Security Alarm Financing Enterprises, L.P. v. Alarm Protection Technology, LLC et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
SECURITY ALARM FINANCING
ENTERPRISES, L.P., a California Limited
Partnership,
Plaintiff and Counterclaim Defendant,
v.
ALDER HOLDINGS, LLC, a Utah Limited
Liability Company; ALARM PROTECTION
TECHNOLOGY, LLC, a Utah Limited
Liability Company; ALARM PROTECTION
TECHNOLOGY ALASKA, LLC, a Utah
Limited Liability Company; ALARM
PROTECTION ALASKA, LLC, a Utah
Limited Liability Company,
Defendants and Counterclaimants.
Case No. 3:13-cv-00102-SLG
ORDER RE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Before the Court is Defendants’ Motion for Summary Judgment at Docket 351.
The motion is fully briefed,1 and oral argument was held on December 15, 2016.2
Plaintiff’s 	motion 	at 	Docket 	339 	for 	summary 	judgment 	on 	Alarm 	Protection’s
counterclaims will be addressed in a separate order.
BACKGROUND
The following facts are drawn from SAFE’s First Amended Complaint (FAC) at
Docket 301, and are offered by way of background.
1 See Docket 355 (Mem.); Docket 393 (Opp.); Docket 416 (Reply).
2 See Docket 445 (Hr’g Mins.).
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In early 2013, the home alarm and security company Pinnacle sold its customer
accounts to SAFE. 	This transaction included hundreds of customers in Alaska; these
became SAFE’s only customers in Alaska. But almost immediately, SAFE noticed that it
was suffering an unusually high rate of attrition among its Alaska customers—many
customers were cancelling their service with SAFE using what appeared to SAFE to be
prewritten cancellation letters. 	SAFE suspected its customers were being actively
poached by another alarm company and began investigating the cause of the high
attrition rates. Based on that informal investigation, SAFE concluded—and subsequently
alleged in its Complaint3—that Alarm 	Protection salespersons were systematically
targeting SAFE’s customers using a customer list obtained from a former Pinnacle
employee. 	SAFE 	alleged 	that 	Alarm 	Protection’s 	employees 	were 	making 	false
statements about SAFE, about Alarm Protection, and about the relationship between the
two companies, all in an effort to deceive SAFE’s customers into switching to Alarm
Protection’s services. This suit and countersuit followed.
DISCUSSION
I. Jurisdiction
The Court has jurisdiction over Claim I pursuant to 28 U.S.C. § 1331 because it
arises under the Lanham Act, 15 U.S.C. § 1125. The Court has supplemental jurisdiction
over the remaining claims pursuant to 28 U.S.C. § 1367 because each arises from the
same transaction or occurrence as Claim I.4
3 See Docket 1. 	The operative complaint for this motion is the Amended Complaint at Docket
301, which maintains the same claims and allegations but added a new defendant.
4 The Court has insufficient information to determine the citizenship of the parties for diversity
purposes. Plaintiff is a limited partnership, but the Court cannot discern who its partners are and
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II. Standard for Summary Judgment
Federal Rule of Civil Procedure 56(a) directs a court to “grant summary judgment
if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” The burden of showing the absence
of a genuine dispute of material fact initially lies with the moving party.5 	And because
SAFE bears the burden of proof at trial, Alarm Protection may prevail at summary
judgment if it shows that “there is an absence of evidence to support [SAFE’s] case.”6
But “[i]t is not enough to move for summary judgment . . . with a conclusory assertion that
the plaintiff has no evidence to prove his case.”7 If Alarm Protection does meet its burden,
the burden then shifts to SAFE “to designate specific facts demonstrating the existence
of genuine issues for trial.”8
When considering a motion for summary judgment, a court must accept as true all
evidence presented by the non-moving party, and draw “all justifiable inferences” in the
non-moving party's favor.9 To reach the level of a genuine dispute, the evidence must be
such “that a reasonable jury could return a verdict for the non-moving party.”10 	If the
where they are citizens. 	Defendants are four LLCs, but the Court cannot discern who their
members are and where they are citizens.
5 Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
6 In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010).
7 Celotex, 477 U.S. at 328 (White, J., concurring).
8 Oracle, 627 F.3d at 387.
9 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citing Adickes v. S.H. Kress & Co.,
398 U.S. 144, 158–59 (1970)).
10 Id. at 248.
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evidence provided by the non-moving party is “merely colorable” or “not significantly
probative,” summary judgment is appropriate.11
III. Analysis
Defendants 	Alder 	Holdings, 	Alarm 	Protection 	Technology, 	Alarm 	Protection
Technology Alaska, and Alarm Protection Alaska (collectively, Defendants)12 move for
summary judgment to narrow and eliminate several of Plaintiff SAFE’s claims.
First, Defendants seek to limit all of Plaintiff’s claims to the fifty customers that
Plaintiff specifically identified in discovery.
Second, they seek summary judgment to limit Plaintiff’s Unfair Trade Practices Act
(UTPA) claim to alleged misrepresentations.
Third, they seek to eliminate Plaintiff’s Lanham Act and UTPA claims that are
based on (1) statements by Alarm Protection employees that Alarm Protection is “local”;
(2) statements that SAFE had service issues in Alaska; (3) statements that SAFE resisted
customers’ cancellation requests; and (4) statements that Alarm Protection was “wireless”
and “safer.” They thereby seek to limit SAFE’s Lanham Act and UTPA claim to allegations
that Alarm Protection employees falsely stated that SAFE had gone out of business and
that Alarm Protection had taken over SAFE’s accounts. They also seek to eliminate the
remaining Lanham Act claim for disgorgement on the grounds that SAFE has no evidence
11 Id. at 249.
12 The Court’s prior orders in this case referred to Defendants alternatively as “Alarm Protection”
or “APT” (and on more than one occasion, “ATP”). 	Defendants refer to themselves as Alarm
Protection, and so the Court will adopt that nomenclature going forward.
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of any specific revenues of Defendants tied to the customers to whom such statements
were made.
Fourth, Alarm Protection seeks summary judgment on SAFE’s trade secrets claim
on the grounds that SAFE has no evidence that Alarm Protection ever possessed SAFE’s
customer list, much less used it, and no evidence of damages arising from any such use.
Fifth, Alarm Protection seeks partial summary judgment on SAFE’s defamation per
se claim because Alarm Protection maintains that the claim is based primarily on
statements that cannot be shown to be false and statements that are expressions of
opinion. 	Alarm Protection asserts that the only defamation per se claim that should
survive summary judgment is that based on alleged statements that SAFE was going out
of business.
Sixth, Alarm Protection contends that the defamation per quod claim fail because
SAFE has no evidence of special damages.
Seventh, Alarm 	Protection 	seeks 	summary judgment on SAFE’s 	intentional
interference of contract claims on the grounds that SAFE’s contracts were unenforceable
under Alaska law and that SAFE cannot show that Alarm Protection’s alleged conduct
“engendered” the breach.
Eighth, Alarm Protection seeks summary judgment on the Lanham Act claim based
on Alarm Protection’s use of the word “safe” on its websites.
Ninth, and finally, Alarm Protection argues that because SAFE’s damages expert,
John Brady, has been excluded, SAFE cannot prove any damages at all.13
13 These nine points are summarized in Alarm Protection’s motion at Docket 351.
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The Court will address each of these contentions in turn.
A. Limiting the case to fifty customers
Alarm Protection contends that when the Court denied its motion to dismiss, it
required that SAFE “disclose, customer by customer, the allegedly improper statements
or conduct of Alarm Protection that SAFE intends to present at trial.”14 	And because
SAFE has only disclosed statements related to no more than fifty customers,15 Alarm
Protection argues that SAFE cannot recover damages or press any claims based on any
other customers.16 SAFE counters that it can prove a broader unfair practice based on
statements made to just a few customers, and that it need not present every statement
made to every customer that it claims was lost to Alarm Protection.17
The Court did state that it found “considerable merit in defendant’s observation
that there is an entitlement to have all of the statements identified that plaintiff has as the
basis for its cause of action to defendant,” and that the Court “would not anticipate or
expect there to be any other evidence of other statements made, other than that which
has been clearly disclosed in response to a discovery request.”18 The Court added that
“each side, to the extent it’s alleging defamation or other misstatements by the other side,
must identify each of those statements, to the extent requested in discovery, if that party
14 Docket 355 at 11.
15 The parties vigorously dispute the precise number of statements SAFE disclosed, see Docket
355 at 29; Docket 359 at 15; Docket 416 at 13, but the Court need not settle that dispute at this
juncture.
16 Docket 355 at 28–29.
17 Docket 393 at 10–11.
18 Docket 179 (Hr’g Tr.) at 6:7–16.
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intends to rely on those statements at trial.”19 The Court stands by those statements, but
it appears that Alarm Protection reads too much into them. 	The Court did not intend to
limit SAFE’s entire case to disclosed statements, but only to limit the evidence—that is,
the statements that the “party intends to rely on . . . at trial”—to disclosed statements.
Alarm Protection’s reply does not address SAFE’s legal argument that it could
prove a broader case based on a comparatively narrow group of customers. But Lanham
Act damages in particular need not be proven with specificity regarding each customer,
as a trier of fact may “accept ‘crude’ measures of damages based upon reasonable
inferences so long as those inferences are neither ‘inexorable . . . [nor] fanciful.’”20
Likewise, the UTPA prohibits “unfair or deceptive acts or practices.”21 Depending on the
evidence presented, the jury might reasonably infer from statements made to fifty former
SAFE customers that Alarm Protection engaged in a wider practice that was unfair under
the act.22 	The Court will not grant summary judgment limiting SAFE’s “case” to fifty
customers.
B. UTPA limited to representations
Alarm Protection seeks to eliminate, at summary judgment, the possibility of
liability under the UTPA based on certain alleged conduct. Specifically, Alarm Protection
19 Docket 179 at 6:25–7:3.
20 Skydive Ariz., Inc. v. Quattrocchi, 673 F.3d 1105, 1112 (9th Cir. 2012) (quoting Intel Corp. v.
Terabyte Int’l, Inc., 6 F.3d 614, 621 (9th Cir. 1993)) (omission and alteration in original).
21 AS 45.50.471(a).
22 The Court certainly does not mean to suggest that SAFE must or should present fifty witnesses.
Depending on the evidence presented at trial, a jury might be able to reasonably infer such a
practice from far fewer customers.
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argues that the UTPA does not impose liability for offers to pay cancellation fees,
preparation of cancellation letters, or preticketing.23
1. Cancellation Fees and Cancellation Letters
Alarm Protection contends that there is no evidence or authority that, standing
alone, the act of offering to pay a customer’s cancellation fee is an unfair or deceptive act
or practice under the UTPA. 	The practice alleged by SAFE, Alarm Protection asserts,
does not fall within the UTPA’s prohibition on using checks the cashing of which obligates
the recipient.24 And, Alarm Protection continues, there is simply no authority suggesting
that assisting a customer in terminating prior contracts is somehow unfair or deceptive.
SAFE responds that the practice is in fact deceptive. 	But SAFE’s evidence that the
practice is deceptive focuses on other deceptive actions taken in relation to the checks
and letters.25 The Court agrees with Alarm Protection that UTPA liability cannot be based
solely on the practice of assisting with cancellation or providing reimbursement. But the
Court recognizes that this practice was integrated into other alleged misconduct, and the
Court does not mean to suggest by this ruling that SAFE will not be permitted to present
evidence 	related 	to 	the 	predrafting 	of 	cancellation 	letters 	or 	offers 	to 	reimburse
cancellation fees.
23 See Docket 355 at 30.
24 See AS 45.50.471(53) (identify as an unfair practice “offering a check . . . if the cashing or
deposit of the check obligates the endorser or payee identified on the check to pay for goods or
services.”).
25 See Docket 393 at 25.
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2. Preticketing
On this point, Alarm Protection does not argue that its apparently “common
practice of including preprinted retail prices for equipment and services on its contracts”
and then reducing the prices as a matter of course is not deceptive.26 	Instead, Alarm
Protection contends only that “SAFE has no evidence of any specific customer that it lost
because of alleged ‘preticketing.’”27 SAFE points to deposition testimony from one former
SAFE customer who indicated that she understood the price reduction to be a “promotion”
whereby if she signed a contract with Alarm Protection she would be charged “a much
lower fee than they would normally charge.”28 Alarm Protection points to other aspects
of its products and services that were appealing to that customer, but these do not
conclusively establish that the “discount” was not a factor in that customer’s decision.29
A jury could reasonably infer from this evidence that Alarm Protection’s practices were a
proximate cause of this customer’s decision to leave SAFE.
C. Non-liability for certain statements
1. Statements that Alarm Protection is “local”
Alarm Protection contends that statements that it is a “local” company cannot be a
basis for Lanham Act or UTPA claims because, first, it is a true statement, and second,
26 Cf. AS 45.50.471(10) (identifying as unfair or deceptive the practice of “making false or
misleading statements of fact concerning the reasons for, existence of, or amounts of price
reductions”).
27 Docket 355 at 33.
28 Docket 404-11 (Olsen Dep.) at 27.
29 See Docket 416 (Reply) at 15.
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SAFE has no evidence of causation relating to these statements.30 SAFE counters that
even if Alarm Protection is in some sense a “local” company, the statement is still
potentially 	misleading 	to 	customers 	because 	much 	of 	Alarm 	Protection’s 	service
apparatus is located in Utah.31
SAFE points to the Second Circuit’s decision in Harsam Distributors, Inc. v. FTC,
which upheld an FTC cease-and-desist order when the distributor of a perfume made in
the United States using a French-made concentrate was advertised as “compounded in
France.” The Second Circuit reasoned that although the advertising “might well disclose
to those familiar with the manufacturing of perfume” that only the concentrate was from
France, “such specialized knowledge” could not be “imputed to the average purchaser.”
The Court of Appeals accordingly upheld the order, since the FTCA “was not made for
the protection of experts, but for the public.”32 	This is an older case, from a different
circuit, under a different statute. And yet the fundamental principle for which it stands—
that even true statements can be misleading or deceptive—carries over to this context.33
Whether Alarm Protection truly is “local,” whatever that term might mean, a reasonable
30 See Docket 355 at 34–35.
31 See Docket 393 at 23–24.
32 596 F.2d 396, 398 (2d Cir. 1959).
33 See 15 U.S.C. § 1125(a)(1) (providing for civil remedies against “any person who . . . uses in
commerce any . . . false or misleading description of fact” (emphasis added)); cf. POM Wonderful
LLC v. Coca-Cola Co., 134 S. Ct 2228, 2233 (2014) (holding that the FDCA did not bar a Lanham
Act claim alleging that a “Pomegranate-Blueberry” juice blend was misleadingly labeled because
it contained only 0.3% pomegranate juice and 0.2% blueberry juice).
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jury could conclude based on the proffered evidence of Alarm Protection’s corporate and
service structures that such assurances are “deceptive.”34
And one customer stated that the fact that Alarm Protection was based in Alaska
was a “major point for me,” and a point of contrast with SAFE when Alarm Protection’s
salesperson came by.35 This is sufficient evidence so as to preclude summary judgment
to Alarm Protection on causation.
2. Statements that SAFE had service issues in Alaska, resisted cancellation
requests or that Alarm Protection’s services were “wireless and safer”
Alarm Protection asserts that “claims based on alleged statements relating to
whether SAFE has ‘local service people,’ whether SAFE has ‘unscrupulous retention
practices,’ and whether Alarm Protection is ‘wireless and safer’ fail because these
statements are true and because SAFE cannot show any harm caused by them.”36 SAFE
does not address this argument in its opposition; the Court presumes therefore that it
lacks evidence of any harm caused by these statements.37
D. Disgorgement under the Lanham Act
Alarm Protection argues that SAFE cannot obtain disgorgement for two reasons.
First, Alarm Protection contends that SAFE cannot tie any revenues obtained by SAFE
34 See, e.g., Docket 431 (sealed conventional filing), Ex. 34 to Docket 401 (Kunst Decl.) at 10:30
(“I thought this was all out of Anchorage now.”); Docket 431, Ex. 35 to Docket 401 at 3:05 (“When
we put this [alarm system] in they said you guys were a local company . . . evidently you’re not.”);
35 Docket 431, Ex. 19 to Docket 401 at 1:24 (“When you guys came out and we changed to you
from the other one that we were with I got the impression that your services would be here in
Alaska . . . but that’s not the case, it’s from outside of Alaska.”)
36 Docket 355 at 35.
37 As discussed above, factual truth may not prevent a claim from being misleading.
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to the 19 specific customers Alarm Protection believes the claim should be limited to. The
Court has already rejected the contention that the Lanham Act claims must be limited to
a particular subset of customers, and so it rejects this ground. Second, Alarm Protection
contends that Alarm Protection’s incontrovertible evidence of its costs show that it did not
make any profit from its Alaska operations, including the customers that came from
SAFE.38
But the asserted “undisputed fact that there has been no profit in Alaska by Alarm
Protection” is, in fact, disputed. 	SAFE has shown evidence of revenues by Alarm
Protection.39 	As the parties agree, it is Alarm Protection’s burden, then, to negate that
profit by showing its expenses.40 But Alarm Protection has not demonstrated the absence
of a genuine dispute; the costs that it asserts negate any revenue were apparently
calculated by assigning some portion of Alarm Protection’s total costs nationally to
Alaska.41 One such cost was “residual override,”42 which was assigned based on some
percentage (the record excerpts do not disclose either the percentage or the basis for
that percentage) to Alaska, but Mr. DeMordaunt testified that he could not say whether
all Alaskan salespersons even received such payments.43 	Whether this assignment of
38 See Docket 355 at 36–37.
39 See Docket 404-4 (DeMordaunt Dep. Ex. 367) at 8–10.
40 See 15 U.S.C. § 1117(a) (“In assessing profits the plaintiff shall be required to prove defendant’s
sales only; defendant must prove all elements of cost or deduction claimed.”).
41 See Docket 404-4 at 5–6
42 The record does not explain what a “residual override” is, but it likely refers to recurring
commission payments, akin to a “residual payment.”
43 Docket 404-4 at 5.
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costs to Alaskan operations is accurate is subject to dispute; summary judgment is not
warranted.
E. Trade Secrets Claim
SAFE’s trade secret claim requires proof of three elements. SAFE must show that
(1) SAFE’s trade secret was (2) misappropriated by Alarm Protection, (3) causing
damages to SAFE or unjust enrichment of Alarm Protection.44 Alarm Protection contends
that SAFE cannot prove any of these elements.
1. Trade Secret
“A trade secret misappropriation claim cannot be established unless the plaintiff
had a trade secret that was communicated to the defendant in circumstances giving rise
to a duty of secrecy.”45 A trade secret is information that “derives independent economic
value, actual or potential, from not being generally known to, and not being readily
ascertainable by proper means by” an entity’s competitors and also “is the subject of
efforts . . . to maintain its secrecy.”46 This two-part test requires, first, that the information
is “worthy of being kept secret,” and second, that it was “actually kept secret.”47 	To
answer the first inquiry, a court considers, among other factors, “the amount of effort or
44 See Powercorp Alaska, LLC v. Alaska Energy Auth., 290 P.3d 1173, 1187 (Alaska 2012), as
amended on reh'g (Jan. 7, 2013); AS 45.50.915(a).
45 Powercorp, 290 P.3d at 1187.
46 AS 45.50.940(3).
47 Powercorp, 290 P.3d at 1187.
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money expended by [the business] in developing the information,” and “the ease or
difficulty with which the information could be properly acquired or duplicated by others.”48
In Alarm Protection’s view, the identity of SAFE’s customers cannot be a trade
secret because that information is not kept secret—SAFE customers put a SAFE sign in
their yards—and therefore anyone may properly acquire the information simply by looking
for SAFE signs in people’s yards.
So far as the Court can discern, and the parties have not indicated otherwise, the
Alaska Supreme Court has given no guidance on the circumstances in which a customer
list, standing alone, is a protectable trade secret.49 It may well be within a jury’s common
experience that people who have already purchased a type of product or service are
generally more likely to purchase that same type of product in the future. 	A cigar
salesman may always be on the lookout for new customers, but he will likely sell more
cigars to someone who already smokes them. A list of people that are currently paying
for alarm services—and thus apparently value the service—would be valuable to
someone trying to sell those services because the salesperson could concentrate her
time and energy on those prospective customers most likely to become actual customers.
The customer list is not just a collection of people and their contact information, but a
collection of people who are likely to buy certain services.
But different customer lists have different value. 	In this regard, the California
Supreme Court has differentiated between customer lists in the “retail delivery route”
48 Powercorp, 290 P.3d at 1187 (quoting Secure Energy, Inc. v. Coal Synthetics, LLC, 708 F. Supp.
2d 923, 926 (E.D. Mo. 2010)) (alteration in original).
49 See, e.g., Docket 355 at 38 n.166.
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industry, such as for the provision of pick-up/delivery laundry services, and customer lists
in the building maintenance industry. In the first industry, “[t]he names of the customers
of a business concern whose trade and patronage have been secured by years of
business effort and advertising, and the expenditure of time and money” and are thus
protectable trade secrets.50 But in the second industry, building maintenance, a customer
list is not as valuable because prospective customers “are commonly known to the trade
or may easily be discovered through business directories or by observation.”51
Alarm Protection’s view is that SAFE’s customer list could be obtained in large part
simply by driving around Alaskan neighborhoods looking for SAFE signs. SAFE responds
that given the wide distribution of its customers, this was not truly feasible.52 But while it
might not be easy to compile such a list, the Court finds that the customer list, standing
alone, appears to be ascertainable “by observation,” since SAFE’s customers display
their affiliation with SAFE by signs in their front yards, and that the list of customers, by
itself, is thus not a protected trade secret.
However, SAFE claims trade secrets broader than just the identity of its customers.
It asserts that valuable information includes of “a combination of [the customers’]
identities, their contract information, and their type of equipment.”53 SAFE has produced
evidence—admittedly 	disputed—that 	Alarm 	Protection 	personnel 	had 	this 	type 	of
50 See Empire Steam Laundry v. Lozier, 130 P. 1180, 1183 (Cal. 1913) (quoting Witkop & Holmes
Co. v. Boyce, 112 N.Y.S. 874, 878 (N.Y. Sup. Ct. 1908)).
51 Aetna Bldg. Maint. Co. v. West, 246 P.2d 11, 15 (Cal. 1952).
52 See Docket 393 at 31; and Docket 402 Exhibits B–J (maps showing cross-over customers).
53 Docket 393 at 26.
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information.54 Alarm Protection maintains that this information is easily gathered “through
multiple proper means including neighbors, signs, and the customers themselves.”55 But
obtaining information by questioning people with a SAFE sign in their yard about their and
their neighbors’ contracts is a far greater undertaking than simply driving neighborhoods
with a clipboard. 	This type of detailed information is precisely the type of customer
information that courts routinely consider a trade secret.56
2. Misappropriation
The trade secret claim requires SAFE to prove “misappropriation,” which means
the “acquisition of a trade secret of another by a person who knows or has reason to know
that the trade secret was acquired by improper means” or the “use of a trade secret of
another without express or implied consent by a person who [] used improper means to
acquire knowledge of the trade secret.” The Alaska statute defines “improper means” to
include “breach or inducement of a breach of a duty to maintain secrecy.”57
Alarm Protection presents evidence in the form of two (essentially identical)
declarations by its employees who attest that they did not use any confidential information
obtained from SAFE or Pinnacle.58 	Alarm Protection is correct that SAFE has not
54 E.g., Docket 401-1 at 6 (Schanz Dep.) (discussing SAFE’s equipment’s cellular technology);
Docket 431 (sealed conventional filing), Ex. 44 to Docket 401 (Kunst Decl.) at 8:45 (customer
explaining that his buyout amount has “been explained to me as 225 dollars, otherwise I have no
clue”).
55 Docket 355 at 39.
56 Cf. W. Medical Consultants, Inc. v. Johnson, 80 F.3d 1331, 1337–38 (9th Cir. 1996) (discussing
distinctions for trade secret designation for different types of customer information).
57 See generally Powercorp, 290 P.3d at 1190 (quoting AS 45.50.940).
58 See Docket 364 (Valentine Decl.) at 3 ¶¶ 7–8; Docket 366 (Jesclard Decl.) at 3, ¶¶ 7–8.
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presented 	any 	direct 	evidence—such 	as 	testimony 	from 	those 	same 	or 	other
employees—that Alarm Protection personnel were using proprietary information. 	But
SAFE has compelling circumstantial evidence: First, both of those employees were
previously employed by Pinnacle.59 	Second, these employees knew details about
customer’s contracts that were not readily ascertainable.60 Third, SAFE lost nearly 258
customers it acquired from Pinnacle to Alarm Protection within months of acquiring
them.61
While this is all circumstantial evidence, it is nonetheless substantial evidence. If,
at trial, the jury disbelieves the employees’ testimony,62 and accepts SAFE’s evidence
offered above, it could reasonably conclude that these employees had proprietary
information about SAFE’s customers and their contracts and used this information in their
solicitation of those customers.
59 See Docket 404-1 at 67–68 (Jesclard Dep.); Docket 404-14 at 149 (Valentine Dep.).
60 See Docket 404-1 at 578, Ex. 44 (audio recording) at 8:45 (buyout amount); Docket 404-5
(Withrow Dep.) at 7 (stating that Alarm Protection’s sales representative had a copy of Withrow’s
Pinnacle contract). Alarm Protection contends that Withrow rescinded this statement, see Docket
355 at 41, but while Mr. Withrow did caveat that he wasn’t sure the document was his contract,
he did testify that he saw a document in the sales representative’s notebook containing the
Pinnacle heading, see Docket 362-8 at 10.
61 See Docket 404-16 (identifying cross-over customers).
62 The Court notes Sarah Ratcliffe’s declaration stating that all SAFE customers received the
same SAFE sign at approximately the same time. Docket 403 at 3, ¶ 11. This would seem to
undermine the employees’ statements in their own declarations that they could discern contract
age and equipment type from the age of the sign. See Docket 364 at 2, ¶ 4; Docket 366 at 2, ¶ 4.
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3. Causation and Damages
SAFE can recover on its trade secret claim only if it establishes damages or unjust
enrichment were caused by the misappropriation.63 Alarm Protection contends that SAFE
has “no evidence or expert testimony as to damages allegedly arising from any
misappropriation.”64 But this is not a complex medical or scientific case that would require
SAFE to produce an expert to establish legal or proximate causation; summary judgment
on this basis is unwarranted. 	And specifically with respect to the determination of the
amount of damages, the Court declines to grant summary judgment on this issue to Alarm
Protection. While SAFE will be required at trial to prove its damages by a preponderance
of the evidence, it has presented sufficient evidence of some damage, albeit disputed, to
survive summary judgment.65
F. Defamation Per Se
SAFE’s 	defamation 	per 	se 	claim 	requires 	showing 	that 	Alarm 	Protection
negligently made a false statement about SAFE’s business to third parties, that those
third parties would understand the statements to be about SAFE, and that the statement
was “so unambiguous as to be reasonably susceptible of only one interpretation—that is,
one which has a natural tendency to injure another’s reputation.”66
63 AS 45.50.915(a).
64 Docket 355 at 43.
65 Cf. Total Care Physicians, P.A. v. O'Hara, 2003 WL 21733023 at *3–4 (Del. Super. Ct. July 10,
2003).
66 Greene v. Tinkler, 332 P.3d 21, 39 n.72 (Alaska 2014) (quoting Alaska Statebank v. Fairco, 674
P.2d 288, 295 n.15 (Alaska 1983)).
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Alarm Protection argues that many of the statements it is alleged to have made
cannot support this claim. 	In Alarm Protection’s view, only the alleged statements that
“SAFE is going out of business or is out of Alaska” could support a defamation per se
claim.67 SAFE argues that statements that SAFE has “no service people in Alaska” are
also defamatory per se. The Court agrees, as having no personnel in Alaska would imply
that SAFE was unable to service its alarms in Alaska, which if true would “adversely affect
[SAFE’s] fitness for the proper conduct of [its] lawful business, trade, or profession.”68 But
Alarm Protection responds that this statement was true. Alarm Protection has presented
substantial evidence that indicates SAFE service technicians were unavailable in many
areas.69 And SAFE has not pointed the Court to any evidence to demonstrate a genuine
dispute on this topic.70 	Accordingly, the Court concludes that Alarm Protection is entitled
to summary judgment on SAFE’s defamation claims based on statements that SAFE did
not have service people in Alaska.
Alarm Protection also argues that SAFE’s recovery must be limited to damages
related to the specific customers and statements that SAFE has identified. 	SAFE
counters that the jury can infer that the statements were made to all of SAFE’s customers
that it lost to Alarm Protection.71 SAFE cites to a Fifth Circuit case for this proposition.72
67 Docket 355 at 45–46.
68 Greene, 332 P.3d at 39 (quoting Restatement (Second) of Torts § 573).
69 See, e.g., Docket 362-2 at 6, 8, 12, 15
70 See Docket 393 at 35–36 (discussing this issue).
71 See Docket 393 at 36.
72 Docket 393 at 36 (citing College Network, Inc. v. Moore Educ. Publishers, Inc., 378 Fed. App’x
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In that case there was evidence that the person responsible for training the salespersons
told all the salespersons to tell potential customers that the competitor was going out of
business,73 and several of those salespersons testified that they did make the statements,
including one who testified that she made the statements to hundreds of potential
customers.74
In SAFE’s motion for summary judgment, which this order does not directly
address, it argued that Alarm Protection could not prove damages arising from any
defamation because each of the customers to whom SAFE allegedly defamed Alarm
Protection is still an Alarm Protection customer.75 In response, Alarm Protection argued
that it could present the recordings of the statements made to these four customers and
the jury could infer from those statements that SAFE had made the same statements to
others.76 Alarm Protection has not explained its apparent inconsistency on this issue.77
Given Alarm Protection’s view in support of its own defamation claims, the Court will deny
its motion for summary judgment on this issue.
403, 405 (5th Cir. 2010)).
73 College Network, 378 Fed. App’x at 405.
74 Id. at 410.
75 Docket 339 at 17–18.
76 See Docket 396 at 8–9.
77 Alarm Protection points out that SAFE had to circulate a policy memorandum reminding its
employees not to make such statements. 	See Docket 396 at 8. 	But Alarm Protection began
asking new customers whether its salespersons had suggested SAFE was going out of business.
See Docket 401-1 at 578 (Ex. 44) (audio recording) at 8:16 (“Did your security consultant at any
time state or imply that SAFE has gone or is going out of business?”).
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G. Defamation Per Quod
Alarm Protection contends that SAFE’s defamation per quod claims—claims for
which SAFE must show specific damages caused by the statements—also fail for various
reasons. Chief among them for purposes of this order is that SAFE does not demonstrate
any triable issues of fact as to this claim except as to statements that indicated that SAFE
was going out of business.78 As discussed above, the Court agrees, and will grant partial
summary judgment to Alarm Protection on SAFE’s defamation claims—per se and per
quod—and will allow those claims to proceed only with respect to the alleged statements
that SAFE was going out of business.
H. Intentional Interference with Contract
The parties agree that the elements of SAFE’s contract interference claims are
(1) the existence of a contract; (2) the defendant’s awareness of the contract; (3) breach
of the contract; (4) causation; (5) damages; and (6) the defendant’s actions were not
privileged.79 Alarm Protection asserts that SAFE cannot show the existence of a contract,
causation, damages, or lack of privilege.
1. Existence of a contract
Alarm Protection claims that the contracts Pinnacle first obtained violated Alaska
law governing the revocation period for door-to-door sales because they did not provide
written notice of the statutory five-day right of rescission.80 	Alarm Protection’s attorney
78 See Docket 393 at 35–37.
79 See Docket 355 at 47; Docket 393 at 32. Both parties cite to Kinzel v. Discovery Drilling, Inc.,
93 P.3d 427, 443 (Alaska 2004).
80 See Docket 355 at 47–48 (citing AS 45.02.350).
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stated in his declaration that he “personally reviewed every Pinnacle contract,” that
“[e]ach of these contracts produced by SAFE in this matter contain a three day right of
rescission,” and that he had “not seen a single Pinnacle contract produced by SAFE in
this matter that contains a five day right of rescission.”81 Given the declarant’s certainty
and asserted thoroughness, the Court was truly surprised to find that the very first contract
in the supporting exhibit contained a five-day right of rescission.82 So does the third.83 In
SAFE’s opposition it attached forty more.84 	The Court also notes that at least some of
the forms containing three-day rights of rescission terms are for commercial premises,85
to which the applicable statute does not apply.86 Given that the available evidence does
not remotely support Alarm Protection’s contention that “every single Pinnacle contract at
issue lacks a five-day rescission term,”87 the Court will not grant summary judgment to
Alarm Protection on this issue.
Moreover, as SAFE points out in opposition, Alarm Protection is not permitted to
wrongfully interfere with a contract merely because the contract may be voidable by one
81 Docket 362 (Hull Decl.) at 4, ¶ 20.
82 Docket 362-9 at 1.
83 Docket 362-9 at 4. The second and the fourth contract are actually the same contract, compare
Docket 362-9 at 2 with Docket 362-9 at 6, and were made with the same person who also signed
the first and third contract, which contained the five-day right of rescission, on the same day.
84 See Docket 404-17.
85 Docket 362-9 at 10–11.
86 See AS 45.02.350(c)(5).
87 Docket 355 at 48.
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of the parties to it.88 	Alaska law provides that a contract “for the purchase of goods or
services . . . from a person soliciting a door-to-door sale shall require, as a condition of
taking effect, that the purchaser may revoke the offer to buy within five business days of
entering into the contract, and that the seller, at the time of the sale, give the purchaser
written notice of the right to revoke.”89 The parties have pointed to no cases interpreting
this statute, and the Court discovered none on its own, but the Court finds it unlikely that
the Alaska legislature intended this statute to give a third party, such as Alarm Protection,
the right to wrongfully interfere with a contract that fails to provide such written notice. It
is a consumer protection statute, and consumers are not protected by a competitor’s
wrongful interference with their existing arrangements.
2. Causation
For its intentional interference with contract claim, SAFE must prove that Alarm
Protection’s wrongful conduct was a “material and substantial” cause of the breach of
contract.90 Alarm Protection asserts that SAFE cannot prove this element because “there
is evidence before the Court showing that many customers in Alaska were cancelling
because of bad service or for many other reasons,” and that “SAFE lacks evidence
demonstrating that this alternative causation is not the cause of customers leaving.”91 In
Knight, the case on which Alarm Protection relies, the contract at issue was terminated
88 See Docket 393 at 33 (citing Restatement (Second) of Torts § 766 cmt. f).
89 AS 45.02.350(a).
90 Knight v. Am. Guard & Alert, Inc., 714 P.2d 788, 794 (Alaska 1986).
91 Docket 355 at 48.
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before the alleged interferer had even communicated with the breaching party. 	Thus,
necessarily, that communication could not have been a cause of the breach.92
The evidence as to the cause of cancellations is far from undisputed, and summary
judgment on this basis is unwarranted.
3. Damages
Alarm Protection asserts that SAFE cannot show any damages from any alleged
interference. 	But if SAFE shows that Alarm Protection caused its customers to breach
their contracts, then SAFE has been damaged to the extent of the breach—the loss of
the benefits of the contract or other consequential harms.93 Alarm Protection may argue
that these damages are small, or mitigated by buy-out amounts, but they are not entitled
to summary judgment on SAFE’s damages: the contracts themselves are evidence of a
possible measure of damages.
4. Privilege
“The sixth element of the intentional interference tort, that the interferer’s conduct
not be privileged, is troublingly vague.”94 But as Alarm Protection recognizes, SAFE can
prevail on this element by showing that “Alarm Protection used improper means to
achieve its objective.”95 Alarm Protection asserts that “the only possible ‘improper means’
arguably identified by SAFE are the alleged torts that SAFE brings as independent causes
92 Knight, 714 P.2d at 793.
93 See Restatement (Second) of Torts § 774A(1).
94 RAN Corp. v. Hudesman, 823 P.2d 646, 648 (Alaska 1991).
95 Docket 355 at 48 (citing Alaska Civil Pattern Jury Instr. 19.03).
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of action,” and that if those claims are dismissed, so must SAFE’s tortious interference
claim.96 This is not self-evident; some of SAFE’s claims may fail for reasons independent
of the “properness” of Alarm Protection’s conduct. 	For example, statements that Alarm
Protection was taking over SAFE may not be defamatory, but they still might give rise to
an intentional interference claim. 	In any event, for the reasons given above, the Court
will not grant summary judgment to Alarm Protection on all of SAFE’s claims, and thus,
Alarm Protection is not entitled to summary judgment on the intentional interference claim
on this basis.
SAFE is also correct that “spite, malice, or some other improper objective” become
relevant only after it is established that Alarm Protection had a “direct financial interest”
in the contract.97 	In its reply brief, Alarm Protection cites the Alaska Pattern Jury
Instructions and the Restatement (Second) of Torts to argue that a competitor has a
sufficient interest to privilege interference. But as the pattern jury instructions recognize,
Alaska courts have thus far recognized only two valid interests: direct economic interests
and safety interests. Competition is not a direct economic interest under Alaska law. In
Bendix, the interfering party was a parent company of the breaching party.98 	In RAN
Corp., the interfering party was the landlord of the party attempting to assign a lease.99
And in Kinzel, the interfering party was the primary contractor allegedly interfering with a
96 Docket 355 at 49.
97 RAN Corp., 823 P.2d at 648 (citing Bendix v. Adams, 610 P.2d 24, 31 (Alaska 1980)) (emphasis
added).
98 See id. at 649.
99 Id. at 649.
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contract of its subcontractor.100 	In each case, the interfering party had a preexisting
interest in the subject of the contract.101
As Alarm Protection implicitly recognizes in its reply brief, the fact that Alarm
Protection has a competitor’s interest merely reverts to the question of whether the
“means were wrongful”—that is, that Alarm Protection used “improper means.”102 Alarm
Protection does not have a “direct” financial interest in the contracts at issue here, and
thus SAFE is not required to show “spite, malice, or some other improper objective.”103
I. Website-based Lanham Act Claim
SAFE’s Lanham Act claim includes an allegation that one of Alarm Protection’s
websites, www.aptsafe.com, infringed on SAFE’s trademark and that Alarm Protection’s
primary website infringed on the same trademark by using the word “safe” in text
describing Alarm Protection’s services and in its metadata.104 	Alarm Protection argues
that there is no evidence of a likelihood of consumer confusion to support this claim, and
that SAFE cannot show irreparable harm sufficient to award an injunction or any profits
sufficient to award disgorgement.
100 Kinzel, 93 P.3d at 444.
101 The Court also notes that Alarm Protection’s position on this issue with regard to this motion is
in some tension with the position it takes in its opposition to SAFE’s motion for partial summary
judgment. See Docket 396 (Alarm Protection’s Opp. to SAFE’s Mot. for Summ. J.) at 19.
102 See Docket 416 at 23.
103 See Restatement (Second) of Torts § 768.
104 See Docket 301 (FAC) at 5, ¶ 16(a).
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1. Likelihood of Confusion
Likelihood of confusion turns on the eight Sleekcraft factors: (1) the strength of the
mark; (2) relatedness of the companies’ services; (3) similarity of the marks; (4) evidence
of actual confusion; (5) marketing channels used; (6) the degree of care likely to be used
by purchasers; (7) the defendant’s intent in selecting the mark; and (8) likelihood of
expansion into other markets.105 None of these factors is dispositive, and the list is not
exhaustive. 	Indeed, the factors are “not meant to be requirements that a district court
need jump through to make the determination” that there is a likelihood of confusion.
Alarm Protection contends that only one of these factors—the relatedness of the
companies’ services—weighs in favor of SAFE’s claim, and that therefore summary
judgment is appropriate.106 SAFE argues that other factors either do in fact weigh in its
favor or else are subject to a factual dispute precluding summary judgment.107
The Court first notes that although Alarm Protection’s general argument is based
on its websites, there are in fact three distinct claims here. First, there is the claim as it
relates to the domain name www.aptsafe.com. Second, there is the claim based on the
use of the word “safe” in textual sentences on Alarm Protection’s website. Third, there is
a claim based on the use of the word “safe” in Alarm Protection’s website metadata.
105 See GoTo.com, Inc. v. Walt Disney Co., 202 F.3d 1199, 1205 (9th Cir. 2000) (citing AMF, Inc.
v. Sleekcraft Boats, 599 F.2d 341, 348 (9th Cir. 1979)).
106 Docket 355 at 50.
107 Docket 393 at 39–41.
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As to the domain name, the Court agrees with SAFE that this issue is inappropriate
for summary judgment.108 The fundamental question a jury is charged with deciding in a
Lanham Act trademark infringement claim is whether “the defendant used [the plaintiff’s
mark or a mark similar to the plaintiff’s mark] without the consent of the plaintiff in a
manner that is likely to cause confusion among ordinary consumers as to the source,
sponsorship, affiliation, or approval of the goods.”109 Although the jury will be instructed
to consider several factors, “[t]he list of factors is not a score-card—whether a party ‘wins’
a majority of the factors is not the point.”110 Accordingly, the jury will also be instructed
that “[t]he presence or absence of any particular factor . . . should not necessarily resolve
whether there was a likelihood of confusion, because you must consider all relevant
evidence in determining this.”111
The Court finds that a reasonable jury could conclude that consumers would likely
be confused by Alarm Protection’s use of the www.aptsafe.com domain name. Especially
in conjunction with evidence suggesting that at least some former SAFE customers—now
Alarm Protection customers—were confused about the affiliation between SAFE and
108 See JL Beverage Co., LLC v. Jim Beam Brands Co., 828 F.3d 1098, 1105 (9th Cir. 2016)
(“Because the determination is based on a non-exhaustive, multi-factor, fact-intensive inquiry, we
have cautioned against granting summary judgment in these cases.”); Clicks Billiards, Inc. v.
Sixshooters, Inc., 251 F.3d 1252, 1265 (9th Cir. 2001) (noting that likelihood of confusion is an
inherently factual question rarely decided on summary judgment).
109 Ninth Cir. Model Jury Instr. 15.6.
110 Thane Int'l, Inc. v. Trek Bicycle Corp., 305 F.3d 894, 901 (9th Cir. 2002).
111 Ninth Cir. Model Jury Instr. 15.6; see also Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d
625, 631 (9th Cir. 2005) (“The test is a fluid one and the plaintiff need not satisfy every factor,
provided that strong showings are made with respect to some of them.”).
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Alarm Protection,112 the jury might conclude that an ordinary consumer faced with this
information might perform a quick search on his or her smart phone, for example, and
find this domain name to indicate that, indeed, the two companies were affiliated.
Contrary to Alarm Protection’s assertion that “there is no evidence whatsoever that Alarm
Protection uses the term ‘safe’ to identify its product or company,” the use of the word
“safe” in the website’s domain name, next to Alarm Protection’s own commonly used
abbreviation, may do exactly that.113 	And as Alarm Protection recognizes, the two
companies offer identical services. Given that at least two factors weigh at least generally
in SAFE’s favor, the Court will not grant summary judgment on this issue.
Unlike the allegations related to the domain name, the mark "safe" as used on
Alarm Protection’s website in text describing its services is not sufficiently similar to
SAFE’s mark “SAFE.” 	Given that the only factor that clearly weighs in SAFE’s favor is
the fact that it competes with Alarm Protection, the Court concludes that no reasonable
jury could find for SAFE on this aspect of the website claim. The Court will therefore grant
summary judgment in favor of Alarm Protection on this issue.
112 See, e.g., Docket 431, Exhibit 20 to Docket 401 at 3:13 (“I can’t remember exactly when the
guy showed up here that day, said they’d bought out SAFE or whatever. Did you guys buy out
SAFE or what? . . . What caused me to get my system changed here? . . . I got the impression
the day that the guy showed up here, I mean he just out of the clear blue sky walked in here one
day and says, you know, we’re taking over the system here and I figured well he’s buying, they
bought it out.”).
113 Cf. Brookfield Commc’ns, Inc. v. West Coast Ent’t Corp., 174 F.3d 1036, 1055 (9th Cir. 1999)
(noting that capitalization is “inconsequential in light of the fact that Web addresses are not caps-
sensitive” and that “moviebuff.com” is “essentially identical” to the mark “MovieBuff”).
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Finally, with regard to the metadata, the Court will deny the motion for summary
judgment without prejudice to renew following the Court’s adjudication of the motion
regarding SAFE’s expert witness Glen Klinkhart.114
2. Evidence of Irreparable Harm
There is no real denying that SAFE has lost market share to Alarm Protection, at
least in Alaska. SAFE has not shown that any portion of this has been specifically caused
by Alarm Protection’s website, but the use of the website is, according to SAFE, merely
a part of an overall scheme to create customer confusion. 	The Court will determine
whether the equitable remedy of an injunction is warranted at the appropriate time, after
trial has established the relevant facts.
3. Evidence of Profits
Alarm Protection argues that SAFE cannot show that any of its lost customers are
“attributable to the infringing conduct” on the website.115 SAFE did not directly respond
to Alarm Protection’s argument that SAFE cannot point to revenue or profits related
directly to Alarm Protection’s website. SAFE still has a broader Lanham Act claim, and,
as discussed above, has met its burden for purposes of summary judgment to show some
revenues with regard to that claim.116 In Lindy Pen Co. v. Bic Pen Corp., the district court
concluded that there was no likelihood of confusion arising from the defendant’s use of
114 See Docket 298 (Alarm Protection’s Mot. Under Rule 702 to Exclude Expert Testimony of Glen
Klinkhart).
115 Docket 355 at 56 (quoting Cascade Yarns, Inc. v. Knitting Fever, Inc., 2015 WL 3407882 at *5
(W.D. Wash. May 27, 2015)).
116 See supra Section III.D.
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the plaintiff’s mark except in “telephone order sales.”117 But the Ninth Circuit affirmed the
district court’s conclusion that the plaintiff was not entitled to damages because it had
failed to separate out that portion of the defendant’s sales that could be attributed to
telephone sales. 	Similarly, SAFE has offered no evidence that would attribute any
subsection of the customers Alarm Protection gained from SAFE to Alarm Protection’s
website. The Court finds that no claim for either unjust enrichment or actual losses can
be based on the website.
J. Inability to prove damages
Alarm Protection contends, finally, that having excluded SAFE’s damages expert,
John Brady, SAFE cannot prove any damages.118 SAFE counters that “the Ninth Circuit
has expressly rejected the assertion that expert testimony is required to establish
damages under the Lanham Act.”119 The Court agrees with SAFE. In Skydive Arizona,
Inc. v. Quattrocchi, the Ninth Circuit affirmed a damages award even in the absence of “a
specific mathematical formula for the jury to use in calculating actual harm” to the
plaintiff.120 The Circuit Court noted that there was ample non-expert evidence relating to
“the original value of [the plaintiff’s] goodwill” and that the damages section of the Lanham
Act “demands neither empirical quantification nor expert testimony to support a monetary
award of actual damages” because “many sources can provide the requisite information
117 Lindy Pen Co. v. Bic Pen Corp., 982 F.2d 1400, 1404 (9th Cir. 1993) overruled on other
grounds, SunEarth, Inc. v. Sun Earth Solar Power Co., 839 F.3d 1179 (9th Cir. 2016).
118 Docket 355 at 57.
119 Docket 393 at 11.
120 673 F.3d 1105, 1112 (9th Cir. 2012).
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upon which a reasonable jury may calculate damages.”121 SAFE seeks to recover under
the same statute, and the Court can discern no reason to hold a Lanham Act plaintiff to a
higher standard when the claim rests on general unfair trade practices or trademark
infringement, as opposed to false advertising.
CONCLUSION
For the foregoing reasons, IT IS ORDERED that Alarm Protection’s Motion for
Summary Judgment at Docket 351 is GRANTED IN PART and DENIED IN PART.
The motion is GRANTED as follows:
- 	Alarm Protection’s alleged use of cancellation letters and buy-out
checks cannot form the basis of SAFE’s Lanham Act or UTPA claims.
- 	Alarm Protection’s alleged statements relating to SAFE’s service issues
or SAFE’s alleged practice of resisting cancellation requests cannot
form the basis of SAFE’s Lanham Act or UTPA claims.
- 	Alarm Protection’s alleged statements that its services are “wireless”
and “safer” cannot form the basis of SAFE’s Lanham Act or UTPA
claims.
- 	Only Alarm Protection’s alleged statements that SAFE was going out of
business can form the basis of SAFE’s defamation claims.
- 	Alarm Protection’s use of the word “safe” on its website in text describing
its services cannot support SAFE’s Lanham Act claim.
- 	A Lanham Act violation arising from Alarm Protection’s website, if there
is one, cannot be the basis of SAFE’s damages or lost profits.
The motion for summary judgment is denied in all other respects. 	Following the
Court’s determination of Alarm Protection’s motion at Docket 298 regarding the testimony
121 Id. at 1112–13 (citing 22 U.S.C. § 1117).
Case 3:13-cv-00102-SLG Document 520 Filed 02/03/17 Page 32 of 33

Case No. 3:13-cv-00102-SLG, SAFE v. Alarm Protection, et al.
Order re Defendants’ Motion for Summary Judgment
Page 33 of 33
of Glen Klinkhart, Alarm Protection may move to renew the motion for summary judgment
solely with regard to claims based on website metadata.
DATED this 3rd day of February, 2017 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
Case 3:13-cv-00102-SLG Document 520 Filed 02/03/17 Page 33 of 33