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Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."
Nucap Industries Inc. ("Nucap Industries"), a corporation organized and existing under the laws of Ontario, Canada, created a database of over 12,000 drawings of aftermarket brake components. Robert Bosch LLC and Bosch Brake Components LLC, corporations incorporated in Delaware, started buying brake components from Nucap Industries in September 2008. Bosch and Nucap followed a “uniform procedure” whereby Bosch issued a purchase order to Nucap specifying material terms, including price, quantity, and part number. Beginning on September 1, 2010, each purchase order sent to Nucap included a stipulation that the terms and conditions of the purchase were available at Bosch’s website, and were incorporated in the purchase order by reference (“POTC”). Bosch sent Nucap over 8,000 purchase orders containing the said stipulation, but at no point did Nucap ever state to Bosch that it could not locate and/or was unable to review a copy of the POTCs. The relationship between Bosch and Nucap came to a halt in November 2014. Nucap claimed that Bosch misused its proprietary drawings after the relationship collapsed, distributing Nucap’s drawings to third-party suppliers. Bosch contended that its alleged use of Nucap’s drawings was proper based on the POTC. Bosch then brought seven antitrust counterclaims against Nucap, alleging that Nucap breached outstanding purchase orders when it refused to ship outstanding orders to Bosch. Bosch further alleged that by pursuing a lawsuit based on Bosch’s use of its drawings, Nucap violated the terms of the POTCs. The parties respectively brought motions for partial summary judgment, asking the court to determine what agreement or agreements governed the parties’ relationship.
Should the court grant the parties’ cross motions for summary judgment?
Finding that the United Nations Convention on Contracts for the International Sale of Goods ("CISG") governed the formation dispute, the court denied the cross motions for summary judgment because the evidence of the parties' extensive negotiations and dealings raised genuine factual disputes material to the formation analysis under the CISG. Notably, the CISG allowed consideration of one party's subjective intent when forming a contract "where the other party knew or could not have been unaware what that intent was." The court noted that in this case, a reasonable jury could find that Bosch “knew or could not have been unaware” that Nucap would wish to negotiate the new terms had higher-level Nucap personnel been aware of it, given the significant effective transfer of intellectual property wrought by the POTCs. Moreover, the evidence of Nucap's subsequent conduct can be reasonably viewed as bolstering the inference that Bosch knew or could not have been unaware of Nucap's subjective intent. On the other hand, the evidence of Nucap and Bosch's dealings can also be viewed in a light favorable to Bosch as recognizing that the POTCs were binding. After all, Nucap undisputedly continued to ship parts to Bosch for years after it was chargeable with knowledge of the POTCs' contents at the latest in May 2011. Seen from Bosch's perspective at summary judgment, Nucap needed a confidentiality agreement to reclaim Nucap's intellectual property consistent with § 23.4 of the POTCs – this was enough to demonstrate that a fact issue existed sufficient to require denial of Nucap's motion for partial summary judgment on contract formation under the CISG.