Distefano et al v. Nordic Consulting Partners, Inc.

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
_________________________________________________________________________________
JOHN C. DISTEFANO and
goDESK, LLC,
Plaintiffs, OPINION and ORDER
v. 23-cv-657-wmc
NORDIC CONSULTING PARTNERS, INC.,
Defendant.
_________________________________________________________________________________
This case arises out of a dispute over the ownership of a healthcare software platform
known as “Wellward.” Plaintiffs John Distefano and his company, goDesk, LLC, claim
that Wellward was created using intellectual property that Distefano brought to defendant
Nordic Consulting Partners, Inc. under an oral agreement with Nordic though its CEO,
which allowed Distefano to retain ownership and control of the platform, even as Nordic’s
personnel coded, developed and marketed it. In contrast, defendant Nordic maintains that
its personnel created the Wellward platform under several, written agreements with
plaintiffs, and as a result, Nordic owns the platform and associated intellectual property
rights. Plaintiffs assert several contract-based and copyright claims against Nordic, while
Nordic has counterclaimed for fraudulent misrepresentation and breach of contract against
Distefano, as well as an indemnification claim against goDesk.
Before the court is Nordic’s motion for summary judgment as to all of plaintiffs’
claims. (Dkt. #138.) Based on the record at summary judgment, the court agrees no
reasonable jury could find that Distefano and Nordic formed any oral contract, much less
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one not fully superseded by subsequent writings, nor find that Nordic breached any written
contract with plaintiffs. Rather, the undisputed factual record establishes that what
Distefano brought to Nordic was the concept of a digital health platform for which he had
not yet developed any computer code or useable, marketable software. While Nordic
concedes Distefano’s ongoing right to use his original concept, the record further
establishes that the digital healthcare platform eventually named Wellward was coded and
developed by Nordic using Distefano’s original concept, actually incorporated software
already owned and developed by Nordic, and went far beyond Distefano’s original
schematics. Moreover, under the written terms of the agreements between the parties, a
reasonable jury would have to find that Nordic owns the Wellward software platform,
along with the intellectual property developed while plaintiffs were working with Nordic.
Accordingly, Nordic’s motion for summary judgment will be granted in full.
UNDISPUTED FACTS1
A. Distefano’s Initial Concept for a Healthcare Digital Software Platform
Plaintiff Distefano is a healthcare consultant, as well as an owner and sole employee
of plaintiff goDesk, LLC, which contracts out his health technology consulting services. At
least on paper, Distefano’s wife holds 51% of the stock in goDesk in her name, while
Distefano himself holds 49% in his name. In 2019, Distefano began working on a digital
health software platform that was intended to educate and motivate consumers to engage
1 The following findings of fact are undisputed unless otherwise noted. The facts are drawn from
the parties’ proposed findings of fact and responses, as well as the underlying evidentiary record
where appropriate.
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in healthy behaviors, such as nutrition, diet and exercise. Distefano also contemplated
that his digital health platform would be available on the internet and mobile device apps.
Beginning in August 2019, Distefano began converting his ideas into “documents,
schematics and designs.” By May 2020, Distefano had created between 40 and 60 such
documents, many purportedly containing numerous schematics, technical requirements
and specifications. According to Distefano, he also had converted some documents into a
“computer format,” but had not written any code using traditional computer language.
(Distefano dep. (dkt. #137) 30.) Although plaintiffs state that Distefano created
documents containing “hundreds” of schematics and designs, the only tangible evidence of
such documents are those documents for which Distefano eventually obtained copyright
protection. Plaintiffs have not produced any other, pre-Nordic documents, despite
Distefano testifying at his deposition that the computer on which all but one or two of the
documents were stored was in his possession. (Id. at 31–32.) Those one or two documents
were purportedly “transaction flow documents” that were stored on an external hard drive
that Distefano lost. (Id. at 31–34.)
Also in 2019, a technology company, Interactive Communications (“InComm”),
approached Distefano to consult on ways to monetize the large amounts of consumer data
that company had amassed through its existing networks and technologies. Before
Distefano started officially consulting with InComm, Distefano decided that InComm
could potentially work with him to develop his own digital health platform. Accordingly,
Distefano obtained copyright protection in November of 2019 for seven of the documents
he had created regarding his concept for a digital health platform, titled: (1) Competitive
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Landscape; (2) Day in the Life; (3) Executive Summary; (4) Go to Market; (5)
Implementation Planning; (6) Solution Design; and (7) Value Proposition. (Copyright
Registration (dkt. #164-6).) These documents also referred to InComm’s contemplated
participation in the digital health platform. (Dkt. ##164-7 to 164-13.)
Distefano was formally engaged by InComm in February 2020 and acted as an
independent consulting contractor for approximately two months. In March 2020,
Distefano made a PowerPoint presentation to InComm representatives, proposing it
develop “InComm HealthCare Solution,” a digital health platform, using his intellectual
property. According to Distefano, his presentation introduced components of his platform
that he thought fit well into InComm’s current business and asset base. (Distefano dep.
(dkt. #137) 43.) Specifically, the presentation included documents that were substantially
the same as those that Distefano had copyrighted. However, InComm declined to move
forward with developing a digital health platform.
B. Distefano is Recruited by Nordic
In February 2020, while he was still consulting with InComm, Nordic’s CEO, James
Costanzo, reached out to Distefano about building a consultancy and advisory services
division at Nordic. At the time, Nordic advertised itself as a “strategic partner to health
leaders around the world,” able to help “hospitals and related companies navigate
complexity and harness technology to create healthier systems, businesses and people.”
(Dkt. #99, at 47, ¶ 10.) As a friend and former colleague, Costanzo wanted Distefano to
serve as head of Nordic’s Advisory Services Group. Initially, Distefano was not interested,
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and when Costanzo contacted him again in March 2020, Distefano also said he was busy
with his own consulting work and not interested in joining Nordic.
At that time, Costanzo instead proposed Distefano continue consulting and join
Nordic on a part-time basis. However, the parties dispute whether Distefano talked to
Costanzo about his concept for a digital health software platform in March 2020. While
Costanzo denies that Distefano had discussed his concept at the time, Distefano testified
that he told Costanzo about the possibility of InComm being a “build partner” for his
digital health software platform, which he considered his “life’s work,” and questioned
whether Nordic’s private equity owners would value it. (Distefano Dep. (dkt. #137) 83.)
Regardless, on March 31, 2020, Costanzo emailed Distefano again about a potential
position at Nordic, stating that Nordic’s private equity owners were interested in raising
the value of the company so that they could potentially sell it in two or two-and-a-half
years.
The next day, on April 1, 2020, Distefano and Costanzo spoke on the phone,
although the parties again dispute what was discussed. Specifically, Distefano testified he
told Costanzo that he would work at Nordic only if: (1) he was paid $25,000 to $30,000
per month; (2) he could direct a team to program his digital health software platform; (3)
Nordic hired a chief of staff to help organize and manage collateral related to the digital
health software platform; and (4) Nordic would establish a vendor channel from a
marketing and branding perspective. (Id. at 86.) Distefano further maintains that Nordic
(through Costanzo) and he reached an oral agreement during this April 1 call that: (1)
Distefano would bring his intellectual property (“IP”) to Nordic; (2) Distefano would
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maintain ownership of that IP while a team of coders provided by Nordic would, at his
direction and control, code the digital health software platform; (3) when the platform was
sufficiently ready to be “operationalized,” they would transfer the coded, tested platform
to a separate entity jointly owned by Nordic and Distefano; and (4) at the point of this
spin-out, the specific ownership shares of this new entity would be determined based on
the ongoing commitment of resources and the investment made by Nordic and Distefano.
(Id. at 103.) Distefano maintains that his consulting or working for Nordic was not part of
this oral agreement.
Distefano did not write down the terms of this oral agreement anywhere, although
he did take detailed notes on other things discussed during the phone call, such as how he
could help Nordic generate additional revenue. Nor did Distefano send Costanzo any
emails memorializing the terms of the original oral agreement. For his part, Costanzo
denies that any oral agreement was reached during the phone call. Both sides do agree that
Distefano did not agree to consult for or work for Nordic on the April 1 call.
On April 28, 2020, Costanzo sent Distefano an email offering him the position of
“Practice Leader of Advisory Services” at Nordic. However, at Distefano’s request, for tax
purposes and so Distefano could finish a consulting engagement with another company,
Nordic agreed to characterize Distefano as a contractor hired through Distefano’s
consulting company, goDesk LLC. As part of the negotiations regarding Distefano’s
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potential position, Nordic also agreed to grant Distefano units in Nordic’s Equity
Appreciation Plan (EAP), which were granted to those in senior executive positions.2
C. Distefano Signs the Master Services Agreement and First Statement of
Work
On May 9 and 18, 2020, Distefano signed the First Statement of Work (the “First
SOW”) and the Subcontractor Master Services Agreement (the “MSA”), respectively.
Both agreements were executed by Distefano as a representative of goDesk, LLC.
1. First SOW
Under the First SOW, Distefano was appointed as “Practice Leader, Advisory
Services.” The First SOW included a detailed description of services that goDesk would
provide to Nordic, titled “Engagement Objectives,” including:
• Identify and recommend opportunities for innovative services/product line
extensions that leverage existing capabilities and client relationships;
• Assess the viability (buy v. build) of expanding Nordic’s service offerings to
compete with likes of today’s KLAS leading firms and to further Nordic’s 3-
year strategic vision; and
• Identify and execute enhancements to current business models that
maximize profitability, and client satisfaction.
In exchange, goDesk was entitled to receive a quarterly incentive bonus of $15,000 based
on hitting certain milestones (the “Quarterly Incentive Bonus”).
2 Nordic did not generally offer EAP units to consultants, but Nordic considered Distefano and
goDesk to be essentially the same entity, despite goDesk being the contracting party under the
agreements with Nordic.
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2. MSA
Signed nine days later, the MSA contained an express provision assigning exclusive
intellectual property rights to Nordic for “any ideas, concepts, techniques, inventions,
processes or works of authorship developed or created by [goDesk, LLC] or its personnel
in connection with the performance or the Services under this Agreement[.]” (Dkt. #47-
2, § III.2.B.) The MSA referred to any such ideas, concepts, techniques, inventions,
processes or works of authorship as “work made for hire” for Nordic. (Id.) Moreover, if
something did not qualify as a “work made for hire,” goDesk was required to “assign, and
shall cause its personnel to assign to Nordic, without any requirement of further
consideration, any right, title or interest in that Subcontractor and its personnel may have
in such Contract Property.” (Id.)
With respect to “intellectual property previously developed by [goDesk],” the MSA
stated that goDesk would “maintain ownership of the intellectual property rights in such
Reusable Concepts and Proprietary Programs.” (Id. Art. III, § 2(C).) However, “[s]ubject
to payment of the Fees and expenses required by this Agreement, [goDesk] grants Nordic
a perpetual, worldwide, nonexclusive, royalty-free license to use, copy, distribute, display,
perform, modify, make derivative works of, and otherwise use the Reusable Concepts
and/or Proprietary Programs which are embedded, incorporated or made part of the
Services, or otherwise necessary for the enjoyment of the Services; it being understood that
Nordic may sub-license any or all of its rights for the Reusable Concepts.” (Id.)
Finally, the MSA contains a merger clause, stating:
Entire Agreement. This Agreement . . . and any Statements
of Work set forth the full and complete agreement of the
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Parties with respect to the subject matter hereof. All prior
agreements, correspondence, discussions and understandings
of the Parties (whether oral or written) are merged herein and
superseded hereby, it being the intention of the Parties that
this Agreement shall serve as the complete and exclusive
statement of the terms of their agreement together.
(Id.) Article VII, Section 9.
D. The Advisory Services Group and Distefano’s Plan to Develop Digital
Health Software Platform
As “Practice Leader, Advisory Services,” Distefano led Nordic’s entire Advisory
Services Group, which was the largest group within Nordic, and reported directly to
Nordic’s CEO, Costanzo. The Advisory Services Group was made up of three business
lines: (i) Digital Health; (ii) Implementation Services; and (iii) Performance Improvement.
Distefano established and held regular meetings with the Advisory Core Leadership Team,
which included the leaders from each business line.
Almost immediately after Distefano started leading Advisory Services, he began
promoting the idea that Nordic should invest in and build a digital health software
platform. In May 2020, Distefano transferred from his personal computer three
documents that he had created that focused on the idea of creating digital healthcare
solutions to drive growth and revenue at Nordic: (i) Nordic Health Advisory Path to
Growth; (ii) Nordic Health Advisory Leadership Discussion Guides; and (iii) InComm
Healthcare May 2020 Potential Partnering Model for Digital Health Platform. All of these
documents proposed functionality and aspects of digital health solutions that Distefano
eventually advocated being incorporated into a digital health platform built by Nordic.
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On May 23, 2020, Distefano sent an email to the members of the Advisory Core
Leadership Team, stating his belief that: “Nordic is the perfect firm to bring to life a truly
transformative consumer-oriented digital health platform.” (Dkt. #143-22.) To his email,
Distefano attached a PowerPoint deck titled “Digital Health Platform Point-of-View,”
which presented a vision for Nordic to build a consumer-driven, digital health software
platform, in partnership with a “Transaction Platform Partner.”3 (Many aspects of the
concepts laid out in his PowerPoint presentation were eventually incorporated into the
Wellward platform.)
On June 23, 2020, Distefano also sent Costanzo an email providing “background
on the vision statement for a potential partnership with InComm Healthcare that could
lead us down an exciting digital health path.” (Dkt. #143-23 at 6964.) Attached to the
email, Distefano sent Costanzo a PowerPoint deck titled “Nordic Digital Health Platform
Vision Overview,” which included a concept for Nordic to build a digital health software
3 Nevertheless, at his deposition, Distefano testified that the “Path to Growth Pyramid” in this
“Nordic Health Advisory Path to Growth” PowerPoint was not a pathway to grow Nordic’s Advisory
Services group, nor was it his plan to advise Nordic leaders on growing such a business, but rather,
it was his general ideas about potential business, not specific to Nordic. For reasons elaborated in
the opinion below, this testimony is simply implausible based on the documents themselves, which
refer to Nordic throughout, and the parties’ subsequent conduct. Thus, his testimony alone does
not create a genuine dispute of fact sufficient to avoid summary judgment. See Osborn v. JAB Mgmt.
Servs., Inc., 126 F.4th 1250, 1261 (7th Cir. 2025) (holding that a plaintiff cannot survive summary
judgment where their version of events is “so ‘internally inconsistent or implausible on its face’ that
‘no reasonable person would believe it’”); Seshadri v. Kasraian, 130 F.3d 798, 802 (7th Cir. 1997)
(“testimony can and should be rejected without a trial if, in the circumstances, no reasonable person
would believe it.”); Lacy v. Berge, 921 F. Supp. 600, 607 (E.D. Wis. 1996) (“Mere conclusory
assertions, unsupported by specific facts, made in depositions or affidavits opposing a motion for
summary judgment, are not sufficient to defeat a properly supported motion for summary
judgment.”); see also Vinewood Cap., LLC v. Dar Al-Maal Al-Islami Tr., 541 Fed. App'x 443, 447–48
(5th Cir. 2013) (affirming summary judgment and finding no oral agreement because “a party's
uncorroborated self-serving testimony cannot prevent summary judgment, particularly if the
overwhelming documentary evidence supports the opposite scenario”).
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platform. The “Nordic Digital Health Platform Vision Overview” PowerPoint deck
proposed that Nordic could expand into new “Products & Services,” including “Consumer
facing health apps,” and referred to the proposed digital health platform as the “Nordic
digital health platform.” (Id. at 6971, 6974, 6977 at 6978.) Nowhere in that email did
Distefano mention a prior oral agreement; nor did he refer to any joint venture between
Nordic and him, though he did propose the possibility of a partnership between Nordic
and InComm. To the contrary, the plan as presented in Costanza’s PowerPoint
presentation and cover email consistently referred to the potential digital health platform
as the Nordic digital health platform or solution.
E. Nordic’s Development of the Digital Health Software Platform
By July 2020, Nordic’s Advisory Services Group had started discussing development
of a digital health software platform. Nordic initially adopted the name “Pixar” to refer to
this digital health platform, but it eventually became known as “Wellward.”
On July 21, 2020, Costanzo sent Distefano an email inviting him to present at the
next meeting of Nordic’s Board of Directors to talk to the Board about the “Digital Health
opportunity” Distefano was working on with InComm. The meeting was held on July 29,
2020. During the meeting, Distefano made a presentation using slides he had created for
the digital health software platform. Distefano’s presentation to Nordic’s Board was titled
“Investing for Growth,” and proposed that Nordic should invest in creating a digital health
platform. Describing the value of the proposed digital health platform, Distefano stated it
could accelerate Nordic’s move into new markets and reach new clients. Distefano’s
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presentation included logos for Nordic and InComm again without mention of any past
oral agreements or assignment of IP rights to himself. While members expressed initial
uncertainty about the proposed software platform, the Board eventually supported
development after Costanzo clarified how the platform would fit into Nordic’s larger
business plans.
After the Board agreed to fund the development of a digital healthcare platform,
Distefano engaged other personnel at Nordic to consult on the project, which he then
referred to as “Nordic Pixar,” including members of the Advisory Services Group, Nordic’s
Director of Finance, and Nordic’s CFO. In those communications, Distefano again referred
to “Pixar” as a “Nordic project” and a “growth initiative” of its Advisory Services group.
The Digital Health line of Advisory Services began working on coding the platform.
On September 2, 2020, Nordic and InfoTeq Consulting LLC also entered into a
“Subcontractor Master Services Agreement” and “Statement of Work,” with Don Gravlin
signing those documents as the owner of InfoTeq Consulting LLC, recognizing Gravlin as
one of the members of the team that would build the digital health software platform. In
turn, Distefano signed both agreements on behalf of Nordic in his capacity as its “Advisory
Practice Lead.” These agreements also refer to the digital health software platform as the
“Nordic Solution” and the “Nordic Digital Health Platform,” and like the agreements
between Distefano’s company, goDesk, and Nordic, included a provision granting exclusive
intellectual property rights to Nordic for any work Gravlin or other InfoTeq personnel
performed while engaged by Nordic.
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Also in September 2020, the Advisory Services Group met to discuss development
of the platform, with the agenda including the following points: “(1) Build a digital
wellness platform; (2) How to incentivize behavior change; (3) Chronic condition
management; (4) Driving consumer wellness management at a holistic level; (5) Look at
data from the payee side; (6) Who is the right partner? Realistic use cases; and (7)
Combination of technology and business coming together.” During this month, Distefano
noted in an email that the leader of Nordic’s Digital Health line was responsible for
collaborating on the “Nordic digital health platform,” including by defining services,
technologies and priority business uses. Later that month, Distefano created a document
titled “Advisory Strategic Growth Framework Implementation Workstreams,” which
identified a nine-month time frame for the Advisory Services Group to innovate Nordic’s
digital health platform.
The following month, Nordic paid Distefano/goDesk the full Quarterly Incentive
Bonus for the period of September to November 2020. Distefano had previously sent
Costanzo a set of proposed milestones for the Quarterly Incentive Bonus to be paid for his
work as “Practice Leader, Advisory Services” consistent with the First SOW and MSA.
Those milestones included:
• Define digital health solutions roadmap, including strategic partnerships;
• Define fit-for-future solution on framework and portfolio of service offerings; and
• Lead the creation of a solution innovation council to provide solution governance.
As Costanzo understood it, the milestone for:
• “Define digital health solutions roadmap, including strategic partnerships” referred to
Distefano’s work developing the digital health software platform, which was
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originally named Pixar and later became known as Wellward, and the potential
partnership with InComm;
• “Define fit-for-future solution on framework and portfolio of service offerings” related to that
same digital health software platform; and
• “Lead the creation of a solution innovation council to provide solution governance” related to
the “solution council” proposed by Distefano for purposes of aiding in the
development of the platform.
In contrast, Distefano maintains that these milestones did not refer to the digital software
platform at all, but rather to other projects goDesk was working on.
F. Nordic and InComm’s Data Sharing Agreement
On December 28, 2020, Nordic and InComm entered into their own formal
agreement contemplating that InComm would share data, which Nordic would then use
to create its digital health software platform (the “InComm Data Sharing Agreement”).
(Dkt. #143-40.) In exchange, Nordic would organize and aggregate the data for InComm.
The leader of the Digital Health line signed the agreement on behalf of Nordic, and
InComm’s Executive Vice President signed for InComm. After the agreement was signed,
the Performance Improvement group at Nordic dedicated three employees to the then
“Pixar” project with the goal to “evolve the strategic thinking on its behavior model to drive
patient interventions and more personalize care planning.” (Dkt. #143-42.)
On January 29, 2021, Distefano next sent Costanzo a set of proposed milestones
from December 2020 through February 2021 for his Quarterly Incentive Bonus to be paid
to goDesk. Among others, those proposed milestones included: “Establish one strategic
technology partnership in the digital solutions space.” As Costanzo understood it, this
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milestone referred to InComm and the InComm Data Sharing Agreement signed in
December 2020. While Distefano disputes that this goal referred to the InComm
agreement, he provides no other plausible explanation of the goal’s meaning. Regardless,
Nordic paid Distefano/goDesk the full Quarterly Incentive Bonus under the First SOW for
the period of December 2020 through February 2021.
G. Distefano Seeks Continued Investment in Nordic’s Development of the
Digital Health Platform
In March 2021, the leader of Nordic’s Digital Services line proposed hiring another
consultant to provide technical help to build the digital health platform, including coding.
Nordic’s General Counsel, Irina Brault, then asked Distefano about the platform and tools
that such a consultant would develop and how they would be used by Nordic. Distefano
responded that the components developed by that consultant “will not be sold directly to
clients, but … will form the technical basis of future elements that will be sold to clients,
so these demonstration components do represent IP to Nordic.” (Dkt. #143-47.) After
the consultant was hired, Brault also asked Distefano to direct the consultant to maintain
a list of the IP inventory associated with the digital health software platform, including any
elements that were commercially available, vendor supplied, client supplied, or Nordic IP.
(Dkt. #143-58.) When instructing the consultant to maintain an IP list, however,
Distefano did not indicate that any of the IP associated with the digital health platform
was owned by him.
On May 5, 2021, Distefano sent an email to Costanzo and Nordic’s CFO, seeking
continued investment to further develop Nordic’s digital health software platform,
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attaching another PowerPoint deck, this time titled “Nordic Next-Generation Health and
Wellness Digital Platform, ‘Investor’ Presentation.” That presentation discussed buyers
for digital health solutions, stating that most major health plans were investing in and/or
acquiring digital health platforms. The presentation proposed various ways that Nordic
could make money from the digital health platform, and requested that Nordic invest an
additional $486,250 between May and June 2021 to create “client pilots” of the digital
health software platform. Costanzo and Cole both approved the spending request.
Throughout 2021, Nordic’s Digital Health group employees wrote source code for
the digital health platform. In fact, Nordic’s employees and subcontractors are the only
people who wrote useable source code for the platform. They also incorporated into the
platform a software product that Nordic had developed previously called the “Health Data
Connector.” Also in 2021, after its Digital Health group leader resigned, Nordic hired yet
another subcontractor to work under a Statement of Work for the digital health platform,
which Distefano again signed on behalf of Nordic. Within that were multiple tasks related
to designing and developing the digital health software platform, including:
• Advise Nordic team as they define the PIXAR Product;
• Advise PIXAR Team as they create & refine the candidate list of Nordic’s Digital
Health Platform Product Features (Product Backlog) based on Nordic’s existing
clinical and claims system information integration capabilities and the proposed
future InComm & Client partnership; and
• Consult with team as they rank and create PIXAR high value data features...
(Dkt. #143-54.)
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In June 2021, Nordic once again paid goDesk/Distefano for the Quarterly Incentive
Bonus under the First SOW covering the period from March through May 2021.
Distefano’s proposed milestones for that period included: “Develop initial thought
leadership for Nordic’s NextGen Digital Wellness Platform.” There is no dispute that this
goal referred to the Pixar platform, eventually known as Wellward.
H. Employment Agreement and General Release
By the fall of 2021, Distefano and Nordic had agreed that he should become an
employee, rather than a subcontractor, because of a potential sale of Nordic. On or about
November 3, 2021, Distefano signed an “Employment Agreement.” Under the terms of
that agreement, Distefano agreed to “devote all of [his] business time and best efforts,
business judgment, skill and knowledge exclusively to the advancement of the Business and
to discharge of [his] duties and responsibilities hereunder.” (Dkt. #47-4 at § 3(b).)
Business is defined in that agreement as:
all products and services provided or planned to be provided
by the Company and/or its Affiliates, successor and assigns,
during the Employee’s employment, including, without
limitation, the provision of services related to the
implementation and optimization of electronic health records
technologies; data and analytics; revenue cycle; performance
improvement; IT operational outsourcing and application
managed services; enterprise resource planning; and any other
services that the Company and/or its Affiliates, successor and
assigns, provide or plan to provide.
(Id. at § 11(b).)
The scope of Distefano’s work under the Employment Agreement was identical to
the scope of work under the First SOW and MSA. Under the Employment Agreement,
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Distefano was the “Global Advisory Practice Leader,” reporting directly to Nordic’s CEO.
Distefano served as the head of the Advisory Services group under both the First SOW and
the Employment Agreement.
Like the MSA, the Employment Agreement also contained a provision governing
ownership of any intellectual property created or developed during Distefano’s
employment with Nordic. Specifically, the agreement grants “exclusive ownership” to
Nordic of any intellectual property created or developed by Distefano during his
employment with Nordic or using Nordic’s resources. (Dkt. #47-4, § 7(a).) Section 7 of
the Employment Agreement further states, “[n]otwithstanding the foregoing, the
definition of Company Works does not include any works of authorship, inventions,
intellectual property, materials, documents or other work product developed (alone or
jointly) by the Employee (i) entirely on the Employee’s own time and (ii) any concepts,
materials, ideas, or other intellectual property previously developed by Employee.”
Distefano proposed edits to Section 7 to exclude from the definition of “Company Works”
any works developed “entirely on the Employee’s own time.” Further, as part of the
Employment Agreement, Distefano similarly signed a “General Release of All Claims” (the
“General Release”), in which he expressly released all claims he “ever had, now have or
hereafter can, shall or may have, against [Nordic] for, upon, or by reason of any alleged or
actual matter, cause, or thing from the beginning of time until the date [that Distefano
signed the General Release].” (Dkt. #143-60, Ex. A.)
Finally, like the MSA that preceded it, the Employment Agreement also contained
a merger clause, stating that it “constitutes the sole understanding of the parties with
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respect to the matters provided for herein and supersedes all prior and contemporaneous
oral and written agreements and understandings between the parties with respect to the
subject matter of this Agreement.” (Id. at 15).
I. Distefano Resigns his Employment
On February 21, 2022, just three months after the effective date of his Employment
Agreement, Distefano notified Nordic that he intended to resign effective as of August 21,
2021. The next day, Distefano sent an email from his Nordic email address to his personal
Gmail account, attaching his Employment Agreement and the MSA. On March 1, 2022,
Distefano also sent an email from his Nordic email address to his personal Gmail account,
attaching a document entitled “JD IP Claims,” which was apparently his attempt to
describe his ownership of certain IP related to Nordic’s digital health platform. Distefano
also sent himself an email attaching a document titled “Supporting Background for IP
Claims,” which states that:
Sub-contractor had previously developed Intellectual Property which was brought
to Nordic – Subcontractor discussed with Nordic CEO prior to any contractual
relationship the existence of concepts, ideas and works constituting Intellectual
Property developed by Sub-contractor in previous work. Subsequent to a sub-
contracting agreement being established between Sub-contractor and Company,
discussions, meetings and collateral reviews were conducted during May and June,
2020, with CEO and other members of Nordic leadership regarding the Intellectual
Property. Additionally, in June 2020, Subcontractor introduced Nordic CEO and
other leadership to third-party data provider and then subsequently facilitated a
strategic data partnership between the third-party and Nordic to explore future
developments related to Subcontractor Intellectual Property.”
(Dkt. #143-68.) By this time, “Pixar” had also formally been renamed “Wellward,” and
on April 7, 2022, Distefano sent an email to Costanzo, stating in part, “[l]et’s be sure to
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find time next week to discuss the details around my transition, and also we can talk
through the next steps on the legal aspects of my Wellward IP ownership so we can avoid
any surprises there.” (Dkt. #143-69.)
J. First Demand Letter
On May 12, 2022, Distefano’s attorney sent Nordic a demand letter, alleging that
he had developed IP before performing any services for Nordic and that he maintained
ownership of such IP, as stated in Section 7 of the Employment Agreement. (Dkt. #143-
70.) The letter asserted that Distefano’s IP was the “foundation” for the Wellward
platform, and proposed a license agreement for his IP under which Nordic would provide
him: (1) a revenue share of future sales bookings related to platform; and (2) “founder’s
shares” of equity in any future entity, public or private, that was based directly or indirectly
upon the platform or Distefano’s IP. The letter did not mention any oral agreement or
any other existing agreement under which Distefano had previoulsy claimed ownership in
IP related to Wellward, nor assert that Nordic had agreed to spinout Wellward into a
separate company to be jointly owned by Distefano.
On May 16, 2022, Distefano sent Nordic’s GC Brault an email following up on his
counsel’s demand letter, explaining that its purpose was to make sure he was following “a
formal process in establishing an understanding around the IP, as well as to propose straw
model business principles for Wellward.” (Dkt. #143-71.) Distefano stated in the email
that he would coordinate with his legal support to propose a governance plan, management
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structures and financials to help jump start the discussions around a formal business
treatment of Wellward.
K. Distefano Advocates for a Spinoff Company After Nordic’s Acquisition
by Accrete Health Partners
On June 1, 2022, Accrete Health Partners (“Accrete”), a strategic holding company
of Bon Secours Mercy Health, acquired Nordic. That same day, Distefano sent an email
to Cambia Health, a potential customer of Nordic, announcing the Accrete Acquisition.
(Dkt. #143-72.) Distefano stated in the email that, “[w]e expect a separate release over
the next 30-60 days announcing me as the General Manager/CEO of Wellward LLC.” (Id.)
However, neither Nordic nor Accrete had discussed such a plan with Distefano.
Also on June 1, Distefano’s attorney sent Nordic a second demand letter, stating
that the Wellward platform concept was something that Distefano had conceived of and
championed prior to his consulting agreement with Nordic, resulting in some “ambiguity”
on how Distefano could move forward in his business endeavors. (Dkt. #143-73.) The
letter proposed that: (1) Nordic and Distefano create an independent business entity to
develop and commercialize predictive analytic software platforms utilizing the concepts,
know-how, and software that was brought to and developed during the Wellward project;
(2) the new entity would initially operate and be funded as a business unit of Nordic, but
would proceed independently with a mission statement to maximize the commercialization
of the integrated platform concept of the Wellward project; (3) the new business entity
could be spun off in the future should the commercialization be successful and broader
than the core business of Nordic; (4) Nordic would owe a majority interest in the new
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business entity with Distefano owning a minority interest, but acting as the general
manager or CEO; (5) all IP associated with the Wellward project, including that owned by
Distefano and Nordic would be assigned to the new entity; and (6) Nordic would receive
an irrevocable, fully paid up license to all such IP so as to continue to develop and realize
the commercial value of the Wellward product. The letter ended by stating, “[p]lease let
us know if [Nordic] is interested in this proposal and we can start to put more substance
to the proposal.” (Id.)
Two weeks later, on June 15, Distefano next sent another email to Cambia’s CEO,
stating, “[e]ffective June 1, I transitioned to General Manager and CEO of Wellward, a
newly forming subsidiary of Nordic.” (Dkt. #143-74.) This, too, was a false representation
since no such transition had been agreed to by Nordic or Accrete, nor was the formation
of a subsidiary in the works. Moreover, on June 20, Distefano sent an email to Costanzo
and Brault (Nordic’s general counsel) stating that he had “taken the first steps in drafting
an initial operating agreement for a Wellward LLC,” and attaching a draft for a Wellward
spinoff company (the “Draft Operating Agreement”). (Dkt. #143-75.) The email also
acknowledged that the draft was “only a straw model of course,” and that Distefano was
“very much open to ideas and refinements to make this agreeable and in-line with
[Costanzo’s] vision.” The email closed by stating, “[p]lease let me know your thoughts on
discussing any changes to the proposed operating agreement.” (Id.) Finally, on July 19,
Distefano emailed the sales lead for Wellward, also discussing his Draft Operating
Agreement for Wellward LLC, stating, “as you and I already discussed, the New [company]
has not been board approved and exactly how, when or if we move forward is still
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uncertain,” but that he was “advocating” for a “Nordic-owned holding company.” (Dkt.
#143-76, 143-77.)
At a subsequent August 16, 2022, meeting between Distefano and Costanzo,
Costanzo confirmed that Distefano needed Board approval to spin-out Wellward into a
separate company. The following day, Distefano emailed Costanzo that he was “[e]ager
to hear from [Costanzo] on the Board discussions.” (Dkt. #143-79.) Distefano further
stated, “[a]s we talked, given that my garden leave period ends on the 21st of this month,
I am very agreeable to move forward as a contractor to Nordic – much like I was when first
working.” (Id.) On August 29, Distefano also sent another email to Cambia, again
misrepresenting himself to be the “General Manager, Wellward Digital Services – A Nordic
Global Entity,” despite his not holding that position and Wellward still being nothing more
than a software platform owned by Nordic.
L. The Second Statement of Work
That same day, August 29, Distefano sent an email to Costanzo, Brault, and
Nordic’s head of Human Resources, attaching a proposed statement of work that Distefano
had drafted for his continued work for Nordic as a consultant. (Dkt. #62-2.) Specifically,
Distefano proposed his role would be “General Manager, Wellward,” and that he would
receive a one-time, performance bonus of $20,000 contingent and payable upon the
delivery and production activation of the first “Wellward platform services client” by
December 31, 2022. The “engagement scope” in Distefano’s newly proposed SOW was
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focused on the Wellward platform, and contemplated that Distefano would guide its
further development and commercialization.
On September 2, 2022, Nordic GC Brault responded to Distefano’s draft statement
of work by attaching a revised draft with proposed edits. (Dkt. #143-82.) In this Revised
SOW, Distefano’s role was changed from “General Manager, Wellward” to “Consultant”
and the “engagement objective” was deleted. Specifically, instead of Distefano/goDesk
“provid[ing] input and recommendations for the creation of a separate business entity or
holding company for the Wellward Platform, including operating agreement, and
ownership and governance structure,” Nordic’s Revised SOW stated that Distefano would
“provide consulting services related to the platform development and commercialization
efforts of the Wellward platform.” (Id.) Nordic’s Revised SOW also changed several other
references, emphasizing that Distefano would provide “oversight” and “input,” rather than
providing “leadership,” and that Distefano/goDesk would “[c]ollaborate with [the]
Wellward platform development team, Nordic business lines and Nordic Client
Partnerships organization to define Wellward platform release strategy.” (Id.) On
September 11, 2022, Distefano signed this second statement of work (the “Second SOW”)
containing all of the changes made by Nordic.
On September 27, Distefano exchanged emails with Costanzo in advance of a
meeting with Cambia. In that exchange, Distefano suggested alluding to a potential
Wellward “spin-off” company during the meeting in which Cambia could have a potential
ownership interest. (Dkt. #143-83.) However, Costanzo responded. “At this point, I
would not talk about ownership at all. We do not yet have approval to spin this off from [Accrete,]
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and I would not want to make commitments that we may or may not be able to keep.” (Id.
(emphasis added).) Distefano acknowledged Costanzo’s response, but also wrote, “the
inability to establish Wellward under Accrete would be a setback for us all.” (Id.)
From October to December 2022, Distefano continued to email and converse with
Costanza and others at Nordic about a possible Wellward spinoff company. He also sent
a draft business plan to numerous people, asking for their consideration and input. In
those emails, Distefano routinely acknowledged that this proposal was a draft, straw model,
or “aspiration” for how a Wellward company would operate, that aspects were subject to
change, and that many questions remained. (Dkt. ##143-84, 143-85, 143-86, 143-87,
and 143-88.)
M. Nordic Stops Investing in Wellward
In January 2023, Constanzo told Distefano that Nordic planned to stop investing
in the Wellward platform development and would begin focusing on its marketing. At this
point, Nordic had spent over $4 million developing the Wellward Platform, had hired
multiple contractors and a sales and marketing lead, and had dedicated several existing
employees to work on the Wellward platform. Costanzo also proposed that Distefano
would remain “involved from a sales perspective,” with possible, commission-based
compensation. (Dkt. #143-89.) On January 16, Distefano sent a follow up email to
Costanzo, stating: “Haven’t heard from you regarding a proposed finder’s fee/commission
arrangement as you suggested. Is it in the works or do you have something else in mind?
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Please let me know any updates.” (Id.) Two days later, however, Nordic notified Distefano
that it had decided not to enter into another agreement with him. (Id.)
On January 24, Distefano then sent Nordic an email stating:
I am very grateful for the opportunities and support afforded me by Nordic
over these past 2 1/2 years. I understand the situation may have changed
with the acquisition of Nordic by Accrete. However, I plan to move ahead
independently with other potential partners in developing the digital
platform IP that I initially brought to Nordic unless you have an objection.
(Id.) In response, Nordic’s General Counsel Brault emailed: “Can you provide more
specificity around ‘the digital platform IP that [you] initially brought to Nordic’? I want
to ensure I understand what you are referring to.” (Id.) Distefano wrote back to Brault
that he was referring to “the IP platform now known as Wellward.” (Id.) Brault again
responded, stating:
I just want to ensure that we are on the same page: all the code, applications
(e.g., Connector), schemas, flowcharts, presentations, slides, sales and
marketing materials, and other materials related to Wellward have been
developed by Nordic resources (its employees and independent contractors)
and belong to Nordic (it is Nordic’s IP that can be used only by Nordic).
Also, Nordic owns the rights to the federally registered mark in Wellward.
As for the idea/concept of a digital platform, you are free to pursue it (alone
or with other partners), subject to you complying with your confidentiality
and other obligations (e.g., not using Nordic’s IP) that are outlined in your
agreements with Nordic.
(Id.)
On February 16, 2023, Distefano filed this lawsuit against Nordic, complaining for
the first time in writing that he had an oral agreement with Costanza regarding IP
ownership, development of Wellward, and creating a separate company to market
Wellward. Specifically, plaintiffs assert eight claims for relief against defendant: breach of
oral contract (count I); breach of implied contract (count II); unjust enrichment (count
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III); declaration of copyright interests (count IV); breach of written employment agreement
(count V); breach of written master services agreement (count VII); and intentional
misrepresentation (counts IV, VIII). (Am. Cpt. (dkt. #47).) In turn, defendant asserts
counterclaims against plaintiff Distefano for: fraudulent misrepresentation based on
alleged assertions he made to Nordic regarding Cambia’s interest in Wellward; and breach
of contract in refusing to grant a license to use any of his IP that was incorporated into
Wellward. Defendant has moved for summary judgment on all of plaintiffs’ claims, but
not its own counterclaims.
OPINION
Summary judgment is appropriate if the moving party shows that “there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). If the moving party meets this burden, then the non-moving
party must provide evidence “on which the jury could reasonably find for the nonmoving
party” to survive summary judgment. Trade Fin. Partners, LLC v. AAR Corp., 573 F.3d 401,
406-07 (7th Cir. 2009). At summary judgment, the court views disputed facts in a light
most favorable to the plaintiff as the non-moving party, provided that there is a “genuine”
dispute as to those facts. Scott v. Harris, 550 U.S. 372, 380 (2007). Similarly, the court
will construe all reasonable inferences in plaintiffs’ favor, Parker v. Four Seasons Hotels, Ltd.,
845 F.3d 807, 812 (7th Cir. 2017), but only those favorable inferences that are supported
by admissible evidence, not those based upon mere speculation or conjecture, Grant v.
Trustees of Ind. Univ., 870 F.3d 562, 568 (7th Cir. 2017), or upon “[c]onclusory statements,
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not grounded in specific facts.” Bordelon v. Bd. of Educ. of the City of Chicago, 811 F.3d 984,
989 (7th Cir. 2016).
At the same time, “[w]hen opposing parties tell two different stories, one of which
is blatantly contradicted by the record, so that no reasonable jury could believe it, a court
should not adopt that version of the facts for purposes of ruling on a motion for summary
judgment.” Scott, 550 U.S. at 380. In particular, as here, a plaintiff cannot survive
summary judgment where their version of events is “so ‘internally inconsistent or
implausible on its face’ that ‘no reasonable person would believe it.’” Osborn v. JAB Mgmt.
Servs., Inc., 126 F.4th 1250, 1261 (7th Cir. 2025) (quoting Seshadri v. Kasraian, 130 F.3d
798, 802 (7th Cir. 1997)). Starting with plaintiffs’ contract claims, followed by their
unjust enrichment, misrepresentation and copyright claims, the court explains below why
this is so.
I. Breach of an Oral or Implied Contract (Counts I and II)
Defendant seeks summary judgment on plaintiffs’ claims for breach of an oral or
implied contract, contending that no reasonable jury could find an oral or implied contract
ever existed between the parties as to joint, much less exclusive, rights to Distefano’s
supposed intellectual property. In response, plaintiffs argue that there are disputed issues
of material fact regarding whether an oral or implied contract existed on this subject.
However, these so-called disputed issues of fact are based entirely on plaintiff Distefano’s
statements in both his deposition and declaration that he entered into an oral agreement
with defendant Nordic’s CEO, James Constanzo, that was intended to be separate and
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distinct from the written, integrated agreements that he subsequently signed. For two
primary reasons, the court agrees with defendant that no reasonable jury could find an
enforceable oral or implied contract existed based on Distefano’s statements alone.
A. Lack of Intent and Definite Terms
For an oral contract to exist, there must be a mutual meeting of the minds and an
intention to contract. Theuerkauf v. Sutton, 102 Wis. 2d 176, 183, 306 N.W.2d 651
(1981).4 In addition, a “contract must be definite and certain as to its basic terms and
requirements to be enforceable.” Metropolitan Ventures, LLC v. GEA Associates, 2006 WI
71, ¶ 22, 291 Wis. 2d 393, 407–408, 717 N.W.2d 58, 66. Here, plaintiffs have failed to
offer sufficient evidence for a reasonable jury to find that Distefano and Constanzo had a
“meeting of the minds” and “intention to contract,” or that the purported oral contract
had “definite and certain” terms.
In fact, plaintiffs’ own description of the terms of this supposed “oral agreement”
have been inconsistent. In his original complaint, plaintiffs alleged that the terms of their
oral agreement were that “Nordic would use its resources to write the code using its
software engineers and form a jointly owned company that would monetize the software
platform.” (Dkt. #1, ¶ 57.) In his amended complaint, plaintiffs add that this oral
agreement included that (1) Distefano would “control the Nordic software programmers
4 Because all parties assume that Wisconsin law applies here, the court applies the same. See RLI
Insurance Company v. Conseco, Inc., 543 F.3d 384, 390 (7th Cir. 2008) (“When neither party raises
a conflict of law issue in a diversity case, the applicable law is that of the state in which the federal
court sits.”).
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and direct the overall development of the body of software code,” and (2) his
“contributions would be merged with Nordic’s contributions (if any) into inseparable or
interdependent parts of a unitary work.” (Dkt. 47, ¶ 138.) The amended complaint also
alleges that the “[m]aterial terms of the oral contract are stated in the Operating
Agreement” that Distefano sent to Costanzo and Brault on June 20, 2022 (id. ¶ 142),
despite that draft agreement being created years after any alleged oral agreement and,
according to Distefano’s own contemporaneous communications, being both a “draft” and
a “straw model” that required significant work. Finally, in his deposition, Distefano further
testified his 2020 oral agreement with Costanzo included an indefinite expectation that
“the specific ownership of the joint company would be determined, at the point of the spin-
out, based on the ongoing commitment of resources and the investment made.” (Distefano
dep. (dkt. #137) 103–04.)
In light of plaintiffs’ inconsistent descriptions of the material terms of the putative
oral agreement, it is unclear which of these terms are even alleged to be, much less were, a
part of this original, oral agreement. See Business Syst. Engineering, Inc. v. Int’l Bus. Machines
Corp., 547 F.3d 882, 887 (7th Cir. 2008) (affirming summary judgment dismissing oral
contract claim and noting that the plaintiffs’ theory of the alleged oral contract had
fluctuated through the proceedings in the case).
Even if a reasonable jury were willing to adopt plaintiffs’ most recently alleged terms
as comprising the oral agreement, however, those terms are not definite and certain enough
as a matter of law to prove a claim for breach of an oral agreement. See Ceme-Tube LLC v.
Chroma Color Corp., 742 F. Supp. 3d 864, 873 (W.D. Wis. 2024) (to form a contract, the
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offer must “be so definite in its terms, and require such definite terms in acceptance, that
the promises and performances to be rendered by each party are reasonably certain”); see
also Metropolitan Ventures, LLC, 2006 WI 71, ¶ 22 (same). This is because too many
unknowns were present at the time the alleged oral agreement was made in 2020 for those
terms to be enforceable. Specifically, it is unclear under the agreement: what IP Distefano
would bring to Nordic; how much time, money and resources Nordic would provide to
code the digital health platform; how it would be determined that the platform was ready
to spinoff as a separate company; or what level of commitment would be required after a
new company was formed of Nordic or Distefano, much less how to allocate ownership
interest.
Further, Distefano’s own written communications to Nordic (both in his demand
letters and spinoff proposals) confirm that the parties had not reached a binding agreement
on certain key terms, particularly relating to IP ownership and organization of the spinoff
company. This evidence shows that the purported oral agreement was, if anything, closer
to a “promise to form a partnership,” with the details of that partnership to be worked out
later, and such a promise cannot support a claim for breach of an oral agreement. See Kap
Holdings, LLC v. Mar-Cone Appliance Parts Co., 55 F.4th 517, 524-25 (7th Cir. 2022)
(holding that the parties did not create a legally binding agreement when they “agreed to
form a partnership or joint venture,” but the exact legal structure was yet to be
determined); Ceme-Tube, 742 F. Supp. 3d at 874 (granting summary judgment on the
plaintiff’s oral contract claim because the plaintiff provided no evidence that the parties
ever discussed, much less settled on, essential terms of a binding contract); Toll Processing
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Services, LLC v. Kastalon, Inc., 880 F.3d 820, 829–30 (7th Cir. 2018) (affirming summary
judgment on oral contract claim because the evidence established the parties did not have
a mutual understanding regarding how long the defendant was required to store “pickle
line rolls” that were the subject of the alleged agreement).
Moreover, assuming plaintiffs’ general description of the oral agreement was
sufficient to set forth the essential terms of a legally binding agreement, plaintiffs have
failed to advance sufficient evidence for a reasonable jury to find that defendant intended
to accept such an oral agreement. “In Wisconsin, the party seeking to enforce a contract
must demonstrate that there was a meeting of the minds, that is, that the parties intended
to form a contract.” Skyrise Construction Group, Inc. v. Annex Construction, LLC, 956 F.3d
950, 956 (7th Cir. 2020). The intent of the parties is generally derived from consideration
of their words, written and oral, and their actions. Id. (“Wisconsin takes an objective view
of ‘intent,’ and therefore secret hopes and wishes count for nothing.”). Here, plaintiffs
have failed to identify any objective evidence showing defendant’s agreement or intent to
be bound by the alleged terms of that oral agreement. See Limecoral, Ltd. v. Careerbuilder,
LLC, 889 F.3d 847, 850 (7th Cir. 2018) (affirming summary judgment on an oral contract
claim where the district court found no evidence to support the notion that the defendant
had agreed to the terms alleged by the plaintiff).
To the contrary, it is undisputed that Distefano never even shared any arguably
protective IP materials with Costanza or Nordic related to his concept for a digital health
platform until after he started working at Nordic under the First SOW. It is implausible,
if not flat out unbelievable, that a company would enter into a sweeping, open-ended IP
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and business agreement orally without at least knowing the details of the IP and business
proposal. In addition, the only objective evidence in the record shows that despite
plaintiffs working for Nordic for almost three years on the digital health platform that
became known as Wellward, both parties never mentioned any oral agreement or its terms
in writing until after plaintiffs filed their complaint in February 2023. See Limecoral, 889
F.3d at 850 (“for a period of over six years and two thousand projects, Limecoral has not
pointed to evidence showing that CareerBuilder ever paid any renewal fee or that
LimeCoral asked for any renewal fee.”).
Plaintiffs’ failure to cite any objective evidence is especially notable given that the
amended complaint alleges that this purported oral agreement “was evidenced and
confirmed by written correspondence between the parties and others.” (Dkt. #47, ¶ 140.)
Indeed, the court specifically relied on this allegation when it issued its order allowing the
case to proceed past the motion to dismiss stage. (Dkt. #96, at 18.) Thus, plaintiffs have
also failed to meet their burden to come forward with evidence from which a reasonable
jury could find that the parties intended to form a binding oral contract. See Ellison v. United
States Postal Svc., 84 F.4th 750, 759 (7th Cir. 2023) (summary judgment is the “put up or
shut up” moment where the non-moving party is required to marshal and present the court
with evidence that will prove her case). Regardless, because the parties had not reached
agreement on all of the materials terms of the alleged oral agreement, it was not sufficiently
definite and certain. Ceme-Tube, 742 F. Supp. 3d at 874 (granting summary judgment on
the plaintiff’s oral agreement claim because the plaintiff provided no evidence that the
parties ever discussed, much less settled on, other essential terms of a binding contract).
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B. Written Agreements
Even more definitively established on this record, the written agreements plaintiffs
subsequently signed expressly grant Nordic exclusive ownership rights to any intellectual
property developed within the scope of plaintiffs’ work for Nordic and overrode any
previous oral or implied agreements regarding plaintiffs’ claimed independent IP ownership
rights. In particular, as set forth above, the written agreements contain “integration
clauses” expreslly disclaiming any prior oral agreements. See Skyrise Construction Group, Inc.
v. Annex Construction, LLC, 956 F.3d 950, 958 (7th Cir. 2020) (the parties contract
contained an integration clause, so any claim that the defendant orally changed the
agreement must fail); Ceme-Tube LLC, 742 F. Supp. 3d 873 (granting summary judgment
on an oral contract claim and holding, in part, that alleged oral agreement could not amend
the terms and conditions of the written agreement because the written agreement
contained an integration provision). Just as definitely, the parties’ written agreements
expressly assign exclusive IP rights to Nordic, with limited exceptions. Specifically, the MSA
states “all copyrights, patents, trade secrets or other intellectual property rights associated
with any ideas, concepts, techniques, inventions, processes or works of authorship
developed or created by [goDesk, LLC] or its personnel [Distefano] in connection with the
performance or the Services under this Agreement (collectively, “Contract Property”) shall
belong exclusively to Nordic and shall, to the extent applicable, be considered “work made
for hire[.]” (MSA (dkt. #47-2) § III.2.B; ) Finally, the MSA states that “[i]f any element
or item of the Contract Property is not a ‘work made for hire,’” goDesk “will assign, and
shall cause its personnel [Distefano] to assign to Nordic, without any requirement or
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further consideration, any right, title or interest that Subcontractor and its personnel may
have in such Contract Property.” (Id.)5 Thus, as applied, the IP provisions and integration
clause of the parties’ written agreement are legally dispositive of plaintiffs’ oral and implied
contract claims.
In fairness, plaintiffs offer several arguments to avoid the application of these
otherwise binding written agreements, but none is persuasive. First, Plaintiffs argue that
the integration clauses cannot supersede Distefano’s oral agreement with defendant because
only goDesk was a party to the MSA, First SOW and Second DOW, not Distefano, citing
GCIU Emp. Ret. Fund v. Chicago Trib. Co., 66 F.3d 862, 865 (7th Cir. 1995). However,
that case does not help plaintiffs. In GCIU Emp. Ret. Fund, the Seventh Circuit held that
a contribution agreement cited by the plaintiff was superseded by a more recent collective
bargaining agreement, holding the party to the second agreement was “acting on behalf”
of a party to the first agreement. 66 F.3d at 866. As applied here, goDesk (the party to
the second agreement), was certainly “acting on behalf” of Distefano (the party to the
alleged first, oral agreement). In particular, the undisputed record shows that the First
SOW was intended to cover all Distefano’s work for Nordic, but at Distefano’s request,
Nordic agreed to contract with goDesk as the party employing Distefano. Moreover, this
was done merely for tax reasons benefiting Distefano, both because of potential tax benefits
and so Distefano could finish another consulting project through goDesk while also
working for Nordic. Regardless, Distefano was the only person who ever performed work
5 The Employment Agreement later entered into by Distefano contains similar IP ownership
provisions. (Dkt. #47-4, § 7(a).)
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for Nordic on behalf of goDesk. Thus, just as in GCIU Emp. Ret. Fund, Distefano and
goDesk were essentially the same party. Of course, both agreements (the alleged oral
agreement and the First SOW) covered the same subject matter -- Distefano’s work at
Nordic -- and goDesk was not only legally bound by the later signed integrated MSA, but
expressly was its only “personnel in connection with the performance or the Services under
this Agreement,” Distefano, who signed the MSA.
Second, plaintiffs argue that Distefano’s work on the Wellward platform fell outside
the scope of the MSA, First SOW and Employment Agreement, pointing out that neither
the First SOW nor the MSA even mention Wellward or software development. This
argument bonders on the frivolous. To begin, it ignores that the term “Wellward” did not
exist until well after Distefano started working at Nordic, so there is no way that the parties
would have included the specific term “Wellward” in the First SOW or MSA, but both
certainly refer to a software program under development, later called “Pixar” and then
“Wellward.” Regardless, the “Engagement Scope” in the First SOW is broadly worded,
such that it encompassed all Distefano’s potential work as head of Nordic’s Advisory
Services. For example, the Engagement Scope required plaintiffs to “provide leadership
and subject matter expertise to the leadership of the newly formed Advisory Services
division within Nordic” and “provide consultative advice on…solutions development.”
Because the record shows that Wellward was considered a “solution” developed within the
Advisory Services group under Distefano’s leadership, his work on Wellward expressly fell
under the First SOW.
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Similarly, the First SOW listed several “engagement objectives” that would
encompass Distefano’s work on Wellward, including: (1) “identify and recommend
opportunities for innovative services/product line extensions that leverage existing
capabilities and client relationships; (2) “assess the viability (buy v. build) of expanding
Nordic’s service offerings”; and (3) “identify and execute enhancements to current business
models that maximize revenue, profitability, and client satisfaction.” (Dkt. #143-11.)
Because Nordic had previously developed software products, including the Health Data
Connector that was incorporated into Wellward under Distefano’s leadership, Wellward
was a “product line extension” and an “enhancement to Nordic’s current business model”
that fell under the First SOW. Finally, the fact that plaintiffs were paid multiple quarterly
incentive bonuses for work on Pixar and then Wellward further supports the conclusion
that Distefano’s work on Wellward fell within the scope of the First SOW and MSA.
Although plaintiffs attempt to argue in their brief that the bonuses were for work outside
the Wellward platform, Distefano admitted during his deposition that at least one of the
milestones for the Quarterly Incentive Bonus related to his work on Wellward. (Distefano
Dep. (dkt. #137) 271.) While plaintiffs attempt to walk this testimony back in their brief,
no jury could reasonably accept the convoluted argument over the express terms of the
parties’ written agreements, nor is it sufficient to avoid summary judgment on the
undisputed facts.
Third, plaintiffs argue that Wellward was not subject to the MSA’s or SOW’s
provisions relating to IP ownership because the agreements specifically exempt IP
“previously developed” by goDesk/Distefano. (E.g., MSA, Article III, Section 2.A.)
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Similarly, the Employment Agreement expressly excluded from “Company Works” any
intellectual property that Distefano developed (1) entirely on his own time or (2) before
working with Nordic. Accordingly, plaintiffs argue that because “Wellward was a fully
developed program” and “Nordic simply provided personnel who assisted [Distefano] to
code his preexisting vision/schema/IP,” all Wellward IP fell within the exception to the IP
ownership provisions of the written agreements. (Plts.’ Resp. Br. (dkt. #154) 36–37.)
Again, however, the undisputed evidence is otherwise. To begin, plaintiffs cite
nothing but Distefano’s own, conclusory deposition testimony to support their assertion
that Wellward was a “fully developed program,” while the record shows Wellward did not
even exist until developed by Nordic. Tellingly, plaintiff Distefano cites no computer code,
schematics or other documents that would prove his assertion that the program was “fully
developed.” In fact, he identifies no Wellward IP at all to support this argument. Instead,
the only documents he cites are PowerPoint presentation slides that he had prepared and
copyrighted when he first pitched his conception of such a platform to InComm.
Moreover, even assuming this conception had some intrinsic value without years of
development into an actual healthcare software platform, Nordic has repeatedly informed
Distefano that he can independently continue to use those early documents. Accordingly,
his assertion that other IP exists falling outside the provisions of the MSA or SOWs is
insufficient to avoid summary judgment, particularly where the undisputed evidence shows
that Nordic hired programmers to build and develop code for Wellward, wholly
undermining plaintiffs claim to the program as “fully developed” before Nordic hired and
paid subcontractors and programmers to write the computer code for it.
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Similarly, besides Distefano’s own say-so, plaintiffs cite no evidence that the
Wellward IP was developed entirely on his “own time.” To the contrary, Distefano
conceded at his deposition that, as an “executive employee,” he was salaried, did not have
“working hours,” and was supposed to dedicate his “full efforts to [his] new job
description.” (Distefano dep. (dkt. #137) 286–88.) Distefano also offers no evidence
showing how much time he spent working on Wellward or when, nor does he point to any
IP that he created on his own time while simultaneously working for Nordic. Rather, the
only evidence in the record establishes that Distefano worked on Wellward as part of his
duties as the head of Advisory Services and he only began to claim independent ownership
after it became obvious that Nordic would reject his many entreaties to spin off its
Wellward platform into a separate company under his control.
In sum, plaintiffs cannot succeed on their oral or implied contract claim because:
(1) they have failed to show that an enforceable, oral or implied contract existed; and (2)
even if an oral or implied contract existed, it was overridden by subsequent written
agreements that plaintiffs entered into with defendant. Thus, defendant is entitled to
summary judgment on plaintiffs’ oral and implied contract claims (counts I and II).
II. Breach of Contract Claims (Counts V and VII)
Plaintiffs separately contend that defendant breached their relevant written
agreements by claiming sole ownership of IP previously developed by Distefano.6 To prove
6 Plaintiffs also claimed in their amended complaint that Nordic breached the First SOW by not
paying the $25,000 per month fixed services fee for December 2021, and the $15,000 Quarterly
Milestone Incentive Bonus for the same period. (Dkt. #47, ¶¶ 195-196.) However, plaintiffs failed
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breach of contract, plaintiffs must show (1) the existence of a contract between the
plaintiffs and the defendant; (2) breach of that contract; and (3) damages. Pines Bach,
LLP v. Mills, No. 22-cv-66-jdp, 2023 WL 6847118, at *2 (W.D. Wis. Oct. 17, 2023)
(citing Pagoudis v. Keidl, 2023 WI 27, ¶ 12, 406 Wis. 2d 542, 554, 988 N.W.2d 606, 612).
Here, plaintiffs cannot show that defendant breached any agreement.
As already discussed above, Nordic is asserting exclusive ownership only in IP
developed using Nordic’s resources after plaintiffs started to do consulting work for Nordic,
expressly including derivative works for which plaintiffs were required to grant a perpetual,
worldwide, nonexclusive, royalty-free license to use, copy, distribute, display, perform,
modify, make derivative works of, and otherwise use any pre-existing materials embedded,
incorporated or made part of the Wellward platform. (Dft.’s Br. (dkt. #161) 47; MSA
(dkt. #47-2) § III.2.C.) Defendant has confirmed in writing that it will not prevent
Distefano from using any IP he developed before he started this work for Nordic, including
his “idea/concept of a digital platform,” (Letter from Nordic’s counsel (dkt. #143-89)),
and plaintiffs cannot articulate an arguable breach by Nordic in use of a software platform
it bought and paid for. Indeed, defendant has even agreed that if Distefano had “fully
developed” the Wellward concept before coming to Nordic, he can take that concept and
hire his own coders to write code for it. (Dft.’s Br. (dkt. #161) 49.) However, defendant
argues, and the court agrees, that nothing in the written agreements creates an affirmative
obligation by defendant to give Distefano a copy of the source code that it paid employees
to respond to defendant’s arguments in support of summary judgment on that claim, thereby
conceding that defendant is entitled to summary judgment on it.
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and subcontractors, including plaintiffs, to write. Therefore, plaintiffs cannot succeed on
their breach of the parties’ written contracts.
III. Intentional Misrepresentation (Counts VI and VII)
Next, Counts VI and VIII of the amended complaint allege intentional
misrepresentation based on defendant’s alleged failure to disclose that: (1) defendant was
partnering with plaintiffs only to monetize the Wellward platform for itself and to claim
sole ownership; and (2) after the acquisition by Accrete, defendant no longer had authority
to spin-out a jointly owned company with Distefano to monetize the Wellward Platform.
(Dkt. #47, ¶¶ 181, 186, 201-202.) Plaintiffs allege that they would not have entered into
any of the written agreements if they had known defendant would claim sole ownership of
the Wellward platform.7
To succeed on a claim for intentional misrepresentation under Wisconsin law, a
plaintiff must prove: (1) the defendant made a factual representation; (2) which was
untrue; (3) the defendant either made the representation knowing it was untrue or made
7 In their brief in opposition to summary judgment, plaintiffs identify several new, false
representations that allegedly induced them to enter into the written agreements. (Dkt. #154, at
70.) However, the court declines to consider plaintiffs’ arguments based on these newly disclosed
statements. See Schmees v. HC1.COM, Inc., 77 F.4th 483, 488 (7th Cir. 2023) (upholding summary
judgment because the plaintiff raised entirely new allegedly fraudulent statements in her opposition
to the summary judgment motion that were not pleaded in the first amended complaint); Anderson
v. Donahoe, 699 F.3d 989, 997 (7th Cir. 2012) (“[A] plaintiff may not amend his complaint through
arguments in his brief in opposition to a motion for summary judgment.”); Shaw v. Metzen, Inc., No.
13-cv-847-wmc, 2015 WL 5123677, *7 (W.D. Wis. Sept. 1, 2015) (granting summary judgment
on a retaliation claim where the plaintiff argued a new theory in the opposition brief that the
plaintiff had not pleaded in his complaint); KDC Foods, Inc. v. Gray, Plant, Mooty, Mooty & Bennett,
P.A., No. 12–cv–636–bbc, 2013 WL 5777289, *18 (W.D. Wis. Oct. 25, 2013) (granting summary
judgment on an alleged fraudulent misrepresentation claim because the complaint only alleged
fraud on a failure to disclose).
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it recklessly without caring whether it was true or false; (4) the defendant made the
representation with the intent to defraud and to induce another to act upon it; and (5) the
plaintiffs believed the statement to be true and relied upon it to their detriment. Kaloti
Enters. v. Kellogg Sales Co., 2005 WI 111, ¶ 12, 283 Wis. 2d 555, 699 N.W.2d 205.
Plaintiffs claim fails on this record because they cannot prove that defendant made any
untrue factual representations. Instead, the evidence establishes that defendant expressly
disclosed in written agreements with plaintiffs that it would own any IP created using its
own resources. In particular, both the MSA and the Employment Agreement informed
Distefano that defendant would own any IP created during the scope of plaintiffs’ services.
Not only were these IP ownership provisions in the MSA and the Employment Agreement
unambiguous, but they were consistent with Distefano’s own experience signing other
agreements under which defendant would own any IP created by an independent
contractor. In short, the contractual terms provide the information that plaintiffs allege
defendant failed to disclose and any reliance to the contrary was unreasonable on its face.
In addition, after Nordic was acquired by Accrete, the evidence also shows that
Distefano knew that defendant needed Board approval to spin-out a jointly owned company
with Distefano, and that it lacked such approval. When Distefano negotiated the Second
SOW, the evidence shows he was also made aware that defendant had affirmatively deleted
all provisions related to a potential spin-out company. Nonetheless, plaintiffs signed the Second
SOW. Under this set of facts, no reasonable jury could conclude that defendant
intentionally misrepresented or surreptitiously omitted any agreement regarding their
ownership interest in any IP platform developed using defendant’s resources, nor of any
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commitment to a potential spin-out company, after Distefano started doing consulting
work for defendant. Thus, plaintiffs also cannot prove reliance on any such
misrepresentations when signing each of the written agreements.
IV. Unjust Enrichment (Count III)
Plaintiffs further contend that defendant has been unjustly enriched by claiming
ownership of the Wellward platform and source code. To prevail on a claim of unjust
enrichment the plaintiff must show that there was: (1) a benefit conferred upon the
defendant by the plaintiff; (2) an appreciation or knowledge by the defendant of the
benefit; and (3) acceptance or retention by the defendant of the benefit under
circumstances making it inequitable for the defendant to retain the benefit without
payment of its value. Puttkammer v. Minth, 266 N.W.2d 361, 363 (1978) (collecting cases).
Thus, it “is not enough to establish that a benefit was conferred and retained; the retention
must be inequitable.” Id. Further, a claim of unjust enrichment is not available where the
parties have entered into a contract. Northern Group, Inc. v. Tech 4 Kids, 352 F. Supp.3d
882, 887 (E.D. Wis. 2018) (quoting Cont’l Casualty Co. v. Wis. Patients Comp. Fund, 164
Wis.2d 110, 118, 473 N.W.2d 584 (1991).) “This is because the parties have already
bargained for the terms each is willing to accept, and no third person’s sense of justice
should upset the agreement into which they have freely entered.” Tech 4 Kids, 352 F.
Supp.3d at 887–88.
In this instance, plaintiffs unjust enrichment claim fails because the record shows
that the parties entered into multiple written agreements that expressly address the ownership
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of any IP created during the scope of services. The parties also negotiated the Second
SOW, which deleted any arguable agreement to create a spin-off company for Wellward.
Plaintiffs cannot avoid these contractual terms now through an unjust enrichment claim.
See Tech 4 Kids, 352 F. Supp. 3d at 888 (“Unjust enrichment is not a means for improving
the terms of a valid contract.”) Finally, although plaintiffs argue that Wellward falls
outside the scope of the written agreements, this argument also fails for all the reasons
discussed above. In short, the record evidence confirms that plaintiffs were acting within
the scope of their written agreements during their work on Wellward, and defendant is
entitled to summary judgment on plaintiffs’ unjust enrichment claim.
V. Declaration of Copyright Interest (Count IV)
Count IV of the Amended Complaint seeks a declaration that Distefano is: (1) the
sole author and owner of the materials he created related to the Wellward platform; (2) a
joint author of all schematics, flowcharts, presentations, slides, sale and marketing
materials, derivative works thereof, and other materials related to the Wellward platform
that he created; and (3) a joint author of the software code for the Wellward platform.
(Dkt. #47, ¶¶ 168–170.) Although acknowledging his “Registered Works” are not the
Wellward platform, plaintiffs further argue that “they are encompassed in Wellward.”
(Dkt. #154, at 71.)
Plaintiffs copyright claims cannot succeed for several reasons. First, plaintiffs fail
to identify specifically the “materials” for which he seeks a declaration of copyright
ownership. At most, plaintiffs have adduced evidence showing that Distefano created ideas,
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concepts, and previously-registered works. To begin, Nordic has never disputed
Distefano’s ownership to previously-registered works, so those works do not appear to be
at issue. (Dft.s’ Br. (dkt. #139) 62 (“Nordic Does Not Claim Authorship of Pre-Existing
Materials Created Before Distefano Began Working For Nordic.”). As for Distefano’s so-
called concepts and ideas, copyright law does not protect those -- it only protects the fixed
expression of an idea or concept. 17 U.S.C. § 102(b) (“In no case does copyright protection
for an original work of authorship extend to any idea…regardless of the form in which it is
described, explained, illustrated, or embodied in such work.”); Andy Warhol Found. for the
Visual Arts, Inc. v. Goldsmith, 598 U.S. 508, 526 (2023) (the expression an idea is
protectable by copyright, not the underlying facts or ideas themselves); Gaylord v. U.S.,
595 F.3d 1364, 1377 (Fed. Cir. 2010). Thus, without evidence that defendant is using
Distefano’s protected, fixed ideas (i.e., his previously registered works -- the seven specific
documents that Distefano registered with the U.S. Copyright Office) -- as part of the
Wellward code or in any other documents, it is irrelevant to copyright law whether
Wellward incorporated Distefano’s ideas into its work. Plaintiff offers no such evidence.
Regardless, as discussed throughout this opinion, the MSA and Employment
Agreement both provide that defendant would be the exclusive owner of any IP created
during plaintiffs’ work for defendant. In addition, under the Copyright Act, an employer,
like defendant, is the author and owner of any works made by its employees working within
the scope of their employment or engagement. Specifically, the Copyright Act defines “a
work prepared by an employee within the scope of his or her employment” as a “work
made for hire,” 17 U.S.C. § 101(1), and the employer owns all “works made for hire,”
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unless the parties agree otherwise in a separate signed written agreement. Id. at § 201(b).8
Since the opposite is indisputably true here, because Distefano’s work on the Wellward
platform was expressly within the scope of the parties’ written agreements, defendant owns
any IP related to Wellward under the written agreements and as “works made for hire.”
Nor can Distefano succeed on his claim that he is a “joint author” of the Wellward
platform code or other materials created while working for defendant as a consultant and
employee. The Copyright Act defines a “joint work” as “a work prepared by two or more
authors with the intention that their contributions be merged into inseparable or
interdependent parts of a unitary whole.” 17 U.S.C. § 101. In a joint work the co-authors
hold undivided interests in a work, despite any differences in each author’s contribution.
17 U.S.C. § 201. Each author has the right to use or license the use of the work, subject
to an accounting to the other co-authors for any profits. Erickson v. Trinity Theatre, Inc., 13
F.3d 1061, 1068 (7th Cir. 1994); Weinstein v. University of Illinois, 811 F.2d 1091, 1095
(7th Cir. 1987). Thus, even a person whose contribution is relatively minor enjoys a
significant benefit, if deemed to be a joint author. Erickson, 13 F.3d at 1068.
8 In their opposition brief, plaintiffs raise new copyright claims that were not included in their
amended complaint, including that defendant must transfer copyright interests to Distefano
pursuant to the alleged oral agreement and that Distefano is the owner of the Wellward code under
the “work made for hire” doctrine because he was the de facto employer of the Wellward coders.
The court declines to consider these new claims made for the first time at summary judgment, but
even if it did, they would fail on the merits. As discussed above, there was no valid oral agreement
between Distefano and defendant; nor is there evidence that support a finding that Distefano was
the employer of the Nordic employees who wrote code for Wellward. The evidence instead shows
that Distefano never paid any of the subcontractors’ salary and the subcontractors had written
agreements with Nordic, not Distefano.
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However, merely because two people collaborate to create a work does not make
them “joint authors.” Id. at 1068–69. To establish that their contributions were significant
enough to make him a joint author, a party must show that they and the other party: (1)
intended to create a joint work; and (2) each contributed independently copyrightable
material. Id. at 361. Certainly, Distefano proposed the idea of creating a digital health
software platform for defendant and led the team that eventually coded the platform,
however, the fact that the software was Distefano’s idea or even came to fruition under his
leadership is not enough to make him a joint author. “To qualify as an author of the
computer program, he must have translated his ideas into a fixed, tangible expression
entitled to copyright protection.” Woods v. Resnick, 725 F. Supp. 2d 809, 819 (W.D. Wis.
2010) (citing Community for Creative Non-Violence v. Reid, 490 U.S. 730, 737 (1989); 17
U.S.C. § 102; see also Publications Intern., Ltd. v. Meredith Corp., 88 F.3d 473, 481 (7th
Cir.1996) (“Protection for ideas or processes is the purview of patent.”).)
Here, plaintiffs have failed to identify any specific contribution of independently
copyrightable material by Distefano. At most, plaintiffs seek a declaration that Distefano
is a joint author of all “schematics, flowcharts, presentations, slides, sale and marketing
materials, derivative works thereof,” but plaintiffs fail to point to any evidence showing
specific “schematics, flowcharts, presentations, slides, sale and marketing materials,
derivative works thereof” that Distefano authored independently, save a few, early
conceptual documents. Similarly, Distefano has failed to identify any specific code that
he wrote for the Wellward platform. Thus, no reasonable jury could find that Distefano is
a joint author of the Wellward code. See Woods, 725 F. Supp. 2d at 819–20 (granting
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summary judgment on copyright claim for joint authorship, even though it was undisputed
that defendant came up with the idea and provided direction to coder, where the defendant
could not identify how many lines of source code he wrote, the subject matter of the source
code he wrote, or more specifics about the coding sessions the defendant alleged occurred).
Therefore, defendant is entitled to summary judgment on plaintiffs’ copyright claims as ell.
ORDER
IT IS ORDERED that:
1) Defendant Nordic Consulting Partners, Inc.’s motion for summary judgment
(dkt. #138) is GRANTED in full.
2) This case shall proceed to trial solely on defendant’s counterclaims.
Entered this 19th day of November, 2025.
BY THE COURT:
/s/
__________________________________________
WILLIAM M. CONLEY
District Judge
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