United States District Court, S.D. New York.
MEDIA TENOR INTERNATIONAL AG, and MEDIA TENOR LTD., Plaintiffs.
MEDCO HEALTH SOLUTIONS, INC., Defendant.
Jorn A. Holl, Wuersch & Gering LLP, New York, NY, for the Plaintiffs.
Elizabeth A. Bozicevic, Sarah C. Hellmann, Husch Blackwell, St. Louis, MO, Amanda L. Nelson, Cozen O'Connor, New York, NY, for the Defendant.
OPINION AND ORDER
DENISE COTE, District Judge.
Plaintiffs Media Tenor International AG and Media Tenor Ltd. (collectively "Media Tenor") have brought this action against Medco Health Solutions, Inc. ("Medco"), alleging breach of contract, account stated, and quantum meruit. The parties have cross-moved for summary judgment. Medco has moved against all of Media Tenor's claims; Media Tenor seeks summary judgment on an account stated claim only. For the reasons set forth below, Medco's motion for summary judgment is granted in part; Media Tenor's motion for summary judgment is denied.
The following facts are undisputed. Media Tenor International AG is a Swiss corporation that provides media research and analysis. Media Tenor Ltd. is a New York corporation with its principal place of business in Manhattan; it is wholly owned by Media Tenor International AG and functions as its New York office. Medco is a Delaware corporation with its principal place of business in New Jersey. Medco provides pharmacy benefit management services.
On January 21, 2010, Media Tenor signed a Professional Services Agreement ("PSA"). The PSA is signed by Roland Schatz ("Schatz"), on behalf of Media Tenor, and Barbara W. Cosgriff ("Cosgriff"), on behalf of Medco. Schatz is the Chairman and CEO of Media Tenor. Cosgriff was, at the time, Medco's Senior Vice President for Public Policy and External Affairs. While the signatures are dated January 21, 2010, the PSA states that it is effective as of December 15, 2009.
Section 1 of the PSA, titled "Services to be Performed, " requires Media Tenor to prepare a "Status Quo Analysis" based on 2009 data, and monthly reports beginning in January 2010. It reads in relevant part as follows:
Project Title: Strategic Reputation Management
Period of Performance: Month-to-Month
Detailed Description of Services and Deliverables: [Media Tenor] will perform a Status Quo Analysis, indicating how 100 opinion leading media in Germany and Europe covered Medco and Medco stakeholders as platforms for investments, the top Management, all events and other issues regarding the entry to the European market, the competitors as well as all relevant "Ambassadors" for the time period January to December 2009 to help Medco develop realistic communication goals for 2009/2010.... [Media Tenor] will present the first results of the Status Quo Analysis no later than 3 weeks after signing this Service Agreement (i.e., the first week in January 2010). Thereafter a workshop will take place until week 8 to develop and install the communication action plan for 2010 with already clear goals for the next events. As of January 2010, Professional will provide Medco with a monthly report to strategically plan, manage, and control the events plus the opportunities coming out of Medco initiatives. [Media Tenor] will assist Medco in its rapid response team activities.
Person Performing the Services: Roland Schatz
Section 4 of the PSA, titled "Compensation, " contains the contract language that is at the heart of this dispute. It reads as follows:
A. As consideration for the performance of the Services, Medco shall pay [Media Tenor] (1) upon signing of this Agreement, a one-time fee in the amount of U.S. $35, 000 for the codebook, which defines all Medco messages, projects and products, enabling the analysts of [Media Tenor] to qualify each text on Medco with respect to Medco's reputational goals (2) as well as a one-time fee in the amount of U.S. $9, 800 in respect of the Workshop and a Report for the 2010 Communications Plan and (2) commencing with the month of January, 2010, a retainer fee in the amount of $25, 000 per month, pro-rated for any partial month, in respect of the Status Quo Analysis and ongoing monthly monitoring and reporting with respect to 100 opinion leading media in Germany and Europe.
B. All payments made pursuant to this Agreement will be net payment due and payable within thirty (30) days after Medco's receipt of an undisputed invoice from [Media Tenor.]
Additionally, the PSA includes a "Termination" provision in Section 3, which reads in relevant part:
In the event of termination of this Agreement as provided hereunder, [Media Tenor] shall immediately discontinue all work hereunder and shall immediately cause any of its Agents to likewise cease such work. [Media Tenor] shall not be paid for any work done after receipt of the notice of such termination. "Agent" means any third party who provides Services and applicable Deliverables pursuant to this Agreement.
A. Termination for Convenience: Medco reserves the right to terminate this Agreement with or without cause at any time upon thirty (30) ...