SOLIDFX LLC v. Jeppesen Sanderson Inc

Filing 218

ORDER Granting in Part and Denying in Part Defendant's 130 Motion for Summary Judgment and Denying Plaintiff's 96 Motion for Partial Summary Judgment. Summary Judgment in favor of Defendant is ENTERED on Plaintiff's Sherman A ct claims (Claims Five, Six, Seven, Eight, Nine and Ten of the Second Amended Complaint); Summary Judgment is DENIED as to all other claims; The following claims shall proceed to trial as previously scheduled on April 13, 2014: (1) Breach of Contra ct (Claim One); (2) Breach of ContractImplied Covenant of Good Faith and Fair Dealing (Claim Two); (3) Promissory Estoppel (Claim Three); (4) Negligent Misrepresentation (Claim Eleven); (5) Fraud (Claim Twelve); and (6) Intentional Interference with Prospective Business Relations (Claim Thirteen); Following trial, if necessary, the Court will determine Plaintiff's claim for Declaratory Judgment (Claim Four); and Not later than April 5, 2013, the parties shall inform the Court as to their position on whether, given the Court's ruling in this Order, the trial of this matter can be conducted in less than the currently scheduled 13 days. If the parties agree that the trial will be significantly shorter, the Court may sua sponte reset the trial. By Judge William J. Martinez on 03/22/13. (alvsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 11-cv-01468-WJM-BNB
SOLIDFX, LLC,
Plaintiff,
v.
JEPPESEN SANDERSON, INC.,
Defendant.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT

Plaintiff SolidFX, LLC (“Plaintiff”) brings this action against Defendant Jeppesen
Sanderson, Inc. (“Defendant”) alleging violations of the Sherman Antitrust Act, 15
U.S.C. §§ 1 et seq., as well as common law contract and quasi-contract claims. (Sec.
Am. Compl. (“SAC”) (ECF No. 158) pp. 20-37.) Before the Court are the following
motions: (1) Plaintiff’s Partial Motion for Summary Judgment (ECF No. 96); and (2)
Defendant’s Motion for Summary Judgment (ECF No. 130). For the reasons set forth
below, Plaintiff’s Motion is denied, and Defendant’s Motion is granted in part and denied
in part.
I. LEGAL STANDARD
Summary judgment is appropriate only if there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal Co.,

Inc., 41 F.3d 567, 569 (10th Cir. 1994). Whether there is a genuine dispute as to a
material fact depends upon whether the evidence presents a sufficient disagreement to
require submission to a jury, or conversely, is so one-sided that one party must prevail
as a matter of law. Anderson v. Liberty Lobby, 477 U.S. 242, 248-49 (1986); Stone v.
Autoliv ASP, Inc., 210 F.3d 1132 (10th Cir. 2000); Carey v. U.S. Postal Service, 812
F.2d 621, 623 (10th Cir. 1987).
A fact is “material” if it pertains to an element of a claim or defense; a factual
dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a
reasonable party could return a verdict for either party. Anderson, 477 U.S. at 248.
The Court must resolve factual ambiguities against the moving party, thus favoring the
right to a trial. Houston v. Nat’l General Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).
II. FACTUAL BACKGROUND
The relevant facts1, viewed in the light most favorable to the non-movant, are as
follows.
Defendant Jeppesen is a subsidiary of the Boeing Company and is a creator and
seller of terminal charts (“Terminal Charts” or “Charts”) that graphically represent details
of airports and their surroundings; it has been in this business since 1934. (ECF No.
1282 ¶¶ 1, 3; ECF No. 164 ¶ 6.) Defendant’s Charts are produced using publically

1

The parties’ briefing includes over 600 numbered paragraphs of “undisputed” facts,
many of which are, in fact, hotly disputed. In this Order, the Court sets forth only the facts that
are pertinent to its analysis of the issues.
2

Because there are cross-motions for summary judgment and nearly four hundred
exhibits attached thereto, for ease of reference, the Court will cite to the parties’ briefs for
record support.

2

available information which it compiles into a unique proprietary format that includes
Defendant’s own symbology, colors, fonts, and distinctive layout. (Id. ¶¶ 5-6.)
Defendant’s Terminal Charts are copyrighted. (Id. ¶ 8.)
Plaintiff SolidFX is a small software company that creates software applications
to access, organize, and use critical data. (ECF No. 164 ¶ 1.) Both principals of
SolidFX are private pilots with substantial experience and training in the technology
field. (Id. ¶¶ 2-5.)
Historically, pilots have carried heavy binders of paper terminal charts. (ECF No.
164 ¶ 45.) Over the past 15 years, charts have increasingly been distributed
electronically, but limitations have existed due to the electronic devices’ (such as laptop
computers) limited battery life, awkwardness, and efficiency. (ECF No. 128 ¶ 4; 164 ¶
45.) In 2008, Plaintiff anticipated rapid development in the efficiency, battery life, and
display technology of mobile computing devices and began developing software that
would allow pilots to access terminal charts on these devices in the cockpit. (ECF No.
164 ¶ 47.) At that time, there were few mobile devices on the market that would
support third-party software development. (Id. ¶ 48.)
In November 2008, Defendant contacted Plaintiff about forming a business
relationship in which Plaintiff would develop software for pilots to access Defendant’s
Terminal Charts on e-book viewers. (Id. ¶ 49.) Plaintiff began developing software to
display Defendant’s Charts on an e-book viewer manufactured by iRex Technologies
(“iRex”). (Id. ¶ 48.) Plaintiff touted the advantages of using an e-book viewer for
displaying Defendant’s Terminal Charts because the e-ink technology required limited

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battery usage and was visible in bright sunlight, as was required for use in a cockpit.
(ECF No. 128 ¶ 71.)
In April 2009, Plaintiff demonstrated its iRex prototype to Defendant at an
aviation convention. (ECF No. 128 ¶ 76.) The parties then agreed to move forward
with their relationship and began negotiating a licensing agreement (“Agreement”). (Id.
¶ 77.) The first draft of the Agreement specifically referenced the iRex device and
limited Plaintiff’s licensing rights to that device only. (ECF No. 164 ¶ 58.) Plaintiff sent
a revised draft to Defendant that, in relevant part, used the more general term “e-book
viewer”. (Id. ¶ 59.)
On December 31, 2009, the final version of the Agreement was executed by the
parties. (Id. ¶ 56.) The relevant portions of the Agreement are discussed in the
Analysis section below. However, the Agreement generally gave Plaintiff a license to
develop a “data management reader solution” that works in conjunction with an e-book
viewer to access, use, and display Jeppesen’s copyrighted Terminal Charts. (Agmt.
(ECF No. 128-2) § 1.6.) In addition to the Terminal Charts, the Agreement gave
Plaintiff a license to use Defendant’s copyrighted Jeppesen Integration Toolkits (“JIT”)
which are proprietary products that allow the integration of the Terminal Charts in third
party systems. (Id. § 1.5.) The term of the Agreement was for a period of five years,
and was renewable. (Id. § 5.)
Under the Agreement, Defendant was to provide Plaintiff with the JIT and
technical support for the development of the software necessary to display the Terminal
Charts on an e-book viewer. (Agmt. App. § 1.2.2.) Plaintiff was not permitted to alter

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the Terminal Charts in any manner. (Id. § 1.2.2.2.) Plaintiff was responsible for the
design and development of the “System” (the definition of which will be discussed later)
and was required to install the most current worldwide database of Defendant’s
Terminal Charts onto every “System” prior to its delivery to the customer. (Id. §§ 1.1.1
& 1.3.1.)
Defendant provided Plaintiff with the JIT for use with several different iRex
models and Plaintiff began selling the devices in July 2009.3 (ECF No. 164 ¶ 67.) The
iRex device was not widely available in the retail market so Plaintiff would purchase the
device, load its software, and sell the combined hardware and software to the
consumer. (Id.) Plaintiff received excellent feedback from its customers and high
praise in the aviation industry. (Id. ¶ 70.)
In January 2010, Apple announced the soon-to-be released iPad. (Id. ¶ 71.)
The iPad does not employ e-ink technology; rather, it features an LED-backlit color
display. (ECF No. 128 ¶ 123.) The iPad can be used to view and read e-books, but it
also has the capacity to browse the web, play games, send e-mail, watch videos, listen
to music, and take photographs. (Id. ¶ 122.) Because of its functionality, the iPad is
typically referred to as a tablet computer. (Id. ¶ 124.)
Shortly after the iPad was announced, Plaintiff registered with Apple as a
developer for apps on the iPad. (ECF No. 164 ¶ 72.) In January 2010, Plaintiff
requested the JIT from Defendant so that Plaintiff could develop an app for the iPad.

3

It appears Plaintiff began selling the devices before the Agreement was fully executed.
However, the record shows that the material provisions of the Agreement had been negotiated
and agreed upon before July 2009. (ECF No. 128 ¶ 79.)

5

(Id. ¶ 73.) Plaintiff proposed the development of a “software only” solution for the iPad
that would not involve pre-loading Defendant’s Terminal Charts prior to the purchase of
the iPad. (ECF No. 128 ¶ 139.) At that time, Defendant’s representative indicated that
they believed such “software only” solution would fall within the ambit of the December
31, 2009 Agreement. (Id. ¶ 140; ECF No. 164 ¶ 74.)
Despite this understanding, Defendant refused to provide Plaintiff the JIT
necessary to develop an iPad app because it was determining its own strategy for the
iPad. (ECF No. 164 ¶ 75.) Between February and May 2010, Plaintiff repeatedly
informed Defendant that it was moving forward with plans to develop an iPad app that
would display Defendant’s Terminal Charts. (ECF No. 128 ¶¶ 147-51.) Defendant did
not inform Plaintiff that it had changed its position on the scope of coverage of the
Agreement, and that it was now taking the position that the iPad app did not fall within
the ambit of the Agreement. (ECF No. 164 ¶ 79.)
On May 26, 2010, Defendant informed Plaintiff that it would not allow others,
including Plaintiff, to have the JIT for the iPad. (Id. ¶ 81.) Defendant announced its
own iPad app on May 27, 2010. (Id. ¶ 82.) In July 2010, Defendant launched its
“Mobile TC” app in the Apple Store for the iPad. (ECF No. 128 ¶ 172.) Mobile TC is
available for free download and, to use the app, a purchaser must have a
corresponding subscription to Defendant’s Terminal Charts. (Id. ¶¶ 173-74.) In
February 2011, Defendant released a second iPad app—Jeppesen Mobile FD—which
includes en route charts and other features in addition to the capabilities included in the
Mobile TC app. (Id. ¶ 179.) The Jeppesen Mobile FD app is also offered to

6

subscribers for free in the Apple store. (Id. ¶ 180.)
Defendant does not attribute any revenue to its apps and has no plans to begin
charging for their download. (Id. ¶¶ 173, 180-81.) The subscription price for
Defendant’s terminal charts increased only nominally between 2010 and 20011 and did
not increase in 2012. (Id. ¶ 185.) As of May 2012, Defendant’s apps had been
downloaded more than 230,000 times. (ECF No. 164 ¶ 135.) Defendant continues to
offer its Terminal Charts in paper form, on Windows-based computers via its JeppView
system, by CD-ROM, via built-in panel systems in airplanes, or through Plaintiff’s iRex
products. (ECF No. 128 ¶ 184.)
The parties’ Agreement also contemplates that Defendant will support Plaintiff’s
development of the iRex device for commercial customers using Defendant’s tailored
terminal charts. (Agmt. § 1.3.1.) The data set necessary for Plaintiff to develop a
workable iRex device marketable to commercial customers is called JIT 2.2. (ECF No.
164 ¶ 169.) Defendant provided Plaintiff with an “evaluation set” of JIT 2.2 with which
Plaintiff was able to develop a prototype of the iRex for commercial customers. (ECF
No. 128 ¶¶ 199-200.) Defendant estimated that development of the full version of JIT
2.2 would require about 2 ½ months of effort. (Id. ¶ 196.) Defendant would not spend
these resources until Plaintiff had a commercial customer that had committed to
purchasing the iRex device. (Id. § 203.) Despite interest from a number of commercial
airlines, Plaintiff was unable to obtain a customer commitment without a fully
functioning prototype. (ECF No. 164 ¶¶ 172-74.)

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III. ANALYSIS
This case involves essentially three categories of claims: (1) those arising out of
the Sherman Act and alleging antitrust violations; (2) common law contract claims; and
(3) common law tort and quasi-contract claims arising out of the December 31, 2009
Agreement. The Court will discuss each category of claims below.
A.

Sherman Act Claims
Plaintiff brings six Sherman Act claims: (1) Per Se Illegal Tying in violation of

Section 1; (2) Illegal Tying under the Rule of Reason in violation of Section 1; (3)
Monopolization in violation of Section 2; (4) Attempted Monopolization in violation of
Section 2; (5) Monopolization of the Combined Market for Terminal Charts and Apps in
violation of Section 2; and (6) Attempted Monopolization of the Combined Market for
Terminal Charts and Apps in violation of Section 2. (SAC pp. 23-32.) Defendant
moves for summary judgment on all six antitrust claims. The Court will discuss the
Section 1 and Section 2 claims separately below.
1.

Section 1—Illegal Tying

Plaintiff’s Section 1 claims both involve allegations that Defendant “uses its
monopoly power in the Terminal Charts Market to force consumers in the Apps Market
to choose a product in that Downstream Market that those consumers would not
choose in a competitive market.” (SAC ¶ 105.)
Section 1 of the Sherman Act provides, “Every contract, combination in the form
of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several
States, or with foreign nations, is hereby declared to be illegal.” 15 U.S.C. § 1. A tying

8

arrangement is an agreement by a party to sell one product—the “tying product”—only
on condition that the buyer also purchase a second product—the “tied product”—or at
least agree not to buy that product from another supplier. Eastman Kodak Co. v. Image
Technical Servs., Inc., 504 U.S. 451, 461-62 (1992) (citing Northern Pac. Ry. Co. v.
United States, 356 U.S. 1, 5-6 (1958)).
The elements of a Section 1 tying4 claim, are “(1) two separate products, (2) a
tie—or conditioning of the sale of one product on the purchase of another, (3) sufficient
economic power in the tying product market, and (4) a substantial volume of commerce
affected in the tied product market.” Multistate Legal Studies, Inc. v. Harcourt Brace
Jovanovich Legal & Prof. Publ’s., 63 F.3d 1540, 1546 (10th Cir. 1995). Because the
Court finds that Plaintiff has not shown a genuine dispute of fact as to the second
prong, which is an essential element of a tying claim, the Court will address only this
element.
For an illegal tie-in to exist, “purchases of the tying product must be conditioned
upon purchases of a distinct tied product.” Fox Motors, Inc. v. Mazda Distribs., Inc.,
806 F.2d 953, 957 (10th Cir. 1986). While not dispositive, it is notable that Defendant
gives its app away for free.5 That is, Defendant does not require anyone to purchase its
4

Though Plaintiff brings a tying claim under both the per se analysis and the rule of
reason analysis, the test for these claims appears to be the same. United States v. Microsoft
Corp., 87 F.Supp.2d 30, 47 (D.D.C. 2000) (noting that the four elements of an unlawful tying
claim are the same regardless of whether the arrangement is subjected to the per se or the rule
of reason analysis). Neither party has drawn a distinction between the two in its papers and,
applying the law to the facts of this case, the Court has been unable to discern any meaningful
distinction here between the per se and the rule of reason analysis.
5

There is evidence that commercial customers are required to purchase the app for
$9.99 through Apple’s volume purchase program. (Buhl Dep. at 234.) However, this amount
was imposed by Apple and has since been rescinded. (ECF No. 180-95.) Thus, the Court

9

app in order to utilize the app to view the Terminal Charts on an iPad or other similar
device. There is also no evidence showing that Defendant has raised the prices of its
Terminal Charts subscription to reflect the cost of its app. Compare Multistate Legal
Studies, 63 F.3d at 1548 (where cost of tying product was raised $50 after tied product
was introduced, a jury could infer that the tied product was not “free”).
More significantly, however, Plaintiff has failed to show that Defendant requires a
purchaser of its Terminal Charts subscription to also “purchase” its app. Instead, the
record shows that any purchaser can obtain the Terminal Charts in hard copy/paper
format, by CD-ROM, on a Windows-based tablet, laptop or desktop computer, or on an
IRex device purchased from Plaintiff. (Phillips Dep. at 231-32; McDonald Dep. at 49092.) Only if the purchaser wants to view the Charts on an iPad is he or she required to
download Defendant’s app.
Additionally, there is no evidence that Defendant disadvantages its customers in
any way if they choose to access the Terminal Charts in some format other than
through its app. Compare Cascade Health Solutions v. PeaceHealth, 515 F.3d 883,
914-16 (9th Cir. 2008) (finding that there was a tying arrangement where a customer
who chose not to use the tied product would have to pay more for the tying product).
The record plainly shows that a purchaser can download the Terminal Charts to up to
four devices (such as a computer, avionic system, or an iPad) before having to pay any
additional subscription rate. (Abbot Dep. at 182-83; 235-36.)
The cases cited by Plaintiff in support of its argument that there was a tying

finds no evidence showing that Defendant has charged or is currently charging a fee for its app.

10

agreement in this case are inapposite. In all of these cases, the seller refused to sell
the tying product without the tied product. See Heartland Payment Sys., Inc. v.
MICROS Sys., 2008 WL 4510260, *8 (D.N.J. Sept. 29, 2008) (tying arrangement
existed when defendant would only sell its MICROS POS machine with a certain
processor); Parsons v. Bright House Networks LLC, 2010 WL 5094258, *5 (N.D. Ala.
Feb. 23, 2010) (finding a tying arrangement when cable company would not allow a
subscription unless the subscriber also rented a cable box from the company); In re
Cox Enter., Inc., 2010 WL 5136047, *3 (W.D. Okla. Jan. 19, 2010) (same). In this
case, Defendant continues to sell its Terminal Charts subscription to purchasers that do
not have its app.
Because Plaintiff has not shown that a purchaser was required to obtain the tied
product—Defendant’s app—in order to be able to purchase the tying product—the
Terminal Charts subscription—it has failed to show that there was a tying arrangement
in this case. See Eastman Kodak, 504 U.S. at 461-62 (“A tying arrangement is an
agreement by a party to sell one product but only on the condition that the buyer also
purchases a different (or tied) product, or at least agrees that he will not purchase that
product from any other supplier.”) (internal quotation omitted).
Because the Court has found no dispute of fact as to whether there was a tying
arrangement—which is an essential element of a Section 1 claim—Plaintiff has failed to
meet its summary judgment burden. Therefore, Defendant’s Motion for Summary
Judgment is granted in so far as it seeks summary judgment on Plaintiff’s Section 1
claim.

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2.

Section 2—Monopolization Claims

Section 2 of the Sherman Act prohibits monopolization or attempted
monopolization of any part of interstate trade or commerce. 15 U.S.C. § 2. “The
offense of monopoly under § 2 of the Sherman Act has two elements: (1) the
possession of monopoly power in the relevant market and (2) the willful acquisition or
maintenance of that power as distinguished from growth or development as a
consequence of a superior product, business acumen, or historic accident.” United
States v. Grinnell Corp., 384 U.S. 563, 570-71 (1966).
For purposes of summary judgment, the Court assumes that Defendant has
monopoly power in the relevant market and, therefore, that Plaintiff has established the
first element of its monopolization claim. Thus, the Court’s analysis will focus solely on
the second element. “The second element of a § 2 claim is the use of monopoly power
‘to foreclose competition, to gain a competitive advantage, or to destroy a competitor.’”
Eastman Kodak, 504 U.S. at 482-83. This is generally referred to as anti-competitive or
predatory behavior.
“‘Anticompetitive conduct’ can come in too many different forms, and is too
dependent upon context, for any court or commentator ever to have enumerated all the
varieties.” Caribbean Broad. Sys., Ltd. v. Cable & Wireless PLC, 148 F.3d 1080, 1087
(D.C. Cir. 1998). In this case, Plaintiff alleges that Defendant engaged in anticompetitive behavior by refusing to enter into an agreement with Plaintiff to develop an
app and by refusing to provide access to an essential facility. Each of these theories
will be discussed below.

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a.

Refusal to Deal

Plaintiff alleges that Defendant’s refusal to license its Terminal Charts constitutes
anti-competitive behavior. (ECF No. 164 at 33-34.) A refusal to deal may be one of the
mechanisms by which a monopolist maintains its power. Rural Tel. Serv. Co., Inc. v.
Feist, 957 F.2d 765, 768 (10th Cir. 1992). In determining whether a monopolist which
has refused to deal with a competitor has acted lawfully or in violation of § 2, the Court
applies a two-part test: (1) the effects of the monopolist’s conduct; and (2) the
monopolist’s motivation. Id. To prevail on this claim, Plaintiff must show that
Defendant’s conduct was “intended to or did have some anti-competitive effect beyond
the loss of its own business.” Id. “[A]s a general matter a firm can refuse to deal with
its competitor. But such a right is not absolute; it exists only if there are legitimate
competitive reasons for the refusal.” Eastman Kodak, 504 U.S. at 483 n.32.
Defendant contends that it has a legitimate basis for its refusal to license its
Terminal Charts to Plaintiff, i.e., it was properly exercising its right to refuse to license
its copyrighted work. (ECF No. 128 at 31-33.) “Intellectual property rights do not confer
a privilege to violate the antitrust laws.” In re Indep. Serv. Orgs. Antitrust Litig. CSU,
LLC v. Xerox Corp., 203 F.3d 1322, 1325 (Fed. Cir. 2000) (hereafter “Xerox”). But it
also true that antitrust laws do not negate the intellectual property holder’s right to
exclude others from intellectual property. Intergraph Corp. v. Intel Corp., 195 F.3d
1346, 1362 (Fed. Cir. 1999).
The most sweeping analysis of the interplay between the rights conferred by the
Copyright Act on a holder of a copyright and the prohibition on anticompetitive behavior

13

established by the Sherman Act is Data General Corportation v. Grumman Systems
Support Corporation, 36 F.3d 1147, 1182 (1st Cir. 1994). In Data General, the First
Circuit noted that the Copyright Act grants a copyright owner the exclusive right to
distribute the protected work by “transfer of ownership, or by rental, lease, or lending.”
Id. (citing 17 U.S.C. § 106). By enacting the Copyright Act, “Congress itself made an
empirical assumption that allowing copyright holders to collect license fees and exclude
others from using their works creates a system of incentives that promotes consumer
welfare in the long term by encouraging investment in the creation of desirable artistic
and functional works of expression.” Data Gen., 36 F.3d at 1186-87. However,
because the Copyright Act does not purport to limit the Sherman Act, the First Circuit
determined that they must be read harmoniously. Thus, the First Circuit held that “while
exclusionary conduct can include a monopolist’s unilateral refusal to license a
copyright, an author’s desire to exclude others from use of its copyrighted work is a
presumptively valid business justification for any immediate harm to consumers.” Data
Gen., 36 F.3d at 1187.
The Tenth Circuit has neither explicitly adopted nor rejected the First Circuit’s
reasoning. However, in an opinion in which the Federal Circuit was predicting how the
Tenth Circuit would rule, it adopted the reasoning in Data General. See Xerox, 203
F.3d at 1328-29 (“We believe the First Circuit’s approach is more consistent with both
the antitrust and the copyright laws and is the standard that would most likely be
followed by the Tenth Circuit.”); see also Serv. & Training, Inc. v. Data Gen. Corp., 963
F.2d 680, 686 (4th Cir. 1992) (holding that the Sherman Act “does not entitle a

14

purchaser to buy a product that the seller does not wish to offer for sale.”); In re Educ.
Testing Serv. Praxis Principles of Learning, 429 F. Supp. 2d 752, 759 (E.D. La. 2005)
(failure to release its copyrighted testing materials to competitors was not exclusionary
conduct).
Based on this case law, the Court finds that Defendant’s assertion of its
copyright is a presumptively valid justification for refusing to license its Terminal Charts
and/or JIT to Plaintiff. Plaintiff contends that this justification still does not entitle
Defendant to summary judgment because it is pretextual and Defendant’s true
motivation for refusing to license its Terminal Charts had nothing to do with its
copyright.6 (ECF No. 164 at 35-36.) The Court agrees with Plaintiff that an antitrust
defendant’s business justification must be legitimate to protect it from an antitrust
violation. Kodak, 504 U.S. at 438 n.32. However, the case law holds that assertion of
one’s copyright interests is per se legitimate. Xerox, 203 F.3d at 1329; Data Gen., 36
F.3d at 1187. The only exception to the presumption recognized by the Federal Circuit
was if the holder of the copyright protection had come into such right in an unlawful
manner. Xerox, 203 F.3d at 1329. There is no allegation that Defendant obtained its
copyright in its Terminal Charts in any unlawful manner; rather, it is undisputed that
Defendant’s prowess in the terminal charts market is the result of years of experience in

6

The viability of the pretext argument in the Tenth Circuit is in significant dispute. The
case relied on by the Plaintiff in support of this contention was rejected by the Federal Circuit in
Xerox and has otherwise been criticized. See Xerox, 203 F.3d at 128; Schor v. Abbott Labs.,
457 F.3d 608, 613-14 (7th Cir. 2006). On the other hand, the Federal Circuit (predicting how
the Tenth Circuit would rule) has held that a copyright holder’s presumption of a valid business
judgment can be overcome only by a showing that the copyright was obtained in violation of the
law or that the copyright holder exceeded the scope of the copyright. Xerox, 203 F.3d at 129.

15

the industry. (ECF No. 128 ¶¶ 1-4.) Thus, the Court finds that Plaintiff has failed to
introduce any evidence that rebuts Defendant’s legitimate business justification—its
copyright in the Terminal Charts and/or the JIT—for its refusal to license such works to
Plaintiff.
Plaintiff also argues that Defendant’s copyright in its Terminal Charts is not
implicated at all in this case because Plaintiff’s app is a separately copyrightable
software that does not fall within the copyright for the Charts. (ECF No. 164 at 34-35.)
Specifically, Plaintiff contends: “Because the apps provide only a means for displaying
terminal charts, they are excluded from Jeppesen’s claimed copyright.” (Id. at 34.)
However, it is undisputed that, in order to develop its app, Plaintiff needs access to
Defendant’s JIT, for which Defendant also holds a copyright. (ECF No. 164 ¶ 113.)
Additionally, Defendant’s copyright grants it the exclusive right to “display” or authorize
the “display” of its copyrighted Terminal Charts. See 17 U.S.C. § 106. It is undisputed
that the sole purpose of Plaintiff’s app is to provide Defendant’s customers with a
means of “displaying” Defendant’s Terminal Charts on their mobile devices. (ECF No.
164 at 35.) Because Defendant has the right to control the display of its copyrighted
Terminal Charts, as well as the right to control the use of its copyrighted JIT, Plaintiff’s
argument that its app does not implicate Defendant’s copyrights is not persuasive.
Moreover, even if the refusal to deal did not invoke Defendant’s copyright, the
outcome would be the same. Typically, unilateral refusals to deal are lawful. See
Trinko, 540 U.S. at 408 (“[A]s a general matter, the Sherman Act does not restrict the
long recognized right of a trader or manufacturer engaged in an entirely private
business, freely to exercise his own independent discretion as to parties with whom he
16

will deal.”). “The Sherman Act does not force [a company] to assist a competitor in
eating away its own customer base.” Christy Sports, LLC v. Deer Valley Resort Co.,
555 F.3d 1188, 1197 (10th Cir. 2009). Even if a company has an ongoing relationship
with a competitor and later changes course, so long as a business proffers some
business reason for its decision, such decision is not precluded by the Sherman Act
(though it may give rise to liability under a contract or tort theory). Id. at 1196; see also
Four Corners Nephrology Assoc., P.C. v. Mercy Med. Ctr., 582 F.3d 1216, 1225 (10th
Cir. 2009) (courts should impose a duty to deal “very cautiously because of the
uncertain virtue of forced sharing and the difficulty identifying and remedying
anticompetitive conduct by a single firm.”) (quoting Trinko, 540 U.S. at 408). Thus,
absent some showing that Defendant’s reason for refusing to deal with Plaintiff was
actually anticompetitive, Plaintiff cannot prevail on its Section 2 claim.
To avoid this case law, Plaintiff argues that Defendant’s refusal to enter into a
licensing agreement falls under the ambit of unlawful conduct created by Aspen Skiing
Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585 (1985). Specifically, Plaintiff
contends that, because the parties were previously engaged in a cooperative and
profitable venture, from which Defendant unilaterally withdrew, Defendant’s conduct
was anti-competitive. However, the Court finds this argument unpersuasive. The
Supreme Court has recognized that Aspen Skiing was an exceptional case that lies “at
or near the outer boundary of § 2 liability.” Verizon Commc’ns, Inc. v. Trinko, 540 U.S.
398, 409 (2004). Unlike the relationship in Aspen Skiing, the parties here had been in
business together for less than one year when the issue regarding the development of

17

an iPad app arose. See Eatoni Ergonomics v. Research in Motion Corp., 826 F. Supp.
2d 705 (S.D.N.Y. 2011) (Aspen Skiing did not apply where parties’ relationship was less
than a year). Additionally, and of greater importance here, Aspen Skiing did not involve
a party’s copyright, nor was the subject matter of the dispute there intellectual property
owned by one of the parties. Thus, the Court finds that this case does not fall within the
narrow purview of Aspen Skiing and that Plaintiff has not shown that Defendant’s
refusal to license its Terminal Charts and/or JIT was anticompetitive.
In sum, the Court finds that Plaintiff has failed to establish a genuine dispute of
fact as to whether Defendant’s refusal to deal constituted anticompetitive conduct.
Thus, summary judgment is appropriate on Plaintiff’s theory that Defendant’s refusal to
deal was an antitrust violation.
b.

Refusal to provide access to an essential facility

Plaintiff also argues that Defendant engaged in anticompetitive behavior by
failing to provide Plaintiff access to an essential facility. (ECF No. 164 at 50-51.)
Specifically, Plaintiff contends that access to the JIT is “essential for a software
developer to compete in the apps market because it enables apps to read the language
of Jeppesen’s worldwide terminal charts.” (Id. at 50.)
The Court notes that the viability of the “essential facilities” theory of
anticompetitive conduct has been questioned by both the Supreme Court and the Tenth
Circuit. See Trinko, 540 U.S. at 410-11 (noting that the Court has “never recognized
such a doctrine” and “[t]o the extent respondent’s ‘essential facilities’ argument is
distinct from its general § 2 argument, we reject it”); Four Corners, 582 F.3d at 1222

18

(noting the Supreme Court’s skepticism about the “essential facilities doctrine”).
However, even assuming the doctrine applies in this circuit, Plaintiff has not shown that
it applies in this case.
None of the cases cited by Plaintiff in support of its essential facility theory
involve intellectual property. As one court has noted: “To find a patent an ‘essential
facility’ to which [the patentee] must provide access would subvert the plain meaning
and purpose of the Patent Act.” Applera Corp. v. MJ Research, Inc., 349 F. Supp. 2d
338, 348 (D. Conn. 2004); see also Morris Commc’ns Corp. v. PGA Tour, Inc., 235 F.
Supp. 2d 1269, 1285 (M.D. Fla. 2002) (“This Court can find no case to indicate that
access to proprietary information, not in the public domain, is an essential facility. . . .
Many competitors would compete more efficiently with access to proprietary
information, but a court’s role is not to force access to proprietary information in the
name of competition, as that would reduce incentive to innovate and ultimately harm
consumers.”). The same reasoning would apply to the rights granted a copyright holder
by the Copyright Act.
Defendant also contends that its JIT and/or Terminal Charts are not an essential
facility because there are other companies that produce similar products. The Court
agrees. To prevail on an essential facilities claim, Plaintiff must allege “more than
inconvenience, or even some economic loss; it must allege that an alternative to the
facility is not feasible.” Eatoni Ergonomics, Inc. v. Research in Motion, 486 F. App’x
186, 190 (2d Cir. 2012). The record shows that its Terminal Charts are developed from
public data and that there are other companies that create Terminal Charts. (ECF No.
128 ¶ 5.) The fact that Defendant’s Charts are the “industry standard” does not mean
19

that they are “essential” for purposes of antitrust law. See Data Gen. Corp. v. Gumman
Sys. Support, 761 F. Supp. 2d 185, 192 (D. Mass. 1991) (“[A] better mousetrap is not
necessarily an essential facility.”). Thus, the Court finds that Plaintiff has failed to show
that Defendant’s copyrighted Terminal Charts and/or its JIT based thereon are essential
facilities. See Corsearch, Inc. v. Thomson & Thomson, 792 F. Supp. 305, 333 (S.D.N.Y
1992) (copyrighted database is not an essential facility because it is based on public
records and can be duplicated).
c.

Conclusion

In sum, to survive summary judgment on its § 2 claim, Plaintiff must show a
genuine dispute of fact as to whether Defendant’s monopoly in the relevant market was
the result of “the willful acquisition or maintenance of that power as distinguished from
growth or development as a consequence of a superior product, business acumen, or
historic accident.” Grinnell Corp., 384 U.S. at 570-71. As discussed above, the Court
finds that Plaintiff has not shown that Defendant’s refusal to deal with Plaintiff was
anticompetitive conduct. The Court also finds that Plaintiff has failed to establish that
the essential facility doctrine applies. Rather, the record shows that Defendant’s
prowess in the Terminal Charts market is the result of years of hard work and that its
refusal to license its Terminal Charts and JIT are proper uses of its exclusive authority
to license its copyrighted material. Accordingly, the Court grants Defendant’s Motion for
Summary Judgment with respect to Plaintiff’s Monopolization Claims.
3.

Section 2—Attempted Monopolization

Plaintiff also brings claims under § 2 of the Sherman Act alleging that Defendant
attempted to monopolize the market for terminal charts and apps. (SAC ¶¶ 130-134;
20

140-143.) In this circuit, a plaintiff bringing an attempted monopolization claim must
allege the following: (1) that the defendant has engaged in predatory or anticompetitive conduct; (2) with a specific intent to monopolize; and (3) a “dangerous
probability” of achieving monopoly power. Christy Sports, 555 F.3d at 1992. The third
element of an attempted monopolization claim requires consideration of “the relevant
market and the defendant’s ability to lessen or destroy competition in that market.” Id.
In the briefing, the parties do not distinguish between Plaintiff’s monopolization
claims (discussed above) and the attempted monopolization claims. For the reason
discussed above, the Court finds that Plaintiff has failed to show that Defendant
engaged in any predatory or anticompetitive conduct with the intent to monopolize.
Specifically, the Court finds that Defendant’s refusal to license its copyrighted Terminal
Charts and/or JIT was not anticompetitive. Moreover, to the extent Defendant’s refusal
to license its copyrighted material could be characterized as anticompetitive, Plaintiff
has failed to show that Defendant had the specific intent to monopolize when it refused
to license its work. Rather, the record shows that Defendant validly asserted its rights
under the Copyright Act. Accordingly, the Court grants summary judgment to
Defendant on Plaintiff’s attempted monopolization claims.
4.

Conclusion—Sherman Act Claims

For the reasons discussed above, the Court finds that Plaintiff has failed to meet
its burden on summary judgment with respect to all of its claims brought under the
Sherman Act. As such, the Court grants Defendant’s Motion for Summary Judgment
on all Sherman Act claims.

21

B.

Breach of Contract
It has long been the law in Colorado that a party attempting to recover on a claim

for breach of contract must prove the following elements: (1) the existence of a
contract, Denver & Rio Grande R.R. Co. v. Iles, 53 P. 222, 224 (Colo. 1898); (2)
performance by the plaintiff or some justification for nonperformance, Lombard v.
Overland Ditch & Reservoir Co., 92 P. 695, 696 (Colo. 1907); (3) failure to perform the
contract by the defendant, Denver & Rio Grande R.R. Co., 53 P. at 223; and (4)
resulting damages to the plaintiff, Western Union Tel. Co. v. Trinidad Bean & Elevator
Co., 267 P. 1068, 1069 (Colo. 1928).
There is no dispute with respect to the first two elements of the breach of
contract claims. The parties entered into an enforceable Agreement and there is no
allegation that Plaintiff failed to perform its obligations under that Agreement. However,
the parties dispute whether Defendant failed to perform its obligations under the
Agreement and whether Plaintiff suffered any damages as a result of any such breach.
Whether there was a breach of contract in this case turns on the Court’s
interpretation of a few key provisions in the Agreement. Under Colorado law, the
purpose of contract interpretation is to ascertain the intent of the parties by ensuring
that contracts are construed “consistently with the well-established principles of
interpretation.” East Ridge of Fort Collins, LLC v. Larimer & Weld Irrigation Co., 109
P.3d 969, 973 (Colo. 2005). As a starting point, courts examine the contractual terms
in an attempt to determine the parties’ intent. Id.; see also Level 3 Commc’ns, LLC v.
Liebert Corp., 535 F.3d 1146,1154 (10th Cir. 2008); Pirkey v. Hosp. Corp. of Am., 483

22

F. Supp. 770 (D. Colo. 1980).
Courts must examine the contract as a whole and attempt to determine the intent
by reference to all of the contract’s terms and provisions without viewing clauses or
phrases in isolation. Level 3 Commc’ns, 535 F.3d at 1154; East Ridge, 109 P.3d at
973. When construing a contract, courts must not “view clauses or phrases in isolation.”
East Ridge, 109 P.3d at 974-75. The Court must construe a contract in a manner that
avoids an absurd result and should avoid any interpretation that would be inconsistent
with the purpose of the contract. Atmel Corp. v. Vitesse Semiconductor Corp., 30 P.3d
789, 793 (Colo. App. 2001).
When a contractual term “unambiguously resolves the parties’ dispute, the
interpreting court's task is over” because “in the absence of an ambiguity a written
contract cannot be varied by extrinsic evidence.” Level 3 Commc’ns, 535 F.3d at 1154.
On the other hand, when a contract has been determined to be ambiguous, “the
meaning of its terms is generally an issue of fact to be determined in the same manner
as other factual issues.” East Ridge, 109 P.3d at 974.
A contract is ambiguous if it is “fairly susceptible” to more than one interpretation.
Level 3 Commc’ns, 535 F.3d at 1154; see also East Ridge, 109 P.3d at 974-75. In
determining whether an ambiguity exists, the court may look to the meaning of words
with “reference to all contractual provisions and the nature of the transaction which
forms the contract’s subject matter.” In re Marriage of Thompson, 802 P.2d 1189 (Colo.
App. 1990); May v. United States, 756 P.2d 362, 369 (Colo. 1998). Whether a contract
is ambiguous is a question of law. Level 3 Commc’ns, 535 F.3d at 1155.

23

The parties have filed cross-motions for summary judgment on these claims
each arguing that its interpretation of the Agreement is correct as a matter of law.
Plaintiffs have alleged two separate breach of contract claims: (1) that Defendant’s
refusal to allow Plaintiff access to the JIT for purposes of developing an app for the
iPad was a breach of contract; and (2) that Defendant’s refusal to provide JIT 2.2 was a
breach of the Agreement. The Court will address each of these claims in turn below.
1.

Refusal to Allow Access to Plaintiff’s Terminal Chart and/or JIT

Plaintiff claims that Defendant breached the Agreement when it refused to allow
Plaintiff access to the Terminal Charts and/or the JIT for purposes of developing an app
for the iPad. (SAC ¶ 81.) Defendant contends that the iPad did not fall within the
scope of the Agreement and, therefore, its refusal to permit Plaintiff access to its Charts
and/or JIT for purposes of developing an iPad app was not a breach of the Agreement.
(ECF No. 128 at 48.)
a.

Plain Language of the Agreement

The Agreement defines the relevant “System” as “[t]he SOLIDFX data
management reader solution that works in conjunction with an e-book viewer, as
modified to access, utilize and display Jeppesen Data, which solution is designed,
developed, manufactured and marketed by SOLIDFX.” (Agmt. § 1.6.) Plaintiff
contends that the “System” was intended to be broader than the IRex e-reader and to
encompass a software-based solution such as an iPad app. (ECF No. 94 at 21.)
Defendant contends that the “System” is defined in such a way that the parties could
not have intended to include a device such as an iPad. (ECF No. 128 at 48-49.) The
Court finds that both parties’ interpretations are reasonable and, therefore, that an
24

ambiguity exists in the plain language of the Agreement.
The plain language of the Agreement states that the “System” is a “data
management reader solution” which could certainly encompass a software-only solution
such as an app. Moreover, to the extent the definition of “System” envisions an actual
hardware device, that device is described only as “an e-book viewer”. It is undisputed
that a user can view an e-book on an iPad or similar device. Thus, nothing in the plain
language of the definition of the term “System” precludes Plaintiff’s proposed
understanding.
Defendant contends that Plaintiff’s interpretation is not reasonable because it
ignores the requirement that “[p]rior to delivery of any System to a Customer, SOLIDFX
shall install the most current worldwide database for the Jeppesen Data in every
System.” (Agmt. App. 1 § 1.3.1.) Defendant contends that, under the Apple/iPad
model, there is no way for Plaintiff to load the most current version of the Terminal
Charts onto the iPad before it is delivered to the customer. (ECF No. 128 at 50.)
However, Defendant’s argument ignores the possibility that the “System” is a softwareonly solution. If the “System” is an iPad app, which the “Customer” downloads from the
Apple store, it is possible that such “System” could be loaded with the “most current
worldwide database for the Jeppesen Data” before it is delivered (i.e. downloaded) by
the customer. While these arguments could certainly persuade a juror that the parties
did not intend the term “System” to include an iPad, the Court disagrees with Defendant
that the requirement that the Data be downloaded to the System before the System is
delivered to the Customer makes Plaintiff’s proposed interpretation of the “System”
unreasonable.
25

However, the Court also finds that Defendant’s interpretation of the plain
language of the term “System” is reasonable. Defendant contends that the iPad is not
an “e-book viewer” simply because a user can read an e-book on it any more than the
iPad is a digital camera just because it can be used to take digital photos. (ECF No.
128 at 49.) The Court agrees that a reasonable person interpreting the phrase
“System” in the Agreement could find that the plain language does not encompass an
iPad because an iPad is not an e-book viewer.
Defendant also points out that Apple had not announced the iPad at the time
that the Agreement was executed and, therefore, the parties could not have intended
the iPad to fall within the definition of the term “System”. (ECF No. 128 at 49.)
Defendant contends that, because the Agreement explicitly references the fact that
Plaintiff had a “cooperation agreement with a hardware supplier” and that the Jeppesen
Data would be displayed on that hardware supplier’s e-book hardware (see Agmt.
Recitals), the Agreement plainly applies only to that hardware supplier and its
hardware. (ECF No. 128 at 50.) It is undisputed that, at the time the Agreement was
executed, Plaintiff’s hardware supplier and the e-book hardware was iRex and its ereader, not Apple and the iPad. (Id. ¶¶ 96-98.) Based on all of these arguments, the
Court finds that Defendant’s contention that the Agreement was not intended to
encompass the iPad is reasonable.
Because the Court finds that the definition of “System” in the Agreement is
reasonably susceptible to more than one interpretation, it is ambiguous. Level 3
Commc’ns, 535 F.3d at 1154. Thus, the Court may look at the extrinsic evidence to
determine whether the Agreement can be interpreted as a matter of law. Id. at 115426

55.
b.

Extrinsic Evidence

The parties contend that the extrinsic evidence supports each of their positions.
The Court finds that there is significant extrinsic evidence that supports both Plaintiff’s
interpretation of the Agreement and Defendant’s interpretation and, therefore, the
parties’ intent must be decided by a jury. See East Ridge, 109 P.3d at 974.
In support of Plaintiff’s contention that the “System” was intended to include a
device such as the iPad, there is extrinsic evidence showing that the parties revised the
Agreement to be more broad in scope. That is, the record shows that initial drafts of
the Agreement specifically referenced the iRex device, and that, before executing the
Agreement, the parties made the language more general to include only references to
“ebook hardware” and “an e-book viewer”. (ECF No. 94 ¶ 31.) The Agreement is also
for a period of five years. (Agmt. § 5.) Anyone with experience in the technology realm
would understand that a five year contract would reasonably encompass more than one
type of device because a five year old electronics device is often obsolete. Thus, the
extrinsic evidence shows that Plaintiff’s interpretation of the “System” as encompassing
more than the iRex device, including the iPad or similar devices, is reasonable.
The extrinsic evidence also shows that Defendant’s contention that the iPad is
not encompassed in the “System” is reasonable. It is undisputed that the Agreement
was executed on December 31, 2009 and that Apple had not yet announced the iPad.
(ECF No. 128 ¶ 121.) Moreover, the iPad was ground-breaking technology. At the time
the Agreement was executed, all “e-book viewers” utilized e-ink technology and were
solely used for reading e-books. (ECF No. 164 ¶ 56; 127 ¶ 31.) There is also evidence
27

that Plaintiff’s representatives understood the iPad to be a different type of device
(specifically, a tablet computer) and not an e-book viewer. (ECF No. 128 ¶¶ 125-129.)
Thus, a reasonable juror could find that the parties could not have intended for the
Agreement to encompass the unknown iPad device.
Finally, there is evidence in the record that the parties each understood the
Agreement in the manner that the opposing party contends. “Colorado has long
recognized the rule that in construing a contract, the courts will follow the construction
placed upon it by the parties themselves.” East Ridge, 109 P.3d at 974. The record
shows that Defendant’s representatives understood the Agreement to encompass the
iPad and made such representations to Plaintiff before Defendant decided to produce
its own iPad app. (ECF No. 94 ¶¶ 58, 62.) The record also shows that Plaintiff’s
representatives believed that they needed to broaden the scope of the Agreement
before they could develop an app for the iPad. (ECF No. 127 ¶ 82.) The fact that
representatives from both parties understood the Agreement in the manner that the
opposing party promotes is further indication that the parties’ intent is ambiguous.
As here, and when ambiguity does exist, the meaning of a term is generally an
issue of fact that must be decided by the jury. Anderson v. Eby, 998 F.2d 858, 865
(10th Cir. 1993) (quoting Palipchak v. Kent Constr. Co., 554 P.2d 718, 719 (Colo. App.
1976)). Because the plain meaning of the Agreement is ambiguous and the extrinsic
evidence supports both parties’ contention as to their intent when entering into the
Agreement, the meaning of the Agreement cannot be determined as a matter of law.
The parties’ cross-motions for summary judgment are denied as to Plaintiff’s claim that
Defendant’s refusal to permit Plaintiff access to the Terminal Charts and/or JIT for
28

purposes of developing an iPad app was a breach of contract.
2.

Failure to Provide JIT 2.2

Plaintiff also contends that Defendant breached the Agreement by failing to
provide Plaintiff with a fully-operational version of JIT 2.2 so that it could develop a
functioning iRex device for the purpose of attracting commercial customers. (SAC ¶
81.) As set forth above, JIT 2.2 is a data set for tailored terminal charts specifically
made for commercial airlines. (ECF No. 164 ¶ 169.) Because Defendant would not
provide a full version of the JIT 2.2, Plaintiff was unable to develop a fully-functional
prototype of its iRex product to market to commercial customers. (Id.)
The parties have both moved for summary judgment with respect to whether or
not Defendant breached the Agreement by failing to provide the JIT 2.2. Defendant
has also moved for summary judgment on whether Plaintiff has shown that it suffered
any damages as a result of any such breach. The Court will address these contentions
in turn below.
a.

Whether There Was a Breach of the Agreement

The Agreement provides that Plaintiff shall have a license to:
(i) use, view and test the Jeppesen Data; (ii) to the extent
authorized herein and in Appendix 1, to use the JIT to
develop an interface between the System and the Jeppesen
Data which will allow the Jeppesen Data to be accessed,
retrieved, rendered and/or displayed on the System; (iii) to
integrate such interface developed hereunder into the
System, and to distribute the System, to Customers, and (iv)
to load the Jeppesen Data into the System prior to delivery
to the Customer.
(Agmt. § 3.1.1.) “Jeppesen Data” is defined to include “[a]n electronic database of
Jeppesen standard and/or tailored terminal aeronautical charts in a Jeppesen
29

proprietary graphic format.” (Id. § 1.3.1.) A “Customer” is defined as “The owner or
operator of a System utilizing the Jeppesen Data Service defined herein.” (Id. § 1.2.)
The parties do not dispute that Defendant met its obligation under subsection i
as it provided a version of the JIT 2.2 toolkit that was sufficient for Plaintiff to use, view
and test the Jeppesen Data for commercial carriers. Subsection iv is also not
implicated by this claim. The relevant clauses of this section are subsection ii and iii.
Defendant admits that it only provided a “preliminary data specification” for JIT
2.2. (ECF No. 127 ¶¶ 100-104; ECF No. 94 ¶ 84.) However, Defendant contends that
the failure to provide a fully-operational version of the JIT 2.2 toolkit was not a breach of
the Agreement because Plaintiff never had a “Customer” for the tailored charts. (ECF
No. 127 at 37.) Plaintiff contends that Defendant was obligated to produce the full
version of the JIT 2.2 so that Plaintiff could develop a functioning prototype and attract
a “Customer”. (ECF No. 94 at 30-31.)
The Court finds that both parties’ positions are supported by the plain language
of the Agreement. The plain language of Section 3.1.1(ii) provides that Plaintiff is
permitted to “develop an interface” between the iRex device and the tailored terminal
charts that allows the tailored charts to be “accessed, retrieved, rendered and/or
displayed on the System.” (Amgt. § 3.1.1(ii).) This language could, as Plaintiff
suggests, require that Defendant provide a fully-functional version of JIT 2.2 so that
Plaintiff could develop a fully operational version of its iRex device for the purpose of
attracting commercial customers. However, the plain language does not require that
the “interface” which Plaintiff is permitted to develop be fully functional. Rather, nothing
in the plain language prohibits Defendant from providing a version of JIT 2.2 that only
30

allows for the development of a prototype, so long as that prototype can either access,
retrieve, render or display the tailored terminal charts on the iRex device. (See id.)
There is no allegation that the “preliminary data specification” provided by Defendant
did not allow Plaintiff to develop a prototype that met this standard.
Because the plain language of the Agreement is reasonably susceptible to more
than one interpretation, it is ambiguous and the Court must look to the extrinsic
evidence to determine whether the Agreement can be interpreted as a matter of law.
The Court finds that there is extrinsic evidence to support both parties’ positions on this
claim and, therefore, the jury must decide the issue.
In support of Plaintiff’s contention that the failure to provide a fully-functioning
version of JIT 2.2 was a breach of contract, the record shows that Defendant
understood that its failure to provide the full version of JIT 2.2 put Plaintiff in a “Catch 22", which is evidence of bad faith on the part of Defendant. (ECF No. 164 ¶ 172.) The
record also shows that Defendant changed its position on whether the Agreement
covered commercial airlines after it decided to develop its own iPad app. (Id. ¶ 171.)
On the other hand, the record shows that Plaintiff was able to develop a working
prototype and use this prototype to attract interest from commercial customers. (ECF
No. 127 ¶¶ 100-103.) There is also extrinsic evidence showing that Defendant
repeatedly informed Plaintiff that, when it had a commercial customer that had
committed to buying the iRex device, it would provide a fully-functional version of JIT
2.2. (Id. ¶¶ 104-05.) Finally, extrinsic evidence shows that the parties agreed to be
“reasonable” in developing their products and with respect to costs and that developing
a fully functional version of JIT 2.2 would have required at least 2.5 months of man31

hours. (Id. ¶ 95.) This evidence supports Defendant’s contention that the Agreement
was not intended to require it to provide a fully-functional version of JIT 2.2 until Plaintiff
had a “Customer” for the product.
b.

Whether Plaintiff Suffered any Damages as a Result of the Breach

Defendant also moves for summary judgment based on the argument that
Plaintiff has failed to show a genuine dispute of fact as to whether it suffered any actual
damages as a result of Defendant’s alleged failure to provide sufficient access to JIT
2.2. (ECF No. 128 at 52-53.) Specifically, Defendant contends that all of the
commercial customers that were interested in the iRex device decided not to do
business with Plaintiff for reasons unrelated to Plaintiff’s inability to develop a fully
functioning prototype. (Id.)
However, there is also evidence in the record that Plaintiff had serious talks with
at least two airlines about the iRex device. (ECF No. 94 ¶¶ 85-87, 93-96.) There is
evidence, too, from which a jury could find that these transactions did not go through
because Defendant failed to provide JIT 2.2 and/or made representations to the
potential customers that it was not going to support Plaintiff’s endeavors to attract
business from commercial carriers. (Id. ¶¶ 88, 97-98, 101-02.) While a reasonable
juror could certainly find that these customers’ decisions regarding doing business with
Plaintiff had nothing to do with the failure to have a fully functioning prototype, a
reasonable juror could also find the opposite. Thus, the Court must allow a jury to
decide whether Plaintiff has proven that it suffered damages as a result of Defendant’s
breach of the Agreement.

32

c.

Conclusion

Because the terms of the Agreement are ambiguous, a jury must determine
whether Defendant’s actions constituted a breach. Additionally, there is sufficient
evidence in the record to permit a reasonable juror to conclude that Defendant’s actions
caused Plaintiff damages. Accordingly, the parties’ cross-motions for summary
judgment are denied on Plaintiff’s claim that Defendant breached the Agreement by
failing to provide a fully-functional version of JIT 2.2 before Plaintiff had a commercial
customer.
3.

Limitation on Damages

Defendant also moves for summary judgment on the damages available to
Plaintiff if it prevails on either of its breach of contract claims. (ECF No. 128 at 53-54.)
Specifically, Defendant contends that the Agreement does not permit Plaintiff to recover
for “lost profits” as part of its damages. (Id.)
The relevant portion of the Agreement provides:
8.2

EXCLUSION OF CONSEQUENTIAL AND OTHER
DAMAGES. EXCEPT TO THE EXTENT OF THE
INDEMNIFICATION OBLIGATIONS SET FORTH IN
SECTION 9, NEITHER PARTY WILL HAVE ANY
OBLIGATION OR LIABILITY WHATSOEVER,
WHETHER ARISING IN CONTRACT (INCLUDING
WARRANT), TORT (WHETHER OR NOT ARISING
FROM THE NEGLIGENCE OF EITHER PARTY),
STRICT LIABILITY OR OTHERWISE,
8.2.1 FOR LOSS OF USE, REVENUE, OR PROFIT;
OR
8.2.2 FOR ANY OTHER INDIRECT, INCIDENTAL,
CONSEQUENTIAL, SPECIAL, EXEMPLARY,
PUNITIVE, OR OTHER DAMAGES WITH
RESPECT TO THE JEPPESEN DATA, THE
JIT, AND OTHER PRODUCTS AND
SERVICES PROVIDED HEREUNDER; AND
33

8.2.3 ANY NONCONFORMANCE OR DEFECT IN
THE JEPPESEN DATA, THE JIT, OR OTHER
THINGS PROVIDED UNDER THIS
AGREEMENT.
...
8.4 Effect of Limitation. The parties acknowledge that the
limitations set forth in this Section are integral to the amount
of fees specified in the Agreement, and recognize that were
Jeppesen to assume any further liability beyond that set
forth herein, such fees could be substantially higher.
(Agmt. § 8.) Defendant contends that the plain language of § 8.2.1 provides that
Plaintiff cannot recover any lost profits. (ECF No. 128 at 54.) Plaintiff argues that §
8.2.1 pertains only to claims brought against Plaintiff for defects in its iRex product and
does not limit damages on this action between the parties. (ECF No. 164 at 58-59.)
The Court finds that, based on the plain language of the Agreement, both
parties’ interpretations of the Agreement are reasonable. The fact that § 8.2.1 is set
apart from § 8.2.2 supports Defendant’s contention that lost profits are not recoverable
on any contract claim. Also, as Defendant points out, Defendant agreed to waive its
licensing fee when entering into the Agreement and the inclusion of § 8.2.4 shows that
the parties were aware that Defendant considered this limitation on damages to be an
important aspect of the Agreement. (ECF No. 128 at 53.)
On the other hand, the fact that § 8.2.1 and § 8.2.2 are separated by the term
“or”, as well as the fact that § 8.2.2 provides that no party shall recover any “other”
indirect, incidental or consequential damages supports Plaintiff’s contention that § 8.2.1
and § 8.2.2 are to be read together. (Agmt. § 8.) If these sections are read together,
the phrase “with respect to the Jeppesen Data, the JIT, and other products and
34

services provided hereunder” could reasonably be interpreted to modify the limitation on
recovery of lost profits. (Id.) Additionally, as Plaintiff argues, the Agreement does not
contemplate that Defendant is paying Plaintiff any money for its services in developing
the “System”. Thus, the only benefit to Plaintiff in entering into the Agreement is the
profits which Plaintiff could receive for sale of its “Systems”. (ECF No. 164 at 59.) The
nature of the transaction is an important consideration in determining whether an
ambiguity exists. In re Marriage of Thompson, 802 P.2d at 1189. If Plaintiff understood
the Agreement to waive any recovery for lost profits if Defendant breached the
Agreement, it would have effectively limited its damages to nothing.
Because the damages limitation provision is reasonably susceptible to more than
one interpretation, the Court finds that it is ambiguous and the jury must decide what
the parties intended by this clause of the Agreement. Thus, Defendant’s Motion for
Summary Judgment is denied to the extent it seeks a ruling as a matter of law on
Plaintiff’s damages.
C.

Remaining Claims
Plaintiff also brings the following claims against Defendant arising out of the

factual circumstances discussed above: (1) promissory estoppel; (2) negligent
misrepresentation; (3) fraud; and (4) intentional interferences with prospective business
relations. (SAC ¶¶ 91-96; 144-167.) In a very cursory fashion7, Defendant moves for
summary judgment on all of these claims. (ECF No. 56-59.) The Court will briefly
address below why Defendant’s Motion is denied as to each of these claims.

7

In a sixty-page Motion for Summary Judgment, Defendant devotes four pages to
discussion of these four claims. (ECF No. 128.)

35

1.

Promissory Estoppel

Defendant contends that summary judgment is appropriate on Plaintiff’s
promissory estoppel claim because it is undisputed that there was a valid Agreement
between the parties. (ECF No. 128 at 56.) It is true that “[r]ecovery on a theory of
promissory estoppel is incompatible with the existence of an enforceable contract.”
Wheat Ridge Urban Renewal Auth. v. Cornerstone Grp. XXII, LLC, 176 P.3d 737, 741
(Colo. 2007). However, it is also true that a party is permitted to pursue a claim for
breach of contract and promissory estoppel in the alternative. Marquardt v. Perry, 200
P.3d 1126, 1127 (Colo. App. 2008) (“[I]f a plaintiff fails to prove a breach of contract
claim, he or she may nevertheless be able to recover on a promissory estoppel claim.”).
Where, as here, the scope of the contract is disputed, a jury is permitted to decide
between a breach of contract and a related tort claim. See Level 3 Commc’ns, 535
F.3d at 1163 (district court should permit alternate contract and tort claims to go to the
jury when the scope of the contract is disputed). If the jury determines that the
Agreement did not encompass the development of an iPad app, there is sufficient
evidence to permit it to find that Defendant made a promise to Plaintiff–-outside of the
Agreement—about supporting its development of an iPad app, and that Plaintiff relied
on this promise to its detriment by putting in man-hours on the development of such
app. See Marquardt, 200 P.3d at 1127 (elements of a promissory estoppel claim are:
(1) a promise; (2) that was reasonably expected to induce action; (3) which was relied
on to the promisee’s detriment; and (4) which must be enforced to prevent injustice).
Because a reasonable juror could find in Plaintiff’s favor on its promissory
estoppel claim, Defendant’s Motion for Summary Judgment on this claim is denied.
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2.

Negligent Misrepresentation & Fraud

Defendant contends that it is entitled to summary judgment on Plaintiff’s
negligent misrepresentation claim for three reasons: (1) the alleged duty to support
Plaintiff’s development of the app is the same duty as that provided under the
Agreement; (2) any promise to support Plaintiff’s work in the future does not give rise to
a negligent misrepresentation claim; and (3) any reliance by Plaintiff on Defendant’s
representations was not reasonable. (ECF No. 128 at 57.)
Defendant also raises three arguments as to why summary judgment is
appropriate on Plaintiff’s fraud claim: (1) the fraud claim is “wholly duplicative” of
Plaintiff’s breach of contract claims; (2) Plaintiff cannot establish the requisite intent;
and (3) there is no evidence to support the contention that Defendant fraudulently
concealed its intentions regarding developing its own iPad app. (ECF No. 128 at 58.)
The Court finds that there are disputed facts related to each of Defendant’s
contentions. First, for reasons similar to those described above with respect to the
promissory estoppel claim, a reasonable juror could find that the development of the
iPad app was not encompassed by the Agreement and, therefore, any obligation
imposed on Defendant would not duplicate an obligation under the Agreement. Like
the promissory estoppel claim, Plaintiff is permitted to pursue these tort claims in the
alternative to the contract claims. See Level 3 Commc’ns, 535 F.3d at 1163.
There is also evidence showing that Defendant acted with the requisite intent.
The record shows that Defendant did not disclose that it was developing its own iPad
app while it was encouraging Plaintiff’s development of an iPad app. (ECF No. 164 ¶¶
78-80.) At one point, Defendant represented to Plaintiff that Plaintiff was authorized by
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the Agreement to develop an iPad and did not convey a contrary position for months.
(Id. ¶¶ 78, 81.) There is also evidence showing that Plaintiff relied on Defendant’s
representations regarding Plaintiff’s authority to develop an iPad app in devoting manhours to the development of such app. (Id. ¶¶ 72, 87.) Finally, given the parties’ prior
relationship with respect to working together on an electronic device for displaying
Defendant’s Terminal Charts, a juror could find that any reliance by Plaintiff on
Defendant’s representations by was reasonable.
Accordingly, the Court finds that a reasonable juror could find in Plaintiff’s favor
on its negligent misrepresentation and fraud claims. Therefore, Defendant’s Motion for
Summary Judgment is denied as to this claim, as well.
3.

Intentional Interference with Prospective Business Relations

Plaintiff contends that Defendant interfered with its business relations with
respect to both the iRex and non-iRex users. (ECF No. 164 at 62.) The Court finds
that there is evidence from which a juror could find in Plaintiff’s favor on this claim. With
respect to the iRex users, particularly commercial customers, there is evidence that
Defendant informed potential customers that Plaintiff was not authorized to sell the iRex
device to commercial customers and that Defendant would not support Plaintiff’s efforts
to do so. (ECF No. 164 ¶ 173.) With respect to potential iPad app users, there is also
evidence that Plaintiff did not support potential customers who expressly told Defendant
that they were interested in an app developed by Plaintiff. (Id. ¶ 174.) A reasonable
juror could also conclude that Defendant’s actions were intentional and that they were
done with the purpose of dissuading the customers from doing business with Plaintiff.
A reasonable juror could find that Plaintiff has shown that it had a reasonable
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prospect of a business relationship and that Defendant interfered with this relationship.
Accordingly, Defendant’s Motion for Summary Judgment is also denied as to Plaintiff’s
intentional interference with prospective business relations claim.
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

Plaintiff’s Motion for Partial Summary Judgment (ECF Nos. 94 & 96) is DENIED;

2.

Defendant’s Motion for Summary Judgment (ECF Nos. 128 & 130) is GRANTED
IN PART and DENIED IN PART;

3.

Summary Judgment in favor of Defendant is ENTERED on Plaintiff’s Sherman
Act claims (Claims Five, Six, Seven, Eight, Nine and Ten of the Second
Amended Complaint);

4.

Summary Judgment is DENIED as to all other claims;

5.

The following claims shall proceed to trial as previously scheduled on April 13,
2014: (1) Breach of Contract (Claim One); (2) Breach of Contract—Implied
Covenant of Good Faith and Fair Dealing (Claim Two); (3) Promissory Estoppel
(Claim Three); (4) Negligent Misrepresentation (Claim Eleven); (5) Fraud (Claim
Twelve); and (6) Intentional Interference with Prospective Business Relations
(Claim Thirteen);

6.

Following trial, if necessary, the Court will determine Plaintiff’s claim for
Declaratory Judgment (Claim Four); and

7.

Not later than April 5, 2013, the parties shall inform the Court as to their position
on whether, given the Court’s ruling in this Order, the trial of this matter can be
conducted in less than the currently scheduled 13 days. If the parties agree that
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the trial will be significantly shorter, the Court may sua sponte reset the trial.
Dated this 22nd day of March, 2013.
BY THE COURT:

William J. Martínez
United States District Judge

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