United States District Court, S.D. New York
Attorneys for Plaintiff TRACHTENBERG RODES & FRIEDBERG
LLP By: David G. Trachtenberg, Esq. Stephen Arena, Esq.
Attorney tor Defendants ABRAMS, FENSTERMAN, FENSTERMAN,
EISMAN, FORMATO, FERRARA, WOLF & CARONE, LLP
W. SWEET U.S.D.J.
Impax Media Inc. ("Impax" or the
"Plaintiff") has moved by order to show cause for a
preliminary injunction to prohibit Defendants Northeast
Advertising Corp. d/b/a AdCorp Media Group
("AdCorp"), AdCorp360 Inc., and Peter Broccole
("Broccole" and, collectively, the
"Defendants") from competing with Impax by
installing or contracting to install new digital signage
platforms at supermarket checkout counters during the term of
the Impax-AdCorp Commission Sales Agreement in the territory
of the northeastern United States and Washington D.C.
reasons set forth below, Plaintiff's motion is denied.
October 26, 2017, Plaintiff filed their Complaint against
Defendants alleging breaches of contract and fiduciary duty,
tortious interference with contract and prospective business
advantage, false advertising, misappropriation of trade
secrets, and unfair competition. See Compl.
¶¶ 107-91, Dkt. No. 1. That same day, Plaintiff
moved for the instant preliminary injunction. Dkt. No. 4. On
December 13, 2017, the motion was heard and marked fully
following facts are taken from the briefs, affidavits, and
exhibits submitted by the parties for the instant motion.
is a Canadian corporation that provides a digital advertising
and communications platform compromised of digital video
screens that advertise customer-focused context and
advertising (the "Impax Digital Signage Platform").
Declaration of Shmuel Gniwisch dated October 25, 2017
("Gniwisch Decl.") ¶¶ 2-4. Impax installs
its digital signage largely in supermarkets and generates
revenue through the sale of advertising spots that run in
continuous loops on the display screens. Id.
¶¶ 3, 8.
and AdCorp360 Inc. are New York corporations that pay
supermarkets and other venues to permit the installation of
digital and print advertising platforms. Declaration of Peter
Broccole dated December 1, 2017 ("Broccole Decl.")
¶¶ 7-8. Broccole is the president and Chief
Executive Officer of Adcorp. Gniwisch Decl. ¶ 11.
mid-2015, Impax and AdCorp began discussing the possibility
of Impax engaging AdCorp to provide advertising sales
services for Impax in the northeastern part of the United
States, including Washington D.C. Gniwisch Decl. ¶ 16;
id. Ex. C. Impax was interested in working with
AdCorp to acquire introductions to retail supermarkets in the
United States with which AdCorp had relationships. Gniwisch
Decl. ¶¶ 17-19.
such supermarket retailer was Wakefern Food Corporation
("Wakefern"), the largest owned grocery store
cooperative in the United States. Gniwisch Decl. ¶ 19.
Around August 2015, AdCorp informed Impax that AdCorp would
prepare and deliver a presentation to Wakefern to market the
Impax Digital Signage Platform. Gniwisch Decl. ¶ 23;
see id. Ex. E. While Impax and ACorp negotiated the
terms of their written agreement, negotiations between AdCorp
and Wakefern also continued. Around mid-2016, however,
Wakefern terminated its discussions with Impax. Declaration
of Dominick Porco dated October 25, 2017 ("Porco
Decl.") ¶¶ 3-4, 8. In August 2016, Impax
learned that Wakefern had entered into an agreement to have
AdCorp install AdCorp's own digital signage. Porco Decl.
¶ 4. Upon inquiry, AdCorp represented to Impax that
AdCorp only sold its own signage to Wakefern because Wakefern
was not interested in contracting for Impax's signage
technology, which used facial recognition software, termed
"Tru-Reach" technology. Porco Decl. ¶ 6,
Broccole Decl. ¶¶ 35-40. When confronted about the
Wakefern contract, Broccole informed Impax that AdCorp would
limit their digital media screen sales going forward, focus
on print advertising, and would continue to serve as
Impax's exclusive agent for the sale of local
advertising. Porco Decl. ¶ 7.
August 15, 2016, Impax executed the Commission Sales
Agreement (the "Agreement"), which was executed by
AdCorp on September 8, 2016. See Gniwisch Decl. Ex.