L&R Saunders Assoc. d/b/a Radiology Professionals
Bank of America Notaries of America, Inc.
Bank of America L&R Saunders Prof'l Enter. Groups, Inc. d/b/a Nurse Practitioners of America
Bank of America L&R Saunders Prof'l Enter. Group, Inc. d/b/a Massage Therapists of America
Bank of America National Chiropractic Research Corp.
Bank of America
Submitted: June 22, 2012.
Upon Consideration of Defendant Bank of America's Motion to Dismiss Plaintiffs' Five Amended Complaints.
Matthew M. Carucci, Esquire Catherine M. Di Lorenzo, Esquire Carucci Di Lorenzo, LLC.
Brian M. Rostocki, Esquire John C. Cordrey, Esquire Reed Smith LLP.
RICHARD R. COOCH RESIDENT, JUDGE.
Before the Court are Defendant's Motions to Dismiss in five cases with similar facts and legal claims. The motions stem from Defendant's agreements with Plaintiffs to provide royalties in exchange for the right to solicit each Plaintiff's members as credit card customers. Plaintiffs assert that Defendant breached the agreements by (1) not marketing the credit cards as required, and (2) by not returning the recruitment lists. Because the factual record requires further development, all five Motions to Dismiss are DENIED.
I. FACTUAL HISTORY
There are five Plaintiffs and a joint Defendant on these Motions to Dismiss. The Plaintiffs are: (1) L&R Saunders Associates d/b/a Radiology Professionals ("Radiology Professionals"); (2) Notaries of America, Inc. ("Notaries"); (3) L&R Saunders Professional Entertainment Groups, Inc. d/b/a Nurse Practitioners of America ("Nurse Practitioners"); (4) L&R Saunders Professional Entertainment Group, Inc. d/b/a Massage Therapists of America ("Massage Therapists"); (5) National Chiropractic Research Corporation ("National Chiropractic").
Although each case has very similar facts, the facts are not identical. Each Plaintiff and MBNA America Bank, N.A. ("MBNA"), Bank of America's ("BOA" or "Defendant") predecessor in interest, executed agreements whereby MBNA agreed to market and provide credit card services to Plaintiffs' members. Plaintiffs received royalties from MBNA when its members signed up for credit cards under the agreements. Plaintiffs provided Defendant with membership recruitment lists. The agreements provided initial five year terms, but automatically renewed for successive two year periods, unless, in a writing at least ninety days prior to the original termination, either party stated its intention not to renew. The agreements provided that MBNA "shall make all credit decisions and shall bear all credit risks with respect to each Customer's account."
Each Plaintiffs' agreement with BOA was effectuated at different times and involved somewhat different terms and durations. Some agreements were amended, while others were never amended. The contracts also included various renewal stages. But as discussed below each contract remained active in 2008. Furthermore, each contract's terms were only slightly different; each agreement operated in the manner described and each is analyzed identically under this Motion.
In 2008, each Plaintiff began renegotiating with BOA. In June 2008, each Plaintiff received an email from BOA representative Julie Sills ("Sills"), who proposed new contract terms. In each complaint, Plaintiffs assert that Sills indicated Plaintiffs "could" wait to renegotiate the agreements later in the year "when things are better." Negotiations continued and in October 2008, Plaintiffs received a final renewal proposal from Sills. Sills allegedly encouraged Plaintiff to wait to sign the agreement and stated she "could" get better terms. Several days later, Sills allegedly indicated to all Plaintiffs that BOA was then unsure if the agreements would be extended. Plaintiffs were later informed that Sills was no longer a BOA employee.
Plaintiffs' complaints assert that BOA breached the agreements in two ways: (1) by failing to market the credit cards and; (2) by not returning the membership lists after the contract's termination. Defendant has attempted to challenge both assertions by asserting they are barred by the statute of limitations. Separately, Plaintiffs' complaints ...