                                                           PUBLISH

              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT

                         _______________

                           No. 95-8960
                         _______________

                D. C. Docket No. 1:93-cv-1868-ODE


CAMP CREEK HOSPITALITY INNS, INC.
d.b.a. SHERATON INN ATLANTA AIRPORT,

                                                Plaintiff-Appellant,


                              versus


SHERATON FRANCHISE CORPORATION, ITT SHERATON
RESERVATIONS CORPORATION, SHERATON SAVANNAH
CORPORATION, and ITT SHERATON CORPORATION,

                                               Defendants-Appellees.

                  ______________________________

          Appeal from the United States District Court
              for the Northern District of Georgia
                 ______________________________
                       (December 11, 1997)


Before BIRCH and CARNES, Circuit Judges, and MICHAEL*, Senior
District Judge.




     *
         Honorable James H. Michael, Senior U.S. District Court
Judge for the Western District of Virginia, sitting by designation.
BIRCH, Circuit Judge:

     Camp Creek Hospitality Inns, Inc. (“Camp

Creek”) appeals the district court’s grant of

summary          judgment         in   favor    of    Sheraton

Franchise           Corporation,            ITT      Sheraton

Reservations Corporation, Sheraton Savannah

Corporation, and the ITT Sheraton Corporation

(collectively “Sheraton”),1 arguing that genuine

issues of material fact remain with respect to each

of its claims.     Camp Creek also appeals the district court’s

decision to dismiss its motion to compel discovery as moot. We

affirm in part and reverse in part.

     Our review of the district court’s grant of summary judgment is

plenary, but we apply the same legal standards that bound the

district court. See Barfield v. Brierton, 883 F.2d 923, 933-34 (11th

     1
       Sheraton Franchise Corporation (“Sheraton Franchise”), ITT
Sheraton Reservations Corporation (“Sheraton Reservations”), and
Sheraton Savannah Corporation (“Sheraton Savannah”), are affiliated
with or wholly-owned subsidiaries of the ITT Sheraton Corporation
(“ITT Sheraton”).

                                  2
Cir. 1989). The purpose of a motion for summary judgment is to

“pierce the pleadings and to assess the proof in order to see

whether there is a genuine need for trial.” Matshushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348,

1356, 89 L. Ed.2d 538 (1986). A dispute over an issue of material

fact is genuine if the evidence would permit a reasonable jury to

return a verdict for the party against whom summary judgment is

sought. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,

106 S. Ct. 2505, 2510, 91 L. Ed.2d 202 (1986).    In reviewing

the district court’s grant of summary judgment

we     must       review       the     evidence        and      all

reasonable factual inferences in the light most

favorable to the party opposing the motion.

See Welch v. Celotex Corp., 951 F.2d 1235,

1237 (11th Cir. 1992). If, however, the evidence

of a genuine issue of material fact is “merely

colorable” or of insignificant probative value,

                                 3
summary judgment is appropriate. See Liberty

Lobby, Inc., 477 U.S. at 249-50, 106 S. Ct. at

2511.

                           BACKGROUND

    In September 1990, Camp Creek entered a

series     of      agreements      with   Sheraton       that

authorized         Camp      Creek   to    establish     and

operate        a   Sheraton    Inn   franchise     (the “Inn”)

approximately 3.5 miles west of the Atlanta

airport.       Camp Creek entered into a License

Agreement           with    Sheraton      Franchise      that

permitted Camp Creek to operate its property

under the Sheraton name in exchange for the

payment of various franchise royalties.                  The

License Agreement required Camp Creek to

enter      a    separate      contract    with    Sheraton

Reservations          that    permitted     the    Inn     to

                               4
participate     in     Sheraton’s                 nationwide

reservations system (the “Reservatron system”)

for the payment of additional associated fees.

Camp    Creek’s      participation         in     this   system

allowed    Sheraton’s            agents           to     accept

reservations    on     the       Inn’s      behalf        using

occupation and pricing data that Camp Creek

supplied to Sheraton Reservations.

   Camp Creek was not the only Sheraton

property in the vicinity of the Atlanta airport in

1990; the Sheraton Hotel Atlanta Airport (the

“SHAA”), another franchisee, already served

that market. Although Sheraton distinguishes

between inns (mid-price properties) and hotels

(higher-end    properties)        within    its    own    system,

Sheraton’s concerns about potential customer

confusion led to some disagreement over the

                             5
Inn’s name.       Camp Creek, which wanted to

confirm its presence near the airport in the

minds of potential guests, sought a name that

would include an “Atlanta Airport” designator.

The     License    Agreement,   however,    gave

Sheraton Franchise control over the name and,

to avoid confusion among Sheraton customers,

the parties agreed upon the “Sheraton Inn

Hartsfield-West, Atlanta Airport.”      Although

there   is   evidence   to   support   Sheraton’s

contention that Camp Creek initially was happy

with this designation, by early 1992 Camp

Creek had begun to ask permission to change

its name to “Sheraton Inn Atlanta Airport,”

based on its contention that travelers did not

associate “Hartsfield-West” with the airport.

Sheraton Franchise agreed to the change in the

                         6
Inn’s name with the express reservation that the

decision was subject to reconsideration should

the change create customer confusion.

      In 1992, Camp Creek experienced two

problems in connection with its participation in

the    Sheraton   Reservatron    system.          First,

Sheraton’s    representatives    failed      to   book

reservations for the Inn over a period of time

because an error led them to believe the Inn

was fully booked.       Sheraton Reservations

claimed that the problem was rooted in the

computer     software   but   refused   to    provide

compensation or further explanation for the

problem.     At approximately the same time,

Camp Creek received erroneous charges for

reservations that, the parties later discovered,

were due to confusion in the American Airlines

                         7
SABRE reservations system. A stern warning

from Sheraton Reservations prompted Camp

Creek to pay the charges and pursue a refund.

After encountering delays and intransigence

from    Sheraton,    Camp      Creek      eventually

recovered some credit for the billing error.

   In March 1992, Sheraton began to consider

acquiring a hotel property, then operating under

the Hyatt flag, in the vicinity of the Atlanta

Airport.   Sheraton’s interest was apparently

sparked    by   Hyatt’s   willingness    to   sell   the

property at a substantial discount.           Various

members of ITT Sheraton’s staff evaluated the

proposal, both at their corporate headquarters

in Boston, Massachusetts and in Atlanta, where

they traveled to study competitive properties.

The    evidence,    viewed    in   the   light   most

                          8
favorable to Camp Creek, shows that ITT

Sheraton’s representatives did not visit the Inn

to   evaluate   whether        the   new       hotel   would

compete    against       the     Inn;        similarly,     ITT

Sheraton’s internal evaluations of the project

did not seriously consider the competitive harm

that   might    befall   the    Inn     if    the   property

converted to the Sheraton flag. The appellees

maintain that it never viewed the Hyatt property

as a threat to the Inn because Sheraton

expected   the    property’s         connection        to   the

Georgia International Convention Center to

attract predominately group business.

     The evidence also suggests that at least

one of the ITT Sheraton employees working on

the Hyatt acquisition may have viewed the Inn

and the SHAA as potential obstacles to the

                           9
project’s success.    David Proch-Wilson, who

was primarily responsible for the acquisition,

prepared a series of documents that indicated

a desire, first, to eject both franchises from the

Sheraton system, alternatively, to convert the

SHAA to an Inn       if it elected to remain a

Sheraton franchise, and finally, to require Camp

Creek to change the Inn’s name back to

“Sheraton Inn Hartsfield-West.”       Indeed, in

February 1993, Sheraton Franchise informed

Camp Creek that the Inn’s name would be

changed to “Sheraton Inn Hartsfield-West,”

citing customer confusion between the two

Sheraton franchises already in the area. In the

same month, Sheraton Franchise offered the

SHAA the opportunity to reclassify itself as an

Inn in the Sheraton system.       Camp Creek

                        10
immediately protested the change in its name.

In    correspondence       to    Sheraton   Franchise,

Camp Creek demanded evidence of customer

confusion and offered to work with Sheraton to

resolve      any   other   factors      giving    rise   to

confusion. Camp Creek maintained that guests

did    not    associate         the   “Hartsfield-West”

designator with the Atlanta Airport and that the

change would threaten its business. Although

the evidence on this point is in some dispute,

Camp Creek apparently did not change the

Inn’s name on its signs and shuttle vans and

continued to answer the phone using the

Atlanta Airport designator.           Nevertheless, the

Inn’s name did change in the Reservatron

system       and    in     Sheraton’s       nationwide

advertising.         Sheraton         Franchise     never

                            11
provided documentation of specific instances of

customer confusion and in April 1994 agreed to

permit the Inn’s name to revert to “Sheraton Inn

Atlanta Airport.”

   Meanwhile, in April 1993, ITT Sheraton

consummated         its    acquisition       project   by

purchasing    the    Hyatt       property.      Sheraton

Savannah became the owner of the hotel and

began operating it under the name “Sheraton

Gateway Hotel, Atlanta Airport” (the “Gateway”)

on May 1, 1993. The record suggests that the

presence of a third Sheraton property in the

Atlanta Airport market caused some customer

confusion and that Camp Creek suffered some

decrease     in   the     growth     of   its   business,

particularly in its higher-end business. Although

the parties cannot agree on the extent of the

                            12
problems, Camp Creek presented evidence that

suggests     a   number         of    guests    who     had

reservations at the Inn actually stayed at the

Gateway at rates equivalent to or lower than the

Inn’s   rates,   and   often     at    rates    below   the

Gateway’s “walk-in” rate.

    Although ITT Sheraton had expected the

Gateway to be profitable almost immediately, it

soon became clear that the Gateway would not

live up to projections. Tom Faust, the manager

of the Gateway, blamed at least part of the

Gateway’s poor performance on competition

from the Sheraton franchises, particularly the

SHAA,      and    he    proposed         that    Sheraton

eliminate both franchises.            The evidence also

shows that Faust, who had previously been responsible for

Sheraton Reservations, had access to confidential,

                           13
competitively       sensitive        information     from   the

Reservatron system concerning the franchises, and

that he used this information to support his

argument for ejecting the franchises from the

Sheraton system.           Sheraton, however, never

adopted Faust’s proposal.

     The evidence, construed in Camp Creek’s

favor, shows that the Gateway could have

made use of this confidential information to

compete       against      the      Inn.   Moreover,        an

analysis of the Gateway’s actual performance

shows that the two properties do compete for

customers in a number of market segments.

Sheraton denies that Faust made any competitive use of the Inn’s

confidential information and maintains that, although

the Gateway did offer lower prices for a time, it




                               14
did so only to attract first-time customers who

might return at higher prices.

      Camp Creek has also presented evidence

that suggests Sheraton has taken actions to

favor the Gateway, Sheraton’s own property,

over the Inn. Although Sheraton maintains that

its    Reservations   software   displays   the

properties in the Atlanta Airport market in a

random fashion and that its agents have no

means by which to distinguish franchises from

corporate hotels, Camp Creek has presented

evidence of almost 300 test calls that suggest

the agents disproportionately list the Gateway

as the first choice to callers inquiring about

reservations. Camp Creek also has presented

evidence that Sheraton’s nationwide advertising




                       15
favored the Gateway over both the SHAA and

the Inn.

   Finally, Sheraton’s evidence shows that the

Inn’s   overall   economic     performance     has

continued   to    improve    since   the   Gateway

opened. Camp Creek’s experts, however, have

suggested that the Inn experienced abnormally

high no-show and cancellation rates, that the

Inn has not grown at the rate projected, and

that it has failed to achieve a reasonably

desirable mix of business, so that even though

occupancy rates have remained high, the Inn

would have been substantially more profitable

had the Gateway never entered the market as

a Sheraton property.

                    DISCUSSION




                        16
      As an initial matter, we note that Camp

Creek’s amended complaint sets forth a myriad

of statutory and common law claims under

Massachusetts, Georgia, and federal law based

on the      common nucleus of facts described

above. Although the complaint and the record

in this case are complicated and voluminous,

Camp Creek’s allegations boil down to the

basic     proposition     that     the   defendants,        by

establishing       and     operating      a    competing

Sheraton       hotel in the Atlanta Airport market,

violated one or more of the duties (sounding in

contract, tort, or both) that a franchisor owes to

its   franchisee.        We    examine      these    broad

contentions before addressing Camp Creek’s

more discrete claims for relief.

I.    The Implied Covenant of Good Faith and Fair Dealing

                              17
     (Counts I, II and X-A)

     Camp        Creek         claims      that,     although

Sheraton’s conduct may not have contradicted

the express terms of the License Agreement or

Reservations              Agreement,               Sheraton

nonetheless violated the covenant of good faith

and fair dealing that is implicit in every contract

under Massachusetts law. First, Camp Creek

argues that Sheraton’s decision to establish

and operate the Gateway in the Atlanta Airport

market      breached          this     implied      covenant.

Second, Camp Creek submits that even if

Massachusetts           law      does     not      prohibit     a

franchisor’s encroachment relative to the facts

of this case,2 a number of acts incident to


     2
        We adopt the term “encroachment” only as it has evolved in
the cases and academic commentary discussing the issues before us.
Our use of that term is not intended to attribute impropriety (or
the lack thereof) to the defendants’ actions in this case.

                                18
Sheraton’s    competition     with   Camp    Creek

constitute independent breaches of the implied

covenant of good faith. We address each claim

in turn.



    A. Sheraton’s Establishment of the Gateway Hotel
       (Count I)
     As the License Agreement contains no

covenant not to compete and does not grant the

Inn an exclusive territory, Camp Creek does not

contend that Sheraton violated any express

term of the License Agreement by establishing

and operating the Gateway Hotel.          Instead,

Camp Creek relies on the implied covenant of

good faith and fair dealing and argues that, by

establishing the Gateway in such proximity to

the Inn, Sheraton denied Camp Creek the fruits

of the contract. Sheraton replies that it did not

                         19
deny   Camp    Creek   any   benefit   under    the

contract and argues that the implied covenant,

as applied by Massachusetts courts, may not

be employed to rewrite the express terms of a

contract.

   We note that Massachusetts does imply a

covenant of good faith and fair dealing in all

contracts.    See Fortune v. National Cash

Register Co., 364 N.E.2d 1251, 1256 (Mass.

1977) (recognizing good faith and fair dealing

as “pervasive requirements” in Massachusetts

law.) This covenant requires parties to contracts

to deal honestly and in good faith in the

performance     and    enforcement      of     their

agreements,     see    Hawthorne’s,      Inc.     v.

Warrenton Realty, Inc., 606 N.E.2d 908, 914

(Mass. 1993), and to refrain from impairing the

                       20
other party’s right to receive the fruits of the

contract, see Larson v. Larson, 636 N.E.2d

1365, 1368 (Mass. App. Ct. 1994) (quoting

Anthony’s Pier Four, Inc. v. HBC Assoc., 583

N.E.2d 806, 820 (Mass. 1991)). The covenant

of good faith, however, may not be used to

rewrite or override the express terms of a

contract. See e.g., Zapatha v. Dairy Mart, Inc.,

408   N.E.2d    1370    (1980)         (rejecting   a

franchisee’s   challenge    to   its     termination

pursuant to the express terms of the franchise

agreement).

   Although the parties have brought a great

deal of persuasive authority to our attention,

they have cited no Massachusetts case that

applies the covenant of good faith to facts

similar to those present here. The great weight

                       21
of authority on applying the implied covenant of

good     faith   and   fair    dealing     to   cases   of

encroachment converges around two fairly

simple    propositions:       (1)   when    the   parties

include contract language on the issue of

competing franchises the implied covenant will

not defeat those terms;3 and (2) when there is

no such language the franchisor may not

capitalize upon the franchisee’s business in bad

faith.4 See Piantes v. Pepperidge Farms, Inc.,


   3
        See, e.g.,      Cook v. Little Caesar
Enterprises, Inc., 972 F. Supp. 400, 409 (E.D.
Mich. 1997) (franchisor did not engage in bad
faith by locating another franchise outside the
one mile “exclusive territory” granted to the
franchisee in the contract); Payne v. McDonald’s
Corp., 957 F. Supp. 749, 754-60 (D. Md. 1997) (no
bad faith when the license agreement clearly and
unambiguously stated that franchisee can expect no
exclusive territory) (collecting similar cases).
   4
      The seminal case in this line is Sheck v.
Burger King Corp., in which the district court,
applying Florida law, held that language in the
franchise agreement that specifically denied the
                              22
875 F. Supp. 929, 937-40 (D. Mass. 1995)

(describing the trends and collecting cases).

   With these broad propositions in place, we

turn to the contract in this case. Although the

License Agreement appears to provide some

guidance with respect to the parties’ intentions

on this issue, the contract, as executed, says



franchisee “any area, market or territorial
rights” did not “imply a wholly different right to
Burger King–the right to open other proximate
franchises at will regardless of their effect on
the Plaintiff’s operations.” 756 F. Supp. 543, 549
(S.D. Fla. 1991) (“Scheck I”). The district court
found that whether the franchisor had breached the
implied covenant by granting another franchise in
close proximity to the plaintiff’s restaurant was
a question of fact for the jury. See Scheck v.
Burger King Corp., 798 F. Supp. 692, 696 (S.D.
Fla. 1992) (“Scheck II”). As Sheraton points out,
the Scheck cases have been criticized, ignored,
and distinguished in a number of subsequent
opinions. See e.g., Barnes v. Burger King Corp.,
932 F. Supp. 1420, 1437-38 (rejecting the Scheck
court’s reading of the franchise agreement). But
see In re Vylene Enterprises, Inc., 90 F.3d 1472,
1477 (9th Cir. 1996) (applying the Scheck reasoning
to a franchise contract silent on the issue of
exclusive territory).
                        23
nothing about whether or where Sheraton could

establish a competing hotel. Paragraph four of

the       License     Agreement         and     Schedule          B,

reproduced below, limit Sheraton’s right to grant

additional licenses, but only within the site of

the Inn.5         This language makes it clear that

Camp Creek had no contractual right to expect

the Sheraton to refrain from licensing the

Sheraton name to additional franchises beyond

the site of the Inn. Cf. Quality Inns Int’l, Inc. v. Dollar

Inns of Amer., Inc., [1992-93 Transf. Binder] Bus. Franchise



      5
          The License Agreement, as executed, provides:

            This license is personal to the Licensee and is
            restricted to the operation of the Inn on the
            location specified . . . , and is to be construed
            to permit only such activities as would normally be
            incident to the operation of a Sheraton Inn. So
            long as this Agreement is in effect, the Licensor
            shall not grant any other license authorizing the
            use of the name “Sheraton” for hotels, motels or
            inns located within the licensed area described in
            Schedule B hereto attached.

     Schedule B to the License Agreement states: “LICENSED AREA[:]
Site Only.”

                                 24
Guide (CCH) ¶ 10,007 at 23,184 (finding that a non-exclusive

franchise agreement implies the possibility of other franchises).

By the express terms of the contract, therefore,

the    Sheraton         could        have     authorized         a

competing franchise directly across the street

from the Inn, and Camp Creek would have little

recourse. See Piantes, 875 F. Supp. at 937-40 (relying on

express language in a contract to reject a claim based on the

implied covenant of good faith under Massachusetts law);

Shawmut Bank, N.A. v. Wayman, 606 N.E.2d

925, 928 (Mass. App. Ct. 1993) (rejecting a

claim based on the implied covenant of good

faith when the plaintiff had expressly waived the

protections at issue); see also Clark v. America’s Favorite

Chicken Co., 110 F.3d 295, 297-98 (5th Cir. 1997) (rejecting a

franchisee’s claim that the implied covenant of good faith prevents




                                25
the franchisor from permitting competition expressly contemplated

in the franchise agreement).

     Sheraton, however, did not establish such a

franchise in this case; instead, it purchased and

operated        the   Gateway           on   its   own   behalf.

Although the standard form license agreement

Sheraton used in its negotiations with Camp

Creek         contains         language            addressing

Sheraton’s         ability   to    compete         against       the

franchisee, the parties deleted that language

from their contract.6                  Although the parties

     6
         The deleted provision of the License Agreement stated:

           The absolute and unrestricted right however is
           reserved to Sheraton or any subsidiary or affiliate
           of Sheraton to own, lease, manage, operate, or
           otherwise be interested in any inn, motel or hotel
           of any kind in said licensed area operated under
           the   name   “Sheraton”    or   otherwise,   either
           exclusively for its own account or in conjunction
           with others . . . . The rights of Sheraton or an
           affiliate to operate in the restricted area as
           above set forth may be exercised regardless of any
           competitive effect on the Licensee.

We note that had the parties retained this provision in paragraph
four of the contract, by Sheraton’s own argument, it, too, would
have been limited to the site of the Inn as described in Schedule

                                  26
contest the reason for the deletion, the fact

remains         that    the   fully   integrated    License

Agreement7 is not ambiguous; it is simply silent

on the issue of whether or where Sheraton and

its       affiliates   can    establish   properties     that

compete against the Inn. Sheraton’s argument that the

site-only term dictates the outcome of this case, therefore, is

unavailing.      Nor will we accept either party’s

invitation to imply such language into the

contract to decide the issue.

      As a result, we must determine whether the

implied covenant of good faith and fair dealing,

as interpreted by Massachusetts courts, permits

the Sheraton to establish its own hotel in the



B.
      7
       Paragraph nineteen of the License Agreement contains the
following merger clause: “There are no other agreements or
understandings, either oral or in writing, between the parties
affecting this Agreement . . . . “

                                27
same vicinity as the Inn.     The facts of this

situation present neither of the extremes that

the parties alluded to in their briefs or at oral

argument. There can be no doubt, for example,

that had Sheraton established its own hotel in

Chattanooga, Tennessee, summary judgment

would   have   been   appropriate   because   no

reasonable trier of fact could have found that

Sheraton had violated its obligation of good

faith to Camp Creek.    Conversely, we do not

face a circumstance in which Sheraton chose to

establish its competing hotel directly across the

street from Camp Creek’s Inn. Moreover, this

case does not lend itself to an easy resolution

under   the   Massachusetts   cases   that   hold

against plaintiffs who argue that the implied

covenant requires the defendant to protect the

                       28
plaintiff’s interests beyond any measure of

commercial reason. See Zapatha, 408 N.E.2d at 1378

(reversing judgment for plaintiff based on the implied covenant of

good faith when there was no evidence that the defendant “failed

to observe reasonable commercial standards of fair dealing in the

trade”).8 This case presents a different situation,

one in which reasonable people could differ

over whether Sheraton’s conduct, given all the

facts and circumstances, violated the duty of

     8
       In Waltham Prof., Inc. v. Nutri/System,
Inc., [1985-86 Transf. Binder] Bus. Franchise
Guide (CCH) ¶ 8479, at 15,917 (D. Mass. 1985), for
example, the franchisee unsuccessfully argued that
the implied duty of good faith required the
franchisor to extend funds to replace the
contribution of a recently defunct franchise to a
joint-advertising   fund   so   that   the   other
franchisees would not have to increase their
contributions. Similarly, in Coraccio v. Lowell
Five Cents Sav. Bank, 612 N.E.2d 650, 655 (Mass.
1993), the court dismissed a claim that the
covenant of good faith, implied in a mortgage
contract, required a bank to refrain from granting
the plaintiff’s husband a second mortgage on
property they owned as tenants by the entirety.
No reasonable trier of fact could have found a
violation of good faith in either case.
                               29
good faith and fair dealing.9 See In re Vylene, 90 F.3d

at 1476.      As a result, summary judgment is
                    10
inappropriate.

     Sheraton further urges, that regardless of

whether a reasonable jury could find a violation

of their duty to Camp Creek, summary judgment is

nevertheless appropriate because Camp Creek

has failed to show damages. In support of this

argument, Sheraton emphasizes that the Inn

has been more profitable every year since the

Gateway opened. Camp Creek, however, has

presented evidence of damages through the



     9
        We note that the parties have presented a great deal of
conflicting evidence on Sheraton’s intentions toward the Inn, which
they argue supports the presence or absence of bad faith. Camp
Creek’s evidence concerning a number of specific “bad acts”
supports an inference of bad faith that is sufficient to withstand
Sheraton’s motion for summary judgment. See infra Part I(B).
     10
        This is not to say, however, that Sheraton can never avoid
a trial on the issue of its good faith when it seeks to open a new
hotel near any of its franchisees; Sheraton need only include (or
refrain from limiting and deleting) clear language reserving its
right to compete against its franchisees in its License Agreements.

                                30
affidavits of two experts and the Inn’s General

Manager. These affidavits describe a number

of trends present in the market for hotel rooms

in the Atlanta area, both before and after

Sheraton began operating the Gateway, and

present credible theories and measures of

damages attributable to the additional intra-

brand    competition      associated         with   the

Gateway’s entry to the market.         We hold that

Camp     Creek’s    evidence      is   sufficient    to

withstand   Sheraton’s        motion   for   summary

judgment on this claim.



   B.   Sheraton’s Specific “Bad Acts” and the Implied
        Covenant of Good Faith (Count II)

   In addition to the broad allegation that

Sheraton breached its implied duty of good faith


                         31
by competing against the Inn, Camp Creek

makes specific additional claims based on

discrete incidents that occurred in connection

with that competition.          None of these claims

standing     alone,     however,    survive      scrutiny

because Camp Creek has failed to present

evidence of damages connected to these bad

acts. As we discuss below, although many of

the acts in question may be probative on the

issue   of   Sheraton’s    good     or    bad    faith   in

connection with Count I of the complaint, these

acts, even considered in tandem, do not give

rise to a claim for breach of the implied duty of

good faith.

        1.    The Name Game

   The       district   court     granted       summary

judgment       on   Camp        Creek’s     claim    that

                           32
Sheraton’s decision to require the Inn to drop

the “Atlanta Airport” designation from its name

violated the implied covenant of good faith and

fair conduct.    Paragraph five of the License

Agreement expressly gave Sheraton the right to

approve or disapprove of the Inn’s name.

Moreover, as Sheraton points out, when it

initially gave the Inn permission to change its

name to the “Sheraton Inn Atlanta Airport” in

1992, it reserved the right to reconsider that

change should any customer confusion arise.

As we noted above, however, a party to an

agreement       may   not    use   its   contractual

discretion in bad faith.     See Anthony’s Pier

Four, 583 N.E.2d at 820-21 (finding a violation

of good faith when the defendant used its




                        33
contractual   discretion      to   exact   financial

concessions from the other party).

   Nevertheless, we must affirm the district

court’s decision on this particular claim because

Camp Creek has failed to link any damages to

Sheraton’s conduct regarding the Inn’s name.

Although Camp Creek’s experts have provided

general allegations of lost business, they have

not made any attempt to isolate the damages

that Camp Creek suffered as a result of the

name   change    from   the    damages     the   Inn

sustained from additional competition in its

market. Camp Creek’s evidence on this claim,

therefore, while probative on the issue of

Sheraton’s intent and any bad faith, cannot




                        34
sustain an independent claim for breach of the

implied covenant.11

          2. Playing Favorites

     Camp        Creek      maintains       that    Sheraton

Reservations committed a number of breaches

of both the express terms of the Reservation

Agreement and the covenant of good faith and

fair dealing implied in that contract.                   Camp

Creek argues that it has presented evidence to

show      that    Sheraton            Reservations      agents

systematically favored the Gateway Hotel over

the Inn when fielding customer calls. Although


     11
         Camp Creek has presented evidence that shows that David
Proch-Wilson, the Sheraton employee in charge of acquiring the
Gateway Hotel, first sought to eject both the Inn and the Hotel
from the Sheraton system and then, on December 8, 1992, suggested
that Sheraton could solve its concerns about the Inn by changing
its name; on January 26, 1993, Proch-Wilson requested the
Inn be notified of such a change. Although Sheraton claims its
decision on February 2, 1993, to require the Inn to drop “Atlanta
Airport” from its name was motivated by customer confusion
regarding the preexisting “Sheraton Hotel Atlanta Airport” and has
presented evidence that Proch-Wilson had no influence over the
decision, Camp Creek has raised issues of material fact regarding
Sheraton’s intentions.

                                 35
no provision of the Reservations Agreement

specifically addresses this issue, it is clear that

the conduct Camp Creek has alleged would

deprive the Inn of the benefits of the contract

(i.e. reservations) and therefore breach the

covenant      of     good      faith        inherent    in   that

agreement.         Again, however, we affirm the

district   court’s    decision         to    grant     summary

judgment on this claim because Camp Creek

has failed to provide any evidence or theory to

connect any damages to this particular claim.

Sheraton, on the other hand, has presented

evidence to demonstrate that the number of

reservations       the   Inn    received         through     the

Reservatron system actually increased in every

year after the Gateway opened.                   As a result,




                               36
Camp Creek’s claim for a breach of the implied

covenant must fail.12



          3.    Misuse of Confidential Information

     Next, we consider Camp Creek’s claim that Sheraton

Reservations improperly supplied confidential, competitively

sensitive information about the Inn’s reservations and pricing

structure to the Gateway. The evidence shows that

Tom Faust, manager of the Gateway, had

access         to   such      confidential        information

regarding the Inn, in breach of Sheraton’s own

procedures.         Although Sheraton admits that

Faust     improperly        used      the    information        to



     12
        Once again, Camp Creek should be able to use its evidence
of favoritism on remand to attempt to demonstrate Sheraton’s
alleged bad faith. Although Camp Creek’s 289 test-calls do not
constitute anything approaching a scientific survey, we note that,
contrary to the district court’s opinion, it does not violate the
rule against hearsay. See Fed. R. Evid. 801(c) (defining hearsay
as testimony offered for the truth of the matter asserted); Fed. R.
Evid. 801(d)(2)(D) (excluding statements made by an authorized
agent from the definition of hearsay).

                                37
propose the Inn’s elimination from the Atlanta

Airport market, Sheraton contends that Faust’s

proposal fell on deaf ears and that, as a result,

Camp Creek can show neither prejudice nor

damage from this breach of confidentiality. As

Camp Creek has failed to contradict Sheraton

with evidence of damages it suffered in connection with

Faust’s proposal, we affirm the district court’s grant

of summary judgment. Similarly, Camp Creek has

failed to provide sufficient evidence of damages with respect

to its allegation that the Gateway used this

misappropriated information to restructure its

own rates to compete against the Inn. Although

Camp Creek points to a conclusory statement

from one of its experts to the effect that the

Gateway’s use of the information damaged the

Inn, see Berman Aff. at ¶ 31, no reasonable jury

                             38
could     distinguish,   on   the    sole    basis     of   this

evidence, between losses the Inn suffered

because of the improper use of its confidential

information       and     those     due     to   the    simple

increase in intra-brand competition. See Liberty

Lobby, Inc., 477 U.S. at 249-50, 106 S. Ct. at 2511

(summary judgment appropriate when non-

movant’s        evidence       is   “merely      colorable”).

Accordingly, we affirm the district court’s grant

of summary judgment in favor of Sheraton on

this issue.13



     D.   Billing Disputes (Count X-A)

     Next, we consider Camp Creek’s claim that Sheraton

Reservations breached the Reservations Agreement by over-


     13
         This is not to say that Camp Creek may not present its
evidence on this issue at trial, as it is plainly probative on the
issue of whether Sheraton acted in bad faith towards its
franchisee.

                               39
billing the Inn in connection with reservations made by American

Airlines’ SABRE reservations system. The parties do not contest

the error, nor do they dispute that Sheraton Reservations

eventually corrected the problem once Camp Creek brought the

matter to its attention. What remains in dispute, however, is

whether the Inn received the full amount of credit to which it was

entitled. Camp Creek presents deposition testimony of the Inn’s

general manager to the effect that Sheraton Reservations should

have credited the Inn approximately $1,800 more than it received.

See I Sunderji Dep. at 202-03. As material facts appear to be in

dispute on this issue, Camp Creek has presented evidence

sufficient to survive summary judgment.

     No issue of material fact, however, remains on Camp

Creek’s claim that its reservations service was interrupted for a

period of time. Sheraton Reservations has presented evidence

that it stopped making reservations for the Inn due to a computer

software problem. Although Camp Creek denies this explanation,

                               40
it has presented no alternative, actionable theory for the

interruption. As the district court correctly noted, paragraph seven

of the Reservations Agreement contains an express indemnity

provision stating that neither Sheraton Reservations nor any of its

parent or affiliated companies may be held liable for “THE

INTERRUPTION OR MALFUNCTIONING OF THE SYSTEM,

WHETHER BASED ON CONTRACT, TORT OR ANY OTHER

LEGAL THEORY.” This provision establishes that Camp Creek

waived any and all claims to recover damages for an interruption

in the Sheraton Reservations system. As Camp Creek has not

rebutted Sheraton’s argument with any evidence or theory that

would permit recovery, we affirm the district court’s grant of

summary judgment on this issue. See Matsushita, 475 U.S. at

587, 106 S. Ct. at 1356 (holding that once the movant makes a

sufficient showing, the non-movant “must do more than simply

show that there is some metaphysical doubt as to the material

facts.”).

                                41
II.   Tortious Interference    with   Contract    and   Business
      Relations (Count III)

      Camp Creek also claims that the Gateway

Hotel tortiously interfered with its contracts with

guests and its business relations. The parties

agree that Georgia law governs Camp Creek’s

claims for tortious interference.                Camp Creek

claims that the defendants interfered with (1)

Camp Creek’s License Agreement and Reservations Agreement;

(2) the Inn’s contracts with its customers; and (3)

the Inn’s prospective customer relationships.

      Camp      Creek’s       allegations         of    tortious

interference       with       contract     and         business

relationships state two independent but related

claims. See Renden, Inc. v. Liberty Real Estate

Ltd. Partnership III, 444 S.E.2d 814, 817 (Ga.




                               42
App. Ct. 1994). The claims share the following

key elements:

      (1) improper action or wrongful conduct
      by the defendant without privilege; (2)
      the defendant acted purposely and with
      malice with the intent to injure; (3) the
      defendant     induced     a    breach     of
      contractual obligations or caused a party
      or third-parties to discontinue or fail to
      enter into an anticipated business
      relationship with the plaintiff; and (4) the
      defendant’s tortious conduct proximately
      caused damage to the plaintiff.”

Disaster Services Inc. v. ERC Partnership, No.

A97A2183, (Ga. App. Sept. 8, 1997); see also

Sweeney v. Athens Reg’l Med. Ctr., 709 F.

Supp. 1563, 1577-78 (M.D. Ga. 1989) (stating

the    elements      of   tortious     interference       with

contract); Hayes v. Irwin, 541 F. Supp. 397, 429 (N.D. Ga. 1982)

(stating the elements of tortious interference with business

relationships).




                               43
     A.   The License and Reservations Agreements

     First, we address Camp Creek’s claim that

ITT Sheraton and the Sheraton Savannah

tortiously interfered with the License Agreement

and Reservations Agreement.                   The evidence

shows that the only actions ITT Sheraton and

Sheraton Savannah took were to establish the

Gateway Hotel and compete against the Inn.14

We must decide, therefore, whether Sheraton’s

competition        in   the    Atlanta      Airport     market

constitutes a tort, independent of the parties

contractual obligations.

     At the outset, it is worth noting that simple

competition for guests between hotels ordinarily


     14
           Camp Creek’s evidence of misuse of confidential
information, an improper change in the Inn’s name, and favoritism
in the Reservatron system implicate Sheraton Franchise and Sheraton
Reservations, who as parties to the License and Reservation
Agreements cannot tortiously interfere with those contracts. See
SunAmerica Fin. v. 260 Peachtree St., 415 S.E.2d 677, 684 (Ga. App.
1992)(collecting cases).

                                44
does not give rise to an actionable tort claim.

See Hayes, 541 F. Supp. at 430 (describing the

competitive privilege). Camp Creek would have

no basis to complain, for example, if the

Marriott Corporation established a hotel in the

Atlanta Airport area and began competing with

the Inn for customers. Camp Creek argues that

its franchise relationship with Sheraton requires

a different result in this case, citing Hayes for

the proposition that once two entities have

agreed to pursue business together they may

not then tortiously interfere with each other’s

pursuit of that business.        See also DeLong

Equip. Co. v. Washington Mills Abrasive Co.,

887   F.2d   1499,   1518-19      (11th   Cir.   1989)

(privilege     defense        unavailable        where

interference    is   achieved     by      violating   a

                         45
confidential relationship). The Hayes court did

indeed reject the invocation of the competitive

privilege in a case where one of the principals

in   a   two-person          partnership      contacted       his

partner’s clients in an attempt to discredit him

and deprive him of their business. See Hayes,

541      F.        Supp.    at   430-31.        A    franchise

relationship, however, is distinguishable from

the partnership at issue in the Hayes case. See

Capital Ford Truck Sales, Inc. v. Ford Motor Co., 819 F. Supp.

1555, 1579 (N.D. Ga. 1992) (collecting cases that find no fiduciary

relationship between franchisor and franchisee).             The

agreements                establishing      the     franchise

relationship in this case make it very clear that

Camp Creek is only one of a vast number of

hotels        in    the    Sheraton     system       and     that

Sheraton and Camp Creek are not engaged in

                                 46
a partnership to pursue business in the Atlanta

Airport market.15        Moreover, Camp Creek has

failed    to   provide      any      evidence      of    unique

circumstances            that        might     support        the

proposition that the parties intended to create a

confidential or fiduciary relationship.16 See Allen

v. Hub Cap Heaven, Inc., 484 S.E.2d 259, 264 (Ga. App. 1997)

(standard franchise relationship does not present a fiduciary

relationship); Kienel v. Lanier, 378 S.E.2d 359, 361

(Ga. App. 1989) (no fiduciary relationship where

parties’ agreement provided for the pursuit of

separate business objectives).                  Although we

have held that a reasonable jury could find that

Sheraton’s competition against Camp Creek


     15
        In fact, paragraph eight of the License Agreement expressly
disclaims any such partnership.
     16
         This conclusion also disposes of Camp Creek’s claim for
unfair competition under Georgia common law (Count V), which
depends on the argument that Sheraton abused and exploited a
confidential relationship between the parties.

                                47
violated the contractual obligations between the

parties, we decline to convert such a claim into

an independent claim for tort.         We hold that

Sheraton’s choice to compete against the Inn

was subject to the competitive privilege and

was not “improper” or “wrongful” in the sense

used in Georgia’s cases on tortious interference

with contract.     We affirm the district court’s

grant of summary judgment on this issue.

   B.   Customer Contracts and Relationships

   Second,       we    consider     Camp       Creek’s

allegation that Sheraton interfered with the Inn’s

contracts      and      prospective        business

relationships with its customers. In support of

this claim, Camp Creek offers testimony to the

effect that almost 300 guests with reservations

at the Inn actually stayed at the Gateway.

                          48
Camp Creek claims that these guests boarded

the wrong Sheraton shuttle van at the Atlanta

Airport and, when they arrived at the wrong

hotel, the Gateway knowingly misappropriated

a large percentage of these guests by offering

them rates below the Inn’s reservation rates

and below the Gateway’s “walk in” rate.

    As noted above, Georgia law requires a

plaintiff to offer evidence that the defendant

acted improperly and that those acts induced a

breach of contract or prompted a third party to

discontinue or fail to enter an anticipated

business relationship.17            See McDaniel v. Green, 275

S.E.2d 124, 126-27 (Ga. App. 1980) (requiring a causal



     17
         It is by no means clear that the reservations at issue
constitute a contract under Georgia law.     See Brown v. Hilton
Hotels Corp., 211 S.E.2d 125, 127 (Ga. App. Ct. 1974) (permitting
a guest to sue for breach of contract when the hotel refused to
honor a prepaid reservation). We need not reach the question in
this case.

                               49
connection between the improper act and the interrupted

relationship). Although Camp Creek has presented

evidence that Sheraton engaged in a host of

improper actions, none of those actions relate

to the misappropriation of these (or any other)

customers with reservations. Indeed, given that these

customers initially made reservations at the Inn, the evidence

suggests that any omission of the Atlanta Airport designator from

the Inn’s name in Sheraton’s national advertising and the

Reservatron system,18 any bias in the Reservatron system, and

any misuse of the Inn’s confidential information to restructure the

Gateway’s rates had no impact whatsoever. The evidence,

construed in Camp Creek’s favor, merely shows

that the Gateway offered to meet or beat the

Inn’s rates when these guests arrived at their

     18
         Camp Creek admits that it never actually changed the
appearance of its vans to comply with Sheraton’s demand that it
change the Inn’s name. As a result, the only way Sheraton could
have confused these 300 customers at the airport was by using its
own name in connection with the Gateway.

                                50
door.   As Camp Creek has presented no

evidence that suggests these guests canceled

their reservations at the Inn because of the

Gateway’s alleged wrongful activity, we affirm

the district court’s grant of summary judgment

on this issue.

   Camp     Creek’s   remaining    evidence   of

tortious interference supports only the general

contention that Sheraton’s improper conduct

cost Camp Creek guests who might have

otherwise stayed at the Inn. Although a plaintiff

claiming tortious interference with prospective

business   relationships    need   not   identify

particular disrupted contracts to recover, Camp

Creek has presented no evidence to distinguish

between guests who chose not to stay at the

Inn as a result of Sheraton’s bad acts and those

                       51
who     simply     rejected    the   Inn   because      the

Gateway presented a more attractive (or simply

an additional) choice. Camp Creek’s failure to

identify      a    causal      connection        between

Sheraton’s tortious activity and the interruption

of any particular business relationship requires

us to affirm the district court’s grant of summary

judgment.         See Hayes, 541 F. Supp. at 429

(“plaintiff must demonstrate that absent the

interference, those relations were reasonably

likely to develop in fact.”); McDaniel, 275 S.E.2d

at 126-27.



III   The Massachusetts Unfair Trade Practices Act (Count IV)

      Next, we address Camp Creek’s claim that

the defendants violated the Massachusetts

Unfair Trade Practices Act.            See Mass. Gen.

                              52
Laws ch. 93A (the “Massachusetts Act”).                        As

the district court correctly observed, that statute

applies only to cases in which “the actions and

transactions       constituting          the   alleged      unfair

method of competition or the unfair or deceptive

act        or   practice     occurred          primarily      and

substantially       within     the       commonwealth          [of

Massachusetts].”           Id. § 11.       Sheraton, as the

party seeking to rely on this provision, bears the

burden of establishing that its conduct falls

outside the Massachusetts Act’s reach. Id.19

      To determine whether the conduct in a

particular       case      took        place   “primarily    and

substantially” within Massachusetts, the courts have


      19
        Camp Creek’s suggestion that Sheraton should not be heard
to complain about the application of the Massachusetts Act because
it requires its franchisees to sign agreements governed by
Massachusetts law is also unpersuasive.      See e.g. , Popkin v.
National Benefit Life Ins. Co., 711 F. Supp. 1194, 1200 (S.D.N.Y.
1989) (dismissing a contractual choice of law argument as
irrelevant to this inquiry).

                                  53
examined: (1) where the defendant committed the

deceptive or unfair acts; (2) where the plaintiff

was deceived and acted upon the defendant’s

unfair acts; and (3) where the plaintiff suffered

losses caused by the defendant’s unfair acts.

See Play Time, Inc. v. LDDS Metromedia

Communications Inc., 123 F.3d 23, 33 (1st Cir.

1997).   In the present case, the second and

third prongs of the test favor Sheraton, because

Camp Creek felt the “sting” of any deception in

Atlanta, Georgia.   See Clinton Hosp. Ass’n v.

Corson Group, Inc., 907 F.2d 1260, 1266 (1st

Cir. 1990) (applying Bushkin Assoc., Inc. v.

Raytheon Co., 473 N.E.2d 662 (Mass. 1985)).



   Camp Creek, therefore, relies on the first

prong of the analysis and argues that the

                       54
appellees acted in Massachusetts because

Sheraton made all the plans and decisions at

issue at its corporate headquarters in Boston.

 Camp Creek’s argument, however, overlooks

the fact that, although Sheraton’s contemplation

of   these     acts     may      have     taken      place     in

Massachusetts, the acts themselves took place

outside the Commonwealth.20                   Moreover, the

proposition that Camp Creek advances would

require the application of the Massachusetts

Act in every case involving a Massachusetts

defendant,       a    proposition       the    courts      have

rejected.     See Clinton Hosp., 907 F.2d at 1266 (rejecting

bright line rules); Healthco Int’l, Inc. v. A-Dec, Inc., No.

87-0235-S, 104064 at *13 (D. Mass. Apr. 17,


     20
          The acts Camp Creek cites include the name change
(nationwide), misuse of confidential information (Atlanta),
misleading advertisements (nationwide), and preferential treatment
in the Reservatron system (nationwide).

                               55
1989) (reading Bushkin to reject the argument

that the Massachusetts Act applies to every

defendant resident in Massachusetts).                         We

therefore affirm the district court’s grant of

summary judgment on this issue.21



IV Georgia Trade Secrets Act

     Camp Creek also asserts that Sheraton

misappropriated             confidential         information

regarding the Inn in violation of the Georgia

Trade Secrets Act (“GTSA”). See O.C.G.A. §

10-1-760 et seq. The record shows that Tom

Faust, the manager of the Gateway Hotel,

improperly came into possession of information


     21
        Our application of this express limitation found in the Act
renders unnecessary any determination of whether a Georgia court,
applying Georgia principles of conflicts of law, would apply the
Massachusetts Act at all.    See Klaxon Co. v. Stentor Elec. Mfg.
Co., 313 U.S. 487, 496, 61 S. Ct. 1020, 1021, 85 L. Ed. 1447 (1941)
(holding that a federal court hearing a diversity case applies the
conflicts of law rules of the state in which it sits).

                                56
concerning the Inn’s occupancy levels, average

daily rates, discounting policies, rate levels,

long   term       contracts,    marketing       plans,    and

operating     expenses.              Camp     Creek       also

presented         evidence     that     Faust    used     this

information to propose the Inn’s ejection from

the Sheraton system and that he may have

used    it   to    compete          against   the   Inn    for

customers.

    To support a claim for misappropriation of

trade secrets, Camp Creek must show that (1)

it had a trade secret and (2) the opposing party

misappropriated         the     trade     secret.         See

generally, DeGiorgio v. Megabyte Int’l, Inc., 468 S.E.2d 367

(Ga. 1996) (applying O.C.G.A. §§          10-1-761, 763).

Georgia defines trade secrets broadly to include

non-technical and financial data that derives

                               57
economic value from not being generally known

and is the subject of reasonable efforts to

maintain       its   secrecy.        Id.    §    10-1-761(4).22

Whether        a     particular      type       of   information

constitutes a trade secret is a question of fact.

See Salsbury Lab. v. Merieux Lab., 908 F.2d 706, 712 (11th Cir.

1990) (citing Wilson v. Barton & Ludwig, 296 S.E.2d 74, 78 (Ga.

App. Ct. 1982)).     Our review of the record reveals

that Camp Creek has provided evidence upon

    22
         The Georgia Trade Secrets Act provides in pertinent part:

    “Trade secret” means information, without regard to form,
    including, but not limited to, technical or nontechnical
    data, a formula, a pattern, a compilation, a program, a
    device, a method, a technique, a drawing, a process,
    financial data, financial plans, product plans, or a list
    of actual or potential customers or suppliers which is
    not commonly known by or available to the public and
    which information:
         (A) Derives economic value, actual or potential,
         from not being generally known to, and not being
         readily ascertainable by proper means by, other
         persons who can obtain economic value from its
         disclosure or use; and
         (B) Is the subject of efforts that are reasonable
         under the circumstances to maintain its secrecy.

O.C.G.A. § 10-1-761(4). We note that although the Georgia State
Legislature amended this provision in July 1996, the amended
language plays no part in our decision. Compare AmeriGas Propane
L.P. v. T-Bo Propane, Inc., 972 F. Supp. 685, 697-98 (S.D. Ga.
1997) (discussing the amendment and its intended effect).

                                58
which a reasonable jury could find that the

information   in   this    case   meets   Georgia’s

statutory definition of a trade secret.

   First, Camp Creek has presented expert

testimony suggesting that this information is

closely guarded in the hotel industry, that a

competitor    could       not   easily   derive   the

information through other means, and that a

competitor could make use of such information

to the detriment of the owner. See Berman Aff.

¶ 29. This evidence shows that the information

is valuable and not of the type any intelligent

competitor could have compiled by legitimate

alternative means.        Second, although Camp

Creek did provide the information to Sheraton,

it provided that information pursuant to the

Reservation Agreement and on the apparently

                           59
mutual understanding that it would be kept

confidential.          See      Sunderji       Aff.    Exh.     C

(Sheraton representative’s letter noting that

information          would       be      “kept        in   strict

confidentiality”).23       To the extent Camp Creek

disclosed this type of information elsewhere, it

did so on the express condition that it would not

be made public except as part of aggregate

industry statistics, untraceable to the individual

Inn. Whether Camp Creek’s efforts to keep the

information secret in this case were “reasonable

under the circumstances” presents a question

for the trier of fact. Cf. Avnet, Inc. v. Wyle Lab.

Inc.,     437   S.E.2d      302,     303-04      (Ga.      1993)



     23
         We are cognizant of the fact that not all confidential
information rises to the level of a trade secret.          See TDS
Healthcare Sys. Corp. v. Humana Hosp. Ill., Inc., 880 F. Supp.
1572, 1584 (N.D. Ga. 1995). Nevertheless, Camp Creek’s evidence on
this point is more than sufficient to survive Sheraton’s motion for
summary judgment.

                                60
(comparing and analyzing different measures

taken      to   secure       secrecy        of    confidential

information).

     Camp Creek’s evidence would also support

a finding that Sheraton misappropriated the

information from Camp Creek.24                   A defendant

misappropriates a trade secret by knowingly

acquiring it through improper means.                        See

O.C.G.A. § 10-1-761(2).              The GTSA provides

that:


     24
           The GTSA provides the following definition            of
misappropriation in pertinent part:
     (A) Acquisition of a trade secret of another by a person
     who knows or has reason to know that the trade secret was
     acquired by improper means; or
     (B) Disclosure or use of a trade secret of another
     without express or implied consent by a person who:
          . . . .
          (ii) At the time of disclosure or use, knew or had
          reason to know that knowledge of the trade secret
          was:
               . . . .
               (II) Acquired under circumstances giving rise
               to a duty to maintain its secrecy or limit its
               use; or
               (III) Derived from or through a person who
               owed a duty to the person seeking relief to
               maintain its secrecy or limit its use; . . . .
O.C.G.A. § 10-1-761(2).

                                61
       “Improper means” includes theft,
       bribery,    misrepresentation,
       breach or inducement of a
       breach     of  a   confidential
       relationship or other duty to
       maintain secrecy or limit use . . .
       .

Id. § 10-1-761(1) (emphasis added). Although

we have already held that Camp Creek has

failed to show that a confidential relationship

existed between the parties, the evidence

shows that Camp Creek provided the data in

question to Sheraton Reservations with the

understanding that its use would be limited and

that it would be kept confidential.     Sheraton

contends that it came into possession of the

information   by    legitimate   means,      either

compiling the data itself or receiving it pursuant

to the Reservations Agreement. Although this

may     accurately      describe      Sheraton

                        62
Reservations’ initial receipt of the information,

Sheraton    has   all   but   admitted   that   the

Gateway’s possession and use of the data, as

one   of   Camp    Creek’s     competitors,     was

improper and in violation of Sheraton’s own

policies. See e.g., III Johnson Dep. at 380

(discussing procedures); I Faust Dep. at 220-25

(discussing the Gateway’s acquisition and use

of the Inn’s confidential information). As the

GTSA includes the diversion of information

acquired under legitimate circumstances within

its definition of misappropriation, see O.C.G.A.

§§ 10-1-761(1), 10-1-761(2)(B)(ii)(II) & (III),

Camp Creek has presented evidence which

would allow a reasonable jury to find in its favor

on this claim.




                         63
   Although        Camp    Creek        has       presented

evidence    that   the    defendants         made     some

competitive use of the information, Sheraton

maintains   that    Camp        Creek       has    failed   to

provide evidence of damages on its trade

secret claim. As we have already noted, Camp

Creek’s generalized evidence on damages

does not isolate losses directly attributable to

any    particular     misuse        of       confidential

information.        See         supra       Part    I(B)(3).

Nevertheless, the GTSA expressly provides for

the award of a reasonable royalty in the event

that the plaintiff cannot prove damages or

unjust enrichment by a preponderance of the

evidence.      See       O.C.G.A.       §    10-1-763(a).

Moreover, the district court may determine that

injunctive relief is appropriate to the extent that

                           64
the Gateway continues to make use of Camp

Creek’s confidential information to compete for

guests. See O.C.G.A. § 10-1-762. Judgment

as a matter of law, therefore, is inappropriate at

this time, and we reverse the district court’s

grant of summary judgment.



V    Additional Statutory Claims

     Camp Creek’s complaint goes on to assert a number of

additional statutory claims for relief, relying again on the conduct

described above. We provide a brief discussion of each claim.



     A.   Lanham Act and Georgia Deceptive Trade Practices
          Act (Counts VI & VII)

     Camp Creek sets forth a rather novel argument that

Sheraton’s use of the words “Sheraton . . . Atlanta Airport” in

connection with the Gateway Hotel constitutes a violation of the


                                65
Lanham Act. See 15 U.S.C. § 1125(a). As it is “hornbook law”

that a licensee may not sue its licensor for trademark

infringement, see 2 J. Thomas McCarthy, McCarthy on

Trademarks and Unfair Competition § 18:63, at 18-103 (4th ed.

1996), and any Lanham Act plaintiff must have rights in the name

at issue to seek protection, see ConAgra, Inc. v. Singleton, 743

F.2d 1508, 1512 (11th Cir. 1984), Camp Creek eschews any claim

to the term “Sheraton” alone. Instead, Camp Creek claims a

property interest in the use of “Atlanta Airport” in combination with

Sheraton and alleges that the defendants engaged in “reverse

palming off,” trading on the goodwill that Camp Creek had

acquired in the combination of the two terms.

     Although we see a host of difficulties with Camp Creek’s

argument, we, like the district court, will confine our discussion of

this matter to whether the defendant’s designation was actually

false. As even the title of section 1125 makes clear, Camp Creek

must provide some evidence that the defendants falsely

                                 66
designated the Gateway Hotel in some way.25 As the district court

correctly observed, there can be no Lanham Act claim if the

Gateway’s use of “Sheraton . . . Atlanta Airport” is accurate and

creates no false impression. See Original Appalachian Artworks

v. Schlaifer Nance & Co., 679 F. Supp. 1564, 1577 (N.D. Ga.

1987) (“If there is one immediately apparent characteristic of

section 1125, it is that in order to sustain a cause of action

thereunder, a plaintiff must establish the existence of some type

of false designation, description, or representation. The operative

word is ‘false.’”); Debs v. Meliopoulos, No. 1:90-cv-939-WCO,

(N.D. Ga. Dec. 18, 1991) (noting that relief may be granted if the

defendant creates “a false impression”). It is beyond dispute that

the Gateway is a Sheraton property located in the vicinity of the

Atlanta Airport and its use of the disputed terms is literally

accurate. See Original Appalachian Artworks, 679 F. Supp. at

     25
        The title of that section is “False designations of origin
and false descriptions forbidden.”    Moreover, although we would
never have discovered it by reading Camp Creek’s briefs on this
issue, § 1125(a) uses the word “false” or some derivation thereof
no less than six times. See 15 U.S.C. § 1125(a).
                                67
1577-78 (rejecting a section 1125(a) claim when the challenged

association was factually accurate). As we find nothing “false”

about the defendant’s use of “Sheraton . . . Atlanta Airport,” we

affirm the district court’s grant of summary judgment in favor of

the defendants on the Lanham Act claim.26 Moreover, as the

parties do not dispute that Georgia’s Deceptive Trade Practices

Act, O.C.G.A. § 10-1-372, involves “the same dispositive

question” as the Lanham Act claim, we similarly affirm the district

courts disposition of that claim. See Jellibeans, Inc. v. Skating

Clubs of Georgia, Inc., 716 F.2d 833, 839 (11th Cir. 1983).



     26
       Indeed, the only way that the Gateway’s use of “Sheraton .
. . Atlanta Airport” could create a false or misleading impression
is if potential guests associated those terms with the Inn. Camp
Creek has not only failed to produce any evidence of such a
particular association, but the prior existence of the SHAA and the
evidence of customer confusion between those franchises contradicts
any such suggestion.
     We also reject Camp Creek’s conceptually befuddled suggestion
that the Gateway has engaged in “reverse passing off.” Section
1125(a) prohibits both “passing off,” where A sells its product
under B’s name, and “reverse passing off,” where A sells B’s
product under A’s name. See Waldham Pub. Corp. v. Landoll, Inc.,
43 F.3d 775, 780 (2d Cir. 1994). Although Camp Creek’s evidence
might be read to show that the Gateway sold its own rooms using the
goodwill the Inn had built up in its name (passing off), there is
no evidence to support the proposition that the Gateway sold the
Inn’s product (reverse passing off). See Debs, (collecting cases
and fact patterns).

                                68
     B.   Additional Prayers for Relief

     Camp Creek maintains that in addition to its claims for

damages on the counts discussed above, it has independent

claims for unjust enrichment, injunctive relief, punitive damages,

and attorneys fees. We address each argument in turn.

          1.   Unjust Enrichment (Count IX)

     Camp Creek argues that, under both Massachusetts and

Georgia law, “a person who has been unjustly enriched at the

expense of another is required to make restitution.” See Salamon

v. Terra, 477 N.E.2d 1029, 1031 (Mass. 1985) (quoting

Restatement of Restitution § 1(1937)); Regional Pacesetters, Inc.

v. Halpern Enter., Inc., 300 S.E.2d 180, 184-5 (Ga. App. 1983).

Camp Creek asserts that the facts in this case support its

argument that the Gateway unjustly enriched itself by competing

with the Inn for business in the Atlanta Airport market.       As

previously discussed, Camp Creek may recover damages from

the defendants to the extent that a jury determines that the

                               69
Gateway’s competition constitutes a breach of the defendants’

implied contractual duties.     Recovery on a theory of unjust

enrichment, however, is only available “when as a matter of fact

there is no legal contract.” See Regional Pacesetters, 300 S.E.2d

180, 185 (Ga. App. 1983). As a result, the district court properly

granted summary judgment to the defendants.

          2.    Injunctive Relief (Count VIII)

     The district court seems to have misconceived Camp Creek’s

claim for an injunction pursuant to Georgia law, see O.C.G.A. § 9-

5-1, as a demand for a preliminary injunction.        Consequently,

regardless of whether the district court’s observation that Fed. R.

Civ. P. 65 precludes Camp Creek’s application for an injunction

under state law is correct,27 the district court erred by applying the

standards governing temporary injunctions. In view of the fact

that Camp Creek’s petition is for a permanent injunction, to be


     27
        We note that the district court’s conclusion in this regard
is unsupported by citation, but decline to address the matter
further.

                                 70
decided at the conclusion of a trial on the merits, the district

court’s reliance on plaintiff’s likelihood of success on the merits is

misplaced. We therefore reverse the district court’s grant of

summary judgment in Sheraton’s favor on this issue.

          3.    Attorney’s Fees, Punitive          Damages,      and
                Discovery Matters (Count XI)

     The district court’s resolution of Camp Creek’s claims for

attorneys’ fees, punitive damages, and its motion to compel

discovery depend, at least to some degree, on the conclusion that

Sheraton was entitled to summary judgment on all of Camp

Creek’s substantive claims. Our determination that Camp Creek

has set forth evidence sufficient to present to a jury on its contract

and GTSA claims requires us to vacate the district court’s denial

of these prayers for relief and remand for reconsideration of

Count XI in light of our opinion.



                          CONCLUSION


                                 71
   As we noted at the outset of this opinion,

Camp Creek’s long and interwoven claims for

relief reduce to the basic proposition that

Sheraton violated a variety of duties it owed to

its franchisee.   Upon careful consideration of

the arguments, we reverse the district court’s

order granting summary judgment in Sheraton’s

favor with respect to Camp Creek’s claims for:

(1) breach of the implied covenant of good faith

and fair dealing under Massachusetts law in

connection with Sheraton’s establishment and

operation    of   the   Gateway      Hotel;   (2)

reimbursement from Sheraton in connection

with the American Airlines SABRE reservation

system billing error; (3) violation of the GTSA;

(4) injunctive relief; and (5) attorneys’ fees and

punitive damages (Counts I, X-A, X, VIII & XI).

                        72
We also vacate the district court’s denial of

Camp Creek’s motions to compel discovery.

We affirm the district court’s decision with

regard to Camp Creek’s claims for: (1) breach

of the implied covenant of good faith and fair

dealing in connection with Sheraton’s individual

bad   acts;    (2)    damages       caused    by   the

interruption     of    service     from    Sheraton’s

Reservatron system; (3) tortious interference

with contracts and business relationships; (4)

violation of the Massachusetts Unfair Trade

Practices Act; (5)      Unfair Competition; (6) the

Lanham Act; (7) the Georgia Unfair Trade

Practices     Act;    and   (8)   Unjust   Enrichment

(Counts II, X-A, III, IV, V, VI, VII & IX).

Accordingly, we AFFIRM in part, REVERSE in

part, and REMAND this case to the district court

                            73
for further proceedings consistent with this

opinion.




                     74
