APG, Inc. v. MCI Telecommunications Corp.

United States Court of Appeals
For the First Circuit

No. 02-1120

APG, INC.,

Plaintiff, Appellant,

v.

MCI TELECOMMUNICATIONS CORPORATION,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

Before

Torruella, Circuit Judge,
Coffin, Senior Circuit Judge,
and Howard, Circuit Judge.

Howard B. Klein, with whom Mark B. Decof and Decof & Decof,
P.C., were on brief, for appellant.
Mark A. Berthiaume, with whom Louis J. Scerra, Jr., Marc
DeSisto, Schnader Harrison Goldstein & Manello, and DeSisto Law
were on brief, for appellee.

February 8, 2006
 COFFIN, Senior Circuit Judge. In early 1997, appellant APG,

Inc., acting as a middleman, initiated discussions with CVS Corp.

(“CVS”), the national drug store chain, in an effort to persuade

CVS to buy, for re-sale in its stores, prepaid telephone cards

provided by MCI Telecommunications Corp. (“MCI”). Ultimately, CVS

and MCI bypassed APG; CVS contracted directly with MCI to buy

thousands of prepaid cards annually. In this diversity action, APG

claims that MCI deceitfully closed the deal on its own at the last

minute, taking advantage of APG’s efforts and unfairly depriving

the small company of commissions. APG’s complaint sought damages

on both tort and contract theories. The district court granted

summary judgment in favor of MCI on the tort claims and later

granted judgment as a matter of law on the contract claim. Asked

to review each of those dispositions, we have carefully examined

the record and relevant law. Although we agree that the district

court properly dismissed most of the claims, we conclude that the

facts of record thus far, viewed in appellant’s favor, leave open

the possibility of liability on a theory of unjust enrichment. We

therefore remand for further proceedings on that issue.

I. Factual Background

We draw the facts from the depositions and other materials

contained in the summary judgment record, as well as from the

testimony adduced during the trial on the contract claim, and

recount them in the light most favorable to appellant. See Burton

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v. Town of Littleton, 426 F.3d 9, 14 (1st Cir. 2005); González-Piña

v. Rodríguez, 407 F.3d 425, 431 (1st Cir. 2005).1

Appellant APG is a small family business that was incorporated

in the mid-1990s by Jordan Rice, a resident of Florida. The

company was involved primarily in the sale of automobiles before

Rice’s son, Steven, joined the company as vice president in late

1996 and decided to explore adding the sale of prepaid telephone

cards to the company’s other activities. He was referred by an MCI

representative to Conserv Corp. (“Conserv”), one of a number of

third-party distributors that purchased MCI prepaid cards for re-

sale. Typically in MCI’s prepaid sales department, such

independent distributors pursue sales to smaller businesses, while

larger potential accounts – the “top 200" or so companies – are

handled directly by MCI’s own sales staff. On occasion, when a

distributor has special access to one of the large companies

through a personal contact, MCI will pursue that account through

the distributor.

Steven Rice and his brother, Robert, APG’s president, had just

such a connection to offer Conserv: their mother, Janice, was an

old friend of CVS’s president and CEO, Stanley Goldstein. Steven

Rice proposed that APG serve as a sub-distributor or sub-agent of

1
Our review of the summary judgment rulings is limited to the
record as it stood at the time of the district court’s decision,
see J. Geils Band Employee Benefit Plan v. Smith Barney Shearson,
Inc., 76 F.3d 1245, 1250 (1st Cir. 1996), and we accordingly have
relied only on such materials in considering the tort claims.

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Conserv for the sale of MCI prepaid cards, with commissions to be

paid when Rice linked Conserv with his “retail contacts.” APG and

Conserv subsequently entered into a “Non-Circumvention/Non-

Disclosure Sales Agreement” specifically with respect to the sale

of prepaid telephone cards to CVS. Dated January 16, 1997, the

agreement provided that Conserv would not “circumvent, avoid, or

bypass APG either directly or indirectly, to avoid payment of fees

or commissions or other benefits to APG . . . .”

About a week after the two companies signed the agreement,

Steven Rice spoke with the CVS buyer responsible for prepaid cards,

Janice Jacobs, and scheduled a meeting at CVS headquarters to

discuss CVS’s possible purchase of MCI prepaid cards. An assistant

to Goldstein had called Jacobs and requested that she speak with

Rice about the telephone cards following a phone conversation

between Janice Rice and her old friend. In attendance at the

meeting, which took place on January 29, were Jacobs, Rice,

Conserv’s vice president Jim Vinci, and Cindy Isaacs, an MCI

prepaid agent manager. As an agent manager, Isaac, an MCI

employee, helped her assigned distributors sell MCI prepaid cards,

and Vinci had asked her to attend the meeting to support Conserv

and APG.

Rice and Vinci had prepared a written proposal for CVS using

a “Power Point” format that MCI had provided and, at the meeting,

Isaacs made a presentation about MCI prepaid cards that included

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assurances that Conserv could meet CVS’s needs, supported by MCI

and its technical staff. A number of follow-up conversations took

place, including one in which Robert Rice assured Jacobs that

“dealing with us at Conserv was like dealing with MCI directly.”

In March, Jacobs sent Vinci a letter stating that CVS was

putting the prepaid program on hold until mid-August and that she

would contact him again when the program became active. In a phone

conversation with Vinci, Jacobs attributed the delay to CVS’s

pending merger with Revco. In late April, however, Jacobs called

Vinci to request additional information about Conserv’s bid. Her

call triggered a flurry of activity: Vinci called Isaacs to obtain

answers to some of the questions Jacobs had raised; Vinci notified

APG of the renewed contact; and, after Vinci’s call to her, Isaacs

sent an email to Mary McGann, MCI’s in-house sales manager, to give

her “a heads-up” about CVS’s apparently imminent plan to choose a

prepaid provider. The email reported that Jacobs had identified

four companies “in the running for the deal,” including Conserv,

and Isaacs noted that none was a major carrier. The email also

detailed the information that CVS was seeking from Conserv.

Isaacs’ email is pivotal to appellant’s claims in this case.

APG maintains that it was this email that put MCI’s direct sales

division on notice of CVS’s impending purchase of prepaid cards and

prompted that division to step in and appropriate the sales

opportunity developed by Conserv and APG. Although the immediacy

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of CVS’s intent to choose a provider apparently was news to MCI,

the record shows that, prior to Isaacs’ email, MCI’s direct sales

team had taken steps toward marketing prepaid cards to CVS, which

already was a high-volume customer of MCI’s regular long-distance

service. The record contains a draft of a letter from an MCI

national accounts manager, dated March 24, 1997, and a series of

emails among MCI executives dated April 7 and 8, which contain

references to the marketing of prepaid services to CVS. In another

series of emails sent on April 21 – four days before Isaacs’ email

– McGann and others involved with direct sales made comments that

indicated that MCI was moving ahead with a direct pursuit of CVS’s

prepaid business. Indeed, in her reply to Isaacs, McGann noted

that “[w]e have had high level meetings with this account,”

including a dinner meeting “the other night” with a merchandising

executive, and she observed that “Janice [Jacobs] seems to be going

down a different path.” Isaacs herself had referred in her email

to the direct sales department’s relationship with CVS, stating

that “I know that CVS is on your list.”

Despite this internal discussion about MCI’s direct interest,

Isaacs continued to support Conserv’s efforts to secure the

account, and it appears that neither Conserv nor APG was aware of

any separate dealings by MCI to make a direct sale. A few days

after Vinci’s phone conversation with Jacobs, he sent a letter

answering her questions and offering marketing funds and

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promotional materials that, in relevant part, Isaacs had approved.

In mid-May, in response to Jacobs’ inquiry about a test program for

prepaid cards, Steven Rice sent a letter outlining the specifics of

such a program – again offered with Isaacs’ approval. On May 16,

APG and Conserv entered into a second contract – a “Sub-

Distributor/Agent Agreement” – in which APG was to receive a

specified commission for each “unit” of prepaid calling time

purchased by CVS.

The exchange of inquiries and information between Conserv/APG

and CVS was not the only indicator that CVS was becoming

increasingly focused on the Conserv proposal. Both Rice brothers

had conversations in mid-May with Helena Foulkes, CVS’s vice

president and merchandising manager, who told them that Conserv was

one of two or three companies under consideration.

Meanwhile, MCI’s direct sales team was jumping into the

competition with both feet. Ray Richards, an in-house MCI prepaid

account executive, spoke with Jacobs on May 14 and was told that,

if MCI wanted to be involved directly, CVS must have a proposal to

review by Friday, May 16.2 In an email message to McGann, his

2
Richards testified in his deposition that Jacobs had called
him a day earlier and left a voice message with a number of
questions about MCI’s prepaid cards. He had had no prior contact
with her. Although an MCI vice president, Jeffrey Lindauer,
testified that he had received a request for a written proposal
from Foulkes during an April 23 telephone conference, we found no
evidence in the record of any steps taken to fulfill such a request
before Richards took action after his conversation with Jacobs.

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supervisor, after the phone conversation with Jacobs, Richards

reported that Jacobs had asked if CVS would receive the same

support from MCI if the business came through a distributor. In

his deposition, Richards acknowledged telling Jacobs that “CVS

would be better served if they were to deal directly with MCI”

because of the technical complexity of the program.

Richards spent two days preparing a proposal, which he cleared

with McGann and then hand-delivered on Friday, May 16. He met with

Jacobs and Foulkes that day, submitted a revised proposal by fax on

the following Monday, and continued discussions through the week.

Jacobs called Richards to verbally accept the MCI proposal a week

or two later. MCI and CVS entered into a written agreement on

September 2 providing for the sale of MCI prepaid cards in CVS

stores. After the Rices unsuccessfully asserted their right to

receive commissions on the CVS deal through various communications

with MCI and CVS executives, APG filed this action claiming tort

and contract damages – asserting, in essence, that MCI had unfairly

appropriated the CVS business opportunity.

II. Procedural Background

APG’s amended complaint, filed in March 1999, alleged five

causes of action against MCI: (1) tortious interference with its

contract with Conserv; (2) tortious interference with its business

expectancy with CVS; (3) quasi-contract/unjust enrichment; (4)

breach of contract, specifically breach of the Non-

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Circumvention/Non-Disclosure Agreement; and (5) unlawful

misappropriation.3

The district court, adopting the recommended decision of the

magistrate judge, granted summary judgment for MCI on all but the

contract claim. In the magistrate judge’s view, plaintiff’s case

suffered from two primary flaws: MCI’s conduct constituted

legitimate competitive behavior, and the evidence in any event

failed to establish the necessary element of causation because

there was insufficient proof that CVS would have selected the

Conserv/APG proposal but for MCI’s intervention. On the contract

claim, the magistrate judge identified a factual dispute as to

whether Conserv acted as MCI’s agent in executing the Non-

Circumvention/Non-Disclosure Agreement with APG, but after APG

presented its case at trial, the district court concluded that

there was no basis on which a jury could find that Conserv had

authority to bind MCI. Thus, on the fourth day of trial, the court

granted judgment as a matter of law for MCI.

On appeal, APG challenges the district court’s rulings on each

of its claims.4 We employ de novo review for both the grant of

3
Conserv and MCI’s parent corporation, MCI Communications
Corp., were originally named as additional defendants but were
dismissed from the case by stipulation. APG originally had
obtained a default judgment against Conserv but dropped the claims
against it because the company was defunct.
4
Appellant also challenges the district court’s ruling that
it could not seek disgorgement of profits under the breach of
contract claim. Our disposition makes it unnecessary to address

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summary judgment and the district court’s grant of judgment as a

matter of law at trial on the contract claim. Colburn v. Parker

Hannifin/Nichols Portland Div., 429 F.3d 325, 329-30 (1st Cir.

2005) (summary judgment); Burton, 426 F.3d at 14 (judgment as a

matter of law at trial). In assessing the facts, we take “all

inferences in favor of [appellant], and ask whether a reasonable

jury could have found defendant[] liable based on the evidence

presented.” Burton, 426 F.3d at 14; see also González-Piña, 407

F.3d at 431. We are not confined to the district court’s

reasoning, but may affirm its decision on any sufficient ground

supported by the record. Colburn, 429 F.3d at 330; Invest Almaz v.

Temple-Inland Forest Prods., 243 F.3d 57, 75 (1st Cir. 2001).5

III. Discussion

A. Breach of Contract

APG alleges that Conserv acted as MCI’s agent in executing the

Non-Disclosure/Non-Circumvention Agreement, thereby binding MCI to

the agreement, and that MCI’s direct solicitation of the CVS

prepaid business constituted a breach of that contract. APG relies

primarily on the concept of “incidental authority” to support its

that issue.
5
We note that APG has asserted that New Jersey law, rather
than Rhode Island law, should be applied in this case in instances
where the two jurisdictions would diverge. That argument is
undeveloped on appeal, and we consequently deem it waived. See
Whitfield v. Melendez-Rivera, 431 F.3d 1, 14 n.12 (1st Cir. 2005);
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

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claim, arguing that Conserv had the authority to take any steps on

behalf of MCI that were necessary to fulfill its role as an MCI

prepaid distributor. See Restatement (Second) of Agency § 35

(1958) (“authority to conduct a transaction includes authority to

do acts which are incidental to it, usually accompany it, or are

reasonably necessary to accomplish it”); id. at § 50 (“authority to

make a contract is inferred from authority to conduct a

transaction, if the making of such a contract is incidental to the

transaction, usually accompanies such a transaction, or is

reasonably necessary to accomplish it”).

We agree with the district court that the evidence would not

permit a jury to find that Conserv acted as MCI’s agent in signing

the Non-Disclosure/Non-Circumvention Agreement. Although the

contract establishing Conserv’s distributor relationship with MCI

referred to Conserv in its preamble as a “sales agent” and

elsewhere referred to Conserv as a “non-exclusive agent for MCI

PrePaid,” these labels are for several reasons insufficient – in

light of the other evidence – to create agency authority for a

contract negating MCI’s right to compete directly in the sale of

its prepaid cards.

First, when the MCI-Conserv agreement explicitly addressed the

parties’ relationship, it defined Conserv’s role to be that of an

independent contractor, and it stated that neither party could bind

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the other.6 Whether or not MCI could in that manner disclaim

responsibility for contracts signed by Conserv relating to MCI’s

prepaid service, we agree with the district court that the

disclaimer at least suffices to eliminate authority beyond such

actions. In our view, this is what the Restatement anticipates

with respect to “incidental authority.” MCI might be bound, for

example, if Conserv promised a customer 24-hour, on-site help in

activating calling cards because such a promise relates directly to

the product that Conserv is distributing pursuant to its contract

with MCI. By contrast, a non-compete agreement with a sub-

distributor is unrelated to either the MCI product or the sales

transaction with the customer.

Second, this limited scope for the agency relationship is

supported by Conserv’s non-exclusive status as a distributor for

MCI’s prepaid service; in effect, MCI was explicitly authorized to

generate competition for Conserv by soliciting other distributors.

Although the district court was of the opinion that the words “non

exclusive agent” in MCI’s contract with Conserv “specifically

allowed MCI to [directly] circumvent its distributor[],” we need

not accept the interpretation that MCI’s direct competition was

expressly allowed to reject the argument that MCI was contractually

6
Paragraph 14.1 of the Agreement states: “[E]xcept as set
forth herein, neither party will have any right to obligate or bind
the other in any manner whatsoever nor represent to third parties
that it has any right to enter into any binding obligation on the
other’s behalf.”

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barred from competing with Conserv and APG. Because the Conserv-

MCI contract did not protect Conserv (and, by extension, APG) from

third-party competition initiated by MCI, finding any kind of

limitation on MCI’s competitive activity in the Non-Disclosure/Non-

Circumvention Agreement between Conserv and APG would be a stretch

that a jury could not reasonably make without other evidentiary

support.

And, indeed, yet another bit of evidence is to the contrary –

and negates the possibility that APG was deceived by Conserv’s

“apparent authority” to act on MCI’s behalf. See generally

Commercial Assocs. v. Tilcon Gammino Inc., 998 F.2d 1092, 1099 (1st

Cir. 1993) (noting that an agent may bind a principal to a contract

pursuant to actual or apparent authority). Preliminary drafts of

the “Sub-Distributor/Agent Agreement” that was signed by Conserv

and APG in May 1997 reiterated the “non-circumvention/non-

disclosure” promise from their earlier agreement but also included

a statement that Conserv had “no control over the actions of MCI

National Account, MCI Branch offices and or any other entity not in

Conserv’s direct control.” Although this declaration did not

appear in the version that ultimately was signed by both parties

and dated May 16, it is significant that Steven Rice on May 7 did

sign a draft, dated April 3, that contained the provision –

suggesting that he understood and accepted that that promise did

not extend to MCI.

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 In sum, we can find no support in the record for a jury

finding that MCI contractually obliged itself not to compete with

Conserv and APG for the CVS business. Whether or not MCI’s conduct

was fair is another matter, and a subject we address with respect

to the tort claims. On the contract claim, however, we affirm the

district court’s grant of judgment as a matter of law for MCI.

B. Tort Claims

Appellant’s tort claims – tortious interference (Counts I and

II), unjust enrichment (Count III), and misappropriation of trade

secrets (Count V)7 – all rest on essentially the same factual

foundation. APG alleges that after it (with Conserv) brought CVS

to the brink of finalizing a prepaid card deal, MCI stepped in at

the last minute and knowingly took advantage of the distributors’

months of work. APG asserts that this conduct interfered with both

its contractual agreement with Conserv for commissions on the CVS

deal and its expected business relationship with CVS – and, in the

process, unjustly enriched MCI. The trade secrets claim is based

on Isaacs’ April 25 email disclosing information about CVS’s needs,

its interest in MCI’s product, and the imminence of its decision –

i.e., the information allegedly used by MCI to tortiously divert

the business to itself.

7
The misappropriation claim originally was framed more
broadly to include alleged misappropriation of APG’s potential
customer, CVS, but that aspect of the claim has been dropped.

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 APG’s position is not without force. The record would allow

a jury to find that the small company used its connection to get in

the door at CVS, spent several months in regular contact with the

prepaid card decision-makers, became one of the top contenders for

the business, started making preparations for a test program – all

with the support of MCI as represented by Isaacs – and then was

displaced at the eleventh hour after Isaacs alerted the in-house

sales people that CVS was ready to close a deal, passing along

information she obtained only because of her supposedly

collaborative relationship with Conserv. Although – unbeknownst to

APG8 – MCI’s direct sales staff also was targeting CVS, they

apparently failed to aggressively pursue the business opportunity

until alerted by Isaacs that it was almost gone. Moreover, when

questioned about the relative merits of purchasing from MCI or a

distributor like Conserv, MCI – represented by Ray Richards –

undermined Conserv’s efforts by telling CVS that it would get

better service with a direct sale.

We agree with APG that this scenario presents a strong

impression of unfair treatment; it is not enough, however, for APG

to reach a jury on three of its four tort theories. We explain our

conclusions below with respect to each of the tort counts.

8
We note that the record does contain evidence that MCI’s
direct pursuit of CVS was disclosed. Isaacs and her supervisor,
James Lenhart, testified in depositions that they recalled
instructing Conserv to back out of the process with CVS because
there was a pre-existing direct relationship with MCI.

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 1. Tortious interference. The elements of a claim for

tortious interference with contractual relations under Rhode Island

law are: (1) the existence of a contract; (2) defendants’ knowledge

of the contract; (3) defendants’ intentional interference with the

contract; (4) damages caused by the interference. Ocean State

Physicians Health Plan, Inc. v. Blue Cross & Blue Shield of R.I.,

883 F.2d 1101, 1113 (1st Cir. 1989); Ed Peters Jewelry Co. v. C &

J Jewelry Co., 51 F. Supp. 2d 81, 101 (D.R.I. 1999), aff’d, 215

F.3d 182 (1st Cir. 2000); Western Mass. Blasting Corp. v. Metro.

Prop. and Cas. Ins. Co., 783 A.2d 398, 401 (R.I. 2001); Jolicoeur

Furn. Co. v. Baldelli, 653 A.2d 740, 752 (R.I. 1995). The same

elements are required to state a claim based on tortious

interference with a prospective contractual relationship, with the

exception that the defendant’s knowledge must relate to a business

relationship or expectancy, rather than to an actual contract.

Mesolella v. City of Providence, 508 A.2d 661, 669-70 (R.I. 1986).

The magistrate judge, whose 28-page opinion thoroughly

detailed the facts and relevant law, concluded that appellant could

not establish elements three and four for either claim.9 The

evidence on interference fell short, he ruled, because such

interference must be “unjustified,” see Ed Peters Jewelry Co., 51

9
The court found that the first two elements of the
contractual interference claim were met for summary judgment
purposes, but that the evidence was insufficient to meet any of the
requirements for the claim alleging interference with a prospective
business relationship.

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F. Supp. 2d at 102, and MCI’s conduct was simply normal competitive

activity. He concluded that appellant also lacked evidence

sufficient to show that “but for MCI’s alleged misdeeds, CVS would

have chosen Conserv as its prepaid phone card provider.” Opinion

at 20 (emphasis in original).

We part company with the magistrate judge on the issue of

interference,10 concluding that the record would have permitted the

jury to find that MCI’s conduct amounted to unjustified

interference with Conserv’s developing relationship with CVS, in

turn potentially frustrating APG’s contractual right to

commissions. Several alleged facts, if ultimately believed by the

jury, would support a finding that MCI knowingly stabbed Conserv

(and APG) in the back at a time when the telecommunications company

would have been expected to support its distributor’s increasingly

promising relationship: MCI’s alleged failure to tell Conserv that

it was separately pursuing CVS, which was atypical secrecy;11

10
We agree with the magistrate judge that the first two
elements of the contractual interference claim were sufficiently
supported in the record. It is undisputed that APG signed two
contracts with Conserv, and the record demonstrated adequate
interaction between Isaacs – an MCI representative – and the Rices
and Conserv to permit a jury to find that MCI must have been aware
of APG’s role in the CVS transaction. We think these elements are
debatable on the prospective opportunity claim, but find it
unnecessary to dwell on the issue in light of our conclusion that
the claim otherwise fails.
11
Lenhart, Isaacs’ supervisor, indicated in his deposition
that surreptitious, parallel activity by the direct sales
department would be a departure from MCI’s standard approach. He
reported that MCI’s practice was not to compete with its

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Isaacs’ email communication of valuable information obtained only

because she was, on the surface, an advocate of the Conserv-CVS

deal; and Richards’ direct challenge to such a deal by discounting

the quality of service CVS would receive from a distributor. In

short, a jury might well have concluded that MCI unfairly utilized

inside information and misrepresentation to secretly gain an

advantage over an unsuspecting competitor who reasonably thought it

was in a partnership. This strikes us as conduct that a jury could

view as unjustified interference.12

distributors, but to figure out early on which path was most
promising. Conserv’s Vinci testified that he did not expect direct
competition from MCI in light of Isaacs’ participation in Conserv’s
negotiations: “I believe that it was told to us by MCI that once .
. . you went on record that you were in on the account that others
would back away.” The record does contain contrary evidence,
however. Isaacs testified that she saw no problem with both MCI
and an MCI distributor such as Conserv submitting separate bids
because “Conserv is a separate organization, not an agent of MCI’s
but a separate business entity.” McGann offered a similar view in
a portion of her deposition that was admitted at trial. She said
the direct sales team was permitted to compete head-to-head with
MCI distributors, noting that “that’s inherent business practice .
. . standard operating procedure in every part of the business . .
. .”

12
We note that intentional interference can be proven “even
though it arose from good motives and without express malice,”
Jolicoeur Furn. Co. v. Baldelli, 653 A.2d 740, 753 (R.I. 1995)
(citations omitted). On the other hand, “[c]onduct in furtherance
of business competition is generally held to justify interference
with others’ contracts, so long as the conduct involves neither
‘wrongful means’ nor ‘unlawful restraint of trade.’” Ocean State
Physicians Health Plan, Inc. v. Blue Cross & Blue Shield of R.I.,
883 F.2d 1101, 1113 (1st Cir. 1989) (quoting Restatement (Second)
of Torts §768 at 39 (1979)).

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 The difficulty for APG arises, however, when we canvas the

record for evidence on the causation element. Under Rhode Island

law, APG must prove either that “but for” MCI’s interference, it

would not have suffered injury, or that “it is reasonably probable

that but for the interference” APG would not have been injured,

Mesolella, 508 A.2d at 671; see also Ed Peters Jewelry Co., 51 F.

Supp. 2d at 102; L.A. Ray Realty v. Town of Cumberland, 698 A.2d

202, 207 (R.I. 1997). APG therefore must prove that it is at least

“reasonably probable” that CVS would have completed a deal to

purchase prepaid phone cards through Conserv had MCI not interfered

improperly in the bidding process. We construe this to be a high

level of probability – at least more likely than not – given the

“but for” starting point for the causation inquiry. In another

context, the Rhode Island Supreme Court has ruled that such a

likelihood depends on evidence that is “reasonably definite and is

neither speculative nor remote,” Palazzi v. State, 319 A.2d 658,

662 (R.I. 1974).

Although MCI highlights deposition testimony from both Foulkes

and Jacobs stating that CVS never seriously considered choosing

Conserv and APG for the contract, a jury certainly would be

entitled to disbelieve that testimony. Jacobs’ phone call to Vinci

in mid-April 1997 to resume discussions with Conserv, the

conversations reported by the Rice brothers in which Foulkes

identified Conserv as one of the final contenders, and Jacobs’

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inquiries about a test program and other details of the Conserv

proposal all belie the assertion that Conserv was never a serious

option.

But at the same time, there also is no evidence that Conserv

was likely to win the contract. Indeed, Jacobs’ unsolicited call

to Richards in mid-May, in which she asked about doing business

with a distributor, manifested concern about going down that path.

Conserv and MCI were still discussing the details of a possible

test program at that point, reflecting the preliminary nature of

their dealings. The Rices were not told that Conserv was the

leading contender for the contract, but only that the company was

one of two or three possibilities under consideration at that time.

Although the Rices’ family connection with CVS president Goldstein

apparently opened the door to Conserv in the bidding process, we

have found nothing in the record to suggest that that personal

relationship was giving Conserv an inside track on winning the bid.

Moreover, the record does not necessarily link, in time, MCI’s

submission of a proposal to CVS with Isaacs’ April 25 email

reporting Jacobs’ call to Vinci, which was the correspondence that

allegedly gave MCI its unfair entry into the competition. It was

not until after Jacobs called Richards, nearly three weeks later,

that MCI took concrete steps to submit a bid. That timing weakens

the likelihood that unjustified interference by MCI caused Conserv

to lose the contract. The sequence of events is more consistent

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with the likelihood that CVS’s desire to secure the best deal,

rather than any affirmative conduct by MCI, led CVS to thoroughly

investigate the proposals it had in hand, including Conserv’s, and

to look beyond them.

In short, the record evidence would support a finding that

Conserv and APG had a real chance of being chosen to provide CVS

with prepaid phone cards, but not a finding that that outcome was

“reasonably definite.” The undisputed facts, even taken in the

light most favorable to APG, do not show a sufficiently developed

or focused interest in Conserv to satisfy the causation element.

While CVS was seriously interested in what Conserv could offer, the

record does not establish that Conserv was unique in that respect;

it therefore would be wholly speculative to find that MCI’s entry

into the competition caused a loss of commissions to APG. Cf.,

e.g., L.A. Ray Realty, 698 A.2d at 208 (plaintiffs’ projects were

in the final stage of the approval process when defendant’s conduct

interfered with their development plans); Mesolella, 508 A.2d at

670-71 (similar: plaintiff had obtained all preliminary approvals

for building project before city’s unlawful zoning change caused

cancellation of real estate closing). Nor do we see any material

factual disputes whose resolution could change that conclusion.

Consequently, both tortious interference claims were properly

dismissed on summary judgment.

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 2. Unjust enrichment. To establish a claim for unjust

enrichment under Rhode Island law, a plaintiff must prove three

elements: “‘(1) a benefit must be conferred upon the defendant by

the plaintiff, (2) there must be appreciation by the defendant of

such benefit, and (3) there must be an acceptance of such benefit

in such circumstances that it would be inequitable for a defendant

to retain the benefit without paying the value thereof.’” Bouchard

v. Price, 694 A.2d 670, 673 (R.I. 1997) (quoting Anthony Corrado,

Inc. v. Menard & Co. Bldg. Contractors, 589 A.2d 1201, 1201-02

(R.I. 1991)); see also Commercial Assocs., 998 F.2d at 1100.

APG argues that a jury easily could find that it conferred a

benefit on MCI through its contact with CVS president Goldstein and

its resulting discussions with Jacobs and Foulkes, which stimulated

CVS’s interest in the MCI prepaid product. In addition, APG

asserts that MCI’s in-house staff “did little or nothing” to win

the deal while APG devoted considerable effort, and a jury

therefore could find that it would be inequitable not to award APG

some commission.

The magistrate judge rejected unjust enrichment as a viable

claim largely because of MCI’s longstanding business relationship

with CVS, noting that APG therefore could not claim to have brought

the two companies together. In addition, the magistrate judge

noted that MCI and CVS had discussed the possible sale of prepaid

cards as early as August 1996 – well before Conserv and APG’s

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involvement. The magistrate judge found no possible inequity in

MCI’s consummation of the CVS contract “since CVS awarded MCI[] the

prepaid phone card contract in the spirit of business competition

with other vendors.” MCI merely endorses the magistrate judge’s

statements, adding only that “APG had absolutely nothing to do with

MCI’s relationship with CVS, or with MCI’s effort to obtain CVS’s

prepaid card business.”

While we think the magistrate judge’s assessment is one

plausible reading of the record, we think the facts, viewed with

all inferences in favor of APG, are not so conclusive. Nor is

MCI’s perspective on APG’s role in the transaction, though

understandable, commanded by the record. A different “but for”

question is in play on this claim: even if Conserv and APG never

would have gotten the deal on their own, would MCI’s inside sales

staff also have been out of the picture but for the distributors’

involvement?

While MCI was engaged in a slow and seemingly unproductive

pursuit of CVS’s prepaid business, Conserv and APG were actively

pursuing the account. Beginning with the January 1997 meeting with

Jacobs, Conserv and APG focused CVS’s attention on the benefits of

the MCI card, and they were sufficiently compelling in their

presentation for Jacobs to re-connect with them in April after a

brief moratorium in the discussions. Conserv and APG provided MCI

– through Isaacs – with information they previously did not possess

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about what Jacobs was looking for and the other companies competing

for the business, and the record would permit an inference that

this knowledge helped Richards formulate his successful proposal in

the two days he devoted to it.

Moreover, the record strongly suggests that MCI became aware

of the immediacy of CVS’s intent to purchase prepaid cards only

because of Conserv and APG – from both the Jacobs phone call to

Vinci (passed along by Isaacs) and her phone call three weeks later

to Richards. The record at present raises the real possibility

that MCI would have been out of the running for the CVS contract if

Jacobs had not called Richards to ask about the quality of service

available through MCI distributors – a conversation that apparently

led to the last-minute proposal from MCI’s in-house sales staff.

The prospect of CVS making a decision without MCI in the mix was in

Richards’ mind: “Clearly this is distressing,” he wrote in his May

14 email to McGann, “in that[] an account of this size appears to

be moving ahead without us having had an opportunity to prepare a

well constructed proposal.”

On the facts developed to this point, therefore, we think a

jury could conclude that Conserv and APG invested the time and

effort needed to sell CVS on the MCI program, and that MCI then

came along and collected the benefit without crediting Conserv and

APG for their contribution. The evidence of record thus appears

sufficient to allow a finding that all three elements of the unjust

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enrichment claim were met: (1) a benefit (access to the CVS

account) (2) of which the defendant was aware, and (3) that was

accepted in circumstances in which failure to pay would be

inequitable.

It may be, of course, that a jury would not find unjust

enrichment, concluding, as did the magistrate judge, that what

transpired was simply a matter of one competitor prevailing over

another. But we think there is enough in the record to warrant a

jury’s determination on whether appellant conferred a benefit that

MCI ought to pay for. Such an award would not necessarily lead to

payment of commissions throughout the life of the CVS contract, but

could, for example, be equivalent to a “finder’s fee” reflecting

equitable considerations, if the jury found that APG served as a

catalyst for MCI’s success. We therefore vacate the district

court’s grant of summary judgment on the unjust enrichment claim.

3. Misappropriation of Trade Secrets. Appellant asserts that

the information contained in Cindy Isaacs’ email message to Mary

McGann on April 25 constituted protectable trade secrets that MCI

unlawfully misappropriated in violation of the Uniform Trade

Secrets Act. See R.I. Gen. Laws § 6-41-1. The magistrate judge

concluded that the information at issue – including certain

technical details concerning CVS’s needs and the fact that Jacobs

was urgently seeking answers to her questions – did not qualify as

protected trade secrets.

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 We agree that the claim fails as a matter of law. The statute

defines a trade secret, inter alia, as information that is “not .

. . readily ascertainable by proper means by[] other persons who

can obtain economic value from its disclosure or use.” Id. at §

4(i). Although MCI did not previously have the information

communicated by Isaacs, we agree with the magistrate judge that it

was obtainable within normal business channels had MCI sought to do

so. Indeed, Jacobs told Richards three weeks later that MCI would

have to act quickly to get a proposal on the table, and certainly

CVS would have provided MCI with the details of its technical

requirements if asked.

Thus, the information at issue here does not constitute trade

secrets. It may well have been knowledge that MCI originally

obtained unfairly and then used to its advantage without properly

compensating Conserv and APG, but that possibility is adequately

and appropriately addressed within the context of the unjust

enrichment claim. We therefore affirm the district court’s grant

of summary judgment on the misappropriation claim.

III. Conclusion

For the reasons discussed above, we affirm the district

court’s grant of summary judgment for defendant MCI on the tortious

interference and misappropriation of trade secrets claims, but

remand for further proceedings on the unjust enrichment count. We

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also affirm the court’s judgment as a matter of law for defendant

on the breach of contract claim.

Affirmed in part, vacated in part, and remanded. Appellant

shall recover one-half its costs.

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