POE

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

ERIC POE,

Plaintiff,

Civil Action No. 1:20-14586

v. (RMB-SAK)

DRIVER HISTORY SALES CORP.,

et al., OPINION

Defendants.

RENÉE MARIE BUMB, Chief United States District Judge

From Plaintiff Eric Poe’s (“Plaintiff’s”) perspective what follows is a Pynchonesque

plot of corporate intrigue, webby conspiracies, and convoluted financial transactions

instigated to deprive him of 15% of a sale to which he was contractually entitled. Defendants

Stephen Esposito and Scott Nichols (together, “Individual Defendants”) contrastingly relate

an everyday parting of the ways following the termination of the parties’ contractual

relationship and Plaintiff’s right to sale proceeds. Individual Defendants move for summary

judgment as to Plaintiff’s common law fraud and breach-of-contract claims on many grounds.

Having considered the parties’ submissions, the Court resolves the Motion without oral

argument. FED. R. CIV. P. 78(b); D.N.J. LOC. CIV. R. 78.1(b). Upon finding that genuine

disputes of material fact are pervasive, the Court will DENY Individual Defendants’ Motion

for Summary Judgment and intends to SCHEDULE this matter for TRIAL upon submission

of the Final Pre-Trial Order.

I. FACTUAL BACKGROUND1

The present discontent arises from the use of a propriety database compiling driver

history data for insurance risk assessment. In late 2006, Third Party Defendant Mark

Bernstein2 (“Bernstein”) and Individual Defendant Esposito—the creators and proprietors of

the database—contacted Plaintiff, in his capacity as the Chief Operating Officer of Citizens

United Reciprocal Exchange Auto Insurance (“CURE”), proposing CURE’s use of the

database. [Ind. Defs.’ SOMF, at ¶¶ 1–5, 13–14.] Contract negotiations soon began and, in

March 2007, Individual Defendant Esposito, carbon copying Bernstein, emailed Plaintiff a

draft database licensing agreement between CURE and Drivers History Inc. (“DHI”). [Id.,

at ¶¶ 15–18.] The draft agreement identified Plaintiff as the duly authorized representative of

CURE as its President and Chief Executive Officer. [Ex. 4, at 11.] Plaintiff, who disputes

the “details of a final agreement,” testified to “there being a database license agreement

between one of Mr. Esposito’s companies and [CURE]”, but could not recall reviewing it as

1 Unless otherwise indicated, exhibit citations are to those appended to Individual

Defendants’ brief. On this note, because the Court will deny summary judgment after

considering the cited record evidence, Plaintiff’s general and procedural objections to

Individual Defendants’ Statement of Undisputed Facts do not require resolution. [Pl.’s

SOMF, at 2–4.] That said, throughout their Statement of Undisputed Facts Individual

Defendants routinely cite to deposition testimony without providing the corresponding

exhibit number. See generally [Ind. Defs.’ SOMF.] Going forward, Individual Defendants are

advised to cite to the corresponding exhibit number. The Court additionally requests that

Individual Defendants cite to only material facts necessary to resolve a motion for summary

judgment. See D.N.J. LOC. CIV. R. 56.1(a). Individual Defendants’ fractional use of the 150

“material” facts in their Statement of Undisputed Facts belies their materiality and imposes

unnecessary burdens on a Court saddled with motions. See generally [Ind. Defs.’ Br.]

2 Along with their Answer to the operative complaint, Individual Defendants filed a Third

Party Complaint against Bernstein seeking contribution from him for any and all amounts

that Plaintiff may receive. [Docket. No. 114.]

he “would have sent it to my general counsel … [because] … I don’t review contracts.” [Pl.’s

SOMF, at ¶ 18 (quoting Ex. 63, at 36:13–16, 37:15–25).]

In early October 2007, Plaintiff, Individual Defendants, and Bernstein began contract

negotiations over Plaintiff’s assistance “to help procure contracts from outside insurance

companies related to the sale of data relating to unofficial drivers histories.” [Ex. 11, at ¶ A;

Ind. Defs.’ SOMF, at ¶ 19.] The parties dispute whether and to what extent Individual

Defendant Nichols participated in contract negotiations. [Ind. Defs.’ SOMF, at ¶ 31; Pl.’s

SOMF, at ¶ 31.] On October 25, 2007, Individual Defendant Esposito, once more carbon

copying Bernstein, emailed Plaintiff a draft contract identifying Driver History Sales Corp.

(“DHIS”) as the “Customer”, or “the company” as Individual Defendants phrase it in their

factual recitation, DHI “as the parent company of DHIS”, and Plaintiff as the “Consultant”.

[Ind. Defs.’ SOMF, at ¶¶ 23–25; Ex. 11, at 3]. The draft agreement is clearly “between”

Plaintiff and DHIS. [Ex. 11, at 3 (alteration in original).]

Believing that DHIS was a legally incorporated entity, Plaintiff executed a final revised

agreement (the “Consulting Agreement”) with DHIS, effective October 22, 2007. [Pl.’s

Suppl. SOMF, at ¶ 2 (citing Ex. 63 at 22:16–25:9); Ind. Defs.’ SOMF, at ¶ 28 (citing Ex. 11).]

Individual Defendant Esposito signed the contract on behalf of DHIS, an entity which

Individual Defendants “intended to” incorporate but never did. [Ex. 11, at 8; Ind. Defs.’

SOMF, at ¶¶ 32 (citing Ex. 66, at 22:9–27:1), 37, 55–56; Pl.’s Suppl. SOMF, at ¶¶ 1 (citing

Ex. 65, at 52:17–54:4, 74:18–22), 22 (quoting Ex. 67, at 33:20–23).] Individual Defendant

Nichols did not sign the Consulting Agreement in any capacity. [Ex. 11, at 8.]

Section 6 of the Consulting Agreement animates this lawsuit. It consists of two

relevant parts. First, the “Commission Clause” provides that Plaintiff’s commissions would

“be paid from the clients he assists DHIS in retaining, for a period of 20 years from the date

of the contract …., irregardless [sic] if [Plaintiff] is fired for good cause or not or decides to

end his consulting relationship with DHIS.” [Id., at ¶ 6.] Second, the so-called “Sale Clause”,

which immediately follows the Commission Clause and whose interpretation factors greatly

in the pending Motion, reads as follows:

Moreover, in the event DHIS is sold directly (or indirectly through a sale of

DHI parent company) Consultant will receive 15% of the sales proceeds of

DHIS (or allocated share of such) in exchange for a termination of this

consulting agreement and Consultant agrees to forego all future revenue

associated with this agreement post sale.

[Id. (underline in original).]

In September 2009, some two years after the Consulting Agreement entered into effect,

Individual Defendant Nichols sent a letter (the “Termination Letter”3) on DHI letterhead to

Plaintiff terminating the Consulting Agreement pursuant to its terms. [Ind. Defs.’ SOMF, at

¶¶ 62–63 (citing Ex. 26); Pl.’s SOMF, at ¶¶ 62–63 (citing Docket No. 19-5; Ex. 26).] The

Termination Letter refers to the Consulting Agreement as between DHIS and Plaintiff.

[Docket No. 19-5; Ex. 26).] According to the Termination Letter, “[t]he Company will abide

by its past termination obligations. . . in accordance with the terms of the [Consulting]

Agreement,” which included Plaintiff’s continued receipt of commission payments. [Docket

No. 19-5; Ex. 26; Ind. Defs.’ Br., at 66.]

A dominant dispute between the parties is whether Plaintiff’s post-contractual conduct

dating from 2007 to 2013 reflects his intent to do business with DHI and not DHIS as well as

3 Although discovery has apparently only intensified the parties’ quarrel over the existence of

two purported termination letters since the motion-to-dismiss stage, each was drafted on DHI

letterhead and refers to the termination as between Plaintiff and DHIS. See [Docket. No. 19-

5; Ex. 26.]

Individual Defendants’ fraudulent purposes. Individual Defendants collate a bevy of

documentation—audits, bank statements, commission statements, corporate documentation,

customer contracts, emails, financial records, subsequent addendums and agreements—to

argue that Plaintiff knew quite well that DHIS did not exist as a separate corporate entity and

that he always intended to collaborate with DHI. See [Ind. Defs.’ SOMF, at ¶¶ 39, 41–43, 53,

56, 69–72, 78–79, 83–87, 102–113, 117–20.] While acknowledging receipt of most of these

records, Plaintiff embraces not just these records but additional documentation as evidence of

his continued belief of doing business with DHIS and Individual Defendants’ use of it as a

nonexistent corporate entity to defraud him of his contractual share to a future sale. See [Pl.’s

SOMF, at ¶¶ 39, 41–43, 53, 56, 69–72, 78–79, 83–87, 102–113, 117–20; Pl.’s Suppl. SOMF at

¶ 5.]

Proceeding along, what the Sales Clause envisions as a “sale” is hotly disputed by the

parties. In 2012, DHI and Court Services, Inc., (“CSI”), a company owned by Individual

Defendants, merged into a new entity called DHIS LLC. [Ind. Defs.’ SOMF, at ¶¶ 9, 82, 95.]

On August 3, 2012, DHIS LLC executed a “Membership Interest Purchase Agreement” with

DHIS Partners, LLC, an entity affiliated with private equity firm Stadion Capital, who

acquired a 45% “membership interest” in DHIS LLC for the “purchase price” of $5 million.

[Ind. Defs.’ SOMF, at ¶¶ 98–99; Pl.’s Suppl. SOMF, at ¶ 26.] Individual Defendants claim

this transaction constituted a “sale” pursuant to the Sales Clause and that Plaintiff failed to

timely bring this action given his sufficient knowledge of it. Plaintiff disagrees, contending

that TransUnion’s subsequent serial acquisitions of DHIS LLC in 2014 and 2015 are the

properly considered “sales”.

As noted, TransUnion acquired a majority interest in DHIS LLC for $43.8 million

through three securities purchase agreements. [Ind. Defs.’ SOMF, at ¶¶ 129, 134; Pl.’s Suppl.

SOMF, at ¶ 34.] In March 2016, TransUnion purchased the remaining ownership interests

in DHIS LLC for $18.5 million. [Ind. Defs.’ SOMF, at ¶¶ 145–46.] After issuing two demand

letters for he claims is his purported 15% of the total $62.3 million sale of DHIS LLC, Plaintiff

filed the instant action. [Id., at ¶¶ 149–50.] Plaintiff continues to receive commission

payments from TransUnion pursuant to the Consulting Agreement, the precise amount of

which is disputed by the parties. [Ind. Defs.’ SOMF, at ¶¶ 132, 148; Pl.’s SOMF, at ¶¶ 132,

148; Pl.’s Suppl. SOMF, at ¶ 47.]

II. PROCEDURAL HISTORY

This action commenced with the filing of the initial Complaint on October 16, 2020.

[Compl.] Plaintiff then timely filed the operative Amended Complaint on March 14, 2021,

seeking a declaratory judgment pursuant to 28 U.S.C. § 2201 and alleging claims for breach

of contract, fraud, aiding and abetting fraud, and tortious interference of contract.4 [Am.

Compl., at ¶¶ 110–52.] As filed, there were four identifiable categories of defendants: the

entities associated with the propriety database, DHIS and DHI’s successor, DHIS LLC,

which TransUnion ultimately acquired; the current parent companies of DHIS LLC,

TransUnion, LLC, TransUnion Intermediate Holdings, Inc., and TransUnion (collectively,

“TransUnion”); Individual Defendants Scott Nichols and Stephen Esposito; and John

Doe(s), Jane Doe(s), and ABC Companies who allegedly participated in or aided and abetted

the alleged fraud against Plaintiff. [Id., at ¶¶ 10–21.]

4 Plaintiff originally filed the Amended Complaint on March 12, 2021, [Docket No. 30], but

submitted a corrected version two days later.

Following Plaintiff’s settlements with TransUnion and DHIS LLC, the remaining

defendants are DHIS, Individual Defendants, and the unidentified individuals and

companies. [Docket No. 157.] Individual Defendants now move for summary judgment as

to the declaratory judgment, breach-of-contract, and fraud claims against them.5 [Docket.

Nos. 176, 176-1 (“Ind. Defs.’ Br.”).] The Motion for Summary Judgment is fully briefed and

ripe for review. [Docket Nos. 179 (“Pl.’s Opp. Br.”), 181 (“Ind. Defs.’ Reply Br.”).]

III. JURISDICTION

The Court exercises subject matter jurisdiction over this matter pursuant to 28 U.S.C.

§ 1332(a) because there is complete diversity of citizenship between the parties and the

amount in controversy exceeds $75,000. [Am. Compl., at ¶ 23.] Plaintiff is a citizen of

Pennsylvania. [Id., at ¶ 9.] Individual Defendants are citizens of Utah and New Jersey who

are alleged to have formed Defendant DHIS, an unincorporated association, for the purpose

of defrauding Plaintiff of sale proceeds. [Id., at ¶¶ 12, 18–19.]

IV. LEGAL STANDARD

Summary judgment is only 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). The “mere existence of some alleged factual dispute between the parties

will not defeat an otherwise properly supported motion for summary judgment; the

requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247–48 (1986) (emphasis in original). A fact is only “material” for purposes of

a summary judgment motion if a dispute over that fact “might affect the outcome of the suit

5 After ordering limited discovery, the Court denied Individual Defendants’ Motion to

Dismiss on January 25, 2023. [Docket Nos. 53, 101–02.]

under the governing law.” Id. at 248. A dispute about a material fact is “genuine” if “the

evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

A dispute is not genuine if it merely involves “some metaphysical doubt as to the material

facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

When deciding the existence of a genuine issue of material fact, a court’s role is not to

weigh the evidence: all reasonable “inferences, doubts, and issues of credibility should be

resolved against the moving party.” Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n.2 (3d Cir.

1983). Nevertheless, “the mere existence of a scintilla of evidence,” without more, will not

give rise to a genuine issue for trial. Anderson, 477 U.S. at 252. In the face of such evidence,

summary judgment is still appropriate “[w]here the record ... could not lead a rational trier of

fact to find for the nonmoving party....” Matsushita Elec. Industrial Co., 475 U.S. at 586–87.

“Summary judgment motions thus require judges to ‘assess how one-sided evidence is, or

what a “fair-minded” jury could “reasonably” decide.’” Williams v. Borough of West Chester,

891 F.2d 458, 460 (3d Cir. 1989) (quoting Anderson, 477 U.S. at 265).

The movant “always bears the initial responsibility of informing the district court of

the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the 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) (quoting FED. R. CIV. P. 56(c)). If the moving party makes this showing, the

burden shifts to the nonmovant who “must set forth specific facts showing that there is a

genuine issue for trial.” Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 288–89 (3d Cir. 2018)

(quoting D.E. v. Cent. Dauphin Sch. Dist., 765 F.3d 260, 268–69 (3d Cir. 2014)).

V. DISCUSSION

Plaintiff seeks a declaratory judgment and sets forth claims of common law fraud and

breach of contract against Individual Defendants. [Am. Compl., at ¶¶ 110–36.] Individual

Defendants variably argue for dismissal on the merits, personal liability in contract, statute of

limitations, and economic loss doctrine.6 See generally [Ind. Defs.’ Br.] Fortunately, a

significant amount of the respective analyses overlap, so the Court will proceed issue by issue,

rather than claim by claim, for ease of readability.

A. Personal Liability in Contract

Individual Defendants contend that neither can be held personally liable under the

Consulting Agreement because Plaintiff “clearly intended to contract with DHI and Plaintiff

knew that any acts of the Individual Defendants were in their capacity as agents for that

company.” [Id., at 15.] Plaintiff generally relies on the language of the Consulting Agreement

to argue that he intended to contract with DHIS, an allegedly nonexistent entity, thus

rendering Individual Defendants personally liable. [Pl.’s Opp. Br., at 28–32.] After review,

the Court finds that Plaintiff’s interpretation of the Consulting Agreement on this issue is

reasonable and personal liability potentially available so as to defeat summary judgment.

Under New Jersey law, “‘[i]t is well settled that courts enforce contracts based on the

intent of the parties, the express terms of the contract, surrounding circumstances and the

6 The parties’ fracas over whether Individual Defendants properly moved for summary

judgment on the declaratory judgment claim is moot because there are no grounds

independent of those rejected herein upon which dismissal is premised. [Pl.’s Opp. Br., at 21

n.5; Ind. Defs.’ Reply Br., at 1 n.1.]

underlying purpose of the contract.’”7 Ly Berditchev Corp. v. Truss Costs. Corp., No. 2:22-CV-

04242 (BRM) (CLW), 2025 WL 303993, at *7 (D.N.J. Jan. 27, 2025) (quoting Dill v. Yellin,

725 F. Supp. 3d 471, 481 (D.N.J. 2024)). “If the language of a contract is plain and capable

of legal construction, the language alone must determine the agreement’s force and effect[,]

… [b]ut [e]ven in the interpretation of an unambiguous contract, [courts] may consider all of

the relevant evidence that will assist in determining [its] intent and meaning.” Manahawkin

Convalescent v. O’Neill, 85 A.3d 947, 958–59 (N.J. 2014) (internal citations omitted); see Nat’l

Util. Serv., Inc. v. Chesapeake Corp., 45 F. Supp. 2d 438, 446 (D.N.J. 1999) (citing Atl. N. Airlines

v. Schwimmer, 12 N.J. 293, 301 (1953)) (“Evidence of the circumstances is always admissible

in aid of the interpretation of an integrated agreement. This is so even when the contract on

its face is free from ambiguity.”).

New Jersey law further dictates that, “[i]n a summary judgment motion pertaining to

contract interpretation, granting the motion is only appropriate when the contractual

language is unambiguous—i.e., ‘subject to only one reasonable interpretation.’” Ly Berditchev

Corp., 2025 WL 303993, at *7 (quoting Mylan Inc. v. SmithKline Beecham Corp., 723 F.3d 413,

418 (3d Cir. 2013)); Arnold M. Diamond, Inc. v. Gulf Coast Trailing Co., 180 F.3d 518, 521 (3d

Cir. 1999). “If the nonmoving party presents a reasonable alternative reading of the contract,

then a question of fact as to the meaning of the contract exists which can only be resolved at

trial.” Newport Assocs. Dev. Co. v. Travelers Indem. Co., 162 F.3d 789, 792 (3d Cir. 1998) (citing

Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987)); Landtect Corp. v. State Mut.

Life Assurance Co., 605 F.2d 75, 80 (3d Cir. 1979).

7 Implicit in the parties’ briefing is that New Jersey law applies, which is consistent with their

intent as enshrined in the Governing Law provision of the Consulting Agreement. [Ex. 11,

at ¶ 29.]

As to whom Plaintiff contracted with, the Consulting Agreement is clear on its face:

DHIS. The contract’s express terms clearly distinguish DHI from DHIS: (1) DHI is identified

as “the parent company of DHIS”; (2) Plaintiff’s 10% option purchase in DHIS “does not

contemplate any ownership interest in DHI”; and (3) Individual Defendant Esposito signed

the Consulting Agreement on behalf of DHIS, not DHI. [Ex. 11, at 2–3, 8.] This is hardly

debatable. As Individual Defendants acknowledge, “[t]he polestar of contract construction is

to discover the intention of the parties as revealed by the language used by them.” [Ind. Defs.’ Br.,

at 23 (citing Karl’s Sales & Servs., Inc. v. Gimbel Bros., 592 A.2d 647, 650 (N.J. App. Div. 1991)

(emphasis added).] This polestar is all the more calibrated to DHIS being the contracting

entity by Individual Defendants’ admission that “[t]he draft agreement [of the Consulting

Agreement] identified the company as DHIS” and “DHI … as the parent company of DHIS.”

[Ind. Defs.’ SOMF, at ¶¶ 24–25 (citing Ex. 8).]

Notwithstanding the Consulting Agreement’s language being “plain and capable of

legal construction,” Manahawkin Convalescent, 85 A.3d at 958–59, Individual Defendants

switch gears and cite to Plaintiff’s pre-contractual conduct to essentially argue that DHI and

DHIS are one and the same, [Ind. Defs.’ Br., at 15–22]. This is apparently so because Plaintiff

knew of DHI prior to entering into the Consulting Agreement and allegedly conceded “that

he intended to enter a contract with the drivers history entity providing the services that

CURE was using,” i.e., DHI. [Id., at 22.] As Plaintiff correctly points outs, however, the

cited excerpts of his deposition testimony do not support this theory and he even testified later

in the same deposition that he did not “recall” whether DHI … had entered into a database

agreement with CURE.” [Pl.’s SOMF, at ¶ 33 (citing Ex. 63, at 64:18–65:3).] Nevertheless,

and even though the contract’s language is unambiguous and Plaintiff’s interpretation

certainly reasonable, Individual Defendants have produced just enough extrinsic evidence of

the “surrounding circumstances”, Ly Berditchev Corp., 2025 WL 303993, at *7, to cause this

Court hesitation in ruling in Plaintiff’s favor under New Jersey law, see [Ind. Defs.’ SOMF,

at ¶¶ 39, 41–43, 53, 56, 69–72, 78–79, 83–87, 102–113, 117–20]; see also infra, at 24–25 (finding

dispute of material fact as to whether Plaintiff’s post-contractual conduct reveals his intention

to contract with DHIS or DHI for purposes of fraud claim).8 Thus, for the foregoing reasons,

principles of New Jersey contract law constrain this Court to find that summary judgment is

not appropriate under these circumstances.9 Newport Assocs. Dev. Co., 162 F.3d at 792; Landtect

Corp., 605 F.2d at 80.

8 This line of reasoning also dispenses with Individual Defendants’ additional argument that,

although the Consulting Agreement “clearly discloses that DHI … is the parent company of

DHIS and Plaintiff knew of DHI’s existence,” DHIS is merely a “common name[ ] or trade

name[ ]” for DHI. [Ind. Defs.’ Br., at 16–17.] How or why a clearly identified subsidiary—

which is allegedly nonexistent—is synonymous with its clearly identified parent company is

left unexplained. See [id.] This lack of explanation, along with the discussion above, does not

render unreasonable Plaintiff’s interpretation that he intended to contract with DHIS.

Additionally, the out-of-circuit cases cited by Individual Defendants have nothing to do with

whether persons allegedly misrepresenting the existence of a corporate entity and signing a

contract on its behalf may be personally liable under New Jersey law. See The Promotion

Co./Special Events Div. v. Sweeney, 782 N.E.2d 117 (Ohio App. 2002); Evans v. Med. & Pro.

Collection Servs., Inc., 741 N.E.2d 795 (Ind. Ct. App. 2001).

9 Individual Defendants separately argue that DHI’s and Plaintiff’s post-contractual conduct

show that DHIS and DHI functioned as a single entity such that DHI as the parent company,

may be held liable, but not Individual Defendants personally. [Ind. Defs.’ Br., at 18–20.]

Rather too cleverly by half, Individual Defendants are practically asking the Court to pierce

DHIS’s corporate veil and assign potential contractual liability to DHI so as to save

themselves from personal liability; hence their recognition that the present situation “is not

unlike a scenario in which a parent company is liable for the contractual obligations of its

subsidiaries.” [Id., at 18 (emphasis added).] Whatever the dubious merit this theory may

possess, the fatal defect is that it fundamentally misunderstands the facts of this case and

requires there to be a corporate veil to pierce in the first place.

As explained above, the summary judgment record establishes that Individual Defendant

Esposito signed the Consulting Agreement on behalf of DHIS, a nonexistent entity, which

Plaintiff believed was incorporated and extant. Under these circumstances, it would strike the

Consequently, the question of Individual Defendants’ personal liability for contracting

on the behalf of DHIS, an entity Plaintiff believed legally incorporated but which never was,

is also unsuitable for resolution at this time. See Fashion Brokerage Int’l, LLC v. Jhung Yuro Int’l

LLC, No. CIV. 10-746 RBK/JS, 2011 WL 976478, at *4 (D.N.J. Mar. 14, 2011) (first citing

Fed. Adver. Corp. v. Hundertmark, 160 A. 40, 40 (N.J. 1932); and then citing Gallant v. Fashion

Piece Dye Works, 174 A. 248, 249 (N.J. Ch. 1934)) (“A person is individually liable for

contracts he signs under a nonexistent corporate name.”); [Ind. Defs.’ SOMF, at ¶¶ 32, 37,

55–56; Pl.’s SOMF, at ¶ 1 (citing Ex. 65, at 52:17–54:4, 74:18–22), ¶ 2 (citing Ex. 63, at 22:16–

25:9), ¶¶ 13–14 (quoting Docket No. 88, at 71:20–24, 72:9–15), ¶ 15 (quoting Docket No. 90-

1, at ¶¶ 5–6)], ¶ 22 (quoting Ex. 67, at 33:20–23).]

Relatedly, Individual Defendants assert that if personal liability obtains, it cannot

attach to Individual Defendant Nichols because he “had no involvement whatsoever in the

negotiation or execution of the Consulting Agreement”, “did not even find out about the

Consulting Agreement or Plaintiff’s involvement …until after its execution”, and “repeatedly

told [Plaintiff] over and over again that DHIS did not exist separately from DHI … and further

explained the corporate names on several occasions”. [Ind. Defs.’ Br., at 22–23 (citing Exs.

5–10, 68, at 8:10–11:8).] Plaintiff disputes this alleged noninvolvement, citing to deposition

Court as perverse to permit individuals to protect themselves against personal liability by

availing themselves of veil-piercing theories meant to protect against abuses of the corporate

form. This may explain why the cases cited by Individual Defendants do not lend support to

their cause. See Pearson v. Component Tech. Corp., 247 F.3d 471, 485 (3d Cir. 2001); RRX Indus.,

Inc. v. Lab-Con, Inc., 772 F.2d 543, 545 (9th Cir. 1985); Akzona Inc. v. E.I. Du Pont De Nemours

& Co., 607 F. Supp. 227, 237 (D. Del. 1984); State, Dep’t of Env’t Prot. v. Ventron Corp., 468

A.2d 150, 164–65 (N.J. 1983). The Court declines to fashion out of whole cloth legal theories

not supported by the papers and in the presence of a deeply contested factual environment.

There is therefore no compelling reason to address Plaintiff’s alternative argument that

personal liability may lie on a theory of piercing the corporate veil. [Pl.’s Opp. Br., at 31–32.]

testimony wherein he testified to multiple in-person, telephonic, and electronic conversations

he had with both Individual Defendants and Bernstein over the terms of the Consulting

Agreement during negotiations. [Pl.’s Opp. Br., at 32 (citing Ex. 64, at 40:17–22, 43:01–08,

44:3–11).] There is no dispute, however, that Individual Defendant Nichols did not sign the

executed Consulting Agreement in any capacity. [Ex. 11, at 8.]

“[E]ven accepting Plaintiff’s testimony as true,” [Ind. Defs.’ Reply Br., at 11], in

Individual Defendants’ words, the question then becomes whether, as a matter of New Jersey

law, a non-signatory to a contract may nevertheless be held personally liable in contract under

allegedly fraudulent circumstances. Individual Defendants richly argue that “Plaintiff

provides no legal authority” to do so, [id.], yet, neither have the Individual Defendants, as

movants of the pending Motion, supplied any caselaw or legal discussion as to why a non-

signatory who disputedly committed fraud during pre-contract negotiations cannot be held

liable under contract. See [Ind. Defs.’ Br., at 22–23; Ind. Defs.’ Reply Br., at 11.] The Court

will not assume the role of a pro bono amanuensis,10 and summary judgment is therefore not

appropriate.11

B. The Economic Loss Doctrine

Next, the Court finds that Plaintiff’s fraud claim is not precluded by New Jersey’s

economic loss doctrine. Under New Jersey law, the economic loss doctrine “prohibits

10 So finding, there is no reason to determine whether Individual Defendant Nichols’s post-

contractual conduct has any bearing on his personal liability as a non-signatory to the

Consulting Agreement. [Ind. Defs.’ Br., at 23.]

11 To the extent Individual Defendants intended this argument to apply to the fraud claim as

well, that claim also survives summary judgment because the failure to educate the Court on

this issue equally afflicts Individual Defendants’ position. See [Ind. Defs.’ Br., at 22–23; Ind.

Defs.’ Reply Br., at 11.]

plaintiffs from recovering in tort economic losses to which their entitlement only flows from

a contract.” LM Ins. Corp. v. Favor Servs. Inc. & Novie Pramudita, No. 24-05932 (KMW-EAP),

2025 WL 3451333, at *7 (D.N.J. Dec. 1, 2025) (internal citation omitted). Individual

Defendants argue that Plaintiff’s “only claimed damages”—his 15% of the sale proceeds—

singularly relate to alleged contractual nonperformance and not to any fraud on their behalf.

[Ind. Defs.’ Br., at 14.]

“The threshold question regarding the economic loss doctrine’s applicability to fraud

and contract claims plead together ‘is whether the allegedly tortious conduct is extraneous to

the contract.’” Red Hawk Fire & Sec., LLC v. Siemens Indus. Inc., 449 F. Supp. 3d 449, 465

(D.N.J. 2020) (internal citation omitted). It is well-settled that tortious extraneity normally

lies in fraudulent inducement claims, which “may proceed alongside a breach of contract

claim because the former is based on pre-contractual misrepresentations that are extrinsic to

the parties’ agreement.” Id. (citations omitted); see Grasso Foods, Inc. v. Wynn Env’t Sales Co.,

No. CV 17-6430 (RMB/AMD), 2018 WL 3455479, at *3 (D.N.J. July 18, 2018) (collecting

cases recognizing fraud-in-the-inducement exception to New Jersey’s economic loss

doctrine). Plaintiff’s theory is that Individual Defendants fraudulently induced him to sign

the Consulting Agreement by misrepresenting the corporate existence of DHIS, which, as

explained above, he has marshaled sufficient material facts to survive summary judgment.

See supra, at 9–14; see also infra, at 24 (finding dispute of material fact as to whether Individual

Defendants materially misrepresented the separate corporate existence of DHIS under theory

of fraudulent inducement).

Individual Defendants retort that Plaintiff’s claim is intrinsically contractual because

“the claimed misrepresentation consist[ed] solely [of] being given a copy of the contract

naming DHIS as a party.” [Ind. Defs.’ Reply Br., at 7.] Whatever the merit of this argument

as a matter of (unbriefed) law, the record evidence also includes a draft of the Consulting

Agreement exchanged during negotiations which Individual Defendants concede identified

DHIS as the company. [Ind. Defs.’ SOMF, at ¶¶ 24–25 (citing Ex. 8).] Individual

Defendants, moreover, fail to consider that Plaintiff is also seeking punitive damages which

are generally not recoverable under New Jersey contract law. [Am. Compl., at 33]; see

Heartland Payment Sys., LLC v. Carr, No. CV-189764-BRM-DEA, 2020 WL 13580941, at *5

(D.N.J. Dec. 28, 2020) (citing Thomas v. Nova Se. Univ., 468 F. App’x 98, 100 (3d Cir. 2012))

(“Defendants are generally correct that punitive damages may not be awarded for contractual

claims.”). As such, Plaintiff’s claim of fraud is not barred by the economic loss doctrine and

may proceed.

C. The Sales Clause

Moving on to the merits of Plaintiff’s breach-of-contract claim, Individual Defendants

dually argue that the record evidence in this case leads to only one reasonable interpretation

of the Sales Clause: it “did not survive the termination of the Consulting Agreement” and,

further, that a 2012 transaction was a “sale” under the Sales Clause which Plaintiff had

sufficient knowledge of but failed to timely act upon in accordance with the statute of

limitations. [Ind. Defs.’ Br., at 27–34.] Each is addressed in turn. The Sales Clause reads as

follows:

Moreover, in the event DHIS is sold directly (or indirectly through a sale of

DHI parent company) Consultant will receive 15% of the sales proceeds of

DHIS (or allocated share of such) in exchange for a termination of this

consulting agreement and Consultant agrees to forego all future revenue

associated with this agreement post sale.

[Ex. 11, at ¶ 6.]

a. Survivability

The parties agree that the Consulting Agreement was terminated in September 2009.

[Ind. Defs.’ SOMF, at ¶ 62; Pl.’s SOMF, at ¶ 62.] What is disputed is whether the Sales

Clause and Plaintiff’s 15% entitlement to a future sale survived the termination.12 [Ind. Defs.’

Br, at 23–27; Pl.’s Opp. Br., at 32–34.] Individual Defendants mainly advocate for a

straightforwardly plain reading of the Sales Clause’s language: Plaintiff would receive 15% of

a future sale in exchange for termination of the Consulting Agreement and future commission

payments. [Ind. Defs.’ Br., at 23–27.] Individual Defendants’ illustrative hypothetical in

support—assuming Plaintiff’s proffered interpretation that termination of the Consulting

Agreement is immaterial, then he could theoretically receive 15% of a given sale in addition to

20 years of commission payments, thus depriving Individual Defendants of consideration—

is more straw than steel man, however. Plaintiff’s cited record evidence recognizes this fodder

for what it is and allows the livestock to peaceably graze.

During his deposition, Plaintiff testified that he understood his 15% entitlement to the

sale proceeds would be in exchange for termination of his commission payments.13 [Pl.’s

Suppl. SOMF, at ¶¶ 11 (citing Ex. 64, at 27:16–23, 31:8–13).] Given that Plaintiff’s

commission payments are capped at 20 years under the Consulting Agreement, this

12 The parties’ quarrel over the existence of two purported termination letters and the

concomitant evidentiary issues do not factor into their arguments over the interpretation of

the Sales Clause. See [Ind. Defs.’ Br., at 23–27; Pl.’s Opp. Br., at 32–34; Ind. Defs.’ Reply

Br., at 8–9.]

13 On first blush, Plaintiff’s deposition testimony would appear to support Individual

Defendants’ position, as he testified that his 15% entitlement arose if the company was “sold

at any point in time.” [Ex. 64, at 27:16–23.] Counsel’s follow-up hypothetical, when viewed

in the light most favorable to Plaintiff, qualifies the “any point in time” language to such a

period when Plaintiff would still be receiving commission payments. [Id., at 31:8–13].

interpretation would naturally impose 20-year temporal limitation on his 15% entitlement.

[Ex. 11, at ¶ 6.] This position also has textual support, as Plaintiff’s entitlement would be “in

exchange for a termination of this consulting agreement and Consultant agrees to forego all future

revenue associated with this agreement post sale.” [Id. (emphasis added).] This language

reasonably presupposes ongoing commission payments. Bernstein, who Individual

Defendants recognize as “being involved in the negotiation of the Consulting Agreement,”

[Ind. Defs.’ Br., at 26], concurringly attested that, “It was always my understanding, and

remains my understanding, that … [Plaintiff] was entitled to a portion of the sales proceeds

at any time that the company was sold,” at which point Plaintiff “would stop receiving

commissions after the sales proceeds were paid to him,” [Pl.’s Suppl. SOMF, at ¶¶ 18–19

(citing Docket No. 90-1, ¶¶ 8, 10)]. After considering “the intent of the parties, the express

terms of the contract, [and] surrounding circumstances,” Ly Berditchev Corp., 2025 WL

303993, at *7, the Court finds that Plaintiff’s interpretation of the Sales Clause is reasonable,

and thus the survivability of the Sales Clause is interpretatively ambiguous whose resolution

is reserved for the factfinder.14 Newport Assocs. Dev. Co., 162 F.3d at 792; Landtect Corp., 605

F.2d at 80.

14 The Court’s finding does not change when considering Individual Defendants’ evidence

that Plaintiff, in 2011, had a business evaluator prepare a valuation of his “revenue sharing

agreement” which did not include “any reference to the sales clause and Plaintiff’s ability to

receive 15% of the proceeds of a future sale.” [Ind. Defs.’ SOMF, at ¶ 91 (quoting Ex. 32).]

The argument being that had Plaintiff truly believed his entitlement survived termination, it

would have been included in the valuation. [Ind. Defs.’ Br., at 26.] However believable this

interpretation of the evidence may be, the language of the Sales Clause and Plaintiff’s record

evidence demonstrate the reasonableness of his interpretation.

b. The Statute of Limitations

The parties agree that New Jersey’s six-year statute of limitations applies to Plaintiff’s

breach-of-contract claim.15 [Ind. Defs.’ Br., at 29; Pl.’s Opp. Br., at 34]; see N.J. STAT. ANN.

§ 2A:14-1. Because Plaintiff filed the original Complaint in October 2020, its timeliness

would likely rest on an October 2014 accrual date. [Compl.] Individual Defendants argue

that Plaintiff’s breach-of-contract claim is time-barred because he was sufficiently aware of a

2012 “sale” no later than June 21, 2013. [Ind. Defs.’ Br., at 28–34.] Plaintiff counters that

the proper “sales” were the November 2014 and March 2016 TransUnion transactions. [Pl.’s

Opp. Br., at 35.] By way of background, in 2012, DHI and CSI merged into a new entity

called DHIS LLC. [Ind. Defs.’ SOMF, at ¶ 95; Pl.’s SOMF, at ¶ 95.] On August 3, 2012,

DHIS LLC executed a “Membership Interest Purchase Agreement” with DHIS Partners,

LLC, who acquired a 45% “membership interest” in DHIS LLC for the “purchase price” of

$5 million. [Ex. 37, at 2.]

According to Individual Defendants, Plaintiff’s sworn interrogatory response

establishes the parties’ intent to have the Sales Clause “apply to any sales event.” [Ind. Defs.

Br., at 31–33 (emphasis in original).] Plaintiff, on the other hand, posits that the 2012

15 The Court will not indulge Individual Defendants’ argument that the fraud claim is time-

barred as “[i]t is not the Court’s responsibility to sift through the record—let alone a

voluminous record like the one here—to find evidence supporting [their] position.” Dor v. TD

Bank, No. 2:21-CV-18955-BRM-LDW, 2023 WL 9017558, at *10 (D.N.J. Dec. 29, 2023)

(internal citation omitted); DeShields v. Int’l Resort Props. Ltd., 463 F. App’x 117, 120 (3d Cir.

2012) (internal citation omitted) (“[J]udges are not like pigs, hunting for truffles buried in

briefs.”). Individual Defendants’ brief on this issue contains not a single citation to the record

to support their factual claims. See [Ind. Defs.’ Br., at 27–28.] What is more, Individual

Defendants myopically focus their argument on Plaintiff’s cognizance of DHIS’s legal

corporate status and omit entirely any mention of when he might have reasonably discovered

the relevant sale, thus depriving him of his 15% entitlement— the alleged purpose of the

machination. See [id.]

transaction was “a minority investment” that did not trigger the Sales Clause. [Pl.’s Opp. Br.,

at 35.] Neither party offers any argument as to the meaning of the language of the Sales

Clause, jumping straight to extrinsic evidence. See [Ind. Defs.’ Br., at 31–34; Pl.’s Opp. Br.,

at 35–18; Ind. Defs.’ Reply Br., at 12–14.] For its own sake, the Court will begin with the

“plain and ordinary meaning” of the Sales Clause. Progressive Garden State Ins. Co. v. Metius,

581 F. Supp. 3d 661, 667 (D.N.J. 2022) (quoting Port Auth. of N.Y. & N.J. v. Affiliated FM Ins.

Co., 311 F.3d 226, 235 (3d Cir. 2002)).

To start, the term “sale” is not defined in the Consulting Agreement. See [Ex. 11.]

The Oxford English Dictionary broadly defines “sale” as “[t]he action or an act of selling or

making over to another for a price; the exchange of a commodity for money or other

valuable consideration.” THE OXFORD ENGLISH DICTIONARY, https://www.oed.com/dicti

onary/sale_n2?tab=meaning_and_use#24383209 (last visited Dec. 8, 2025); see Centennial

Plaza Prop, LLC v. Trane U.S. Inc., 771 F. Supp. 3d 481, 489 (D.N.J. 2025) (giving contract

terms their plain and ordinary meaning “often” requires using “general-use dictionaries”)

(collecting cases). The ordinary meaning of “sale” thus appears to encompass transfers of any

ownership interest from one to another at a price, regardless of whether the transaction would

net the seller a gain or loss. See THE MERRIAM–WEBSTER DICTIONARY,

https://www.merriam-webster.com/dictionary /sale (last updated Dec. 8, 2025) (defining

“sale” as “the transfer of ownership of and title to property from one person to another for a

price”).

But, when “read ‘as a whole in a fair and common sense manner’”, it is unclear if a

divisible sale of DHIS would trigger the Sales Clause, which Individual Defendants further

muddle by their position that DHIS is a nonexistent corporate entity. Manahawkin

Convalescent, 85 A.3d at 958 (quoting Hardy ex rel. Dowdell v. Abdul–Matin, 965 A.2d 1165 (N.J.

2009)). That clause is triggered “in the event DHIS is sold” and Plaintiff would “receive 15%

of the sales proceeds of DHIS.” [Ex. 11, at ¶ 6 (emphasis added).] Put differently, the Sales

Clause conceivably refers to DHIS in its totality. Harking back to Individual Defendants’

hypothetical eviscerating their consideration under one interpretation of the Sales Clause,

Plaintiff’s own empty-handedness is equally imaginable under a broad definition of “sale”. If

the Sales Clause could be triggered by any divisible sale of DHIS, then it is contemplatable for

Plaintiff to receive a fractional amount of a hypothetical sale in the first year of the Consulting

Agreement, thereby possibly foregoing nineteen lucrative years of commission payments.

Being aware of the sums involved in this case, surely there cannot be much debate that this

scenario is not likely what Plaintiff intended when he executed the Consulting Agreement.

At best, the language of the Consulting Agreement is ambiguous as to the definition of the

term “sale”.

Onward to the parties’ extrinsic evidence, which is limited to Plaintiff’s interrogatory

response and expert opinion. When questioned if the Sales Clause “was intended to cover

any positive purchase event, whether a whole or partial asset sale, a whole or partial stock

sale or any other purchase transactions,” Plaintiff responded as follows: “Section 6 was

intended to, and it does broadly cover, any positive purchase event, be it a whole or partial

asset sale, a whole or partial stock sale or any other purchase transaction.” [Ex. 51, at ¶ 3.]

Individual Defendants take Plaintiff’s alleged admission to mean that “sale” “broadly covers

any purchase transaction to include a partial stock/membership sale of 45% of the company.”

[Ind. Defs.’ Br., at 33.]

Plaintiff, in response, points out that the “prefatory phrase” “positive purchase event”

qualifies any intended meaning of “whole or partial asset, a whole or partial stock sale or any

other purchase transaction” to exclude the purchase of a minority ownership interest. [Pl.’s

Opp. Br., at 37.] But this contention is mere argument and not directly supported by Plaintiff’s

cited summary judgment evidence; Plaintiff’s testimony that he understood the Sales Clause

to be triggered “if the entire company was sold in 2012”, while relevant, does not appear to

touch upon the definition of “positive purchase event”. See [Pl.’s Opp. Br., at 37 (quoting Ex.

63, at 132:22–24).] Be that as it may, and while Individual Defendants’ position that to equate

“positive purchase event” to a sale of the entire company is certainly reasonable in light of the

“plain language meaning of partial stock sales, partial asset sales and any other purchase

transaction,” [Ind. Defs.’ Br., at 14], the Court is essentially being asked to premise the legal

construction of a contractual term on the derivative legal construction of a non-contractual

term used in the course of discovery and left undefined (or ambiguously so) by the parties.

This, along with the intrinsically ambiguous definition of “sale” persuades the Court that both

parties’ proffered interpretations of “sale” as used in the Sales Clause are reasonable,

delegating it to the jury to decide.16 Newport Assocs. Dev. Co., 162 F.3d at 792; Landtect Corp.,

605 F.2d at 80.

16 As the Court has already determined that there exists a genuine dispute of material fact as

to the meaning of “sale”, the Court declines to consider the opinion of Plaintiff’s retained

expert, Dr. Jeffrey M. Katz, that the 2012 transaction was an investment and not a sale

according to applicable accounting standards. Neither party has briefed the issue of whether

a federal court sitting in diversity and applying New Jersey substantive law and federal

procedural law may properly consider an expert’s opinion on contract interpretation, and, if

so, what the proper scope of that opinion maybe. See [Ind. Defs.’ Br., at 31–32; Pl.’s Opp.

Br., at 35–36; Ind. Defs.’ Reply Br., at 12–13.] Seeing no need to wade into waters the parties

themselves have avoided, the Court will stay out of the water as well. The finding of this

factual ambiguity also nullifies any need to address Individual Defendants’ alternative

argument that, no later than June 21, 2013, Plaintiff was sufficiently aware of the 2012

D. The Fraud Claim

To state a claim for common law fraud under New Jersey law, a plaintiff must show:

“(1) a material misrepresentation of a presently existing or past fact; (2) knowledge or belief

by the defendant of its falsity; (3) an intention that the other person rely on it; (4) reasonable

reliance thereon by the other person; and (5) resulting damages.” Banco Popular N. Am. v.

Gandi, 876 A.2d 253, 260 (N.J. 2005) (quoting German v. Weichert Co. Realtors, 691 A.2D 350,

367 (N.J. 1997)). Individual Defendants primarily argue that Plaintiff’s fraud claim fails

because they never “affirmatively” represented that DHIS was a separate legal entity and that

Plaintiff knew that DHI, not DHIS, was the “actual entity” he consulted for both before and

after contract execution. [Ind. Defs.’ Br., at 7–12.]

As demonstrated above, there is a clear dispute of material fact as to whether

Individual Defendants materially17 misrepresented the separate corporate existence of DHIS

during contract negotiations and at the time of execution. See supra, at 9–14. The argument

that Plaintiff simply “assumed” DHIS’s legal corporate existence following receipt of the draft

contract and then its finalized version identifying DHIS is, to say the least, unpersuasive.18

transaction such that a reasonable person would have been alerted to the possibility of an

actionable claim. [Ind. Defs.’ Br., at 29–31.]

17 Individual Defendants do not dispute the materiality of the alleged misrepresentation. See

[Ind. Defs.’ Br., at 7–9; Ind. Defs.’ Reply Br., at 4–5.]

18 Individual Defendants’ reliance on the Integration Clause is mystifying given their claim

and accompanying argument that no extrinsic misrepresentations are at issue. [Ind. Defs.’

Br., at 7–8]; see Cap. Health Sys., Inc. v. Symmetry Workforce Sols., LLC, No. 24-CV-00202-ESK-

MJS, 2025 WL 1554256, at *4 (D.N.J. June 2, 2025) (internal citation omitted) (emphasis

added) (“[W]here a contract contains an integration clause, the parol evidence rule bars the

introduction of evidence of extrinsic negotiations or agreements to supplement or vary its

terms.”). To the extent Plaintiff relies on extrinsic evidence for his fraud claim, Individual

Defendants fail to edify the Court on why the well-settled fraudulent inducement exception

to integration clauses does not apply here. See id.; [Ind. Defs.’ Br., at 8–9.] A talismanic

[Ind. Defs.’ Br., at 7–8.] With respect to whether Plaintiff intended to do business with DHI

and not DHIS—understood here as Plaintiff’s reasonable reliance on DHIS’s corporate

personhood—the Court has already reviewed the parties’ cited pre-contractual conduct and

found, at best, a dispute of material fact. See supra, at 11–12. What is injected into the fraud

claim is Individual Defendants’ reliance on Plaintiff’s post-contractual conduct which

allegedly indisputably demonstrates their lack of intent to defraud him. [Ind. Defs.’ Br., at

10.] Although there is undisputed record evidence from which a rational factfinder could

conclude that DHI was the operative entity up to May 2009, see [Ind. Defs.’ SOMF, at ¶¶ 39

(quoting Ex. 12), 41 (quoting Ex. 14), 53 (citing Ex. 19); Pl.’s SOMF, at ¶¶ 39, 41, 53], an

email exchange between Plaintiff and Individual Defendant Nichols casts genuine factual

doubt.

On May 29, 2009, Plaintiff emailed Individual Defendant Nichols for “bank

statements for DHIS,” to which he responded, “DHIS does not currently exist as a separate

entity. To protect you, and to avoid confusion I believe that either 1) DHIS needs to be

created or 2) a new contract signed with DHI.” [Ind. Defs.’ SOMF, at ¶¶ 56–57 (quoting Ex.

22, at 2).] However, Individual Defendants concede that “no new contract was ever presented

to Plaintiff for signature”, [Ind. Defs.’ SOMF, at ¶ 58; Pl.’s SOMF, at ¶ 59 (quoting Ex. 51,

at ¶ 11)], which Plaintiff claims left him “with the impression that DHIS … was created as an

entity,” [Pl.’s SOMF, at ¶ 59 (quoting Ex. 51, at ¶ 11)]. Furthermore, Individual Defendant

Nichols arguably signed the September 2009 Termination Letter on behalf of DHIS and

unequivocally negotiated and executed a subsequent affiliated Advance Agreement with

incantation of the Integration Clause, especially one that appears to misunderstand its very

nature, does not provide relief.

Plaintiff on DHIS’s behalf. [Ind. Defs.’ SOMF, at ¶¶ 62–63 (citing Ex. 26), 83–87 (citing Exs.

27–31); Pl.’s SOMF, at ¶¶ 62–63 (citing Docket No. 19-5; Ex. 26).] And, as established, there

is no dispute that either Individual Defendant ever legally incorporated DHIS. See supra, at

13.

The parties carry on this tango with relatively equal measure up to June 2013 where,

even then, Plaintiff emailed Individual Defendant Nichols for an explanation between DHIS

and DHIS LLC—the entity formed from the reorganization of CSI and DHI. [Ind. Defs.’

SOMF at ¶¶ 95, 110 (citing Ex. 40).] After review of the summary judgment evidence, the

bottom line is this: there is a self-evident factual dispute as to whether Individual Defendants

intended for Plaintiff to rely on the supposed corporate existence of DHIS to ultimately

deprive him of 15% of a future sale. It is for the jury, not the Court, to decide this factual

dispute.

E. Damages

Damages are a fundamental element of any breach-of-contract claim. See LM Ins.

Corp., 2025 WL 3451333, at *4 (quoting Frederico v. Home Depot, 507 F.3d 188, 203 (3d Cir.

2007)). The parties agree that Plaintiff’s potential damages arising from his 15%-entitlement

must be offset by the commission payments he continues to receive. [Ind. Defs.’ Br., at 34;

Pl.’s Opp. Br., at 19.] In turn, Individual Defendants argue that Plaintiff has already received

more in commission payments than his would-be 15% share of a “sale”. [Ind. Defs.’ Br., at

35.] The issue with this is that it is premised on the Court finding that the relevant “sale” was

the 2012 transaction for $5 million and not the 2014 and 2016 “sales” to TransUnion totaling

about $62.3 million,19 for which Plaintiff argues he is entitled to approximately $10 million,

far outpacing his disputed $2.04 or $2.3 million received in commission payments.20 [Ind.

Defs.’ Br., at 34–35; Pl.’s Opp. Br., at 18–19.]

Turning to the fraudulent inducement claim, Individual Defendants argue that

Plaintiff’s 15%-entitlement “is wholly unrelated to the alleged fraud … and is simply a

contract claim against the corporate entity.” [Ind. Defs.’ Br., at 13.] This is effectively a

repackaging of the economic loss doctrine which the Court rejected above. See supra, at 14–

16. Individual Defendants also once again do not account for Plaintiff’s request for punitive

damages, which are generally unrecoverable in contract. [Am. Compl., at 33; Ind. Defs.’ Br.,

at 12–13; Ind. Defs.’ Reply Br., at 6–7]; Heartland Payment Sys., LLC, 2020 WL 13580941, at

*5. Under either theory of recovery, there are live disputes of material fact preventing entry

of summary judgment on the basis of damages.

VI. CONCLUSION

For the foregoing reasons, Individual Defendants’ Motion for Summary Judgment

will be DENIED. The Court intends to SCHEDULE this matter for TRIAL upon

submission of the Final Pre-Trial Order. An accompanying Order shall issue.

December 23, 2025 /s/Renée Marie Bumb

Date RENÉE MARIE BUMB

Chief United States District Judge

19 There is an apparent dispute over the value of the 2016 transaction, thus the overall amount

of TransUnion’s acquisition. [Ind. Defs.’ SOMF, at ¶¶ 145–46. Pl.’s Suppl. SOMF, at ¶ 45.]

The Court’s review of the damages as they relate to the pending Motion do not require

resolution of this difference.

20 The parties also quarrel over the appropriate allocation of damages in light of the various

transactions and lines of business involved, but the Court, heeding Individual Defendants’

directive, “need not determine what the appropriate allocation would be” in light of the

factual disputes presented. [Ind. Defs.’ Br., at 35.]