investoris...(put something here)
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Hello Out "There",
Dropping in to say I am adding a light # of CPIX shares at $ 2.06 avg.
My Chart suggests a "9 wave" down has been completed . I started a little early but was able to exit with small gain, after reading the : 'XenaLives' posts.
Not many active ..... yet I like the turning action down here ...
anyone interested and willing to comment?
Hello XenaLives, Impressed ! I Just started a small position in
CPIX. Your informative posts helped temper my initial "go".
There is a stock DARE Bioscience. (DARE). * if you happen to know about this ... "women's bio" ... with first patent (Feb/2022) drug for bacterial vaginitis and impressive pipeline, (with Bayer on for US) hormone free birth-control.
I enjoy your post(s). and .. Thanks for reading ... many congrats on great stuff about CPIX.
from ibio emailed request for shareholder approval and yes vote.
"For example, if a company declares a one for ten reverse stock split, every ten shares that you own will be converted into a single share. If you owned 10,000 shares of the company before the reverse stock split, you would own a total of 1,000 shares after the reverse stock split."
... georgie18 miss your input ...
My Pattern and Wave chart expecting serious move ...
most stop-loss levels were hit and levels survived ...
wondering what you might think .
More filings...
If you have time anyone to explain why 575 seemed a reversal of Proctor's previous decision requiring payment? And what does he imply by including "SHALL have and recover from Defendants The Boeing Company, Boeing Aerospace Operations, Inc and Boeing Aerospace Support Center in the sum of $2,506,970.20 with interest as provided by law, and their costs in this action
..................................................................
.S. District Court
Northern District of Alabama (Southern)
CIVIL DOCKET FOR CASE #: 2:11-cv-03577-RDP
Alabama Aircraft Industries Inc et al v. Boeing Company, The et al
Assigned to: Judge R David Proctor
Case in other court: Circuit Court of Jefferson County, Alabama, CV-11-903218
Cause: 28:1441 Petition for Removal- Contract Dispute
Date Filed: 10/07/2011
Date Terminated: 03/03/2020
Jury Demand: Both
Nature of Suit: 190 Contract: Other
Jurisdiction: Federal Question
Date Filed # Docket Text
03/25/2020 581
Transcript of JURY SELECTION Proceedings held on 2/10/2020, before Judge R. David Proctor. Court Reporter/Transcriber Risa L. Entrekin. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. NOTICE: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcript% 20Redaction%20Policy.pdf) See Transcript Redaction Policy Redaction Request due 4/15/2020. Redacted Transcript Deadline set for 4/25/2020. Release of Transcript Restriction set for 6/23/2020. (KAM) (Entered: 03/25/2020)
03/25/2020 582
Transcript of Proceedings VOLUME I held on 2/10/2020, before Judge R. David Proctor. Court Reporter/Transcriber Risa L. Entrekin. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. NOTICE: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcript% 20Redaction%20Policy.pdf) See Transcript Redaction Policy Redaction Request due 4/15/2020. Redacted Transcript Deadline set for 4/25/2020. Release of Transcript Restriction set for 6/23/2020. (KAM) (Entered: 03/25/2020)
03/25/2020 583
Transcript of Proceedings VOLUME II held on 2/11/2020, before Judge R. David Proctor. Court Reporter/Transcriber Risa L. Entrekin. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. NOTICE: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcript% 20Redaction%20Policy.pdf) See Transcript Redaction Policy Redaction Request due 4/15/2020. Redacted Transcript Deadline set for 4/25/2020. Release of Transcript Restriction set for 6/23/2020. (KAM) (Entered: 03/25/2020)
03/25/2020 584
RESPONSE to Motion re 575 MOTION to Stay Execution on Judgment Pemco's Response to Boeing's Motion for Stay of Execution of Judgment filed by Alabama Aircraft Industries Inc, Alabama Aircraft Industries Inc Birmingham. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Lees, Meredith) (Entered: 03/25/2020)
Thanks. Just now got that .... and loved to see that 100 MM figure. Wonder how long BA can drag this one out.
I had thought they (BA) would be better off bringing an offer of around 40/50 mil ..... I have that as 1/2 value of "made whole" based on stock value during the beginning period of BA trickery. Thinking legal takes 1/2 with 20/25 mill left for stock holders.
Any thought on this line of thinking?
thanks again,
bidaskme
Hello to Paullee and cheddartart and anyone else following this AAIIQ thread .......
Can you folks enlighten me as to how to follow AAIIQ in their Appeal.
Is there a specific court to address the appeal?
Have they gone ahead with an Appeal?
Thanks for any input as to continuing with this drama.
bidaskme
- - -
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION ALABAMA AIRCRAFT INDUSTRIES, }INC., et al.,}}Plaintiffs,}}v.}CIVIL ACTION NUMBER} 2:11-CV-3577-RDPTHE BOEING COMPANY, et al.,
Defendants.}CLERK’S COURT MINUTES
This action commenced for trial on February 10, 2020, before a jury and the court, the Honorable R. David Proctor, United States District Judge, presiding.
At the conclusion of all the evidence, on February 28, 2020, the jury returned a verdict in favor of Plaintiffs and against Defendants on each claim in the total amount of $2,132,038.00.
Costs are taxed against Defendants.
The Clerk of Court is DIRECTED to TERMINATE this case.
Any post-judgment motions are due at the time required by the Federal Rules of Civil Procedure. ---Dated this 2nd day of March, 2020.
hello cheddartart,
nice to have you with us.
Do you ( or Paulee ) know who decides the appeal.
It sounded like the jury was to give the Dollar amount for being made whole ... or does the Judge. and ... Is the same jury brought back to consider the appeal ??
bid .10
ask .1099
last .115
vol 104,900
Do you have the motion # or the ruling itself?
.08 on 10K ask .11 on 5K 84,000 shares traded
low .95 h .11
bid 10k on .08 ask 0.11 on 5K
Verdict Form
questions 1: Yes (for Pemco) $ 788,510
Question 2 : Yes ( for Pemco) $ 1,343,528
so say we all RL 2/28/2020
That is it ???
Where is " being made whole "
Pacer just got update 569 jury verdict for Pemco on both.
Nothing about appeals as get.
It appears your source is superior to Pacer in timing
release.
Stock hasn't moved?
going to open 569 to see what that says, have you seen it?
Paulee,
Many, Many Thanks.
Way out of the loop on "jury Instructions" and for that matter
the whole trial.
Under number 9. at the end C. " you must award Pemco such sum as you believe will fairly and justly compensate it for any damages you believe it sustained as a direct result of any breach." ..... That returns a plaintiff to its precontractual position by putting a dollar value ......and reimbursing expenditures....etc.
Great news .
My take is they get the @ 3mil reimbursement of expend. and ??? dollar amount to be made whole .
Were do you get your wonderful on-time ifo.
Many many Thanks
oh, YES got the email
Paulee,
No. Did not come thru at outlook
........// .com
I just checked this morning 3/2 and no problems like
blocks etc..... ???
appreciate your efforts.
thanks,
mark-ets
hi paulee,
I was robo scanned many years ago. Learned not to put any info
on one line while on a public post board. Advised to break into parts as scanning robos do not decipher. By putting 1 3 5 7 together you'll have it.
thanks
Thanks 2. 4. and 6. not counting
1. mark-ets
2. jury gets note books.
3. @
4. cannot take them home.
5. outlook
6. give questions for judge to bailiff
7. .com
try 1 3 5 7
thanks, bidaskme
hi Paulee,
The Jury Instructions come before the start ... so jury is set
and the actual presentation are now to go forward ....
who knows for how long.
My feel is (IF) things tilt positive for Pemco ......
then ..... B begins to feel out a settlement.
Less than the opening Pemco claim but enough to make this old Bag Holder smile.
any interp from 360?
jury instructions given yesterday 2/27 ... we're at the gate ...
my money is on the little guy did not look at the details as they
are most likely standard.
Date Filed # Docket Text
02/24/2020 560 TEXT ORDER re 559 MOTION for Leave to Appear Pro Hac Vice. Before the Court is a 559 Motion for Admission Pro Hac Vice filed on behalf of attorney Laurie Webb Daniel. The Motion 559 is CONDITIONALLY GRANTED. On or before February 28, 2020, Attorney Daniel SHALL pay the requisite fee for admission. Signed by Judge R David Proctor on 2/24/2020. (JLC) (Entered: 02/24/2020)
02/24/2020 561 TRANSCRIPT - EXCERPT FROM THE TESTIMONY OF AVRAM TUCKER held on 2/24/2020, before Judge R David Proctor. Court Reporter/Transcriber Risa L. Entrekin, Telephone number 205-278-2066. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. NOTICE: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcript% 20Redaction%20Policy.pdf) See Transcript Redaction Policy Redaction Request due 3/16/2020. Redacted Transcript Deadline set for 3/26/2020. Release of Transcript Restriction set for 5/24/2020. (KEK) (Entered: 02/24/2020)
02/24/2020 562 TEXT ORDER GRANTING 559 MOTION for Leave to Appear Pro Hac Vice. Laurie Webb Daniel added. Signed by Judge R David Proctor on 2/24/2020. (JLC) (Entered: 02/24/2020)
02/25/2020 563 TRIAL BRIEF Plaintiffs' Trial Brief in Support of Motion for Judgment as a Matter of Law by Pemco Aircraft Engineering Services Inc. (Rediker, J) (Entered: 02/25/2020)
Date Filed # Docket Text
02/20/2020 559
MOTION for Leave to Appear Motion for Admission Pro Hac Vice by Alabama Aircraft Industries Inc, Alabama Aircraft Industries Inc Birmingham, Pemco Aircraft Engineering Services Inc. (Attachments: # 1 Affidavit)(Rediker, J) (Entered: 02/20/2020)
looking into "court reporter(s)"
sign up is fuzzy but old reports that are available (yrs back)
are very thorough. Surprisingly, cannot find any in current time frame. I like your 360 as they give a (their) interpretation.
Date Filed # Docket Text
02/10/2020 555 Jury Strikes of Alabama Aircraft Industries Inc, Alabama Aircraft Industries Inc Birmingham, Pemco Aircraft Engineering Services Inc filed.. (KLL) (Entered: 02/11/2020)
02/10/2020 556 Jury Strikes of Boeing Aerospace Operations Inc, Boeing Aerospace Support Center, Boeing Company, The filed. (KLL) (Entered: 02/11/2020)
02/11/2020 557 TRIAL BRIEF on the Implied Duty of Good Faith by Alabama Aircraft Industries Inc, Alabama Aircraft Industries Inc Birmingham. (Rediker, J) (Entered: 02/11/2020)
02/13/2020 558 TRIAL BRIEF on Spoliation Jury Instructions by Alabama Aircraft Industries Inc, Alabama Aircraft Industries Inc Birmingham. (Rediker, J) (Entered: 02/13/2020)
i know nothing, i know nothing.
Sorry to say but no. Am searching the Birmingham news groups to see if anyone is reporting on the trial. Many Birhams had an interest (jobs-etc.) at one time.
I'll check PACER late each day but doubt that source will report on the trial testimony.
Wonder if AAII can squeeze
in some of the ex-AF officer who was hired by B after his
'service' that included being part of the B wins decision.
Remember as a court inquiry of that time loomed he was found shot to death in his car at the B facility. B's Security handled initial investigation of the 'scene' prior the police. Suicide.
Lots of speculation followed ...
anyways , thanks for your inputs here ... Good Luck!
add a little mortar (hopefully):
Date Filed # Docket Text
02/06/2020 551 ORDER denying 542 Motion for Relief and Sanctions to Rectify Boeing's Rules Violations and to Facilitate an Expeditious Trial. Signed by Judge R David Proctor on 2/6/2020. (KAM) (Entered: 02/06/2020)
02/07/2020 552 TEXT ORDER; This matter is SET for a Telephone Conference 1:15 p.m. today, Friday, February 7, 2020, to discuss the parties' objections to deposition designations. Counsel are DIRECTED to dial-in to the conference by calling 866-434-5269 at the scheduled time. The access code is 6022965. A Court Reporter will be present. Signed by Judge R David Proctor on 2/7/2020. (JLC) (Entered: 02/07/2020)
02/07/2020 553 Joint MOTION to Unseal Document by Boeing Company, The. (Attachments: # 1 Exhibit A - Proposed Order)(Warburton, Reed) (Entered: 02/07/2020)
02/07/2020 554 ORDER GRANTING 553 Joint MOTION to Unseal Documents. Signed by Judge R David Proctor on 2/7/2020. (JLC) (Entered: 02/07/2020)
* now 548 dockets ... what fun it would be to hear jury selection.
Hi Paulee,
U r Right.
1st Court allows jury to decide what motive for case facts disappearing at B whilst knowing they were under challenge
from Pemco.
2nd order 539 deny B's limme 505
gives pemco right to those arguments in court .
Conclusion : aaiiq started w/ 100 mil law-suit ....
B will put on the 'we will win face' but cave with
offer just before court date they have have any sense.
w/ fingers crossed ...
how bout u?
feb 10 / 2020 is the DATE
****....if no brains at BA wake up to face the music ...
"don't know what you had --- till 'Da Judge' sings why it is gone" ........****
539 ORDER denying 505 Motion in Limine to Exclude Argument That Boeing Improperly Underbid AAI by Switching to a Continuous Learning Curve. Signed by Judge R David Proctor on 1/28/2020. (KAM) (Entered: 01/28/2020)
01/27/2020 538 Transcript of Proceedings held on 1/21/2020, before Judge R. David Proctor. Court Reporter/Transcriber Risa L. Entrekin. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. NOTICE: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcript% 20Redaction%20Policy.pdf) See Transcript Redaction Policy Redaction Request due 2/17/2020. Redacted Transcript Deadline set for 2/27/2020. Release of Transcript Restriction set for 4/26/2020. (KAM) (Entered: 01/27/2020)
01/24/2020 537 NOTICE of Appearance by Kasdin Miller Mitchell on behalf of Boeing Aerospace Operations Inc, Boeing Aerospace Support Center, Boeing Company, The (Mitchell, Kasdin) (Entered: 01/24/2020)
01/23/2020 536 NOTICE by Boeing Aerospace Operations Inc, Boeing Aerospace Support Center, Boeing Company, The Proof of Service of Subpoena to Appear to Timothy Walker (Warburton, Reed) (Entered: 01/23/2020)
Date Filed # Docket Text
01/21/2020 535 DAMAGE list of Alabama Aircraft Industries Inc, Alabama Aircraft Industries Inc Birmingham, Pemco Aircraft Engineering Services Inc filed.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Tepley, Peter) (Entered: 01/21/2020)
01/21/2020 534 ORDER On January 21, 2020, the court conducted a hearing on the parties various Motions in Limine; 502 Motion in Limine re: USAF Documents and Bid Protest Litigation is GRANTED IN PART; 503 Plaintiff's consolidated Motion in Limine is GRANTED IN PART; 504 Boeings Omnibus Motion in Limine is GRANTED IN PART; The court has reserved ruling on, and has ordered specific, limited, supplemental briefing on 505 Boeing's Motion in limine to exclude argument that Boeing improperly underbid AAi by switching to a continuous learning curve 506 Boeing's Motion in Limine to Preclude AAI From Seeking DoubleRecovery is GRANTED IN PART. Signed by Judge R David Proctor on 1/21/2020. (KAM) (Entered: 01/21/2020)
01/15/2020 533 NOTICE by Alabama Aircraft Industries Inc, Alabama Aircraft Industries Inc Birmingham Plaintiffs' Certification in Accordance with Court's Order (Attachments: # 1 Exhibit A)(Rediker, J) (Entered: 01/15/2020)
01/13/2020 532 Exhibit List AAI's Supplemental Amended Exhibit List by Alabama Aircraft Industries Inc, Alabama Aircraft Industries Inc Birmingham, Pemco Aircraft Engineering Services Inc.. (Attachments: # 1 Appendix B-1)(Rediker, J) (Entered: 01/13/2020)
01/13/2020 531 ORDER granting in part and denying in part 507 Motion in Limine as more specifically set forth in this order. Signed by Judge R David Proctor on 1/13/2020. (KAM) (Entered: 01/13/2020)
The "deal" gives DARE One million "up front" to allow detail
info to be given to Bayer for their people to do their own analysis. Then and only then THEY (Bayer ) have right to continue with the DEAL or to call it off.
If they want to play w/ DARE at that time they commit to 20 mil
then and the following terms there after ..... no guarantee or
commit till then. When will that happen???
Will they copy idea and move with their own possible ideas
.... think that is why -- Along with possible new share sale --
that we are trading 1.27- 1.26.
was asked same yesterday ...
my answer : hope that is not an option. BA has -0- goodwill and they hardly need further news blips about the less than honorable way they operate. The current "New + Better" Tanker is now 2 years behind schedule and carrying many "better get it fixed issues" not to mention already extremely over-budget at this late date and 2 +yrs to go ...
I'd recommend they settle for $40-50 Mil or avg. price of Pemco (AAIIQ) prior to the issue to be at trial. They could ask for a no admission clause settlement agreement or settlement without admitting guilt.
if legal goes 50% then around 20 left for previous bag holders.
At 4 mil stock somewhere near $4-$5.
let us pray!
feb 10, 2020
latest are jan 10, 2020 limmie rebuts..up to 530.
legal will be 50%
price at begin was avg= $10 ( 5 for legal) or 4mx5=20m / 4 = 5
01/03/2020 517 ORDER ADJUSTING CERTAIN PRETRIAL DEADLINES; Parties file amended exhibit list: 1/10/2020; Parties file amended witness list listing the order of witnesses: 1/10/2020; Parties file objections to exhibits: January 29, 2020; Parties serve requests for copies of documents for the purpose of determining authenticity objections:1/15/2020; Parties serve authenticity objections in writing on opposing party: 1/20/2020; Parties serve deposition designations: 1/17/2020; Parties serve counter designations: 1/24 2020; Parties file objections to deposition testimony: 1/31/2020; Parties file joint jury charge: 1/24/2020; Hearing on all pending motions in limine are set for 1/21/2020 11:00 AM before Judge R David Proctor.. Signed by Judge R David Proctor on 1/3/2020. (KAM) (Entered: 01/03/2020)
too cryptic. sorry.
mark-ets
action looks encouraging for aai.
getting a favorable outlook.
com on pagi
aaii is asking to be made 'whole' as before the sham and illegal use of the previous priority info supplied to them by aaii. The wipe of aaii info from their record whilst knowing a challenge was forth coming.
mark-
............for pemco to be @ aaiiq
ets
...........what a mixed up
outlook
.
com ........... ic
my copy is different ??? will post page 15- 21 from my copy
II. COUNT THREE – AAI CLAIMS REGARDING ITS PROPRIETARY INFORMATION (BREACH OF AGREEMENTS)
A. AAI relies upon the following legal theories in support of its claims against Boeing regarding its proprietary information.
As a result of teaming agreements and other contracts and agreements between Boeing and
AAI, Boeing possessed AAI PI accumulated since 2000 and frequently updated, which was
competition-sensitive, not in the public domain, and valuable. AAI claims that Boeing breached
its several agreements with AAI that required Boeing to protect and not improperly use AAI’s PI,
and to comply with laws and regulations protecting against misuse of PI, because Boeing
knowingly and intentionally:
(1) failed to take appropriate steps to safeguard AAI’s PI after Boeing began
evaluating and pursuing plans in the spring of 2006 to (i) stop teaming with AAI under the
Recompete MOA to obtain a USAF contract to perform PDM services on the KC-135
Aircraft (the “Program”) and (ii) compete against AAI for the Recompete contract;
(2) failed to timely and effectively implement firewall and PI sequestration
measures to protect AAI’s PI after it decided it was in Boeing’s interest to take all PDM
Case 2:11-cv-03577-RDP Document 492 Filed 10/10/19 Page 15 of 35
16
work in San Antonio, making AAI its competitor for such work;
(3) failed to ensure that the Boeing’s personnel working on Boeing’s Recompete
team and bid submissions in prospective and in actual competition with AAI, were at all
relevant times permitted to participate under contractually-applicable laws and regulations,
as well as Boeing’s own policies, manuals and procedures (necessary for regulatory
compliance) and industry standards relating to procurement activity;
(4) failed to prevent Boeing employees who had knowledge of AAI’s PI stemming
from Boeing activities under agreements with AAI from working on Boeing’s Solo
Recompete activities and bid submissions in potential or actual competition with AAI, after
Boeing personnel were on reasonable notice of the likelihood of a conflict of interest
between Boeing and AAI arising from Boeing’s potential (and then actual) termination of
the Recompete MOA;
(5) used AAI-PI-knowledge-contaminated Boeing personnel, including those
handling Joint Recompete bid estimating and pricing who were familiar with AAI’s PI
(including estimates, costs, hours, rates, prices and the methods AAI used for estimating
and pricing tasks, staffing, labor, overhead, profit, materials, and other cost and pricing
factors) to develop Boeing’s estimates and prices relevant to its Solo Recompete bid in
competition with AAI after Boeing personnel were on reasonable notice of the likelihood
of a conflict of interest between Boeing and AAI arising from Boeing’s potential (and then
actual) termination of the Recompete MOA and after key Boeing personnel stated that
Boeing personnel with knowledge of AAI’s PI should not work on Boeing’s Solo
Recompete bid;
Case 2:11-cv-03577-RDP Document 492 Filed 10/10/19 Page 16 of 35
17
(6) deleted, destroyed, and concealed evidence in order to cover up Boeing’s
misconduct with AAI’s PI and to impede AAI’s ability to prove that misconduct; and
(7) misappropriated and misused AAI’s PI, and used AAI-PI-knowledge
contaminated Boeing personnel to facilitate the misappropriation and misuse of AAI’s PI,
to frame Boeing’s Solo Recompete bid submissions to underbid AAI and to win the
Recompete contract award; all of which damaged AAI.
AAI’s breach of agreements claim is based on the following agreements that were in force
in 2005-2007 between AAI and Boeing: (1) the PI-protection provisions of “The Boeing Company
General Provisions (Fixed Price Services Contract) GP2,” generally referred to as GP2, for both
the 0054 and Bridge contract work; (2) the NDA; (3) the PI-protection provisions of Recompete
MOA §§ 5, 6 and 7; (3) the government laws and regulations and Boeing-government agreements
regarding procurement integrity and protections against misuse of PI with which, by contract
(Recompete MOA § 9.0 and NDA §9.0), Boeing agreed to implement and comply; and (4) the
agreements reached between Mark Rabe (counsel for Boeing) and Doris Sewell (counsel for AAI).
Therefore, AAI will prove at trial that: (1) Boeing and AAI entered into contracts governing
the parties’ PI; (2) AAI performed, or substantially performed its obligations pursuant the
contracts’ terms; (3) Boeing failed to perform things the contracts required it to do; and (4) AAI
was harmed by that failure. (Paraphrasing SAK Constr. of CA, L.P., supra.).
B. AAI expects to prove the following categories of factual allegations in support of its claims against Boeing concerning AAI’s PI6
1. The facts and circumstances relating to AAI’s development, accumulation and
6 As a number of fact elements cited under Count One, supra, are also relevant to AAI’s PI-misuse claims under Count Three here, they are not repeated here but are incorporated here from Count One, supra, by reference.
Case 2:11-cv-03577-RDP Document 492 Filed 10/10/19 Page 17 of 35
18
possession of extensive and invaluable trade secrets and proprietary information connected with
KC-135 work (“PI”) which was not in the public domain and which would be valuable to anyone
seeking to compete with AAI or others for KC-135 repair and depot work.
2. The facts and circumstances relating to the 1998 RFP “bundling” which directly
led to the situation of AAI having to share its PI with Boeing.
3. The facts and circumstances, including the nature, terms, conditions and
requirements of the parties’ several contracts for KC-135 work, relating to AAI having to provide
Boeing with AAI’s PI and to update such PI, including AAI’s compliance with such terms and
requirements.
4. The facts and circumstances relating to Boeing’s obligations to protect AAI’s PI at
all relevant times.
5. The facts and circumstances relating to Boeing’s access to and possession and use
of AAI’s PI from 2000 through 2007 and relating to Boeing’s continuous access to AAI’s
Birmingham facility under the parties’ several contracts.
6. The facts and circumstances relating to the unequal (non-reciprocal) levels of
access to and possession of the other party’s PI, between Boeing as prime contractor and AAI as
subcontractor.
7. The facts and circumstances relating to Boeing’s knowledge from at least 2004
onward that it would eventually compete with AAI for all KC-135 PDM work (including AAI’s
share under the parties’ contracts), and how this related to the need for Boeing to avoid conflicts
of interest and to protect against misuse of AAI’s PI.
8. The facts and circumstances relating to Boeing’s knowledge that AAI’s economic
Case 2:11-cv-03577-RDP Document 492 Filed 10/10/19 Page 18 of 35
19
survival was dependent upon AAI’s retention of KC-135 PDM work, and implications of that
knowledge on the protection of AAI PI.
9. The facts and circumstances relating to Boeing’s use and handling of firewalls to
protect AAI PI prior to termination of the MOA.
10. The facts and circumstances relating to Boeing’s internal evaluations, analyses and
strategies for taking all KC-135 PDMs to its San Antonio facility and for terminating AAI as a
teaming partner, and implications of such facts and circumstances on Boeing’s need to protect
AAI’s PI.
11. The facts and circumstances relating to AAI’s delivery to prime contractor Boeing
of AAI PI under stipulations of confidentiality, including the nature and extent of such PI.
12. The facts and circumstances relating to Boeing personnel performing internal
studies, comparisons, and evaluations of AAI’s PI, including the familiarity of such personnel with
such AAI PI, and how such AAI PI was maintained, stored and disseminated within Boeing.
13. The facts and circumstances relating to Boeing’s Blue Team modeling of L-3 and
of Lockheed.
14. The facts and circumstances relating to Boeing’s formulation and implementation
of a Win Price.
15. The facts and circumstances relating to Boeing not having its Blue Team perform
a public-domain-information-based analysis of AAI, as Boeing had done for L-3 and Lockheed.
16. The facts, circumstances and time frames relating to which AAI PI was sequestered
and protected by Boeing and which AAI PI was not sequestered or otherwise protected against
misuse.
Case 2:11-cv-03577-RDP Document 492 Filed 10/10/19 Page 19 of 35
20
17. The facts, circumstances and timing of Boeing’s knowledge that it had entered into
a conflict of interest position with AAI (by reason of becoming a competitor with AAI, to take all
PDM work into San Antonio) and the effects of such conflict and knowledge on Boeing’s
obligations to protect AAI PI, including sequestration of PI and change of Boeing Recompete
personnel who were knowledge-contaminated.
18. The facts and circumstances relating to Boeing’s secret internal price modeling that
used AAI’s PI without AAI’s knowledge or permission, and relating to whether such use went
beyond what was reasonably necessary if Boeing and AAI were to remain a bidding team.
19. The facts, circumstances and timing relating to Boeing’s institution of a firewall in
2006, its ineffectiveness, and Boeing’s failure to enforce adequate compliance.
20. The facts and circumstances relating to Boeing’s knowledge of the need to replace
its PI-knowledge-contaminated Recompete personnel and Boeing’s failure to do so, including its
concealment of material facts relating to the foregoing.
21. The facts and circumstances of Boeing’s secretly-conducted internal competition
against AAI (including writing AAI out of the upcoming bid submission and using AAI’s PI) while
still teamed with AAI under the MOA before June 6, 2006, using AAI PI, with no PI protections
being implemented.
22. The facts and circumstances relating to the applicable standards (including methods
and procedures) to which Boeing was obligated to adhere in order to effectively and completely
protect AAI’s PI against misuse, and relating to Boeing’s failure to adhere to such applicable
standards, methods and procedures.
23. The facts and circumstances relating to the 2006 agreements between Boeing and
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AAI concerning protection of the parties’ respective PI, and the parties’ compliance (or not) with
such agreements.
24. The facts and circumstances relating to Boeing’s spoliation of evidence relevant to
AAI’s PI and Boeing’s handling or use thereof.
25. The facts and circumstances relating to Boeing’s evaluations and analyses of AAI
and Lockheed as competitive threats during the parties’ independent bid preparation activities
between 2006 and final Recompete submissions in 2007.
26. The facts and circumstances relating to the means and methods by which Boeing
took improper advantage of its possession and knowledge of AAI PI to underbid AAI and
otherwise frame its bid submissions to defeat AAI’s competing bid, in order to win the Recompete
award.
27. The facts and circumstances relating to the result that but for the knowledge,
ongoing unauthorized possession and misuse and misappropriation of AAI’s PI by Boeing, Boeing
would not have been able to underbid or otherwise prevail over AAI in the Recompete bidding.
28. The facts and circumstances relating to AAI’s compliance with its own contractual
obligations respecting Boeing PI, including AAI’s comparative lack of knowledge of material,
relevant and useful Boeing PI and AAI not misusing Boeing PI.
29. The facts and circumstances relating to the impacts on AAI of Boeing’s breaches
of its several agreements to safeguard, protect and not use or misuse AAI’s PI, including forcing
AAI to incur substantial expense in a Recompete effort for its economic survival, while Boeing’s
contract breach ensured such AAI effort would be frustrated, and the harm and damage to AAI.
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III. DAMAGES
Recognizing the Court’s prior rulings, over AAI’s objections, on available damages, AAI
will claim the following damages:
1. Count I – as a direct result of Boeing’s breach of the Recompete MOA, AAI was
damaged in the following amounts: (i) actual reliance damages in the amount of the expenses it
had incurred in teaming with Boeing to submit a joint bid and (ii) actual damages in the amount
of the expenses it had incurred in submitting a solo bid. These actual incurred costs total
$2,132,062.53.
“A plaintiff claiming a breach of contract has available and need not choose between three
types of damages—actual, consequential, and benefit-of-the-bargain—as such damages are not
necessarily inconsistent with one another; a plaintiff may not, however, be made whole more than
once.” Catroppa v. Metal Building Supply, Inc., 267 S.W.3d 812, 817 (Mo. Ct. App. 2008).
“‘Actual damages are compensatory and are measured by the loss or injury sustained’ as a direct
result of the wrongful act.” Id. at 818 (quoting Stiffelman v. Abrams, 655 S.W.2d 522, 531 (Mo.
1983)). Reliance damages are a form of actual or direct damages. See, e.g., Nashville Lodging Co.
v. Resolution Trust Corp., 59 F.3d 236, 246 (D.C. Cir. 1995) (“The fact that reliance damages are
backward-looking does not destroy their pedigree as a species of compensatory relief. . . .
[R]emedies calibrated to putting the claimant back in the position he occupied before making the
repudiated agreement are ‘actual direct compensatory damages’ no less than those aimed to put
him where he would have been if the contract had been fulfilled.’”) “Reliance damages are
designed to compensate the plaintiff for any reasonably foreseeable costs incurred or expenditures
made in reliance on the promise that has now been broken.” Richard A. Lord, 24 Williston on
Case
Hi
I agree that the claim on monies spent during the rebid process is peanuts and the elephant appetite of the lawyers will need more than that to satisfy their costs of effort.
The big ?? will be damages and punitive charge for the
"misuse and disregard for Priority Information and the fact that B destroyed critical info after knowing Pemco was going to challenge the bid results. Do you recall Judge Proctor beginning his allowance for a 'go forward ' by quoting the
J. Mitchell hit..."Don't it always seem to go. That you don't know what you've got. Till it's gone...." He was referring to the destruction of aaii/boeing transcripts (emails tele calls etc.)
He said that knowing AAII would soon be a combatant in the
'rebid' ..that it was a major wrong on Boeing part in "losing this information.
So I think what Tennenbaum and cohorts believe is that the jury will award punitive damages. I thought that was the reason for the original suit asking $$$$$ based on the loss of the KC 135 and resulting company failure to survive.
Hi Paulee,
Tell me what you think. No more delays for trial but appeals etc. ( a norm for B )??? best regards.
ALABAMA AIRCRAFT INDUSTRIES, INC., ) ALABAMA AIRCRAFT INDUSTRIES, INC. – ) BIRMINGHAM, and PEMCO AIRCRAFT ) ENGINEERING SERVICES, INC., ) ) Plaintiffs, ) Case No. 2:11-cv-03577-RDP ) ) vs. ) ) THE BOEING COMPANY, BOEING ) AEROSPACE OPERATIONS, INC. and ) BOEING AEROSPACE SUPPORT CENTER, ) ) Defendants. )
PRETRIAL ORDER
A final pretrial conference was held in the above case on October 10, 2019, wherein, or as
a result of which, the following proceedings were held and actions were taken:
1. Appearances. Appearing at the conference were:
For AAI: J. Michael Rediker, Joshua D. Lerner, Peter J. Tepley, and Rebecca A. Beers of Rumberger Kirk & Caldwell, P.C.
For Boeing: R. Thomas Warburton and J. Thomas Richie, Bradley Arant Boult Cummings LLP; Erin Johnston, Alexia R. Brancato, Kirkland & Ellis LLP.
2. Nature of the Action, Jurisdiction and Venue.
(a) The nature of this action as a result of the Court’s rulings to date is as follows: AAI brings two breach of contract claims against Boeing, one relating to Boeing’s termination of an agreement to submit a joint bid to the United States Air Force for a contract to perform program depot maintenance work on KC-135 aerial refueling aircraft, and the second relating to Boeing’s alleged misuse of AAI’s proprietary information in violation of certain contracts. Boeing denies each of AAI’s claims.
FILED
2019 Oct-10 PM 02:52 U.S. DISTRICT COURT N.D. OF ALABAMA
Case 2:11-cv-03577-RDP Document 492 Filed 10/10/19 Page 1 of 35
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(b) The court has subject matter jurisdiction of this action under the following statutes, rules, or cases: The Court has diversity jurisdiction under 28 U.S.C. § 1332 because there is complete diversity between the Trustee and Defendants. The Court has “related to” jurisdiction under 28 U.S.C. § 1334(b).
(c) All jurisdictional and procedural requirements prerequisite to maintaining this action have been met.
(d) Personal jurisdiction and venue are not contested.
3. Parties and Trial Counsel. Any remaining fictitious parties are hereby STRICKEN.
The parties and designated trial counsel are correctly named as set out below:
Parties:
Trial Counsel:
Plaintiff:
Alabama Aircraft Industries, Inc.
Alabama Aircraft Industries, Inc. - Birmingham
Pemco Aircraft Engineering Services, Inc.
J. Michael Rediker, Esq. Meredith J. Lees Peter J. Tepley R. Scott Williams Rebecca A. Beers RUMBERGER, KIRK & CALDWELL, P.C. Renasant Place, Suite 130 2001 Park Place North Birmingham, AL 35203
Joshua D. Lerner RUMBERGER, KIRK & CALDWELL, P.C. Brickell Bayview Centre, Suite 3000 80 Southwest 8th Street Miami, Florida 33130-3037
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Defendants:
The Boeing Company
Boeing Aerospace Operations, Inc.
Boeing Aerospace Support Center
R. Thomas Warburton J. Thomas Richie BRADLEY ARANT BOULT CUMMINGS LLP 1819 Fifth Ave. N. Birmingham, AL 35203
Craig S. Primis, P.C. Erin Johnston, P.C. Alexia R. Brancato KIRKLAND & ELLIS LLP 1301 Pennsylvania Ave. NW. Washington, D.C. 20004
4. Pleadings. The following pleadings have been allowed:
Pleading Docket Number Date
Original Complaint 1-1 September 9, 2011
First Amended Complaint 1-1 September 22, 2011
Second Amended Complaint 34 June 22, 2012
Answer to Second Amended Complaint 60 May 6, 2013
Third Amended Complaint 97 September 10, 2014
Answer to Third Amended Complaint 99 September 24, 2014
5. Statement of the Case.
(a) Narrative Statement of the Case.
The Plaintiffs in this case are Alabama Aircraft Industries, Inc. Alabama Aircraft
Industries, Inc.; Alabama Aircraft Industries, Inc. – Birmingham; and Pemco Aircraft Engineering
Services, Inc., also known as Pemco (referred to hereafter as “AAI”). The Defendants are The
Boeing Company, Boeing Aerospace Operations, Inc., and Boeing Aerospace Support Center
(“Boeing”). In June 2005, AAI and Boeing entered into a Memorandum of Agreement or “MOA.”
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Under that MOA, the parties agreed to work together to submit a joint bid to the United States Air
Force for a government contract, called the “Recompete Contract,” to perform maintenance and
repair work on a military airplane used for air refueling called the KC-135. The parties submitted
their joint bid for the Recompete Contract to the Air Force in October 2005. In May 2006, before
the Recompete Contract had been awarded, the Air Force reduced the best estimated quantity of
aircraft that would be serviced under the Recompete Contract from 44 aircraft per year to 24
aircraft per year. Boeing then terminated the MOA. Both parties submitted separate, independent
bids to compete for the Recompete Contract. Boeing won the Recompete Contract in September
2007.
AAI brings this lawsuit against Boeing. AAI alleges that Boeing breached the MOA when
Boeing terminated the MOA. AAI also alleges that Boeing breached the agreements it had made
to protect AAI’s proprietary information by misusing AAI’s proprietary information in order to
win the Recompete Contract.
Boeing denies these claims. Boeing contends that it was allowed to terminate the MOA
after the Air Force reduced the number of aircraft to be serviced, and that it did not misuse any of
AAI’s information.
(b) Undisputed Facts.
1. Boeing is an aerospace and defense company with locations across the country,
including in Huntsville, Alabama.
2. AAI, headquartered in Birmingham, Alabama since the 1950s, provided aircraft
maintenance, repair, and modification services for government and military customers, including
maintenance and repair of the KC-135 aircraft from 1968-2011.
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3. In 1998, the United States Air Force (“USAF”) awarded Boeing a prime contract
to perform programmed depot maintenance (“PDM”) services on KC-135 aerial refueling aircraft.
4. On October 27, 2000, Boeing and AAI entered into a Memorandum of Agreement
(“MOA”) by which AAI would be a subcontractor to Boeing for the 1998 KC-135 PDM contract
for FY2002 through FY2007.
5. The 2000 MOA and long term requirements contract entered into between Boeing
and AAI pursuant to the 2000 MOA contained provisions regarding protecting the parties’
proprietary information.
6. In 2004, the USAF decided to “recompete” the KC-135 PDM contract (the
“Recompete Contract”) and opened bidding on a new contract to all bidders.
7. Also in 2004, the USAF decided to negotiate a Bridge contract with Boeing for
performance of the KC-135 PDM for periods between the end of the 1998 KC-135 PDM contract
and the time when the Recompete contract would be awarded and implemented.
8. After the USAF decided to recompete the KC-135 PDM, Boeing and AAI expected
a Request for Proposal (“Recompete RFP”) for the Recompete Contract.
9. In January 2005, both Boeing and AAI evaluated whether to team with each other
to compete for the Recompete Contract.
10. From April 2005 to June 2005, Boeing and AAI negotiated a new Memorandum of
Agreement under which Boeing, as the prime contractor, and AAI, as the subcontractor, would
work together to prepare and submit a proposal for the Recompete Contract (“Recompete MOA”).
11. In May 2005, the USAF released a draft Request for Proposal, or “RFP,” for the
Recompete Contract, which was set to begin in Fiscal Year 2008.
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12. The draft RFP provided for a Best Estimated Quantity (“BEQ”) of 44 KC-135
aircraft to be inducted with the winning bidder for PDM work each year.
13. On June 3, 2005, Boeing and AAI signed the Recompete MOA. The Recompete
MOA included two attachments: Exhibit A, titled “Work Share Agreement” and Exhibit B, titled
“Non-Disclosure Agreement” (“NDA”).
14. On September 5, 2005, the Recompete MOA was amended to add L-3 as a
subcontractor to perform unplanned maintenance work (“UDLM”) on KC-135s and to designate
AAI as the “Principal Subcontractor.” No other substantive changes were made to the Recompete
MOA. The NDA and the Work Share Agreement did not change, although the NDA became
Exhibit C.
15. The NDA required that:
In the event the contractual relationship between the parties (for the KC-135 PDM program that is embodied in the associated Memorandum of Agreement or in a subsequent long-term subcontracting relationship) terminates pursuant to the terms of such MOA or subcontract, either party may pursue and independent contract to perform work for the United States Government on the PDM program, either alone or in conjunction with other parties. Nonetheless, in compliance with this Agreement, each party shall safeguard the Proprietary Information exchanged up to the date the relationship ends, and ensure that such data is not sued against the disclosing party’s interests. This restriction will not preclude a party’s employees who have had access to the other’s Proprietary Information from participating in the subsequent independent contract, so long as appropriate safeguards are in place to prevent inappropriate use of the other party’s Proprietary Information.
16. In October 2005, Boeing as prime contractor and the USAF as buyer entered into
the Bridge Contract, and Boeing entered into a Long Term Requirements Contract with AAI as
subcontractor to perform half of the PDM work on KC-135 aircraft provided by the USAF under
the Bridge Contract.
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17. The Long Term Requirements Contract incorporated the “General Provisions 2,”
or “GP2,” which required:
Buyer and Seller shall each keep confidential and protect from unauthorized use and disclosure all (a) confidential, proprietary and/or trade secret information; (b) tangible items containing, conveying or embodying such information; and (c) tooling identified as being subject to this clause and obtained, directly or indirectly, from the other in connection with this contract or other agreement referencing this contract (collectively referred to as “Proprietary Information and Materials”). Buyer and Seller shall each use Proprietary Information and Materials of the other only in the performance of and for the purpose of this contract and/or any other agreement referencing this contract.
18. The USAF issued the Recompete RFP on August 19, 2005. The Recompete RFP
provided for a BEQ of 44 KC-135 aircraft to be inducted with the winning bidder for PDM work
each year.
19. On October 28, 2005, Boeing submitted its joint bid with Pemco as subcontractor
to the USAF.
20. After submitting the October 2005 joint bid, the parties began to work toward the
expected Final Proposal Revision, or “FPR,” which at that time was expected to be submitted on
June 30, 2006.
21. On April 18, 2006, the USAF released a Letter of Intent (“LOI”) regarding a
potential BEQ change from 44 aircraft per year to 24 aircraft per year.
22. On May 31, 2006, the USAF formally issued an amendment to the Recompete RFP
that lowered the BEQ to 24 aircraft per year.
23. On June 6, 2006, Boeing terminated the Recompete MOA with AAI, citing Section
5.0(c) which allowed for termination, “[a]fter the release of any RFP or amendments thereto, if the
contents thereof are so unfavorable to the Prime or a Principal Subcontractor that participation in
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the Program is no longer practical or financially viable” and stating, as the termination grounds,
“[t]he reduction in requested quantities is so unfavorable to Boeing that further participation in the
Program pursuant to the MOA is no longer practical or financially viable.”
24. On June 12, 2006, AAI submitted a protest to the USAF, requesting that AAI be
allowed to submit an independent bid for the Recompete Contract.
25. On June 27, 2006, the USAF re-opened the Recompete Contract competition to
allow AAI to submit an independent bid.
26. AAI officially withdrew its protest on June 30, 2006.
27. The parties first submitted their independent Recompete Contract proposals in
September 2006.
28. During the independent bid phase, the parties submitted First Final Proposal
Revisions (“FPR1”) on February 23, 2007.
29. Before submission of the FPR1, the USAF released Amendments 9 and 10 to the
Recompete RFP.
30. The parties submitted Second Final Proposal Revisions (“FPR2”) on June 18, 2007.
31. Before submission of the FPR2, the USAF released Amendment 11 to the
Recompete RFP, which further reduced aircraft quantities.
32. Both AAI and Boeing’s FPR2 submissions were lower in price than the FPR1, due
to the reduced aircraft quantities in Amendment 11.
33. No major changes were made from AAI and Boeing’s FPR1 submissions to their
FPR2 submissions, beyond the adjustment for Amendment 11.
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34. On September 7, 2007, the USAF awarded the Recompete Contract to Boeing by
means of a 23-page Source Selection Decision Document containing extended discussion of
decision factors concerning competing bidders Boeing, AAI and Lockheed.
(c) Plaintiff’s Claims.1
I. COUNT ONE – BOEING’S BREACH OF THE RECOMPETE MOA
A. AAI relies upon the following legal theories in support of its claims that Boeing breached the Recompete MOA.
Count One alleges that Defendants The Boeing Company, Inc., Boeing Aerospace
Operations, Inc. and Boeing Aerospace Support Center (collectively, “Boeing”) breached its
contract obligations when it improperly terminated the September 6, 2005 Memorandum Of
Agreement (“Recompete MOA”) executed by the Boeing and Alabama Aircraft Industries, Inc.
(“AAI”), when AAI was known as Pemco Aeroplex Inc., on September 6, 2005 (the “Recompete
MOA”) and failed to award AAI at least 50% of the Program Depot Maintenance (“PDMs”) for
the KC-135 tanker aircraft. Such breach occurred when Boeing terminated the Recompete MOA
on June 6, 2006 and then within a week reteamed with L-3 Communications Integrated Systems
L.P (“L-3”) and continued to compete for the PDM for the KC-135 Aircraft (the “Program”)
instead of withdrawing from the Program. AAI will prove at trial that: “(1) [Boeing] and [AAI]
entered into a contract; (2) [AAI] performed, or substantially performed its obligations pursuant
1 While Boeing claims that the Court’s summary judgment decision “significantly narrowed the factual issues for trial,” it has made no attempt to identify or clarify what facts it believes are no longer relevant to AAI’s claims. Regardless, while the Court’s summary judgment opinion and later opinions may have limited the damages AAI can seek to recover at this juncture, the factual elements of AAI’s breach of contract and misuse of PI claims remain the same.
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to the contract’s terms; (3) [Boeing] failed to perform something the contract required it to do; and
(4) [AAI] was harmed by that failure.” SAK Constr. of CA, L.P. v. PSC Indus. Outsourcing, L.P.,
No. 11-1479, 2012 WL 3765096, at *6 (E.D. Mo. Aug. 30, 2012 (citation omitted).2
Boeing has previously admitted, and this Court has held, that the Recompete MOA was a
binding contract. Moreover, as this Court has previously held, Boeing has not even argued that
AAI failed to perform under the Recompete MOA. Thus, the first two elements of a breach of
contract action are undisputedly satisfied. AAI will demonstrate at trial that Boeing breached the
Recompete MOA by terminating it in violation of § 5.0(c). In addition, AAI will demonstrate the
damages it suffered as a result of Boeing’s breach as summarized in this order.
The unambiguous terms of the Recompete MOA did not allow Boeing to terminate based
upon either (a) a reduction in the best estimated quantity of KC-135 aircraft for the Program
(“BEQ”) or (b) the potential impact of any BEQ reduction on other work at Boeing’s San Antonio
facility. The unambiguous terms of the Recompete MOA did not allow Boeing to terminate the
teaming agreement under § 5.0(c) and then compete for the Recompete without AAI. AAI will
prove the meaning of § 5.0(c) through testimony, evidence of the parties’ contract negotiations,
and statements made by the parties in contemporaneous documents. Missouri case law is clear that
such evidence is admissible. See Simul Vision Cable Sys. P’ship v. Cont’l Cablevision of St. Louis
Cnty., Inc., 983 S.W.2d 600, 603 (Mo. Ct. App. 1999 (affirming trial court’s interpretation of
contract based in part upon prior draft of agreement submitted as evidence to show that final draft
omitted provision that had been involved in prior negotiations); Cameron v. Morrison, 901 S.W.2d
171, 177 (Mo. Ct. App. 1995 (“Even a complete and integrated contract must be interpreted.
2 The Recompete MOA contains a Missouri choice of law provision. Doc. 263-27 at 10, § 15.
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Admission of oral testimony of agreements or negotiations contemporaneous with the execution
of the written agreement are admissible to establish the meaning of the contract.”) (quotation
omitted).3
AAI will prove that Boeing, knowing BEQs were very likely to be reduced for industry
depots, repeatedly attempted to include language in the Recompete MOA that would have
permitted termination for a reduction in the BEQ and qualified Boeing’s obligation to award a
subcontract to AAI if the USAF awarded PDMs “at the anticipated quantity.” AAI will also prove
that it completely rejected Boeing’s attempts to include this language and that the Recompete
MOA did not contain termination language based on a reduction of the BEQ and the parties
removed “at the anticipated quantity” as a qualifier to Boeing awarding a subcontract to AAI.
As executed, § 5.0(c) provides that the Recompete MOA shall terminate:
After the release of any RFP or amendments thereto, if the contents thereof are so unfavorable to the Prime or a Principal Subcontractor that participation in the Program is no longer practical or financially viable, in such case the party seeking termination for this reason will provide written notice to the other party within 15 days of the receipt of the RFP (or amendment) giving notice of such.
Section 4.1 of the Recompete MOA provides, “[s]ubject to the conditions in this MOA, if BASC
is awarded a contract in connection with the Program as a ‘Recompete Effort,’ BASC will award
3 This evidence clearly demonstrates the Recompete MOA’s meaning and AAI does not offer it to alter or change the terms of the Recompete MOA; therefore, the parol evidence rule does not bar such evidence. See Topper v. Midwest Div., Inc., 306 S.W.3d 117, 131 (Mo. Ct. App. 2010) (finding parol evidence rule did not apply where testimony did not contradict the contract terms). Missouri courts routinely admit extrinsic evidence such as prior contract drafts and evidence of contract negotiations to “explain [ ] the circumstances that existed at the time” of contract execution. Wheelhouse Marina Real Estate, L.L.C. v. Bommarito, 284 S.W.3d 761, 770 (Mo. Ct. App. 2009 (admitting testimony explaining why lease contract contained a certain start date). Alternatively, to the extent that latent ambiguities exist in the MOA (including any of its exhibits), it is “[a]ppropriate for consideration [] the relationship of the parties, the circumstances surrounding execution of the contracts, the subject matter of the contracts, the acts of the parties in relation to the contract and any other external circumstances which would cast light on the intent of the parties.” Doc. 445 at 30, quoting Boswell v. Steel Haulers, Inc., 670 S.W.2d 906, 913 (Mo. Ct. App. 1984).
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subcontracts to Pemco and [L-3] for the work share to the extent that the government awards
PDMs.” The term “Program” was clearly defined by the Recompete MOA as “Program Depot
Maintenance for the KC-135 Aircraft (the ‘Program’)”. The phrase in § 4.1, “to the extent that the
government awards PDMs,” is not tied to any minimum quantity, and thus means “to the extent
that the government awards any PDMs.”
The ordinary and plain meaning of § 5.0(c) is that a party could terminate the Recompete
MOA if it determined that it was no longer financially viable for that party to perform the KC-135
PDM work at all. In other words, to terminate pursuant to § 5.0(c), the terminating company would
have to withdraw from the competition for the Recompete entirely, instead of excising its long
time partner on the eve of the deadline for submitting final prices to the United States Air Force
(“USAF”), in an attempt to exclude that long-time partner from submitting a bid at all. See
Freeman v. Barrs, 237 S.W.3d 285, 288 (Mo. App. 2007) (“Courts do not rewrite unambiguous
contracts but construe them as written”) (citations omitted).
AAI will establish that it was part of the parties’ intentions underlying the MOA provisions
including § 5.0(c), and relevant to Boeing’s breach of contract, that the Recompete MOA was
based upon an enforceable exclusive teaming arrangement (and a requirements contract for a
minimum of 50% of PDM work to be supplied by AAI4) between Boeing, AAI, and L-3 for both
the preparation and submission of a bid for the Recompete and the performance of the Program,
which Boeing breached when it terminated AAI and re-teamed with L-3 to continue in the Program
4 “A ‘requirements contract’ is one in which one party promises to supply all the specific goods or services which the other party may need during a certain period at an agreed price, and the other party promises that he will obtain his required goods or services from the first party exclusively.” Kirkwood-Easton Tire Co. v. St. Louis County, 568 S.W.2d 267, 268 (Mo. 1978).
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and to submit a bid excluding AAI. See, generally, Recompete MOA at the seventh recital and §§
1.1, 1.3. 1.5, 3.5, and 4.1, and Univ. Power Sys., Inc. v. Godfather’s Pizza, Inc., 818 F.2d 667, 672
(8th Cir. 1987) (applying Missouri law, upholding enforcement of oral requirements contract,
finding defendant breached its exclusive dealing requirement to buy pizza pans from plaintiff
supplier); Kirkwood-Easton Tire, 568 S.W.2d at 268 (Missouri has for some time recognized and
enforced ‘requirements contracts.’“); Cantrell v. Knight, 72 S.W.2d 196, 200 (Mo. App. 1934)
(upholding requirements contract for supplying gasoline to defendant).
B. AAI expects to prove the following categories of factual allegations at trial in support of its breach of contract claims against Boeing for breach of the Recompete MOA.5
1. AAI’s history and experience in performing KC-135 PDM services.
2. The circumstances relating to the 1998 government contract solicitation (the “1998
RFP”) and government Contract No. F42620-98-D-0054 (the “0054 Contract”).
3. The circumstances relating to Boeing and AAI entering into an October 27, 2000
Memorandum of Agreement (the “0054 MOA”), followed by a Long Term Requirements Contract
(“LTRC”) entitled “Repair Agreement 01-003,” including terms of such arrangements.
4. The circumstances relating to, and terms of, a 2004 LTRC, Repair Agreement 06
003 (the “Bridge LTRC”), covering KC-135 PDM Program work for FY 06-07.
5. The factual background, circumstances, analyses and decision factors involved in
Boeing’s and AAI’s respective decisions to enter into a Boeing/AAI teaming agreement for a joint
submission of a bid for and joint performance of the KC-135 PDM work under a 10-year USAF
5 Various of such facts are also relevant to AAI’s PI-misuse claims described in Count Three, infra. AAI lists such facts here, for Count One, and also for Count Three, infra, in the form of categories of factual elements.
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contract known to the parties as the Recompete, including facts relating to best estimated quantity
(BEQ) of KC-135s that might be allocated to industry depots for PDM work.
6. The parties’ negotiations and drafting of the 2005 MOA, including related
documents (a non-disclosure agreement (“NDA”) and a workshare agreement).
7. The terms and conditions of the MOA, the NDA and the workshare agreement.
8. Boeing’s internal analyses and evaluations of eliminating AAI from the joint work
under the 0054 contracts, the Bridge contract and/or the Recompete under the MOA, during 2004
2006.
9. The circumstances relating to, and perceived advantages resulting from, adding L
3 to the Recompete team and the resulting 3-party MOA, including the terms and conditions of
that MOA.
10. AAI’s full performance of its contractual obligations under the MOA.
11. The circumstances relating to Boeing’s 2005 submission of a Joint Bid on behalf
of the Boeing/AAI/L-3 team.
12. The circumstances relating to the USAF reduction of BEQs in spring 2006 from 44
aircraft per year to 24 aircraft per year, and how such reduction related to the parties’ prior
evaluations.
13. The facts and circumstances relating to Boeing’s internal planning and actions in
the first half of 2006 to abandon AAI as a teaming partner for the Recompete as well as, potentially,
as a Bridge subcontractor.
14. The facts and circumstances relating to Boeing’s termination of the MOA with
AAI, including its entry into a replacement MOA with L-3.
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15. The facts and circumstances showing that the Boeing/AAI/L-3 team would have
won the Recompete even though the BEQ had been reduced as was anticipated.
16. The impact of Boeing’s above-referenced activities on AAI including AAI’s
expenditure of considerable resources in participating in the Joint Bid efforts and in mounting its
own solo bidding, now as a prime contractor, for the Recompete.
17. The harm and damages caused AAI by Boeing, which are itemized in the section
on Damages.
II. COUNT THREE – AAI CLAIMS REGARDING ITS PROPRIETARY INFORMATION (BREACH OF AGREEMENTS)
A. AAI relies upon the following legal theories in support of its claims against Boeing regarding its proprietary information.
As a result of teaming agreements and other contracts and agreements between Boeing and
AAI, Boeing possessed AAI PI accumulated since 2000 and frequently updated, which was
competition-sensitive, not in the public domain, and valuable. AAI claims that Boeing breached
its several agreements with AAI that required Boeing to protect and not improperly use AAI’s PI,
and to comply with laws and regulations protecting against misuse of PI, because Boeing
knowingly and intentionally:
(1) failed to take appropriate steps to safeguard AAI’s PI after Boeing began
evaluating and pursuing plans in the spring of 2006 to (i) stop teaming with AAI under the
Recompete MOA to obtain a USAF contract to perform PDM services on the KC-135
Aircraft (the “Program”) and (ii) compete against AAI for the Recompete contract;
(2) failed to timely and effectively implement firewall and PI sequestration
measures to protect AAI’s PI after it decided it was in Boeing’s interest to take all PDM
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work in San Antonio, making AAI its competitor for such work;
(3) failed to ensure that the Boeing’s personnel working on Boeing’s Recompete
team and bid submissions in prospective and in actual competition with AAI, were at all
relevant times permitted to participate under contractually-applicable laws and regulations,
as well as Boeing’s own policies, manuals and procedures (necessary for regulatory
compliance) and industry standards relating to procurement activity;
(4) failed to prevent Boeing employees who had knowledge of AAI’s PI stemming
from Boeing activities under agreements with AAI from working on Boeing’s Solo
Recompete activities and bid submissions in potential or actual competition with AAI, after
Boeing personnel were on reasonable notice of the likelihood of a conflict of interest
between Boeing and AAI arising from Boeing’s potential (and then actual) termination of
the Recompete MOA;
(5) used AAI-PI-knowledge-contaminated Boeing personnel, including those
handling Joint Recompete bid estimating and pricing who were familiar with AAI’s PI
(including estimates, costs, hours, rates, prices and the methods AAI used for estimating
and pricing tasks, staffing, labor, overhead, profit, materials, and other cost and pricing
factors) to develop Boeing’s estimates and prices relevant to its Solo Recompete bid in
competition with AAI after Boeing personnel were on reasonable notice of the likelihood
of a conflict of interest between Boeing and AAI arising from Boeing’s potential (and then
actual) termination of the Recompete MOA and after key Boeing personnel stated that
Boeing personnel with knowledge of AAI’s PI should not work on Boeing’s Solo
Recompete bid;
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(6) deleted, destroyed, and concealed evidence in order to cover up Boeing’s
misconduct with AAI’s PI and to impede AAI’s ability to prove that misconduct; and
(7) misappropriated and misused AAI’s PI, and used AAI-PI-knowledge
contaminated Boeing personnel to facilitate the misappropriation and misuse of AAI’s PI,
to frame Boeing’s Solo Recompete bid submissions to underbid AAI and to win the
Recompete contract award; all of which damaged AAI.
AAI’s breach of agreements claim is based on the following agreements that were in force
in 2005-2007 between AAI and Boeing: (1) the PI-protection provisions of “The Boeing Company
General Provisions (Fixed Price Services Contract) GP2,” generally referred to as GP2, for both
the 0054 and Bridge contract work; (2) the NDA; (3) the PI-protection provisions of Recompete
MOA §§ 5, 6 and 7; (3) the government laws and regulations and Boeing-government agreements
regarding procurement integrity and protections against misuse of PI with which, by contract
(Recompete MOA § 9.0 and NDA §9.0), Boeing agreed to implement and comply; and (4) the
agreements reached between Mark Rabe (counsel for Boeing) and Doris Sewell (counsel for AAI).
Therefore, AAI will prove at trial that: (1) Boeing and AAI entered into contracts governing
the parties’ PI; (2) AAI performed, or substantially performed its obligations pursuant the
contracts’ terms; (3) Boeing failed to perform things the contracts required it to do; and (4) AAI
was harmed by that failure. (Paraphrasing SAK Constr. of CA, L.P., supra.).
B. AAI expects to prove the following categories of factual allegations in support of its claims against Boeing concerning AAI’s PI6
1. The facts and circumstances relating to AAI’s development, accumulation and
6 As a number of fact elements cited under Count One, supra, are also relevant to AAI’s PI-misuse claims under Count Three here, they are not repeated here but are incorporated here from Count One, supra, by reference.
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possession of extensive and invaluable trade secrets and proprietary information connected with
KC-135 work (“PI”) which was not in the public domain and which would be valuable to anyone
seeking to compete with AAI or others for KC-135 repair and depot work.
2. The facts and circumstances relating to the 1998 RFP “bundling” which directly
led to the situation of AAI having to share its PI with Boeing.
3. The facts and circumstances, including the nature, terms, conditions and
requirements of the parties’ several contracts for KC-135 work, relating to AAI having to provide
Boeing with AAI’s PI and to update such PI, including AAI’s compliance with such terms and
requirements.
4. The facts and circumstances relating to Boeing’s obligations to protect AAI’s PI at
all relevant times.
5. The facts and circumstances relating to Boeing’s access to and possession and use
of AAI’s PI from 2000 through 2007 and relating to Boeing’s continuous access to AAI’s
Birmingham facility under the parties’ several contracts.
6. The facts and circumstances relating to the unequal (non-reciprocal) levels of
access to and possession of the other party’s PI, between Boeing as prime contractor and AAI as
subcontractor.
7. The facts and circumstances relating to Boeing’s knowledge from at least 2004
onward that it would eventually compete with AAI for all KC-135 PDM work (including AAI’s
share under the parties’ contracts), and how this related to the need for Boeing to avoid conflicts
of interest and to protect against misuse of AAI’s PI.
8. The facts and circumstances relating to Boeing’s knowledge that AAI’s economic
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survival was dependent upon AAI’s retention of KC-135 PDM work, and implications of that
knowledge on the protection of AAI PI.
9. The facts and circumstances relating to Boeing’s use and handling of firewalls to
protect AAI PI prior to termination of the MOA.
10. The facts and circumstances relating to Boeing’s internal evaluations, analyses and
strategies for taking all KC-135 PDMs to its San Antonio facility and for terminating AAI as a
teaming partner, and implications of such facts and circumstances on Boeing’s need to protect
AAI’s PI.
11. The facts and circumstances relating to AAI’s delivery to prime contractor Boeing
of AAI PI under stipulations of confidentiality, including the nature and extent of such PI.
12. The facts and circumstances relating to Boeing personnel performing internal
studies, comparisons, and evaluations of AAI’s PI, including the familiarity of such personnel with
such AAI PI, and how such AAI PI was maintained, stored and disseminated within Boeing.
13. The facts and circumstances relating to Boeing’s Blue Team modeling of L-3 and
of Lockheed.
14. The facts and circumstances relating to Boeing’s formulation and implementation
of a Win Price.
15. The facts and circumstances relating to Boeing not having its Blue Team perform
a public-domain-information-based analysis of AAI, as Boeing had done for L-3 and Lockheed.
16. The facts, circumstances and time frames relating to which AAI PI was sequestered
and protected by Boeing and which AAI PI was not sequestered or otherwise protected against
misuse.
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17. The facts, circumstances and timing of Boeing’s knowledge that it had entered into
a conflict of interest position with AAI (by reason of becoming a competitor with AAI, to take all
PDM work into San Antonio) and the effects of such conflict and knowledge on Boeing’s
obligations to protect AAI PI, including sequestration of PI and change of Boeing Recompete
personnel who were knowledge-contaminated.
18. The facts and circumstances relating to Boeing’s secret internal price modeling that
used AAI’s PI without AAI’s knowledge or permission, and relating to whether such use went
beyond what was reasonably necessary if Boeing and AAI were to remain a bidding team.
19. The facts, circumstances and timing relating to Boeing’s institution of a firewall in
2006, its ineffectiveness, and Boeing’s failure to enforce adequate compliance.
20. The facts and circumstances relating to Boeing’s knowledge of the need to replace
its PI-knowledge-contaminated Recompete personnel and Boeing’s failure to do so, including its
concealment of material facts relating to the foregoing.
21. The facts and circumstances of Boeing’s secretly-conducted internal competition
against AAI (including writing AAI out of the upcoming bid submission and using AAI’s PI) while
still teamed with AAI under the MOA before June 6, 2006, using AAI PI, with no PI protections
being implemented.
22. The facts and circumstances relating to the applicable standards (including methods
and procedures) to which Boeing was obligated to adhere in order to effectively and completely
protect AAI’s PI against misuse, and relating to Boeing’s failure to adhere to such applicable
standards, methods and procedures.
23. The facts and circumstances relating to the 2006 agreements between Boeing and
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AAI concerning protection of the parties’ respective PI, and the parties’ compliance (or not) with
such agreements.
24. The facts and circumstances relating to Boeing’s spoliation of evidence relevant to
AAI’s PI and Boeing’s handling or use thereof.
25. The facts and circumstances relating to Boeing’s evaluations and analyses of AAI
and Lockheed as competitive threats during the parties’ independent bid preparation activities
between 2006 and final Recompete submissions in 2007.
26. The facts and circumstances relating to the means and methods by which Boeing
took improper advantage of its possession and knowledge of AAI PI to underbid AAI and
otherwise frame its bid submissions to defeat AAI’s competing bid, in order to win the Recompete
award.
27. The facts and circumstances relating to the result that but for the knowledge,
ongoing unauthorized possession and misuse and misappropriation of AAI’s PI by Boeing, Boeing
would not have been able to underbid or otherwise prevail over AAI in the Recompete bidding.
28. The facts and circumstances relating to AAI’s compliance with its own contractual
obligations respecting Boeing PI, including AAI’s comparative lack of knowledge of material,
relevant and useful Boeing PI and AAI not misusing Boeing PI.
29. The facts and circumstances relating to the impacts on AAI of Boeing’s breaches
of its several agreements to safeguard, protect and not use or misuse AAI’s PI, including forcing
AAI to incur substantial expense in a Recompete effort for its economic survival, while Boeing’s
contract breach ensured such AAI effort would be frustrated, and the harm and damage to AAI.
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III. DAMAGES
Recognizing the Court’s prior rulings, over AAI’s objections, on available damages, AAI
will claim the following damages:
1. Count I – as a direct result of Boeing’s breach of the Recompete MOA, AAI was
damaged in the following amounts: (i) actual reliance damages in the amount of the expenses it
had incurred in teaming with Boeing to submit a joint bid and (ii) actual damages in the amount
of the expenses it had incurred in submitting a solo bid. These actual incurred costs total
$2,132,062.53.
“A plaintiff claiming a breach of contract has available and need not choose between three
types of damages—actual, consequential, and benefit-of-the-bargain—as such damages are not
necessarily inconsistent with one another; a plaintiff may not, however, be made whole more than
once.” Catroppa v. Metal Building Supply, Inc., 267 S.W.3d 812, 817 (Mo. Ct. App. 2008).
“‘Actual damages are compensatory and are measured by the loss or injury sustained’ as a direct
result of the wrongful act.” Id. at 818 (quoting Stiffelman v. Abrams, 655 S.W.2d 522, 531 (Mo.
1983)). Reliance damages are a form of actual or direct damages. See, e.g., Nashville Lodging Co.
v. Resolution Trust Corp., 59 F.3d 236, 246 (D.C. Cir. 1995) (“The fact that reliance damages are
backward-looking does not destroy their pedigree as a species of compensatory relief. . . .
[R]emedies calibrated to putting the claimant back in the position he occupied before making the
repudiated agreement are ‘actual direct compensatory damages’ no less than those aimed to put
him where he would have been if the contract had been fulfilled.’”) “Reliance damages are
designed to compensate the plaintiff for any reasonably foreseeable costs incurred or expenditures
made in reliance on the promise that has now been broken.” Richard A. Lord, 24 Williston on
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Contracts § 64:4 (4th ed. 1990) “An award of reliance damages returns the plaintiff to its
precontractual position by putting a dollar value on the detriment the plaintiff incurred in reliance
on the now-broken promise and reimbursing expenditures the plaintiff made in performing or
preparing to perform its part of the contract.” Id. AAI seeks to recover the actual costs it incurred
to its detriment by working on the joint bid in reliance upon Boeing’s promises in the MOA. In
addition, as a direct result of Boeing’s breach of the MOA by terminating it and competing against
AAI for the Recompete Program work, AAI had to put together its own solo bid in a very
compressed time frame. AAI also seeks to recover the actual costs it incurred in developing its
solo bid.
The total amount of the costs AAI incurred in connection with its work on the joint bid
prior to Boeing’s breach of the MOA was $788,480.31 and consisted of out of pocket expenses
and burdened labor expenses in connection with AAI’s work on the joint bid, as follows:
a) out of pocket expenses: $75,067.90 and b) burdened labor expenses: $713,412.41.
The total amount of the costs incurred in connection with the AAI’s work on its solo bid
was $1,343,582.22 and consisted of out of pocket expenses, burdened labor expenses, and
consulting expenses in connection with the AAI’s work on its solo bid, as follows:
a) out of pocket expenses: $13,133.52 b) burdened labor expenses: $630,127.30 c) consultant expenses: $700,267.40.7 7 These costs, which will be presented by testimony at trial, are further itemized and supported by the following deposition exhibits that Defendants used in the course of discovery in this case: (1) DX 637, the Declaration of Randy Shealy and the exhibits thereto that were submitted to the Court of Federal Claims; (2) DX 133, the Declaration of Timothy Walker and the exhibits thereto that were submitted to the Court of Federal Claims; and (3) DX 638, the January 28, 2009 Opinion and Order of the Court of Federal Claims. They are also supported by AAI_1064785’s allocation of AAI’s 2006 burdened labor hours and costs, which were listed in exhibit B to the Declaration of Randy Shealy (DX 637) as modified by the Declaration of Timothy Walker (DX 133) at ¶ 8, to the joint and solo bids.
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2. Count III – as a direct result of Boeing’s breach of the agreements protecting AAI’s
proprietary information by Boeing’s failure to safeguard AAI’s proprietary information, and by
Boeing’s use of AAI’s proprietary information to outbid AAI for the Recompete Program work,
AAI sustained actual damages in the form of the expenses it had incurred in submitting a solo bid.
Under Missouri law, actual damages for breach of contract ‘“are compensatory and are measured
by the loss or injury sustained’ as a direct result of the wrongful act.” Catroppa, 267 S.W.3d at
818 (quoting Stiffelman v. Abrams, 655 S.W.2d 522, 531 (Mo. 1983)).
The total amount of the costs incurred in connection with AAI’s work on its solo bid was
$1,343,582.22 and consisted of out of pocket expenses, burdened labor expenses, and consulting
expenses in connection with AAI’s work on its solo bid, as follows:
a) out of pocket expenses: $13,133.52 b) burdened labor expenses: $630,127.30 c) consultant expenses: $700,267.40.8
(d) Defendant’s Defenses.
Count I9
1. Boeing denies that it breached the MOA by terminating the MOA. Termination
was allowed by MOA § 5.0(c), which allowed for termination “[a]fter the release of any RFP or
amendments thereto, if the contents thereof are so unfavorable to the Prime or a Principal
Subcontractor that participation in the Program is no longer practical or financially viable[.]”
8 See footnote 7 above.
9 Boeing’s position is that Sections I.A and II.A of AAI’s claims are sufficient and Sections I.B and II.B do not comply with the Court’s pre-trial order instructions. For this reason, Boeing responds specifically only to Sections I.A and II.A of AAI’s claims.
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Boeing terminated the MOA after the Air Force reduced the quantity of aircraft from 44 per year
to 24 per year, and after Boeing undertook an in-depth analysis to determine whether teaming with
AAI for the reduced number of aircraft would be “practical or financially viable.”
2. The termination provision that Boeing relied upon was drafted by AAI after months
of negotiations. Boeing’s initial draft of MOA § 5.0(c) provided narrow language stating that the
contract could “terminate” for “Failure of the Customer to award a KC-135 PDM contract to
[Boeing] at a quantity anticipated above to support two (2) contractor SORs.” AAI took issue with
allowing termination upon “award” of the contract. To address this concern, AAI proposed
language that changed the trigger for allowable termination under § 5.0(c) from the “award” of the
contract to “the release of any RFP or amendments thereto[.]” AAI’s language broadened § 5.0(c)
to allow for termination for any change in the RFP or amendments thereto, including a change that
reduced the BEQ, if that change was sufficiently “unfavorable” to render “participation…no longer
practical or financially viable.” AAI similarly edited § 4.1 to align with the language used in §
5.0(c).
3. Moreover, the parties agreed that either party could submit an independent bid after
termination of the MOA, and that any such independent bid could include other parties. Section
12 of the NDA stated:
In the event the contractual relationship between the parties … terminates pursuant to the terms of such MOA or subcontract, either party may pursue an independent contract to perform work for the United States Government on the PDM program, either alone or in conjunction with other parties.
Count III
4. Boeing followed the terms of all contracts between the parties. No external
communications altered the terms of the contracts between the parties.
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5. Boeing denies that it misused any of AAI’s proprietary information. Boeing’s
independent bid proposal was based solely on Boeing information. AAI cannot point to a single
piece of AAI proprietary information in Boeing’s independent bid proposal. AAI cannot point to
any use of any AAI proprietary data by anyone at Boeing. Instead, AAI relies only on speculation
and mischaracterizations of Boeing presentations that were developed to determine how to price
the expected joint bid FPR.
6. Boeing and AAI were subject to the same requirement under the NDA to employ
“appropriate safeguards … to prevent inappropriate use of the other party’s Proprietary
Information” after the MOA terminated. Boeing timely implemented appropriate safeguards,
including sending out its initial firewall email one day after the USAF re-opened the competition
to allow AAI to submit an independent bid. AAI’s firewall failed in multiple respects, and left key
Boeing proprietary data unfirewalled and available to AAI employees working on the independent
bid team.
7. The MOA expressly allowed individuals who worked on the joint bid to continue
on the independent bid teams: “This restriction will not preclude a party’s employees who have
had access to the other’s Proprietary Information from participating in the subsequent independent
contract…” Both Boeing and AAI had multiple team members who worked on both the joint bid
team and the independent bid team.
8. Boeing could not have used AAI’s proprietary information to underbid AAI. First,
the information Boeing had from the joint bid proposal was irrelevant because the information
Boeing had related to AAI’s costs as a subcontractor to Boeing, not as a prime contractor. That
information gave Boeing no insight into the sizable additional costs AAI would need to price into
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its independent prime bid. Second, AAI’s subcontractor information was outdated by the time the
independent bids were submitted, including because the USAF made substantial changes to the
Recompete Contract RFP after the joint bid period. Finally, AAI’s proprietary information used
for its independent proposal for the Recompete Contract was unknown to Boeing.
9. Under Missouri law, the “essential elements” of a breach of contract claim include
“that plaintiff performed or tendered performance pursuant to the contract[.]” Smith Flooring, Inc.
v. Pa. Lumbermens Mut. Ins. Co., 713 F.3d 933, 941 (8th Cir. 2013). AAI’s claim for breach of
the NDA cannot establish that AAI performed, and therefore AAI is barred from recovering against
Boeing for any breach of the NDA. See Rainey-Hicks v. Mo. Accreditation of Programs for
Children & Youth, 466 S.W.3d 699, 704 (Mo. App. 2015) (under Missouri law, “an essential
element [of a] breach of contract claim” is “that plaintiff performed or tendered performance
pursuant to the contract”); Hodge, 2016 WL 7494275, at *8-10 (finding for defendant because
plaintiff had not performed its own duties pursuant to the contract). Boeing asserts that AAI
breached the MOA by knowingly and repeatedly misusing Boeing’s proprietary information to
gain a competitive advantage in connection with AAI’s independent Recompete Contract proposal.
AAI’s actions breached the NDA because the NDA allows for use of proprietary information
“solely for the purpose” of “negotiating a Memorandum of Agreement leading to a long-term
subcontracting relationship relating to the [KC-135 PDM],” and provides that proprietary
information “shall not otherwise be used for the benefit of the recipient.”
Causation
10. Both of AAI’s claims fail because Boeing’s alleged breaches did not cause AAI
harm. The Boeing/AAI joint bid would not have won the Recompete Contract once the quantity
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of aircraft was reduced. Even if Boeing’s independent bid price was higher than AAI’s, AAI
would not have won the Recompete Contract because the Air Force considered pricing the least
important factor. See Hodge v. Springleaf Fin. Servs., Inc., No. 13-05131-CV-SW-REL, 2016 WL
7494275, at *9 (W.D. Mo. Sept. 30, 2016) (“Missouri law imposes a causation requirement on the
recovery of damages.”); see also Al-Khaldiya Elecs. & Elec. Equip. Co. v. Boeing Co., 571 F.3d
754, 759 (8th Cir. 2009) (“[A] contract breach that causes no loss to the plaintiff will not support
a judgment.”); Belisle v. Miceli, 758 S.W.2d 465, 468 (Mo. App. 1988) (“fail[ing] to prove any
damages suffered in consequence of the breach of contract” and relying on “pure speculation” is
“insufficient to support…a monetary recovery”).
6. Discovery and Other Pretrial Procedures.
(a) Pretrial Discovery: Pursuant to previously entered orders of the court,
discovery is closed.
(b) Pending Motions: No motions remain pending at this time.
(c) Motions In Limine. Motions in limine must be filed at least sixty (60) days
in advance of the scheduled trial date and shall be accompanied by supporting memoranda.
Response briefs are due fifteen (15) days after the initial motions, and replies are due ten (10) days
after the response briefs are due. As to each matter counsel seeks to exclude, counsel shall indicate
whether the exclusion is “opposed” or “unopposed” by counsel for the other side. Parties are
encouraged to resolve evidentiary issues by stipulation whenever possible. Motions in Limine will
be argued on January 21, 2020.
7. Trial Date.
(a) This case is set for jury trial on February 10, 2020.
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(b) The trial will last no longer than 10 trial days.
8. Exhibit D. The parties are to comply fully with each provision contained in Exhibit
D -- Standard Pretrial Procedures, as amended, which is incorporated into this Order by reference
as if fully set forth verbatim herein.
It is ORDERED that the above provisions be binding on all parties unless modified by
further order for good cause shown.
DONE and ORDERED this October 10, 2019.
_________________________________ R. DAVID PROCTOR UNITED STATES DISTRICT JUDGE
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EXHIBIT D -- MODIFIED PRETRIAL PROCEDURES
1. Damages. No later than twenty (20) calendar days prior to the date set for trial, the parties shall file and serve a list itemizing all damages and equitable relief being claimed or sought; such list shall show the amount requested and, where applicable, the method and basis of computation.
2. Witnesses - Exchange of Lists.
During the month of October 2019, pursuant to the discussion during the pretrial conference, the parties SHALL meet and confer regarding the attendance of witnesses not subject to the court’s subpoena power. On or before December 11, 2019, the parties SHALL each submit to chambers, in camera, an outline of the witnesses they will call and may call, and the topics the party plans to cover with each listed witness.
(a) Expert Witnesses. No later than seventy (70) calendar days prior to the date set for trial, the parties shall file and serve a list stating the names and addresses of all expert witnesses who have previously been identified in accordance with Fed. R. Civ. P. 26(a)(2) and whose testimony may be offered at trial.
(b) Other Witnesses. No later than seventy (70) calendar days prior to the date set for trial, the parties shall file and serve a list stating the names and addresses of all witnesses (other than expert witnesses) whose testimony they may offer at trial.
(c) Contents of Lists. The parties shall appropriately indicate on their witness lists: (1) the “primary” witnesses - those witnesses whose testimony the party expects to offer including designation of those expected to testify in person and those expected to testify by deposition; (2) the “optional” witnesses - those witnesses whose testimony the party expects will not be needed, but the party has listed to preserve its right to offer such testimony should the need arise in light of developments at trial, and (3) those witnesses the party expects to present by means of depositions.
Unless specifically agreed by the parties in writing or allowed by the court for good cause shown, the parties shall be precluded from offering substantive evidence through any witness not included on the party’s witness list. A party will make the witnesses designated by that party as “expected to testify in person” available to testify at the trial, subject to changes in a witness’s availability (which shall be communicated to the opposing party as soon as practicable). The parties will provide reasonable prior notice of a designated witness’s availability to testify and the parties will coordinate when the witness will testify, including making reasonable accommodations regarding the order of proof.
As to any witnesses shown on such witness lists to be presented by deposition, within ten (10) business days after the filing of the witness lists, the parties shall provide opposing counsel with a listing of the specific pages from the depositions to be used (provided, however, that this requirement shall not apply to portions which may be used for impeachment or cross examination of a witness first called by the opposing party). Within fifteen (15) business days thereafter, the
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opposing party may serve a list of additional pages of the deposition to be used, and may serve and file a list disclosing any objections to the use of such deposition testimony under Rule 32 or Rule 26(a)(3)(B). Any objections to deposition testimony must be filed twenty-eight (28) days before trial and should be accompanied by excerpts from the depositions including the testimony to which the objection relates. Objections not made within such time, other than objections under Fed. R. Evid. 402 and 403, shall be deemed waived, unless such failure to timely object is excused by the court for good cause shown.
3. Exhibits.
(a) Exchange of lists. No later than sixty (60) calendar days prior to the date set for trial, the parties shall file and serve a list providing an appropriate identification of each document or other exhibit, including summaries of other evidence, separately identifying those exhibits that the party expects to offer and those exhibits that the party may offer if the need arises. Unless specifically agreed by the parties in writing or allowed by the court for good cause shown, the parties shall be precluded from offering as substantive evidence any exhibit not so identified.
Courtesy copies of Exhibit Lists should be submitted to the Clerk’s office (for delivery to the judge’s chambers), as well as emailed to the chamber’s email address at proctor_chambers@alnd.uscourts.gov, in either Word or WordPerfect format. (b) Objections and Stipulations. Upon receipt of Exhibit Lists, the parties shall immediately meet and confer regarding any objections to the listed exhibits. Most objections should be cured by discussion, and the parties should stipulate as to the admissibility of as many exhibits as possible.
As to any document or other exhibit on which agreement cannot be reached, including summaries of other evidence shown on such list, no later than thirty (30) days before trial, an opposing party shall serve and file a list disclosing any objection, together with the grounds therefor, that may be made as to the admissibility of exhibits identified on such list. Objections not so disclosed, other than objections under Fed. R. Evid. 402 and 403 are waived, unless such failure to timely object is excused by the court for good cause shown. The court generally rules on objections to exhibits outside the presence of the jury and will do so prior to opening statements, to the extent possible.
(c) Counsel requiring authentication of an opponent’s exhibit must notify offering counsel in writing within ten (10) business days after the exhibit is identified and made available for examination. Failure to do so is an admission of authenticity.
(d) Marking. Each party that anticipates offering more than five (5) exhibits as substantive evidence shall premark such exhibits in advance of trial, using exhibit labels and lists available from the Clerk of Court. The court will provide up to 100 labels; if any party needs more labels, that party must use labels of the same type
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as those supplied by the court. Counsel must contact the courtroom deputy for the appropriate exhibit list form for use at trial. The court urges counsel to be judicious in determining which documents actually are relevant to necessary elements of the case.
(e) Examination by Opposing Party. Except where beyond the party’s control or otherwise impractical (e.g., records from an independent third-party being obtained by subpoena), each party shall make such exhibits available for inspection and copying. The presentation of evidence at trial shall not ordinarily be interrupted for opposing counsel to examine a document that has been identified and was made available for inspection.
(f) Court’s Copies. In addition to the premarked trial exhibits mentioned above, the court requests for the bench an exhibit notebook of anticipated trial exhibits (to the extent possible and practical, with any native format exhibits provided in suitable electronic media). The notebook should include a copy of the Exhibit List referenced in “(d)” above.
(g) Special and Visual Exhibits. Native format Excel spreadsheets which were displayed by computer or enlargement to any witness during the taking of a deposition in this action may be displayed by projection, enlargement or other special means, whether or not a witness at trial is testifying in person or by deposition. Should either side desire to present exhibits through a witness called by the party to testify in person or by deposition (in addition to native format Excel spreadsheets used in depositions taken in this action) via projection onto a screen or monitor or by enlargement, or other special means to present the exhibit to the jury, such additional exhibits will be limited to the fifty (50) most critical documents to that side’s case and (in the case of witnesses testifying by videotaped deposition) any exhibits which were displayed to such witnesses by projection or special means during a witness’s videotaped deposition. Such limitation shall not apply to exhibits used by a party for cross-examination of a witness first called by the opposing party or impeachment. Counsel shall advise opposing counsel at the same time as submission of the Exhibit List which documents (other than those which had been displayed by computer or special means during one or more depostions) it will or may so present through a witness called by the party. Hard copies or agreed ESI versions of such exhibits must first be identified before projection. Counsel is responsible for providing whatever technology may be necessary for such projection.
THE PARTIES ARE REMINDED THAT THEY WILL NOT BE ALLOWED TO USE AT TRIAL ANY WITNESS OR EXHIBIT NOT DISCLOSED IN ACCORDANCE WITH FED. R. CIV. P. 26(a) OR 26(e), UNLESS EXTREMELY GOOD CAUSE IS SHOWN AND THE OFFERING PARTY CAN SHOW THAT ITS FAILURE TO DISCLOSE WAS HARMLESS. See Fed. R. Civ. P. 37(c)(1).
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4. Use of Depositions at Trial.
(a) The court will accept the parties’ written agreement to use a deposition at trial even though the witness is available. In the absence of such an agreement, parties must comply with Fed R. Civ. P. 32.
(b) Before trial, counsel must provide the courtroom deputy with a copy of all depositions to be used as exhibits at trial.
(c) To the extent possible, with respect to witnesses called by a party, counsel will designate the portion of any deposition that counsel anticipates reading by citing pages and lines within ten (10) days of exchanging final witness list. Such designation requirement does not apply to portions used for impeachment or cross examination of a witness called by the opposing party. Within fifteen (15) business days thereafter, the opposing party may serve a list of additional pages of the deposition to be used, and may serve and file a list disclosing any objections to the use of such deposition testimony under Rule 32 or Rule 26(a)(3)(B). Objections, if any, to those portions (citing pages and lines) with supporting authority must be filed at least twenty-eight (28) days before trial.
(d) Use of videotape depositions is permitted and the parties must make good faith efforts to agree on admissibility or edit the videotape to resolve objections.
(e) In a non-jury trial, for any deposition offered as a trial exhibit, counsel shall attach to the front of the exhibit a summary of what each party intends to prove by the deposition testimony, with line and page citations, and include an appropriate concordance of the deposition pages offered.
5. Trial Submissions to Court.
No later than ten (10) business days prior to the scheduled trial date, each party will submit the following to the Clerk’s office (for delivery to the judge’s chambers):
(a) A listing of what each party understands to be the essential elements of each of Plaintiff’s claim(s) (separate listing for each claim).
(b) A listing of what each party understands to be the essential elements of each Defendant’s defense(s) (separate listing for each defense).
(c) A listing of what each party understands to be the essential elements of each Defendant’s counterclaim(s), if any (separate listing for each counterclaim).
(d) A listing of what each party understands to be the essential elements of each defense to any Defendant’s counterclaim, if any (separate listing for each defense).
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(e) A listing of any special evidentiary or other anticipated legal problems with citation to legal authority that supports the party’s position.
(f) Any special questions or topics for voir dire examination of the jury venire.
Parties may, if they desire, file trial briefs. Any such briefs must be filed at least twenty (20) days prior to trial. Opposing parties may respond to such trial briefs at least ten (10) days prior to trial. The briefs, if any, should not exceed fifteen (15) typed pages and must otherwise comply with this court’s Exhibit A to the Scheduling Order. Additionally, three-hole punched courtesy copies of all briefs must be submitted to the Clerk’s office (for delivery to the judge’s chambers), as well as emailed to the chamber’s email address at proctor_chambers@alnd.uscourts.gov, in either Word or WordPerfect format.
6. Jury Charges.
No later than one month prior to the scheduled trial date, the parties shall file a single, joint proposed jury charge, including all necessary instructions, or definitions applicable to the specific issues of the case. The parties need not submit standard generic instructions regarding routine matters, e.g., burden of proof, credibility of witnesses, duty of jurors, etc.
(a) Each requested instruction must be numbered and presented on a separate sheet of paper with authority cited.
(b) In their joint, proposed jury materials, counsel are to include all necessary instructions or definitions, specifically including: (1) the prima facie elements of each cause of action and defense asserted; (2) legal definitions required by the jury; (3) items of damages; and (4) methods of calculation of damages. Counsel are to use the Eleventh Circuit Pattern Jury Instructions, or appropriate state pattern jury instructions, as modified by case law or statutory amendments, wherever possible. Any deviations must be identified, and accompanied with legal authorities for the proposed deviation.
(c) Even if the parties, in good faith, cannot agree on all instructions, definitions or questions, the parties should nonetheless submit a single, unified charge. Each disputed instruction, definition, or question should be set out in bold type, underlined or italics and identified as disputed. Each disputed item should be labeled to show which party is requesting the disputed language. Accompanying each instruction shall be all authority or related materials upon which each party relies. The parties shall also email the unified charge, in either Word or WordPerfect format, to the chamber’s email address at proctor_chambers@alnd.uscourts.gov.
7. Court’s Expectations.
(a) The court will expect all parties to be ready for trial as of the trial date set in the Pretrial Order unless a continuance is requested within ten (10) business days after
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the date on which the court enters the Pretrial Order. Continuances based on inadequate preparation will not be considered favorably.
(b) The court calls to the attention of all parties the various time requirements in the Pretrial Order and Exhibits. The court strictly adheres to these time requirements to avoid last minute requests for rulings.
(c) Any case announced settled after the Pretrial Conference but before the scheduled trial date will be dismissed with prejudice and with costs taxed as paid on the scheduled trial date unless a different stipulated judgment form is submitted on or before the scheduled trial date.
Case
Paulie, this is for you ,,, thanks for your help...
date set for Feb 2020.
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
ALABAMA AIRCRAFT INDUSTRIES, INC., ) ALABAMA AIRCRAFT INDUSTRIES, INC. – ) BIRMINGHAM, and PEMCO AIRCRAFT ) ENGINEERING SERVICES, INC., ) ) Plaintiffs, ) Case No. 2:11-cv-03577-RDP ) ) vs. ) ) THE BOEING COMPANY, BOEING ) AEROSPACE OPERATIONS, INC. and ) BOEING AEROSPACE SUPPORT CENTER, ) ) Defendants. )
PRETRIAL ORDER
A final pretrial conference was held in the above case on October 10, 2019, wherein, or as
a result of which, the following proceedings were held and actions were taken:
1. Appearances. Appearing at the conference were:
For AAI: J. Michael Rediker, Joshua D. Lerner, Peter J. Tepley, and Rebecca A. Beers of Rumberger Kirk & Caldwell, P.C.
For Boeing: R. Thomas Warburton and J. Thomas Richie, Bradley Arant Boult Cummings LLP; Erin Johnston, Alexia R. Brancato, Kirkland & Ellis LLP.
2. Nature of the Action, Jurisdiction and Venue.
(a) The nature of this action as a result of the Court’s rulings to date is as follows: AAI brings two breach of contract claims against Boeing, one relating to Boeing’s termination of an agreement to submit a joint bid to the United States Air Force for a contract to perform program depot maintenance work on KC-135 aerial refueling aircraft, and the second relating to Boeing’s alleged misuse of AAI’s proprietary information in violation of certain contracts. Boeing denies each of AAI’s claims.
FILED
2019 Oct-10 PM 02:52 U.S. DISTRICT COURT N.D. OF ALABAMA
I have full copy 34/35 pages. bottom line the case is going to trial ...
from PACER & court listener
Any input for this blip I found today.
Sudden increase in action today with AAIIQ rising 2 Cent with a 4.5 close.
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October 2, 2018
Boeing Tries To Cut Lost Profits Claims In $1.3B Deal Row
The Boeing Co. has urged an Alabama federal court to find that Alabama Aircraft Industries can’t pursue lost-profits damages in its suit alleging Boeing cut it out of a $1.3 billion U.S. Air Force deal, while the now-bankrupt AAI argued the parties’ agreement doesn’t bar such recovery.
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thanks for any help here.