Opinion
CIVIL NO. 06-4449(NLH).
August 24, 2007
Richard J. Kravitz, Esquire, Fox Rothschild, LLP, Princeton Pike Corporate Center, Building 3, Lawrenceville, NJ, Attorney for Plaintiffs.
William J. DeSantis, Ballad Spahr Andrews Ingersoll, LLP, Voorhees, NJ, Attorney for Defendants.
ORDER
For the reasons expressed in the Court's Opinion filed on this date,
IT IS HEREBY ORDERED on this 24th day of August, 2007, that:
A. Submit to Jury: the following claims and counterclaims are legal in nature and not governed by a waiver of jury trial and, therefore, will be submitted to the jury:
Plaintiffs' Claims
Count 1 — alleging breach of the Separation Agreement in violation of the Lanham Act;
Count 2 — alleging unfair competition through use of the Biothane(R) trademark;
Count 4 — alleging breach of contract related to the Separation Agreement;
Count 5 — alleging breach of the covenant of good faith and fair dealing arising out of the Separation Agreement; and
Count 7 — requesting a Writ of Replevin related to the Accounts Receivable and the Separation Agreement
Defendants' Counterclaims
Count 1 as to Separation Agreement only — against JOHI, Biothane, Mr. Sax, Mr. Murphy, and Mr. Kaplan alleging fraud in the inducement;
Count 3 — against all Plaintiffs — alleging breach of contract with respect to the Separation Agreement;
Count 4 — against Biothane — alleging breach of contract with respect to the Separation Agreement;
Count 5 as to Separation Agreement only — against JOHI, Biothane, and all of the Individual Plaintiffs alleging breach of the implied covenant of good faith and fair dealing;
Count 6 — against JOHI and all of the Individual Plaintiffs — alleging breach of fiduciary duty;
Count 9 — against Biothane and all of the Individual Plaintiffs — alleging trademark infringement in violation of the Lanham Act;
Count 11 — against JOHI, Biothane, and all of the Individual Plaintiffs — alleging breach of the Confidentiality Agreement;
Count 12 — against JOHI, Biothane, and all of the Individual Plaintiffs — alleging misappropriation of trade secrets in relation to the Confidentiality Agreement;
Count 13 — against JOHI, Biothane, and all of the Individual Plaintiffs — alleging unjust enrichment;
Count 14 — against JOHI and Mr. Murphy — alleging libel; and
Count 15 — against JOHI, Biothane, and all of the Individual Plaintiffs — alleging intentional infliction of emotional distress.
B. Not to be Submitted to Jury: the following claims and counterclaims are governed by a waiver of jury trial provision and, therefore, will not be submitted to the jury:
Plaintiffs' Claims
Count 6 — alleging breach of fiduciary duty by Mr. Moser under the Operating Agreement; and
Count 8 — alleging fraud with regard to the Employment Agreement, the Operating Agreement, and the Asset Purchase Agreement.
Defendants' Counterclaims
Count 1 as to the Asset Purchase Agreement, the Operating Agreement, and the Restrictive Covenant Agreement — against JOHI, Biothane, Mr. Sax, Mr. Murphy, and Mr. Kaplan alleging fraud in the inducement;
Count 2 — against JOHI — alleging breach of contract with regard to the Operating Agreement;
Count 5 as to the Operating Agreement and the Employment Agreement — against JOHI, Biothane, and all of the Individual Plaintiffs alleging breach of the covenant of good faith and fair dealing;
Count 7 — against JOHI — alleging breach of contract with regard to the Employment Contract;
Count 8 — against Biothane and all of the Individual Plaintiffs — alleging violation of the Anticybersquatting Act with respect to the Asset Purchase Agreement; and
Count 10 — against JOHI, Biothane, and all of the Individual Plaintiffs — alleging unlawful interference with prospective economic advantage with regard to the Asset Purchase Agreement.
C. Discretionary Submission to Jury on Factual Issues: the following claims and counterclaims may at the Court's discretion be submitted to the jury to make factual findings:
Plaintiffs' Claims
Count 3 — requesting a declaratory judgment that the Separation Agreement is valid.
Defendants' Counterclaims
Count 16 — requesting a decree of judicial dissolution.