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August 13, 1999


The opinion of the court was delivered by: Hellerstein, District Judge.


Plaintiff, Telecom International America, Ltd. ("TIA"), a reseller of long-distance "800" service, and defendant AT & T Corp. ("AT & T"), a telephone company which provides both telecommunications services and equipment, are parties to three contracts. Two of the agreements cover purchases and sales of telephone equipment manufactured and designed by AT & T, and the other covers the utilization by TIA of certain of AT & T's long-distance telephone services. TIA claims in this lawsuit that the contracts are parts of an "overarching" agreement to provide "end-to-end" service that AT & T breached, and that AT & T is liable to TIA for damages flowing from this breach and for various unfair and otherwise illegal practices. AT & T denies liability, denies the existence of any such "overarching" agreement and counterclaims for sums due under its contract tariff filed with the Federal Communications Commission (the "FCC"). The damages respectively claimed are substantial: TIA seeks an aggregate total of at least $187 million, while AT & T seeks approximately $59 million.

After eighteen months of extensive discovery, AT & T moved for summary judgment dismissing the bulk of TIA's claims, and for partial summary judgment with respect to its four counterclaims. I grant AT & T's motion in part, and deny it in part.


In early 1994, TIA's parent, Telecom International, Ltd. ("Telecom International"), undertook to provide a high quality, reliable long-distance telephone service to Japanese subscribers at lower rates than those available from other Japanese providers. The parent, Telecom International, was a reseller of telephone services and a dealer in telecommunications equipment to the Japanese market. Telecom International opened discussions with equipment manufacturers toward purchasing available and specially designed equipment to provide a "call-turnaround" application, to be marketed under the name "Diamond Net," capable of linking two telephone calls: a long-distance call over a toll-free line from Japan to a switching station in New York (the "inbound call"), with a linked call from New York to the number anywhere in the world dialed by the Japanese subscriber (the "outbound call"). (Affidavit of Eamon Joyce, dated Nov. 19, 1998 ("Joyce Aff."), at ¶ 4 n. 1; AT & T's Statement Pursuant to Local Civil Rule 56.1 ("AT & T 56.1"), at ¶¶ 5-8). Telecom International provided AT & T with projections estimating that Diamond Net would capture 15% of the Japanese long-distance market, sell over two million minutes per month of long-distance services and contract with over 2,000 customers during the first year of operations. (TIA's Statement Pursuant to Local Civil Rule 56.1 ("TIA 56.1"), at ¶¶ 8, 21).

AT & T negotiated to provide both the telecommunications services and the equipment that were needed for Diamond Net, representing that its equipment, combined with its international long-distance network services, could provide the efficiency of "end-to-end" service, linking and completing the envisioned calls in "less than a nanosecond." (TIA 56.1, at ¶ 12). AT & T promised better service and benefits than competitors like Northern Telecom, even though the equipment available from such other companies was also compatible with AT & T telecommunications services, and there was no technological reason forcing TIA to purchase both equipment and long-distance services from one company. (Affidavit of Jacques Richard, dated May 8, 1997 ("Richard May 8 Aff."), at ¶ 6). Thus, AT & T represented in its effort to obtain TIA's business:

  When Telecom International selects Megacom 800
  International and Megacom Wats Services [the AT & T
  services to be utilized for the inbound call to New
  York, and the switched outbound call], you are
  selecting a solution that is "all AT & T" from design
  through delivery. AT & T Bell Laboratories designed
  these services and engineered its software. AT & T
  Network Systems, which won the 1992 Malcolm Baldridge
  Quality Award, manufactures the network's components.
  The AT & T Business Network Sales Division installs
  and maintains Megacom 800 International and Megacom
  Wats to AT & T's rigorous standards.

(TIA 56.1, at ¶¶ 12-17). Furthermore, AT & T represented that its equipment had been utilized previously in conjunction with its network services in similar configurations as contemplated by TIA. (Id. at ¶ 3).

AT & T recommended the network services and the use of customized equipment to be purchased: AT & T's Megacom 800 service for the incoming call from Japan to the U.S.; AT & T's Megacom service for the outbound call; a customized G3r switch to bridge the calls; a Conversant Series 4.0 automated voice response system to couple the inbound to the outbound call; and a T-45 cable to connect the Megacom 800 and Megacom services to the switching equipment. (TIA 56.1, at ¶ 24). AT & T's materials stated that the configuration could support call volumes of up to 1775 calls per busy hour with an average duration of 3.5 minutes. (TIA 56.1, at ¶ 7). AT & T recommended that Tapestry Computing Co. ("Tapestry"), a company comprised mostly of former AT & T employees, design and write the software necessary to implement the application. (Id. at ¶ 25). At the time of contracting, AT & T did not provide a single long-distance tariffed service, which could carry both the inbound and outbound calls without requiring a switch to connect the calls. (Richard May 8 Aff., at ¶ 7). A separate service and corresponding tariff would have had to have been developed and filed.

The Equipment Purchase/Service Agreement of May 1994

On May 3, 1994, AT & T and TIA (which by then had been incorporated by Telecom International) entered into a written equipment purchase and service agreement (the "Equipment Agreement") providing for the sale by AT & T to TIA of approximately 150 items of equipment for an aggregate price of $527,916.17.*fn1 The Equipment Agreement, a form contract used by AT & T for many years, provided the terms and conditions of the contractual relationship between AT & T and TIA with regard to these items of equipment. (Kelly Aff., at ¶ 10). The Equipment Agreement, however, did not incorporate the representations made by AT & T during the period of negotiations and in their proposals; indeed, it largely excluded them. In capital letters, the Equipment Agreement excluded any warranty of merchantability or fitness; Section 8 provided:

  A. Except as stated in Sections 6 and 7, AT & T, its
    subsidiaries and their affiliates, subcontractors
    and suppliers make no warranties, express or
    implied, and specifically disclaim any warranty of
    merchantability or fitness for a particular

(Equipment Agreement, at § 8(A)).*fn2 Moreover, AT & T disclaimed any warranty of error-free operation, or that the equipment would meet TIA's specific requirements. Section 8 thus continued:

  D. AT & T does not warrant uninterrupted or error
    free product operation or that the software
    functions will meet your requirements. Although AT
    & T has used reasonable efforts to minimize defects
    or errors in the software except as stated in
    Sections 6 and 7, you assume the risk of any damage
    or loss from the use of or inability to use the
(Id. at § 8(D)). The single warranty provided by the Equipment
Agreement was that the equipment sold by AT & T would perform in
accordance with AT & T's standard specifications. Thus, in
Section 6, AT & T warranted that:

   . . on the Delivery or In-Service Date, whichever
  is applicable, and during the warranty period, the
  equipment and associated operating system software
  (basic software acquired with the equipment that
  enables it to function) will operate in accordance
  with AT & T's standard specifications.

(Id. at § 6). The warranty period was to last one year and AT & T agreed to provide maintenance service at no additional cost for the warranty period; TIA could receive post-warranty period maintenance at additional cost. (Id. at §§ 6, 9).

  The Equipment Agreement also limited the remedies available to
TIA as well as the extent of liability to which AT & T could be
held. In particular, the terms of the Equipment Agreement
asserted that:

   . . AT & T shall not be liable for incidental,
  indirect, special or consequential damages, or for
  lost profits, savings or revenues of any kind,
  including but not limited to charges for common
  carrier telecommunication services or facilities
  accessed through or connected to products, whether or
  not AT & T has been advised of the possibility of
  such damages.

(Id. at § 17(C)). This clause, like the others detailed above, was also in all capital letters.

In addition, the Equipment Agreement contained an integration clause, which in capital letters, stated:

  H. This is the entire agreement between the parties
    with respect to the products and services provided
    hereunder and supersedes all prior agreements,
    proposals, communications between the parties and
    understandings, whether written or oral.

(Id. at § 22(H)), The Equipment Agreement was to be "construed in accordance with and governed by the local laws of the state of New Jersey." (Id. at § 22(G)).

In light of the fact that TIA did not have a large technical or support operation, and sought to outsource the maintenance and storage responsibilities for the equipment, it did not want to have primary responsibility over storage and maintenance of the equipment. (Joyce Aff., at ¶ 9). Consequently, much of the equipment purchased by TIA was housed at Telehouse, a facility in Staten Island, which was owned in part by AT & T. (Joyce Aff., at ¶ 25; Affidavit of Jacques Richard, dated March 4, 1996 ("Richard March 4 Aff."), at ¶ 4). Telehouse was specifically designed to house, maintain and keep secure computer and telecommunications equipment, and was the central base of operations for Diamond Net's equipment. (TIA 56.1, at ¶ 10).

TIA sought financing for the purchase price of the equipment, and third-party plaintiff AT & T Credit Corporation ("AT & T Credit"), recommended by AT & T, agreed to provide such financing, secured by a lease of the equipment purchased by TIA. In connection with the lease, TIA and AT & T Credit executed a Master Equipment Lease Agreement (MELA) providing secured financing for the $527,916.17 purchase price. The MELA provided for monthly payments by TIA to AT & T Credit over a term of thirty-six months, and also included acceleration provisions for default.

The Contract Tariff Order and the Terms of the Filed Contract Tariff

The telecommunications services purchased by TIA were also made the subject of a specific contract. Pursuant to a contract tariff order (the "CTO")*fn3 executed by the parties, TIA ordered and AT & T agreed to provide the "inbound" Megacom 800 and the "outbound" Megacom telecommunications services, both to be governed by specific tariffs incorporated by reference in the CTO. The CTO was a simple one-page agreement comprised of twelve paragraphs. Similar to the Equipment Agreement, the CTO disclaimed almost all warranties. Thus, Paragraph Five of the CTO provided, in bold-faced capital letters:

  Except for any warranties expressly made in the
  [contract tariff] or the applicable tariffs, AT & T
  excludes all warranties, express or implied,
  including but not limited to any implied warranties
  of merchantability and fitness for a particular
  purpose. AT & T's liability to customer is subject to
  the limitations stated in the [contract tariff] and
  applicable tariffs.

(CTO, at ¶ 5).

The CTO also contained an integration clause, superseding the prior negotiations between the parties, and providing that only the terms of the CTO and the filed tariffs were binding. Consequently, the CTO constituted the:

  [e]ntire agreement between the parties with respect
  to the services to be provided hereunder. This
  agreement supersedes all prior agreements, proposals,
  representations, statements, or understandings,
  whether written or oral, concerning such services or
  the rights and obligations relating thereto.

(Id. at ¶ 11).

The CTO also contemplated the possibility of a business downturn that could reduce the volume of network services that TIA might require. Thus, Paragraph 10 of the CTO (the "Business Downturn Clause") provided that the parties would cooperate to negotiate a suitable alternative.

  In the event of a business downturn beyond [TIA]'s
  control, a corporate divestiture, or a network
  optimization using other AT & T services, that
  reduces the volume of network services required by
  [TIA] with the result that [TIA] will be unable to
  meet its revenue and/or volume commitments under this
  Agreement (notwithstanding [TIA]'s best efforts to
  avoid such a shortfall), AT & T and [TIA] will
  cooperate in efforts to develop a mutually agreeable
  alternative to this Agreement that will satisfy the
  concerns of both parties and comply with all
  applicable legal and regulatory requirements. By way
  of example and not limitation, such alternative may
  include changes in rates, nonrecurring charges,
  revenue and/or volume commitments, discounts, the
  multi-year service period and other provisions.
  Subject to all applicable legal and regulatory
  requirements, including the requirements of the FCC
  and the Communications Act of 1934, AT & T will
  prepare and file any tariff revisions necessary to
  implement such mutually agreeable alternative. . . .

On May 18, 1994, pursuant to the CTO, AT & T filed a contract tariff,*fn4 Contract Tariff No. 1192 ("CT 1192"), which provided a rate structure that was steeply discounted from AT & T's standard tariff rates for Domestic and International Megacom Service (the "Megacom Services") and Domestic and International Megacom 800 Service (the "Megacom 800 Services"). (AT & T 56.1, at ¶ 37). In return for the steep discount, TIA promised to purchase a large minimum annual volume of service (the "Minimum Volume Commitments"): 2,800,000 minutes of "inbound" Megacom 800 Service and 4,400,000 of "outbound" Megacom Service for year one, and 5,600,000 minutes and 8,800,000 minutes, respectively, for years two and three.*fn5 TIA agreed to pay AT & T shortfall charges of $.090 per minute for each minute it fell short of the Minimum Volume Commitment for the Megacom Services, and $1.00 per minute for each minute it fell short of the Minimum Volume Commitment for the Megacom 800 Services (the "Shortfall Charges"). (CT 1192, at § 3.A.).

CT 1192 incorporated by reference the terms and conditions for the generic tariffs corresponding to the Megacom Services, AT & T Tariff F.C.C. No. 1, and for the Megacom 800 Services, AT & T Tariff F.C.C. No. 2. (Id. at § 4). Moreover, CT 1192 also provided rate schedules detailing the discounted rates TIA would receive with regard to the Megacom and Megacom 800 Services. (Id. at §§ 4, 7).

Furthermore, TIA also purchased another service from AT & T for Diamond Net: ACCUNET T1.5 Access Connections (the "T1.5 Service"); AT & T Tariff F.C.C. No. 9 set forth the contract price for the T1.5 Service. (Id. at § 4). As described by counsel, the T1.5 Service provided crucial local service connecting the inbound call from AT & T's receiving switch to TIA's switch housed in Staten Island, thus linking the inbound and outbound calls. (Tr. at pp. 8-10). The term of service for the T1.5 Service was also three years.

Under the terms of CT 1192, TIA guaranteed AT & T minimum annual charges of $7,500,000 for the first year and $15,000,000 for the second and third years for these "inbound" and "outbound" services (the "Minimum Annual Charges"). (Id. at § 3.B.). All together, totaling the Minimum Volume Commitments and the Minimum Annual Charges, TIA made a commitment to purchase approximately $53,000,000.00 of volume from AT & T over the course of the three-year term. (Richard March 4 Aff., at ¶ 14).

The CTO and CT 1192 also provided for the event of TIA's discontinuation of services prior to the termination of the three-year term. TIA agreed that it could be assessed a termination charge, in the amount approximately of the entire shortfall from the Minimum Annual Charges if it discontinued service under CT 1192 prior to the expiration of the three-year term. (CT 1192, at § 6.E.). The Termination Charge for AT & T Megacom Services was to be 100% of the unsatisfied domestic Minimum Volume Commitment multiplied by $.090 per minute; and the Termination Charge for AT & T Megacom 800 Services was to be 100% of the unsatisfied international Minimum Volume Commitment multiplied by $1.00 per minute. (Id. at § 6.E.). If, however, TIA replaced those tariffed services with other AT & T services applicable to "Contract Tariffs or another Contract Tariff of equal or greater term, volume and revenue commitment," the Termination Charge imposed upon TIA was to be excused. (Id. at § 6.F.).

The terms of the various generic AT & T tariffs incorporated in CT 1192, AT & T Tariff Nos. 1, 2, and 9, all stated that payment for the services "is due upon presentation of the bill." (AT & T 56.1, at ¶ 54).

Finally, Paragraph Four of the CTO also made it clear that if any inconsistency arose between the terms of CT 1192, and the filed tariffs incorporated by reference therein, the terms of CT 1192 "shall prevail." (CTO, at ¶ 4). Moreover, Paragraph Four also stated that if any inconsistency arose between the terms of CT 1192 and the filed tariffs incorporated by reference therein, on the one hand, and the CTO on the other, the terms of CT 1192 "shall prevail." (Id.). Thus, the parties agreed that the terms of CT 1192 would trump all other terms and conditions governing the network services aspect of the relationship between TIA and AT & T, including the terms of the CTO.

Equipment Problems and Efforts to Remedy Same

On June 16, 1994, the equipment and services comprising Diamond Net were activated. On September 23, 1994, TIA executed Commencement Certificates indicating that it had accepted the equipment provided by AT & T pursuant to the first Equipment Agreement.*fn6 Almost immediately after activation, however, TIA experienced performance problems with the capability of the equipment it had purchased: calls did not reach their destination; the clarity of connections was distorted by echoes and noises; and incoming and outgoing lines could not be synchronized properly. (TIA 56.1, at ¶ 15). AT & T installed monitoring equipment intended to report outages automatically, and the reports thus generated indicated frequent equipment and service problems. (Id. at ¶ 18). TIA advised AT & T frequently of the performance problems it experienced and complained that the equipment was inadequate for the Diamond Net application. (TIA 56.1, at ¶ 17).

AT & T convened a high-level task force to analyze and remedy TIA's complaints. Although the parties dispute its efforts and accomplishments, it appears that AT & T's engineers recognized that "the network/hardware configuration" sold to TIA did not allow "an end-to-end AT & T solution," that this presented a conflict with AT & T's "marketing offer" to TIA, and that no solution was apparent. (Joyce Aff., at Ex. 37). In June 1995, one member of the AT & T task force wrote that in light of TIA's $53 million commitment to AT & T, it was "not the time to tell" TIA the system was "permissive . . . better to walk on egg-shells until we have an alternative?" (Id. at Ex. 22).*fn7 As another member of the AT & T task force commented, "how far should we go toward fixing the unfixable." (Id. at Ex. 20).

AT & T recommended that TIA purchase additional equipment, including another Conversant, an ASAI link, more software, and another year of maintenance, and expressed its view that these measures would remedy Diamond Net's performance problems. (TIA 56.1, at ¶¶ 23-27). Essentially, the theory behind the additional equipment was to provide a certain level of redundancy for back-up. (Affidavit of Douglas Lonergan, dated November 18, 1998, Ex. B). TIA agreed, and the parties entered into a second equipment purchase service agreement.

The Equipment Purchase/Service Agreement of June 1995

On June 23, 1995, TIA executed the second Equipment Agreement providing for the purchase of the second Conversant, the ASAI link and other items of equipment. The terms of the Second Equipment Agreement were identical to the one executed in May 1994. (Kelly Aff., Ex. B). None of its provisions reflected on the frustrations that TIA had experienced or the view toward correction that AT & T had expressed. Indeed, as with the first Equipment Agreement, the terms disclaimed pre-contract promises and most warranties and representations. The single reflection of a possible problem was suggested by an amendment to the second Equipment Agreement providing that the equipment would be performance tested for "a period of ninety (90) days . . . to determine compliance with the following standard:"

  The Product will consistently pass dialed numbers
  from your CONVERSANT to your DEFINITY G3R in one (1)
  second or less, provided the calls processed are
  limited to human voice calls, calls originating from
  a FAX machine or voice or FAX calls made via a speed
  dialing feature and no other applications than the
  Product are concurrently running on the CONVERSANT.

(Id.). Furthermore, the Amendment provided that it was applicable only to the products included on the Second Equipment Agreement, (id.), and that by the ninetieth day, TIA would either accept the product and "AT & T [would] remedy any non-conformities in accordance with the warranty provisions of the PURCHASE[] AGREEMENT," or TIA would notify AT & T in writing that it was rejecting the additional equipment. (Id.).

AT & T delivered and installed the additional equipment and, after the 90-day period of warranty expired, TIA accepted the additional equipment. In January 1996, in connection with its acceptance TIA executed another Commencement Certificate, identical to the earlier Commencement Certificate, documenting its unequivocal acceptance of the additional equipment. (Affidavit of George McLachlan, dated Jan. 9, 1999, Ex. C). Furthermore, TIA entered into another MELA with AT & T Credit to finance the purchase of the additional equipment. The adjusted purchase price of the equipment purchased pursuant to the second MELA totaled $452,000.84.

Negotiations Concerning the Shortfall Charges and Invocation of the Business Downturn Clause

TIA's Balance Due for the Network Services

On December 23, 1996 and December 24, 1996, respectively, TIA gave notice to AT & T to terminate the Megacom 800 Services and the Megacom Services and soon thereafter disclaimed its payment obligations to AT & T Credit under the MELAs. (AT & T 56.1, at ¶¶ 51-52). By that time, TIA had incurred significant balances due to AT & T: $802,445.43 for the Megacom 800 Services;*fn8 and $36,915.19 for the T1.5 Services.*fn9 AT & T alleges that these amounts are still outstanding presently. In addition, AT & T contends TIA owes AT & T the Shortfall Charges due under CT 1192: $21,659,516.08 for the Megacom Shortfall Charges and $36,370,376.66 for the Megacom 800 Shortfall Charges. (AT & T 56.1, at ¶¶ 76-77). Thus, AT & T contends that TIA owes AT & T $58,869,253.36 pursuant to the tariff agreements. AT & T also contends that TIA owes it $47,727.07 in back post-warranty maintenance and termination bills for repair and maintenance services provided to TIA after the end of the one-year warranty period.*fn10

TIA's Lawsuit

TIA filed suit against AT & T in early February 1996, almost eleven months prior to its termination notice to AT & T. TIA's Second Amended Complaint alleges thirteen claims for relief, including fraudulent inducement, breach of contract and related contract and quasi-contract claims for relief, violations of the Federal Communications Act, and unfair competition under federal and state common law.

TIA alleges that it entered into an "overarching" agreement with AT & T, pursuant to which AT & T agreed to design, implement and maintain Diamond Net as an "end-to-end" service. Moreover, TIA contends that AT & T breached numerous representations and warranties with respect to the performance of Diamond Net, and that AT & T fraudulently induced it to enter into the several constituent agreements: the Equipment Agreements, the CTO and contract tariff CT 1192.

Thus, the Second Amended Complaint includes a claim for fraudulent inducement of contract and alleges breach of the "overarching" agreement, the two Equipment Agreements, the CTO and contract tariff CT 1192 (First and Second Claims for Relief, respectively). TIA's Third Claim for Relief alleges that AT & T breached its duty of good faith and fair dealing, and its Fourth Claim for Relief alleges that AT & T breached certain express warranties with respect to the "overarching" agreement for "end-to-end" service. The Fifth Claim for Relief, based on a theory of "money had and received," alleges that AT & T received substantial sums of money for the design, implementation and maintenance of Diamond Net and that it failed to provide a properly functioning system. TIA's Sixth and Seventh Claims for relief seek damages and rescission of the agreements between the parties under theories of unilateral and mutual mistake, respectively. The Eighth Claim for Relief, based on promissory estoppel, claims that AT & T promised to design and implement Diamond Net and also promised not to enforce the Shortfall Charges, and that TIA relied to its detriment upon those promises. TIA's Ninth Claim of Relief, asserting negligent misrepresentation and concealment, alleges that AT & T's representations with respect to the performance of Diamond Net were made negligently and that AT & T purposely concealed the conclusions of the task force created by AT & T to investigate the performance problems with Diamond Net.

In its Tenth, Eleventh and Twelfth Claims for Relief, TIA alleges that AT & T violated Sections 201-203 of the Communications Act. Specifically, TIA contends that AT & T violated Sections 201 and 202 by unjustly discriminating against TIA by providing it with less favorable charges and poorer service than those provided to non-reseller customers and to AT & T itself (Tenth Claim for Relief). Furthermore, TIA asserts that AT & T violated Sections 201-203 by unreasonably delaying and mishandling the provision of services to TIA, by providing TIA with untimely and inaccurate bills, by misusing TIA's customer proprietary network information and by using TIA as a test "beta" enabling AT & T to design, improve and implement its own call-turnaround service for the Japanese Market (Eleventh Claim for Relief).

TIA's Twelfth Claim for Relief alleges that AT & T purposely withheld the conclusions of AT & T's task force, convened specifically to study Diamond Net's performance problems, that AT & T fraudulently induced it to purchase more equipment, pursuant to the second Equipment Agreement, and that AT & T's actions with respect to TIA were "unjust and unreasonable," and violated its "duty of non-discrimination" in violation of Sections 201 through 203 of the Communications Act (Twelfth Claim for Relief). Finally, TIA also alleges that AT & T's conduct constitutes unfair competition under state and federal common law (Thirteenth Claim for Relief). In total, TIA seeks in excess of $187 million in damages, costs and attorneys' fees in prosecuting this action, and any other relief the Court deems just and proper.

AT & T denied the allegations in the Second Amended Complaint and asserted four counterclaims against TIA and its parent company, Telecom International, alleging: the balance due for Megacom 800 charges, in the amount of $802,445.43 (First Counterclaim); that TIA failed to reach the minimum volume commitments for both Megacom and Megacom 800 services, and, consequently, TIA owes AT & T Shortfall Charges in the amount of $58,029,892.74 (Second Counterclaim); that TIA failed to pay monthly bills for its T1.5 Service usage during Diamond Net's existence, in the amount of $36,915.19 (Third Counterclaim); and that TIA has failed to pay for post-warranty maintenance, in ...

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