The opinion of the court was delivered by: Wolin, District Judge.
On or about February 22, 1995, plaintiff Emerson Radio Corp.
("Emerson") entered into a licensing agreement (the "license")
with Orion, regarding sales of Emerson trademark goods to
Wal-Mart Stores, Inc. See Declaration of Jeffrey H. Daichman (the
"Daichman Decl."), Exh. C. Pursuant to the license, Emerson
granted Orion a three-year "exclusive . . . non-transferable
license to utilize and exploit" the Emerson trademark "in
connection with the manufacturing, sale, marketing, and
distribution" of certain specified video and television products.
See id., Exh. C, §§ 2.1, 3.1. The license does not specify a
minimum sales requirement to be met by Orion, and does not
include any express provision that Orion use "best efforts" or
"due diligence" in marketing or selling goods under the license.
The license does, however, require that Orion pay a minimum
annual royalty of $4 million to Emerson. See id., Exh. C, § 5.1.
On December 20, 1995, Emerson filed the complaint in this
action against defendants Orion, Otake Trading Co. Ltd., Technos
Development Limited, Shigemasa Otake and John Richard Bond. Mr.
Otake is alleged to own and/or control the three corporate
defendants. See Complaint, ¶ 11. Mr. Bond is alleged to be a
former executive of Emerson, later hired by Mr. Otake. See id.,
In its complaint, Emerson asserts the following causes of
action against the defendants: in the first count, breach of
contract for failing to accept product returns, failing to
exploit privileges granted under the license, failing to provide
price decreases, and failing to permit plaintiff to inspect books
and records; in the second count, breach of the implied covenant
of good faith and fair dealing; in the third count, unfair
competition; in the fourth count, tortious interference with
contractual relations and prospective economic gain; and in the
fifth count, conspiracy to interfere with and harm plaintiff's
business relations. See id., ¶¶ 48-52, 55-57, 59-61, 63-66,
Orion has moved for partial summary judgment "on Emerson's
claim that Orion failed to exploit the privileges granted to it
as licensee." See Orion moving brief at 1. Orion seeks a finding
by this Court that Orion had no express or implied duty under the
license to sell a minimum quantity of Emerson products to
Wal-Mart.*fn1 See id. at 6. Emerson argues in opposition that the
license's grant to Orion of the opportunity to "exploit" Emerson
trademark goods constituted an express requirement that Orion
"employ [the license] to the greatest possible advantage." See
Emerson brief at 31. Emerson also asserts that "in furtherance of
the affirmative obligations imposed on Orion by the express terms
of the License Agreement, a `best efforts' requirement should be
implied [sic] in the License Agreement." See id. at 36.
Summary judgment shall be granted if "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Fed.R.Civ.P.
56(c). The party moving for summary judgment has the burden of
demonstrating that there is no genuine issue as to any material
fact. See Celotex
Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d
Where a summary judgment motion is properly made and
supported, "an adverse party may not rest upon the mere
allegations or denials of the adverse party's pleading, but the
adverse party's response, by affidavits or as otherwise provided
in this rule, must set forth specific facts showing that there is
a genuine issue for trial." Fed.R.Civ.P. 56(e). If the adverse
party fails to respond with a showing that there is a genuine
issue for trial, "summary judgment, if appropriate, shall be
entered against the adverse party." Id. In making this
determination, the Court must draw all reasonable inferences in
favor of the non-moving party. See National State Bank v. Federal
Reserve Bank, 979 F.2d 1579, 1581 (3d Cir. 1992).
The Court's function at the summary judgment stage of
litigation is to determine whether there is a genuine issue for
trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue of material fact
is genuine if the evidence would permit a reasonable jury to
return a verdict for the non-moving party. See id., Coolspring
Stone Supply, Inc. v. American States Life Ins. Co., 10 F.3d 144,
148 (3d Cir. 1993). Absent evidence sufficient to permit a jury
to return a verdict for the non-moving party, there is no issue
for trial, and summary judgment must be granted. See Anderson,
477 U.S. at 249, 106 S.Ct. 2505.
In its briefs, Orion does not address the issue of which
state's substantive law should govern this contractual dispute.
Emerson relies upon a finding by a district judge, made in a
related case pending in Indiana, that New Jersey law should
apply. See Declaration of Paul F. Carvelli, Esq., Exh. A
("Findings of Undisputed Facts and Conclusions of Law on the
Parties' Cross-Motions for Partial Summary Judgment," entered
December 11, 1998, by District Judge Richard L. Young of the
United States District Court for the Southern District ...