selling Super-Grip Ball and our future products, I *1141 will assist you in any way possible to make your efforts worthwhile and profitable.

Enclosed is a list of representatives who have the authority to sell Super Grip-Ball throughout the United States and its territories.

Id. (emphasis added and in original).

89. Hupe’s letter purports to include a list of house accounts, id. at 215-16, a “Mass Merchandising Sales Force List” listing For-man as the exclusive sales representative authorized to sell Grip Ball in certain Northeast and mid-Atlantic states, id. at 217-18, the upcoming spring television advertising campaign, id. at 219-28, and a “Salesmen Guide” listing pertinent sales strategies, id. at 230-33. While the Forman defendants argue that there is no proof that these documents were actually enclosed with the letter, Composto concedes that Forman did receive the sales kit. 2 Composto June 1995 Aff. Mill, 12.

40. The sales kit that Paliafito provided to Forman and Composto contained highly sensitive information relating to Paliafito’s operations. See Hupe Dec. ¶ 18.

41. On March 22,1991, Scott Hupe sent a letter, stamped received by Forman on that day (and produced to Paliafito by the For-man defendants) (see Jacobson Declaration, Exhibit 7) to Paliafito’s sales representatives demanding that Paliafito’s sales force generate more orders. In that letter, Paliafito stated that “each sales representative has sufficient evidence that Paliafito holds the rights to market this patented product.” Id. at 1.

42. In their Answer, the Forman defendants admit that they knew Paliafito claimed to own the exclusive rights to Grip Ball. See Composto Answer ¶ 14.

43. Composto knew that Paliafito retained Select and its representatives to act as Paliafito’s sales force because Paliafito had no sales force of its own. In his sworn affidavit submitted to the Supreme Court of New York on behalf of MAI, (see Jacobson Dec., Exh. 8), Composto states: “Forman Marketing is a sales representative organization and acts as the sales force for manufacturers/distributors in the toy and game business that don’t have their own sales force.” See Jacobson Dec, Exh. 9, ¶ 2. Later, in paragraph 9 of his affidavit, he clearly implies that Paliafito is one such “manufacturer/distributor” which Forman represented. Id. ¶ 9 (“All of the other manufacturers/distributors represented by Forman Marketing deal with us in a very professional manner in the way they manage their business and paper flow. PAI truly represents an anomaly in this regard.”).

44. On March 25, 1991, pursuant to Pal-iafito’s and Select’s instructions, Forman and Composto instructed all of their accounts to set up “MAI/Paliafito America, Inc.” as the vendor of record. To wit:

(a) Composto sent a letter to Jeff Stack at Toys R Us containing vendor information listing “MAI Paliafito America, Inc.” as the vendor of record, see Jacobson Dec., Exh. 5; and

(b) Composto also sent a letter to Bill Talios at Lionel Leisure containing vendor information listing “MAI/Paliafito America, Inc.” as the vendor of record, id. Exh. 6.

45. On April 9, 1991, Paliafito sent to Composto an internal balance sheet and a certificate of product insurance to pass along to Jeff Stack at Toys R Us. See Jacobson Dec., Exh. 10. The certificate of insurance listed Paliafito as the insured. Id.

46. May 13, 1991, Bob LaPlaca at For-man faxed a letter to Jennifer Taye at Child-craft containing a “Product Information Sheet for Vendor Completion” listing “Paliaf-ito/Select Creations” as the vendor of record and listing Paliafito’s address. Id. Exh. 11.

47. On June 5,1991, Meisenheimer sent a letter to Scott Hupe at Paliafito, stamped received by Forman the next day, going over *1142 a plan of action for 1992. See Jacobson Dec., Exh. 12. Meisenheimer addressed packaging of products, possible new products to be introduced, and requested Paliafito to send to Select product specifications to prepare sell sheets to retailers.

48. Meisenheimer also requested that Paliafito arrive at a sheet price for each item and recommended discounts to retailers to promote sales. Meisenheimer noted that Paliafito will be able to take its customer receivables and obtain loans up to 70% of the total amount of receivables to “keep [Paliafi-to] in cash flow....” Id.

49. Meisenheimer also discussed promotion and advertising strategy and public relations special events. Id. at 3.

50. In a postscript, Meisenheimer reminded Paliafito to “[r]emember one important thing Steve [Composto] said, ‘Have your products carry a “look” to them so that the customer identifies all your stuff as coming from Paliafito’ ” and noted that Scott Hupe should feel free to bounce ideas off Compos-to. Id. (emphasis added).

51. Paliafito did, in fact, furnish to Select and Composto all of the information requested in Meisenheimer’s letter and did consult Composto on sales strategy. See Hupe Dec. ¶ 19.

52. On June 6,1991, Mike Barker at Pal-iafito faxed a letter to “all representatives” providing them information relating to Pal-iafito’s inventory situation. See Jacobson Dee., Exh. 13. Barker wrote: “In order to prevent any further communication problems in respect to Super Grip Ball, Paliafito America, Inc. will update all of its representatives on a weekly basis as to its current and future inventory status.” Id. He continued: “[F]or all representatives approaching mass market buyers, I urge you to please call me before you make a sales call so that we can discuss our current and future inventory status.” Id. Barker then directed the sales representatives to sell Grip Ball packaged in net bags instead of in clamshell “whenever it is possible” since the clamshell inventory was depleted. Id.

53. On June 25, 1991, Steve Composto faxed a letter to Bob Hinshaw requesting him to “[s]end [o]rders” and containing a “Vendor File Editor” listing “Select/Paliafi-to” as the vendor and Forman as the “sales representative.” Id., Exh. 14.

54. On July 11, 1991, Bob Fontana at Forman sent a letter to Mark Kaplan at Jamesway attaching a copy of the Wall Street Journal article which stated: “In January, Mr. Paliafito outbid three other companies for national marketing rights to the games by, among other things, promising to spend at least $1 million on advertising.” See Jacobson Dee., Exh. 16.

55. Paliafito performed its obligations under the advertising provisions of its agreement with MAI and spent approximately $1.1 million on advertising or $00.73 per unit. If “co-op advertising” (the advertising allowance or credit given to retailers) is included, total advertising expenditures total $1,300,-000 or $00.90 per unit. Id. at 1322 (citing DX 90; DX 92 at 2, 4 Tr.2d 665, 667-68, 670: 8-11, 22-25, 1-16, 2-15 (Hupe)).

56. This advertising expenditure was critical to Forman because Forman’s largest account, Toys R Us, refused to buy any Grip Ball product until Paliafito agreed to provide television advertising. See Hupe Dec. ¶ 9.

E. Paliafito Pays Forman May and June Commissions.

57. On June 28, 1991, Paliafito paid For-man $35.96, the amount of commissions due Forman for the month ending May 31, 1991. See Jacobson Dec., Exh. 15.

58. Neither Forman nor Composto ever objected to the payment of their May 1991 commissions. See Hupe Dee. ¶ 16.

59. On July 22, 1991, Select faxed a completed vendor information sheet to Forman for Jamesway Corporation. In it, Select listed “Select/Paliafito America, Inc.” as the vendor and listed Paliafito’s address. Select also listed Forman as the “sales agency.” See Jacobson Dec., Exh. 17.

60. On July 22, 1991, Composto acknowledged that he received a commissions check in the amount of $847.04, the amount of commissions due Forman for the month ending June 30, 1991. Id., Exh. 18.

*1143 61. Neither Forman nor Composto ever objected to the payment of their June 1991 commissions. See Hupe Dec. ¶ 16.

F. Eaely Communication Between Joy Lee and Select.

62. On July 2B, 1991, Thomas Meisen-heimer spoke to Joy Lee by telephone for forty-two minutes. See Select I, 828 F.Supp. at 1334 (finding of fact ¶ 376) (citing DX 1600, Tab E, call no. 36.)

63. After their conversation, Meisenheimer sent a fax stating, “Joy, Let’s get it done! Tom.” Meisenheimer testified that “Let’s get it done” refers to “working together between Paliafito and Mantae to solve the difficulties and make things happen.” Id. (finding of fact ¶377) (citing 13 Tr.2d 1407:2-14 (Meisenheimer).) With this fax, however, Meisenheimer enclosed Select’s and Meisen-heimer’s resumes apparently to vie for Man-tae’s business. Id. (citing 4 Tr.2d 399-400:11-25, 1-18 (Joy Lee); DX 287).

64. Later that day, Meisenheimer faxed a letter to Joy Lee (DX 288) confirming a July 27th morning meeting with Joy Lee in Los Angeles and a second meeting with Joy Lee and the Paliafito brothers. In this letter, Meisenheimer stated his willingness to stay through Monday, July 29, 1991 “to assure us enough time to accomplish what we need to do.” Id. at 1335 (finding of fact ¶ 378) (citing 4 Tr.2d 401-02:1-25,1 (Joy Lee); DX 288, at 1 (last paragraph), at 2, ¶ 1).

65. Paliafito was not aware of these communications. See Paliafito Dec. ¶ 16; Hupe Dee. ¶20.

G. Paliafito’s National Sales Meeting.

66. On or about August 2, 1991, the day before Paliafito’s national sales meeting, Pal-iafito flew Composto to its offices in Los Angeles. While in Los Angeles, Composto reviewed Paliafito’s books and records to determine whether Forman was owed any additional commissions. Following his review, Composto told Paliafito that he was satisfied that Paliafito was current in paying Forman’s commissions. See Hupe Dee. ¶ 11.

67. That night, Composto went to dinner at the Cheesecake Factory in Redondo Beach, California, with Hupe, Mike Ross, and Greg Waylock, Paliafito’s vice president. During dinner, Greg Waylock and Hupe related to them Paliafito’s concern that Joy Lee, whom Paliafito did not trust, might be approaching Paliafito’s sales representatives to enlist them in her effort to eliminate Pal-iafito and take over distribution herself. 3 Hupe recalls that Composto assured the Pal-iafito representatives that he was “on [Paliaf-ito’s and Forman’s] team”, “not to worry,” and expressed confidence in Paliafito’s future and his relationship with it. 4 Id. ¶ 12.

68. On August 3, 1991, Paliafito held a meeting in California for all Grip Ball sales representatives, at which Joy Lee and Man-tae gave a presentation. See Select I, 828 F.Supp. at 1337 (finding of fact ¶ 411) (citing DX 4; 1 Tr. 70-72:2-25, 1-25, 1-11 (Ross)).

69. The agenda for this meeting — produced from the files of Forman — reflects that it was called a “Paliafito America, Inc. 1991 National Sales Meeting.” See Jacobson Dec., Exh. 19.

70. During the August sales meeting, no one associated with Mantae complained about Paliafito’s performance or indicated that Paliafito had been terminated. Id. (finding of fact ¶ 413) (citing 1 Tr. 70-71:20-25,1-6 (Ross); 4 Tr.2d 406:7-11 (Joy Lee)).

71. At the sales meeting, Paul Moss, another sales representative, and Composto complained about not receiving commissions on time. They had the mistaken understanding that they were to get paid their commissions fifteen days after the close of the previous month in which ordered goods had been *1144 shipped. Id. at 1336 (finding of fact ¶414) (citing 4 Tr. 679-80:7-25, 1-17 (Hupe)).

72. The commissions arrangement for Select sales representatives under the Select/Paliafito Agreement was discussed at the sales meeting. Id. (finding of fact ¶ 415) (1 Tr. 118:10-17 (Ross)).

73. Scott Hupe confronted Tom Meisen-heimer as to why Meisenheimer had not told the sales representatives the terms to which Select had agreed. Meisenheimer acknowledged that he failed to inform the sales representatives of the correct terms of payment. Id. (finding of fact ¶ 416) (4 Tr. 680-81:18-25, 1-8 (Hupe)).

74. The previous day, Hupe had discussed the payment terms of the Select/Pal-iafito Agreement with Composto. In that discussion, Hupe had informed Composto that the Select/Paliafito Agreement obligated Paliafito to pay commissions to Forman on the fifteenth day following the month in which Paliafito received payment from the customer and that he and his company were bound to those terms. See Hupe Dec. ¶ 14.

75. Composto was not happy with the payment terms of the Select/Paliafito Agreement. However, most of Composto’s anger was directed towards Meisenheimer at Select who never told Composto of the payment terms of the Select/Paliafito Agreement. Thereafter, Composto never protested or stated that he believed that he was not bound to the payment terms. Id. ¶ 15.

76. Indeed, after being apprised of the payment terms, Composto and Forman accepted all later commission payments without protest. In fact, apart from the August sales meeting, neither Forman nor Composto ever objected to Paliafito’s commissions payments for the months of May, June, July, August, and September 1991, which attached commission statements clearly reflected that commissions were paid after Paliafito received payment from customers. Id. ¶ 16.

H. August 12,1991: Select Again Communicates Directly with Joy Lee.

77. On August 12, 1991, Petrovich and Meisenheimer sent a letter to Joy Lee, ostensibly for the purpose of discussing a conflict between the marketing of Sticky Wicket, a Grip Ball derivative, and Grip Ball. See Jacobson Dec., Exh. 20. It is apparent that Forman was aware that Select was in direct contact with Joy Lee, bypassing Paliafito. A copy of this letter was produced to Paliafito from Forman, and fax traffic indicates that the letter was faxed to Forman from Select on August 12, 1991. See Jacobson Supp. Dec., Exh. 1.

78. Pursuant to paragraph 9 of the Exclusive Distribution Agreement, Paliafito had the exclusive license to Grip Ball Game patent and related patents, such as any patent covering “Sticky Wicket.” See DX 11A § 9.

79. In the August 12, 1991 letter, Select wrote:

Select Creations, Inc., through its marketing abilities, has brought you over $8,000,000 in orders since Toy Fair. We consider this a monumental accomplishment considering the problems we encountered with Paliafito in delivery, invoicing, etc. We know we have just tapped the surface with our ability to sell your products.

The majority of the sales force has built solid relationships with major buyers and we will continue to bring you large domestic and/or LC orders for the life of Super Grip Ball and the related products you develop.

We are committed to you for the long term. Therefore, it is important that we have these contracts in place and to jointly develop the best mode of operation to service our buyers.

Let us speedily come to an agreement to utilize our joint resources and abilities to achieve maximum results and benefits for all.

Id. at 2.

80. No one at Select, MAI, or Forman ever apprised Paliafito of this letter or the communications that it contained. See Pal-iafito Dec. ¶ 16; Hupe Dec. ¶ 20.

I. Paliafito Pays Forman July Commissions.

81. On August 23, 1991, Composto acknowledged receipt of a commissions check *1145 in the amount of $8,775.05, the amount of commissions due Forman for the month ending July 31, 1991. See Jacobson Dec., Exhs. 21 & 22.

82. Neither Forman nor Composto ever objected to the payment of their July 1991 commissions. See Hupe Dee. ¶ 16.

J. Joy Lee Undermines Paliaeito’s Exclusive Distribution Agreement.

83. It is undisputed that, unbeknownst to Paliafito, Joy Lee and Composto met with Jeff Stack at Toys R Us in September or October of 1991. At this meeting, Joy Lee offered to sell Grip Ball to Toys R Us at a cheaper price than that charged by Paliafito to be filled directly from her warehouse.

84. On September 13, 1991, Joy Lee wrote Petrovich stating:

As we discussed on the phone, we are all losing time each day due to the failure to reach a decision on the Paliafito problem. If we do not solve the problem immediately, I believe the market, which is benefiting all of us, may be destroyed.

I suggest strongly that Select, as the mass marketing organization, should also have the responsibility to make the market successful for all of us involved with the product. Without your support in this matter, I must assume that you are not as interested, as is MAI, in the success of this product.

In short, I need an indication from you that you believe in this product as strongly as we do, or MAI must assume that it is using the wrong mass marketing organization. I will continue to do whatever is necessary in order to straighten out the problem with the Paliafitos. However, at this critical time, I need your full cooperation in order to solve this problem, which cooperation must be forthcoming immediately.

If we do not reach a decision in this matter by Monday, I must assume that your interest does not lie with the success of our product.

See Select I, 828 F.Supp. at 1341 (finding of fact ¶ 440) (citing DX 411).

85. In the fall of 1991, Petrovich projected that 1992 sales of Grip Ball would be $28,000,000. Id. (finding of fact ¶ 441) (citing 3 Tr. 612-13:5-25, 1-3 (Petrovich).) At the time of the hearing, Select received a five percent commission or $1,400,000. Id. (finding of fact ¶ 441) (citing 3 Tr. 510-11:23-25, 1-2 (Petrovich)).

86. On September 13, 1991, Mike Ross, Paliafito’s sales representative to the sporting goods retailers, had several phone conversations with Joy Lee. Id. (finding of fact ¶ 444) (citing DX 6; DX 1500, Tab K, call nos. 35, 55; 1 Tr. 77-79:20-25, 1-25, 1-11 (Ross)).

87. Ross testified that Joy Lee told him that her relationship with Paliafito had broken down and “that she was going to have to ... get the product back.” Id. at 1341 (finding of fact ¶ 445) (citing 1 Tr. 77-78:20-25,1-3 (Ross)). Ross testified that when Joy Lee asked, he indicated that he thought that Pal-iafito had performed in an acceptable manner and that he did not have a gripe against Paliafito. Ross stated that Joy Lee indicated that she was not satisfied with Paliafito’s performance and told Ross that she was going to get the game back through litigation and “inquired firstly to [Ross] joining her in a suit against Paliafito for their lack of performance in regards to the product.”