Pop Radio, LP v. News America Marketing In-Store, Inc.

898 A.2d 863, 49 Conn. Supp. 566, 2005 Conn. Super. LEXIS 2982
CourtConnecticut Superior Court
DecidedSeptember 15, 2005
DocketFile No. X08-CV05-4002814S
StatusPublished
Cited by2 cases

This text of 898 A.2d 863 (Pop Radio, LP v. News America Marketing In-Store, Inc.) is published on Counsel Stack Legal Research, covering Connecticut Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pop Radio, LP v. News America Marketing In-Store, Inc., 898 A.2d 863, 49 Conn. Supp. 566, 2005 Conn. Super. LEXIS 2982 (Colo. Ct. App. 2005).

Opinion

ADAMS, J.

The plaintiff, POP Radio, LP (POP), owns and operates a business of in-store radio advertising in approximately 6000 food and drug stores in the United States. The advertising is delivered by satellite radio and played over the stores’ audio systems. Typically, Muzak provided music is played for forty-six minutes an hour, and POP’s audio advertising, in thirty second spots, is run for the remaining fourteen minutes each hour.

The defendant, News America Marketing In-Store, Inc. (News America), provides consumer advertising and promotional services to advertisers and marketers in almost 35,000 supermarkets, drug stores and other mass merchandisers. Its products are attached to shelves, floors, shopping carts and use coupon dispensers.

In 2003, POP purchased the assets of its business, then known as Smart Source Radio, from News America. These assets included vendor agreements, agreements with retailers and the name “Pop Radio.” POP is derived from the phrase “point of purchase.” No tangible assets were included in the transaction. As an integral part of the purchase and sale transaction, News America and POP each agreed to abide by the terms of a noncompetition agreement (agreement). The noncompetition agreement limiting News America stated: “For a period of ten years from the date hereof, Seller shall not directly or indirectly, and shall cause its executive officers not to own (other than the ownership of 1% or less of the outstanding capital stock of a publicly traded company), engage in, manage, operate, finance, or participate in the ownership, management, operation or financing of, or permit its name to be used in connection with, any business or enterprise engaged [568]*568in the United States in a business similar to or competitive with audio-only, in-store advertising messaging systems for commercial establishments.” Additionally, the agreement contained what is known as an integration and merger clause to the effect that the agreement superseded all prior agreements and understandings.

On November 10, 2004, News America announced publicly a new advertising or marketing program known as Audioink, developed by a company, T-Ink, Inc., using conductive ink technology allowing printed in-store advertisements to deliver audio messages activated by touching a printed advertisement. POP instituted the present action thereafter, seeking, inter alia, permanent and temporary injunctive relief on the basis of the previously quoted provision of the agreement.

The case was transferred to the complex litigation docket and, after conferring with counsel, a hearing on POP’s application for temporary injunctive relief was held on three consecutive Mondays in July, so as not to conflict with the court’s trial schedule.1 A final day of testimony took place in August. Following the completion of testimony, it was learned that News America planned to introduce its Audioink products into stores within a matter of days and, certainly, by the end of the month of August. Faced with these circumstances, the court issued a limited interim restraining order, enjoining the introduction of the Audioink products into stores, which also carried POP’s radio advertising, until the court had an opportunity to read and consider the posthearing papers submitted by the parties and to render a decision. The court takes this opportunity to observe that both parties were represented by very competent counsel who performed their representation [569]*569with a high degree of professional skill and advocacy, yet in a manner conducive to presenting the facts and legal arguments efficiently and effectively.

I

LEGAL STANDARDS FOR A TEMPORARY INJUNCTION

The parties have generally concluded that the interpretation and enforcement of the written agreement between POP and News America are governed by Delaware law because the noncompetition agreement at issue, by its terms, states that it shall be governed by the laws of that jurisdiction. The court agrees with that conclusion. See Elgar v. Elgar, 238 Conn. 839, 679 A.2d 937 (1996). The standards for granting or denying a preliminary or temporary injunction are established by the law of Connecticut. Custard Ins. Adjusters, Inc. v. Nardi, Superior Court, judicial district of AnsoniaMilford, Docket No. CV-98-0061967S (April 20, 2000) (Corradino, J.); Genalco, Inc. v. Turcotte, Superior Court, judicial district of New Haven, Docket No. 337838 (November 2,1992) (Burns, J.); see also chapter 916, General Statutes §§ 52-471 through 52-483.

The primary purpose of a temporary injunction is to preserve the status quo and protect the moving party from immediate and irreparable harm until the merits of the case have been determined after a full trial. Olcott v. Pendleton, 128 Conn. 292, 295, 22 A.2d 633 (1941). To be entitled to the equitable relief of a temporary injunction, the moving party must show that (1) it is likely to prevail on the merits of its claim after trial; (2) it faces immediate and irreparable harm absent an injunction; and (3) the harm it faces without the injunction is greater than the harm an injunction would do to the defendants. Griffin Hospital v. Commission on Hospitals & Health Care, 196 Conn. 451, 456-58, 493 [570]*570A.2d 229 (1985); see generally Fleet National Bank v. Burke, 45 Conn. Sup. 566, 570, 727 A.2d 823 (1998).

II

LIKELIHOOD OF SUCCESS ON THE MERITS

Under Delaware law a contract is to be interpreted to fulfill, to the extent possible, the shared expectations of the parties thereto. In a contract interpretation dispute, the court must first examine the language of the agreement to determine whether the parties’ intent can be discerned from the express words used or whether the terms are ambiguous. If the terms are clear on their face, the court must apply the meaning that would be ascribed to them by a reasonable third party. If the court finds the contract terms to be ambiguous or fairly susceptible to differing interpretations, the court may consider evidence extrinsic to the contract in inteipreting it to uphold the shared expectations. Comrie v. Enterasys Networks, Inc., 837 A.2d 1, 13 (Del. Ch. 2003), aff'd, 864 A.2d 929 (Del. 2004). The Delaware Supreme Court has “held unequivocally that [e]xtrinsic evidence is not to be used to interpret contract language where that language is plain and clear on its face.” (Internal quotation marks omitted.) O’Brien v. Progressive Northern Ins. Co., 785 A.2d 281, 289 (Del. 2001).

The Audioink products of News America presently ready for the market consist of one product to be placed on the store aisle floor and one on the shelf adjacent to or at the location of the retail product being promoted. The Audioink floor product is a rubberized type mat, less than one eighth of an inch in thickness.

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Cite This Page — Counsel Stack

Bluebook (online)
898 A.2d 863, 49 Conn. Supp. 566, 2005 Conn. Super. LEXIS 2982, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pop-radio-lp-v-news-america-marketing-in-store-inc-connsuperct-2005.