Stewart et al v. Atherio Inc et al

Filing 242

MEMORANDUM OPINION AND ORDER: The Court GRANTS Defendants' motion for summary judgment (Doc. 216 ) and DENIES Plaintiff's motion for summary judgment as to liability (Doc. 218 ). Further, as specified in footnote three, supra, the Court G RANTS in part and DENIES in part Defendants' motion for leave to file a surreply (Doc. 230 ). Because this memorandum opinion and order disposes of the remaining issues in this case, a final judgment will follow. All other pending motions and deadlines in this case are terminated. (Ordered by Judge Jane J. Boyle on 5/8/2019) (zkc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JASON CORY,
Plaintiff,
v.
TAMMY O’CONNOR and MICHAEL
STEWART,
Defendants.

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CIVIL ACTION NO. 3:16-CV-1731-B

MEMORANDUM OPINION AND ORDER
One issue remains in this case—whether Defendants Tammy O’Connor and Michael Stewart
can be bound and held liable for breaching a contract they never signed. The Court previously
granted summary judgment against O’Connor and Stewart on all of their claims relating to the sale
of their company to Atherio, Inc. Doc. 211, Mem. Op. & Order. But the Court did not reach the
issue of now-Plaintiff Jason Cory’s counterclaim against Defendants. Cory’s counterclaim asserts that
O’Connor and Stewart breached a different agreement—the Omnibus Compromise and Release
Agreement (the “Omnibus Agreement”)—that entitles Cory to damages and attorneys’ fees incurred
in defending against O’Connor and Stewart’s original claims. See Doc. 161, Cory’s Answer &
Countercl., ¶¶ 350–73. The Omnibus Agreement was entered into by Cory, Atherio (through its
representatives), and a related party to, among other things, terminate Cory’s employment with
Atherio. The Omnibus Agreement also contained terms under which Cory, Atherio, and other
Atherio parties would release any claims they had or might have had against each other. O’Connor

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and Stewart—Atherio shareholders at the time—did not sign the Omnibus Agreement. But Cory
nonetheless argues they should be bound by this release provision because (1) their agent had
authority to bind them to the Omnibus Agreement or (2) they accepted the benefits of the Omnibus
Agreement. The parties have filed crossmotions for summary judgment on these issues. After
reviewing the briefing, the Court DENIES Cory’s motion for summary judgment (Doc. 218) and
GRANTS Defendants O’Connor and Stewart’s motion for summary judgment (Doc. 216). Because
no other issues remain in this matter, a final judgment will follow this Order.
I.
BACKGROUND
The factual background of this case has been recounted in the Court’s prior opinions (Docs.
100, 109, 152, & 211). The Court discusses only the facts pertinent to the remaining issues in the
case.
Tammy O’Connor and Michael Stewart sold their ownership interests in their technology
company to Atherio, Inc. in June 2013. Doc. 224, Defs.’ Resp., 3. At the time of this transaction,
Jason Cory was Atherio’s chief executive officer. Doc. 219, Cory’s Br. Summ. J., 2. In January of
2014, a dispute arose between Cory and Atherio’s other executives based on allegations of potential
company mismanagement. Id.; Doc. 224, Defs.’ Resp., 3. Atherio’s board placed Cory on unpaid
leave, and Cory and the Atherio executives began negotiating a resolution. Doc. 224, Defs.’ Resp.,
3–4. In May of 2014, Atherio, Cory, and Prudent Capital (Atherio’s mezzanine lender) reached an
agreement on the terms of Cory’s exit from Atherio—the Omnibus Agreement. Doc. 217, Defs.’ Br.
Summ. J., 1; Doc. 217-4, Defs.’ App., 256–269.
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Relevant to this Order, § 15 of the Omnibus Agreement provides:
Atherio Parties’ Cory Parties Release: Expressly subject to Section 15.1 hereof (which
obligations are expressly not released hereby), upon the Effective Date, Atherio, any
Affiliate of Atherio, and any Atherio Party hereby release, remise, and forever
discharge Cory and the Cory Parties from any and all rights, claims, demands,
Actions, causes of action, losses, expenses and judgments, whether known or
unknown, suspected or unsuspected, accrued or not accrued, to which Atherio, any
Affiliate of Atherio, or the Atherio Parties have, may have, or may claim to have
against, Cory or any of the Cory Parties provided, however, that Atherio, any Affiliate
of Atherio, and any Atherio Party does not waive, relinquish or may release any of
its rights or any of the obligations of Cory, arising out of this Agreement.
Doc. 217-4, Defs.’ App., 262 (emphasis added). A previous section of the Omnibus Agreement
defines “Atherio Parties” as “shareholders (including Furst, Farb, Dinkel, Tammy O’Connor, Michael
S. Stewart, and Pickett).” Id. at 261.
The Omnibus Agreement was signed and executed in May of 2014 by Cory, Greg Furst—on
behalf of Atherio as its CEO at the time—and Steven Schwartz, on behalf of Prudent Capital. Id. at
267–69. It is undisputed that O’Connor and Stewart did not sign the Omnibus Agreement. Doc.
217, Defs.’ Br. Summ. J., 1; Doc. 219, Cory’s Br. Summ. J., 1. In fact, they argue that they never saw
the Omnibus Agreement until a subsequent legal proceeding in 2015. Id. at 7. O’Connor and Stewart
argue that until they saw the agreement in that proceeding, they never knew it included a term
(§ 15) that purported to release their personal claims against Cory. Id.
Cory, on the other hand, argues that Furst had the authority to bind O’Connor and Stewart
to the Omnibus Agreement based on discussions he had with them. Doc. 219, Cory’s Br. Summ. J.,
5–6 (citing Furst’s Dep.). Alternatively, Cory claims that the Omnibus Agreement included
provisions that benefitted the Defendants, such as an indemnification provision, and that they
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accepted these benefits. Id. at 6–7. Finally, Cory argues that O’Connor and Stewart are liable to him
for damages and attorneys’ fees because they violated the release provision cited above and breached
the Omnibus Agreement when they originally brought this suit against him. Id. at 15–17.
On January 18, 2019, both sides filed crossmotions for summary judgment on Cory’s breach
of contract claim. Cory filed his motion for summary judgment (Doc. 218), in which he asserts
O’Connor and Stewart are bound by the Omnibus Agreement as a matter of law. O’Connor and
Stewart filed their motion for summary judgment on the same issue, in which they argue that Cory
has failed to create a genuine issue of material fact on his theories of liability. Both motions have
been fully briefed, and the Court now considers whether O’Connor and Stewart can be bound by this
agreement.
II.
LEGAL STANDARD
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
A dispute “is ‘genuine’ if the evidence is sufficient for a reasonable jury to return a verdict for the
non-moving party.” Burrell v. Dr. Pepper/Seven Up Bottling Grp., 482 F.3d 408, 411 (5th Cir. 2007).
And a fact “is ‘material’ if its resolution could affect the outcome of the action.” Id.
The summary-judgment movant bears the burden of proving that no genuine issue of material
fact exists. Latimer v. Smithkline & French Labs., 919 F.2d 301, 303 (5th Cir. 1990). Usually, this
requires the movant to identify “those portions of the pleadings, depositions, answers to

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interrogatories, and admissions on file, together with affidavits, if any, which it believes demonstrate
the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)
(internal quotation marks omitted). But if the non-movant ultimately bears the burden of proof at
trial, the movant may satisfy its burden just by pointing to the absence of evidence supporting the
non-movant’s case. Id. at 322–23.
If the movant meets that burden, then it falls to the non-movant to “show with significant
probative evidence that there exists a genuine issue of material fact.” Hamilton v. Segue Software Inc.,
232 F.3d 473, 477 (5th Cir. 2000) (internal quotation marks omitted) (citing Conkling v. Turner, 18
F.3d 1285, 1295 (5th Cir. 1994)). And significant probative evidence is just that: significant. See
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (per curiam). “[M]etaphysical doubt
as to material facts,” “conclusory allegations,” “unsubstantiated assertions,” or a mere “scintilla of
evidence” will not do. Id.(internal citations and quotation marks omitted). Rather, “the non-movant
must go beyond the pleadings and present specific facts indicating a genuine issue for trial.”
Bluebonnet Hotel Ventures, L.L.C. v. Wells Fargo Bank, N.A., 754 F.3d 272, 276 (5th Cir. 2014)
(citing Celotex, 477 U.S. at 324).
To be sure, the court views evidence in the light most favorable to the non-movant when
determining whether a genuine issue exists. Munoz v. Orr, 200 F.3d 291, 302 (5th Cir. 2000). The
presence of crossmotions does not change this approach: The court will “review each party’s motion
independently, viewing the evidence and inferences in the light most favorable to the nonmoving
party.” Ford Motor Co. v. Tex. Dep’t of Transp., 264 F.3d 493, 498 (5th Cir. 2001). But it need not
“sift through the record in search of evidence to support a party’s opposition to summary judgment.”

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Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (quoting Skotak v. Tenneco Resins,
Inc., 953 F.2d 909, 915–16 & n.7 (5th Cir. 1992)). Simply put, the non-movant must “identify
specific evidence in the record” and “articulate the precise manner in which that evidence supports
[its] claim.” Id. If it cannot, then the court must grant summary judgment. Little, 37 F.3d at 1076.
III.
ANALYSIS
The Court must decide if O’Connor and Stewart—nonsignatories to the Omnibus
Agreement—can nonetheless be bound by it and held liable for breaching it. The Court asked the
parties to address which principles of law would support such liability. Doc. 213, Status Report
Order. Cory argues that O’Connor and Stewart can be held liable under (1) agency law or (2) a
ratification/adoption theory. Doc. 219, Cory’s Br. Summ. J., 1. The Court addresses each theory in
turn.
A.

Agency Theory
The issue under this theory is whether Greg Furst, as an agent of O’Connor and Stewart, had

their authority to bind them to the Omnibus Agreement. Under Texas law,1 “[a]n agent cannot bind

1

The parties initially dispute whether Texas or Delaware law should apply to this remaining issue.
See Doc. 217, Defs.’ Br. Summ. J., 8 (arguing Texas law applies); Doc. 226, Cory’s Resp. Br., 3–4 (arguing that
Delaware law applies, but that he prevails under either states’ laws). But because neither side points to a
difference or conflict between the states’ laws, the Court will apply the law of the forum state, Texas. See
Lloyd’s Syndicate 457 v. Am. Glob. Mar. Inc., 346 F. Supp. 3d 908, 928 (S.D. Tex. 2018) (“The law of the
forum state applies if there is no conflict between the substantive state law.” (citing Schneider Nat’l Transp.
v. Ford Motor Co., 280 F.3d 532, 536 (5th Cir. 2002))). Even so, the Court would apply Texas law under
Texas choice-of-law rules because the Court agrees with Defendants that Texas has the most significant
relationship to this remaining issue. Doc. 217, Defs.’ Br. Summ. J., 12.
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a principal absent either actual or apparent authority.” Sanders v. Total Heat & Air, Inc., 248 S.W.3d
907, 913 (Tex. App.—Dallas 2008, no pet.). “Texas law does not presume agency, and the party who
alleges it has the burden of proving it.” IRA Res., Inc. v. Griego, 221 S.W.3d 592, 597 (Tex. 2007).
“An agent’s authority to act on behalf of a principal depends on some communication by the
principal either to the agent (actual or express authority) or to the third party (apparent or implied
authority).” Gaines v. Kelly, 235 S.W.3d 179, 182 (Tex. 2007).
The Court will first determine whether the summary-judgment evidence supports a finding
of actual authority and then whether the evidence supports a finding of apparent authority.
i.

Actual Authority

Cory contends there is sufficient evidence to find that Furst had actual authority to bind
O’Connor and Stewart to the Omnibus Agreement. Doc. 219, Cory’s Br. Summ. J., 8; Doc. 226,
Cory’s Resp., 4–5. O’Connor and Stewart argue the opposite. Doc. 217, Defs.’ Br. Summ. J., 12–15.
“Actual authority refers to responsibility a principal (1) intentionally confers upon an agent,
(2) intentionally allows the agent to believe he possesses, or (3) by want of due care allows the agent
to believe he possesses.” Expro Ams., LLC v. Sanguine Gas Expl., LLC, 351 S.W.3d 915, 921
(Tex. App.—Houston [14th Dist.] 2011, pet. denied). “Actual authority is created through conduct
of the principal communicated to the agent.” Tex. Cityview Care Ctr., L.P. v. Fryer, 227 S.W.3d 345,
352 (Tex. App.—Fort Worth 2007, pet. dism’d [mand. dism’d]). Moreover, actual authority
“includes both express and implied authority.” Reliant Energy Servs., Inc v. Cotton Valley Compression,
L.L.C., 336 S.W.3d 764, 783 (Tex. App.—Houston [1st Dist.] 2011, no pet.). “Express authority
is delegated to an agent by words of the principal that expressly and directly authorize the agent to
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do an act or series of acts on behalf of the principal.” Id. (citing Crooks v. MI Real Estate Partners, Ltd.,
238 S.W.3d 474, 483 (Tex. App.—Dallas 2007, no pet.)). “Implied authority is the authority of an
agent to do whatever is necessary and proper to carry out the agent’s express powers.” Id. “Implied
agency therefore exists only as an adjunct to express actual authority; an agent that does not have
express authority cannot have implied authority.” Id.
At the outset, the Court notes that it does not appear that Cory is arguing that O’Connor
and Stewart gave Furst their explicit actual authority to enter into a release of their claims. This
accords with the available evidence—Cory has brought forth no evidence that shows Furst,
O’Connor, and Stewart discussed a release of claims. To the contrary, Furst even testified that he
was not the one that would have discussed a release with O’Connor and Stewart before the Omnibus
Agreement was executed. Id. at 322–24 (Furst Dep.). And O’Connor and Stewart have declared that
no such conversations occurred. Doc. 217-5, Defs.’ App., 289–90 ¶¶ 3–5 (Decl. O’Connor) and
293–94 ¶¶ 3–5 (Decl. Stewart). Thus, Cory’s evidence does not support a theory of actual authority
where O’Connor and Stewart expressly authorized Furst to release their claims.
Instead, Cory argues the evidence supports a two-step theory of actual authority: first, Cory
argues that O’Connor and Stewart gave Furst the express actual authority to execute an agreement
whereby Cory would resign from Atherio and indemnify O’Connor and Stewart (the Omnibus
Agreement). Second, Cory argues that through this express authority to enter into this agreement,
Furst, had the implied authority to release any claims O’Connor and Stewart may have had against
Cory.

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In support of this theory of actual authority, Cory relies on Furst’s testimony to establish that
Furst reasonably believed he had the authority to sign the Omnibus Agreement on behalf of
O’Connor and Stewart. Doc. 219, Cory’s Br. Summ. J., 8–9. Furst was asked in his deposition: “Is
it your testimony that Ms. O’Connor and Mr. Stewart had conversations with you where they
conveyed that they wanted Mr. [Cory] gone from Atherio?”; Furst responded, “Correct.” Id. (citing
Doc. 220, Cory’s App. (Ex. C), 32–34). Furst further testified that these meetings occurred before
the Omnibus Agreement was signed and that he discussed the Omnibus Agreement with O’Connor
and Stewart. Id. Furst testified that Stewart and O’Connor never objected to his negotiations of the
Omnibus Agreement with Cory. Id. From this and Furst’s understanding that he had the authority
to execute the Omnibus Agreement via Atherio’s board of directors and shareholders, Furst believed
he had the authority to sign the Omnibus Agreement on O’Connor and Stewart’s behalf. Id.
O’Connor and Stewart attack the sufficiency of this evidence supporting Cory’s theory of
actual authority.2 First, they assert that Cory has brought forth no evidence that they gave Furst their
express authority to release their claims. Specifically, they argue that Furst’s testimony only shows
that he had many discussions with O’Connor and Stewart about their desire to remove Cory from

2

O’Connor and Stewart also make a number of evidentiary objections to Cory’s use of Furst’s
deposition testimony. O’Connor and Stewart argue Furst’s testimony is inadmissible because Furst lacked
personal knowledge of discussions that might have occurred between himself and O’Connor and Stewart
regarding the release provision. Doc. 217, Defs.’ Br. Summ. J., 13 (citing Fed. R. Evid. 602). Furst testified
that “there is no way I would have negotiated things like indemnification or releases,” in the Omnibus
Agreement, and that those negotiations took place between Atherio’s and Cory’s lawyers. Id. Further, Furst
testified that he did not recall discussing the release language with O’Connor and Stewart. Id. (citing Doc.
217-5, Defs.’ App., 334 (Furst’s Dep.)). O’Connor and Stewart also make hearsay objections to portions of
Furst’s testimony regarding discussions O’Connor and Stewart’s attorney may have had with them about the
release. Id. (citing Fed. R. Evid. 802 & 805). The Court does not rule on these objections at this time, but
instead finds that even if Cory’s evidence were admissible, it is insufficient to create fact issues on his theories
of liability.
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Atherio and about the Omnibus Agreement generally; but, they point out, Furst did not testify that
they had discussions about the release provision itself. Doc. 228, Defs.’ Reply, 6–8; see also Doc. 224,
Defs.’ Resp., 11. And, as noted, Furst testified he was not involved in negotiating the specific release
provision and did not know if the parties involved in the negotiations (the lawyers) ever discussed
the release with O’Connor and Stewart before the Omnibus Agreement was signed. Doc. 224, Defs.’
Resp., 11. As for Cory’s argument that Furst thought he had authority to release their claims because
they never objected, O’Connor and Stewart counter that they could not have objected because they
did not have knowledge of the release provision. Doc. 228, Defs.’ Reply, 1–2 (citing Doc. 217-5,
Defs.’ App., 289–90 ¶¶ 3–5 (Decl. O’Connor) and 293–94 ¶¶ 3–5 (Decl. Stewart)). Indeed, they
have declared that they never saw the Omnibus Agreement, including the release provision, before
it was executed. Id. They have also declared they had no knowledge of it until sometime after it was
executed. Id. Cory has provided no evidence contradicting or discrediting these sworn statements.
Ultimately, the Court finds that O’Connor and Stewart have the better side of this argument.
Actual authority must be created through the words or conduct of the principal communicated to
the agent. Sanders, 248 S.W.3d at 913. And Cory has brought forth no evidence showing that
O’Connor and Stewart gave Furst any authority to release their claims against Cory.
“An agent has express authority when the principal makes it clear to the agent that it wants
certain acts done.” Crooks, 238 S.W.3d at 483. As summarized above, Cory has not presented
evidence that O’Connor or Stewart ever made it clear that they wanted Furst to enter into an
agreement that effectuated the release of their claims against Cory. At best, Cory’s evidence creates
a fact issue as to whether O’Connor and Stewart gave Furst their authority to sever Cory’s

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relationship with Atherio. But even this is only supported by: (1) an email Stewart wrote to Furst
that included an attachment stating “Jason [Cory] out of our way—total waste of time!” and (2)
Furst’s testimony that he concluded that he had this authority based on general discussions he had
with Stewart and O’Connor about that Omnibus Agreement. Doc. 220, Cory’s App., 70 (email);
Doc. 228, Defs.’ Reply, 9. First, the only thing this email establishes is that Stewart was pleased that
Cory, whose independent legal troubles were a distraction, was going to be out of the company. See
Doc. 220, Cory’s App., 70; Doc. 217-5, Defs.’ App., 289–90, 293–94. This statement cannot be fairly
interpreted as an express and direct instruction to agent to accomplish an act on their behalf. See
Crooks, 238 S.W.3d at 483. As for Furst’s testimony, Cory argues that it shows O’Connor and
Stewart “instructed” Furst to remove Cory from Atherio. Doc. 226, Cory’s Resp., 3. Not so. Furst’s
testimony shows only that O’Connor and Stewart indicated to him that they “wanted [Cory] gone
from Atherio.” Doc. 217-5, Defs.’ App., 340–41. It does not show that they “expressly and directly
authorize[d]” Furst to remove Cory from the company on their behalf. LandAm. Commonwealth Title
Co. v. Wido, 2015 WL 6545685, at *5 (Tex. App.—Dallas Oct. 29, 2015, no pet.).
Cory’s argument is also belied by the fact that Furst did not appear to need O’Connor or
Stewart’s authority to remove Cory from the company. Furst himself testified that he believed he had
the authority to execute such an agreement “through the board and the shareholders.” Doc. 217-5,
Defs.’ App. (Furst Dep.), 342, 59:2–6. But Cory has provided no evidence that O’Connor and
Stewart were necessary to that grant of authority from the shareholders and board. In fact, it appears
from Atherio’s Bylaws and Shareholder Voting Agreement that O’Connor and Stewart were not
entitled to vote on the removal of Atherio’s directors because they did not possess the right category

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of Atherio shares. See Doc. 224-1, Defs.’ Resp. App., 22 (Atherio’s Bylaws providing that only Class
A shareholders could vote to remove directors), 27–28 (Atherio’s Shareholder Voting Agreement
providing for the same); Doc. 230-1, Defs.’ Surreply, 2.3 Without support, Cory asserts Preferred
Series A shareholders—e.g., O’Connor and Stewart—were required to approve the removal of
directors. Doc. 229, Cory’s Reply, 6 n.6. But neither the Voting Agreement nor the Bylaws supports
this assertion, and Cory has adduced no other evidence that does.
Cory also argues that a Written Consent signed by Atherio shareholders, including O’Connor
and Stewart, shows that they did in fact vote on Cory’s removal from Atherio. Id. The Court has
examined the Written Consent and concludes that it does not necessarily show that O’Connor and
Stewart voted to remove Cory. Doc. 230-2, Surreply App., 3–8 (Written Consent). Instead, the
Written Consent states quite clearly that the “Majority Stockholder,” being the record holder of a
majority of the voting power of outstanding Class A shares, found it necessary to remove the existing
Atherio directors. Id. at 3–4. O’Connor and Stewart, as Preferred Series A shareholders, signed the
agreement only “to the extent required” to adopt the resolution. Id. at 3 (emphasis added). Because the

3

O’Connor and Stewart moved for leave to file a surreply after Cory argued in his reply that an
agreement existed—the “Written Consent of Shareholders”—under which O’Connor and Stewart allegedly
voted to remove Cory from Atherio’s board. See Doc. 230, Mot. for Leave; see also Doc. 229, Cory’s Reply,
6 n.6. Cory also argued that Atherio’s Voting Agreement required Preferred Series A Shareholders’ approval
to remove directors and that O’Connor and Stewart had Preferred Series A shares. Doc. 229 Cory’s Reply,
6 n.6. With their surreply, O’Connor and Stewart attach the Written Consent (which Cory did not provide).
Doc. 230-2, Defs.’ Surreply App., 3–8. They also offer additional arguments explaining why the Voter
Agreement and Written Consent do not establish that they had power to vote on Cory’s removal. Doc. 230-1,
Surreply, 1–3. Cory does not oppose the offering of the Written Consent or arguments related to it; but he
does oppose additional arguments related to the Voting Agreement. Doc. 231, Cory’s Resp. to Mot. for Leave,
1–2. Because Cory is not opposed, the Court GRANTS O’Connor and Stewart’s motion for leave (Doc. 230)
with respect to filing of the Written Consent and arguments related to it. However, as for the arguments
related to the Voting Agreement, the Court DENIES their motion for leave because O’Connor and Stewart
have addressed those arguments in their summary-judgment briefing. Doc. 224, Defs.’ Resp., 8–9.
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Written Consent also, as an example, elected directors, O’Connor and Stewart’s vote as Preferred
Series A shareholders would have been needed to carry out that action. See Doc. 224-1, Defs.’ Resp.
App., 28 ¶ 3 (Voting Agreement noting that Preferred Series A shareholders shall vote on any
election of directors). That does not mean their vote was required to remove or effective in removing
the existing directors—the votes of the Class A shareholders in the Written Consent accomplished
this on their own. All this to say, based on the available evidence, the Court does not find that
O’Connor and Stewart were needed to remove Cory from Atherio. And if they were not needed, it
makes little sense for Cory to claim that Furst needed and obtained their express authority to remove
Cory from the company.
In all, the Court concludes that Cory has not brought forth sufficient evidence to show that
O’Connor and Stewart gave Furst their express actual authority to enter into an agreement to
remove Cory from the company on their behalf.
It follows then that Cory’s next argument—that Furst had the implied authority to release
O’Connor and Stewart’s claims—also fails because Furst had no express authority to enter into the
Omnibus Agreement for them. Crooks, S.W.3d at 238 (“An agent who does not have express
authority cannot have implied authority.”). However, even if the Court assumes that Furst had their
express authority, the Court finds that the release provision was not merely incidental to the business
Furst was entrusted with—i.e., removing Cory from the company. Thus, it would not have been
within Furst’s implied authority to enter into on Defendants’ behalf.
To succeed on this argument, Cory’s evidence needs to show that releasing O’Connor and
Stewart’s claims against Cory was “proper, usual, and necessary to the exercise of the authority the
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principal expressly delegates.” Nears v. Holiday Hosp. Franchising, Inc., 295 S.W.3d 787, 795 (Tex.
App.—Texarkana 2009, no pet.). Cory argues that Furst had implied authority to enter into the
release because: (1) O’Connor and Stewart were aware of the Omnibus Agreement; (2) that
O’Connor and Stewart did not object to the negotiations or place any limitation on Furst in securing
Cory’s removal; and (3) that they got something of benefit out of the release (specifically,
indemnification). Doc. 219, Cory’s Br. Summ. J., 9–10; Doc. 226, Cory’s Resp., 8–9.
The Court does not believe Cory’s evidence is sufficient to show implied authority. To start,
Furst testified twice that he believed his authority to release O’Connor and Stewart’s claims came
from their silence. Doc. 226, Cory’s Resp., 8 (citing Doc. 220, Cory’s App., 32–34, 39–40). When
first asked why he believed he had O’Connor and Stewart’s authority to sign the Omnibus
Agreement on their behalf, Furst testified: “To my prior point, they never objected to any
communications we had about how we were handling the settlement.” Doc. 220, Cory’s App. (Furst
Dep.), 33–34. When asked specifically why he believed he had the authority to release their claims,
Furst testified: “Well, certainly through the omnibus agreement they did not object to the terms that
we were negotiating with Jason through my discussions with them.” Id. at 39. Cory also cites to
evidence that tends to show O’Connor and Stewart knew that the Omnibus Agreement—or at least
an agreement whereby Cory and Atherio would sever their relationship—was being negotiated. Doc.
226, Cory’s Resp., 8 (citing Doc. 220, Cory’s App., 56–57 (O’Connor Dep.).
O’Connor and Stewart do not deny that they knew negotiations were being held between
Atherio and Cory regarding his removal. Doc. 228, Defs.’ Reply, 1, ¶ 2. Instead, they assert that they
believed Atherio was negotiating solely on its behalf, not theirs. Id. O’Connor and Stewart stated

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that Furst and/or Atherio’s lawyer told them they were not allowed to see the document, and this
led them to believe the agreement did not involve their rights. Doc. 217-5, Defs.’ App., 289–90, ¶ 3
(O’Connor’s Decl.), 293–94, ¶ 3 (Stewart’s Decl.). They also have stated that they never saw the
Omnibus Agreement, let alone the release provision within, before it was executed. Id. at 289–90,
¶¶ 3–5, 293–94, ¶¶ 3–5. Finally, they have declared that they never spoke with Furst about a release
of claims. Id. They do not debate that they never objected to or placed a limitation on Furst’s
negotiation of the Omnibus Agreement; instead, they argue its “absurd” for them to have thought
they needed to do such a thing because they never knew their rights were at stake. Id. 290–91, ¶ 7,
294–95, ¶ 7.
Cory has produced no evidence that contradicts these declarations. Instead, Cory would have
the Court find that O’Connor and Stewart wanted to be bound by a provision they never knew about
or saw because it was “necessary and proper” to carry out his authority to execute the Omnibus
Agreement. The Court refuses to do so—there is nothing in the record that supports the argument
that a release of Stewart and O’Connor’s claims was necessary to execute the Omnibus Agreement.
Nor does the Court find that this release was a proper and usual provision that flowed from Furst’s
purported express authority to enter into an agreement that terminated Cory’s employment. This
latter point is supported by Texas law. In Expro Americas, LLC v. Sanguine Gas Exploration, LLC,
Houston’s 14th Court of Appeals held that while an agent overseeing the drilling of a well had the
express authority to approve necessary services and sign job tickets, the agent did not have the
implied authority to execute indemnity provisions, binding on the principal, that were contained in
those job tickets. 351 S.W.3d 915, 922–24 (Tex. App.—Houston [14th] 2011). The court of appeals

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held that there was not sufficient summary-judgment evidence “support[ing] an inference that
execution of indemnity agreements was a necessary and proper facet of [the agent’s] responsibilities.”
Id. at 924 (citing Reliant Energy Servs., 336 S.W.3d at 783). The court supported its holding by
reasoning that “subjecting [the principal] to massive financial risk of indemnifying [the plaintiff] for
its own negligence would not be an ordinary aspect of [the agent’s] duty of retaining services and
equipment for the project.” Id. at 923. Similarly here, Cory has not shown the Court evidence that
agreeing to release O’Connor and Stewart’s claims was necessary to execute the Omnibus
Agreement, let alone a usual or proper provision that flowed from his alleged actual authority. To
the contrary, like in Expro, this release provision in the Omnibus Agreement results in a substantial
shift of potential liability and risk. And while it may have been ordinary and proper for Furst to
release Atherio’s claims as its CEO, the same is not true as to O’Connor and Stewart, who had their
own personal claims against Cory. The evidence shows that they never saw the release provision, or
the Omnibus Agreement, before it was executed, or spoke to anyone involved in the negotiations
about a release. Cory’s evidence therefore falls short of creating a fact issue on whether O’Connor
or Stewart’s conduct or words would have lead Furst to believe he had the implied authority to
execute a release of their claims.
To summarize, Cory’s evidence is insufficient to create a fact issue as to whether O’Connor
and Stewart intentionally conferred upon Furst the authority, or allowed him to believe he had the
authority, to release their claims against Cory. His evidence also fails to create a fact issue showing
that O’Connor and Stewart allowed Furst to believe, by want of due care, that he had actual
authority to enter into the release. In other words, nothing in the record shows that before the

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Omnibus Agreement was executed, O’Connor and Stewart were willing to release their claims
against Cory and communicated this to Furst. As such, the Court grants summary judgment against
Cory on this issue.
ii.

Apparent Authority

Cory next argues that Furst had apparent authority to sign the Omnibus Agreement on
O’Connor and Stewart’s behalf. Doc. 219, Cory’s Br. Summ. J., 10–13. O’Connor and Stewart argue
Cory has no evidence that they acted in a way necessary to bestow apparent authority. Doc. 224,
Defs.’ Resp., 6–10.
Apparent authority “is based on estoppel, arising ‘either from a principal knowingly
permitting an agent to hold [himself or herself] out as having authority or by a principal’s actions
which lack such ordinary care as to clothe an agent with the indicia of authority, thus leading a
reasonably prudent person to believe that the agent has the authority [he or she] purports to
exercise.” Gaines, 235 S.W.3d at 182 (quoting Baptist Mem. Hosp. Sys. v. Sampson, 969 S.W.2d 945,
948 (Tex. 1998)). “To determine an agent’s apparent authority, the court examines the conduct of
the principal and the reasonableness of the third party’s assumptions regarding the agency’s
authority.” Kirkindoll v. Nat’l Credit Union Admin. Bd., 2015 WL 1636534, at *9 (N.D. Tex. Apr. 13,
2015) (citing Gaines, 235 S.W.3d at 183). Importantly, “only the conduct of the principal is
relevant.” Id. (alterations omitted). “Declarations of the alleged agent, without more, are
incompetent to established either the existence of the alleged agency or the scope of the alleged
agent’s authority.” Id. (quoting Gaines, 235 S.W.3d at 183–84).

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Thus, for Cory to succeed on his apparent-authority theory, the “[principals O’Connor and
Stewart] must have affirmatively held out the agent [Furst] as possessing the authority or must have
knowingly and voluntarily permitted the agent [Furst] to act in an unauthorized manner.” Id. at 11
(emphasis in original) (quoting NationsBank, N.A. v. Dilling, 922 S.W.2d 950, 953 (Tex. 1996) (per
curiam)). O’Connor and Stewart’s “full knowledge of all material facts is essential to establish a claim
of apparent authority based on estoppel.” Id. (quoting Gaines, 235 S.W.3d at 182). So Cory “must
show that [O’Connor and Stewart] had full knowledge of all material facts at the time of the conduct
alleged to be the basis for the apparent authority.” Id. (emphasis added) (quoting Expro Ams., 351
S.W.3d at 925). If Cory has not adduced evidence that O’Connor and Stewart “had knowledge of
the conduct alleged to constitute the basis of the estoppel, apparent authority cannot be established.”
Id. (collecting cases where there was no evidence principals had knowledge of material facts
underlying estoppel theories).
Cory cites to much of the same evidence discussed at length above to support his theory of
apparent authority. As far as additional evidence, Cory cites to his own deposition where he testified
that he believed that Furst had authority to sign the Omnibus Agreement on behalf of O’Connor
and Stewart. Doc. 219, Cory’s Br. Summ. J., 12–13 (citing Doc. 220, Cory’s App., 45–48 (Cory’s
Dep.)). Cory also relies on two additional facts: (1) a provision in the Omnibus Agreement that
states that “[t]he signatory for each party to this Agreement signing on behalf of each such party
acknowledges and warrants that he is fully authorized and legally competent to execute this
Agreement . . . and is a duly authorized representative of such party[,]” id. at 11 (citing Doc. 220,
Cory’s App., 16 (Section 18m of the Omnibus Agreement)); and (2) O’Connor’s deposition

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testimony where she states that it was her belief that Cory was going to indemnify her and Stewart,
and that Cory would probably want something for this. Doc. 226, Cory’s Resp., 12–13 (citing Doc.
220, Cory’s App., 56–57 (O’Connor’s Dep.)). Cory further asserts that because O’Connor also knew
that “settlement discussions” were going on between Cory and Atherio, id. at 12 (citing O’Connor’s
Dep., 268:7–11), she “wanted” any settlement agreement to include the indemnity obligation.
Id. (citing to O’Connor’s Dep. at 326:6–24, which is almost 60 pages away from the portion she
discussed her awareness of settlement talks). To be certain, O’Connor never testified she wanted an
indemnity obligation to go in the Omnibus Agreement; instead, Cory makes this inference on his
own accord from her deposition testimony. Id. at 12.
Considering all of this evidence, Cory has not shown that O’Connor and Stewart had
knowledge that the Omnibus Agreement had the effect of releasing their personal claims against
Cory. This is fatal to his claim of apparent authority. As discussed at length, the alleged principal
must have “full knowledge of all material facts at the time of the conduct alleged” to establish a claim
of apparent authority. Kirkindoll, 2015 WL 1636534, at *11. And O’Connor and Stewart have
introduced uncontroverted evidence that they had no knowledge that Furst was negotiating on their
behalf, and not just for Atherio, nor that he was going to release their personal claims against Cory.
Doc. 228, Defs.’ Reply, 3 (citing Doc. 217-5, Defs.’ App., 289–90, ¶ 3 (O’Connor’s Decl.), 293–94,
¶ 3 (Stewart’s Decl.)). O’Connor and Stewart never saw the Omnibus Agreement before it was
executed and never participated in its negotiation. Id. at 4. Moreover, Furst himself testified that he
would not have discussed the actual release clause or its incorporation in the Omnibus Agreement
with O’Connor and Stewart. Doc. 217-5, Defs.’ App., 324, 331, 334–35 (Furst Dep.). Without any

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evidence that O’Connor and Stewart were at least somewhat aware of the release provision, Cory’s
apparent-authority arguments fail. See Coffey v. Fort Wayne Pools, Inc., 24 F. Supp. 2d 671, 682–83
(N.D. Tex. 1998) (finding third party could not establish a claim of apparent authority were principal
had no knowledge of contracts alleged agent signed until after the contracts were executed); see also
Nears, 295 S.W.3d at 794 (holding there was no apparent authority were there was “no evidence
that [the principal] was made aware of the ‘material facts’ . . . .”).
Further, as stated above, “apparent authority must be based on the acts of the principal.”
Gaines, 235 S.W.3d at 184. Focusing solely on O’Connor and Stewart’s conduct directed at Cory,
it is undisputed that O’Connor and Stewart never spoke to Cory about the Omnibus Agreement.
Doc. 228, Defs.’ Reply, 3 (citing Doc. 220, Cory’s App., 51 (Cory’s Dep.) (“I think I’ve said
numerous times I don’t recall having discussion with plaintiffs related to this topic.”)). Instead, Cory
bases his belief on representations that other parties—not O’Connor or Stewart—made to him. Doc.
220, Cory’s App., 45–46 (Cory testifying in his deposition that he believed Stewart had authorized
the release of his claims based on representations from his own attorney and Atherio’s attorneys).
Cory did not testify that any manifestation or conduct on O’Connor or Stewart’s part led him to
believe that they had given their authority to release their claims. And Cory has brought forth no
other evidence of such conduct on their part.
Additionally, Cory’s reliance on § 18(m) of the Omnibus Agreement is misplaced. First, as
O’Connor and Stewart point out, this is not a representation made by them because they are not
parties to the Agreement. Doc. 224, Defs.’ Resp., 7–8. The Omnibus Agreement states that it was
“made and entered into[,]” “by and among Jason M. Cory (‘Cory’), Atherio, Inc., a Delaware

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corporation and its Affiliates4 (sometimes collectively referred to as, ‘Atherio’), and Prudent Capital
II, L.P., a Maryland limited partnership (‘Prudent’).” Doc. 217-4, Defs.’ App., 256 (Omnibus
Agreement). And the Agreement was signed only by: (1) Jason Cory, for himself; (2) Greg Furst, as
CEO of Atherio and for Atherio; and (3) Steven Schwartz, as the manager of Prudent and for
Prudent. Id. at 267–69. Section 18(m) provides that the “signatory for each party to this Agreement
signing on behalf of each such party acknowledges and warrants that he is fully authorized” to execute
the Agreement. Id. at 266 (Section 18(m)) (emphasis added). Thus, this is not conduct on the part
of O’Connor and Stewart; this is a representation by Furst (and the other signatories) that they have
authority. Texas courts disregard the conduct of the alleged agents in determining apparent
authority. Gaines, 235 S.W.3d at 183. Second, this clause has no relation to the Defendants. Furst
is warranting that he is signing the Omnibus Agreement with Atherio’s authority. O’Connor and
Stewart did not sign and are not parties to the Agreement. Thus, Cory’s argument that O’Connor
and Stewart are somehow included in § 18(m), giving Furst apparent authority, does not hold water.
Because he has no evidence of affirmative conduct on O’Connor and Stewart’s part, Cory
falls back on the argument that O’Connor and Stewart’s silence is evidence that Furst had apparent
authority. Doc. 229, Cory’s Reply, 3–4. But O’Connor and Stewart’s lack of knowledge as to any
release is also fatal to Cory’s argument. It is nonsensical to argue that O’Connor or Stewart should
have objected to Furst’s execution of the Omnibus Agreement, and specifically the release provision,
when they had no knowledge of what was in the Agreement, never saw the Agreement, and did not

4

“Affiliates” is defined in the Omnibus Agreement at § 1(b) and expressly applies to Atherio’s related
business entities, AI, LLC and AIM, LLC. Doc. 217-4, Defs.’ App., 257. It is not alleged that “Affiliates” is
meant to include O’Connor or Stewart.
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participate in the negotiation of the Agreement. This is not a case like the one Cory cites,
PanAmerican Operating Inc. v. Maud Smith Estate, where other conduct from the principal in the case
clothed the agent in indicia of authority, and thus the principal’s silence was, in effect, a
manifestation that its agent had authority. 409 S.W.3d 168, 172–73, 175 (Tex. App.—El Paso 2013,
pet. denied). The El Paso court described that case as one where the principal “had a formal business
relationship with its agent, knew its agent would be contacting third parties on its behalf for the
express purpose of carrying out its business objectives, and outfitted [the agent] with the tools
necessary to accomplish his task.” Id. at 175 (emphasis added). Thus, the court held that the
principal “clothed” the agent “with the indicia of authority he purported to have and on which [the
third party] relied by knowingly failing to take any action to dissuade [the third party] from believing
[the agent] had the authority to bind” the principal. Id. at 176. This case is distinguishable. The
Court has already found above that there was no evidence that Furst had O’Connor and Stewart’s
actual authority to act on their behalf. In fact, they believed the Agreement did not concern them
at all. Furst was not their employee, and this was not a task he was typically employed by the
Defendants to do. See id. at 173 (noting that it was undisputed the agent in that case had the
authority to execute oil and gas leases and negotiate terms on the principal’s behalf).
Thus, Cory has not adduced evidence that based on the conduct of the alleged principals
O’Connor and Stewart, they either knowingly permitted Furst to hold himself out as having authority
or acted with such a lack of ordinary care as to clothe Furst with indicia of authority. Because of this,
the Court finds that Cory’s theory of apparent authority also fails.

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B.

Ratification or “Acceptance-of-Benefits” Theory
Cory’s second theory of liability is that O’Connor and Stewart accepted the benefits of the

Omnibus Agreement and thus are bound by all of its terms. Doc. 219, Cory’s Br. Summ. J., 13–15.
O’Connor and Stewart respond that they neither accepted a benefit under this Agreement nor
ratified the Agreement. Doc. 224, Defs.’ Resp., 12–17.5
Texas contract law6 provides for an equity-based defense termed quasi-estoppel. Clark v.
Cotten Schmidt, L.L.P., 327 S.W.3d 765, 770 (Tex. App.—Fort Worth 2010). Quasi-estoppel
“precludes a party from asserting, to another’s disadvantage, a right inconsistent with a position
previously taken.” Id. (quoting Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 864 (Tex.
2000)). “The doctrine applies when it would be unconscionable to allow a person to maintain a
position inconsistent with one to which he acquiesced, or from which he accepted a benefit.” Id.
“Thus, quasi-estoppel forbids a party from accepting the benefits of a transaction . . . and then
subsequently taking an inconsistent position to avoid corresponding obligations or effects.” Id. (citing
Atkinson Gas Co. v. Albrecht, 878 S.W.2d 236, 240 (Tex. App.—Corpus Christi 1994, writ denied)).
However, similar to an apparent-authority claim, Texas courts hold there “can be no ratification or

5

Additionally, O’Connor and Stewart argue that the Court should grant summary judgment against
Cory on this issue because Cory failed to respond to their briefing and arguments. Doc. 228, Defs.’ Reply, 10.
The Court declines to do so because the Fifth Circuit treats such rulings with disfavor. See Luera v. Kleberg
Cty. Tex., 460 F. App’x 447, 449 (5th Cir. 2012) (“We have approached the automatic grant of a dispositive
motion, such as a grant of summary judgment based solely on a litigant’s failure to respond, with considerable
aversion; and we have permitted such dismissals only when there is a record of extreme delay or
contumacious conduct.” (citing Ramsey v. Signal Delivery Serv., Inc., 631 F.2d 1210, 1214 (5th Cir. 1980))).
6

The same choice-of-law analysis conducted above applies to this issue. See supra, note 1. The Court
applies Texas law here as well.
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estoppel from acceptance of the benefits by a person who did not have knowledge of all material
facts.” Id. (quoting Frazier v. Wynn, 472 S.W.2d 750, 753 (Tex. 1971)).
Similarly, ratification “is the adoption or confirmation, by one with knowledge of all material
facts, of a prior act that did not then legally bind that person and which that person had a right to
repudiate.” Bob Montgomery Chevrolet, Inc. v. Dent Zone Cos., 409 S.W.3d 181, 195 (Tex.
App.—Dallas 2013). “Ratification of a contract occurs when a party recognizes the validity of a
contract by acting under it, performing under it, or affirmatively acknowledging it.” Id. “In other
words, a party ratifies a contract by conduct recognizing the contract as valid with knowledge of all
relevant facts.” Id. (citing Barrand, Inc. v. Whataburger, Inc., 214 S.W.3d 122, 146 (Tex.
App.—Corpus Christi 2006, pet. denied)).
Cory alleges that the Omnibus Agreement provided “various benefits” to O’Connor and
Stewart. Doc. 219, Cory’s Br. Summ. J., 13. However, like Cory’s apparent-authority claim, his quasiestoppel claim fails because he has no evidence that O’Connor or Stewart had knowledge of all
material facts surrounding the negotiation and execution of the Omnibus Agreement. See discussion
supra, pp. 17–20.
Further, the case Cory cites to support his acceptance-of-the-benefits theory is not similar to
the case at bar. Cory relies on a Delaware case where the court held that a nonparty to a purchase
agreement could be bound by an arbitration clause in that agreement because she knowingly
accepted the benefits of the agreement—a computer and its accessories—and “asserted ownership”
over those goods. Doc. 219, Cory’s Br. Summ. J., 14 (citing Westendorf v. Gateway 2000, Inc., 2000
WL 307369, at *4 (Del. Ch. Mar. 16, 2000)). The Delaware court found that “equity dictates that
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plaintiff be bound by the arbitration clause just as someone who actually bought, received and
retained the same computer is bound.” Westendorf, 2000 WL 307369, at *4.
That is not the case here. Cory claims that O’Connor and Stewart should not be allowed to
“reap the benefits” of the Omnibus Agreement while disclaiming the terms they disfavor. Doc. 219,
Cory’s Br. Summ. J., 14. But Cory has not brought forth any evidence showing that O’Connor or
Stewart availed themselves of any benefit from the Omnibus Agreement. For example, Cory argues
that an indemnification clause in the agreement requires Cory to indemnify O’Connor and Stewart
from any damages resulting from Cory’s bad acts while working for Atherio, id. at 14–15; but Cory
has not shown that O’Connor or Stewart ever sought or received money via this provision. See Doc.
224, Defs.’ Resp., 13–14. Cory asserts that because O’Connor and Stewart cited to the
indemnification provision in previous summary-judgment briefing on the nonreliance-clause issue,
they attempted to avail themselves of the provision. Doc. 219, Cory’s Br. Summ. J., 15. The Court
disagrees—O’Connor and Stewart cited the provision as an alternative argument for why the Court
should not permit Cory to supplement his nonreliance defense with terms from the Omnibus
Agreement. See Doc. 63-1, Pls.’ Br. Mot. for Partial Summ. J., 9–10; Doc. 101, Reply, 8–9. O’Connor
and Stewart did not attempt to affirmatively avail themselves of the indemnification provision and
then disclaim any liability under the Omnibus Agreement. Rather, what they asserted there is
entirely consistent with what they are asserting now—that the Omnibus Agreement did not release
their claims against Cory. Without any evidence that they knowingly accepted the benefits of this
provision—i.e., indemnification—the Court finds that Cory is not entitled to equitable or quasicontractual relief based on this argument. See Clark, 327 S.W.3d at 770

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Cory’s claim that O’Connor and Stewart similarly benefitted from a pari passu provision in
the Omnibus Agreement also fails. Doc. 219, Cory’s Br. Summ. J., 14. According to Cory, this
provision was inserted to benefit O’Connor and Stewart because it required Atherio to pay out Cory
pari passu with, or at the same rate as, money owed to O’Connor and Stewart under the terms of
another agreement. Id. (citing § 5 of the Omnibus Agreement). But Cory’s only evidence supporting
his assertion that O’Connor and Stewart received a benefit under this provision is (1) testimony from
Furst that “[t]here was a lot of discussion about this term” and (2) testimony from Cory that
someone told him during negotiations that the term was needed to make O’Connor and Stewart feel
comfortable. Id. (citing Doc. 220, Cory’s App., 34–38, 49–51). Neither of these statements supports
Cory’s argument because neither shows that O’Connor or Stewart knew about the Omnibus
Agreement or this provision. Nor does the testimony show that O’Connor or Stewart availed
themselves of this provision by demanding payment or receiving payment pursuant to it.
Finally, Cory argues that the Omnibus Agreement benefitted O’Connor and Stewart because
it removed Cory from Atherio and has protected them against any potential suits from Cory based
on a covenant-not-to-sue provision. Id. at 14–15. Again, this is not a benefit O’Connor and Stewart
directly attempted to avail themselves of or a provision they attempted to ratify; this is merely an
occurrence between Atherio and Cory that resulted in an incidental benefit to them. Moreover,
Cory’s argument that O’Connor and Stewart benefitted from his covenant not to sue them is purely
hypothetical because Cory has not shown that they invoked this provision as a defense to any claim
Cory brought against them.

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The Court thus finds that Cory has not brought forth any evidence that supports his claim
that O’Connor and Stewart should be held liable under the Omnibus Agreement because they
accepted some benefit under it or ratified it. Because both of Cory’s theories of liability fail as a
matter of law, the Court finds that O’Connor and Stewart are not bound by the Omnibus Agreement
and grants summary judgment in their favor. The Court does not reach Cory’s arguments that
O’Connor and Stewart breached the release provision and that he was harmed by this breach. See
Doc. 219, Cory’s Br. Summ. J., 15–17.
IV.
CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants’ motion for summary judgment
(Doc. 216) and DENIES Plaintiff’s motion for summary judgment as to liability (Doc. 218). Further,
as specified in footnote three, supra, the Court GRANTS in part and DENIES in part Defendants’
motion for leave to file a surreply (Doc. 230). Because this memorandum opinion and order disposes
of the remaining issues in this case, a final judgment will follow. All other pending motions and
deadlines in this case are terminated.
SO ORDERED.
SIGNED: MAY 8, 2019.

_________________________________
JANE J. BOYLE
UNITED STATES DISTRICT JUDGE

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