Filed: Jun. 30, 2010
Latest Update: Feb. 21, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-1613 GRUNLEY WALSH U.S., LLC; KENNETH M. GRUNLEY; GRUNLEY CONSTRUCTION COMPANY, INCORPORATED, Plaintiffs - Appellants, v. LOREN RAAP; G-W MANAGEMENT SERVICES, LLC, Defendants – Appellees, and UNITED STATES GENERAL SERVICES ADMINISTRATION, Defendant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Liam O’Grady, District Judge. (1:08-cv-00446-LO-JFA) Argued: May 13, 2010 Decid
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-1613 GRUNLEY WALSH U.S., LLC; KENNETH M. GRUNLEY; GRUNLEY CONSTRUCTION COMPANY, INCORPORATED, Plaintiffs - Appellants, v. LOREN RAAP; G-W MANAGEMENT SERVICES, LLC, Defendants – Appellees, and UNITED STATES GENERAL SERVICES ADMINISTRATION, Defendant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Liam O’Grady, District Judge. (1:08-cv-00446-LO-JFA) Argued: May 13, 2010 Decide..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1613
GRUNLEY WALSH U.S., LLC; KENNETH M. GRUNLEY; GRUNLEY
CONSTRUCTION COMPANY, INCORPORATED,
Plaintiffs - Appellants,
v.
LOREN RAAP; G-W MANAGEMENT SERVICES, LLC,
Defendants – Appellees,
and
UNITED STATES GENERAL SERVICES ADMINISTRATION,
Defendant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Liam O’Grady, District
Judge. (1:08-cv-00446-LO-JFA)
Argued: May 13, 2010 Decided: June 30, 2010
Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished opinion. Judge Gregory wrote the
opinion, in which Judge Niemeyer and Judge Shedd joined.
ARGUED: Michael Jay Schrier, K&L GATES, LLP, Washington, D.C.,
for Appellants. Brian Lawrence Schwalb, VENABLE, LLP,
Washington, D.C., for Appellees. ON BRIEF: Kara A. Elgersma,
K&L GATES, LLP, Washington, D.C., for Appellants. Damon W. D.
Wright, VENABLE, LLP, Washington, D.C., for Appellees.
Unpublished opinions are not binding precedent in this circuit.
2
GREGORY, Circuit Judge:
The United States District Court for the Eastern District
of Virginia entered summary judgment in favor of the defendants,
Loren Raap (“Raap”) and G-W Management Services, LLC, in a suit
alleging trademark infringement and unfair competition under
federal and common law. The court based its grant of summary
judgment on a release signed in November 2007 when The Grunley
Walsh, LLC sold its international construction segment. The
plaintiff, Grunley Walsh U.S. (“GW”), now argues that the court
erred in considering the release when the defendants failed to
plead it as an affirmative defense, and that even if such
consideration was proper, the court erred on the merits of the
release defense. For the reasons set forth below, we affirm.
I.
In 1998, Grunley Walsh Joint Venture, LLC (“GWJV”) was
formed when Kenneth Grunley (“Grunley”) and James Walsh
(“Walsh”) merged their construction companies. GWJV earned a
reputation as a premier construction company in the Washington,
D.C. area, acting as a full-service general contracting firm. 1
1
Notable projects include the World War II Memorial on the
National Mall, the stabilization and preservation of the
Washington Monument, Washington Metropolitan Area Transit
Authority Metro escalator canopy construction, and work on a
number of Smithsonian Institution properties.
3
Raap was involved in the creation of GWJV and was named
President/General Manager of the company, a position he held
from 1998 until his termination on May 31, 2007. GWJV changed
its name to The Grunley Walsh, LLC in 2004.
Meanwhile, in June 2000, Grunley, Walsh, and Raap created
Grunley Walsh Management Services, LLC to handle mainly small
business set-aside projects. Grunley and Walsh each owned 24.5%
of Grunley Walsh Management Services, with Raap owning the
remaining 51%. In 2002, Grunley and Walsh sold their interests
to Raap. Raap later changed company’s name to G-W Management
Services, LLC (“GWMS”) to avoid name confusion and potential
small business regulation violations. However, Raap continued
to act as President and General Manager of the Grunley Walsh
entity while owning and operating GWMS. During this time, “with
the consent of Mr. Grunley and Mr. Walsh, Mr. Raap ran GWMS out
of the Grunley Walsh office, utilizing Grunley Walsh personnel
and office equipment.” J.A. 422. 2 “GWMS and Grunley Walsh
executed a contract to govern this dynamic,” which lasted until
Raap moved GWMS to a different location in January 2007. Id.
During this close relationship, Grunley and Walsh knew confusion
among users of their construction services was likely because of
2
Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in this appeal.
4
the continuing similarity in company names but admitted that
getting Raap to again change GWMS’s name was “not the highest
priority.” Id. at 681-83, 719-21.
Aside from its domestic business, The Grunley Walsh, LLC
performed international construction work. On December 23,
2006, the owners of The Grunley Walsh, LLC entered into a
Membership Interest Purchase Agreement (“MIPA”) with Robert
Farah for the sale of the international segment of the Grunley
Walsh entity and the retention of the domestic segment. As the
district court found, “[i]n order to accommodate this
international and domestic division of property, Mr. Grunley and
Mr. Walsh restructured their corporate framework. First, they
changed the name of The Grunley Walsh, LLC to Grunley Walsh
International [(‘GWI’)].” Id. at 423. Grunley and Walsh then
used their separate construction companies to create GW. The
international business was to go to GWI, and the domestic
business was to go to GW. To accomplish this, the MIPA
expressly transferred everything to GW except for enumerated
“Retained Property” such as certain international construction
contracts, international past performance, facility clearances,
and other information related to international work. Such
retained property was to remain with GWI.
Significantly, the MIPA contained a liability release,
called the “Sellers’ Release,” (“the Release”) which was signed
5
by Grunley and Walsh in November 2007. The sellers were
identified as Kenneth M. Grunley Construction Co. and James V.
Walsh Construction Co. The release also named these two
identities as sole owners of the “Company,” which was GWI. The
buyer was Farah. In pertinent part, the Release states:
Each Seller, on behalf of itself and each of its
legal representatives, affiliates, successors and
assigns, and each of such legal representatives’,
affiliates’, successors’ and assigns’ Representatives
(collectively, the “Related Parties”), hereby releases
and forever discharges Buyer, the Company and each of
their respective individual, joint or mutual, past,
present and future Representatives, affiliates,
stockholders, members, controlling persons, successors
and assigns (individually, a “Releasee” and
collectively, “Releasees”), from any and all claims,
demands, Proceedings, causes of action, Orders,
obligations, contracts, agreements, debts and
liabilities whatsoever, whether known or unknown,
suspected or unsuspected, both at law and in equity,
which such Seller or any of its Related Parties now
has, has ever had or may hereafter have against the
respective Releasees arising at any time prior to the
Closing, . . . .
Id. at 2877. 3
Grunley and Walsh “eventually became concerned that Mr.
Raap was engaging in improper conduct while operating GWMS, such
3
As defined in the MIPA, “‘Representative’ means with
respect to a particular Person, any director, officer, employee,
agent, consultant, advisor, or other representative of such
Person, including legal counsel, accountants, and financial
advisors.” J.A. 3006. “‘Person’ means any individual,
corporation (including any non-profit corporation), general or
limited partnership, limited liability company, joint venture,
estate, trust, association, organization, labor union, or other
entity or Governmental Body.” Id. at 3005.
6
as using the GRUNLEY-WALSH mark without permission to acquire
government construction projects for GWMS” and “divert[ing]
business opportunities from Grunley Walsh to GWMS.” Id. at 422.
Therefore, Grunley and Walsh fired Raap in May 2007, and GW
commenced this suit against Raap and GWMS. On August 15, 2008,
GW filed an Amended Complaint asserting trademark and unfair
competition claims under both federal and common law. 4
The parties then filed lengthy cross-motions for summary
judgment. GWMS and Raap argued that GW did not exist during the
relevant time period and thus had no damages or standing. GWMS
and Raap also claimed that the close relationship over the years
between GWMS and GWI barred GW’s claims. Although they did not
plead “release” as an affirmative defense, in their motion, GWMS
and Raap emphasized that with the sale of their ownership in
GWI, Grunley and Walsh executed the MIPA, which included a
release from any claims arising before the MIPA’s execution.
This release, GWMS and Raap argued, applied to Raap. GW, on the
other hand, argued that the release did not apply to Raap or
GWMS and that GWMS’s frequent use of “Grunley Walsh Management
4
GW also asserted claims for unjust enrichment and breach
of contract. The parties stipulated to dismissal of the common
law fraud and negligent misrepresentation claims.
Raap and GWMS filed counterclaims, which were later
dismissed without prejudice.
7
Services” in correspondence constituted trademark infringement
and created confusion about the relationship between GWMS and
GWI.
The district court, after hearing argument, denied GW’s
motion and granted the summary judgment motion filed by Raap and
GWMS. The court first considered whether the Release was a
proper basis for summary judgment. The court found that
although Raap or GWMS did not plead “release” as an affirmative
defense, GW knew about, and was therefore not prejudiced by,
consideration of the Release. Although no parol evidence was
offered, the court stated it would not consider such evidence in
interpreting the Release because its terms were clear and
unambiguous. Id. at 432.
After examining the Release, the court found GW to be a
releasor because it is an “affiliate” of sellers Kenneth M.
Grunley Construction Co. and James V. Walsh Construction Co.
using a control-based definition of “affiliate.” Id. at 433-34.
The court next found GWMS to be a releasee because “it is a
‘past affiliate’ of ‘the Company’ [GWI].”
Id. at 435. Finally,
Raap was found to be a releasee because he is a “past
Representative” “of all three Grunley Walsh iterations that
existed between 1998 and 2007, including [GWI] (i.e. ‘the
Company’)” based on his service as President of the respective
Grunley Walsh entity until May 30, 2007.
Id. at 437.
8
Because the Release discharged the releasees “from any and
all claims” arising from facts occurring before the closing date
of November 6, 2007, the court “[held] that [GW] released GWMS
and Mr. Raap from the claims it filed in this suit, to the
extent those claims arose from facts occurring on or before the
closing date of November 6, 2007.” Id. at 438. Additionally,
because the court found “none of the infringing uses that [GW]
accuses Mr. Raap and GWMS of committing occurred after November
6, 2007,” it concluded that “the ‘use’ element common to the
trademark and unfair competition claims in this case are not
met” and granted summary judgment on this ground as well.
Id.
at 440 (emphasis added). GW timely appealed.
II.
Whether the district court erred in considering the release
defense when it was not affirmatively pled in the answer is a
question of law that we review de novo. See Eriline Co. S.A. v.
Johnson, 440 F.3d 648, 653 (4th Cir. 2006). 5 If the court did
5
Our precedent is less than clear on the standard of review
in this situation. Compare Eriline Co. S.A., 440 F.3d at 653
(“Whether a district court has properly considered a statute of
limitations defense sua sponte is a question of law that we
review de novo.”), with Polsby v. Chase,
970 F.2d 1360, 1364
(4th Cir. 1992) (holding the district court did not abuse its
discretion by allowing the defendant to raise an affirmative
defense after answering), vacated and remanded on other grounds,
(Continued)
9
not err in such consideration, we then review its grant of
summary judgment de novo. Synergistic Intern., LLC v. Korman,
470 F.3d 162, 170 (4th Cir. 2006).
III.
A.
GWMS and Raap had the burden of affirmatively pleading
“release.” See Fed. R. Civ. P. 8(c). Yet, neither party pled
this affirmative defense in their answer. The district court
found that despite this failure, the pleaded affirmative
defenses of “accord and satisfaction” and “Plaintiff’s common
law tort claims are barred by contract” put GW on notice of a
possible release defense and that even if “release” was not pled
properly, GW was not prejudiced or unfairly surprised by the
court’s consideration of the defense. GW argues that the
failure of GWMS and Raap to affirmatively plead release resulted
in waiver of the defense such that the court’s reliance on it as
the basis for summary judgment constitutes reversible error. We
disagree.
As this Court has found, “it is well established that an
affirmative defense is not waived absent unfair surprise or
507 U.S. 1048 (1993). However, because the question of waiver
is one of law, a reviewing court should apply de novo review.
10
prejudice.” Patten Grading & Paving, Inc. v. Skanska USA Bldg.,
Inc., 380 F.3d 200, 205 n.3 (4th Cir. 2004); see also Brinkley
v. Harbour Recreation Club,
180 F.3d 598, 612 (4th Cir. 1999)
(“[T]here is ample authority in this Circuit for the proposition
that absent unfair surprise or prejudice to the plaintiff, a
defendant’s affirmative defense is not waived when it is first
raised in a pre-trial dispositive motion.”), overruled on other
grounds by Desert Palace, Inc. v. Costa,
539 U.S. 90 (2003).
This is because “[t]he Supreme Court has held that the purpose
of Rule 8(c) is to give the opposing party notice of the
affirmative defense and a chance to rebut it.” Moore, Owen,
Thomas & Co. v. Coffey,
992 F.2d 1439, 1445 (6th Cir. 1993)
(citing Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found.,
402
U.S. 313, 350 (1971)). “Thus, if a plaintiff receives notice of
an affirmative defense by some means other than pleadings, ‘the
defendant’s failure to comply with Rule 8(c) does not cause the
plaintiff any prejudice.’” Grant v. Preferred Research, Inc.,
885 F.2d 795, 797 (11th Cir. 1989) (quoting Hassan v. U.S.
Postal Serv.,
842 F.2d 260, 263 (11th Cir. 1988)).
In this case, the district court properly found that GW was
not unfairly surprised or prejudiced by the court’s
consideration of the release defense as to Raap. Courts have
found that affirmative defenses raised for the first time in
summary judgment motions may provide the required notice. See,
11
e.g., Brinkley, 180 F.3d at 612-13 (affirming the district
court’s order of summary judgment based on an affirmative
defense first raised in the defendant’s summary judgment motion
after noting the plaintiff had “ample opportunity to respond”);
Coffey, 992 F.2d at 1445 (finding that the opposing party was
put on notice of the affirmative defense of fraud when raised in
response to a motion for summary judgment); Kleinknecht v.
Gettysburg Coll.,
989 F.2d 1360, 1373-74 (3d Cir. 1993) (holding
that the plaintiff received sufficient notice of the affirmative
defense because it was raised in the defendant’s summary
judgment motion). Here, Raap specifically raised the Release in
the summary judgment motion. J.A. 339 (subsection entitled
“GWUS Released Mr. Raap From All Claims”). Additionally, the
parties fully briefed and argued the merits of the release
affirmative defense before the district court. We therefore
find that GW has shown no unfair surprise or prejudice from
consideration of an issue GW itself fully argued.
However, the summary judgment motion and the reply filed by
Raap and GWMS reference the Release applying only to Raap. The
district court appears to have sua sponte considered whether the
Release applied to GWMS. Although a closer case, whether GW was
unfairly surprised or prejudiced remains the relevant
consideration. Because the Release was GW’s own document, GW
did argue to the court that the Release did not apply to GWMS,
12
and GWMS and Raap pled affirmative defenses that highlighted the
relevance of the Release, we find that GW was not unfairly
surprised or prejudiced by the court’s consideration of the
release defense as to GWMS.
At the beginning of discovery, Raap and GWMS requested the
MIPA’s production. GW then produced the documents, including
the Release. Thereafter, GW, along with GWMS and Raap, included
the MIPA and the Release in their respective exhibit lists filed
with the court. Thus, GW simply was not surprised by the
court’s consideration of documents which GW’s principals signed
and which GW itself was asked about and produced. See Jones v.
Miles, 656 F.2d 103, 108 (5th Cir. 1981) (“[I]n practice[,] an
affirmative defense is not waived to the extent . . . that the
opposing party’s own evidence discloses the defense, necessarily
indicating his express consent. Neglect to affirmatively plead
the defense is simply noncompliance with a technicality and does
not constitute a waiver where there is no claim of surprise.”
(citation omitted)).
Furthermore, at the summary judgment hearing, the court
specifically asked whether GWMS was covered by the terms of the
Release. J.A. 395. GW replied that the Release did not apply
to GWMS “[b]ecause G-W Management Services was never an agent or
an officer or representative of Grunley Walsh in any way, shape
or form. They were two separate entities, they always were two
13
separate entities.” Id. at 395-96. When the court stated
“Although Grunley and Walsh were owners at one time,” GW
responded, “At one time. . . . I don’t think there is any
reasonable way to interpret that release language to include
that because at no point was G-W Management Services an agent,
representative or . . . had any other relationship with Grunley-
Walsh International.”
Id. at 396. Thus, beyond being aware of
the Release, GW specifically addressed whether it applied to
GWMS.
GWMS and Raap additionally argue that the pled affirmative
defenses of “accord and satisfaction” and “Plaintiff’s common
law tort claims are barred by contract” put GW on notice of a
possible release defense. The district court agreed, and
adopted this as one rationale for its consideration of the
Release. While “release” is unquestionably a different
affirmative defense, which should have been pled, we believe the
district court correctly noted that the pled affirmative
defenses “convey[ed] to [GW] that Mr. Raap and GWMS believed a
contract existed that barred the claims filed in this suit.”
Id. at 428. This notice precludes GW from now showing that it
was unfairly surprised by the court’s consideration of the
Release, and this preclusion applies equally to both Raap and
GWMS.
14
B.
GW argues that even if the district court did not err in
considering the Release, the court erred in concluding that it
barred the suit from proceeding. Preliminarily, GW claims that
the court committed legal error in declining to consider parol
evidence in interpreting the Release, which was the court’s
basis for dismissing GW’s claims to the extent they arose from
facts occurring on or before November 6, 2007. 6 However, GW’s
argument is a bit of a red herring. GW offered no parol
evidence to demonstrate any contrary interpretation of the
Release and never indicated an intention to do so. Indeed, GW
conceded at oral argument that no such parol evidence is in the
record. As the party arguing that parol evidence should have
been considered, GW had the burden to proffer such evidence
before the district court. Therefore, absent any evidence
demonstrating that the Release means anything other than what it
says, we find the court’s statement that it would not consider
parol evidence immaterial.
We next turn to GW’s argument that the court erred in
interpreting the plain language of the Release to include Raap
6
GW does not contest the portion of the summary judgment
order dispensing with claims arising from facts occurring on or
after November 6, 2007.
15
and GWMS. 7 As to Raap, GW has always asserted that he was a past
employee or agent of GWI. Id. at 20-21. Based on this
uncontested fact and the definitions section of the MIPA which
defined “Representative” as “any director, officer, employee,
agent, consultant, advisor or other representative” of GWI,
id.
at 3006, the court determined that Raap was a “past
Representative”:
Mr. Raap unquestionably qualifies as a “past
Representative” of all three Grunley Walsh iterations
that existed between 1998 and 2007, including [GWI]
(i.e. “the Company”). Specifically, Mr. Raap began
working as President of [GWJV] in 1998 and was serving
in this same capacity when [GWI] was formed on
December 15, 2006. Mr. Raap continued working as
President of [GWI] for over five months until he was
fired on May 30, 2007.
Id. at 437. We agree with the straight-forward analysis of the
district court.
GW repeats an argument rejected by the district court,
claiming that the term “Representative” covers only employees
acting in their professional capacity. This, however,
contradicts the plain language of the Release, which refers to
“any director, officer, employee, agent, consultant, advisor, or
other representative” as well as “any and all claims.” Id. at
2877 (emphasis added). As the district court found, “[t]he
7
All parties agree that GW is a releasor under the terms of
the Release.
16
Sellers [sic] Release contains no language supporting, or even
hinting, that the Sellers [sic] Release should be restricted in
this manner.” Id. at 438. We agree, and GW offers no evidence
to support a departure from the Release’s plain meaning. See
Bridgestone/Firestone, Inc. v. Prince William Square Assocs.,
463 S.E.2d 661, 664 (Va. 1995) (“When contract terms are clear
and unambiguous, a court must construe them according to their
plain meaning.”). We cannot allow GW to rewrite the Release’s
broad language with an unsupported contention. Thus, the
district court committed no error in finding that Raap is a
releasee. 8
As to GWMS, GW concedes that “[w]hile GWMS was owned by the
owners of GW, from 2000 until June 2002, it was an affiliate of
GW.” Petr.’s Br. 42. GW made similar admissions below, and the
district court accordingly found that
between 2000 and 2002, it is indisputable that Mr.
Grunley and Mr. Walsh had significant ownership in and
control over GWMS, in addition to co-owning [GWJV].
Even more, GWMS and [GWJV] had a unique and close
connection, since they both operated in the
construction field and shared office space. The
8
In an argument made for the first time on appeal, GW
asserts that the Release cannot apply to Raap because he is not
on a November 2007 list of “current employees” of GWI. See J.A.
3069-70. GW seems to ignore the word “past” from the Release’s
use of the term “past Representative.” Thus, GW’s argument is
unavailing, as the Release includes not only “current” or
“present Representatives,” but expressly covers “past
Representatives” as well. Id. at 2877.
17
common ownership and close working connection between
these two companies compel the Court to conclude that
GWMS was, between 2000 and 2002, an affiliate of
[GWJV]. It necessarily follows, then, that GWMS
qualifies as a “past affiliate” of “the Company”
[GWI], since [GWJV] and [GWI] are the same corporate
entity. 9
J.A. 436-37. We again agree with the court’s application of the
plain meaning of the Release.
Despite the uncontested facts and admissions, GW now
advances new arguments. First, GW argues that because Grunley
and Walsh sold their interests in GWMS to Raap in June 2002,
GWMS ceased being an affiliate of GW. Therefore, GW claims that
GWMS is only a “past affiliate” to the extent any claims covered
by the Release arose on or before June 2002. The Release does
not contain a June 2002 date restriction, however. In fact,
such restriction contradicts the plain language of the Release,
which releases “any and all claims . . . whether known or
unknown, suspected or unsuspected . . . which such Seller or any
of its Related Parties now has, has ever had or may hereafter
have against the Releasees arising at any time prior to Closing”
on November 6, 2007. Id. at 2877. Because it is clear that all
9
The court concluded that Grunley and Walsh “maintained co-
ownership of the Grunley Walsh entity until they resigned from
[GWI] on November 6, 2007,” and that despite the various company
names, GWJV, The Grunley Walsh LLC, and GWI is “one continuous
corporate entity having the same corporate identity.” Id. at
435-36. The parties do not dispute this conclusion.
18
claims arising before November 6, 2007, were released, we reject
GW’s manufactured date restriction.
Second, GW claims that GWMS disclaimed being a “past
affiliate” of GW from June 2002 through May 2007 because it
qualified as a small business under the applicable federal
regulations, which determine company size by adding affiliated
companies. This argument is fatally flawed. As we previously
found, the Release does not contain a date restriction, and the
fact remains that GW concedes GWMS is a “past affiliate” prior
to June 2002. This is sufficient in and of itself to find that
the Release applies to GWMS. Indeed, Grunley and Walsh sold
their interest in GWMS out of concern that GWMS was an affiliate
of their other companies. Id. at 911. Moreover, whether GW
believes GWMS should have qualified as a small business under
federal regulations is irrelevant to whether GWMS was a “past
affiliate” of GWI. The control-based definition of “affiliate”
used by the court in no way depends on federal regulation of
small business set-asides. See
id. 433-34. This is evidenced
by the second ground the district court provided for finding
GWMS to be an affiliate:
Between December 15, 2006, the date that [GWI] was
formed, and May 30, 2007, the date Mr. Raap was fired,
Mr. Raap served simultaneously as the owner of GWMS
and President of [GWI]. Therefore, it is indisputable
that a single individual possessed significant amounts
of control over both companies during that span of
time.
19
Id. at 437. We therefore find that district court committed no
error in finding that GWMS is a releasee. 10
IV.
Because the court properly found that both Raap and GWMS
come within the terms of the Release, this Court affirms the
decision of the district court. 11
AFFIRMED
10
We also reject GW’s final argument against application of
the Release – that the claims at issue were not released because
they are unrelated to the sale of the international business,
the transaction during which the Release was created. Once
again, GW ignores the broad plain language of the Release, which
releases “any and all claims” without qualification. Id. at
2877.
11
In affirming summary judgment in favor of the defendants,
we necessarily reject GW’s additional argument that it should
have been awarded summary judgment on its Lanham Act claims.
Additionally, because we affirm the court’s grant of
summary judgment, we do not reach GW’s argument that the court
erred in excluding GW’s duty of loyalty damages as a discovery
sanction.
20
