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STATE OF MAINE BUSINESS AND CONSUMER COURT

Androscoggin, ss. Docket No. BCD-CV-11-26
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FORTUNE COMMUNICATIONS, INC.
d/b/a Fortune Consulting
Plaintiff

v.
CENTRAL MAINE HEALTHCARE CORPORATION

Defendant ORDER ON DEFENDANT'S MOTION FOR SUMMARYJUDGMENT
The motion for summaryjudgment ofDefendant Central Maine Healthcare Corporation (CMHC) came before the court for oral argument November 3, 2011.
Background Facts
The salient undisputed facts are set forth in detail in the parties' summary judgment filings and will only be summarized here, based on those filings. 1 PlaintiffFortune Communications, Inc. (Fortune), doing business as Fortune Consulting, provides consulting services to other businesses on telecommunications issues, including "telecommunications audits," which entail a review ofthe clients' telecommunications systems and networks to promote efficiency, eliminate errors and reduce costs. CMHC is an organization in the health care field with its principal offices in Androscoggin County, Maine.
In early 2009, Frank DiMascola, a vice-president ofFortune, contacted CMHC regarding the possibility ofFortune being retained to perform telecommunications consulting and/or auditing services for CMHC. In April 2009 and again in May 2009, Mr. DiMascola met
This summary offacts applies only to the summary judgment procedure.
with representatives ofCMHC to discuss the services Fortune could provide to CMHC. In the
course ofthose meetings, he gave representatives ofCMHC brochures ofmaterials regarding
Fortune, including descriptions ofFortune's services, its procedures for providing services, client
information and a sample copy ofFortune's standard form services agreement, titled
Telecommunications Audi and Services Analysis Letter ofAgreement (the "Letter of
Agreement"). Also included in the brochure was a "Statement of Confidentiality" that Mr.
DiMascola drafted two years before and began including in the Fortune brochure to help protect
materials in the brochure as confidential. He did so in response to seeing potential customers
use information in the brochure for their own benefit without Fortune's permission.
In the course of the April and May 2009 meetings, Mr. DiMascola went over the materials in the brochure with the CMHC representatives, and read the Statement of Confidentiality to them. The Statement of Confidentiality reads in full: "The materials contained herein, the attachments, and their contents are considered to be the proprietary materials ofFortune Consulting and shall not be used, in whole or in part, by any agent, client or prospect, without the expressed written consent ofFortune Consulting." The record does not reflect any specific response by representatives of CMHC to the Statement of Confidentiality, so there is no indication that they expressly agreed to it or rejected it, apart from whatever might be inferred from their apparent lack ofresponse after hearing it read to them.
The discussions continued, at least via e-mail, through 2009. Onjune 18, 2009, Mr. DiMascola sent an e-mail message to Denis Tanguay, director ofCMHC information technology department, and one ofthe CMHC representatives Mr. DiMascola had met with in May. Attached electronically to the message was a modified version ofthe Telecommunications Audi and Services Analysis Letter ofAgreement included in the brochure ofmaterials that Mr. DiMascola had provided and read to Mr. Tanguay and others in May. The modifications were limited to inserting the name ofan affiliate ofCMHC in the blank space for the name of"Client"
and to substitute a different signer's name for Fortune. However, nothing in the e-mail message
or the attached document referred back to the Statement ofConfidentiality or otherwise
suggested that the attachment contained confidential, proprietary or trade secret information.
Injuly 2009, there was a further meeting between representatives of the parties, and after
that meeting, onjuly 23 Mr. DiMascola sent another e-mail message to Mr. Tanguay, again
attaching the Letter ofAgreement with further modifications. Again, nothing in the message or
the attachment mentioned the Statement ofConfidentiality or otherwise suggested that the
attachment contained confidential, proprietary or trade secret information.
During the fall of 2009, Mr. DiMascola repeatedly contacted CMHC, in an unsuccessful
effort to find out where the potential agreement for CMHC to retain Fortune stood. Meanwhile
CMHC had made an internal decision to put its telecommunications audit requirements out to
bid. Mr. Tanguay prepared a Request for Proposals to be circulated among potential bidders,
including Fortune.
In doing so, he copied four paragraphs from the Letter Agreement draft that Mr.
DiMascola had sent to him as an attachment to thejuly 23 e-mail message. The four
paragraphs also appear in the Letter ofAgreement draft sent by Mr. DiMascola via e-mail in June as well as in the sample contained in the Fortune brochure that Mr. DiMascola had
provided and explained to CMHC representatives in April and May.
The paragraphs as they appear in all three versions of the Letter Agreement describe tasks Fortune-referred to as FC in the Letter ofAgreement-performs in the course ofa telecommunications audit. The four paragraphs and the prefatory sentence read as follows in all three versions of the Letter Agreement:
The Audit will include, at minimum, the following tasks and activities based on Customer Service Records, invoice and configuration details provided by the Client and/or their service providers and vendors upon commencement of the Audit:
l. Compare Client's current monthly billing against service provider/vendor agreements, identify billing anomalies, pursue recovery of any over payments, and work with service providers/vendors to prevent the identified issue(s) from recurring.
2.
Based on our preliminary analysis ofsystems, networks and service configurations, provide high level optimization recommendations. These recommendations will be based on our then current understanding of the Client's network environment. Any additional detailed analysis that may be required/requested by the Client is available from FC under a separate professional services agreement.

3.
Analysis results will be provided to the Client in writing with supporting documentation. All proprietary information provided by the Client used during the course ofthis Audit will be held in strict confidence by FC.

4.
Upon Client's receipt ofservice provider/vendor invoicing that was modified as a result of the Audit, FC will validate that all modifications were implemented properly. Should the Client require additional billing resolution assistance, FC can provide this service under a separate professional services agreement.


The RFP drafted by Mr. Tanguay for CMHC adopted only the Letter Agreement's first
numbered paragraph verbatim. The RFP includes Fortune's second numbered paragraph but
adds a sentence on "ring tests and tag and tone visits." Fortune's third and fourth numbered
paragraphs were reworded somewhat but repeated in substance as paragraphs 4 and 5 in the
RFP. This was due to Mr. Tanguay's inserting a new paragraph 3 in the RFP, apparently not
based on anything in the Letter ofAgreement, regarding a "support model recommendation"
and "IMAC activity."
CMHC sent the RFP, which was dated February 22, 2010, to Fortune (and presumably
other prospective bidders) on that date. When Mr. DiMascola saw that CMHC had copied parts
of the Letter ofAgreement, he was upset, but he and Fortune decided to say nothing because
they did not want to jeopardize their prospects for winning the CMHC contract. In March,
Fortune submitted a responsive bid, every page ofwhich was marked PROPRIETARY AND
CONFIDENTIAL.
Injune 2010, Fortune learned that CMHC had accepted a different bidder's proposal.
Mr. DiMascola then filed what his affidavit terms a "protest" in which, for the first time, Fortune
notified CMHC that it objected to portions ofits Letter ofAgreement form being incorporated
into CMHC's RFP.
Fortune filed this actionjune I, 2011. Its two-count complaint seeks damages for alleged
violations of the Maine Uniform Trade Secrets Act ["the Act"], 10 M.R.S.

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