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WEB COMMUNS. GROUP v. GATEWAY 2000

March 29, 1995

WEB COMMUNICATIONS GROUP, INC., Plaintiff,
v.
GATEWAY 2000, INC. and QUEBECOR PRINTING (USA) CORP., Defendants.



The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 Plaintiff Web Communications Group, Inc. brings this five count action against Gateway 2000, Inc. and Quebecor Printing (USA) Corp., alleging violation of the Illinois Trade Secrets Act, unjust enrichment, breach of contract, tortious interference, and violation of the Illinois Consumer Fraud and Deceptive Business Practices Act. Also present in this action is defendant Gateway's counterclaim, including claims for fraud and "money paid and received." Presently before the court are defendants' motions for summary judgment on Counts I, II, and III of plaintiff's second amended complaint, Gateway's motion to dismiss or for summary judgment on Count V, and Quebecor's motion to dismiss Count V. *fn1" For the reasons set forth below, defendants' motion for summary judgment on Counts I, II, and III is granted and defendants' motion to dismiss Count V is granted.

 I. Background

 Plaintiff Web Communications, Inc. is a promotional marketing and print production management company. It conceives of advertising concepts for use in print media; in addition, it arranges for the printing of such advertisements by third-party printers. Defendant Gateway 2000, Inc. manufactures personal computers, which it sells on a direct-mail basis through advertisements in national computer magazines. Defendant Quebecor Printing (USA) Corp. is a commercial printing company. Between July, 1990 and February, 1991, Web arranged fifteen separate print jobs for Gateway, for a total cost of approximately $ 2.5 million. In 1991, Web and Gateway began discussing a concept, the "stepped insert," for Gateway's ads. Although stepped inserts had been used in the printing industry before, they had not been incorporated in a "perfect bound" magazine. Web president Gary Jacobsen testified in his deposition that he spent "three, four hours, perhaps" to develop the basic stepped insert at issue in this action. The insert he developed is essentially a multi-page, staggered magazine insert with backbone pasting, gatefold extension, and cover. *fn2" Web also created dummies of the insert, which are blank mock-ups of the proposed advertisement, and prepared specifications of the insert, including its actual dimensions and instructions for its execution. *fn3"

 Web and Gateway continued discussions regarding the stepped insert project. Jacobsen asserts that he and Barbara Gross, Gateway's Creative Services Director, reached an agreement, based upon the companies' prior dealings and the discussions between Jacobsen and Gross, to have Web handle the print job. On December 16, 1991, Jacobsen sent Gross a confirmation order for the project. In the cover letter, Jacobsen stated that, pursuant to his discussions with Gross, he had reserved press time for the printing job. He also stated, "Please call me to advise what I should do. If you want me to proceed, please initial the enclosed job confirmation and fax it back to me by the day's end on December 17, 1991." Gateway did not sign the confirmation document. Instead, it retained Quebecor to handle the printing of the advertisements. Although Quebecor also used a stepped insert for the Gateway ads, Quebecor's insert did not utilize a press-pasted backbone. After Jacobsen saw the Gateway ads in various computer magazines, he wrote a letter to Barbara Gross expressing his surprise that Web had not been retained to do the work, and stating that he had recalculated Web's prices for future stepped insert printings. When Jacobsen did not hear back from Gross, he referred the matter to his attorneys.

 II. Legal Standards

 A. Summary Judgment Standard

 Under the Federal Rules of Civil Procedure, summary judgment is appropriate if "there is no genuine issue as to any material fact, and . . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). This standard places the initial burden on the moving party to identify "those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (quoting Rule 56(c)). Once the moving party has done this, the non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(c). In deciding a motion for summary judgment, the court must read all facts in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Griffin v. Thomas, 929 F.2d 1210, 1212 (7th Cir. 1991).

 B. Motion to Dismiss Standard

 A motion to dismiss should not be granted unless it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); see also Beam v. IPCO Corp., 838 F.2d 242, 244 (7th Cir. 1988); Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir. 1985), cert. denied, 475 U.S. 1047, 89 L. Ed. 2d 574, 106 S. Ct. 1265 (1986). We take the "well-pleaded allegations of the complaint as true and view them, as well as reasonable inferences therefrom, in the light most favorable to the plaintiff." Balabanos v. North Am. Inv. Group, Ltd., 708 F. Supp. 1488, 1491 n.1 (N.D. Ill. 1988) (citing Ellsworth).

 III. Discussion

 A. Count I (Illinois Trade Secrets Act)

 The Illinois Trade Secrets Act, 765 ILCS 1065 et seq., prohibits misappropriation of trade secrets. The Act ...


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