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Bisbano v. Strine Printing Co., Inc.

United States Court of Appeals, First Circuit

November 27, 2013

Richard BISBANO, Sr., Plaintiff, Appellant,
v.
STRINE PRINTING CO., Inc., and Michael Strine, Sr., Defendants, Appellees.

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[Copyrighted Material Omitted]

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V. Edward Formisano and Formisano & Company, on brief for appellant.

Jeffrey S. Brenner, Steven M. Richard, and Nixon Peabody LLP, on brief for appellees.

Before HOWARD, SELYA and STAHL, Circuit Judges.

SELYA, Circuit Judge.

The practice of giving gifts as a means of securing favors is as old as the hills. In ancient Greece, for example, legend has it that Zeus asked Paris, a Trojan prince, to decide which of three goddesses was the fairest of them all. Paris chose Aphrodite, rejecting proffered bribes of kingly power from Hera and military might from Athena. But Aphrodite too had tendered a bribe, agreeing to help him win the hand of the most beautiful woman alive.

A modern-day commercial equivalent of this practice is the giving of a gratuity to a procurement officer, behind her employer's back, for the purpose of steering a contract to the donor. But sales techniques of this sort are by their nature clandestine; they cannot withstand the sunlight. If the employer learns about the kickback, the consequences are usually unpleasant. This case, in which defendants Michael Strine and his eponymous firm, Strine Printing Company (SPC), first hired and later fired the plaintiff, Richard Bisbano, turns on such a revelation.

When he was cashiered, the plaintiff did not go quietly into obscurity but, rather, brought suit for an oleaginous mass of perceived wrongs, including unjust enrichment, tortious interference with prospective contractual relations, breach of contract, breach of an implied covenant of good faith and fair dealing, and misrepresentation. The district court, deftly sorting wheat from chaff, granted summary judgment in favor of the defendants. See Bisbano v. Strine Printing Co., No. 10-358, 2013 WL 1907455, at *12 (D.R.I. May 8, 2013). After careful consideration, we affirm.

I. BACKGROUND

We assume the reader's familiarity with the district court's factual account and, thus, start by tracing the genesis of this appeal. To the extent that we discuss the facts, we take them (and the reasonable inferences therefrom) in the light most hospitable to the summary judgment loser (here, the plaintiff). See Griggs-Ryan v. Smith, 904 F.2d 112, 114 (1st Cir.1990).

The plaintiff is a veteran sales representative who specializes in the sale of commercial printing services. For nearly two decades, CVS (a powerhouse firm that owns and operates thousands of drug stores) was a significant source of business for him. Over the years, he carried that client with him from Winthrop Printing Company to Allied Printing Services (Allied) and, eventually, to SPC. During most of this odyssey, the plaintiff used a broker,

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Vanco, as an intermediary to assist him in securing CVS's business.

When the plaintiff shifted his allegiance to SPC in December of 2006, he also took with him a secret. While working for Allied, he had surreptiously helped to pay the car lease of a CVS printing department employee.

Allied was not happy about the plaintiff's departure and his ensuing solicitation of CVS on his new employer's behalf. It sued both the plaintiff and SPC, and these suits complicated the parties' tug-of-war over CVS's patronage.

To complicate matters further, the suits apparently spooked Vanco. As a result, the broker began to steer what CVS business it could influence to other printers. On learning of Vanco's perfidy, the plaintiff and SPC decided to forge a direct relationship with CVS and, in mid-2007, cut all ties with Vanco.

The plaintiff's 2008 commissions dropped precipitously, reflecting this parting of the ways. By the following year, however, his commissions had rebounded to their 2007 level. They continued to rise during the first half of 2010.

This story might have had a happy ending but for the plaintiff's earlier indiscretion. In the course of an internal review of its printing procurement practices, CVS learned of the plaintiff's role, while at Allied, in the apparent kickback.

In April of 2010, the plaintiff confessed his complicity to CVS executives. Shortly afterward, CVS's vice president for strategic procurement decided that the company would not do business with the plaintiff and that SPC would need to remove him from the CVS account. Although the plaintiff contests whether this decision was contemporaneously communicated to the defendants, it is undisputed that CVS made the decision and that, at the end of June, SPC dismissed the plaintiff.

The plaintiff repaired to a Rhode Island state court, pressing a welter of contract, quasi-contract, and tort claims against the defendants. Citing diversity of citizenship and the existence of a controversy in the requisite amount, the defendants removed the action to federal court. See 28 U.S.C. ยงยง 1332(a), 1441.

We fast-forward to the close of discovery. At that point, the defendants moved for summary judgment. See Fed.R.Civ.P. 56. Over the plaintiff's objection, the district court granted the motion. See Bisbano, 2013 WL 1907455, at *12. This ...


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