MEMORANDUM RE PIERCING THE CORPORATE VEIL AND DEVON IT'S COUNTERCLAIMS

Baylson, District Judge.

I. Introduction

This case concerns long-running contractual and tort disputes, spanning multiyear litigation and arbitration across two continents, between Plaintiff Clientron Corporation and Defendants Devon IT and its two owners, Dr. John Bennett and his wife, Nance DiRocco.1 Briefly summarized, Clientron is a Taiwan-based company which manufactures computer related equipment and Devon IT is an information technology company. From August 2008 until 2012, Devon IT purchased equipment from Clientron. Clientron alleges that Devon IT has failed to pay for millions of dollars' worth of goods, including products custom-made by Clientron for Devon IT, and defrauded Clientron by promising that payment would be forthcoming. In response, Devon IT alleges it had good reasons not to pay and has asserted counterclaims against Clientron.

Presently before the Court are:

As explained below, both Motions on veil piercing shall be denied without prejudice to raise the issue at trial, and Clientron's Motion on the counterclaims shall be granted in part and denied in part.

II. Piercing the Corporate Veil

A. Parties' Contentions

Devon IT moved for summary judgment against piercing the corporate veil as to DiRocco only.3 Devon IT argues that piercing as to DiRocco is inappropriate because she was a passive shareholder who was not actively engaged in running the company. ECF 184 at 1-2.

Clientron contends that piercing is appropriate as to both Bennett and DiRocco because both have "exploited Devon IT's corporate form to their own benefit and for their own personal interests, without regard for corporate formalities in order to avoid Devon IT's legal obligations." ECF 186-1 at 1. Clientron primarily highlights Devon IT's insolvency and what Clientron characterizes as suspicious financial transactions to argue that Devon IT was Bennett and DiRocco's alter ego.

B. Undisputed Facts

Bennett and DiRocco are the sole shareholders of Devon IT and own all shares of the company as tenants by the entirety. ECF 186-2 ¶ 6. They also own several other companies, many of which bear names as some variation of Devon. Although it may not appear immediately relevant to these Motions, Clientron notes that at least two Devon entities controlled by Bennett and DiRocco filed for bankruptcy protection in 2013. ECF 186-2 ¶¶ 61-63/ECF 192 ¶¶ 71-73.

Devon IT was initially incorporated in October 1999. ECF 198-12 (Def. Opp'n Ex. L). Neither party has submitted evidence regarding Devon IT's initial capitalization or the reasonableness thereof. From 2010-2013, Devon IT's liabilities exceeded the value of its assets such that the company was insolvent. ECF 186-2 ¶¶ 12, 29; ECF 192 and 202-1 ¶ 56. From 2009 onward, there was no change in capital stock or paid-in capital to Devon IT. ECF 200 ¶ 69; ECF 192 and 202-1 ¶ 57.4 Devon IT's assets totaled approximately $7.5 million in 2011 but just $760,000 in 2012. ECF 186-5 (Pl. Ex. J) at p. 13; ECF 191-2 (Pl. Opp'n Ex. G) ¶ 52. Although the precise timing is unclear from the deposition excerpts provided, both sides agree that Bennett testified that Devon IT would spend approximately $400,000-500,000 (allegedly on operating expenses) each month. ECF 200 ¶ 36.

Devon IT disregarded several corporate formalities, which is usual in many husband-wife owned businesses. ECF 192 and ECF 202-1 ¶ 61. The company did not have any formal/annual shareholder meetings from 2010-2014, instead holding them on an as-needed/informal basis. ECF 200 ¶ 38; ECF 192 and 202-1 ¶ 59; ECF 184-8 (Def. Ex. H) ¶ 48; see also ECF 192 ¶ 22 and ECF 184-4 (Def. Ex. D, DiRocco Dep) at 222 (in reference to when Bennett would tell DiRocco when things were "good" at Devon IT, DiRocco said, "[T]hese are conversations in the course of a dinner. I mean it's not like we sat down on a certain day at a certain time for a certain event. That's not how we operate our lives."). The company also did not record minutes of any shareholder meetings from 2010-2013. ECF 200 ¶ 38; ECF 192 and 202-1 ¶¶ 18, 59. Devon IT also failed to have any officer elections from 2010-2013, presumably because the officers are appointed and not elected. ECF 200 ¶ 39; ECF 186-4 (Pl. Ex. I, DiRocco Interrogatory Responses) ¶¶ 40-43. The company further did not have any board of director elections for 2010-2013, presumably because Bennett is the sole member of the board and no election is required. ECF 186-4 (Pl. Ex. I, DiRocco Interrogatory Responses) ¶¶ 36-39; ECF 186-2 ¶ 14. Bennett did not know if Devon has a CEO or if he is that person. ECF 200 ¶ 42; ECF 192 ¶ 62. Bennett and DiRocco also admitted that they used a Devon entity employee (Bennett's secretary/personal assistant, ECF 186-4 (Pl. Ex. G) ¶ 45) to manage payment of their personal bills. ECF 186-2 ¶¶ 83, 84. Bennett testified that he would sometimes use his own money to pay Devon IT expenses and Devon IT's CFO likely had the authority to write checks on Bennett's personal accounts. ECF 186-2 ¶¶ 82, 85.

However, Devon IT also engaged in many corporate formalities. For example, the company had monthly executive meetings between Bennett and Joseph Makoid, Devon IT's President (though the parties dispute whether Bennett was the true dominant force behind the company). ECF 200 ¶ 38; ECF 192 ¶ 10; ECF 198-1 (Def. Opp'n Ex. A, Makoid Dep.)/ECF 184-6 (Def. Ex. F, same Makoid Dep.) at 35; ECF 198-10 (Def. Opp'n Ex. J) (listing executive meetings).5 Devon IT also filed its own taxes and had its own bank accounts. ECF 200 ¶ 38; ECF 192 ¶¶ 11-12. Defendants assert that Devon IT produced a number of corporate documents in this litigation, including stock certificates, a Shareholder Agreement, Bylaws, Resolutions of the Board of Directors ratifying Devon IT's transactions, and General Ledger Detail Reports from 2010-2015. ECF 200 ¶ 38; ECF 192 ¶¶ 18. While Clientron does not appear to dispute that these documents were produced, these documents have not been provided with any of the parties' submissions for verification. Devon IT also had somewhere between 30-40 employees. See ECF 192 ¶ 14. And despite the fact that many other Devon entities and Bennett have offices near each other, Devon IT had its own offices separate from any other Devon entity with signage denoting Devon IT's space. ECF 192 ¶ 15.

In general, DiRocco had little to do with running Devon IT and knows next to nothing about the company's dispute with Clientron. ECF 186-2 ¶¶ 43-45 ("DiRocco knows essentially nothing about any corporate records or official meetings"); ECF 192 ¶¶ 20, 27-34, 37-42. DiRocco did not serve as a director or officer of Devon IT or any other Devon entity. ECF 192 ¶ 19. DiRocco received information on the goings-on of Devon IT from her husband on an informal basis, mostly limited to whether business was "good" or "bad." ECF 192 ¶¶ 22, 51. Her presence on site at Devon IT was limited to when the company needed a paint color or when she needed to sign something, approximately 3-5 times per year. ECF 186-2 ¶ 45.

C. Standard for Piercing the Corporate Veil

Because this is a diversity jurisdiction case, Pennsylvania law applies. "[T]here is a strong presumption in Pennsylvania against piercing the corporate veil." Lumax Indus., Inc. v. Aultman, 543 Pa. 38,669 A.2d 893, 895 (1995).6 The Third Circuit has held that

E. Minerals & Chems. Co. v. Mahan, 225 F.3d 330, 333 n. 7 (3d Cir.2000) (citations omitted). "Pennsylvania ... does not allow recovery unless the party seeking to pierce the corporate veil on an alter ego theory establishes that the controlling corporation wholly ignored the separate status of the controlled corporation and so dominated and controlled its affairs that its separate existence was a mere sham." Id. at 333 n. 6. "In other words, both Pennsylvania and New Jersey require a threshold showing that the controlled corporation acted robot- or puppet-like in mechanical response to the controller's tugs on its strings or pressure on its buttons." Id.

Neither party cites In re Blatstein, 192 F.3d 88, 101 (3d Cir.1999), a Third Circuit bankruptcy case that affirmed the refusal to pierce the corporate veil (albeit in reverse, i.e. imputing the corporation's assets to the owner's debt) against a husband who owned a corporation as a tenant by the entirety with his wife. Blatstein noted that several factors weighing in favor of piercing the corporate veil were present, including that the corporations paid the Blatsteins' personal expenses and gave them interest-free loans. Id. at 99. Even more surprising, the wife in Blatstein did not know that she was a joint owner of the corporations. Id. at 96. The Third Circuit nevertheless held that "Blatstein did not hide any of his personal assets in the corporations, nor did he commingle his assets with the corporations' assets so that separation would be impossible." Id. at 101.

D. Disputed Issues of Fact Regarding Bennett and DiRocco's Relationship to Devon IT's Corporate Structure Preclude Granting Summary Judgment

The core facts of this issue concern several multimillion-dollar transactions on the books of Devon IT showing large loans and litigation settlements paid to Bennett, DiRocco, and/or related entities that they control, the disposition of which is disputed or unclear. Numerous factual questions relating to these transactions exist which must be resolved before deciding if veil piercing is appropriate. These include, but are not limited to, the following:

If Clientron can prove at trial that one or more of these events ignored or abused the Devon IT corporate form, Clientron may be entitled to a favorable result on its alter ego claim. Consequently, the Court will deny both Motions for Summary Judgment.

E. Procedure by Which Veil Piercing Shall Be Decided at Trial

There is no definitive Supreme Court or Third Circuit authority as to whether the question of piercing the corporate veil is one for the Court or the finder of fact.11

The Third Circuit has summarily affirmed a ruling that the question is for the Court. U.S. v. Golden Acres, Inc., 702 F.Supp. 1097, 1107 (D.Del.1988), aff'd sub nom., Golden Acres, Inc. v. Sutton Place Corp., 879 F.2d 857 (3d Cir.1989). In a prior opinion in the case, the district court granted a motion to strike the defendants' jury trial demand and held: "Actions that sound in equity do not carry a right to trial by jury. Piercing the corporate veil is an action that sounds in equity." U.S. v. Golden Acres, Inc., 684 F.Supp. 96, 103 (D.Del. 1988).

In contrast, several opinions applying Pennsylvania law have held that the "`weight of authority' favors submitting the question of corporate disregard to the jury." Peltz Boxing Promotions, Inc. v. Big Fights, Inc., No. 02-2062, 2004 WL 2137823, at *1 n. 1 (E.D.Pa. Sept. 23, 2004); Cantiere DiPortovenere Piesse S.p.A. v. Kerwin, 739 F.Supp. 231, 236 (E.D.Pa.1990). See also Regent Nat'l Bank v. Dealers Choice Automotive Plan., Inc., No. CIV. A. 96-7930, 1999 WL 357364, at *6 (E.D.Pa. June 2, 1999) ("A finding of alter-ego liability is a factual determination that must be supported by the record. Thus, whether there are facts sufficient to support the piercing of the corporate veil is an issue that may be decided by a jury.").

This Court must follow Golden Acres, even though the Third Circuit did not issue an opinion in that case, and therefore holds that there is no Seventh Amendment right to a jury trial on piercing the corporate veil.12 This result also accords with Pennsylvania procedure, see Advanced Tel. Sys., Inc. v. Com-Net Prof'l Mobile Radio, LLC, 846 A.2d 1264, 1277 (Pa.Super.Ct.2004) (holding there is no right to a jury trial for veil-piercing claims under the Pennsylvania Constitution), although "the right to a jury trial in the federal courts is to be determined as a matter of federal law in diversity as well as other actions." Simler v. Conner, 372 U.S. 221, 222, 83 S.Ct. 609, 9 L.Ed.2d 691 (1963). Nevertheless, pursuant to Federal Rule of Civil Procedure 39(c), the Court has the discretion to try the issue of veil piercing with an advisory jury. To the extent a jury is empaneled to hear the facts of this case, the Court reserves the right to submit an advisory interrogatory on whether veil piercing is appropriate.

III. The Parties' Current Claims Against Each Other

A. Clientron's Claims Against Devon IT

In August 2015, this Court granted Clientron partial summary judgment and held that a Taiwanese court order enforcing an arbitration award Clientron obtained against Devon IT is confirmable under Pennsylvania's Uniform Foreign Money Judgment Recognition Act, 42 Pa. Cons. Stat. §§ 22001-22009 (2015). ECF 167. Judgment has been entered for Clientron against Devon IT for $6,943,817.13. ECF 182.13

In light of that ruling, Clientron's remaining causes of action against Devon IT are for fraud and breach of contract. ECF 83. Clientron predicates these claims on products Clientron manufactured pursuant to non-cancellable Purchase Orders ("P.O. products"); these claims were never subject to arbitration in Taiwan, although Clientron claims that the P.O. products and the products dealt with in arbitration are both governed by the same contract (the Supply and Purchase Agreement, "SPA").

In an early holding in this case, the Court stated that Taiwanese law governs Clientron's breach of contract claim against Devon IT regarding the P.O. products and assumed that Pennsylvania law governs Clientron's fraud claim. ECF 8 at 3 (E.D. Pa. No. 14-1396). The Court now clarifies this holding: Taiwanese law will govern Clientron's breach of contract claim to the extent the P.O. products are subject to the SPA, as the SPA specifies that it is governed by Taiwanese law. The issue of whether the SPA applies is a mixed question of fact and law to be further developed at trial; to the extent the SPA does not govern the P.O. products,14 further choice of law analysis may be required.

B. Devon IT's Counterclaims Against Clientron

Devon IT asserts counterclaims against Clientron. ECF 107. Although Devon IT pleads its counterclaims as two counts predicated on the same facts (one for fraud and one for breach of contract), the claims are best analyzed in three groups according to the harm Devon IT alleges it suffered:

IV. Issues of Claim and Issue Preclusion

A. Procedural Background and Parties' Contentions

On September 15, 2015, Clientron moved for summary judgment on Devon IT's Counterclaims. ECF 185-1. Defendants filed an Opposition on October 16, ECF 201, and Clientron filed a Reply on October 26, ECF 205. In the Reply, Clientron raised a new argument: "res judicata," which is actually an argument for collateral estoppel (aka issue preclusion).17

According to Clientron, the facts Devon IT asserts in this action in support of its counterclaims were already raised during the Taiwanese arbitration proceeding. ECF 205 at 10. Devon IT sought a setoff of damages in that proceeding based on Clientron's alleged conduct, and the arbitration panel denied Devon IT's request. As noted in this Court's prior opinions in more detail, see ECF 167, the arbitration award in favor of Clientron has now been finally and permanently affirmed by Taiwanese courts.18

On November 18, the Court asked via letter for supplemental briefing on what if any preclusive effect a foreign arbitration can have in this case. Both parties submitted briefs on December 2. ECF 213, 214.

Clientron argued that the Taiwanese arbitration award, as affirmed by Taiwanese courts, rejected Devon IT's Dell and BOM +10% claims in ruling that there was no basis for Devon IT to assert a setoff defense. ECF 214. Clientron also maintains that Devon IT had a full and fair opportunity to make its case for setoff during the arbitration. Id.

Unsurprisingly, Devon IT paints a very different picture and vigorously argues that the panel did not seriously consider its setoff defense allegations. ECF 213. Devon IT also raises two new arguments: 1) claim preclusion should bar Clientron's breach of contract claim for the P.O. products because Clientron chose not to raise that issue at the arbitration; and 2) if claim preclusion does not bar Clientron's P.O. products claims, but the items at issue are also subject to the SPA, then this Court lacks jurisdiction to adjudicate because of the SPA's mandatory arbitration provision. ECF 213 at 7-10.

B. Devon IT Incorrectly Asserts that This Court Lacks Jurisdiction Assuming the SPA Governs the P.O. Products

The Court can quickly dispose of Devon IT's subject matter jurisdiction argument assuming the P.O. products are covered by the SPA's arbitration provision. An arbitration clause does not divest this Court of subject matter jurisdiction. Nationwide Ins. Co. of Columbus, Ohio v. Patterson, 953 F.2d 44, 45 n. 1 (3d Cir. 1991).

Furthermore, Devon IT's failure to raise the argument constitutes a waiver. Devon IT has litigated this case in this Court for almost two years since Clientron first asserted the breach of contract claim. See ECF 1 in 14-cv-1396.19 Never once in that time has Devon IT moved to compel arbitration under the SPA or even argued that the SPA's arbitration provision could prevent Clientron from arguing its breach of contract claim here. Hoxworth v. Blinder, Robinson & Co., Inc., 980 F.2d 912, 925 (3d Cir.1992) ("[W]e conclude that the defendants have waived whatever right they may have had to arbitration by actively litigating this case for almost a year prior to filing their motion to compel arbitration.").

C. Standards Governing Claim and Issue Preclusion

The Court now turns to preclusion. Clientron in essence has asserted Devon IT is estopped under the doctrine of issue preclusion from re-raising allegations about the Dell contract and BOM +10% overcharge. This allegation sounds primarily in issue preclusion, as it relates to the factual validity of Devon IT's allegations against Clientron, but it is admittedly close to claim preclusion as well because Clientron arguably is saying that Devon IT asserted comparable legal claims in the arbitration stemming from its attempt to assert setoff. Devon IT, by contrast, is squarely arguing claim preclusion in alleging that Clientron cannot sue Devon IT for claims related to the P.O. products after having failed to raise those claims in the Taiwanese arbitration.

a. Choice of Law Analysis

Neither party has addressed a threshold inquiry: whether Taiwanese or Pennsylvania law applies to evaluating issue or claim preclusion. Preclusion arose once previously in this litigation when Clientron argued that Devon IT could not contend that the Taiwanese arbitration exceeded the scope of the SPA because Devon IT raised that argument during arbitration itself. See ECF 61 in 13-cv-5634. This Court, applying Taiwanese law, rejected Clientron's contention because an arbitration panel's determination of its own jurisdiction is subject to review by a Taiwanese court in the enforcement or revocation context. Id. at 29 of 52. That application of Taiwanese law, however, came from a choice of law clause in the SPA and followed briefing by both parties pursuant to Federal Rule of Civil Procedure 44.1. See id. at 22.

In cases of claim and issue preclusion from past state court decisions, "[a] federal court looks to the law of the adjudicating state to determine its preclusive effect." Del. River Port Auth. v. Fraternal Order of Police, 290 F.3d 567, 573 (3d Cir.2002); see also 28 U.S.C. 1738 (2015). In cases arising from past federal court decisions, federal common law controls (and in diversity cases, federal courts must follow the law that would be applied by state courts in the state where the federal court sits). Taylor v. Sturgell, 553 U.S. 880, 891, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008); Semtek Int'l. Inc. v. Lockheed Martin Corp., 531 U.S. 497, 509, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001). In these pending Motions, neither party raised the question of what law the Court should apply when examining the preclusive effect of the foreign arbitration award (or any issue of foreign law per Federal Rule of Civil Procedure 44.1). As the Third Circuit has noted, litigants "generally carry [] the burden of raising the issue that foreign law may apply in an action, and ... [w]here parties fail to satisfy [that] burden the court will ordinarily apply the forum's law." Bel-Ray Co., Inc. v. Chemrite (Pty) Ltd., 181 F.3d 435, 440-41 (3d Cir.1999). The Court therefore applies Pennsylvania law to the question of claim and issue preclusion, as this is a diversity jurisdiction case.

b. Pennsylvania Standards for Claim and Issue Preclusion

"For claim preclusion to apply, Pennsylvania requires that the two actions share the following four conditions: (1) the thing sued upon or for; (2) the cause of action; (3) the persons and parties to the action; and (4) the capacity of the parties to sue or be sued." R & J Holding Co. v. Redevelopment Auth. of County of Montgomery, 670 F.3d 420, 427 (3d Cir.2011). Issue preclusion has four requirements: "1) the issue decided in the prior adjudication must be identical with the one presented in the later action; 2) there must have been a final judgment on the merits; 3) the party against whom [it] is asserted must have been a party or in privity with the party to the prior adjudication; and 4) the party against whom [it] is asserted must have had a full and fair opportunity to litigate the issue in question in the prior adjudication." Witkowski v. Welch, 173 F.3d 192, 199 (3d Cir.1999).

The only case from this District examining the preclusive effect of a foreign arbitration that this Court has been able to locate is Pirito v. Penn Engineering World Holdings, 833 F.Supp.2d 455, 475 (E.D.Pa. 2011), supplemented, 947 F.Supp.2d 489 (E.D.Pa.2013). Pirito ultimately granted issue preclusion (aka collateral estoppel effect) based on a foreign arbitration after that award was confirmed by a foreign court (as Clientron's Taiwanese award has been here, see ECF 167). 947 F.Supp.2d at 502-04.

It is unclear, however, if the foreign court which confirmed the arbitration award in Pirito only dealt with some of the issues raised during the arbitration in confirming the award. The Taiwanese court order, rejecting Devon IT's petition to revoke the Taiwanese arbitration award, only examined the issue of whether the arbitration occurred contrary to an agreement between the parties (i.e., the SPA). The Taiwanese court specifically noted that "Other offensives and defensives by and between both parties and the evidence (exhibits) so submitted, through consideration of this Court, are believed having no impact upon the outcome of the Judgment and should not be probed into." ECF 121-1 (1/12/15 Taiwanese Court Order) at 27 of 32. In other words, no foreign court has ever examined the substantive factual findings of the arbitration panel that would pertain to Devon IT's setoff defense.

Nevertheless, the Third Circuit has held that "[u]nder Pennsylvania law, arbitration proceedings and their findings are considered final judgments for the purposes of collateral estoppel [aka issue preclusion]." Witkowski, 173 F.3d at 199. Witkowski also cited approvingly to the Restatement (Second) of Judgments § 84, which states that "a valid and final award by arbitration has the same effects under the rules of res judicata [aka claim preclusion], subject to the same exceptions and qualifications, as a judgment of a court." Id. at 200. Other district courts have also held that "the effects of foreign arbitration are no less preclusive than domestic arbitration." See Alghanim v. Alghanim, 828 F.Supp.2d 636, 665 (S.D.N.Y.2011). The Court therefore holds that both claim and issue preclusion may apply against a party based on a foreign arbitration, especially where such an award has been confirmed by a foreign court (even if that court did not review all of the panel's substantive findings).

D. Clientron's Argument of Issue Preclusion/Collateral Estoppel Against Devon IT Fails

Clientron argues Devon IT is barred by issue preclusion/collateral estoppel from re-pleading the facts that it pled as setoff defense in the arbitration. A comparison of Devon IT's counterclaims and the arbitration panel's decision reveals that although Devon IT never raised the JPMC contract in Taiwan, Devon IT is nevertheless rehashing identical disputes here. E.g.:

It is thus clear that three of the four Witkowski factors have been met: Devon IT raised the same factual claims (loss of the Dell contract and BOM +10% overcharge) in the Taiwanese arbitration; there is now a final judgment on the merits confirming the arbitration award; and Devon IT was a party to both actions.

However, Devon IT's argument that it did not have a full and fair opportunity to present the set-off defense in arbitration precludes the Court from granting summary judgment on the basis of issue preclusion. Devon IT's argument is admittedly thin, as it has offered little evidence in this action beyond what it presented to the Taiwanese arbitration panel. Nevertheless, a trial on the merits will conclusively resolve whether Devon IT did in fact have a full and fair chance to present its counterclaim allegations. If it did so, collateral estoppel would bar the company from raising them again here.

E. Devon IT's Argument of Res Judicata/Claim Preclusion Against Clientron Fails

Devon IT never raised res judicata in its Answer as an affirmative defense. See ECF 107. Nevertheless, Devon IT's omission is not fatal to raising the defense now. Kleinknecht v. Gettysburg Coll., 989 F.2d 1360, 1373 (3d Cir.1993) (citations omitted) ("Failure to raise an affirmative defense in a responsive pleading, however, does not always result in waiver. For example, a party may raise an unpled affirmative defense in an appropriate motion.").

Devon IT notes that "[a] claim extinguished by res judicata includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction or series of connected transactions, out of which the action arose." Elkadrawy v. Vanguard Grp., Inc., 584 F.3d 169, 174 (3d Cir.2009) (citations omitted). Devon IT's argument, sounding in principles of waiver, is that because Clientron contends that the P.O. products and the products submitted to arbitration in Taiwan are purportedly governed by the same SPA, Clientron's failure to submit the P.O. products to arbitration means Clientron is barred from asserting a separate breach of contract claim now.

However, summary judgment is inappropriate because the record is unclear as to why Clientron did not submit the P.O. products to arbitration. One possible explanation, which ironically finds support in Devon IT's cross-examination of Clientron's Taiwanese law expert,20 is that the P.O. products are each independent contracts under Taiwanese law and not subject to the SPA at all despite Clientron's contentions. Were that true, there is no basis to apply res judicata from an arbitration interpreting an unrelated contract. Clientron also may have had legitimate reasons for differentiating between the P.O. products and those it submitted to arbitration. This argument and the facts surrounding it must be fleshed out at trial.

F. Conclusion Regarding Claim and Issue Preclusion

Because of disputed facts about prior proceedings and their legal status, claim and issue preclusion do not bar Devon IT's counterclaims or Clientron's breach of contract claim. The Court now turns to the merits of Clientron's Motion for Summary Judgment on Devon IT's counterclaims.

V. Merits of Clientron's Motion for Summary Judgment on Devon IT's Counterclaims for Fraud and Breach of Contract (JPMC, Dell, and BOM +10% Overcharge)

As previously noted, on September 15, 2015, Clientron moved for summary judgment on Devon IT's counterclaims. ECF 185-1. Defendants filed an Opposition on October 16, ECF 201, and Clientron filed a Reply on October 26, ECF 205. As clarified in the Reply, Clientron argues that Devon IT cannot prove any of Clientron's actions harmed Devon IT. Clientron also alleges that Devon IT cannot prove key elements of fraud such as a misrepresentation or reasonable reliance.

A. Governing Legal Standards for Fraud and Breach of Contract

The parties have analyzed Devon IT's counterclaims assuming Pennsylvania law applies despite the fact that Clientron is a Taiwanese company and other contracts between the parties such as the SPA have specified that they are governed by Taiwanese law. In the absence of any identified conflict between Taiwanese and Pennsylvania law, and in light of the parties' briefing, the Court will apply Pennsylvania law. See John Wyeth & Bro. Ltd. v. CIGNA Intern. Corp., 119 F.3d 1070, 1074 (3d Cir.1997); see also Bel-Ray Co., 181 F.3d at 440-41 (burden on parties to raise foreign law and failure to do so results in application of forum state's law).

"Pennsylvania law requires that a plaintiff seeking to proceed with a breach of contract action must establish (1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract, and (3) resultant damages." Ware v. Rodale Press, Inc., 322 F.3d 218, 225 (3d Cir.2003) (alteration and citations omitted).

"Under Pennsylvania law, fraudulent misrepresentation has five elements, each of which must be proved by clear and convincing evidence. The elements are: (1) a misrepresentation, (2) a fraudulent utterance thereof, (3) an intention by the maker that the recipient will thereby be induced to act, (4) justifiable reliance by the recipient upon the misrepresentation, and (5) damage to the recipient as a proximate result." Mellon Bank Corp. v. First Union Real Est. Equity and Mortg. Inv., 951 F.2d 1399, 1409 (3d Cir. 1991) (citations omitted).21

B. Devon IT's JPMC Fraud and Breach of Contract Claims Fail

Devon IT has failed to raise a genuine issue of material fact as to fraud or breach of contract regarding JPMC, and Clientron's Motion is granted as to those allegations. Devon IT conclusorily posits that JPMC terminated its contract because of Clientron in March 2012 based on certain unspecified Clientron performance issues from November 2010. ECF 107 ¶¶ 125-26, 136-138 (blaming "the quality issues and other technical issues with the TC5 product" for JPMC's termination of its relationship with Devon IT). These allegations rest entirely on hearsay and speculation22 and fail to raise any triable issues.23

C. Devon IT's Dell Fraud and Breach of Contract Claims Fail

Devon IT claims that Clientron's actions, whether fraudulent or in breach of contract, damaged the Dell-Devon relationship to such an extent that Dell acquired Wyse instead of Devon and/or terminated its contract with Devon IT. ECF 205-3 ¶¶ 9(v). Devon IT's argument undermines its claimed damage of lost profits from the Dell contract as measure of harm: if Devon IT would have been acquired but for Clientron's actions, Devon IT cannot point to anticipated lost profits from the Dell contract as a measure of damages because the contract would likely have been restructured to account for the change in relationship between Devon IT and Dell. More to the point, however, Devon IT cannot point to any evidence beyond speculation and hearsay that Dell chose Wyse over Devon IT because of Clientron.24 Both Makoid (Devon IT's President) and Bennett (Devon IT's controlling shareholder) conceded that Dell never formally informed Devon IT that Dell was acquiring Wyse and terminating the Devon IT contract due to Clientron. ECF 201-2 Def. Opp'n Ex. B at 263 (Makoid Dep.); 201-16 Def. Ex. P at 127-128 (Bennett Dep.) ("There was not a specific statement that we're terminating because of the quality."). Accordingly, Devon IT cannot show any harm attributable to Clientron from cancellation of the Dell contract and/or Dell's decision to acquire Devon IT's competitor. Summary judgment is therefore appropriate.

D. Devon IT's BOM +10% Overcharge Fraud Claim Fails

Devon IT's remaining fraud claim asserts direct damage to itself in the form of roughly $3.3 million from Clientron's charging prices higher for certain products than the agreed upon BOM +10%. Given that this claim rests on exactly the same facts as Devon IT's breach of contract allegations, the gist-of-the-action doctrine bars it.25

The claim also fails as fraud because Devon IT has not shown that Clientron made any fraudulent utterance. In Pennsylvania, "[s]tatements of intention made at the time of contracting are not fraudulent simply because of a later change of mind." Mellon Bank Corp., 951 F.2d at 1411. Devon IT offers no proof in the record beyond the bald speculation of its own employees that at the time Clientron made its alleged promise to Devon IT of charging BOM +10%, Clientron had no intention of carrying that promise out. ECF 205-3 ¶¶ 9(i)-(iii).26

Finally, even assuming Clientron had made a fraudulent utterance, Devon IT could not state a case for fraud because it is simply unreasonable for sophisticated commercial entities to rely on oral price guarantees in the context of multimillion dollar business transactions. See Mellon Bank Corp, 951 F.2d at 1412.

E. Devon IT's BOM +10% Overcharge Breach of Contract Claim Shall Proceed to Trial

Devon IT has only offered hearsay evidence to prove the amount of its damages from Clientron's alleged overcharge. See ECF 201-3 Def. Opp'n Ex. C ¶¶ 26-30 (information came from "an industry representative familiar with pricing of memory components used in thin client devices, other OEM suppliers of Devon IT and the pricing information disclosed on the website of DRAM Exchange."). This evidence does not appear to fall within any exception to the hearsay rule.

Nevertheless, the Court declines to grant summary judgment at this time on Devon IT's lone remaining counterclaim. It shall be for the fact finder to determine if Clientron and Devon IT had an oral contract for the BOM + 10% price, if Clientron charged more, and (assuming so) how much damage Devon IT suffered as a result.

VI. Issues Remaining for Trial

The following issues shall be resolved at trial: