Camsoft Data Sys., Inc. v. S. Elecs. Supply, Inc.

CAMSOFT DATA SYSTEMS, INC. v. SOUTHERN ELECTRONICS SUPPLY, INC. AND ACTIVE SOLUTIONS, LLC

2019 CA 0730

2019 CW 0497

STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT

July 2, 2019

NOT DESIGNATED FOR PUBLICATION

Appealed from the Nineteenth Judicial District Court Parish of East Baton Rouge State of Louisiana

Case No. 582,741

The Honorable Janice Clark, Judge Presiding

Karli Glascock Johnson

Vance A. Gibbs

Tara M. Madison

Baton Rouge, Louisiana

and

James C. Grant

Christopher A. Riley

Elizabeth Helmer

Michael P. Kenny

Atlanta, Georgia

Counsel for Defendants/Appellants

Dell, Inc. & Dell Marketing, L.P.

Michael T. Beckers

Brent P. Frederick

Danielle N. Goren

Tiffany T. Kopfinger

Baton Rouge, Louisiana

Counsel for Defendants/Appellants

MMR Constructors, Inc., MMR Group,

Inc. & MMR Offshore Services, Inc.

Jason L. Melancon

Robert C. Rimes

R. Lee Daquanno, Jr.

Frank Tomeny, III

Baton Rouge, Louisiana

and

Marx D. Sterbcow

New Orleans, Louisiana

and

Mark D. Plaisance

Marcus J. Plaisance

Prairieville, Louisiana

Counsel for Plaintiff/Appellee

CamSoft Data Systems, Inc.

Gus A. Fritchie, III

New Orleans, Louisiana

Counsel for Defendant/Appellee

Continental Casualty Company

Christine Lipsey

Amanda Stout

Baton Rouge, Louisiana

and

Mark J. Chaney

New Orleans, Louisiana

and

Christopher H. Toll

Pro Hac Vice

Greenwood Village, Colorado

Counsel for Defendant/Appellee

Ciber, Inc.

BEFORE: CRAIN, THERIOT, and HOLDRIDGE, JJ.

THERIOT, J.

In this antitrust litigation, Dell, Inc. and Dell Marketing, L.P. (sometimes referred to collectively as, "Dell"), seek reversal of the trial court's judgment denying their Peremptory Exception of Prescription and/or Peremption. For the following reasons, we affirm the trial court's judgment in part and reverse in part. We deny the companion writ application, as well as CamSoft Data System, Inc.'s motion to dismiss, referred to this panel, as moot.

Regarding the appeal filed by MMR Constructors, Inc., MMR Group, Inc., and MMR Offshore Services, Inc. (sometimes referred to collectively as, "MMR"), we dismiss their appeal as abandoned. Pursuant to the Notice of Lodging issued by this court, all appellant briefs were due by June 17, 2019. While Dell timely filed its brief, MMR did not. Accordingly, an Interim Order was issued on June 18, 2019, ordering that MMR "shall file a brief in this matter on or before 12:00 noon on June 19, 2019. If [MMR] do[es] not file a brief within this deadline, their appeal may be dismissed as abandoned." (emphasis in original). Despite this Order, MMR failed to file a brief.

Rule 2-12.4(B)(4) of the Uniform Rules, Louisiana Courts of Appeal, provides that "[a]ll assignments of error and issues for review must be briefed. The court may consider as abandoned any assignment of error or issue for review which has not been briefed." See also Louisiana Commerce & Trade Ass'n, SIF v. Williams, 2014-1680, p. 6 (La. App. 1st Cir. 6/5/15), 174 So.3d 696, 699 ("We may consider as abandoned any assignment of error or issue for review which has not been briefed."). Further, Rule 2-12.9 states that "[i]n cases specially assigned for arguments, the briefs shall be filed as ordered by the court." Therefore, because MMR failed to file an appellant brief, as instructed by this court's Notice of Lodging and Interim Order, and did not assign any error to the trial court's ruling, we dismiss MMR's appeal as abandoned.

FACTS AND PROCEDURAL HISTORY¹

CamSoft Data Systems, Inc. ("CamSoft") is a technology company owned by Carlo MacDonald ("MacDonald"). In late 2002, CamSoft became a licensed retailer for Tropos Networks, Inc. ("Tropos"), a technology company that manufactures wireless networking hardware allowing for the remote connection of laptops and other computer equipment throughout a large geographical area. In 2003, former New Orleans Mayor C. Ray Nagin ("Mayor Nagin") announced an initiative to deploy 1,000 video surveillance cameras throughout the City of New Orleans ("Crime Camera Project"). Thereafter, CamSoft formed an alliance with two New Orleans companies, Active Solutions, LLC ("Active") and Southern Electronics Supply Company, Inc. ("Southern"), to design, develop, and market a wireless surveillance system for the Crime Camera Project. Active is co-owned by Brian Fitzpatrick and Jeff Burkhardt. Ignace A. Perrin, III ("Perrin") is the owner and president of Southern. CamSoft refers to these companies and individuals as the "Active-Southern Defendants."

CamSoft used the Tropos technology to develop a "Crime Camera System," designed to provide real-time surveillance of areas where the cameras were installed. The wireless networking features allowed the system's cameras to be remotely controlled from a laptop in the field, to adjust the pan, tilt, and zoom features of a camera, and to capture video images while a crime was in progress. In early discussions, CamSoft and the Active-Southern Defendants agreed to keep strictly confidential the Crime Camera System's technological design features. They further agreed to market their system beyond New Orleans to Baton Rouge, other parts of Louisiana, and to Jacksonville, Florida. In November 2003, following discussionsand successful initial testing of the Crime Camera System, CamSoft and the Active-Southern Defendants agreed upon the following terms should they obtain the Crime Camera Project: (1) CamSoft would receive all revenues generated from the sale of its Tropos wireless networking equipment, as well as installation and ongoing maintenance services; (2) Active would receive all revenues generated from the sale of its weatherized Sony cameras; (3) Southern would receive all revenues for its centralized accounting function and project coordination with other vendors; and (4) all parties would bear the risk of loss if the City of New Orleans failed to remit payment for any equipment or services performed.

In January 2004, the City of New Orleans Mayor's Office of Technology ("MOT") granted permission to the Active-Southern Defendants and CamSoft to conduct a pilot program for the Crime Camera Project in the New Orleans Iberville housing project. Gregory Meffert ("Meffert"), the Chief Technology Officer ("CTO") of the MOT at the time, appointed Christopher Drake ("Drake") as project manager of the Crime Camera Project. Drake was employed by a private technology company, Imagine Software, LLC ("Imagine"), which was owned in part by Mark St. Pierre ("St. Pierre"), a friend of Meffert, and who had performed work for the City of New Orleans during Meffert's tenure as CTO. As CTO, Meffert was responsible for all technology-related projects in New Orleans. CamSoft refers to these individuals, and Imagine, as the "City Defendants."

Toward the end of the pilot program, St. Pierre and Drake arranged a secret meeting with Meffert and Perrin. At that meeting, the four individuals concocted the following kickback scheme: (1) Meffert would use his influence over the city government to land the Active-Southern Defendants the lucrative Crime Camera Project, and (2) in return, the City Defendants would take over CamSoft's wireless network integrator role on the Crime Camera Project and on all future Crime Camera System sales outside of New Orleans. Meffert also discussed using his influence toobtain marketing agreements with big technology vendors, including defendants, Dell and Ciber, Inc. ("Ciber"). Perrin agreed to the scheme. At some point, Meffert demonstrated the Crime Camera System to Kim Fury ("Fury"), Dell's Executive Director of State and Local Government Sales, telling Fury that the pilot program was highly confidential and that CamSoft designed the wireless network using Tropos' wireless networking equipment. Fury told Meffert that Dell would be interested in selling the Crime Camera System through its national and international sales channels.

Following the success of the pilot program, the City of New Orleans (sometimes, "the City") issued a Request for Proposals for the Crime Camera Project and ultimately awarded the Crime Camera Project contract to Southern in April 2004. Initially, work on the Crime Camera Project was performed by Southern through its contract with the City, and with participation by Active and CamSoft. Thereafter, on July 8, 2004, a second secret meeting took place between the Active-Southern Defendants, the City Defendants, and Steve Reneker, manager of Dell's Public Safety and Criminal Justice Division. These parties reached the following agreement: (1) Dell would market and sell the Crime Camera System nationally and internationally; (2) the Active-Southern Defendants would manufacture and sell its weatherized Sony cameras to Dell; and (3) the City Defendants would become a Dell Integrated Service Provider and act as the wireless network designer, integrator, and installer. In exchange, the Active-Southern Defendants turned over CamSoft's confidential and proprietary technical and business information regarding the Crime Camera System to the City Defendants and Dell.

The City Defendants also entered into a similar kickback scheme with defendant, Ciber. On May 7, 2004, Ciber hired Imagine as a subcontractor to work in New Orleans. On June 23, 2004, Mayor Nagin signed an executive order giving Meffert unilateral authority to make no-bid purchases through Ciber's GeneralServices Administration Contract ("GSA Contract") schedule of rates. See La. R.S. 39:1702(A) & 38:2212.1(E). Thus, Meffert was able to contract with companies, such as Ciber, without going through the process of obtaining competitive bids. Ciber also agreed to give additional subcontractor work to defendant, NetMethods, LLC ("NetMethods"), a company formed by Meffert and St. Pierre to receive proceeds from Crime Camera System sales obtained outside New Orleans. The subcontractor agreement between Ciber and NetMethods was needed to shield from scrutiny kickback payments St. Pierre made to Meffert and Mayor Nagin for awarding work inside New Orleans to Ciber and Dell.

On July 19, 2004, Southern signed...