The opinion of the court was delivered by: John F. Grady, United States District Judge
Before the court are two motions: (1) the motion of defendant National Premium Show, Inc. for summary judgment; and (2) defendants' motion to strike certain exhibits attached to plaintiff's supplemental memorandum of law in opposition to defendants' motions for summary judgment. For the reasons explained below, the motion for summary judgment is granted in part and denied in part, and the motion to strike is denied.
This is a breach of contract action brought by Advertising Specialty Institute ("ASI") against Hall-Erickson, Inc. ("Hall-Erickson") and National Premium Show, Inc. ("NPS"). Plaintiff ASI is a corporation that is involved in the promotional products industry.*fn1 In its own words, ASI "acts as a meeting place where suppliers of promotional products can interact with distributors of promotional products." (Amended Complaint, ¶ 7.) Defendants Hall-Erickson and NPS are in the business of producing and managing trade shows; one of their shows, the "Motivation Show," is held annually in Chicago and is self-described as "The World's Largest Collection of Incentive Merchandise, Travel & Meeting Destinations, Recognition Awards, Promotional Products and Business Gifts." (Id. ¶¶ 8-9, 11.)
ASI sues on a written contract (the "Agreement") that it entered into with, ostensibly, The Motivation Show on February 6, 2001, concerning ASI's participation in the show over a three-year period from November 1, 2000 through October 31, 2003. The thrust of the Agreement was that The Motivation Show would provide ASI with exhibit space for a pavilion at the show, and ASI would participate in the show and encourage its member suppliers and distributors to participate in the show as well. In exchange for ASI's endorsement of and participation in the show, ASI received "[a]ssurance that this agreement [would] not be extended to any other promotional products association, trade show, or conference (i.e.: PPAI)." (Amended Complaint, Ex. A, Agreement, at 2, ¶ 8.) (PPAI--Promotional Products Association International--is a competitor of ASI.) In addition, the Agreement granted ASI the "right of first refusal concerning any activity, alliance, or opportunity concerning the promotional product/advertising specialty industry." (Id. at 2, ¶ 9.) The Agreement also contained the following cancellation provision:
This Agreement may be cancelled by either party, upon written notice to the other party, within the first 60 days of each program year (program year, for the purposes of this Agreement, will be defined as November 1 to October 31.)
The Motivation Show agrees that it shall not enter into similar agreements with any other entity, for example, national trade associations such as, the Promotional Products Association International, regional trade associations, trade shows or conferences, that are involved in the promotional products/advertising specialty industry during the term of this Agreement and for a period of twelve (12) months following any termination.
In the summer of 2002, ASI learned that defendants were coordinating with PPAI to "co-locate" PPAI's annual trade show with The Motivation Show at the same exhibition venue in Chicago, McCormick Place, and at the same time, September 16 through September 18, 2003.*fn2 Given that PPAI is its competitor, ASI objected and repeatedly asked defendants to inform the Chicago Convention and Tourism Bureau (the "CCTB") that The Motivation Show and the PPAI event were competitive. Defendants, however, sent a letter to the CCTB advising that the shows were not competitive events.
Then, on December 19, 2002, following several communications with ASI regarding ASI's dissatisfaction with the "co-location" plans, Hall-Erickson sent a letter to ASI in which it stated that it was canceling the Agreement, effective immediately. In the same letter, Hall-Erickson proposed a new contract between the parties that was materially indistinguishable from the Agreement, except that it changed the term from 2000-2003 to 2002-2005, and it omitted the clauses giving ASI a right of first refusal and prohibiting defendants from entering into similar agreements within twelve months of termination of the agreement. Despite the termination of the Agreement, defendants continued to solicit ASI's participation in the 2003 Motivation Show. The Motivation Show and the PPAI show did run on overlapping dates at the same venue in Chicago in September 2003.
ASI initially filed a three-count complaint against Hall-Erickson, which moved for dismissal.*fn3 We determined that pursuant to the choice-of-law provision in the Agreement, Pennsylvania law governs this dispute. We dismissed plaintiff's "equitable estoppel" claim with prejudice, but denied the motion as to plaintiff's breach of contract claims.
Plaintiff later sought, and was granted, leave to file an amended complaint. The amended complaint, which added NPS as a defendant, contains two claims for breach of contract. Count I is labeled "declaratory judgment," but simply seeks a declaratory judgment that defendants breached the Agreement. In Count II, ASI alleges that defendants breached the Agreement by (1) allowing PPAI to co-locate with The Motivation Show and thereby extending the Agreement to PPAI; (2) failing to grant ASI the right of first refusal "concerning any activity, alliance, or opportunity concerning the promotional product/advertising specialty industry"; (3) failing to grant ASI the ability to approve exhibitors in the ASI pavilion to ensure that no exhibitor competed with ASI; (4) failing to preclude PPAI from scheduling its show contemporaneously with The Motivation Show in September 2003; (5) failing to advise the CCTB that the shows were competitive; and (6) forwarding a letter to the CCTB advising that the shows were not competitive.
Defendants then filed motions for summary judgment, and on November 17, 2005, we held oral argument on those motions. In a minute order of the same date, we stated:
Oral argument held on each of the two defendants' motions for summary judgment. The motion of the defendant Hall-Erickson, Inc. for summary judgment is denied. The court believes that there is a genuine issue of fact ...