Echo, Incorporated v. LAWN EQUIPMENT PARTS COMPANY, Third-Party

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 11-1489 & 11-1493
ECHO, INCORPORATED,
Plaintiff/Counter-Defendant-Appellee,
v.
TIMBERLAND MACHINES & IRRIGATION, INC.,
Defendant/Third-Party Plaintiff-Appellant,
v.
LAWN EQUIPMENT PARTS COMPANY,
Third-Party Defendant-Appellee.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
Nos. 08 C 7123 & 09 C 2673—Charles P. Kocoras, Judge.
ARGUED SEPTEMBER 7, 2011—DECIDED OCTOBER 25, 2011
Before POSNER, FLAUM and HAMILTON, Circuit Judges.
FLAUM, Circuit Judge. This case involves two con-
solidated appeals, which arise out of the termination of

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2 Nos. 11-1489 & 11-1493
the business relationship between appellant Timberland
Machines & Irrigation, Inc. (“TMI”), a distributor, and
appellee Echo, Inc. (“Echo”), a supplier. After terminating
its distributor agreement with TMI, Echo turned TMI’s
former sales territory over to another distributor, appellee
Lawn Equipment Parts Company (“LEPCO”). TMI
claims Echo improperly terminated the distributor agree-
ment, and that LEPCO improperly induced Echo to do
so. Echo, in turn, seeks to recover from TMI on unpaid
invoices. The district court granted summary judgment
in favor of Echo and LEPCO (and against TMI) on
all claims. We affirm the judgment of the district court.
I. Background
A. Factual Background
Echo is a supplier of commercial and retail outdoor
power equipment, including power trimmers, chainsaws,
and blowers. TMI is a distributer of such outdoor power
equipment, as well as of irrigation equipment. TMI oper-
ated two divisions for purposes of distributing those
products—the Timberland Machines division and the
Sprinkler House division. Beginning in August 2004,
TMI distributed products supplied by Echo pursuant to
a Distributor Agreement. TMI’s sales territory for Echo
products covered several states in New England.
On October 21, 2008, Echo provided TMI with written
notice that it was terminating the Distributor Agreement
effective in sixty days. Echo then shifted sales responsi-
bilities for the New England region to another distributor,

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Nos. 11-1489 & 11-1493 3
LEPCO, which already handled sales for Echo in the Mid-
Atlantic region. According to Echo, it made the decision
to terminate TMI as a distributor in August 2008 in light
of TMI’s financial condition. In particular, TMI was in a
significant amount of debt, its lenders had refused to
loan it any more money, and one lender had threatened
to recall all loans to TMI. TMI responds that Echo vastly
overstates the financial difficulties it faced prior to
the termination of the Distributor Agreement.
Having decided to end its relationship with TMI, Echo
contacted LEPCO to determine whether it could assume
responsibility for the New England region. LEPCO pre-
pared a PowerPoint presentation dated September 30,
2008 demonstrating its ability to take over the additional
territory, and met with Echo to discuss the possible
transition. On December 22, 2008, New England was
added by Echo to LEPCO’s distribution territory.
During the time TMI acted as a distributor for Echo, it
also distributed products for other suppliers and manu-
facturers, including Exmark, Billy Goat, MTD/White
Outdoor, Columbia, Snow Ex, Kipor Generators, Yamaha
Generators, Brown, and Oregon Forestry. According to
TMI, however, none of the products it sold from other
suppliers competed with its Echo products. The district
court concluded that, between 2004 and 2008, TMI sold
more Exmark products (in terms of total sales and gross
profits) than it did products from any other supplier,
including Echo, whose products accounted for between
30 and 35% of TMI’s total sales and gross profits. However,
TMI contends that a proper calculation of its sales of

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4 Nos. 11-1489 & 11-1493
Echo products must include both (1) its sales of Bear Cat
products (a company Echo acquired in 2006) and (2) sales
of Echo products to Home Depot because, despite the fact
that Home Depot purchased directly from Echo, TMI
facilitated those sales and made a commission on the
sales of Echo products made by Home Depot stores in its
sales territory. TMI also maintains that sales made by
its Sprinkler House division should be disregarded, as
that division was not profitable. When the Bear Cat and
Home Depot sales are accounted for, and the Sprinkler
House is ignored, sales of Echo products account for
over 50% of TMI’s total sales and gross profits.
TMI closed its Sprinkler House division, which had
been unprofitable since 2006, in 2008. In February 2009,
TMI went out of business entirely.
B. Procedural Background
On December 11, 2008, Echo filed suit against TMI in the
Northern District of Illinois, asserting a breach of contract
claim, a goods sold and delivered claim, and an account
stated claim. Echo alleged that TMI had failed to pay
for products purchased from Echo; it sought damages
in the amount of the unpaid sum owed to Echo by TMI
plus interest. On December 23, 2008, TMI filed a
separate suit, also in the Northern District of Illinois,
against Echo and LEPCO. In its complaint, TMI asserted
various claims against Echo, including one for violation
of the Connecticut Franchise Act, Conn. Gen. Stat. § 42-133f
(2011). It set forth claims against LEPCO for tortious
interference with a contract, unjust enrichment, and for

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Nos. 11-1489 & 11-1493 5
The district court previously had dismissed TMI’s other 1
counterclaims against Echo.
violation of the Connecticut Unfair Trade Practices Act,
Conn. Gen. Stat. § 42-110b (2011). Shortly thereafter, on
December 31, 2008, TMI filed an answer in the original
case, and asserted counterclaims against Echo. The coun-
terclaims were identical to the claims against Echo in
the TMI-initiated suit. The two cases were consolidated
in the district court.
On October 1, 2010, Echo filed a motion for partial
summary judgment, seeking judgment in its favor on its
account stated claim and on TMI’s Connecticut Franchise
Act claim. That same day, LEPCO sought summary1
judgment on all of TMI’s claims against it. In its response
to Echo’s motion for summary judgment, TMI relied on
an affidavit from its President and Secretary, Mark
Zeytoonjian. Echo filed a motion to strike significant
portions of that affidavit on the ground that it offered
undisclosed expert testimony.
In an opinion dated January 18, 2011, the district court
granted Echo’s motion to strike paragraphs 16 through
108 of Mark Zeytoonjian’s affidavit. Echo, Inc. v.
Timberland Machs. & Irrigation, Inc., Nos. 08 C 7123, 09 C
2673, 2011 WL 148396, at *3 (N.D. Ill. Jan. 18, 2011). In
addition, the court granted Echo’s motion for partial
summary judgment and granted LEPCO’s motion for
summary judgment. On Echo’s account stated claim,
the court concluded that TMI owed Echo $1,607,092.77
in principal on unpaid invoices, and $215,152.30 in inter-

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6 Nos. 11-1489 & 11-1493
est. Id. at 6. Following the summary judgment rulings,
Echo and LEPCO filed a joint motion for entry
of final judgment, in which Echo sought a judgment on
the pleadings as to its remaining two claims. In
response, TMI stated that the motion should be denied
for the reasons stated in its briefs opposing Echo and
LEPCO’s motions for summary judgment. The district
court granted the motion and entered judgment on the
pleadings on Echo’s claims for breach of contract and
for goods sold and delivered. The damages award re-
mained unchanged. TMI appeals.
II. Discussion
We review the district court’s grant of summary judg-
ment de novo, construing all facts and inferences in the
light most favorable to TMI, the non-movant, in determin-
ing whether a genuine issue of material fact exists that
would preclude summary judgment. Bus. Sys. Eng’g, Inc.
v. Int’l Bus. Machs. Corp., 547 F.3d 882, 886 (7th Cir. 2008).
A. Mark Zeytoonjian’s Affidavit and TMI’s Connecti-
cut Franchise Act Claim Against Echo
The district court characterized portions of Mark
Zeytoonjian’s affidavit as expert testimony under
Federal Rule of Evidence 702, and struck those portions
as inadmissible because TMI had not disclosed
Zeytoonjian as an expert witness. TMI argues that
Zeytoonjian’s testimony should have been characterized
as lay opinion testimony under Rule 701, not as expert

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Nos. 11-1489 & 11-1493 7
testimony under Rule 702. As such, the court erred in
striking portions of the affidavit. We review the district
court’s classification of a witness as lay or expert de novo.
Compania Administradora de Recuperacion de Activos
Administradora de Fondos de Inversion Sociedad Anonima
v. Titan Int’l, Inc., 533 F.3d 555, 559 (7th Cir. 2008).
Rule 701 requires that lay testimony be “limited to
those opinions or inferences which are (a) rationally
based on the perception of the witness, (b) helpful to a
clear understanding of the witness’ testimony or the
determination of a fact in issue, and (c) not based on
scientific, technical, or other specialized knowledge
within the scope of Rule 702.” The final requirement is
designed “to eliminate the risk that the reliability re-
quirements set forth in Rule 702 will be evaded through
the simple expedient of proffering an expert in lay
witness clothing.” Fed. R. Evid. 701, Advisory Comm.
Notes, 2000 Amendment.
The stricken portions of Zeytoonjian’s affidavit are
integral to TMI’s Connecticut Franchise Act claim against
Echo. Therefore, a slight detour to discuss the Con-
necticut statute is appropriate. The Connecticut
Franchise Act prohibits franchisors from “terminat[ing],
cancel[ing] or fail[ing] to renew a franchise, except for
good cause.” Conn. Gen. Stat. § 42-133f(a). The Act
defines a “franchise” as an oral or written agreement or
arrangement in which:
(1) a franchisee is granted the right to engage in the
business of offering, selling or distributing goods or
services under a marketing plan or system prescribed

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8 Nos. 11-1489 & 11-1493
in substantial part by a franchisor, . . . and (2) the
operation of the franchisee’s business pursuant to
such plan or system is substantially associated with
the franchisor’s trademark, service mark, trade name,
logotype, advertising or other commercial symbol
designating the franchisor or its affiliate. . . .
Conn. Gen. Stat. § 42-133e(b). The district court did not
address the first requirement. Rather, it granted summary
judgment in favor of Echo on the ground that TMI
had failed to set forth sufficient evidence to create a
triable issue of fact regarding the second statutory re-
quirement for establishing a franchise—that TMI is sub-
stantially associated with Echo’s trademark, trade name
or other commercial name or symbol.
Courts have construed the Act’s “substantially associ-
ated” provision as requiring a plaintiff to show that
“most, if not all, of its business derives from association
with the defendant” in order to establish the existence of
a franchise. Rudel Mach. Co., Inc. v. Giddings & Lewis, Inc.,
68 F.Supp.2d 118, 124-28 (D. Conn. 1999). See also Con-
tractors Home Appliance, Inc. v. Clarke Distrib. Corp., 196
F.Supp.2d 174, 180 (D. Conn. 2002) (“while the Con-
necticut Franchise Act does not require that a putative
franchisee carry exclusively franchisor-trademarked
products, a showing that the putative franchisor’s
products account ‘for most or all of [the franchisee’s]
business’ is required”) (citation omitted). The “most or
all” language has its origins in a Second Circuit deci-
sion interpreting the Act, Grand Light and Supply Co., Inc.
v. Honeywell, Inc., 771 F.2d 672 (2d Cir. 1985). In Grand
Light, the Second Circuit explained:

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Nos. 11-1489 & 11-1493 9
The purpose of the statute was to prevent a
franchisor from taking unfair advantage of the relative
economic weakness of the franchisee. . . . In the ordi-
nary franchise situation, typically involving an ex-
clusive relationship, termination by the franchisor
could result in economic disaster for the franchisee.
Where the franchisee is completely dependent on the
public’s confidence in the franchised product for most
or all of his business, abrupt severance of the franchise
tie, without good cause and without sufficient
notice, could spell ruination.
Id. at 677 (emphasis added). Based on the “most or all”
formulation, courts have found that a franchise existed
only where at least half of the plaintiff’s business
resulted from its relationship with the defendant. See B &
E Juices, Inc. v. Energy Brands, Inc., No. 3:07 C 1321, 2007
WL 3124903, at *16 (D. Conn. Oct. 25, 2007) (no sub-
stantial association where sales constituted 40% of the
distributor’s business); Rudel, 68 F.Supp.2d at 124-28
(concluding that plaintiff failed to establish franchise
where sales of defendant’s products constituted approxi-
mately 41% of plaintiff’s business and the gross profit
attributable to sales of defendant’s products was approxi-
mately 40%); Dittman & Greer, Inc. v. Chromalox, Inc.,
No. 3:09 C 1147, 2009 WL 3254481, at *6 (D. Conn. Oct. 6,
2009) (evidence that defendant’s products accounted for
42% percent of plaintiff’s total sales and 33-34% of plain-
tiff’s gross profits not sufficient to establish a franchise
relationship); Hartford Elec. Supp. Co. v. Allen-Bradley Co.,
Inc., 736 A.2d 824, 837 (Conn. 1999) (finding franchise
relationship where half of plaintiff’s gross annual sales

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10 Nos. 11-1489 & 11-1493
were attributable to relationship with defendant).
Unlike the federal courts cited above, however, Connecti-
cut state courts have not weighed in on whether 50% is
a strict cut off.
Turning back to the affidavit, the stricken portions are
aimed at establishing that more than 50% of TMI’s sales
and gross profits resulted from its business with Echo.
In its summary judgment motion, Echo relied on sales
and gross profit figures demonstrating that less than
50% of TMI’s business was with Echo; Zeytoonjian
sought to discredit those figures. First, Zeytoonjian
stated that because TMI’s Sprinkler House division had
not been profitable, its sales and gross profits figures
should not be considered in determining TMI’s sales
and gross profits. He provided no further explana-
tion for that conclusion. Second, Zeytoonjian stated that
a portion of TMI’s freight costs and a portion of
dealer rebates must be deducted from the gross profits
attributable to Echo. Third, Zeytoonjian opined that sales
attributable to Bear Cat, a company acquired by Echo
in 2006, should be included in the total sales figure of
Echo products. Finally, he maintained that the commis-
sions TMI received from Echo for sales of Echo products
by Home Depot should be included in TMI’s gross
profits figure for Echo products, and that the Home
Depot sales related to those commissions should be
included in TMI’s gross sales figure of Echo products.
The district court excluded those opinions on the
ground that a layperson without knowledge of accounting
principles could not arrive at the conclusions Zeytoonjian

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Nos. 11-1489 & 11-1493 11
drew in his affidavit. For example, with respect to
Zeytoonjian’s assertions regarding Home Depot, the
district court reasoned that only an accounting expert
could say whether commissions for facilitating a third
party’s purchase of a supplier’s products directly from
the supplier should be included in the distributor’s
total sales figure for that supplier.
TMI disputes these exclusions and contends that
Zeytoonjian simply testified as to factual statements of
which he had personal knowledge as TMI’s president. As
the advisory committee notes to Rule 701 explain, a
business owner or officer is allowed to testify “to the
value or projected profits of the business, without [being
qualified] as an accountant, appraiser, or similar expert”
where that testimony is based on the “particularized
knowledge that the witness has by virtue of his or her
position in the business.” Fed. R. Evid. 701 Advisory
Comm. Notes, 2000 Amendment; see also Titan Int’l, 533
F.3d at 560; Von der Ruhr v. Immtech Int’l, Inc., 570 F.3d
858, 862 (7th Cir. 2009) (“In the realm of lost profits, lay
opinion testimony is allowed in limited circumstances
where the witness bases his opinion on particularized
knowledge he possesses due to his position within the
company.”). Zeytoonjian’s affidavit attacks both Echo’s
gross profit analysis and gross sales analysis.
We will begin with Zeytoonjian’s discussion of the
Sprinkler House division. The district court correctly
excluded Zeytoonjian’s opinion regarding the inclusion
of the Sprinkler House’s profits. Regardless of whether
that opinion constitutes expert testimony, it must be

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12 Nos. 11-1489 & 11-1493
stricken because it “rest[s] on [nothing more than
Zeytoonjian’s] say-so rather than a statistical analysis,” or
any other analysis for that matter. See Zenith Elecs. Corp. v.
WH-TV Broad. Corp., 395 F.3d 416, 419-20 (7th Cir. 2005)
(both expert and lay testimony is inadmissible where
it consists of unsupported inferences from raw data).
Because Zeytoonjian’s opinion that the Sprinkler House
division should be disregarded is supported by nothing
but his ipse dixit, it was properly excluded.
Including the Sprinkler House division’s sales and
gross profits figures in TMI’s overall calculations proves
fatal to TMI’s gross profit analysis. When these figures
are added, even accepting the reminder of Zeytoonjian’s
opinions (e.g., including Bear Cat revenues and Home
Depot commissions in the profit attributable to Echo),
business with Echo results in less than 50% of TMI’s total
gross profits in every relevant year. The figures range
from 34.41% to 41.37%.
Turning now to the gross sales analysis, if Zeytoonjian’s
opinion regarding the inclusion of the Home Depot
sales numbers in TMI’s sales of Echo products is
accepted, Echo products account for over 50% of TMI’s
total sales. The district court concluded that only an
accounting expert could say whether the Home Depot
sales should be included in TMI’s total sales figure
for Echo. However, given Zeytoonjian’s role as TMI
President and Secretary, he could likely assess the ap-
propriateness of including those sales.
Even so, in light of the Act’s purpose, it makes little
sense to include the Home Depot sales figures in TMI’s

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Nos. 11-1489 & 11-1493 13
The Act is designed to prevent franchisees from going out 2
of business as a result of termination by the more powerful
franchisor. The inquiry into the impact of such a termination
on the purported franchisee’s sales numbers is meant to deter-
mine how economically dependent the purported franchisee
is on its relationship with the purported franchisor.
sales of Echo products, as TMI did not benefit from the
full sales price on those products. Instead, TMI received2
a smaller commission on those sales. Therefore, the in-
clusion of the full sales numbers overstates the impact
of a termination on TMI’s bottom line. It makes
more sense to include only the commission figure in
determining the amount of Echo sales by TMI, as that is
the amount of money TMI will lose as a result of the
termination. If only the commissions, and not the full
sales numbers, are included in TMI’s sales of Echo prod-
ucts, Echo products account for less than 50% of TMI’s
total sales. In the relevant years, the figures range from
29.95% to 34.97%.
Apart from the discussion of profits and sales, TMI
argues that the fact that it went out of business alone
establishes the existence of the requisite substantial
association. In Hartford, the Connecticut Supreme Court
suggested that “the likely result of a disassociation of
the parties” may be an appropriate consideration in
determining “how dependent, or associated, the franchisee
is on its franchisor and its commercial symbols.” 736 A.2d
at 839. The court noted that some federal courts had
looked at such considerations, and noted that “[i]n the
present case, termination of the parties’ agreement would

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14 Nos. 11-1489 & 11-1493
result in the plaintiff losing one half of its gross annual
sales of $20 million,” and that “the trial court [had] found
that such an action would cause the plaintiff’s entire
business to fail.” Id.
No court, however, has relied solely on the fact that a
company went out of business to conclude that a
franchise relationship existed. More importantly, TMI’s
current claim that the Echo termination caused it to go
out of business is inconsistent with its position below
that “[t]he loss of Echo was not the death knell to [TMI]
because it could have survived absent a dire economy.”
Similarly, TMI also stated it “failed only because Fred
Zeytoonjian [TMI’s CEO] failed to invest $1.4 million
only because of a dire economy.” Accordingly, we affirm
the district court’s grant of summary judgment in Echo’s
favor on TMI’s Connecticut Franchise Act claim. As
demonstrated above, TMI failed to show that more than
50% of its business resulted from its relationship with
Echo, and thus failed to establish the requisite franchise
relationship.
B. Award of Interest on Echo’s Claims Against TMI
The district court awarded Echo $215,152.30 in interest
on its successful account stated claim. That award was
based on a rate of prime plus 4%, the rate Echo had
charged TMI on overdue balances in the past. Noting
that TMI did not dispute that late fees were owed, the
district court concluded that TMI had waived any
objection to the interest charges by not adequately de-
veloping its argument on that point.

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Nos. 11-1489 & 11-1493 15
In its brief opposing Echo’s motion for summary judg-
ment, TMI devoted the following three sentences to
the argument opposing an interest award:
A party in breach of a contract cannot seek the protec-
tion of its provisions. In the present case, Echo cannot
seek in its Account Stated claim recovery of interest
or late fees because it breached the franchise agree-
ment. The alleged contract sum also does not offset
Timberland’s damages. (citations omitted).
TMI makes the identical argument in its opening brief
on appeal, which does not address the district court’s
waiver determination. We agree with the district court
that the argument is too skeletal, and amounted to a
waiver. See Otto v. Variable Annuity Life Ins. Co., 134 F.3d
841, 855 (7th Cir. 1998) (argument raised in three sen-
tences is waived). TMI neither explains how Echo
breached the franchise agreement (it has clarified in
this Court, though only in its reply brief, that Echo alleg-
edly breached the franchise agreement by terminating
it without cause), nor what provisions of that agree-
ment Echo has invoked in seeking prejudgment interest.
Even if TMI had properly preserved that argument, it
fails on the merits. The account stated claim was not
based on the franchise agreement. Brad Foote Gear Works,
Inc. v. Delta Brands, Inc., 349 F.Supp.2d 1073, 1075 (N.D.
Ill. 2004) (material disputed fact concerning contract
claim “in no way precluded granting summary judgment
on the account-stated claim”). Nor was Echo’s claim
for interest based exclusively on the franchise agree-
ment. Rather, that claim appears to have been based on

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16 Nos. 11-1489 & 11-1493
language in Echo’s invoices, which TMI had paid in the
past.
TMI accepted the goods at issue, and thus is contract-
ually obligated to pay the interest stated on the
invoice under the Uniform Commercial Code, codified
at 810 Ill. Comp. Stat. 5/2-207 (West 2011); See K-Koncrete,
Inc. v. Mack Trucks, Inc., No. 85 C 9538, 1987 WL 9337, at *7
(N.D. Ill. Apr. 3, 1987) (“Illinois law . . . impose[s] a con-
tractual duty to pay interest on a party who (1) accepts
goods accompanied by an invoice stating an interest
obligation and (2) offers no objection to the stated
terms”) (referencing U.C.C. § 2-207(2)(c)); Inspec Foams,
Inc. v. Claremont Sales Corp., No. 01 C 8539, 2002 WL
1765630, at *3 (N.D. Ill. July 30, 2002) (under section 5/2-
207, “overdue payment interest penalty clauses in a
seller’s shipping documentation are not considered
material alterations of the parties’ contract and thus are
incorporated into the parties’ contract terms”); Extel Corp.
v. Cermetek Microelectronics, Inc., 539 N.E.2d 320, 323 (Ill.
App. Ct. 1989) (buyer required to pay interest pursuant
to the terms set forth in seller’s invoices where “there
was no showing that acceptance was limited to the terms
of the offer or that plaintiff objected to the interest pro-
vision within a reasonable time”). We affirm the
interest award.
C. TMI’s Claims Against LEPCO
1. Tortious Interference with Contract
In this diversity suit, we apply Illinois law to TMI’s
common law claims. See Business Sys. Eng’g, 547 F.3d at

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Nos. 11-1489 & 11-1493 17
Note that the district court cited both Illinois and Connecticut 3
law. TMI has shown no material difference between Illinois
and Connecticut law. Without such a showing, we apply
Illinois law to TMI’s common law claims.
886. To establish a tortious interference with a contract3
claim under Illinois law, a plaintiff has the burden of
proving the following elements: (1) the existence of a
valid and enforceable contract between the plaintiff and
a third party; (2) defendant’s awareness of the contract;
(3) defendant’s intentional and unjustified inducement
of a breach; (4) defendant’s wrongful conduct caused
a subsequent breach of the contract by the third party;
and (5) damages. Purmal v. Robert N. Wadington & Associ-
ates, 820 N.E.2d 86, 98 (Ill. App. Ct. 2004); La Preferida, Inc.
v. Cerveceria Modelo, S.A. de C.V., 914 F.2d 900, 905 (7th
Cir. 1990). The district court entered summary judgment
in LEPCO’s favor on TMI’s tortious interference claim
on the ground that TMI failed to present sufficient evi-
dence to establish the third and fourth elements.
We affirm.
On appeal, TMI maintains that LEPCO wrongfully
interfered with its Distributor Agreement by making a
pitch to Echo on September 30, 2008, in which it proposed
taking over TMI’s territory for Echo. LEPCO presented
evidence in support of its summary judgment motion—
including the testimony of Echo president Daniel
Obringer, Echo VP of Sales Michael Best, and LEPCO
president Jeffrey Clark—that LEPCO made the Septem-
ber 30 presentation at Echo’s request, and that Echo only

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18 Nos. 11-1489 & 11-1493
contacted LEPCO after making the decision to terminate
TMI in late August 2008. TMI attempts to create a
genuine issue of fact as to when the termination
decision was made by noting that the presentation in-
cluded a slide showing that LEPCO outperformed TMI.
TMI argues that LEPCO would not have included such
information had Echo already agreed to terminate its
relationship with TMI. Even construing in TMI’s favor,
such evidence does not create a genuine issue of fact. The
purpose of the presentation was to convince Echo that
LEPCO could take over the territory; while Echo had
decided to terminate TMI, it had not yet awarded the
business to LEPCO.
TMI also tries to create a fact issue by suggesting that
LEPCO built a new 225,000 square foot warehouse, which
TMI notes was much larger than LEPCO needed at the
time, in an effort to win TMI’s Echo territory. It is undis-
puted that LEPCO purchased the land for that ware-
house in June 2004, and opened it in January 2007. TMI’s
argument simply makes no sense, as TMI did not even
become an Echo distributor until August 2004.
Because TMI failed to create a genuine issue of fact as
to unjustified inducement by LEPCO or causation, we
affirm the district court’s grant of summary judgment
in LEPCO’s favor on TMI’s tortious interference claim.
2. Connecticut Unfair Trade Practices Act
The basis of TMI’s Connecticut Unfair Trade Practices
Act (“CUTPA”) claim against LEPCO is its tortious inter-

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Nos. 11-1489 & 11-1493 19
ference claim. Because we affirm the grant of summary
judgment as to the tortious interference claim, we
likewise affirm the grant of summary judgment in
LEPCO’s favor on TMI’s CUTPA claim.
3. Unjust Enrichment
TMI asserts two bases for its unjust enrichment claim
against LEPCO. It first relies on its tortious interference
claim. For the reasons stated above, that basis does not
support an unjust enrichment claim. TMI also contends
that LEPCO was unjustly enriched when Echo “mistak-
enly” gave LEPCO the business that previously be-
longed to TMI in violation of the Distribution Agree-
ment. That second contention turns on the outcome of
TMI’s Connecticut Franchise Act claim against Echo. As
noted above, we affirm the grant of summary judgment
to Echo on TMI’s Connecticut Franchise Act claim. Conse-
quently, the second basis for TMI’s unjust enrichment
claim fails. We affirm the grant of summary judgment
in LEPCO’s favor on TMI’s unjust enrichment claim.
III. Conclusion
For the foregoing reasons, we AFFIRM the district court’s
grant of summary judgment in favor of Echo and LEPCO.
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