IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

RAYTHEON COMPANY,

Plaintiff,
C.A. No. N17C-02-079 PRW CCLD

v.

BAE SYSTEMS TECHNOLOGY
SOLUTIONS & SERVICES INC.,

Defendant.

Submitted: August 1, 2017
Decided: October 30, 2017

Upon BAE Systems Technology Solutions
& Services, Inc. ’s Motion to Dz`smiss,
GMNTED as to Counts I, III, V, VI and VII and DENIED as to Counts II
and IV.

MEMORANDUM QPINION AND ORI)ER

Jack B. Jacobs, Esquire, Sidley Austin LLP, Wilmington, Delaware, Mark D.
Hopson, Esquire (pro hac vice), Gordon D. Todd, Esquire (pro hac vice), Daniel J.
Feith, Esquire (pro hac vice), Sidley Austin LLP, Washington, D.C., Attorneys for
Plaintiff.

John A. Sensing, Esquire, Matthew F. Davis, Esquire, Jesse L. Noa, Esquire, Potter
Anderson & Corroon LLP, Wilmington, Delaware, Gregory M. Williams, Esquire
(pro hac vice), Richard W. Smith, Esquire (pro hac vice), Katherine C. Campbell,
Esquire (pro hac vice), Wiley Rein LLP, Washington, D.C., Attorneys for
Defendant.

WALLACE, J.

I. INTRODUCTION
Plaintiff Raytheon Company (“Raytheon”) brings a Complaint against BAE
Systems Technology Solutions and Services, Inc. (“BAE”), in seven counts:
(l) breach of contract; (2) breach of the implied covenant of good faith and fair
dealing; (3) contractual indemnification; (4) unjust enrichment; (5) negligent
misrepresentation (pleaded in the alternative); (6) tortious interference With
prospective contractual relations (pleaded in the alternative); and (7) a tort related to
damaged trade and profession (pleaded in the alternative). The suit arises from
BAE’s and Raytheon’s relationship and intended concert to upgrade a foreign
government’s military aircraft.l
BAE now moves to dismiss all counts of Raytheon’s complaint2
II. FACTUAL AND PROCEDURAL BACKGROUND
A. SOUTH KOREA’S INITIAL F-16 UPGRADE PROGRAM BIDS.
In 2011, the Republic of Korea’s (“South Korea”) Defense Acquisition
Program Administration moved to upgrade the avionics systems and the mission
system software on its military’s 134 F-l6 fighter jets.3 The upgrade involved

multiple components, including mission computers, mission software, and radar

 

' Pl.’s Second Am. Compl. 1111 139~187 [hereinafter Pl.’s Compl.].
2 Opening Br. in Supp. of Def.’s Mot. to Dismiss at l [hereinafter Def.’s Br.].

3 Pl.’s Compl.1l 29.

systems. Before entering into the Foreign Military Sales program (“FMS
Program”)_through which the United States Government buys defense articles or
services from United States contractors on behalf of foreign end users4--South
Korea conducted a competitive bidding process on its own.5 South Korea solicited
bids from BAE and Lockheed Martin to “perform the task of integrating the
upgraded avionics systems into the aircraft, and separately solicited bids from
Raytheon and Northrop [Grumman] to supply the radar units.”6

To help prepare its South Korean bid, Raytheon retained John Bean as a
consultant.7 Bean is a former Lockheed Martin employee with significant F-l6

experience. Bean oversaw and assumed responsibility for Raytheon’s bid

development His contract with Raytheon explicitly prohibited him from doing

 

4 The FMS Program is authorized by the Arms Export Control Act, 22 U.S.C. § 2751, et seq.
FMS Program contracts must be executed without any cost to United States taxpayers, and the
foreign end user is required to pay all of the program costs. As such, the United States
Government, not the individual United States contractor, sets the price to be charged to the foreign
end user. This results in no direct contractual relationship between the United States contractor
and the foreign end user. To begin the process, the foreign end user submits a letter of request to
the United States Government, asking to purchase specific things. The two governments then
negotiate and enter into a Letter of Offer and Acceptance (“LOA”). Following this agreement, the
United States Government typically selects vendors to provide the requested goods. The foreign
end user may request certain contractors The main contractor can then enter subcontracts as
needed to obtain materials, etc., to fulfill the contract it has with the United States Government
The FMS program itself prevents a foreign end user from bringing a suit against the United States
contractor in relation to the FMS program transaction.

5 14130.
6 Id.
7 141131.

anything that would create a conflict of interest without informing Raytheon. lt also
prevented Bean from “represent[ing] a competitor on any particular matter in which
Raytheon [was] involved.”8 Raytheon claims that while Bean was under this
contract, he consulted with BAE on its negotiations with the United States
Government for the South Korean FMS contract.9 Raytheon and BAE bid separately
to participate in their respective aspects of the program.

In August 2012, South Korea selected BAE as its preferred systems integrator
and entered into an agreement with the company. 10 That agreement included a price
of $536 million and a requirement that BAE use its best efforts to integrate that price
into an LOA with the United States Government.

Raytheon alleges that as soon as South Korea selected BAE, Raytheon’s
employees met with BAE’s F-l6 team to understand the system architecture in
which its radar would be integrated.ll At this point, Bean informed Raytheon of his
potential conflict of interest and “theretofore undisclosed work for BAE.”]2 BAE

then hired Bean as “Vice President” and “General Manager for Global Fighter

 

3 Id. 11 32.
9 ld.

10 Id. 1 33.
11 Id. 1134.
12 Id. 1135.

Programs.”13 Raytheon says Bean’s duties with BAE then included coordinating
with Raytheon and overseeing Raytheon’s work on the South Korean program.
Raytheon terminated Bean’s consulting contract with it, but says, by then, Bean was
already in a position to, and did in fact, use his insider knowledge of Raytheon to
influence Raytheon’s bid to benefit BAE and disadvantage Raytheon.14

In April 2013, South Korea selected Raytheon as its preferred radar supplier,
and entered into an agreement with it.15 That agreement included a firm fixed price
of $357,987,453 and an agreement to use its best efforts to reflect that understanding
in an LOA with the United States Government. lt also required Raytheon to maintain
a bid bond for $17,899,373 to South Korea against failure to do so.]6

B. SoUTH KoREA NEGoTIATEs wITH THE UNITED STATEs
GOVERNMENT FoR AN FMS CoNTRACT.

South Korea originally sought two separate FMS contracts with the United
States Government. On August l, 2012, South Korea submitted a request for the
systems integration portion of the upgrade, designating BAE. On April 8, 2013,

South Korea submitted a separate request for the radar portion of the upgrade,

 

13 ld. 1136.
14 id. 137.
15 ld. 1138.
16 1¢1. 11 39.

designating Raytheon.17 The United States Government urged South Korea to
submit a single request covering both; South Korea did so on September l7, 2013.18
That combined request designated BAE as the systems integrator and prime
contractor, with Raytheon as a subcontractor to BAE.19 BAE asserts it did not
request this arrangement; rather, the United States Government directed this.20
Upon receiving that combined request, the United States Government began
to evaluate how much such a request would cost South Korea. The United States
Air Force estimated that the entire cost (including an increase for risk level) was
between $2.15 and 2.2 billion.21 South Korea objected to this estimate. But, in
response, South Korea did agree to remove certain elements from its requested
program. This reduced the estimated cost to $1.86 billion.22 South Korea still

objected to the price quotes.

 

11 1a 114i.
18 ld_ 1142.
19 161

20 Def.’s Br. at 8.
21 Pl.’s Compl.11 45.

22 1a 11 46.

ln September 2013, the United States Government, South Korea, and BAE
“tentatively” agreed to a total estimated cost of $ l .705 billion.23 Approximately $1.3
billion of that price was attributed to BAE’s and Raytheon’s combined costs, with
the balance covering the United States government’s administrative costs.24 The
United States Air Force warned South Korea that there was a “high cost risk” and
that “there [was] no guarantee[] that future funding [might] not be required during
program execution.”25 Raytheon alleges it was informed of neither South Korea’s
cost concerns nor the Air Force’s warning regarding cost risk.26

The program was eventually split into two LOAS: LOA-l and LOA-2. LOA-
l covered the limited work necessary for initial design and development of the
upgrades, while LOA-2 covered actual production and integration of the systems.27

On December 13, 2013, the United States Government and South Korea
executed LOA-l. South Korea agreed to pay the United States approximately $185

million immediately.28 The United States Government did not issue the prime

 

23 Id. 11 48. Defendants allege Raytheon agreed to this price estimate as well. See Def.’s Br.
at 8.

24 Pl.’s Compl.11 48.

25 Id. 11 49.

25 id. 11 50.

27 Id. 1151; Def.’s Br. at 8.

28 Pl.’s Compl. 11 52.

contract to BAE until May 2014.29 Meanwhile, both governments continued to
negotiate LOA-2.
C. BAE SUBCONTRACTS wITH RAYTHEON.

Even though BAE did not yet have the prime contract with the United States
Government, BAE subcontracted with Raytheon on December 3 l, 2013.30 Raytheon
alleges that this Subcontract went beyond the limited scope of LOA-l, and included
Raytheon’s performance for the entire upgrade program.31 Raytheon claims that
BAE made statements during the Subcontract negotiations that “were intended to
induce Raytheon to enter the Subcontract and begin work on and invest its own funds
in the program immediately.”32

BAE, however, says that the Subcontract was “undefinitized” and was not

fully funded.33 Until that occurred, BAE was only incrementally authorizing and

funding certain activities,34 and was not obligated to reimburse Raytheon for any

 

29 Id. 11 53; Def.’s Br. at 8.
30 Pl.’s Compl.11 55.

3| Id

22 Id. 11 56.

33 Def.’s Br. at 9 (citing Pl.’s Compl. Ex. l at §§ III(D) (“Until such time that this UCA is
fully funded at contract definitization. . . .”); III(E)(b); & III(E)(d)).

34 Def.’s Br. at 9 (citing Pl.’s Compl. Ex. l at § III(E)(a)).

_8_

amount over that which was allotted.35 Further, even for the funded work, BAE
could terminate the Subcontract for convenience if doing so was in its “best

interest.”36

Raytheon claims that BAE informed it that BAE lacked resources for the full
subcontract immediately, but would secure full funding promptly.37 Raytheon also
claims that BAE represented that the United States Government and South Korea
would finalize the LOA-2 soon.38 Raytheon Says BAE never disclosed the ongoing
issues.

D. THE SUBCONTRACT LANGUAGE.
1. General Terms

The Subcontract is titled “Undefinitized Contract Action.” Raytheon asserts
that these are standard in United States government contracting.39 They allow the
contractor to begin work with a payment guarantee, while realizing that some of the

specific terms are not yet final.40

 

35 Id. (citing Pl.’s Compl. Ex. l at § III(E)(b)).
36 Id. (citing Pl.’s Compl. Ex. l at UCA_00026).

37 Pl.’s Compl. 11 58.

38 101
52 Id. 11 6i.
40 Id

The Subcontract states

This UCA constitutes an agreement between the parties on
the terms and conditions set forth herein and signifies the
intention of the parties to execute a form, definitive m
Fixed Price type Agreement for the supplies/services
described in Attachment l, Supplies/Services, Prices, and
Delivery Schedule, hereto consistent with the terms and
conditions as specified in Attachment 2, UCA Terms and
Conditions.41

2. Fundl'ng
As to the incremental funding, the Subcontract goes on

[BAE] has informed [Raytheon] that insufficient funding
is available to support the program execution schedule
prior to August 2014. At [Raytheon’s] sole discretion,
[Raytheon] may establish internal funding to assist the
program in maintaining price and schedule. If and when
sufficient funding is established on the Contract, these
internally funded [Raytheon] costs shall be reimbursable
under the Contract.‘12

Under the terms of the funding schedule, BAE was to pay Raytheon $2.7
million in initial funding, $24.8 million on March 3l, 2014, and be “fully funded in
accordance with Attachment ll [monthly funding schedule].”43 Raytheon claims

that these provisions regarding incremental funding made BAE “responsible for

 

41 Pl.’s Compl. Ex. l at UCA_0004.
12 Id. at UCA _0009.

43 ]d

_10_

reimbursing Raytheon’s full performance.”44 lt claims “the Subcontract required

BAE to allot funds and pay Raytheon even in the absence of a Government

contract.”45

3. Termination

The Subcontract also contains termination provisions. Section VI(C) allows
BAE to terminate the Subcontract for convenience if “the parties fail to agree or fail
to make progress to reach an agreement on terms and conditions of a definitive
Agreement” or “the differences . . . are not resolved within the time specified for
definitization.”46 The Subcontract could also terminate automatically if the parties
didn’t execute a definitive agreement by the cutoff date.47 Either way, “[Raytheon]
shall be reimbursed with the termination for convenience clause indicated below,
but not in excess of the maximum BAE [not-to-exceed provision of the
,,48

Subcontract].

The Terrns and Conditions in Attachment 2 to the Subcontract incorporate a

number of Federal Acquisition Regulation (“FAR”) provisions, including the

 

44 Pl.’s Compl. 11 72.

45 Id. 11 73.

46 Pl.’s Compl. Ex. l at UCA_00013.
47 Id_

48 Id. at UCA_()OOl 3_00014.

_11_

termination procedure “entitled Termination for the Convenience of the Government
set forth in FAR 52.249-2 (Apr. 2012).”49 Under that regulation, after receiving
notice of termination from the United States Government, the prime contractor must
immediately terminate all related subcontracts.50 This procedure prevents recovery
of future lost profits by the prime contractor.31
4. Customer Communications Provision
Section 5 of the Terms and Conditions states

With the exception of System lntegrity, for which
Raytheon shall be allowed to directly liaison and
coordinate with the [United States] Government, [BAE]
shall be solely responsible for all liaison and coordination
with [South Korea], any higher tier contractor(s), or the
[United States] Government, as it affects any applicable
prime contract, this Contract, and any related contract.
Except as required by law, [Raytheon] shall not
communicate with [South Korea], any higher tier
contractor(s), or the [United States] Government, with
respect to the applicable prime contract or this Contract
without prior written approval from [BAE]. . . .32

 

49 Ia’. at UCA_00026 (§ 3 l (a)(i)). The Federal Acquisition Regulation is codified at 48 C.F.R.
C. 2-99 (2()13).

50 Def.’s Br. at ll (citing FAR provisions).

31 See G.L. Chrislian & Assocs. v. United States, 312 F.2d 418, 426-27 (Ct. Cl. 1963) (“For
many years unearned profits have not been paid upon such terminations, and we think it probable,
too, that Centex-Zachry knew of that general policy. For all of these reasons, we believe that it is
both fitting and legally sound to read the termination article required by the Procurement
Regulations as necessarily applicable to the present contract and therefore as incorporated into it
by operation of law. lt follows that Centex-Zachry and its subcontractors cannot recover unearned
but anticipated profits.”).

52 Pl.’s Compl. Ex. l at UCA_OOO21.

_12_

The parties dispute whether this provision imposes merely a restriction on
Raytheon’s ability to communicate with the United States Government and South

Korea, or actively places a duty on BAE to liaise and coordinate with the two

countries on Raytheon’s behalf.33
5. Indemnz'fz`cation of T hird-Parly Claims
Section 29 of the Terms and Conditions addresses indemnification. lt states

[BAE] and [Raytheon] indemnify each other against third
party claims to the extent directly caused and
proportionate to the negligence of the indemnifying party.
[Raytheon] shall indemnify, hold harmless, and at
[BAE]’s election, defend [BAE] . . . from and against all
losses, claims . . . causes of action . . . including, but not
limited to, reasonable attomeys’ fees, [litigation and
settlement expenses], and court costs, to the extent directly
caused and proportionate to the negligent acts or
omissions of [Raytheon] . . . related to the execution of
work to be performed or otherwise in the performance of
its obligations under the contract. [BAE] shall indemnify,
hold harmless and, at Raytheon’s election, defend
Raytheon . . . from and against all losses, claims . . . causes
of action . . . including, but not limited to, reasonable
attorneys’ fees, [litigation and settlement expenses], and
court costs, to the extent directly caused and proportionate
to the negligent acts or omissions of [BAE] . . . related to
of the execution of work to be performed or otherwise in
the performance of its obligations under the contract.54

 

33 Def.’s Br. at ll-l2 11 e (“The provision placed no obligations on [BAE]”); Pl.’s Compl. at
11 81 (“The first sentence [of the provision] gives BAE the right and obligation to be exclusively
responsible for all communications with the Sovereigns regarding the [Program].”).

34 Pl.’s Compl. Ex. l at UCA_00026.

_13_

In short, to be triggered, this clause requires three things: (1) a claim brought by a
third party; (2) which is “directly caused and proportionate to the negligence of the
indemnifying party;” and which is (3) “related to . . . the execution of work to be
performed or otherwise in performance of the [indemnifying party’s] obligations.”
E. UNITED STATES GovERNMENT TERMINATES LOA-l.

ln early October 2014, South Korea requested a partial stop work order for
LOA-l. On October 15, 2014, BAE told Raytheon to stop all work: Raytheon
complied.33 At the time of the stop work order, Raytheon had spent $38.602 million
of internal funds on the Subcontract “in reliance on BAE’s repeated
misrepresentations that it was close to securing the full funding for the Upgrade
Program and would reimburse Raytheon for its investment.”36 Raytheon alleges that
despite having received sufficient funds to reimburse it, BAE only paid Raytheon
$26.044 million of that figure.37

On October 15, 2014, BAE asserted that the maximum funding and

termination liability under the subcontract was E|`>38,355,458.38 After that was split

 

33 Pl.’s Compl.11 ll9.

55 ld.11 120.
57 Id
515 Id. 11121.

_14_

between various Subcontract costs, it would leave Raytheon with almost $6 million
in unpaid internal costs.

On November 5, 2014, the United States Government and South Korea
terminated LOA-l because they were unable to agree on the price and scope of the
Upgrade Program and of LOA-2.39 Raytheon alleges that BAE withheld information
about all the issues and negotiations between the United States Government, South
Korea, and BAE up until that point. BAE immediately notified Raytheon of the
termination, BAE terminated the Subcontract, and the parties then engaged in
termination negotiations.60

At an April 2015 negotiation meeting, Raytheon alleges that BAE
acknowledged that Bean had been “too positive about the outcome for the Upgrade
Program, which had clouded his judgment and soured [BAE]’s relationship with
Raytheon.”61 ln January 2016, Raytheon and BAE agreed to reallocate available

funding to repay Raytheon.62

 

39 Def.’s Br. at 12.
00 Ia'.; Pl.’s Compl.11 123-124.
01 Pl.’s Compl.11 124.

52 Id. 11125

_15_

F. SoUTH KoREA SUEs RAYTHEoN AND BAE IN SoUTH KoREA.

On July 1, 2015, South Korea filed two separate suits in its home courts
against BAE and Raytheon. South Korea claimed that both companies
impermissibly raised their prices, resulting in an increase in the FMS price. South
Korea said both companies did so in violation of the original agreements made
between South Korea and BAE/Raytheon prior to any United States government
involvement.63

BAE countersued in the Maryland federal district court, seeking a declaration
that South Korea could not sue BAE under the FMS Program.64 ln December 2016,
that court granted summary judgment in favor of BAE, stating that South Korea’s

grievance is with the United States Government, not BAE.63

 

52 Id. 1111130-31;Def.’s Br.ar12.
64 Def.’s Br. at 12.

55 ld. at 12-13.

_16_

G. RAYTHEoN’s CHANCERY ACTIoN rs DIsMIssED.
Raytheon brought suit against BAE in the Delaware Court of Chancery in
2016, alleging largely the same claims raised here. The Court of Chancery dismissed
the two equitable claims,66 and Raytheon elected to transfer its case here.67

III. STANDARD OF REVIEW

When considering a motion to dismiss pursuant to Superior Court Civil Rule

l2(b)(6), the Court will:

(1) accept all well pleaded factual allegations as true,
(2) accept even vague allegations as “well pleaded” if they
give the opposing party notice of the claim, (3) draw all
reasonable inferences in favor of the non-moving party, and
(4) [not dismiss the claims] unless the plaintiff would not be
entitled to recover under any reasonably conceivable set of
circumstances68

The Court must accept as true all well-pleaded allegations69 And every

reasonable factual inference will be drawn in the non-moving party’s favor.70 But

 

00 Order Granting Mot. to Dismiss, Raytheon Co. v. BAE Sys. Holdings, Inc. , No. 1 1957-VCL
(Del. Ch. Nov. 30, 2016).

67 Order Granting Pl.’s Election to Transfer Action to Superior Court, Raytheon Co. v. BAE
Sys. Ho]a'ings, Inc., No. 11957-VCL (Del. Ch. Jan. 27, 2017).

08 Cent. Mortg. C0. v. Morgan Stanley Mortg. Capital Hldgs. LLC, 27 A.3d 531, 535 (Del.
2011).

69 Id

70 Wilmington Sav. Funa'. Soc ’y, F.S.B. v. Anderson, et al., 2009 WL 597268, at *2 (Del.
Super. Ct. Mar. 9, 2009) (citing Doe v. Cahill, 884 A.2d 451, 458 (Del. 2005)).

_17_

the Court will “ignore conclusory allegations that lack specific supporting factual

allegations.”71

“Dismissal is warranted where the plaintiff has failed to plead facts supporting
an element of the claim, or that under no reasonable interpretation of the facts alleged
could the complaint state a claim for which relief might be granted.”72 But, if the
Court engages the standards described and finds the claimant may recover, the Court
must deny the motion to dismiss.73

IV. CHOICE OF LAW

Raytheon and BAE both agree that New York law governs their relationship
due to the choice-of-law clause in the Subcontract.74 When contracting parties select
a particular forum state’s law to govern the contract and all matters arising from it,

Delaware and New York both hold that the parties’ choice of law covers both

contract and related tort claims.75

 

71 Anderson v. Tingle, 2011 WL 3654531 (Del. Super. Ct. Aug. 15, 2011).

72 Hea’enberg v. Raber, 2004 WL 2191164, at *1 (Del. Super. Ct. Aug. 20, 2004).

73 Spence v. Funk & Communication Consultants, Inc., 396 A.2d 967, 968 (Del. 1978).
74 Pl.’s Compl.1[17(Ex. 1, at 23); Def.’s Br. at 15.

73 J.S. Alberici Const. C0. v. Mid-W. Conveyor Co., 750 A.2d 518, 520 (Del. 2000); Abry
Partners V, L.P. v. F & WAcqul'sition LLC, 891 A.2d 1032, 1048 (Del. Ch. 2006) (“To hold that
[the parties’] choice [of law] is only effective as to the determination of contract claims, but not as
to tort claims seeking to rescind the contract on grounds of misrepresentation, would create
uncertainty of precisely the kind that the parties’ choice of law provision sought to avoid.”). See
also Triple Z Postal Servs., Inc. v. United Parcel Serv., Inc., 2006 WL 3393259, at *9 (N.Y. Sup.
Ct. 2006) (holding that where “the resolution of plaintiff s tort claims is inextricably linked to the

_18_

V. DISCUSSION
A. BREACH-OF-CONTRACT CLAIM.
ln order to state a claim for breach of contract under New York law, Raytheon

must allege “the existence of a contract, the plaintiff’s performance under the

”76

contract, the defendant’s breach of that contract, and resulting damages. Here,

Raytheon must plainly plead and show that there was a contractual obligation that
BAE breached.77

Neither party disputes the validity and enforceability of the Subcontract. The
parties instead dispute their obligations under the “undefinitized” Subcontract.
Raytheon alleges that BAE failed to fund the Subcontract in accordance with the
Subcontract’s terms, failed to timely reimburse Raytheon, and improperly
terminated the Subcontract. Raytheon further contends that it is entitled to lost

profits damages due to BAE’s breach.

 

parties’ contractual relationship, the contract and its interpretation,” it is “encompassed by the
[contract’s] Forum Selection Clause.”).

70 Hampshire Props. v. BTA Bla’g. & Developing, Inc., 122 A.D.3d 573, 573 (N.Y. App. Div.
2014).

77 See, e.g., Steinblatt v. lmagine Medz'a, Inc., 758 N.Y.S.2d 149, 149 (N.Y. App. Div. 2003)
(“Although the plaintiffs claimed that the defendant’s failure . . . constituted a breach of contract,
they failed to plead the existence of an agreement setting forth an affirmative duty on the part of
the defendant. . . .”).

_19_

The New York Court of Appeals has stated that “[t]he fundamental, neutral
precept of contract interpretation is that agreements are construed in accord with the
parties’ intent[,]” and “[t]he best evidence of what parties to a written agreement
intend is what they say in their writing[.]”78 “Thus, a written agreement that is
complete, clear and unambiguous on its face must be enforced according to the plain
meaning of its terms.”79 “The threshold question of whether a contract is
unambiguous, and the subsequent construction and interpretation of an unambiguous
contract, are issues of law within the province of the court.”80 The Subcontract here
is complete, clear and unambiguous on its face, and thus will be accorded its plain
meaning.

]. T he Subcontract Contained N0 Provision Promisz`ng Full Paymem‘.

The undefinitized nature of the Subcontract meant that until the contract was
“fully funded at contract definitization,” BAE’s liability was governed by the

“Limitation of Buyer’s Obligation” provision-which made BAE liable only for

 

78 Greenfl`ela' v. Philles Records, lnc., 780 N.E.2d 166, 170 (N.Y. 2002) (quoting Slamow v.
Del Col, 594 N.E.2d 918 (N.Y. 1992)).

79 Ia'.

30 NRT New York, LLC v. Harding, 16 N.Y.S.3d 255, 258 (N.Y. App. Div. 2015) (internal
citation omitted).

_2()_

incrementally authorized and funded activities.31 Specifically, the Limitation of
Buyer’s Obligation Provision provides that BAE was not
obligated in any event to reimburse [Raytheon] in excess
of the amount allotted to the contract for those
[incrementally funded] item(s) regardless of anything to
the contrary in the clause entitled ‘Termination for
Convenience of the Buyer’ unless additional funds are
subsequently allotted to the contract.82
Raytheon contends that the phrase “unless additional funds are subsequently
allotted” means that BAE was solely responsible for allotting funds to the
Subcontract. But this reading contradicts the purpose of the provision and would
render BAE’s obligation limitless. lnstead, the plain meaning of the phrase is that if
BAE were to allot additional funds to the Subcontract prior to definitization, its
liability would be increased correspondingly to cover that amount. This reading is
consistent with paragraph (d) of the Limitation of Buyer’s Obligation Provision,
which contemplates the allocation of additional funds.83

Raytheon claims that BAE is obligated to fund Raytheon’s work for the entire

project, that such obligation was absolute, and that such obligation was neither

 

81 Pl.’s Compl. Ex. 1 at § llI(E)(a) & (b).
82 Pl.’s Compl. Ex. 1 at § lll(E)(b).

55 Pl.’s Compl. Ex. i at § iil(E)(d).

_21_

contingent on the negotiations finalizing nor the contract definitization.84 But where
in the Subcontract does that obligation arise? Raytheon can’t say.

Raytheon alludes to the Estimated Termination Liability Schedule’s “full
funding” obligation.85 But Raytheon incants nothing that requires BAE to pay a full
amount. The mentioned Schedule itself is “estimated” and limits what Raytheon can
receive in termination amounts-doing so based upon when termination occurs and
what performance had by then been authorized. Too, the Subcontract states that
BAE was merely “expected” to provide additional funding in accordance with the
schedule.80

2. Raytheon Spent Internal Funds at its Own Risk.

Raytheon’s internal expenses, spent without BAE’s authorization and at
Raytheon’s “sole discretion,”87 were incurred at Raytheon’s risk. The Subcontract
states that such internal expenditures were only reimbursable “[i]f and when

sufficient funding is established on the Contract[.]”88

 

84 Pl.’s Compl. 1111 139-47.

83 Pl.’s Compl.11 71.

80 Pl.’s Compl. Ex. 1 at § III(C).

87 Pl.’s Compl. Ex. 1 at § III(B). “At [Raytheon’s] sole discretion, [Raytheon] may establish
internal funding to assist the program in maintaining price and schedule. If and when sufficient
funding is established on the Contract, these internally funded [Raytheon] costs shall be

reimbursable under the Contract.” Id.

88 Pl.’s Compl. Ex. l at UCA_0009.

_22_

lf Raytheon seeks to recover its internal funds that were spent post-
Subcontract, but prior to any authorization by BAE, and for which the United States
Government has not provided funding, it is barred by the express language of the
contract.

While if Raytheon seeks to recover its internal liJnds that were spent post-
Subcontract, but prior to any authorization by BAE, and for which the United States
Government has provided funding, it is covered by the termination negotiations
Raytheon concedes that because of the payments made under those negotiations, it
has no outstanding unreimbursed costs.89

Lastly, if Raytheon seeks recovery of any pre-South Korean project expenses
it incurred while trying to develop a radar system, there is no contractual basis for
such recovery.

3. T he Subcontract was Not Impermissibly Terminatea’.

Raytheon claims that the contract was impermissibly terminated The
Subcontract allowed BAE to terminate on two potential grounds: (1) convenience,
or (2) absence of progress towards definitization. BAE could terminate the

Subcontract for convenience if doing so was in its “best interest.”90 Raytheon

 

89 Pl.’s Compl. 11 125 ; Def.’s Br. Ex. D (Del. Ch. Mot. to Dismiss Hr’ g Tr. at 88-90, Nov. 29,
2016).

90 Ia’. (citing Pl.’s Compl. Ex. 1 at UCA_00026).

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contends that the termination was impermissible because BAE based its termination
on the fact that the United States Government terminated its prime contract with
BAE, and as such, did not meet the failure to make progress toward definitization
requirement.91 Raytheon goes on to claim that “the Subcontract did not permit BAE
to terminate for convenience . . .”92 Raytheon’s reading is plainly wrong.

BAE could terminate the contract if doing so was in its “best interest,” and the

93

Subcontract explicitly says that BAE can terminate for convenience Failure to

make progress toward definitization is not, as Raytheon suggests, a “condition
precedent” to termination for convenience Failure-to-make-progress and
convenience are instead alternate (and independent) grounds for termination,

4. Raytheon is Not Entitlea’ to Lost Profits.

Raytheon’s claim of lost future profits for unperformed LOA-l work, non-
existent LOA-2 work, and potential future work on F-l6 upgrade programs with
other countries is baseless.

First, lost profits are not permitted under FAR Section 52.249-2.94 Under that

federal regulation, the contractor is only entitled to recover (1) “[t]he contract price

 

91 Pl.’s Compl.11 144.
92 Id
93 Pl.’s Compl. Ex. 1 at UCA_00013.

94 Pl.’s Compl. Ex. l at UCA_00026 11 31(a) (“Any such termination shall be in accordance
with the procedure set forth in the clause entitled Termination for the Convenience of the

_24_

for completed supplies or services accepted” but not yet paid for; (2) “[t]he costs
incurred in the performance of the work terminated;” and (3) “[t]he cost of settling
and paying termination settlement proposals;” all with reasonable allowance for
profit on work done.93 “Anticipatory profits and consequential damages shall not be

allowed.”96

Second, “[a] party may not recover damages for lost profits unless they were
within the contemplation of the parties at the time the contract was entered into and
are capable of measurement with reasonable certainty.”97 Nothing indicates that
such recovery was contemplated in the Subcontract.

Finally, Raytheon’s claim for lost profits is entirely speculative lf the profits
a party seeks are “merely speculative, possible or imaginary” they cannot be
recovered.98 Raytheon’s cited cases, American List and Tractebel Energy, in which
plaintiffs recovered the entire balance due of multi-year contracts that had been

prematurely cancelled, don’t help here.99 Unlike those in American Lz`st and

 

Government set forth in FAR 52.249-2, (Apr. 2012) which clause is incorporated herein by this
reference.”).

95 48 C.F.R. § 52.249-2 (2013).

96 48 C.F.R. § 49.202 (2013).

97 Ashlana' Mgmt. lnc. v. Jam`en, 624 N.E.2d 1007, 1010 (N.Y. 1993).
98 Kenfora' Co v. Erie Cly., 493 N.E.2d 234, 235 (N.Y. 1986).

99 See Am. List Corp. v. U.S. News & World Report, Inc., 549 N.E.2d 1161 (N.Y. 1989);
Tractebel Energy Mktg., lnc. v. AEP Power Mktg., lnc., 487 F.3d 89 (2d Cir. 2007).

_25_

Tractebel Energy, the Subcontract was incrementally funded, awaiting full funding
at contract definitization. Only “[i]f and when sufficient funding [was] established
on the [c]ontract” would BAE be liable for Raytheon’s internal expenses. BAE was
“not . . . obligated in any event to reimburse [Raytheon] in excess of the amount
allotted to the contract . . . unless additional funds [were] subsequently allotted.”100
Because no additional funds were allotted prior to termination, damages relating to
hypothetical future allotments are merely speculative Raytheon is therefore not
entitled to lost profit damages. With these many failures, Raytheon does not, under
any reasonable interpretation of the facts alleged, state a breach-of-contract claim
under which relief might be granted. And so, its breach-of-contract claim (Count I)
must be DISMISSED.

B. BREACH oF THE IMPLIED CovENANT oF Gooi) FAITH AND
FAIR DEALING CLAIM.

“Under New York law, a duty of good faith and fair dealing is implicit in
every contract, but only in connection with rights or obligations originating in the

contract.”101 This implied covenant encompasses the idea that “neither party shall

 

100 Pl.’s Compl. Ex. l at § III(E)(b).

151 Wolffv. iam Medium, rnc., 65 F. App’x 736, 738_39 (2d Cir. 2003).

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do anything which will have the effect of destroying or injuring the right of the other
party to receive the fruits of the contract.”102

Raytheon claims that the Consumer Communication provision created an
obligation for BAE “to report accurately on Raytheon’s performance to [South
Korea] and to report information that needed to be conveyed from [South Korea] to
Raytheon” because BAE was “solely responsible” for all communications regarding
the Subcontract.103 Raytheon alleges that BAE “breached its obligation by
misrepresenting to Raytheon the actual status of the Upgrade Program and by
misrepresenting Raytheon’s performance and pricing to [South Korea].”104 Under
the language of the provision, Raytheon could not communicate with South Korea
or the United States Government as to the status of its performance or anything else
related to the LOAS.

BAE contends that the Consumer Communication provision did not impose
an obligation on it, but rather a restriction on Raytheon. Where contractual language

imposes a restriction on a plaintiff rather than an obligation on the defendant, it

cannot serve as the basis of a good faith claim against that defendant.103 But the

 

102 Moran v. Erk, 901 N.E.2d 187, 190 (N.Y. 2008).
155 Pl.’s Comp1.11 150.
104 Pl.’s Ans. at 25.

103 Wolyj”, 65 F. App’x at 739.

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Subcontract provides that “[BAE] shall be solely responsible for all liaison and
coordination with [South Korea].”106 BAE could therefore be found to have been
contractually obliged to manage all liaison and coordination with South Korea, and,
under New York law, to do so in accordance with its duty of good faith and fair
dealing.

Raytheon’s breach of the implied covenant of good faith and fair dealing claim
(Count ll) survives this Motion to Dismiss.

C. INDEMNIFICATION CLAIM.

Raytheon contends that under the terms of the Subcontract, BAE must
indemnify it for any losses suffered in connection with South Korea’s suit against
Raytheon. South Korea’s suit arises from Raytheon’s alleged breach of the radar
supply agreement between it and South Korea. Raytheon alleges that BAE’s
“misrepresentations and omissions caused [South] Korea to mistakenly accuse
Raytheon of breaching the [agreement].”107 BAE argues that Raytheon’s claim must
fail because it falls outside of the scope of the Subcontract’s indemnification clause,

and is unrelated to any contractual obligations BAE may have owed Raytheon.

 

100 Pl.’s Compl. Ex. 1 at UCA_00021.

151 Pl.’s Comp1.11158.

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New York law generally disfavors indemnification clauses and, in turn, New
York courts apply a strict construction standard to them. 108 A duty to indemnify will
only be found if there is an “unmistakable intent[] to indemnify.”109 The indemnity
clause in the Subcontract provides:

[BAE] and [Raytheon] indemnify each other against
third party claims t0 the extent directly caused and
proportionate to the negligence of the indemnifying
party, . . . [BAE] shall indemnify, hold harmless and, at
Raytheon’s election, defend Raytheon . . . from and
against all losses, costs, claims, penalties, causes of action,
damages, liabilities, fees, and expenses, including, but not
limited to, reasonable attorneys’ fees, all expenses of
litigation and/or settlement, and court costs, to the extent
directly caused and proportionate to the negligent acts or
omissions of [BAE] . . . related to the execution of work
to be performed or otherwise in the performance of
any of its obligations.110

BAE argues that this provision offers no protection to Raytheon from all third-party
claims, only those claims where a third party’s harm arises from BAE’s

negligence.111 And Raytheon does not allege in its Complaint that South Korea’s

 

108 Olin Corp. v. Consol. Aluminum Corp., 807 F. Supp. 1133, 1141 (S.D.N.Y. 1992), aff’d in
part, vacated in part, 5 F.3d 10 (2d Cir. 1993).

109 Heimbach v. Metro. Transp. Auth., 553 N.E.2d 242, 246 (N.Y. 1990) (internal citations
and quotation omitted).

110 Pl.’s Compl. Ex. l at UCA~00026 (emphasis added).

111 Def.’s Br. at 34.

_29_

claim of harm was “directly caused . . . [by BAE’s] negligence”.1 12 Raytheon instead
argues that BAE made misrepresentations to South Korea that caused that foreign
government to sue Raytheon in South Korean courts.

The indemnification clause above, strictly construed, requires (1) a third-party
claim, that is (2) directly caused by BAE’s negligence, and that is (3) related to the
work to be performed under the Subcontract. Raytheon does not allege in its
Complaint that South Korea was directly harmed by BAE’s negligence arising from
Program or Subcontract work. Nor is South Korea’s lawsuit premised on the
Subcontract at all_it alleges a breach of Raytheon’s agreement with South Korea
as South Korea’s radar supplier. The indemnification claim (Count III), therefore,
must be DISMISSED.

D. UNJUST ENRICHMENT CLAIM.

Raytheon complains that it “conferred significant benefits on BAE outside of
Raytheon’s required [scope] of work, including performing some of BAE’s scope of
work, for which efforts Raytheon was not compensated.”1 13 Raytheon says BAE has
been unjustly enriched by having received the benefit of Raytheon’s work and then

terminating the Subcontract.

 

112 Pl.’s Compl. Ex. 1 at UCA_00026.

113 Pl.’s Compl.11 163.

_3 O_

A claim of unjust enrichment is premised on a quasi-contract theory of
recovery.114 A quasi-contract is an “obligation imposed by equity to prevent
injustice . . . in the absence of an actual agreement between the parties.”1 13 A party
can pursue both a breach-of-contract claim and a quasi-contract claim only when the
contract does not govern the dispute in issue.110 “[R]ecovery in quasi-contract
outside the existing contract may be had if a party has rendered additional services
upon extracontractual representations by the other party.”1 17

To prevail on an unjust enrichment claim under New York law, “a plaintiff

must establish: (1) that the defendant benefited; (2) at the plaintiffs expense; and

(3) that ‘equity and good conscience’ require restitution.”118 “The measure of

 

114 Georgia Malone & Co. v. Ralph Rieder, 926 N.Y.s.2d 494, 497 (N.Y. App. Div. 2011),
aff’d sub nom. Georgia Malone & C0. v. Rl`ea'er, 973 N.E.2d 743 (N.Y. 2012).

113 Ia'. (internal citations omitted).

110 Dart Brokerage Corp. v. Am. Commerce lns. Co., 2013 WL 5966901, at *2 (S.D.N.Y. Nov.
7, 2013) (intemal quotation omitted) (“[A] party is not precluded from proceeding on both breach
of contract and quasi-contract theories where there is a bona fide dispute as to the existence of a
contract or where the contract does not cover the dispute in issue.”).

117 U.S. East Telecomm., Inc. v. U.S. West Comm. Servs., Inc., 38 F.3d 1289, 1298 (2d Cir.
1994).

118 Price v. Cashman & Wakefl`ela’, Inc., 829 F. Supp. 2d 201, 217 (S.D.N.Y. 2011) (quoting
Kaye v. Grossman, 202 F.3d 611, 616 (2d Cir. 2000)).

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damages for an unjust enrichment claim is restricted to the ‘reasonable value’ of the

benefit conferred upon the defendant.”119

BAE argues that the unjust enrichment claim must fail because the
Subcontract governs the Upgrade Program and therefore precludes claims in quasi-
contract. But because Raytheon’s claim can be said to rest on benefits from
additional products and services conferred “outside of Raytheon’s required [scope]
of work,”120 it can be said to lie outside the scope of the existing contract.

Raytheon has adequately alleged that (1) BAE benefited from Raytheon’s
extra-contractual work, (2) at Raytheon’s expense, and (3) that “equity and good
conscience require BAE to make restitution.”121 Raytheon having met these
requisite pleading elements for its unjust enrichment claim (Count IV), the claim

survives dismissal here

 

119 Price, 829 F. Supp. 2d at 217 (citing Giora’ano v. Thomson, 564 F.3d 163, 170 (2d Cir.
2009)).

120 Pl.’s Compl. 11 163. Specifically, Raytheon “assisted BAE in applying for certification to
export its Modular Mission Computer, which was BAE’s responsibility . . . . This assistance
conferred a significant benefit on BAE for the Upgrade Program, and potentially on other programs
as well. Raytheon was not compensated for this extra-contractual help to BAE[.]” Pl.’s Compl. 11
92.

121 Pl.’s Compl.11 166.

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E. NEGLIGENT MISREPRESENTATION CLAIM.

Raytheon next contends that it was substantially harmed by
misrepresentations and omissions made by BAE upon which BAE knew Raytheon
would rely. Raytheon asserts that it depended on BAE for material and accurate
information.122 Raytheon alleges that BAE misrepresented to it that BAE was
obtaining software necessary to the Upgrade Program from the United States
Government, when the United States Government had never agreed to provide it.123
Raytheon also alleges that BAE continually told it that BAE was close to securing
the LOA-2, but never informed Raytheon that there were major issues in price
negotiations 124

ln Van Lake v. Sorz'n CRM USA, Inc., this Court stated that “[i]t is well-settled
Delaware law that the Court of Chancery has exclusive jurisdiction over claims of

”123 However, “in examining a negligent

negligen[t] misrepresentation.
misrepresentation claim, . . . the Court must look beyond the ‘labeling’ of the claim

and examine its substance to determine the true nature of the claim. Therefore, the

 

122 Pl.’s Compl.1[ 47.
125 id. 11i7i.
124 Id. 11172.

123 Van Lake v. Sorin CRM USA, Inc., 2013 WL 1087583, at *11 (Del. Super. Ct. Feb. 15,
2013).

_33_

question before the Court is whether [the claim] sounds in negligence or negligent

misrepresentation.”126

The Court has previously found that a claim sounded in negligence where the
claim, as alleged, did not rise to the level of negligent misrepresentation but
sufficiently alleged negligence.127 But that is not the case here And Raytheon
doesn’t allege that it has mislabeled its claim of negligent misrepresentation
Raytheon says instead: “this court of law has jurisdiction over misrepresentation
claims raising fraud-like claims and seeking a legal (i.e., non-equitable) remedy,
such as damages”128 On these bases alone, dismissal is warranted.

But the claim is doomed too on its merits New York case law provides that
“[a] claim for negligent misrepresentation can only stand where there is a special
relationship of trust or confidence, which creates a duty for one party to impart

correct information to another, the information given was false, and there was

 

126 Id

127 See Iacono v. Barici, 2006 WL 3844208, at *5 (Del. Super. Ct. Dec. 29, 2006); Smith v.
Peninsula Aaj`usting C0., 2011 WL 2791252, at *4 (Del. Super. Ct. June 16, 2011).

128 Pl.’s Supp. Letter at 5.

_34_

reasonable reliance upon the information given.”129 “A ‘special relationship’
requires a closer degree of trust than an ordinary business relationship.”130

Our Court of Chancery, applying New York law, instructs that “[c]ommercial
parties acting at arms’ length in negotiating a contract are not in a special
relationship.”131 BAE and Raytheon were sophisticated commercial parties
negotiating at arms’ length. Raytheon’s claim of negligent misrepresentation (Count

v) is DISMISSED.

F. ToRTIoUs INTERFERENCE wITH PRosPECTIvE CONTRACTUAL
RELATIONS CLAIM.

Under New York law, “[a] claim for tortious interference with prospective
business advantage must allege that: (a) the plaintiff had business relations with a
third party; (b) the defendant interfered with those business relations; (c) the
defendant acted with the sole purpose of harming the plaintiff or by using unlawful

means; and (d) there was resulting injury to the business relationship.”132

 

129 Haa’son River Club v. Consol. Ea'l'son Co. ofN. Y., 712 N.Y.S.2d 105, 106 (N.Y. App. Div.
2000) (citations omitted).

139 SU]OndZ v. BaFaS/’l, 639 N.Y.S.2d 561, 564 (N.Y. App. Div. 1996).

131 Mitsubishi Power Sys. Americas, lnc. v. Babcock & Brown Infrastructure Grp. US, LLC,
2010 WL 275221, at * 19 (Del. Ch. Jan. 22, 2010) (citing H & R ProjectAssocs. v. City of Syracuse,
737 N.Y.s.2d 712 (N.Y. App. Div. 2001)).

132 Thome v. Alexana’er & Louz'sa Cala'er Foana'., 890 N.Y.S.2d 16, 29 (N.Y. App. Div. 2009).

_35_

Raytheon contends that it has alleged sufficient facts “to show that it would
have entered into business relationships but for BAE’s conduct.”133 Raytheon says
that but for BAE’s actions, it “would have been able to integrate its radar system into
other F-16 aircraft, thereby satisfying a prerequisite to winning a [United States
Govemment] contract.”134 Raytheon further claims that BAE hindered its ability to
bid on an upgrade program with Singapore and other, similar United States
Government contracts.133 But Raytheon has done nothing to show that any of these
contracts were near inception at the time of BAE’s alleged wrongful actions

Raytheon also claims that it has identified the “unlawful means” required by
New York law to state a claim, lt says that New York allows a party to demonstrate
“unlawful means” through an independent tort, or extreme and unfair economic
pressure.136 But, Raytheon fails to recognize

“[Unlawful] means” include physical violence, fraud or
misrepresentation, civil suits and criminal prosecutions
and some degrees of economic pressure; they do not,
however, include persuasion alone although it is
knowingly directed at interference with the contract. The

distinction thus made between the possible liability of a
competitor for interference with performance of an

 

133 Pl.’s Ans. at 37.
134 Id_
135 Id

130 Ia'. at 38 (citing NBT Bancorp lnc. v. Fleet/Norstar Fin. Grp., Inc., 664 N.E.2d 492, 497
(N.Y. 1996)).

_36_

Raytheon alleges that BAE “applied unfair economic and coercive economic
pressures on Raytheon as part of the Upgrade Program” by refusing to allow
Raytheon to communicate with South Korea and by pressuring Raytheon to provide
a cost estimate without revealing how BAE intended to use the estimate.138 These
complaints in no way resemble the “unlawful means” defined and required under
New York law.139 Raytheon’s restriction on communication with South Korea was

included in the Subcontract itself, and Raytheon’s allegations relating to the estimate

existing contract and the more demanding requirements to
establish liability for interference with prospective
contractual relations reflects a recognition of the
difference in the two situations in the relationship of the
parties and in the substance and quality of their resulting
interests; greater protection is accorded an interest in an
existing contract (as to which respect for individual
contract rights outweighs the public benefit to be derived
from unfettered competition) than to the less substantive,
more speculative interests in a prospective relationship (as
to which liability will be imposed only on proof of more
culpable conduct on the part of the interferer).137

constitute “persuasion alone,” not fraud.

 

137 Guara'-Life Corp. v. S. Parker Hara’ware Manufacturing Corp. , 406 N.E.2d 445, 449 (N.Y.

1980)_

138 Pl.’s Compl.11 180.

139

35, supra.

And, as explained previously, the claimed independent tort Raytheon posits as an
“unlawful means”_negligent misrepresentation_has not survived dismissal itself. See pp. 33-

_3 7_

Additionally, Raytheon’s alleged interests in upgrade programs with other
countries undoubtedly fall into the “less substantive, more speculative interests in a
prospective relationship” category afforded less protection under New York law.

BAE’s Motion to Dismiss on the claim of tortious interference with
prospective contractual relations (Count Vl) is therefore GRANTED.

G. ToRT RELATED To DAMAGED TRADE AND PRoFEsSIoN CLAIM.

Finally, Raytheon alleges that as a result of BAE’s misrepresentations and
omissions in its dealings with Raytheon and South Korea, Raytheon suffered damage
to its professional reputation and to its “ability to compete for other future F-16
upgrade opportunities.”140 BAE contends that New York law does not recognize the
tort alleged.

ln support of its claim, Raytheon cites to Singer v. Jejj?'ies, in which the New
York Appellate Division stated that “[a]s a matter of policy, justice and fairness, [a]
plaintiff should not be precluded from having his day in court simply because the
hornbook index does not list the tortious acts herein involved.”141 The Court harther
found: that it was “unable to precisely categorize this tort is of no import, since ‘[i]t

is axiomatic that the simple fact that [a plaintiff’ s] action does not fit into a nicely

 

140 Pl.’s Compl.11 186.

141 Singer v. Jejj‘ries & C0., 553 N.Y.S.2d 346, 348-49 (N.Y. App. Div. 1990).

_38_

defined or established ‘cubby-hole’ of the law does not in itself warrant the denial
of reliefto him.”’142

But Singer has been narrowly construed in the few subsequent cases relying
on it,143 and now stands for the proposition that “‘certain allegations can be
sustainable as tort actions if they are sufficiently analogous to an established tort
action,’ such as fraud.”144

Where other torts alleged in a Complaint “adequately embrace [a plaintiff’ s]
allegations that Defendants harmed his [or its] professional reputation,” a Singer
analysis is inappropriate.145 The Court should not look to divine a novel alternate
tort to cover those failed attempts at others that have been pled in the same
Complaint. Here, Raytheon’s tort claiming damaged trade and profession largely
restates its claims of negligent misrepresentation and tortious interference with

prospective contractual relations lts fate should be no different than theirs

Raytheon’s Damaged Trade and Profession Claim (Count Vll) is DISMISSED.

 

142 Ia'. at 348 (citing Seia'el v. Greenberg, 260 A.2d 863, 868 (N.J. Super. Ct. Dec. 24, 1969)
(citations omitted)).

143 Cohen v. Avanaa'e, Inc., 874 F. Supp. 2d 315, 325 (S.D.N.Y. 2012) (citing Lines v.
Cablevision Sys. Corp., 2005 WL 2305010, at *3 (E.D.N.Y. Sept. 21, 2005) (“In the twenty-two
years since Singer was decided, the case has rarely been cited, and has never been cited let alone
adopted by the New York Court of Appeals. The ‘few cases’ that have cited Singer have
‘universally concluded that Singer did not create a catch-all tort.”’).

144 Ia’. (citations omitted).

143 Ia’. (citing Eavzan v. Polo Rath Lauren Corp., 40 F.Supp.2d 147, 152 (S.D.N.Y.l998)).

_39_

VI. CONCLUSION

BAE’s Motion to Dismiss is hereby GRANTED as to Counts l, III, V, Vl,

and Vll, and DENIED as to Counts ll and lV.

%QQD

Paul R. Wallace, Judge

IT IS SO ORDERED.

Original to Prothonotary
cc: All counsel Via File & Serve

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