ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT (DOC. NOS. 112 & 121)

LEO T. SOROKIN, District Judge.

This case arises from a contractual dispute between CFN Agency, Inc. ("CFN") and Liberty Mutual Insurance Company ("Liberty"). The dispute centers on CFN's entitlement to commissions from the purchase and renewal of Liberty home and automobile insurance products by employees of large companies and members of affinity groups which CFN purported to represent. Pending before the Court are cross motions for summary judgment, which were the subject of an October 15, 2015 motion hearing. Doc. Nos. 112, 119, 121, 126, 130, 134. The Court has carefully reviewed the record and the parties' submissions and, for the reasons that follow, ALLOWS in part Liberty's motion for summary judgment and DENIES in full CFN's cross motion, as outlined below.

I. BACKGROUND

A. Undisputed Facts

CFN is in the voluntary benefits business. Doc. No. 127 at ¶ 1. Voluntary benefits are optional products and services that an employer makes available to an employee, and that the employee may decide to purchase (or not) for herself. Id. ¶ 3. Such benefits often include discounted homeowners' and automobile insurance, id. ¶ 1, and are distinct from employerprovided or — subsidized core benefits like health insurance, id. ¶ 3. CFN negotiates with insurance carriers and other vendors to obtain discounts on their products and services, then provides information about those offerings to employees and members of affinity groups through a customized website called YouDecide.com. Id. ¶ 4.

Employers and affinity groups typically execute agreements with CFN pursuant to which they offer some or all of CFN's array of voluntary benefits to their employees or members. See id. ¶ 6. In general, CFN is compensated via commissions paid to it by vendors included on YouDecide.com when employees or members of CFN's client groups purchase the vendors' products or services. See id. ¶ 4. As relevant here, CFN collects commissions from insurers when employees or members either purchase or renew insurance policies available through YouDecide.com, regardless whether the policy was purchased or renewed directly through CFN or its website. See id. ¶ 4.

In 1997, CFN established a relationship with Liberty whereby CFN began including on YouDecide.com discounted homeowners and automobile insurance available through Liberty. See id. ¶ 17. The parameters of CFN's relationship with Liberty were defined in an original 1997 contract and amended in a 2002 contract. Id. ¶¶ 17-19. At the time of those agreements, CFN and YouDecide.com were owned by a large insurance company, ACE USA. Id. ¶ 20. In 2004, ACE sold both to their present owner, a company called VBenx. Id. At that time, Liberty was the main source of CFN's revenues, providing at least twice as much in commissions as CFN's next largest revenue source. Id. Soon after CFN changed hands, Liberty raised concerns about the activity levels generated by CFN's clients, many of which CFN's new President and CEO described as "no longer active." Id. at ¶¶ 133-34.

In 2006, CFN and Liberty began negotiating two new contracts relevant here. Id. at 21. The first was an agreement by Liberty to purchase CFN's right to future commissions related to a list of clients which the parties agreed would no longer be considered CFN's clients going forward ("the buy-out agreement"). Id. ¶¶ 139-40; see Doc. No. 123-34. The buy-out agreement also stipulated that CFN would continue to receive limited compensation related to a second list of clients, but agreed to market to such clients only "inactively." Doc. No. 127 at ¶ 141. Days after executing the buy-out agreement, the parties signed an Affinity Marketing Agreement, which replaced the parties' 1997 and 2002 contracts and redefined the relationship between CFN and Liberty as of January 1, 2007 ("the 2007 Agreement"). Id. at ¶¶ 24, 143. The buy-out agreement is referenced in the 2007 Agreement's compensation provisions. See Doc. No. 116-1 at 7 (section 6(c)(iii), regarding limits on CFN's entitlement to renewal commissions).

Several terms of the 2007 Agreement are central to this dispute. In that agreement, CFN's clients — i.e., the employers and affinity groups utilizing CFN's voluntary benefits services — are referred to as "Groups," and the employees or members of Groups are called "Members." Id. at 2. In the section outlining the parties' responsibilities under the agreement, CFN's functions are defined to include "work[ing] closely with the Groups and . . . introduc[ing] the Program to Members by mailing, by coordinating on-site promotional activity with Liberty and by delivering promotional materials which have been expressly approved by Liberty." Id. at 5 (section 5(a)(i)).

Section 6 of the 2007 Agreement defines CFN's entitlement to compensation. Id. at 6-8. It describes Liberty's obligation to pay CFN "New Business Policy Commission" and "Renewal Commission" for policies sold to or renewed by Members of Groups, and incorporates commission rates and a Group list set forth in Exhibit A to the agreement. Id. at 6 (section 6(b)). Exhibit A is titled "List of Groups" and contains the following preamble:

Id. at 14 (emphasis added). Section 6 further provides:

Id. at 7-8.

Liberty retained the right to remove Groups from the scope of the 2007 Agreement, but could avoid payment of renewal commissions to CFN only if the removal was "for one of the reasons outlined in section 12c of this Agreement." Id. at 7 (section 6(b)). Those reasons include "termination of CFN's designation by Group to represent Group hereunder" and "dissolution of Group." Id. at 10 (section 12(c)(iv) and (v)). In order to remove a Group for any other reason, Liberty was required either to "continue [paying] Renewal Policy Commission for policies originally sold within that Group for a period of ten (10) years after the removal of such Group or as long as a policy continues to renew with Liberty, whichever period is shorter," or to "pay CFN a single lump sum representing 3.5X the terminated Group's current annualized Renewal Policy Commission." Id. at 7 (section 6(b)).

Between 2007 and 2011, the 2007 Agreement was amended a number of times, primarily to add or remove Groups or to change the commission percentages contained in Exhibit A. Doc. Nos. 116-17, 116-18, 123-37, 123-38, 123-39, 123-40, 123-41. At least three of those amendments repeated CFN's original "guarantee" that it "ha[d] been designated as representative of record for the Groups" included on the list. See, e.g., Doc. No. 116-17 at 3; 123-38 at 8; 123-41 at 3. In some of these instances, Groups were removed with CFN's consent because another broker had replaced CFN as the Group's representative, or because the entity had gone out of business. See Doc. No. 127 at ¶¶ 34-35, 37.

At the heart of this dispute is a distinction between two broad categories of CFN's clients. The first includes Groups which CFN considers "legacy," "dormant," or "version 1" clients, which CFN's current owners inherited when they acquired the business in 2004, and each of which have (or had) access to an older version of CFN's services. See id. ¶¶ 40-41. The second, smaller category is Groups which CFN considers "active" or "version 2" clients, with whom CFN's current owners have developed relationships, and which utilize a newer and more powerful version of CFN's services. See id. ¶¶ 38-39; Doc. No. 116-14 at 5. Liberty concedes CFN is entitled to commissions related to Groups falling in the latter category; this litigation arose when it ceased making payments to CFN related to Groups falling in the former category. Doc. No. 127 at ¶¶ 39, 93-95.

Citing concerns regarding the lack of activity it saw flowing from the Groups included in the 2007 Agreement, Liberty wrote to CFN on October 20, 2011 to demand written proof, with respect to all but sixteen of the Groups, that CFN then held "representative of record designation and that Liberty Mutual is a carrier that [was then] offered for that [G]roup" through CFN's service. Doc. No. 116-21. Liberty's letter stated that it would cease making compensation payments related to any Group for which CFN failed to provide such proof within sixty days of the letter. Id. CFN did not provide the information requested in the letter; thereafter, Liberty stopped commission payments for the Groups at issue. Doc. No. 127 at ¶ 95; see id. ¶ 174 (stating payments ceased on January 29, 2012); Doc. No. 116-44 at 4-5 (showing CFN provided a contract and website screenshot for a single Group, months after payments had ceased, and requested reinstatement of all payments based on its assurance that it possessed such documentation for every other Group at issue, a proposal which Liberty rejected).

Liberty reinstated payments, including payments of commissions retroactive to the date they had stopped, for specific Groups after receiving information confirming CFN's status as their representative. See Doc. No. 116-44 at 4 (noting Liberty had independently received validation from one Group at issue); Doc. No. 116-45 (reflecting CFN's discovery in this action included validation of its status for twelve other Groups). For the majority of Groups, though, Liberty stopped using codes that permitted it to track new business attributable to CFN as of May 29, 2012, when CFN still had not proven to Liberty's satisfaction that it retained its representative of record designation for such Groups. Doc. No. 127 at ¶ 176.

One other issue is relevant to this litigation. Sometime before the 2007 Agreement, Liberty provided CFN with access to a "real-time quoting system," through which Members could electronically complete applications and, within minutes, receive electronic quotes for Liberty's insurance products. Id. ¶ 101. By mid-2008, Liberty had discontinued use of that system, which it viewed as obsolete, intending to replace it with more streamlined technology. Id. ¶¶ 102-03. Liberty provided CFN with a telephone-based "work around" system to replace the quoting technology while the new system was completed. Id. ¶ 103. Throughout the development process, Liberty communicated with CFN and stated its intention to reinstate CFN's "real-time quoting" capabilities once the new system was operational. Id. ¶ 105. Ultimately, however, Liberty decided not to invest in the technology necessary to implement its new system for CFN, citing the parties' ongoing contract dispute and the uncertain future of their relationship. Id. ¶¶ 106-09.

B. Procedural Posture

CFN sued Liberty in November 2012, alleging Liberty breached the 2007 Agreement (both its explicit terms and its implied covenant of good faith and fair dealing), was unjustly enriched, violated Chapter 93A of the Massachusetts General Laws, and tortiously interfered with CFN's relationships with prospective clients. Doc. Nos. 1, 36. Liberty counterclaimed, seeking declaratory relief and alleging CFN breached both the explicit and implicit terms of the 2007 Agreement and violated Chapter 93A. Doc. Nos. 11, 37. CFN seeks unpaid commissions and other damages; Liberty seeks return of commissions it previously paid. Payments related to eighty-five Groups are at issue. The parties have resolved their claims as to a small number of Groups, but dozens of Groups remain in dispute. See Doc. No. 119 at 2 n.1 (noting Liberty agreed to pay commissions for twelve Groups where CFN's relationship was established through discovery, and one additional group where such proof appeared imminent); Doc. No. 121 at 18 (referencing generally, but not identifying, eight Groups which CFN "acknowledges were terminated and is therefore not seeking commissions").1

The parties have filed cross motions for partial summary judgment. Doc. Nos. 112, 121. Liberty seeks summary judgment on all claims and counterclaims, except for its own 93A counterclaim. Doc. No. 119 at 14. It asserts that CFN was not the representative of record for the disputed Groups, either because the record contains no contract demonstrating such a relationship, because any such relationship was terminated or had expired, or because the record contains no evidence showing the Group itself acknowledged or was aware of the relationship during the relevant time period. See generally Doc. No. 119. Liberty also argues that CFN had no right — contractual or otherwise — to "real-time quoting" technology. Id. CFN opposes Liberty's motion and moves for summary judgment on its own breach of contract claim, arguing Liberty had no right to demand proof of CFN's representative status or to cease payments absent evidence that a particular Group had explicitly fired CFN or replaced it with another broker. See generally Doc. No. 121. The motions are fully briefed, and the Court heard oral argument on

II. LEGAL STANDARD

Summary judgment is appropriate when "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). Once a party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party, who "may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); accord Barbour v. Dynamics Research Corp., 63 F.3d 32, 37 (1st Cir. 1995). The Court is "obliged to view the record in the light most favorable to the nonmoving party, and to draw all reasonable inferences in the nonmoving party's favor." LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993). Even so, the Court must ignore "conclusory allegations, improbable inferences, and unsupported speculation." Sullivan v. City of Springfield, 561 F.3d 7, 14 (1st Cir. 2009) (internal quotation marks omitted).

"There must be sufficient evidence favoring the nonmoving party for a [factfinder] to return a verdict for that party. If the evidence is merely colorable or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50. "Trialworthiness requires not only a `genuine' issue but also an issue that involves a `material' fact." Nat'l Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir. 1995). A material fact is one which has the "potential to affect the outcome of the suit under applicable law." Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 703 (1st Cir. 1993). For a factual dispute to be "genuine," the "evidence relevant to the issue, viewed in the light most flattering to the party opposing the motion, must be sufficiently open-ended to permit a rational factfinder to resolve the issue in favor of either side." Nat'l Amusements, Inc., 43 F.3d at 735 (internal citation omitted).

III. DISCUSSION

A. Liberty's Motion: Breach of Contract

Liberty seeks summary judgment on its breach of contract counterclaims and CFN's parallel claims. It argues CFN breached the 1997 Agreement by collecting commissions to which it was not entitled under the unambiguous terms of the contract. The record before the Court supports Liberty's motion with respect to certain Groups, but does not warrant wholesale entry of summary judgment as to all Groups currently in dispute.

As relevant here, the plain terms of the contract create two conditions precedent to payment of commissions to CFN for business flowing from any Group.2 First, CFN must retain a "continued designation as a representative of record" for the Group. Doc. No. 116-1 at 7-8 (section 6(d)(iii)(A)). Second, Liberty must be included as a vendor available through the Group's YouDecide.com website. Id. (section 6(d)(iii)(B)). As discussed in this section, the undisputed facts justify entry of judgment in Liberty's favor on both parties' breach of contract claims as to thirty-two Groups based on CFN's failure to satisfy one of these two conditions precedent.

1. Representative of Record Designation

The record contains no evidence from which a reasonable jury could find CFN enjoyed a "continued designation as a representative of record" as to twenty-seven Groups.3 The fate of both parties' breach of contract claims as to these Groups turns on the meaning of the term "representative of record," as used in the 2007 Agreement, and the circumstances under which a broker like CFN can lose its designation as such.

Based on the record submitted by the parties, the Court has little trouble concluding that the term "representative of record" is not ambiguous, and that in the context of the 2007 Agreement it is synonymous with the term "broker of record." This is so whether the contract is considered alone, as described by individuals involved in negotiating its terms, or in light of the parties' behavior when operating pursuant to the contract. First, the 2007 Agreement contains both terms and uses them interchangeably. See Doc. No. 16-1 at 2, 7, 8, 14 (using "representative of record"); id. at 6 (using "broker of record"); see also Doc. No. 123-34 at 2 (referencing CFN's "broker of record date" for various groups in the related buy-out agreement between the parties).4 Second, the representatives who signed the 2007 Agreement on behalf of the parties viewed the terms as interchangeable. See Doc. No. 116-9 at 4 (Christopher Capone, who signed on behalf of Liberty, testified he was unaware of a "dramatic[] differen[ce]" in definition); Doc. No. 116-11 at 5, 11 (Salvatore Percia, who signed on behalf of CFN, understood generally that CFN's entitlement to renewal commissions was contingent on its status as "broker of record," and agreed the terms are "synonymous"); Doc. No. 123-11 at 12 (Capone used the terms interchangeably in his deposition answers about the relevant clause).5

And finally, the parties conducted themselves — and corresponded with one another during the relevant time period — in such a way that reflects a mutual understanding that the two terms shared a meaning. See, e.g., Doc. No. 116-13 at 4 (Kyle Fabrizio of CFN viewed relevant question for purposes of CFN's relationship with Liberty as whether CFN had and maintained its "broker of record designation" with clients); Doc. No. 116-14 at 5 (Ronald Fulginiti of CFN agreed that a loss of "broker of record . . . would stop commissions" from Liberty); Doc. No. 116-19 at 3 (email from Eli Silberzweig of Liberty to three CFN representatives regarding an amendment to the 2007 Agreement which eliminated certain Groups because "contract cites comp[ensation] contingent on [broker of record]"). Under these circumstances, the undisputed facts can only support a conclusion that the terms "representative of record" and "broker of record" share a meaning in the context of the 2007 Agreement. Thus, CFN's entitlement to compensation under that agreement turns on its "continued" status as "broker of record" for any given Group.6 See Doc. No. 116-1 at 8.

The next question, then, involves what it means for CFN's "representative of record designation" to "continue[]," i.e., under what circumstances the designation is gained and lost. As an initial matter, the parties agree (and the record confirms) that the designation arises by agreement between the broker and the client, and that the designation usually is reflected in a contract or letter signed by the client.7 See Doc. No. 127 at ¶ 120. Furthermore, there is no real dispute here that the designation typically is lost in one of two ways: either the existing broker is replaced when the client elects to grant the designation to a new broker, or the existing broker is otherwise fired or terminated by the client. See id. ¶ 121; Doc. No. 123-2 at 17.

The parties' views diverge with respect to what constitutes a firing or termination — in other words, what conduct by a client is sufficient to legally strip a broker of its previously granted representative of record designation. CFN urges that nothing short of a formal, written declaration of termination is required. See Doc. No. 123-6 (deposition testimony by CFN's corporate representative that an "affirmative termination letter" is required); Doc. No. 123-31 at 5 (opinion by CFN's expert that "standard [industry] practice" requires "express[] resci[ssion]"); Doc. No. 127 at ¶¶ 122-23. Liberty, on the other hand, relies on general agency principles and suggests that a whole range of actions by a client — including "inactivity" — might be sufficient to demonstrate an intent to revoke a broker's authority to act on a client's behalf. See Doc. No. 119 at 14-18; Doc. No. 127 at ¶¶ 122-23.

The Court agrees with Liberty and finds that traditional agency principles are relevant to a determination of whether particular Groups' actions operated to terminate CFN's designation as representative of record here. Although the relationships at issue operate in the specific arena where voluntary benefits and the insurance industry intersect, CFN has cited no legal authority suggesting that anything about this particular milieu removes it from the reach of general agency law.8 The relationships at the heart of this case involve CFN's clients agreeing to permit CFN to act on their behalf in soliciting information from third parties (i.e., vendors providing insurance products and other voluntary benefits), subject to the clients' control, and CFN's consent to so act. See, e.g., Doc. No. 115-4 (contract establishing relationship between CFN and Compass Group, one of its clients). Such a relationship satisfies the very definition of agency, regardless whether CFN and its clients used the term "agency" to describe their association — and regardless whether CFN and Liberty described CFN's status with respect to its clients in terms of "agency." See Restatement (Third) of Agency §§ 1.01, 1.02.

Having determined that traditional agency principles apply, the only remaining question is whether those principles mandate a finding at this stage of the proceedings that CFN at some point lost its "continued designation as a representative of record" for the disputed Groups. Although Liberty suggests the answer to this question is "yes" as to every disputed Group, the record as it currently stands does not permit such a broad conclusion.

Pursuant to the law of agency, CFN's designation as a representative of record for a given Group — i.e., its authority to act as a broker on behalf of that group — could terminate by virtue of an explicit agreement between CFN and the Group, or "upon the occurrence of circumstances on the basis of which [CFN] should reasonably conclude that the [Group] no longer would assent to [CFN's] taking action on the [Group's] behalf." Restatement (Third) of Agency § 3.09; see also Gagnon v. Coombs, 654 N.E.2d 54, 59-60 (Mass. App. Ct. 1995) (applying "objective principles" from Restatement (Second) of Agency, including that an agent may do only what he reasonably infers he is authorized to do in light of the facts the agent knows at any given time, irrespective of the scope of authority originally granted by agreement of the parties). As CFN notes, this "is inherently a factual matter," Doc. No. 121 at 19, and one which the summary judgment record does not allow the Court to decide with respect to many Groups at this juncture. See discussion § III(A)(3), infra. The undisputed facts, however, do permit resolution now as to three categories of Groups.

First, the record contains unrebutted evidence that the contracts in which eight Groups designated CFN as their representative of record expired either before or during the time period relevant to this action. See Doc. No. 115-6 at 3 (contract with DuPont expired in 2002 unless DuPont elected, with advance written notice, to extend it); Doc. No. 115-8 at 2 (letter of agreement with organization representing the FBI, Federal Civilian Employees, and VAEA expired in 2002); Doc. No. 115-9 at 2 (contract with Methodist Hospital expired in 2008 unless renewed via "a mutually executed amendment"); Doc. No. 115-12 at 2-3 (letter of understanding with PNC Insurance expired in 1999); Doc. No. 115-13 at 3, 5 (letter of agreement with Sony Music expired in 2001 unless renewed "upon written agreement of the parties"); Doc. No. 115-15 at 2 (contract with Teleflex expired in 2006 unless renewed "upon agreement [of the] parties").9 CFN failed to address the expired contracts in its briefing. Moreover, the record contains no evidence demonstrating the contracts were renewed or extended in accordance with their terms, or that these Groups designated CFN as their representative in any other manner.10 As such, there is no genuine dispute that CFN's status as representative of these eight Groups expired, eliminating CFN's entitlement to commissions.

Second, the record contains unrebutted evidence that twelve Groups affirmatively terminated their relationships with CFN, and that CFN itself viewed such relationships as terminated. See Doc. No. 115-2 at 15, 19 (CFN's interrogatory responses admitting Compass Group, Cox Communications, and First Group America terminated their contracts with CFN in 2011);11 Doc. No. 115-3 at 3, 6-7 (client list attached to internal CFN email in 2008 describing Catholic Health East, H.J. Heinz, Palm Harbor Homes, Progressive, and Tenet as "terminated clients" and removing them from a mass emailing regarding Liberty products); Doc. No. 115-5 at 2 (letter from Cox Communications to CFN terminating relationship as of March 2011); Doc. No. 115-7 at 2 (internal CFN emails reflecting termination of relationship with Ericsson in March 2009); Doc. No. 115-11 at 2 (letter from New York Presbyterian Hospital to CFN terminating relationship in July 2012 "[t]o the extent that [it] has not been terminated previously");12 Doc. No. 115-14 at 2 (email from Southwest representative to CFN terminating relationship as of May 2011);13 Doc. No. 115-20 at 2 (internal CFN email in 2008 stating H.J. Heinz "is terminated and requested such in writing"); Doc. No. 115-24 at 4-5 (emails from DaimlerChrysler representative to CFN representative in 2007 stating her company's "arrangement with CFN terminated several years ago," explaining that "some years ago" she told "CFN account representatives" that the company wished "to discontinue the relationship," and further instructing CFN to cease using "direct references to our company, our employees and our company logo"); Doc. No. 116-42 at 2 (email from J.H. Heinz representative to CFN in 2007 saying the company "will no longer be continuing to offer" YouDecide.com). Again, CFN's briefing does not address this evidence or these Groups specifically, nor does the record contain anything explaining or contradicting the termination evidence offered by Liberty as to these Groups. Thus, there is no genuine dispute that CFN's status as representative of these twelve Groups was terminated, eliminating CFN's entitlement to commissions.

Third, as to seven other Groups, the record contains no evidence establishing the existence of any relationship at all with CFN, let alone the scope, duration, or continuing nature of such a relationship. CFN has not produced — either to Liberty in response to its discovery requests seeking such information, or to the Court to counter Liberty's summary judgment motion — any contract, letter of agreement, or other document reflecting the establishment of a relationship between itself and the following seven Groups: Acuity Brands, Advanced Technology Materials, Inc., Family Christian Stores, Farmland, Tribune Co., U.S. Office Products, and Weight Watchers. See Doc. No. 115 at ¶ 6. Furthermore, it has identified no documents or other evidence reflecting any communications at all between itself and any of these Groups. See Doc. No. 115-1 at 5, 15, 33-34 (identifying no specific communications or documents related to five of the seven Groups, and providing no information at all regarding the remaining two); cf. Doc. No. 127 at ¶ 42 (disputing Liberty's list of Groups without any identified communications only by noting that for some groups — not including the seven listed here — CFN did produce information about website modifications it performed for individual YouDecide.com sites). Once more, CFN's failure to address these Groups specifically or identify a single shred of evidence from which a factfinder could reasonably infer CFN ever had, let alone continued to maintain, a relationship of any sort with them means that CFN cannot establish it was entitled to commissions for these Groups.14

Accordingly, as to the twenty-seven Groups identified in this section, the undisputed facts support a finding that CFN failed to satisfy a condition precedent to compensation under the unambiguous terms of the 2007 Agreement — specifically, it did not maintain a "continued designation as a representative of record."15 As such, it was not entitled to the commissions it accepted from Liberty, a fact which the record demonstrates it knew or should have known as a matter of law. The Court has no trouble concluding that acceptance of such commissions under the circumstances amounted to a breach of the 2007 Agreement in at least one of two ways: first, it breached the plain terms of the compensation provision of the agreement, which conditioned payment on certain circumstances (and, as a logical extension, plainly meant that no payment was to be accepted if CFN was aware those conditions were not met); and second, CFN's knowing and repeated acceptance of payments to which it was not entitled under the plain terms of the 2007 Agreement certainly breached the covenant of good faith and fair dealing implicit in that agreement. Thus, Liberty's motion for summary judgment as to its breach of contract counterclaims is ALLOWED insofar as these twenty-seven groups are concerned.

2. Inclusion of Liberty on YouDecide.com

For five other Groups, the record contains no evidence from which a reasonable jury could find that "Liberty's participation in YouDecide.com with respect to [those] specific Group[s]" continued during the relevant time period.16 See Doc. No. 116-1 at 8. In other words, the record does not support a finding that CFN maintained a website at all for these Groups, or that the relevant website included Liberty products.17

Under the unambiguous terms of the 1997 Agreement, CFN's entitlement to commissions related to any Group depends on its maintenance of a customized YouDecide.com website for that Group which includes Liberty's products as an available offering. See Doc. No. 116-1 at 8. Thus, if CFN ceased to operate a YouDecide.com website for any particular Group, or if a Group's YouDecide.com website did not include information about Liberty's home and/or auto insurance products, CFN would not be entitled to "any compensation" from Liberty under the 1997 Agreement. Id.

Liberty has submitted internal emails produced by CFN in discovery which show that, as of April 2009, the YouDecide.com sites for two Groups (Harnischfeger and Montgomery Ward & Co.) "no longer exist[ed]." Doc. No. 115-10 at 2.18 It also has submitted documents showing CFN's relationships with three other Groups were limited in scope and did not include authorization to offer Liberty's products. See Doc. No. 115-16 (establishing a relationship between CFN and Advantica only for purposes of offering a First USA Visa Card); Doc. No. 115-18 (establishing a relationship between CFN and Bankers Cooperative Group to offer only those services specified in an attached Schedule A, but failing to include any such schedule referencing Liberty or its categories of products); Doc. No. 115-20 at 2 (reflecting Federal Express did not offer insurance products through YouDecide.com as of May 2008); see also Doc. No. 115-3 at 6 (same). CFN has not directly responded to this deficiency, let alone offered evidence suggesting such websites did exist and/or included Liberty products, and the Court has detected no such evidence in its review of the record.

Under these circumstances, Liberty has satisfied its summary judgment burden and demonstrated that CFN was not entitled to commissions for these groups.19 CFN's acceptance of such commissions breached either the express terms of the 2007 Agreement or its implicit duty of good faith and fair dealing. As such, Liberty's motion for summary judgment as to its breach of contract counterclaims is ALLOWED insofar as these five groups are concerned.

3. Groups Remaining for Trial

The rulings discussed in the previous two subsections resolve the parties' breach of contract claims with respect to thirty-two Groups,20 but the parties' dueling breach of contract claims will proceed to trial insofar as commissions related to the fifty-three remaining groups are concerned.21 In the Court's view, those Groups may be amenable to division into the following three categories as the parties seek to organize and streamline the evidence for trial.22

First, as to a number of Groups, CFN has produced affirmative communications from the Group which stop short of saying "[Group] hereby ends its contractual relationship with CFN and rescinds its representative of record designation," but which Liberty will argue support an inference of termination under traditional agency principles. These Groups appear to present the strongest case for Liberty at trial.

One example of such a Group is The Home Depot. In March of 2000, CFN and The Home Depot signed a letter of agreement pursuant to which The Home Depot began participating in YouDecide.com, and CFN became the designated representative. Doc. No. 116-7. The agreement had an automatic renewal provision and required written notice if a party wished to terminate the relationship. Id. at 2. The record demonstrates that in 2001, The Home Depot notified CFN that it intended to terminate their relationship, but did not memorialize that intent in writing. Doc. No. 115-20 at 2. Thereafter, it signed a contract with Metropolitan requiring it to exclusively offer that company's home and auto insurance (a fact of which neither CFN nor Liberty was aware),23 Doc. No. 116-34, and significant turnover in The Home Depot's human resources department eliminated everyone with any relationship to, or knowledge of, YouDecide.com or CFN, Doc. No. 116-33 at 7. Internally, CFN representatives referred to The Home Depot as a "non-client," Doc. No. 116-29 at 4, but elected to "just leave this case alone" due to "the significant current Liberty revenue," Doc. No. 115-20 at 2.24 See also Doc. No. 116-29 at 4-5; Doc. No. 116-32 at 2. Although these facts strongly support Liberty's view that CFN knew, or should have known, that by 2007 it no longer was authorized to represent The Home Depot, summary judgment is not appropriate in light of testimony by The Home Depot's corporate designee that no written termination of the original agreement had been sent (as required by the terms of that agreement), Doc. No. 116-33 at 7, and evidence that the YouDecide.com website for The Home Depot continued to draw traffic (albeit decreasing and meager traffic) through the relevant time period, Doc. No. 128-3 at 26-29. Weighing these modest facts against the formidable evidence presented by Liberty is appropriately left to the factfinder at trial. See Call v. Fresenius Med. Care Holdings, Inc., 534 F.Supp.2d 184, 192 (D. Mass. 2008) ("The evidence provided by [the plaintiff] regarding [an element of her claim] is meager, but it just barely allows her to survive summary judgment on this issue.").

Another Group in this category is J.P. Morgan Chase. CFN apparently produced a contract establishing a relationship between itself and J.P. Morgan Chase, and that contract contained no time limitation. See Doc. No. 115 at ¶ 9. But in 2007, a representative of J.P. Morgan Chase notified CFN that it no longer offered YouDecide.com to employees, and that it had formed a relationship with a different broker for voluntary benefits. Doc. No. 116-29 at 2. In response, CFN planned to "do nothing in hopes to not disrupt the Liberty revenue." Id. The following year, J.P. Morgan Chase asked CFN to remove the company's logo from the YouDecide.com site, and requested that CFN stop sending mass communications to its employees. Id. Internally, CFN noted that, "at the end of the day," J.P. Morgan Chase "[was]n't a client." Id. Once again, despite this persuasive showing by Liberty, summary judgment is not appropriate in light of deposition testimony by the Group's former director of benefits25 that information about YouDecide.com still appeared in materials J.P. Morgan Chase gave to its retiring employees in 2012, and that she knew of the CFN contract and viewed it as "still in force" during the relevant time period. Doc. No. 123-23 at 5-6; Doc. No. 128-4 at 4, 6.26

Second, as to certain other Groups, CFN has produced documents reflecting a pattern of unresponsiveness to CFN's efforts to solicit or engage them over an extended period of time. For these Groups, Liberty will argue that the lack of receptiveness — or, in some instances, total silence in response — to CFN's proposals should likewise cause a jury to infer termination. CFN has produced contracts with these Groups which automatically renewed, and the record does not contain evidence of explicit discussions of termination. E.g., Doc. No. 115-1 at 13, 16, 18, 23. However, when representatives of these Groups did respond to CFN's apparent solicitations, sometimes many years after the execution of the relevant contracts, their responses often either implied or stated directly that they no longer were using YouDecide.com. Examples of such Groups include: Coca-Cola, Doc. No. 115-23; General Electric, Doc. No. 115-26; Ingersoll Rand, Doc. No. 115-28; and Nestle, Doc. No. 115-30.

Third, as to a final category of Groups, for whom CFN also has produced old contracts with automatic renewal provisions, the record contains no other evidence revealing any meaningful communication with the Groups during the relevant time period. Liberty will argue, perhaps less forcefully here, that a total lack of communication between CFN and its purported client over an extended period of time should cause a jury to infer termination under traditional agency principles. Examples of these Groups include AH Belo Corp., Biolab, Inc., and Health Alliance of Greater Cincinnati. Doc. No. 115-1 at 6, 10, 18; Doc. No. 127 at ¶ 42.

In sum, although Liberty has made a formidable showing as to several of the remaining fifty-three Groups, the evidence is not sufficient to justify removing the fact-laden, dispositive question under traditional principles of agency law from the realm of the jury and permit the Court to enter summary judgment insofar as these fifty-three Groups are concerned. On the record as it stands now, the Court cannot resolve, as a matter of law, at what point (if ever) inactivity, unresponsiveness, or indications that a Group's YouDecide.com website was not actively promoted by that Group's human resources department for a period of time should have reasonably caused CFN to question whether its authority to act as a Group's representative persisted. Accordingly, Liberty's motion is DENIED with respect to the breach of contract claims related to the Groups not identified in the previous two subsections. See notes 3 and 16, supra.

4. Real-Time Quoting

Apart from the claims related to commission payments, Liberty also seeks summary judgment with respect to the portions of CFN's breach of contract claims which arise from Liberty's decision not to restore CFN's access to "real-time quoting" technology. This aspect of the breach of contract claims is more straightforward, and is more easily resolved in Liberty's favor.

The fatal flaw in CFN's position on this issue is that the contractual obligation it seeks to impose on Liberty — that Liberty provide CFN with access to an online system with "real-time quoting" capabilities — appears nowhere in the 2007 Agreement. According to CFN, the obligation arises from two particular subsections of the agreement: sections 5(a)(iii) and (iv). See Doc. No. 119 at 19; Doc. No. 121 at 20. These subsections appear under the heading "Responsibilities," and they are among a list that defines CFN's functions in its relationship with Liberty, not any obligations Liberty owes to CFN. Doc. No. 116-1 at 5. The two cited subsections describe CFN's duties to include the following: "CFN will filter incoming quote requests to Liberty according to Liberty provided rules, at no cost to Liberty," and "CFN shall transmit data to Liberty via insurance applications for Members that meet Liberty's underwriting standards and guidelines." Id. Although CFN may have performed these functions via an online quoting system at the time the 2007 Agreement was signed, nothing in the plain language of the provisions requires that that such functions be performed in that manner in perpetuity. And the provisions certainly do not require Liberty to incur the costs associated with implementing and maintaining an online quote system, let alone to provide CFN with access to such a system. See Doc. No. 116-49 at 3 (projecting it would cost $75,000 to put in place technology necessary to provide CFN with access to one aspect of Liberty's new online quoting system).

Beyond the language of the 2007 Agreement (which, in the Court's view, is the beginning and end of the inquiry insofar as CFN's breach of contract claim is concerned), CFN urges the Court to find Liberty breached an obligation it owed based on "the parties' ongoing relationship" and evidence showing that Liberty, when it was developing its new quoting technology, intended to restore CFN's access to "real-time quoting" via the new system. Doc. No. 121 at 19. However, the fact that CFN once had access to such a system, and that Liberty contemplated restoring such access but ultimately decided not to do so, does not give rise to a legal claim against Liberty. The record demonstrates that development of the new system took longer than Liberty expected, and that when the platform ultimately was ready to be shared with brokers, Liberty made a business decision not to implement it for CFN due to the ongoing dispute about commission payments and looming litigation. See Doc. Nos. 116-46, 116-47, 116-48, 116-49, 116-50 (testimony by a Liberty representative and internal Liberty emails related to the development and implementation of the new system, including discussions of when to provide it to brokers and whether to include CFN).

Although CFN was understandably unhappy to lose access to such technology, it has offered nothing more than unsupported speculation to suggest Liberty's decision was motivated by bad faith or an effort to circumvent the terms of the 2007 Agreement. Similarly, the Court's review of the record uncovered no evidence that would permit a reasonable factfinder to conclude that Liberty breached the explicit or implicit terms of the 2007 Agreement by not restoring CFN's real-time quoting capabilities. Accordingly, Liberty's motion is ALLOWED insofar as CFN's breach of contract claims relying on this theory are concerned.27

B. CFN's Motion: Breach of Contract

Besides summarily opposing Liberty's request for summary judgment,28 CFN seeks entry of judgment in its favor on its own breach of contract claim. In support, it argues the unambiguous terms of the 2007 Agreement precluded Liberty from asking CFN to "re-prove" its designation as representative of record and from withholding commission payments upon CFN's refusal to do so, and that industry practice prevented Liberty from "unilateral[ly] . . . terminat[ing] CFN's representative of record status." Doc. No. 121 at 13-17. Liberty urges that its decision to cease commission payments was justified in light of its reasonable concerns about CFN's status as representative of the Groups. Doc. No. 126 at 12. CFN's theory rests on a tortured view of the contract and does not justify denial of Liberty's motion, let alone warrant entry of judgment in CFN's favor.

First, Liberty did not — indeed, could not — terminate CFN's status as representative of record for any Group. As discussed above, that status amounts to a form of agency, and is something which necessarily was granted by the Groups themselves (here, usually by written contract), and could be terminated only by the Groups themselves (such as via the termination letters sent by some Groups discussed above). See Restatement (Third) of Agency § 1.01. What Liberty did — and could — do was cease making commission payments to CFN after: 1) noting that a majority of CFN's Groups were "inactive," and were not generating the level of new business Liberty expected given the size of those Groups; 2) reasonably questioning whether such Groups, after many years of inactivity, still recognized CFN as their representative (a condition precedent to payments under the 2007 Agreement); 3) notifying CFN of its concerns and seeking some form of proof that the inactive Groups did, in fact, continue to recognize CFN as their broker; and 4) providing CFN with a reasonable amount of time to offer such proof before terminating payments. See Doc. No. 116-21; see also Doc. Nos. 123-2, 123-15, 123-16 (testimony by three Liberty representatives involved in the internal audit regarding the basis for their decision to request proof from CFN). Thereafter, Liberty reinstated payments, retroactively when necessary, related to any Group for which it received (from CFN or elsewhere) confirmation of CFN's continued designation. See Doc. Nos. 116-44, 116-45.

The 2007 Agreement need not have specified that Liberty was entitled to demand such proof from CFN. By explicitly conditioning payment of commissions on a list of factors, the agreement implicitly permitted Liberty to seek confirmation of such factors, particularly where it had reason to doubt whether they were satisfied.29 For example, had Liberty learned of facts which caused it to question whether CFN had lost a necessary license — another precondition to payment under section 6(d)(i), Doc. No. 116-1 at 7 — it certainly could have requested from CFN a copy of the relevant license to confirm that payments should continue. Contrary to CFN's suggestion, nothing in the contract would preclude Liberty from making such a request, nor did it preclude Liberty from seeking assurances that CFN enjoyed a "continued designation" as representative for the inactive Groups at issue here. The fact that CFN characterizes the demand as unprecedented does not render it contrary to the terms of the contract.30 See Doc. No. 121 at 2 (stating Liberty made the demand "for the first time in its corporate history").

There is simply no evidence before the Court, nor any meaningful legal argument by CFN, to support a finding that Liberty breached the contract by requesting documentation reflecting CFN's status with respect to the disputed Groups. To the contrary, there is substantial evidence in the record demonstrating conclusively that CFN could not satisfy the conditions precedent to payment for a significant number of Groups, see discussion § III(A)(1) and (2), supra — and suggesting persuasively that it could not do so for at least several additional Groups, see discussion § III(A)(3), supra. This evidence not only supports the reasonableness of Liberty's perceptions and request, it demonstrates CFN was the party in breach of the 2007 Agreement. Accordingly, CFN's cross-motion is DENIED in its entirety.

C. Liberty's Motion: Other Claims

The remaining claims garnered little attention from the parties and require little discussion here. Liberty's motion is ALLOWED as to CFN's unjust enrichment claim, as the Court is satisfied — and there appears to be no genuine dispute between the parties — that the relationship between Liberty and CFN was defined by a valid contract. See Ruiz v. Bally Total Fitness Holding Corp., 447 F.Supp.2d 23, 29 (D. Mass. 2006) (dismissing unjust enrichment claim where "a valid, express contract governed" the conduct at issue).

Liberty's motion is likewise ALLOWED as to CFN's tortious interference and Chapter 93A claims. CFN has wholly failed to respond to Liberty's motion on these two claims, see Doc. No. 119 at 18-21, and the Court's review of the record reveals no evidence that could support either claim. Testimony and argument by CFN and its employees that Liberty made its demand for proof and/or withheld real-time quoting software in bad faith or as an intentional effort to sabotage CFN's business amounts to, at best, "conclusory allegations, improbable inferences, and unsupported speculation." See Sullivan, 561 F.3d at 14.31

Neither party has moved for summary judgment on Liberty's Chapter 93A counterclaim, so it will proceed to trial.

D. Motions to Strike

Although not formally filed as such, the parties' submissions arguably contain two separate motions to strike items from the summary judgment record. First, CFN challenges an affidavit submitted by a paralegal working with Liberty's counsel. E.g., Doc. No. 127 at ¶ 6; see Doc. No. 115. That request is DENIED. The affidavit at issue simply summarizes documents produced by CFN in discovery and reviewed by the affiant. It primarily describes documents attached as exhibits to the affidavit and, in those instances, the Court has reviewed and relied upon the documents, which speak for themselves. Insofar as the affidavit characterized other documents not provided as exhibits in the record here, the Court has not based its decision on the affiant's description of such documents.

Second, Liberty challenges an expert report submitted by CFN, which Liberty contends is "opinion testimony of an insurance broker" which is "irrelevant and inadmissible." Doc. No. 126 at 7; see Doc. No. 123-31. Liberty does not elaborate on why it believes the testimony is irrelevant or inadmissible, nor has it formally moved to preclude the expert's report or sought a Daubert hearing. As such, Liberty's request is DENIED without prejudice to Liberty raising the issue in an appropriate pretrial motion.

IV. CONCLUSION

For the foregoing reasons, Liberty's motion for summary judgment (Doc. No. 112) is ALLOWED in part and DENIED in part, and CFN's cross-motion for summary judgment (Doc. No. 121) is DENIED. Specifically, Liberty's motion is allowed as to Counts III (unjust enrichment), IV (Chapter 93A), and V (tortious interference) of CFN's Amended Complaint (Doc. No. 36) and Count I (declaratory judgment) of Liberty's Amended Counterclaim (Doc. No. 37).

With respect to Counts I and II of CFN's Amended Complaint and Counts II and III of Liberty's Amended Counterclaim (breach of contract and breach of implied covenant of good faith and fair dealing), Liberty's motion is allowed: a) insofar as such claims relate to commission payments paid and/or withheld related to the thirty-three Groups discussed in sections III(A)(1) and (2), supra; b) insofar as such claims rest on an allegation that Liberty breached the contract by requesting proof from CFN that preconditions to payment were satisfied, then stopping payments when such proof was not provided; and c) insofar as such claims arise from Liberty's decision not to reinstate CFN's access to a real-time quoting system.

The case will proceed to trial on Count IV (Chapter 93A) of Liberty's counterclaim, and on Counts I and II of CFN's Amended Complaint and Counts II and III of Liberty's counterclaim insofar as commission payments for all remaining Groups are concerned.32 Damages will be addressed following trial. An initial pretrial conference will be held in this matter on November 13, 2015 at 2:00 p.m. in Courtroom 13. Counsel should be prepared to establish a firm trial date and to discuss amenability to mediation, expected duration of trial, and any other relevant matter.

SO ORDERED.