UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

TELECOM AMERICA, INCORPORATED, 

Plaintiff-Appellant,

v.

ONCOR COMMUNICATIONS,

INCORPORATED, a Delaware

Corporation,  No. 01-1765 Defendant-Appellee,

and

NATIONAL OPERATOR SERVICES,

INCORPORATED, a Maryland

Corporation,

Defendant. 

Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

Alexander Williams, Jr., District Judge.

(CA-98-679-AW)

Argued: February 28, 2002

Decided: March 19, 2002

Before WIDENER and MOTZ, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion. 

COUNSEL

ARGUED: Alan C. Thomas, FISCHER, PORTER, CALIGUIRE &

THOMAS, P.C., Englewood Cliffs, New Jersey, for Appellant. Jef-
frey Martin Schwaber, STEIN, SPERLING, BENNETT, DE JONG,

DRISCOLL & GREENFEIG, P.C., Rockville, Maryland, for Appellee. ON BRIEF: Arthur L. Porter, Jr., Jay D. Fischer, Scott H. Goldstein, FISCHER, PORTER, CALIGUIRE & THOMAS, P.C.,

Englewood Cliffs, New Jersey, for Appellant. Alexia Kent Bourgerie,

STEIN, SPERLING, BENNETT, DE JONG, DRISCOLL & GREENFEIG, P.C., Rockville, Maryland, for Appellee. 

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

In this diversity action, Telecom America, Incorporated, sues

Oncor Communications, Incorporated, for breach of contract, unjust

enrichment, and various related torts. The district court granted Oncor

summary judgment on Telecom’s breach of contract claim, and, after

Telecom presented its evidence, judgment as a matter of law on Telecom’s remaining claims. Telecom appeals; we affirm. 

I.

Oncor provides long-distance telephone service. To build its customer base, Oncor entered into a contract with National Operator Services, Incorporated (NOS), under which NOS agreed to solicit owners

of public telephone sites onto the Oncor network. NOS, in turn,

entered into a contract with Telecom, under which Telecom directly

solicited sites for NOS. Periodically, Oncor would determine the call

activity of each site assigned to the network by NOS, and pay NOS

a commission. NOS then remitted a percentage to Telecom for sites

Telecom had referred; Telecom, finally, would pay a percentage back

to site owners for the right to continue serving as their agent (i.e., for

authorization to switch their sites from one long distance service to

another). 

2 TELECOM AMERICA v. ONCOR COMMUNICATIONS
In the Spring of 1995, a dispute arose between Oncor and NOS,

and on June 30, Oncor stopped making commission payments to

NOS. NOS sued Oncor in state court, and at the same time suspended

payments to its site solicitors, including Telecom. Consequently,

Telecom attempted to obtain payment from Oncor. 

Telecom and Oncor engaged in a series of conversations, at the end

of which Oncor wrote Telecom a letter dated July 13, 1995. The letter

briefly described the relationship between NOS and Telecom, and

then stated, in pertinent part: 

NOS has informed Telecom America that it will not pay all

or any portion of the commissions and surcharges due to

Telecom America on July 15, 1995 (the "July Payment").

Based upon such statement by NOS you [Telecom] have

contacted Oncor to determine if Oncor would be willing to

pay Telecom America the July Payment owed to Telecom

America by NOS. 

Based upon the representation and agreements made by

Telecom America and contained in this letter, Oncor will

agree to pay to Telecom America the July Payment. You

will provide Oncor with such documents as may be reasonably requested by Oncor, including a list of all public pay

phone Sites brought to Oncor through the efforts of Telecom

America, so that the parties can calculate and Oncor can

verify the amount properly due to Telecom America. Once

Oncor and Telecom America agree upon the amount due to

Telecom America by NOS, Oncor shall pay such amount.

Telecom America covenants and agrees to pay the Sites all

sums do [sic] and owing to such parties. 

Oncor will continue to make such payments to Telecom

America each month for so long as (i) NOS fails to pay all

sums properly due to Telecom America pursuant to the

Agreement [between NOS and Telecom], and (ii) no legal

or regulatory action is taken which would prohibit or limit

Oncor’s ability or right to make such payments. Telecom

America covenants and agrees that for so long as Oncor

makes payments on behalf of NOS, that Telecom America

TELECOM AMERICA v. ONCOR COMMUNICATIONS 3
shall not move any of its Sites off of the Oncor network and

further agrees that it will not solicit any public pay phone

customers on the Oncor network and attempt to move them

to another operator service provider. 

Telecom America acknowledges and agrees that the payments made by Oncor are an accommodation to Telecom

America and Oncor is not in any way assuming ongoing liability or obligations under Telecom America’s Agreement

with NOS. . . . 

If you agree with the terms and conditions set forth in this

letter, please acknowledge your acceptance by signing this

letter in the space provided below and returning an original

to me for Oncor’s files. 

Although no representative of Telecom ever signed the July 13 letter, on July 17 Telecom sent Oncor a database of its 8,000 active and

inactive sites, including contact names, phone numbers and addresses

of the site owners as well as the contract terms, and commission

arrangements between Telecom and the site owners. On July 21,

1995, however, NOS obtained an order from the state court, effective

July 17, compelling Oncor to pay into an escrow account all money

"due and payable to [NOS’] sites and subagents" and prohibiting

Oncor from having any "direct contact with" the site owners or subagents. Five days later, in a letter dated July 26, Oncor informed Telecom that "[b]ased upon the Court’s [July 17] order, Oncor must

retract any offers made by Oncor in its July 13, 1995 letter." Telecom

nevertheless kept its sites on the Oncor network for some unspecified

length of time and, to date, Oncor has never paid any commissions

or surcharges to Telecom for these customers. 

On August 21, 1995, NOS and Oncor settled the suit NOS had

brought against Oncor in state court. According to the terms of that

settlement, Oncor (1) forgave NOS $1,908,906 of prepaid commission debt and (2) paid NOS $436,000. On the next day, NOS sent

Telecom a proposed release requiring NOS to pay Telecom $65,074

(an amount equal to the commissions owed to Telecom for the month

of May 1995) in exchange for Telecom’s acknowledgment that it had

been paid all past commissions and that "all claims, past, present and

4 TELECOM AMERICA v. ONCOR COMMUNICATIONS
future, are hereby waived." Telecom and NOS executed this agreement without material change, and NOS made the agreed-upon payment to Telecom. 

According to Telecom, Oncor then "began directly soliciting Telecom’s customers," using both the data it had "tricked Telecom into

providing," and also an "authorization" it had received from NOS

allowing it "to circumvent NOS and its subagents, i.e., Telecom, and

deal directly with the site owners that they provided." 

On April 20, 1998, Telecom filed this action against both NOS and

Telecom, alleging that it was entitled to payment from both companies under several theories. In May 1999 the district court granted

Oncor summary judgment on Telecom’s claim that Oncor breached

a contract it had entered into with Telecom. On May 3, 2000, Telecom settled with NOS. A bench trial on Telecom’s other claims

against Oncor began on May 7, and at the close of Telecom’s case

Oncor moved for judgment as a matter of law pursuant to Rule 52(c).

The court granted the motion and Telecom appeals. 

We review the district court’s grant of summary judgment on the

breach of contract claim de novo. As to the other claims, on which

the district court granted judgment as a matter of law pursuant to Rule

52(c), we review the court’s findings of fact for clear error and its

conclusions of law de novo. See Carter v. Ball, 33 F.3d 450, 457 (4th

Cir. 1994). The parties agree that Maryland law governs their dispute.

II.

Telecom contends that Oncor’s July 13, 1995 letter constituted a

contract between the parties, which it fully performed and Oncor

breached. Specifically, Telecom maintains that the letter "contained

unilateral promises by Oncor that invited Telecom’s acceptance by

performance," and that Telecom performed (i.e., sent its database disk

to Oncor) according to the terms spelled out in the letter. Brief of

Appellant at 27. However, in the July 13 letter Oncor specifically

notified Telecom: "[i]f you agree with the terms and conditions set

forth in this letter, please acknowledge your acceptance by signing

this letter in the space provided below and returning an original to me

for Oncor’s files." (Emphasis added). The letter also contained a

TELECOM AMERICA v. ONCOR COMMUNICATIONS 5
space for Telecom to sign under the words "ACCEPTED AND

AGREED TO BY." Telecom never signed or returned the letter, and

so the district court held that, as a matter of law, no contract was

formed. 

Telecom contends that this holding was error. The company relies

on Porter v. General Boiler Casing Co., Inc., 396 A.2d 1090 (Md.

1977), for the proposition that "in certain circumstances signatures are

not required to bring a contract into being." Brief of Appellant at 27.

Of course this is true, but those "circumstances" are limited. As the

Court of Appeals of Maryland explained in Porter, "there need be no

signatures unless the parties have made them necessary at the time

they expressed their assent and as a condition modifying that assent."

396 A.2d at 1095 (emphasis added). Given the plain language of the

July 13 letter, it does not appear that the district court erred in concluding that in this case signatures were necessary. 

But even assuming that the July 13 letter did constitute a contract

between the parties, Oncor’s obligations under the contract were

either conditional or fully performed. The July 13 letter stated that

Oncor was not obligated to make payments if any "legal or regulatory

action is taken which would prohibit or limit Oncor’s ability or right

to make such payments." Shortly thereafter, the state court issued an

injunction barring such payments. The letter also made clear that

Oncor’s payments were entirely derivative of NOS’s liability; that is,

Oncor agreed to pay only so long as "NOS fails to pay all sums properly due to Telecom America pursuant to the Agreement [between

NOS and Telecom]." When Telecom accepted a settlement from NOS

on August 23, it waived all of its past and future claims arising from

its contract with NOS. Therefore, Oncor’s derivative liability also

came to an end. 

For all of these reasons, the district court did not err in granting

Oncor summary judgment on Telecom’s breach of contract claims. 

III.

Alternatively, Telecom maintains that Oncor was unjustly enriched

when it received and used Telecom’s confidential information, and

6 TELECOM AMERICA v. ONCOR COMMUNICATIONS
retained Telecom’s sites on the Oncor network, without compensating

Telecom. 

Under Maryland law a plaintiff must prove three elements to make

out an unjust enrichment claim: 

1. A benefit conferred upon the defendant by the plaintiff;

2. An appreciation or knowledge by the defendant of the

benefit; and 

3. The acceptance or retention by the defendant of the benefit under such circumstances as to make it inequitable for the

defendant to retain the benefit without the payment of its

value.

Mass Transit Admin. v. Granite Const. Co., 471 A.2d 1121, 1125

(Md. Ct. Spec. App. 1984) (quoting Everhart v. Miles, 422 A.2d 28

(Md. Ct. Spec. App. 1980)). 

The district court held that Telecom had failed to prove the third

element — that Oncor retained a benefit without payment in circumstances in which it was inequitable to do so. Specifically, after careful

consideration of Telecom’s evidence, the court found that Telecom

had not proved unjust enrichment because it had "voluntarily" made

its decisions, "knowing the risk involved." The court reasoned that

Telecom "had an opportunity to take back the phones, to switch the

phones, but for a business decision decided it wasn’t practical."

Rather, Telecom "received a business benefit by leaving the phones

there, because [the company] felt ultimately [it] would get a deal out

of it and would get paid [its] commissions." In sum, the court concluded, "[a] restitution claim is not available under . . . circumstances

where a plaintiff voluntarily made the decision knowing the risk

involved in getting commissions or not getting commissions." 

Ample evidence supports these findings and the district court did

not err in concluding that, given these facts, Telecom had not demonstrated that it would be inequitable to permit Oncor to retain, without

payment, any benefit it received from the Telecom’s sites and

assertedly confidential information. 

TELECOM AMERICA v. ONCOR COMMUNICATIONS 7
IV.

Telecom also maintains that Oncor misappropriated Telecom’s

trade secrets when it retained Telecom’s customer data base. The

Maryland Uniform Trade Secrets Act defines a "trade secret" as information that (i) derives "independent economic value" from "not being

generally known" or "readily ascertainable" by others who can obtain

economic value from its use or disclosure; and (ii) is the subject of

"efforts that are reasonable under the circumstances" to maintain the

secrecy of the information." See Md. Code Ann. Com. Law II § 11-

1201(e) (Michie 2000). 

In this case, as the district court found, Telecom did not make reasonable efforts to keep its database secret. Telecom produced no evidence of any agreement, procedure or other measure instituted to

guard against unauthorized disclosure of this information. And, the

Telecom employee entrusted to compile and disseminate the information to Oncor received no instructions concerning its alleged confidential nature. Cf. Motor City Bagels, L.L.C. v. The American Bagel

Co., 50 F. Supp. 2d 460, 480 (D. Md. 1999) (company did not meet

secrecy requirement when it failed to exact secrecy agreements from

potential investors and the exclusivity language was ineffective). 

Nor, again as the district court found, did Telecom prove that there

was a "misappropriation," that is, "acquir[ing] the trade secret by

improper means or disclos[ing] the trade secret without express or

implied consent." Diamond v. T. Rowe Price Assocs., Inc., 852 F.

Supp. 372, 412 (D. Md. 1994). Under the Uniform Trade Secret Act,

"improper means" include "theft, bribery, misrepresentation, breach

or inducement of a breach of a duty to maintain secrecy, or espionage

through electronic or other means." § 11-1201(b). In determining that

Oncor did not obtain the lists by "misappropriation," the district court

expressly found that Oncor had perpetrated "no fraud in asking for

this information," and indeed, had made "no false representation of

material fact." Rather, Telecom sent the information "hoping that [it]

would ultimately reach an agreement or under the impression that [it]

had a deal." Again, abundant evidence supports these findings. Thus,

there was no misappropriation and Telecom’s trade secret claim fails

on two grounds. 

8 TELECOM AMERICA v. ONCOR COMMUNICATIONS
V.

Telecom further maintains that Oncor intentionally interfered with

contracts between Telecom and its site owners. 

Under Maryland law, competition is "just cause for damaging

another in his [or her] business," and "a competitor who intentionally

causes a third person not to continue an existing contract terminable

at will does not improperly interfere with the contractual relation if

no wrongful means are employed." Macklin v. Robert Logan Assocs.,

639 A.2d 112, 119, 121 (Md. 1994) (quoting Natural Design Inc. v.

Rouse Co., 485 A.2d 663, 676 (Md. 1984)). In the instant case, Telecom concedes that its contracts with site owners were terminable at

will, and that Oncor’s aim was to "market ANIs" directly, without

recourse to agents or subagents. In other words, Oncor intended to

compete directly with Telecom for site owners’ business. 

Telecom asserts that Oncor is nevertheless liable because it used

wrongful means: that Oncor "tricked" Telecom to turn over customer

lists, obtained the right (from NOS) to deal directly with site owners,

and then used Telecom’s "trade secrets" (i.e., customer lists) to contact site owners. But, as already noted, supra, the district court made

factual findings, fully supported by record evidence, that Oncor did

not "trick" Telecom and that Telecom’s customer lists were not trade

secrets. The district court also found that Telecom did not produce

any other evidence "of any malicious, deliberate, intentional, willful

interference." Accordingly, the district court did not err in granting

judgment on the intentional interference claim. 

VI.

Finally, Telecom contends that Oncor fraudulently induced it to

provide confidential contact information about its sites and to keep its

sites on the Oncor network. The district court generally found that

Oncor did not knowingly make any false representation of material

fact. With respect to the specific allegation of fraud — the testimony

from Telecom’s principal that, in sum, "they didn’t perform, they

rescinded, they canceled the deal" — the court found that this fell

well short of fraud under Maryland law. Moreover, the court

expressly found that the reason Oncor did not move forward with the

TELECOM AMERICA v. ONCOR COMMUNICATIONS 9
deal "was . . . a court order." "And on top of that, on the 26th of July

of 1995 there was a clear retraction letter," barring any reliance by

Telecom "on any so-called misrepresentation." As explained within,

the evidence at trial well supported these findings; accordingly, the

court did not err.*

VII.

For the foregoing reasons, the judgment of the district court is in

all respects 

AFFIRMED.

*Given our conclusion that all of Telecom’s liability claims fail, we

need not address its contentions that the district court erred in finding its

damages claims too speculative, in refusing to grant an accounting, and

not permitting additional time to designate an expert on damages. 

10 TELECOM AMERICA v. ONCOR COMMUNICATIONS