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COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, ss. SUPERIOR COURT
CIVIL ACTION
NO. 2081CV01199
FASTARCHIVER SOFTWARE, LLC & others!
vs.
ARCSERVE (USA) LLC & another?
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS”
MOTION FOR SUMMARY JUDGMENT.
INTRODUCTION
This case arises out of the alleged breach of an asset purchase agreement. FastArchiver
Software, LLC (“FastArchiver”), and its beneficial owners Peter Alex (“P. Alex”), Seda Alex
(8. Alex”), and Stephen Catanzano (“Catanzano”) (collectively, the “Plaintiffs”) claim they are
owed over Three Million Dollars for the sale of their proprietary email archiving software
(“EAS”). On May 20, 2023, the Plaintiffs filed an eight-count complaint (the “Complaint”)
against Arcserve (USA) LLC (“Arcserve”) and Marlin Management Company, LLC (“Marlin”)
(collectively, the “Defendants”) alleging fraud (Count One-All Defendants), negligent
misrepresentation (Count Two-All Defendants), breach of fiduciary duty (Count Three-Marlin)*,
breach of the asset purchase agreement (Count Four-Arcserve), breach of the implied covenant
of good faith and fair dealing (Count Five-Arcserve), unfair and deceptive trade practices (Count
! Peter Alex, Seda Alex, and Stephen Catanzano
? Marlin Management.Company, LLC
FastArchiver withdrew Coutn Three in its opposition. Therefore, the court does not address this count in the body
of ihis decision.
Six-All Defendants), conspiracy (Count Seven-All Defendants), and aiding and abetting (Count
Eight-All Defendants).
This matter is now before the court on the Defendants’ Motion for Summary Judgment.
After hearing and review of the parties’ submissions as well as the applicable law, for the
reasons explained below, the Defendants’ motion is ALLOWED.
BACKGROUND
Here, the court describes the basic facts related to this dispute, as set forth in the Rule 56
Consolidated Statement of Undisputed Material Facts and the exhibits referenced therein, which
are included in the Joint Appendix.*
The relevant parties this litigation include: Arcserve, a Delaware limited lability
company with a principal place of business located in Eden Prairie, Minnesota, Marlin. a
Delaware limited liability company with a principal place of business located in Hermosa Beach,
California, and FastArchiver, a Delaware limited liability company with a principal place of
business located in North Grafton, Massachusetts.
Areserve sells data-protection software and, in 2016, showed interest in buying email
archiving software developed by FastArchiver. In October of 2016, Marlin submitted a letter of
intent (“LOY”) on its and Arcserve’s behalf, for Arcserve to acquire the assets of FastArchiver for
Ninety Thousand Dollars in cash and potential future “earn-out” payments. The LOI was signed
by Marlin’s Principal, Michael Anderson, and agreed to by FastArchiver's President, Peter Alex.
‘Thereafter, in January 2017, Arcserve and FastArchiver agreed to an Asset Purchase Agreement
(“APA”) that was signed by FastArchiver’s President, and its beneficial owners, and Arcserve’s
President. Marlin was not a party to the APA.
* Certain additional facts not mentioned here may be referenced during the court’s discussion of the parties"
arguments.
Of significance is the APA’s payment structure. Pursuant to the APA, Arcserve agreed to
pay FastArchiver Ninety Thousand Dollars cash in three installments within sixty days of
closing. It further agreed to pay FastArchiver “earn-out” payments under a specified timeline and
under certain conditions that, if realized, would amount to another Three Million Two Hundred
Fifty Thousand in consideration to FastArchiver. After the APA was signed, Arcserve retained
the services of Catanzano as a consultant and compensated him to educate and train the
salesforce on the email archiving software.
DISCUSSION
I. Choice of Law
While the parties hardly discuss the issue in their submissions, the court must first
consider what state’s law applies to the current dispute. “Massachusetts is the State in which the
action was filed, and in the ordinary course the procedural rules of the forum control.” DMI
Sales, Inc. v. Venta Airwasher. Inc., 94 Mass. App. Ct. 1120, 2019 WL 406118 at *2 (2019)
(Rule 1:28 Decision), citing New England Tel. & Tel. Co. v. Gourdeau Constr. Co., 419 Mass.
658, 659-660 (1995). Thus, the Massachusetis Rules of Civil Procedure and the Superior Court
Rules govern the case.
With respect to the substantive law, Section 7.10 of the APA states:
Governing Law. This Agreement shall be governed by and construed in accordance with
the internal laws of the State of Delaware without giving effect to any choice.or conflict
of law provision or rule (whether of the State of Delaware or any other jurisdiction).
(Ex. 2B, APA. Section 7.10.) Where “the parties have expressed a specific intent as to the
governing law, Massachusetts courts will uphold the parties’ choice as long as the result is not
contrary to public policy.” Oxford Glob. Res., LLC v. Hernandez, 480 Mass. 462, 468 (2018),
quoting Hodas v. Morin, 442 Mass. 544, 549-550 (2004).
Although FastArchiver argues that Massachusetts law should apply, it has not argued that
the choice of law would make any difference in the outcome. “It is a fundamental choice of law
principle that only actual conflicts between the laws ofdifferent jurisdictions must be resolved . .
. . Choice of law analysis is unnecessary when the choice will not affect the outcome of the
case.” Kaufinan v. Richmond, 442 Mass. 1010, 1011 (2004) (Rescript), citing Cohen v.
McDonnell Douglas Corp., 389 Mass. 327, 332 n.7 (1983). Here, therefore, the court need not
engage in any choice of law analysis and applies Delaware substantive law to the Plaintiffs’
contract claims.
Il. Standard of Review
““Summary judgment is appropriate where there is no genuine issue of material fact, and
the moving party is entitled to judgment as a matter of law.” Barberte v, Stempniewicz, 490
Mass. 98, 107 (2022), quoting Conservation Comm'n of Norton v, Pesa, 488 Mass. 325, 330
(2021); see also Mass. R. Civ. P. 56(c). “The moving party bears the burden of demonstrating the
absence of a triable issue of fact on every relevant issue.” Scholz v. Delp, 473 Mass. 242, 249
(2015), citing Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20, 32 (2006).
The moving party may satisfy its burden by submitting affirmative evidence negating an
essential element of the opposing party’s case, or by demonstrating that the opposing party has
no reasonable expectation of provirig an essential element of its case at trial. Flesner v. Technical
Comme'ns Corp., 410 Mass. 805, 809 (1991); Kourouvacilis v. General Motors Corp., 410
Mass. 706, 714 (1991). Once the moving party establishes the absence of a triable issue, the
party opposing the motion must respond with evidence of specific facts establishing the
existence ofa genuine dispute. Pederson v. Time, Inc., 404 Mass. 14, 17 (1989). In its analysis.
the court keeps in mind that “[d]isputed facts are material only if they have a bearing on the
outcome of the case.” Jupin v. Kask, 447 Mass. 141, 145-146 (2006), citing Norwood v. Adams-
Russell Co., 401 Mass. 677, 683 (1988).
In determining whether genuine issues of fact exist, the court must draw all inferences
,
from the underlying facts in the light most favorable to the party opposing the motion. See
Attorney Gen. v. Bailey, 386 Mass. 367, 371, cert. denied, 459 U.S. 970 (1982). Nevertheless,
the opposing party cannot rest on its pleadings and mere assertions of disputed facts to defeat the
motion for summary judgment. LaLonde v. Eissner, 405 Mass. 207, 209 (1989).
In. Analysis
a. Breach of Contract
To establish a claim for breach of contract, a plaintiff must demonstrate: (1) the existence
of a contract, whether express or implied; (2) the breach of an obligation imposed by that
contract; and (3) the resultant damage to the plaintiff. VLJW Technology, LLC v. Hewlen-
Packard Co., 840 A.2d 606, 612 (2003) (Del. 2003). Here, the Plaintiffs allege a breach of
contract due to Arcserve’s failure to pay the purchase price due under the APA,
While the Complaint asserts various causes of action stemming from the alleged
misconduct of the Defendants, an important dispute lies in what the parties believe the actual
purchase price of FastArchiver’s assets to be. The Plaintiffs would have the court believe that
that the purchase price agreed to in the APA was Three Million Two Hundred and Fifty Dollars,
of which Ninety Thousand Dollars would be paid within sixty days of closing and the remaining
Three Million One Hundred and Sixty Dollars would be paid as “Earn-out Payments.” A review
of the APA, however, makes it unambiguously clear that the Earn-out Payments were not
guaranteed, and were only payable upon certain contingencies being met. “Unless there is
ambiguity, Delaware courts interpret contract terms according to their plain, ordinary meaning.”
Alta Berkeley VIC.V. v. Omneon, Inc., 41 A.3d 381, 385 (Del. 2012). Certainly, FastArchiver
could have made up to Three Million Two Hundred and Fifty Dollars on the sale of its email
archiving software, but that amount was never guaranteed in the APA. In fact, Section
1,04(b)(vii) of the APA makes it abundantly clear that “Earn-out Payments . . . are speculative
and subject to numerous factors.” and further states that “there is no assurance that the Seller will
receive any Earn-out Payment and none of Buyer or its Affiliates has promised that any Earn-out
Payment would-be made.” This is not to suggest that the Defendants could not be held liable for
fraudulent or deceptive behavior, especially if such conduct was intended to thwart provisions in
the APA, but the purchase price in the APA was never Three Million Two Hundred and Fifty
Dollars guaranteed.
The Plaintiffs also argue that Arcserve breached Section 1.04(b)(viii) of the APA by
failing to disclose the payments it received from the sale of EAS and not paying earn-outs from
those sales and that Arcserve’s CEO, Tom Signorello, informed Catanzano that Arcserve did not
want to make the earn-out payments. To support these allegations, the Plaintiffs point to their
responses to the Defendants’ interrogatories and to the Affidavit of Stephen Catanzano.* These
documents do not support the Plaintiffs" allegations. In addition, the self-serving affidavit.of
Catanzano, which is not supported by evidence in the record, is not sufficient to raise a genuine
issue of material fact. Commonwealth v. Eskanian, 74 Mass. App. Ct. 666, 673 (2009), citing
Kirschbaum v. Wennett, 60 Mass. App. Ct. 807, 809 n.4 (2004).
Delaware law also supports the Defendants’ argument as it relates to Arcserve’s
obligations relative to the APA’s “Earn-out” provisions, see Lazard Tech. Partners, LLC v.
* The Affidavit of Stephen Catanzano is dated April 13, 2023, the day before the Plaintiffs served
their opposition to the Defendants’ motion for summary judgment.
Qinetig N. Am. Operations LLC, 114 A.3d 193, 195 (Del. 2015). In Lazard, the seller alleged
that the buyer breached the provision ofa merger agreement which prohibited the buyer from
taking any action to divert or defer revenue with the intent of reducing or limiting earn-out
payments. Id. at 194. After a bench trial, the Delaware Court of Chancery found that the seller
failed to prove that any business decision of the buyer was motivated by a desire to avoid an
eam-out payment and denied the seller's claim. /d. On appeal, the Supreme Court of Delaware
rejected the seller’s argument that the agreement precluded any conduct by that buyer that it
knew would have the effect of compromising the seller’s ability to receive an earn-out. /e/. at 195
In affirming the Court of Chancery decision, the Supreme Court held that the contract, as written,
only barred the buyer from taking action specifically motivated by a desire to avoid the earn-out.
Id.
The Plaintiffs also argue that Arcserve violated Section 4.05 by representing that it was
financially solvent. Since the Plaintiffs have not developed this argument and do not cite to
specific supporting evidence within the record,* further discussion is not warranted.
Finally, the Plaintiffs contend that Arcserve breached Section 5.05(a) of the APA, “the
broad misrepresentation provision, by making misrepresentations in connection with the
FastArchiver transactions.” This argument is without merit. Section 5.05(a) addresses the
“Release by Seller,” and it does not contain any obligations regarding misrepresentations. In any
event, the court will address the Plaintiffs’ misrepresentation claims below.
6 The Plaintiffs cite to Arcserve’s Audited Financials, Ex. 25, which are over 180 pages. The
Plaintiffs do not provide the court with specific page numbers or point to specific information in
support of their argument.
For all of the reasons stated above, the court concludes that Arcserve did not breach the
APA and, therefore, the court will grant the Defendants’ motion as to Count Four of the
Complaint.
b. Breach of the Covenant of Good Faith and Fair Dealing
“The implied covenant of good faith and fair dealing inheres in every contract governed
by Delaware law and ‘requires a party in a contractual relationship to refrain from arbitrary or
unreasonable conduct which has the effect of preventing the other party to the contract from
receiving the fruits of the bargain.’” Airborne Health, Inc. v. Squid Soap, LP, 984 A.2d 126, 145-
146 (2009), quoting Dave Greytak Enters., Inc. vy. Mazda Motors of Am., Ine., 622 A.2d 14, 23
(Del. Ch.), aff'd, 609 A.2d 668 (Del. 1992). “The implied covenant does not apply when “the
subject at issue is expressly covered by the contract.” Dave Greytak Enters., Inc., 622 A.2d at 23.
Since the court has concluded that Arcserve did not breach the APA by failing to pay the
Eam-out Payments, and since the alleged “misrepresentations” were specifically addressed by
the APA, the implied covenant of good faith and fair dealing is not implicated; thus, the court
will grant the Defendants’ motion as to Count Five of the Complaint.
c. Fraud/Misrepresentation
To establish a claim for fraud, the plaintiff must show that: (1) the defendant falsely
represented or omitted facts that the defendant had a duty to disclose; (2) the defendant knew or
believed that the representation was false or made the representation with a reckless indifference
to act or refrain from acting: (4) the
to the truth; (3) the defendant intended to induce the plaintiff
plaintiff acted in justifiable reliance on the representation; and (5) the plaintiff was injured by tis
reliance. Abry Partners V. LP. v. F& W Acquisition LLC, 891 A.2d 1032, 1050 (Del. Ch. 2006),
citing DCV Holdings, Inc. v. ConAgra, Inc., 889 A.2d 954, 2005 WL 3695841 at * 2 (Del. Dec.
8, 2005). As this court has already found above, the assertion that the purchase price agreed to by
the parties for FastArchiver’s software was Three Million Two Hundred and Fifty Dollars is
without merit. This court acknowledges, however, that representations may. have been made by
the Defendants that could have induced the Plaintiffs to believe the contingencies would be met,
therefore achieving sales revenue for the software sales that would have allowed FastArchiver to
reach its maximum potential Earn-out Payments. Specifically, there is evidence that Michael
Crest, Arcserve’s then-CEO, told the Plaintiffs that Arcserve was financially stable and had a
motivated salesforce interested in selling the software to clients ready, willing, and able to buy it.
The Defendants also spoke of marketing plans and financial models that suggested sales and the
Earn-out" Payment goals would be met. At the very least, there are issues of disputed material
fact as to whether those assertions were made,
Even if such statements were made, however, the Plaintiffs do not automatically survive
summary judgment. Fraud requires the Plaintiffs to have reasonably relied on those
representations. The Defendants argue that, as a matter of law, no such reliance was reasonable
in this case. The court agrees with the Defendants.
Delaware courts have consistently held that sophisticated parties to negotiated
commercial contracts may not reasonably rely on information that they contractually agreed did
not form a part of the basis for their decision to contract. See RAA Mgmt, LLC v. Savage Sports
Holdings, Inc., 45 A.3d 107, 119.(Del. 2012) (holding that non-reliance and waiver clauses in
nondisclosure agreement are enforceable and barred fraud claims); Great Lakes Chemical Corp.
v. Pharmacia Corp., 788 A.2d 544, 555-556 (Del. Ch. 2001) (concluding that disclaimer
language in purchase agreement between sophisticated parties barred fraud claims).
Here, the parties to the APA were experienced businesspeople who negotiated the terms
of the APA at arms-length. The suggestion that the Plaintiffs were somehow persuaded to forego
proper legal representation in negotiating the’ deal is without merit. The Plaintiffs were fully
aware that this was a significant business dealing that could earn them in excess of Three Million
Dollars, if everything fell their way. Who they chose to represent them and at what stage in the
process they chose to be represented by legal counsel is entirely on them. Further, the language
in the APA is clear and unambiguous, particularly, Sections 1.04(b)(vii) and 7.05. As already
stated above, Section 1.04(b)(vii) addresses the Earn-out Payments and states that they are
speculative and not guaranteed, and Section 7.05 clearly states that the signed APA constitutes
the sole and entire agreement between the parties, and specifically supersedes all prior written
and oral understandings. There is also evidence in the record that, during negotiations, Catanzano
requested a “commitment towards sales and marketing” concerning quotas and target goals. (See
Joint Appendix, Exs. IF, 1G.) The Plaintiffs knew that no such commitments were included in
the APA, and yet, they signed it. This was a fully negotiated agreement and it should be enforced
according to its terms.
The result is the same under Massachusetts law. See Masingill v. EMC Corp., 449 Mass.
532. 541 (2007) (“It is unreasonable as a matter of law to rely on prior oral representations that
are (as a matter of fact) specifically contradicted by the terms of a written contract”); McCartin
v. Westlake, 36 Mass. App. Ct. 221, 231 (1994) (“The deliberate, uncoerced, and businesslike
process by which the parties reached final, written agreements cannot be undone merely on the
claim, later asserted, that the plaintiffs understood that the commitment and obligations of the
parties were otherwise than as stated in the signed contract documents”). It is a long-standing
rule in Massachusetts that, “if ‘the contract was fully negotiated and voluntarily signed, [then]
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plaintiffs may not raise as fraudulent any prior oral assertion inconsistent with a contract
provision that specifically addressed the particular point at issue” Masingill, 449 Mass. at 541,
quoting Starr v. Fordham, 420 Mass. 178, 188 (1995), quoting Turner v. Johnson & Johnson,
809 F.2d 90, 97 (Ist Cir. 1986).
For these reasons, the court will allow the Defendants’ motion as to Count One and
Count Two.
d. Unfair and Deceptive Acts and Practices, Civil Conspiracy and Aiding and
Abetting
In Count Six of the Complaint, the Plaintiffs allege a claim for unfair and deceptive acts
and practices. The Complaint does not state under which authority the Plaintiffs are pursuing
their claim, however, in their opposition to the motion for summary judgment, the Plaintiffs
apply Massachusetts law, therefore, the court will apply Massachusetts law.
“It is well settled that where a plaintiff's G. L. c. 93A claim is wholly derivative of a
meritless statutory or common-law claim, the c. 93A claim must also fail as a matter of law.”
Cameron v. FCA US LLC, 100 Mass. App. Ct. 1126, 2022 WL 619519 at *3 (2022). Here, the
Plaintiffs’ claim is predicated upon the same conduct on which they base their claims for breach
of contract, fraud, and misrepresentation; they fail to allege any distinct unfair or deceptive
conduct by the Defendants. Having determined that there was no breach of contract, fraud or
misrepresentation, the Plaintiffs’ c. 93A claim must also fail.
It follows that the Plaintiffs’ claims for civil conspiracy and aiding and abetting must also
fail since those claims rely on the same underlying conduct. See Go-Bes/ Assets Lid. v. Citizens
Bank of Massachusetts, 463 Mass. 50, 64 (2012) (aiding and abetting a tort requires proof that
the defendant committed the relevant tort); Bartle v. Berry, 80 Mass. App. Ct. 372, 383, 384
(2011) (“To prove their claims for civil conspiracy, the plaintiffs must show an underlying
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tortious act in which two or more persons acted in concert and in furtherance ofa common
design or agreement”).
Therefore, the court will allow the Defendants’ motion as to Count Six, Count Seven, and
Count Eight,
CONCLUSION AND ORDER
For the reasons explained above, it is hereby ORDERED that the Defendants’ Motion
for Summary Judgment is aes
ALLOWED, and the case DISMISSED.
soo RED.
Salim Rodiiguez Tabit
Justice of the Superior Court
Date: February 5, 2024
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Yu COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, ss. SUPERIOR COURT CIVIL ACTION NO. 2081CV01199 FASTARCHIVER SOFTWARE, LLC & others! vs. ARCSERVE (USA) LLC & another? MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS” MOTION FOR SUMMARY JUDGMENT. INTRODUCTION This case arises out of the alleged breach of an asset purchase agreement. FastArchiver Software, LLC (“FastArchiver”), and its beneficial owners Peter Alex (“P. Alex”), Seda Alex (8. Alex”), and Stephen Catanzano (“Catanzano”) (collectively, the “Plaintiffs”) claim they are owed over Three Million Dollars for the sale of their proprietary email archiving software (“EAS”). On May 20, 2023, the Plaintiffs filed an eight-count complaint (the “Complaint”) against Arcserve (USA) LLC (“Arcserve”) and Marlin Management Company, LLC (“Marlin”) (collectively, the “Defendants”) alleging fraud (Count One-All Defendants), negligent misrepresentation (Count Two-All Defendants), breach of fiduciary duty (Count Three-Marlin)*, breach of the asset purchase agreement (Count Four-Arcserve), breach of the implied covenant of good faith and fair dealing (Count Five-Arcserve), unfair and deceptive trade practices (Count ! Peter Alex, Seda Alex, and Stephen Catanzano ? Marlin Management.Company, LLC FastArchiver withdrew Coutn Three in its opposition. Therefore, the court does not address this count in the body of ihis decision. Six-All Defendants), conspiracy (Count Seven-All Defendants), and aiding and abetting (Count Eight-All Defendants). This matter is now before the court on the Defendants’ Motion for Summary Judgment. After hearing and review of the parties’ submissions as well as the applicable law, for the reasons explained below, the Defendants’ motion is ALLOWED. BACKGROUND Here, the court describes the basic facts related to this dispute, as set forth in the Rule 56 Consolidated Statement of Undisputed Material Facts and the exhibits referenced therein, which are included in the Joint Appendix.* The relevant parties this litigation include: Arcserve, a Delaware limited lability company with a principal place of business located in Eden Prairie, Minnesota, Marlin. a Delaware limited liability company with a principal place of business located in Hermosa Beach, California, and FastArchiver, a Delaware limited liability company with a principal place of business located in North Grafton, Massachusetts. Areserve sells data-protection software and, in 2016, showed interest in buying email archiving software developed by FastArchiver. In October of 2016, Marlin submitted a letter of intent (“LOY”) on its and Arcserve’s behalf, for Arcserve to acquire the assets of FastArchiver for Ninety Thousand Dollars in cash and potential future “earn-out” payments. The LOI was signed by Marlin’s Principal, Michael Anderson, and agreed to by FastArchiver's President, Peter Alex. ‘Thereafter, in January 2017, Arcserve and FastArchiver agreed to an Asset Purchase Agreement (“APA”) that was signed by FastArchiver’s President, and its beneficial owners, and Arcserve’s President. Marlin was not a party to the APA. * Certain additional facts not mentioned here may be referenced during the court’s discussion of the parties" arguments. Of significance is the APA’s payment structure. Pursuant to the APA, Arcserve agreed to pay FastArchiver Ninety Thousand Dollars cash in three installments within sixty days of closing. It further agreed to pay FastArchiver “earn-out” payments under a specified timeline and under certain conditions that, if realized, would amount to another Three Million Two Hundred Fifty Thousand in consideration to FastArchiver. After the APA was signed, Arcserve retained the services of Catanzano as a consultant and compensated him to educate and train the salesforce on the email archiving software. DISCUSSION I. Choice of Law While the parties hardly discuss the issue in their submissions, the court must first consider what state’s law applies to the current dispute. “Massachusetts is the State in which the action was filed, and in the ordinary course the procedural rules of the forum control.” DMI Sales, Inc. v. Venta Airwasher. Inc., 94 Mass. App. Ct. 1120, 2019 WL 406118 at *2 (2019) (Rule 1:28 Decision), citing New England Tel. & Tel. Co. v. Gourdeau Constr. Co., 419 Mass. 658, 659-660 (1995). Thus, the Massachusetis Rules of Civil Procedure and the Superior Court Rules govern the case. With respect to the substantive law, Section 7.10 of the APA states: Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice.or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction). (Ex. 2B, APA. Section 7.10.) Where “the parties have expressed a specific intent as to the governing law, Massachusetts courts will uphold the parties’ choice as long as the result is not contrary to public policy.” Oxford Glob. Res., LLC v. Hernandez, 480 Mass. 462, 468 (2018), quoting Hodas v. Morin, 442 Mass. 544, 549-550 (2004). Although FastArchiver argues that Massachusetts law should apply, it has not argued that the choice of law would make any difference in the outcome. “It is a fundamental choice of law principle that only actual conflicts between the laws ofdifferent jurisdictions must be resolved . . . . Choice of law analysis is unnecessary when the choice will not affect the outcome of the case.” Kaufinan v. Richmond, 442 Mass. 1010, 1011 (2004) (Rescript), citing Cohen v. McDonnell Douglas Corp., 389 Mass. 327, 332 n.7 (1983). Here, therefore, the court need not engage in any choice of law analysis and applies Delaware substantive law to the Plaintiffs’ contract claims. Il. Standard of Review ““Summary judgment is appropriate where there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law.” Barberte v, Stempniewicz, 490 Mass. 98, 107 (2022), quoting Conservation Comm'n of Norton v, Pesa, 488 Mass. 325, 330 (2021); see also Mass. R. Civ. P. 56(c). “The moving party bears the burden of demonstrating the absence of a triable issue of fact on every relevant issue.” Scholz v. Delp, 473 Mass. 242, 249 (2015), citing Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20, 32 (2006). The moving party may satisfy its burden by submitting affirmative evidence negating an essential element of the opposing party’s case, or by demonstrating that the opposing party has no reasonable expectation of provirig an essential element of its case at trial. Flesner v. Technical Comme'ns Corp., 410 Mass. 805, 809 (1991); Kourouvacilis v. General Motors Corp., 410 Mass. 706, 714 (1991). Once the moving party establishes the absence of a triable issue, the party opposing the motion must respond with evidence of specific facts establishing the existence ofa genuine dispute. Pederson v. Time, Inc., 404 Mass. 14, 17 (1989). In its analysis. the court keeps in mind that “[d]isputed facts are material only if they have a bearing on the outcome of the case.” Jupin v. Kask, 447 Mass. 141, 145-146 (2006), citing Norwood v. Adams- Russell Co., 401 Mass. 677, 683 (1988). In determining whether genuine issues of fact exist, the court must draw all inferences , from the underlying facts in the light most favorable to the party opposing the motion. See Attorney Gen. v. Bailey, 386 Mass. 367, 371, cert. denied, 459 U.S. 970 (1982). Nevertheless, the opposing party cannot rest on its pleadings and mere assertions of disputed facts to defeat the motion for summary judgment. LaLonde v. Eissner, 405 Mass. 207, 209 (1989). In. Analysis a. Breach of Contract To establish a claim for breach of contract, a plaintiff must demonstrate: (1) the existence of a contract, whether express or implied; (2) the breach of an obligation imposed by that contract; and (3) the resultant damage to the plaintiff. VLJW Technology, LLC v. Hewlen- Packard Co., 840 A.2d 606, 612 (2003) (Del. 2003). Here, the Plaintiffs allege a breach of contract due to Arcserve’s failure to pay the purchase price due under the APA, While the Complaint asserts various causes of action stemming from the alleged misconduct of the Defendants, an important dispute lies in what the parties believe the actual purchase price of FastArchiver’s assets to be. The Plaintiffs would have the court believe that that the purchase price agreed to in the APA was Three Million Two Hundred and Fifty Dollars, of which Ninety Thousand Dollars would be paid within sixty days of closing and the remaining Three Million One Hundred and Sixty Dollars would be paid as “Earn-out Payments.” A review of the APA, however, makes it unambiguously clear that the Earn-out Payments were not guaranteed, and were only payable upon certain contingencies being met. “Unless there is ambiguity, Delaware courts interpret contract terms according to their plain, ordinary meaning.” Alta Berkeley VIC.V. v. Omneon, Inc., 41 A.3d 381, 385 (Del. 2012). Certainly, FastArchiver could have made up to Three Million Two Hundred and Fifty Dollars on the sale of its email archiving software, but that amount was never guaranteed in the APA. In fact, Section 1,04(b)(vii) of the APA makes it abundantly clear that “Earn-out Payments . . . are speculative and subject to numerous factors.” and further states that “there is no assurance that the Seller will receive any Earn-out Payment and none of Buyer or its Affiliates has promised that any Earn-out Payment would-be made.” This is not to suggest that the Defendants could not be held liable for fraudulent or deceptive behavior, especially if such conduct was intended to thwart provisions in the APA, but the purchase price in the APA was never Three Million Two Hundred and Fifty Dollars guaranteed. The Plaintiffs also argue that Arcserve breached Section 1.04(b)(viii) of the APA by failing to disclose the payments it received from the sale of EAS and not paying earn-outs from those sales and that Arcserve’s CEO, Tom Signorello, informed Catanzano that Arcserve did not want to make the earn-out payments. To support these allegations, the Plaintiffs point to their responses to the Defendants’ interrogatories and to the Affidavit of Stephen Catanzano.* These documents do not support the Plaintiffs" allegations. In addition, the self-serving affidavit.of Catanzano, which is not supported by evidence in the record, is not sufficient to raise a genuine issue of material fact. Commonwealth v. Eskanian, 74 Mass. App. Ct. 666, 673 (2009), citing Kirschbaum v. Wennett, 60 Mass. App. Ct. 807, 809 n.4 (2004). Delaware law also supports the Defendants’ argument as it relates to Arcserve’s obligations relative to the APA’s “Earn-out” provisions, see Lazard Tech. Partners, LLC v. * The Affidavit of Stephen Catanzano is dated April 13, 2023, the day before the Plaintiffs served their opposition to the Defendants’ motion for summary judgment. Qinetig N. Am. Operations LLC, 114 A.3d 193, 195 (Del. 2015). In Lazard, the seller alleged that the buyer breached the provision ofa merger agreement which prohibited the buyer from taking any action to divert or defer revenue with the intent of reducing or limiting earn-out payments. Id. at 194. After a bench trial, the Delaware Court of Chancery found that the seller failed to prove that any business decision of the buyer was motivated by a desire to avoid an eam-out payment and denied the seller's claim. /d. On appeal, the Supreme Court of Delaware rejected the seller’s argument that the agreement precluded any conduct by that buyer that it knew would have the effect of compromising the seller’s ability to receive an earn-out. /e/. at 195 In affirming the Court of Chancery decision, the Supreme Court held that the contract, as written, only barred the buyer from taking action specifically motivated by a desire to avoid the earn-out. Id. The Plaintiffs also argue that Arcserve violated Section 4.05 by representing that it was financially solvent. Since the Plaintiffs have not developed this argument and do not cite to specific supporting evidence within the record,* further discussion is not warranted. Finally, the Plaintiffs contend that Arcserve breached Section 5.05(a) of the APA, “the broad misrepresentation provision, by making misrepresentations in connection with the FastArchiver transactions.” This argument is without merit. Section 5.05(a) addresses the “Release by Seller,” and it does not contain any obligations regarding misrepresentations. In any event, the court will address the Plaintiffs’ misrepresentation claims below. 6 The Plaintiffs cite to Arcserve’s Audited Financials, Ex. 25, which are over 180 pages. The Plaintiffs do not provide the court with specific page numbers or point to specific information in support of their argument. For all of the reasons stated above, the court concludes that Arcserve did not breach the APA and, therefore, the court will grant the Defendants’ motion as to Count Four of the Complaint. b. Breach of the Covenant of Good Faith and Fair Dealing “The implied covenant of good faith and fair dealing inheres in every contract governed by Delaware law and ‘requires a party in a contractual relationship to refrain from arbitrary or unreasonable conduct which has the effect of preventing the other party to the contract from receiving the fruits of the bargain.’” Airborne Health, Inc. v. Squid Soap, LP, 984 A.2d 126, 145- 146 (2009), quoting Dave Greytak Enters., Inc. vy. Mazda Motors of Am., Ine., 622 A.2d 14, 23 (Del. Ch.), aff'd, 609 A.2d 668 (Del. 1992). “The implied covenant does not apply when “the subject at issue is expressly covered by the contract.” Dave Greytak Enters., Inc., 622 A.2d at 23. Since the court has concluded that Arcserve did not breach the APA by failing to pay the Eam-out Payments, and since the alleged “misrepresentations” were specifically addressed by the APA, the implied covenant of good faith and fair dealing is not implicated; thus, the court will grant the Defendants’ motion as to Count Five of the Complaint. c. Fraud/Misrepresentation To establish a claim for fraud, the plaintiff must show that: (1) the defendant falsely represented or omitted facts that the defendant had a duty to disclose; (2) the defendant knew or believed that the representation was false or made the representation with a reckless indifference to act or refrain from acting: (4) the to the truth; (3) the defendant intended to induce the plaintiff plaintiff acted in justifiable reliance on the representation; and (5) the plaintiff was injured by tis reliance. Abry Partners V. LP. v. F& W Acquisition LLC, 891 A.2d 1032, 1050 (Del. Ch. 2006), citing DCV Holdings, Inc. v. ConAgra, Inc., 889 A.2d 954, 2005 WL 3695841 at * 2 (Del. Dec. 8, 2005). As this court has already found above, the assertion that the purchase price agreed to by the parties for FastArchiver’s software was Three Million Two Hundred and Fifty Dollars is without merit. This court acknowledges, however, that representations may. have been made by the Defendants that could have induced the Plaintiffs to believe the contingencies would be met, therefore achieving sales revenue for the software sales that would have allowed FastArchiver to reach its maximum potential Earn-out Payments. Specifically, there is evidence that Michael Crest, Arcserve’s then-CEO, told the Plaintiffs that Arcserve was financially stable and had a motivated salesforce interested in selling the software to clients ready, willing, and able to buy it. The Defendants also spoke of marketing plans and financial models that suggested sales and the Earn-out" Payment goals would be met. At the very least, there are issues of disputed material fact as to whether those assertions were made, Even if such statements were made, however, the Plaintiffs do not automatically survive summary judgment. Fraud requires the Plaintiffs to have reasonably relied on those representations. The Defendants argue that, as a matter of law, no such reliance was reasonable in this case. The court agrees with the Defendants. Delaware courts have consistently held that sophisticated parties to negotiated commercial contracts may not reasonably rely on information that they contractually agreed did not form a part of the basis for their decision to contract. See RAA Mgmt, LLC v. Savage Sports Holdings, Inc., 45 A.3d 107, 119.(Del. 2012) (holding that non-reliance and waiver clauses in nondisclosure agreement are enforceable and barred fraud claims); Great Lakes Chemical Corp. v. Pharmacia Corp., 788 A.2d 544, 555-556 (Del. Ch. 2001) (concluding that disclaimer language in purchase agreement between sophisticated parties barred fraud claims). Here, the parties to the APA were experienced businesspeople who negotiated the terms of the APA at arms-length. The suggestion that the Plaintiffs were somehow persuaded to forego proper legal representation in negotiating the’ deal is without merit. The Plaintiffs were fully aware that this was a significant business dealing that could earn them in excess of Three Million Dollars, if everything fell their way. Who they chose to represent them and at what stage in the process they chose to be represented by legal counsel is entirely on them. Further, the language in the APA is clear and unambiguous, particularly, Sections 1.04(b)(vii) and 7.05. As already stated above, Section 1.04(b)(vii) addresses the Earn-out Payments and states that they are speculative and not guaranteed, and Section 7.05 clearly states that the signed APA constitutes the sole and entire agreement between the parties, and specifically supersedes all prior written and oral understandings. There is also evidence in the record that, during negotiations, Catanzano requested a “commitment towards sales and marketing” concerning quotas and target goals. (See Joint Appendix, Exs. IF, 1G.) The Plaintiffs knew that no such commitments were included in the APA, and yet, they signed it. This was a fully negotiated agreement and it should be enforced according to its terms. The result is the same under Massachusetts law. See Masingill v. EMC Corp., 449 Mass. 532. 541 (2007) (“It is unreasonable as a matter of law to rely on prior oral representations that are (as a matter of fact) specifically contradicted by the terms of a written contract”); McCartin v. Westlake, 36 Mass. App. Ct. 221, 231 (1994) (“The deliberate, uncoerced, and businesslike process by which the parties reached final, written agreements cannot be undone merely on the claim, later asserted, that the plaintiffs understood that the commitment and obligations of the parties were otherwise than as stated in the signed contract documents”). It is a long-standing rule in Massachusetts that, “if ‘the contract was fully negotiated and voluntarily signed, [then] 10 plaintiffs may not raise as fraudulent any prior oral assertion inconsistent with a contract provision that specifically addressed the particular point at issue” Masingill, 449 Mass. at 541, quoting Starr v. Fordham, 420 Mass. 178, 188 (1995), quoting Turner v. Johnson & Johnson, 809 F.2d 90, 97 (Ist Cir. 1986). For these reasons, the court will allow the Defendants’ motion as to Count One and Count Two. d. Unfair and Deceptive Acts and Practices, Civil Conspiracy and Aiding and Abetting In Count Six of the Complaint, the Plaintiffs allege a claim for unfair and deceptive acts and practices. The Complaint does not state under which authority the Plaintiffs are pursuing their claim, however, in their opposition to the motion for summary judgment, the Plaintiffs apply Massachusetts law, therefore, the court will apply Massachusetts law. “It is well settled that where a plaintiff's G. L. c. 93A claim is wholly derivative of a meritless statutory or common-law claim, the c. 93A claim must also fail as a matter of law.” Cameron v. FCA US LLC, 100 Mass. App. Ct. 1126, 2022 WL 619519 at *3 (2022). Here, the Plaintiffs’ claim is predicated upon the same conduct on which they base their claims for breach of contract, fraud, and misrepresentation; they fail to allege any distinct unfair or deceptive conduct by the Defendants. Having determined that there was no breach of contract, fraud or misrepresentation, the Plaintiffs’ c. 93A claim must also fail. It follows that the Plaintiffs’ claims for civil conspiracy and aiding and abetting must also fail since those claims rely on the same underlying conduct. See Go-Bes/ Assets Lid. v. Citizens Bank of Massachusetts, 463 Mass. 50, 64 (2012) (aiding and abetting a tort requires proof that the defendant committed the relevant tort); Bartle v. Berry, 80 Mass. App. Ct. 372, 383, 384 (2011) (“To prove their claims for civil conspiracy, the plaintiffs must show an underlying ll tortious act in which two or more persons acted in concert and in furtherance ofa common design or agreement”). Therefore, the court will allow the Defendants’ motion as to Count Six, Count Seven, and Count Eight, CONCLUSION AND ORDER For the reasons explained above, it is hereby ORDERED that the Defendants’ Motion for Summary Judgment is aes ALLOWED, and the case DISMISSED. soo RED. Salim Rodiiguez Tabit Justice of the Superior Court Date: February 5, 2024 12