Cellinfo, LLC v. Am. Tower Corp.

352 F.Supp.3d 127

CELLINFO, LLC, Plaintiff,

v.AMERICAN TOWER CORPORATION, American Tower LLC, American Tower do Brasil - Cessao De Infraestruturas Ltda, and ATC IP LLC, Defendants.

CIVIL ACTION NO. 18-11250-WGY

United States District Court, D. Massachusetts.

Filed December 19, 2018

Angela C. Tarasi, Pro Hac Vice, Brian Eutermoser, Pro Hac Vice, James P. Brogan, Pro Hac Vice, Kevin A. Lake, Pro Hac Vice, King & Spalding LLP, Denver, CO, David H. Rich, Todd & Weld, Boston, MA, for Plaintiff.

Harold Laidlaw, Pro Hac Vice, Mintz Levin Cohn Ferris Glovsky and Popeo PC, New York, NY, Kristina Cary, Pro Hac Vice, James M. Wodarski, Thomas H. Wintner, Daniel B. Weinger, Geoffrey A. Friedman, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, PC, Boston, MA, for Defendants.

MEMORANDUM OF DECISION

WILLIAM G. YOUNG, DISTRICT JUDGE

I. INTRODUCTION

This is a case abounding in irony. CellInfo, LLC ("CellInfo"), a Massachusetts-based business that works with wireless companies to improve their consumers' cellular coverage, Compl. ¶¶ 2, 19, ECF No. 1, brought this action against American Tower Corporation, American Tower LLC, American Tower do Brasil - Cessao de Infraestruturas Ltda ("American Tower do Brasil"), and ATC IP LLC ("ATC IP") (collectively, "American Tower") alleging misappropriation of confidential information and trade secrets in order to create unfair competition between the parties, breach of contract, unjust enrichment, unfair and deceptive trade practices, conversion, and aiding and abetting misappropriation of trade secrets. Compl. ¶¶ 1, 8.

American Tower Corporation owns, operates, and develops communications real estate, Defs.' Mem. Dismiss/Stay 1, ECF No. 18, and is the parent company of American Towers LLC, ATC IP, and American Tower do Brasil, Compl. ¶¶ 12-14.

CellInfo and American Tower engaged in business that included the purchase of lease options, site acquisition services, and consulting services. Compl. ¶¶ 21, 30, 43.

CellInfo and ATC IP entered into a Master Consulting Services Agreement (the "Agreement") on January 23, 2017. CellInfo's Mot. Prelim. Inj.: Master Consulting Services Agreement, Ex. 2 ("MCSA"), ECF No. 29-5. The Agreement defines certain professional and legal obligations between CellInfo and ATC IP that govern CellInfo's provision of consulting services to ATC IP. Compl. ¶¶ 42-48.

In reliance on the Agreement, American Tower filed a motion to dismiss or, in the alternative, stay and compel arbitration,¹ Defs.' Mot. Dismiss/Stay ("Defs.' Mot.") 1-2, ECF No. 17, which CellInfo opposed, Pl.'s Opp'n Mem. Dismiss/Stay ("Pl.'s Opp'n") 3-8, ECF No. 27.

The portion of the Agreement under contention here is the "Dispute Resolution" provision, article seven. Defs.' Mem. Dismiss/Stay 2-3, 6-15; see MCSA 13. The parties disagree over whether article seven, which compels arbitration of controversies between the parties (section 7.1), provides an exception to arbitration where the moving party seeks injunctive relief (section 7.2). Defs.' Mem. Dismiss/Stay 4-15; Pl.'s Opp'n 3-8; see MCSA 13-14. American Tower argues that sections 7.1 and 7.2 of the Agreement require that this Court stay and compel arbitration of this action, Defs.' Mem. Dismiss/Stay 5-17, while CellInfo insists that these sections preclude this Court from granting American Tower's motion to dismiss or stay, Pl.'s Opp'n 3-8.

II. PROCEDURAL HISTORY

In light of what follows, it is perhaps helpful to describe the course of proceedings in some detail. CellInfo filed its complaint with this Court on June 15, 2018. Compl. 26. Forty-five days later, American Tower filed a motion to dismiss CellInfo's complaint or, in the alternative, stay this action and compel arbitration, as well as an accompanying memorandum. Defs.' Mot. Dismiss/Stay 1-2; Defs.' Mem. Dismiss/Stay 18. Nearly a month passed; then, on August 27, 2018, CellInfo filed its opposition to American Tower's motion to dismiss, Pl.'s Opp'n 9, and -- signaling a change of course -- a motion to expedite discovery, CellInfo's Mot. Expedited Disc. ("Pl.'s Mot. Disc") 1-2, ECF No. 26.

The next day, CellInfo further moved for a preliminary injunction against American Tower. CellInfo's Mot. Prelim. Inj. 1-2, ECF No. 29. American Tower duly filed their opposition to CellInfo's motions for expedited discovery and preliminary injunction on September 14, 2018. Defs.' Mem. Opp'n Pl.'s Mot. Expedited Disc, ECF No. 34; Defs.' Mem. Opp'n Pl.'s Mot. Prelim. Inj., ECF No. 35.

On October 24, 2018, this Court heard argument on the motion to dismiss or stay this action. Hr'g Tr. 1, ECF No. 47. The Court expressed a willingness to collapse a further hearing on the preliminary injunction with trial on the merits, Fed. R. Civ. P. 65(a), and asked CellInfo when it wanted to try the case. Hr'g Tr. 3:18-23. Facing the prospect of an actual evidentiary hearing as opposed to dueling affidavits,² CellInfo promptly lost its appetite for emergency relief. While it welcomed the prospect of complete equitable relief, it indicated that a trial could wait until late January 2019. Hr'g Tr. 3:18-4:3. This Court then denied the motion to dismiss and turned to the preliminary injunction request. Hr'g Tr. 9:2, 11:9-10. American Tower agreed that there was a need to resolve the motion for preliminary injunction, but argued that, under the Agreement's arbitration clause, the Court's role was limited to considering whether to issue a "stand still" injunction. Hr'g Tr. 6:7-21. Everything else, American Tower argued, had to go to the arbitrators. Hr'g Tr. 6:23-25. Both parties agreed that the Court should construe the Agreement and resolve this initial question. Hr'g Tr. 9-11. Frankly baffled, the Court took the matter under advisement. Hr'g Tr. 11. As it turns out, both parties are wrong.

III. ANALYSIS

The way to construe an agreement is to start with the Agreement itself. This one has a broad arbitration clause. It is important to note that this is not "forced arbitration," that one-sided species of arbitration unconscionably forced on vulnerable consumers and workers and almost universally reviled,³ enforceable only due to the mandate of a slim majority of the Supreme Court. See American Express Co. v. Italian Colors Rest., 570 U.S. 228, 238-39, 133 S.Ct. 2304, 186 L.Ed.2d 417 (2013) ; AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 344-52, 131 S.Ct. 1740, 179 L.Ed.2d 742 (2011).

No. It appears that the broad arbitration clause here is the product of mutual negotiation among independent equals, each represented by skilled counsel. This is precisely the knowing mutual resort to arbitration to which the Federal Arbitration Act, 9 U.S.C. §§ 3 - 4, applies. The Court must strive therefore to give effect to the expressed intention of the parties.

Here, Section 7.1, entitled "Arbitration Procedure," provides that:

The Parties agree to submit any dispute, controversy, or claim arising out of or related to any portion of this Agreement other than those involving Article Six of this Agreement, or the creation, validity, interpretation, breach, or termination of this Agreement that the Parties are unable to resolve through informal discussions, to binding arbitration in accordance with the provisions of this article. The arbitration will be: (a) held in Suffolk County, Massachusetts; (b) conducted before a panel of three (3) arbitrators, each knowledgeable in fields related to the subject matter of the dispute, one chosen by each Party within ten (10) days of a demand for arbitration and the third by the two (2) so chosen; (c) governed by the Commercial Arbitration Rules of the American Arbitration Association ("AAA") except as otherwise expressly provided in this section; and (d) administered by the AAA unless the Parties agree otherwise. The arbitrators: (a) may not add to, amend or disregard this Agreement in whole or in any part; (b) will allow such discovery as is appropriate to the purposes of arbitration in accomplishing fair, speedy and cost effective resolution of disputes; (c) will reference the rules of evidence of the Federal Rules of Civil Procedure then in effect in setting the scope and direction of such discovery; and (d) will not be required to make findings of fact or render opinions of law.

MCSA 13. Additionally, section 7.2, entitled "Enforcement," states that:

Other than with respect to those matters involving the warranties, indemnities, and other matters addressed by Article Six of this Agreement, or matters involving injunctive relief as a remedy, or any action necessary to enforce the award of the arbitrators, the provisions of this article are a complete defense to any suit, action, or other proceeding instituted in any court or before any administrative tribunal with respect to any dispute, controversy or claim between the Parties hereto and arising out of or related to this Agreement or the creation, validity, interpretation, breach, or termination of this Agreement. The decision of and award rendered by the arbitrators will be final and binding on the Parties. Nothing in this article prevents the Parties from exercising any rights set forth in this Agreement, including without limitation termination rights.

Id. at 13-14.

Congress enacted the Federal Arbitration Act "to ensure that courts would honor the contractual agreements of parties who choose to resolve their disputes by means of the informal arbitration procedure." New England Energy, Inc. v. Keystone Shipping Co., 855 F.2d 1, 3 (1st Cir. 1988). The Federal Arbitration Act requires courts to "treat arbitration agreements in the same way as other contracts and ‘enforce them according to their terms.’ " Farnsworth v. Towboat Nantucket Sound, Inc., 790 F.3d 90, 96 (1st Cir. 2015) (quoting Rent-A-Center, W., Inc. v. Jackson, 561 U.S. 63, 67, 130 S.Ct. 2772, 177 L.Ed.2d 403 (2010) ). Section 3 of the Federal Arbitration Act allows parties to an arbitration agreement to move the court "to stay a judicial proceeding when the matter before the court involves an issue governed...