1 

UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

PENN, LLC, et al., 

 

 Plaintiffs, Case No. 2:10-cv-0993 

 JUDGE GREGORY L. FROST 

 v. Magistrate Judge Terence P. Kemp 

 

PROSPER BUSINESS DEVELOPMENT 

CORPORATION, et al., 

 Defendants.

 

OPINION AND ORDER 

 This matter is before the Court upon Defendants’ motion for partial summary judgment 

on claims relating to the “Marketstar Arbitration Award” (ECF No. 130), Plaintiffs’ Fed. R. Civ. 

P. 56(d) motion to deny Defendants’ motion for summary judgment (ECF No. 137), Defendants’ 

combined opposition to Plaintiffs’ Rule 56(d) motion and reply in support of the motion for 

partial summary judgment (ECF No. 143), and Plaintiffs’ reply in support of their Rule 56(d) 

motion (ECF No. 144). For the reasons given below, the Court GRANTS Defendants’ motion 

for partial summary judgment and DENIES Plaintiffs’ Rule 56(d) motion. 

I. Background 

Plaintiff Penn, LLC (“Penn”) filed this action on behalf of itself and derivatively on 

behalf of Plaintiff BigResearch, LLC (“Big Research”), a limited liability company of which 

Penn and Defendant Prosper Business Development Corporation (“Prosper”) were members. In a 

nutshell, Penn alleges that Defendants Prosper, Phil Rist, and Gary Drenik improperly 

transferred and diverted assets, revenues, and business opportunities of Big Research for the 

benefit of Prosper. A general background of this case and its procedural history appears in 

Magistrate Judge Kemp’s Opinion and Order of August 20, 2012, and this Court’s Opinion and 

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Order granting in part and denying in part Defendants’ motion for partial summary judgment 

with regard to certain claims contained in the Complaint. (ECF Nos. 135 and 179.) The instant 

motions relate to another of Plaintiffs’ claims: Penn and Big Research allege that Defendants 

breached fiduciary duties owed to Plaintiffs when they reaped the benefits of an arbitration 

award won by Prosper in 2009 against MarketStar Corporation. The facts detailed below relate 

solely to the MarketStar arbitration. 

 Defendant Prosper describes itself as being in the business of “developing businesses,” 

such as aiding in the creation and launch of new business ventures. In 1996, Prosper, Drenik, 

and Rist created Sino Marketing Ltd. (“Sino”) to take advantage of Prosper’s business 

relationships in China. In particular, Prosper was trying to leverage its relationship with CITIC 

Beijing Guo-An Advertising Company (“CITIC”) and CITIC executive Yan Gang. 

 According to Prosper, its relationship with CITIC developed over several years. In 1996, 

Prosper (through Sino) became CITIC’s exclusive North American representative. Prosper was 

authorized to seek investors for various business opportunities with CITIC, including those in 

television, film, and print media advertising. The relationship between Prosper and CITIC was 

such that Yang Gang and/or CITIC utilized space in Prosper’s offices during business trips to 

Ohio to meet with potential business partners. 

 Penn and Prosper collaborated in October 2000 to form Big Research, each of them being 

equal owners. Big Research was formed as a company in the business of conducting survey 

research, which it would conduct using Penn’s subscriber database. According to Defendant 

Drenik, Big Research conducted some surveys internationally (including surveys of consumers 

in China), but that the company was not engaged in the development of business ventures 

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generally, whether in the United States or abroad. (Drenik Decl., ECF No. 130-1, at PAGEID# 

4860.) 

 In 2004, MarketStar contacted Big Research, seeking Big Research’s services for 

marketing research and the development of email newsletters and a video. In connection with 

this engagement, Big Research and MarketStar entered into a mutual confidentiality agreement. 

Under the terms of that agreement, each party had the mutual responsibility to refrain from 

disclosing confidential or proprietary information to anyone except “employees who have a 

‘need to know’” or using such information to the other party’s detriment. (ECF No. 130-1, at 

PAGEID# 4899.) The parties also agreed in the mutual confidentiality agreement “[n]ot to 

circumvent any third party relationships that may exist to the other’s detriment.” (Id.) 

 While working with Big Research on the services MarketStar contracted for, Ryan Brock, 

a MarketStar representative, became aware of Prosper’s connection with CITIC. MarketStar 

became interested in Prosper’s connection and Brock expressed that interest to Prosper. 

MarketStar’s interest led it to enter into a Strategic Marketing Alliance Agreement (“SMAA”) 

with Prosper for the purpose of developing “a strategic cooperative business relationship for their 

mutual benefit and which may utilize the services of each parties’ affiliated entities as needed.” 

(ECF No. 130-1, at PAGEID# 4893.) Pursuant to the SMAA, Prosper authorized MarketStar to 

market Big Research’s products and services. The parties also agreed that Big Research would 

develop three customized email video newsletters for MarketStar. The SMAA incorporated the 

earlier mutual confidentiality agreement by reference, thereby binding Prosper and MarketStar 

(in addition to Big Research) to safeguard the confidentiality of each other’s business 

information and not to use that information to the detriment of the other. 

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 MarketStar’s parent company was Omnicom Group, Inc. (“Omnicom”), a global 

advertising and marketing communications company. Before entering into the SMAA, 

MarketStar indicated to Prosper that MarketStar and/or Omnicom was interested in pursuing a 

business relationship with CITIC. After Prosper and MarketStar executed the SMAA, Drenik 

introduced Brock to Yan Gang. Prosper later agreed to facilitate the introduction of other 

representatives of CITIC and MarketStar/Omnicom to one another. (Drenik Decl., ECF No. 

130-1, at PAGEID# 4861.) 

 In October 2005, Drenik arranged a meeting between representatives of MarketStar, 

Omnicom, and CITIC in New York. At that meeting, CITIC disclosed that it was terminating a 

long term joint venture with its existing marketing and advertising company and actively seeking 

a new marketing and advertising partner. (Id.) After that meeting, Yan Gang indicated that he 

was interested in a follow-up meeting with Omnicom. There was evidence presented during the 

arbitration proceeding indicating that drafts of a Business Development Agreement (“BDA”) 

between Omnicom and Prosper were circulated in anticipation of that follow-up meeting, with 

Prosper’s understanding that no deal between Omnicom and CITIC could go forward without 

Prosper’s involvement. 

 In February 2006, Omnicom, CITIC, and Prosper held a second meeting at Omnicom’s 

offices in New York. Following this meeting, and without Prosper’s knowledge, Omnicom and 

CITIC conducted negotiations for a joint venture agreement between them. Omnicom and 

CITIC ultimately entered into a joint venture agreement in June 2006. Prosper did not receive 

any compensation for its efforts in bringing Omnicom and CITIC together. 

 In February 2007, Prosper filed a Notice of Arbitration with the Centre for Dispute 

Resolution, seeking arbitration of claims against MarketStar. Prosper alleged that the actions of 

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MarketStar and/or Omnicom circumvented the business relationship between Prosper and CITIC 

and violated the mutual confidentiality obligations that were incorporated into the SMAA 

between Prosper and MarketStar. The arbitrator (a retired Ohio state court judge) found in favor 

of Prosper, finding that MarketStar breached the confidentiality and non-circumvention 

provisions of the SMAA. 

 In finding for Prosper, the arbitrator took heed of the evidence presented with regard to 

how business is done in China. Because of China’s government regulations and complex 

bureaucracy, “it is important for a foreign company entering or expanding into the China market 

to have a Chinese connection.” (ECF No. 137-2, at PAGEID# 5081.) The arbitrator continued: 

Networks and relationships are extremely important in China to connect entities 

and people. Chinese business culture is built on trust and human relationships. It 

takes time to build a guanxi and once built requires nurturing. Guanxi is used as a 

currency to aid the establishment of a partnership between one company and 

another or one person and another. It provides a means for accomplishing “due 

diligence” or “vouching,” normally required between companies or persons, to get 

things done in an expeditious manner in a complex environment. It minimizes the 

risks otherwise faced by foreign companies without one. That’s why a guanxi is 

so coveted. 

(Id.) 

 The arbitrator ruled that it was Prosper’s “guanxi” with CITIC that made it possible for 

the Omnicom/CITIC joint venture to become reality. And it was the value of this “guanxi” that 

formed the basis for Prosper’s claims in the MarketStar arbitration. The arbitrator held that “[b]y 

bringing Omnicom to the table, Prosper vouched for Omnicom’s trustworthiness. Prosper used 

its guanxi with CITIC to give Omnicom the connection it needed to do business with CITIC.” 

(Id. at PAGEID# 5089.) 

 Armed with these (and other) factual findings, the arbitrator found that MarketStar 

breached its contractual obligations to Prosper under the SMAA and the mutual confidentiality 

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agreement. First, the arbitrator found that MarketStar shared Prosper’s confidential information 

about CITIC’s business with Omnicom without seeking a confidentiality agreement from 

Omnicom. This failure was a direct violation of the mutual confidentiality agreement. Second, 

the arbitrator found that MarketStar used Prosper’s confidential information to Prosper’s 

detriment. Finally, MarketStar circumvented Prosper’s relationship with CITIC “by failing to 

communicate with Prosper after the second meeting.” (ECF No. 137-2, at PAGEID# 5093.) 

Based on MarketStar’s breaches of contract, the arbitrator awarded Prosper damages in the 

amount of $4,750,000. (Id. at PAGEID# 5095.) 

 In this lawsuit, Penn sued on behalf of itself and Big Research, claiming, among other 

things, that Defendants breached fiduciary duties owed to Big Research by usurping business 

opportunities from Big Research. As relevant to the motions now before the Court, the 

Complaint asserts claims for conversion/unjust enrichment and breach of fiduciary duties as 

against Defendants Prosper, Rist, and Drenik. Among Plaintiffs’ theories of relief is that 

Defendants usurped “the business opportunities, assets and revenue of BigResearch and its 

member Penn, by virtue of the Marketstar [sic] Arbitration.” (Compl. & 148c., ECF No. 2, a 

PAGEID# 24-25.) In other words, Plaintiffs’ lawsuit seeks damages, in part, for Prosper’s 

successful pursuit of the arbitration award that Prosper obtained against MarketStar. 

II. Discussion 

Defendants ask the Court to grant partial summary judgment on any claims premised 

upon the MarketStar arbitration award won by Prosper. Summary judgment is proper “if the 

movant shows that there is no genuine dispute as to any material fact and the movant is entitled 

to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is material only if it might affect 

the outcome of the case under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 

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242, 249, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). On a motion for summary judgment, the 

court must view the evidence, and any reasonable inferences drawn from the evidence, in the 

light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio 

Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986) (citations omitted); Redding 

v. St. Eward, 241 F.3d 530, 532 (6th Cir. 2001). 

The moving party may discharge its initial summary judgment burden by “pointing out to 

the district court . . . that there is an absence of evidence to support the nonmoving party’s case.” 

Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). If the 

moving party satisfies its burden, the party opposing the motion “must come forward with 

specific facts showing that there is a genuine issue for trial.” Matsushita, 475 U.S. at 587. 

When the nonmoving party fails to adequately respond to a summary judgment motion, 

the court is not required to search the record to determine whether genuine issues of material fact 

exist. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989); see also Fed. R. 

Civ. P. 56(c)(1). Instead, the court will rely upon the “facts presented and designated by the 

moving party.” Guarino v. Brookfield Twp. Trustees, 980 F.2d 399, 404 (6th Cir. 1992). 

Ultimately, the Court must determine whether the evidence is so one-sided that the moving party 

must prevail as a matter of law. Anderson, 477 U.S. at 252. 

A. Plaintiffs’ Rule 56(d) Motion 

The Court first considers Plaintiffs’ “Rule 56(d) Motion to Deny Defendants’ Motion for 

Partial Summary Judgment.” (ECF No. 137.) Fed. R. Civ. P. 56(d) provides that a party may 

oppose a motion for summary judgment by submitting an affidavit explaining why it cannot 

present facts essential to justify its opposition. A party invoking Rule 56(d) in this fashion, 

however, has the burden of informing the district court of his need for discovery. Murphy v. 

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Greiner, 406 F. App’x 972, 976 (6th Cir. 2011). Rule 56(d) does not shield parties who were 

dilatory in conducting the necessary discovery. Mallory v. Noble Corr. Inst., 45 F. App’x 463. 

469 (6th Cir. 2002). 

In their Motion and in an affidavit submitted by their counsel, Plaintiffs contend that 

“critical” depositions have yet to take place and that said discovery will demonstrate the 

existence of a genuine issue of material fact with respect to the Defendants’ alleged usurpation of 

business opportunities related to the MarketStar arbitration. In particular, Plaintiffs argue that it 

has not had the opportunity to depose Joe Pilotta, a Big Research employee during the relevant 

time period. (Pls.’ Mot., ECF No. 137, at PAGEID# 5072.) Plaintiffs contend that they expect 

the facts to demonstrate that the “guanxi” that was so key to the arbitrator’s ruling was developed 

by Pilotta as a Big Research employee, thereby entitling Big Research to a share of the 

arbitration award.1

 (Id.) Plaintiffs further contend that their failure to provide evidence in 

opposition to summary judgment is “no fault of their own.” (Id.) 

In response, Defendants contend that Plaintiffs do not require additional discovery to 

oppose the summary judgment, as Plaintiffs have everything they would need to establish a 

genuine issue of material fact (if any). Defendants argue they have produced “all pleadings, 

correspondence, and discovery exchanged between the parties in the MarketStar Arbitration and 

the subsequent appeals to the courts.” (Defs.’ Opp’n, ECF No. 143, at PAGEID# 5202.) This 

material included the deposition and hearing testimony of Drenik, Rist, and Pilotti during the 

arbitration proceeding. With Plaintiffs having this “complete access” to the factual record from 

the MarketStar arbitration, Defendants argue that the record is more than sufficient for purposes 

 

1 Plaintiffs make this claim despite the evidence at the arbitration indicating that Drenik and Pilotta 

cultivated their business relationship with CITIC during the mid-1990s, long before Big Research was 

formed. (Final Award of Arbitrator, ECF No. 137-2, at PAGEID# 5082.) 

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of Plaintiffs’ preparation of a substantive opposition to Defendants’ motion for partial summary 

judgment. 

What’s more, Defendants lambaste Plaintiffs for the purported failure to obtain necessary 

discovery related to the MarketStar arbitration. While Plaintiffs decry the need to depose Pilotta, 

Defendants argue that Plaintiffs had ample opportunity to do so before the close of discovery. 

Though Pilotta’s deposition was scheduled for June 2012 but postponed (due to Pilotta’s 

unavailability), Defendants note that Plaintiffs never tried to reschedule the deposition at any 

point thereafter. (ECF No. 143, at PAGEID# 5204.) Plaintiffs’ failure to secure Pilotta’s 

deposition when they could have done so, argue Defendants, requires denial of Plaintiffs’ Rule 

56(d) request for the Court to defer ruling on Defendants’ motion for summary judgment. 

Predictably, Plaintiffs take umbrage at the notion that they should have obtained the 

necessary discovery to oppose Defendants’ motion for summary judgment before Plaintiffs filed 

their Rule 56(d) motion. Plaintiffs note that the Magistrate Judge granted in part a motion to 

compel last August, requiring Defendants to produce “a broad array” of records. (Pls.’ Reply, 

ECF No. 144, at PAGEID# 5267.) And as to the failure to depose Pilotta, Plaintiffs point to the 

transcript from a June 18, 2012 status conference before the Magistrate Judge, in which 

Defendants’ counsel balked at convening certain depositions before the Magistrate ruled on 

Plaintiffs’ pending motion to compel. (Id. at PAGEID# 5276.) 

After considering the parties’ arguments and the evidence submitted, the Court finds 

Plaintiffs’ Rule 56(d) motion to be without merit. Plaintiffs place great emphasis upon the June 

18 status conference and the Magistrate’s August 20 decision on the motion to compel as 

justification for any delay in obtaining necessary discovery with respect to the MarketStar 

arbitration. But the record does not support Plaintiffs’ arguments. Though both the June 18 

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status conference and the August 20 decision on the motion to compel touched upon a variety of 

discovery issues, none of them had to do with the MarketStar arbitration. Moreover, Defendants 

note (and Plaintiffs do not dispute) that Pilotta is no longer an employee of Big Research and is 

in no way controlled by Defendants or any of Prosper’s related companies. The Court sees no 

reason that would have prevented Plaintiffs from taking Pilotta’s deposition notwithstanding the 

postponement of other depositions that was discussed in the June 18 status conference. Finally, 

and conspicuously, Plaintiffs have no rejoinder to Defendants’ point that all MarketStar 

arbitration materials were previously produced and that said materials should have provided 

enough evidence for Plaintiffs to oppose summary judgment. 

Plaintiffs have failed to sustain their burden of showing their entitlement to, much less 

the need for, additional discovery before this Court rules on Defendants’ motion for partial 

summary judgment. The Court therefore DENIES Plaintiffs’ Rule 56(d) motion (ECF No. 137). 

B. Defendants’ Motion for Partial Summary Judgment 

Having found that Plaintiffs are not entitled have this Court defer ruling on Defendants’ 

motion for partial summary judgment, it is appropriate for this Court to proceed to the merits of 

Defendants’ motion. See Cacevic v. City of Hazel Park, 226 F.3d 483, 488 (6th Cir. 2000) 

(finding no abuse of discretion by the district court to grant summary judgment “if it is otherwise 

appropriate” when the non-moving party fails to establish entitlement to relief under then-Rule 

56(f) (now Rule 56(d)). 

Plaintiffs’ claims relating to the MarketStar arbitration are premised upon the theory that 

Prosper wrongfully exploited the MarketStar opportunity for itself. Delaware law, which 

provides the substantive law applicable to this case, describes the doctrine of corporate 

opportunity as “but one species of the broad fiduciary duties assumed by a corporate director or 

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officer.” Broz v. Cellular Information Systems, Inc., 673 A.2d 148, 154 (Del. 1996).2 “In light 

of the diverse and often competing obligations faced by directors and officers . . . the corporate 

opportunity doctrine arose as a means of defining the parameters of fiduciary duty in instances of 

potential conflict.” Id. 

To show a wrongful usurpation of business opportunity in this case, Plaintiffs must show 

(1) Big Research was financially able to exploit the MarketStar opportunity, (2) the opportunity 

was within Big Research’s line of business, (3) Big Research had an interest in the opportunity, 

and (4) by taking the opportunity for themselves, Defendants placed themselves in a position 

“inimical” to their duties owed to Big Research. Id. at 154-55. Defendants argue in their motion 

that Plaintiffs cannot establish a usurpation of business opportunity because the business 

opportunity at issue in the MarketStar arbitration was not within Big Research’s line of business. 

Because the claims in the MarketStar arbitration involved only MarketStar’s misuse of Prosper’s 

assets (namely, its “guanxi” with CITIC) to the detriment of Prosper, Defendants argue that Big 

Research cannot possibly show that Defendants usurped an opportunity. According to 

Defendants, “[a]ny fair reading of [the arbitration] Award conclusively demonstrates that Big 

Research’s line of business — consumer market research — had nothing to do with that Award. 

Rather the MarketStar Award was based solely on Omnicom’s breach of the [SMAA] (a contract 

solely between Prosper Business and MarketStar) by circumventing Prosper Business’s 

relationship with CITIC, something it developed 4 or 5 years prior to Big Research’s formation.” 

(Defs.’ Reply, ECF No. 143, at PAGEID# 5207.) 

 

2 The Big Research operating agreement provides that “[a]ll questions with respect to the construction of 

this Agreement and the rights and liabilities of the parties shall be determined in accordance with the 

applicable provisions of the laws of the State of Delaware, and this Agreement is intended to be 

performed in accordance with, and only to the extent permitted by, all applicable laws, ordinances, rules 

and regulations of such state.” 

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For their part, Plaintiffs use the evidence submitted by Defendants to support an 

argument that a genuine issue of material fact exists for trial. Citing Defendants’ description of 

the steps taken between 2004 and 2006 to foster a relationship between MarketStar/Omnicom 

and CITIC, Plaintiffs argue it is unclear whether these “steps” were properly taken on behalf of 

Prosper as opposed to Big Research. Plaintiffs make much of the fact that it was Big Research 

that entered into the mutual confidentiality agreement with MarketStar in April 2004. Thus, 

when the SMAA incorporated by reference the mutual confidentiality agreement, Plaintiffs argue 

that the parties were incorporating an agreement to which Big Research was a party. (Pls.’ 

Reply, ECF No. 144, at PAGEID# 5273.) According to Plaintiffs, this is significant because the 

MarketStar arbitration placed at issue an alleged breach by MarketStar of the mutual 

confidentiality agreement. Because of Big Research’s “nexus” to the contracts at issue in the 

MarketStar arbitration, Plaintiffs raise some question as to whether Prosper should have reaped 

the benefit of the entire MarketStar arbitration award. 

 Unfortunately for Plaintiffs, their arguments obfuscate the issues more than they 

illuminate any genuine issue of fact for trial. Conspicuous by its absence is any reference by 

Plaintiffs to the arbitration award itself or the decision by the United States District Court for the 

District of Utah, which confirmed the award. See Marketstar Corp. v. Prosper Bus. Dev. Corp., 

No. 2:07-cv-0132, 2009 U.S. Dist. LEXIS 81398 (D. Utah Sept. 8. 2009). The arbitrator found 

that Marketstar breached its contract with Prosper in three ways: (1) by failing to protect 

Prosper’s confidential information about CITIC’s business when it shared the information with 

Omnicom, (2) by failing to advise Prosper that Omnicom would not sign the proposed BDA, and 

(3) by permitting Omnicom to circumvent Prosper’s third-party relationship with CITIC to 

Prosper’s detriment. (Final Award of Arbitrator, ECF No. 137-2, at PAGEID# 5091-93.) The 

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arbitrator went on to calculate a damages award that was based in large part upon the value of the 

joint venture facilitated by Prosper, using testimony by Prosper’s expert witness. (Id. at 

PAGEID# 5089-91, 5095.) 

 A close reading of the arbitrator’s award reveals that the claims in the MarketStar 

arbitration related to MarketStar’s (and Omnicom’s) misappropriation of Prosper’s “guanxi” 

with CITIC. In essence, MarketStar and Omnicom used Prosper to gain an introduction to 

CITIC, only to shut Prosper out of the eventual joint venture agreement that sprang from that 

introduction. Plaintiffs have failed to present evidence that would enable a reasonable trier of 

fact to conclude that the claims and award in the MarketStar Arbitration had anything to do with 

the services provided by Big Research. Indeed, rather than usurp opportunity from Big 

Research, the agreements at issue in the MarketStar arbitration show that Prosper procured 

business for Big Research by having Big Research perform services for MarketStar. And there is 

unrefuted evidence in the summary judgment record that Big Research was “paid in full” for the 

services that MarketStar agreed to purchase from Big Research. (Drenik Decl., ECF No. 130-1, 

at PAGEID# 4861.) 

The dispute in the MarketStar arbitration appears to have had everything to do with 

MarketStar’s misappropriation of Prosper’s information and relationships and nothing to do with 

the services Big Research performed. Accordingly, the Court finds Defendants’ motion for 

partial summary judgment well-taken. 

 

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III. Conclusion 

For the reasons set forth above, Plaintiffs’ Rule 56(d) motion to deny or defer ruling on 

Defendants’ motion for partial summary judgment (ECF No. 137) is DENIED. Defendants’ 

motion for partial summary judgment on claims related to the MarketStar arbitration award (ECF 

No. 130) is GRANTED. 

 IT IS SO ORDERED. 

 /s/ Gregory L. Frost 

 GREGORY L. FROST 

 UNITED STATES DISTRICT JUDGE

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