                                      COURT OF CHANCERY
                                              OF THE
                                      STATE OF DELAWARE

TAMIKA R. MONTGOMERY-REEVES                                       Leonard L. Williams Justice Center
      VICE CHANCELLOR                                              500 N. King Street, Suite 11400
                                                                  Wilmington, Delaware 19801-3734

                               Date Submitted: October 14, 2016
                               Date Decided: November 18, 2016




       Thad J. Bracegirdle, Esquire                 Jeffrey L. Moyer, Esquire
       Andrea S. Brooks, Esquire                    Travis S. Hunter, Esquire
       Wilks, Lukoff & Bracegirdle LLC              Arun J. Mohan, Esquire
       1300 N. Grant Avenue, Suite 100              Richards Layton & Finger, P.A.
       Wilmington, DE 19806                         One Rodney Square
                                                    920 N. King Street
                                                    Wilmington, DE 19801

             RE:   inTEAM Associates, LLC v. Heartland Payment Systems, Inc.
                   Civil Action No. 11523-VCMR

       Dear Counsel:

             This Letter Opinion addresses both parties‟ motions for reargument. For the

       reasons stated herein, both motions are denied.

       I.    BACKGROUND1

             On September 30, 2016, this Court issued its Memorandum Opinion (the

       “Opinion”)2 enforcing plaintiff inTEAM‟s (“Plaintiff”) and defendant Heartland‟s

       (“Defendant”) non-competition agreement, as well as enforcing counterclaim

       1
             Terms not otherwise defined have the same meaning as in the Opinion.
       2
             inTEAM Associates, LLC v. Heartland Payment Systems, Inc., 2016 WL 5660282
             (Del. Ch. Sept. 30, 2016).
inTEAM v. Heartland
C.A. No. 11523-VCMR
November 18, 2016
Page 2 of 7

plaintiff Heartland‟s and counterclaim defendant Goodman‟s non-solicitation

agreement.    On October 7, 2016, Plaintiff filed its motion for reargument

(“Plaintiff‟s Motion”).   On October 10, 2016, Defendant filed its motion for

reargument (“Defendant‟s Motion”). On October 14, 2016, both Plaintiff and

Defendant filed their oppositions to the motions.

II.   ANALYSIS

      In order for the Court to grant a motion for reargument, the moving party

must establish either that the court has overlooked a controlling decision or

principle of law, or that the court has misapprehended the facts or the law.3 In

order for the movant to succeed in reargument, the misapprehension of fact or law

must be material and affect the outcome of the case.4 Additionally, “[r]eargument

under Court of Chancery Rule 59(f) is only available to re-examine the existing

record; therefore, new evidence generally will not be considered on a Rule 59(f)

motion.” 5 The motion must be denied if a party is merely restating its prior


3
      See, e.g., Medek v. Medek, 2009 WL 2225994, at *1 (Del. Ch. July 27, 2009);
      Reserves Dev. LLC v. Severn Sav. Bank, FSB, 2007 WL 4644708, at *1 (Del. Ch.
      Dec. 31, 2007); Nevins v. Bryan, 2006 WL 205064, at *2 (Del. Ch. Jan. 20, 2006).
4
      See, e.g., Aizupitis v. Atkins, 2010 WL 318264, at *1 (Del. Ch. Jan. 27, 2010);
      Medek, 2009 WL 2225994, at *1; Serv. Corp. of Westover Hills v. Guzzetta, 2008
      WL 5459249, at *1 (Del. Ch. Dec. 22, 2008).
5
      Reserves Dev. LLC, 2007 WL 4644708, at *1; Nevins, 2006 WL 205064, at *3.
inTEAM v. Heartland
C.A. No. 11523-VCMR
November 18, 2016
Page 3 of 7

arguments.6

      A.      Plaintiff’s Motion For Reargument

      Plaintiff argues that the Court should reconsider its decision not to shift

inTEAM‟s fees to Heartland. In the Opinion, the Court held that, although fee-

shifting is permitted under Section 6.5 of the Co-Marketing Agreement, Section

11.2 limits the liability of either party to the total amount of fees paid by the other

party under the Co-Marketing Agreement. 7 The exception, under Section 11.3,

states that the limitation does not apply if the damages are caused by the “willful

misconduct” of the other party.8 inTEAM admitted it had not paid any fees under

the agreement, and the Court found that inTEAM failed to prove willful

misconduct on the part of Heartland.

      In its motion, inTEAM states it “argued consistently that Section 11.2 of the

CMA does not limit [Heartland]‟s liability because [Heartland]‟s breaches of the

CMA resulted from willful misconduct.”9 First, inTEAM presented this argument



6
      Guzzetta, 2008 WL 5459249, at *1; Reserves Dev. LLC, 2007 WL 4644708, at *1;
      Nevins, 2006 WL 205064, at *3.
7
      inTEAM, 2016 WL 5660282, at *27.
8
      Co-Marketing Agreement § 11.3.
9
      Pl.‟s Mot. for Reargument 4.
inTEAM v. Heartland
C.A. No. 11523-VCMR
November 18, 2016
Page 4 of 7

in support of its claim for damages, not fee-shifting.10 In that argument, inTEAM

stated that “the record proves that [Heartland] intentionally and maliciously

refused to honor its obligations.” 11 inTEAM pointed to no specific facts or

evidence in the record to support its conclusory statement. Second, inTEAM

identifies no fact or law that the Court misapprehended. Instead, inTEAM points

to evidence of the partnership between Heartland and Colyar as proof of

Heartland‟s willful misconduct, as well as an e-mail discussing a product,

Nutrikids, that is not subject to the Co-Marketing Agreement and, therefore, not

relevant to the issue of damages for breach of the Co-Marketing Agreement. The

Court considered all evidence presented at trial and determined that inTEAM did

not meet its burden of proving willful misconduct in Heartland‟s breach of the Co-

Marketing Agreement. As inTEAM‟s motion only discusses evidence the Court

already examined and found did not show willful misconduct, inTEAM‟s motion

for reargument is denied.

      B.     Defendant’s Motion For Reargument

      Heartland‟s motion presents two grounds for reargument: (1) the Court

incorrectly calculated the time period of the injunction against Goodman by not

10
      Pl.‟s Opening Post-Trial Br. 69-71.
11
      Id.at 69; see also Pl.‟s Opening Pre-Trial Br. 46-47.
inTEAM v. Heartland
C.A. No. 11523-VCMR
November 18, 2016
Page 5 of 7

incorporating Section 11(f) of the Consulting Agreement; and (2) the Court

incorrectly calculated the length of the injunction against Heartland by beginning

the calculation on the date a Colyar executive contacted Heartland.

      In regards to the injunction against Goodman, Heartland points the Court to

a tolling provision in the Consulting Agreement, which states the time periods

discussed in the non-solicitation provision “shall not include any period(s) of

violation or period(s) of time required for litigation to enforce the covenants set

forth herein.”12 Heartland did not mention this provision or make this argument at

any time prior to the motion for reargument. 13 A party may not present a new

argument for the first time in a motion for reargument.14 Thus, the argument is

waived, and the motion for reargument is denied.

      In regards to the injunction against Heartland, Heartland argues that one e-

mail from a Colyar executive should not trigger the beginning of Heartland‟s

breach of the Co-Marketing Agreement based on the Court‟s analysis of


12
      JX-22 § 11(f).
13
      See Def.‟s Pre-Trial Opening Br. 52-53; Def.‟s Post-Trial Opening Br. 49-51.
14
      Oliver v. Boston Univ., 2006 WL 4782232, at *1 (Del. Ch. Dec. 8, 2006) (“„[N]ew
      arguments that have not previously been raised cannot be considered for
      reargument.‟” (quoting Lane v. Cancer Treatment Ctrs. of Am., Inc., 2000 WL
      364208, at *1 (Del. Ch. Mar. 16, 2000))); see also Sunrise Ventures, LLC v.
      Rehoboth Canal Ventures, LLC, 2010 WL 975581, at *1 (Del. Ch. Mar. 4, 2010).
inTEAM v. Heartland
C.A. No. 11523-VCMR
November 18, 2016
Page 6 of 7

inTEAM‟s alleged breach of the Co-Marketing Agreement. Specifically, the Court

held that one e-mail stating inTEAM was “looking at adding a POS feature” to its

software was not enough to prove by a preponderance of the evidence that

inTEAM had begun a “running start” on the point-of-sale software. 15 Heartland

argues the Court nevertheless used one e-mail to find inTEAM met its burden to

prove a breach on Heartland‟s side. In determining whether Heartland breached

the Co-Marketing Agreement, however, the Court did not rely on one e-mail alone;

rather there was systemic behavior that led the Court to its conclusion.16 The e-

mail served as an element, among others, to inform the Court of when this breach

began, not whether it occurred. 17 Heartland‟s argument does not point to any

misapprehension of law or facts. The Court reviewed the entire trial record and

used its “broad flexibility and discretion” in determining the length of the

injunction.18 Therefore, Heartland‟s motion for reargument is denied.




15
      inTEAM, 2016 WL 5660282, at *25.
16
      Id. at *17-18.
17
      Id. at *17-18, *27.
18
      Id. at *26.
inTEAM v. Heartland
C.A. No. 11523-VCMR
November 18, 2016
Page 7 of 7

III.   CONCLUSION

       For the aforementioned reasons, inTEAM‟s motion for reargument is

DENIED, and Heartland‟s motion for reargument is DENIED.

       IT IS SO ORDERED.

                                        Sincerely,

                                        /s/Tamika Montgomery-Reeves

                                        Vice Chancellor

TMR/jp
