18 929440 . 3

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

ABRO INDUSTRIES, INC., )

)

Plaintiff )

)

v. ) CAUSE NO. 3:14-cv-1984-TLS-MGG

)

1 NEW TRADE, INC., IGOR )

ZORIN, BORIS BABENCHIK, and )

VADIM FISHKIN, )

)

Defendants, )

)

1 NEW TRADE, INC., IGOR ZORIN, )

BORIS BABENCHIK, )

)

Counter-Plaintiffs, )

)

v. )

)

ABRO INDUSTRIES, INC., )

PETER BARANAY, )

)

Counter-Defendants. )

BRIEF IN SUPPORT OF MOTION FOR

SUMMARY JUDGMENT ON ALL COUNTERCLAIMS

ABRO Industries, Inc. (“ABRO”), by its attorneys, submits this brief in support of its

motion for summary judgment on all counterclaims asserted by 1 New Trade, Inc. (“1 New

Trade”), Igor Zorin (“Zorin”), and Boris Babenchik (“Babenchik”). The six-count counter

complaint asserts claims for breach of fiduciary duty asserted by both Zorin and Babenchik,

individually (Counts 1 and V, respectively), breach of contract asserted by both Zorin and

Babenchik (Counts II and VI, respectively), and tortious interference asserted by Zorin,

Babenchik and 1 New Trade, seeking both damages and injunctive relief (Counts III and IV,

respectively). [Doc. 23.] As shown below, in each instance the counterclaimants will be unable

USDC IN/ND case 3:14-cv-01984-TLS-MGG document 167 filed 04/19/17 page 1 of 26
2

18 929440 . 3

to prove an essential element of their claims, making summary judgment appropriate on the

entirety of the counterclaim.

ARGUMENT1

I. Counts I and V should be dismissed because neither Zorin nor Babenchik

can establish a fiduciary relationship or a breach of that relationship.

A claim for breach of fiduciary duty requires the proof of three elements: (1) the

existence of a fiduciary relationship, a breach of the duty owed by the fiduciary to the

beneficiary, and a harm to the beneficiary. York v. Fredrick, 947 N.E.2d 969, 978 (Ind. Ct. App.

2011). Contractual agreements do not give rise to a fiduciary relationship creating a fiduciary

duty. Morgan Asset Holding, 736 N.E.2d at 1273, citing Comfax Corp. v. North American Van

Lines, Inc., 587 N.E.2d 118, 125-26 (Ind. Ct. App. 1992). Although not entirely clear from the

pleading, Zorin and Babenchik are attempting to claim they each were part of a “lifetime

partnership” with ABRO, a relationship which, if it existed, gives rise to a fiduciary relationship

as a matter of law. [See Doc. 23, at ¶¶ 24, 26; Ruse v. Bleeke, 914 N.E.2d 1, 11 (Ind. Ct. App.

2009). “The fiduciary duty between partners requires each partner to exercise good faith and fair

dealing in partnership transactions and toward co-partners.” Ruse, 914 N.E.2d at 11.

A. ABRO did not form a partnership with either Zorin or Babenchik.

A partnership is an association of two or more persons to carry on a business for profit as

co-owners. Ind. Code § 23-4-1-6. While the receipt of a share of the profits of a company is

prima facie evidence of a partnership, the sharing of gross income does not establish a

1 ABRO submits its Local Rule 56.1 Statement of Material Facts herewith as part of its

appendix in accordance with the Rule. Also submitted herewith is a separate motion for

summary judgment and brief in support on behalf of Peter Baranay (“Baranay”), seeking

dismissal of the claims in the Third-Party Complaint. Baranay’s brief includes a Standard of

Review that applies equally in to ABRO’s summary judgment motion. It is provided in

Baranay’s brief for the benefit of the parties, as the Court is well familiar with this standard.

USDC IN/ND case 3:14-cv-01984-TLS-MGG document 167 filed 04/19/17 page 2 of 26
3

18 929440 . 3

partnership. Ind. Code § 23-4-1-7; J.M. Schultz Seed Co. v. Robertson, 451 N.E.2d 62, 64 (Ind.

Ct. App. 1983). To be a partner, one must have an interest with another in the profits of a

business, as profits. There must be a voluntary contract to carry on a business with the intention

of the parties to share the profits as common owners thereof.” Vohland v. Sweet, 433 N.E.2d 860,

864 (Ind. Ct. App. 1982)(quoting Bond v. May, 78 N.E. 260 (1906)).

In Life v. F.C. Tucker Co., Inc., 948 N.E.2d 346 (Ind. Ct. App. 2011), the Indiana Court

of Appeals discussed the importance of a sharing of gross profits versus gross returns under

Indiana Code section 23-4-1-7. Home Link is a company affiliated with F.C. Tucker that

provides customers “direct access to various retailers/service suppliers.” 948 N.E.2d at 349.

Home Link entered into a marketing agreement with Maintenance One Services Co., under

which Home Link would promote Maintenance One’s services and Maintenance One would pay

Home Link an annual fee of $3000 and five percent of the total gross bill before taxes for all

services rendered to customers of the Home Link program. Id. In finding on summary judgment

that there was no partnership between Home Link and Maintenance One, the Court of Appeals

emphasized that these companies “agreed to share returns, not profits.” Id. at 352. “The clause

indicates nothing about also sharing in Maintenance One’s losses, and on its face it appears that

Tucker receives its fee regardless of whether Maintenance One profits from constructing homes.

This arrangement falls short of ‘co-ownership’ or a ‘community of profits’ exhibited in a

partnership.” Id., citing Kamm & Schellinger Co. v. Likes, 179 N.E.23, 25 (1931).

“It is an established common law principle that a partnership can commence only by the

voluntary contract of the parties.” Vohland v. Sweet, 433 N.E.2d 860 (Ind. Ct. App.

1982)(quoting Bond v. May, 78 N.E. 260 (1906). “Essential to the formation of a partnership is a

contract, either express or implied.” J.M. Schultz Seed Co., 451 N.E.2d at 65, citing Kavanaugh

USDC IN/ND case 3:14-cv-01984-TLS-MGG document 167 filed 04/19/17 page 3 of 26
4

18 929440 . 3

v. England, 110 N.E.2d 329 (Ind. 1953). “The intention to form a partnership is determined by

examining all the facts of the case and the conduct of the parties.” Weing v. Weinig, 674 N.E.2d

991, 995 (Ind. Ct. App. 1996). “[I]t is the substance, and not the name of the arrangement

between them which determines their legal relation toward each other.” Driscoll v. Sullivan, 186

Ind. 178, 115 N.E. 331, 332-33 (1917).

ABRO is a private label manufacturer of automotive parts and supplies and consumer

hardware goods with a worldwide distribution network. ABRO’s President Baranay testified

unequivocally that he has no partners and never has had any. In their complaint, Zorin and

Babenchik allege a “lifetime partnership” with ABRO for the distribution of ABRO products in

Russia. But, neither Zorin nor Babenchik has established the requisite agreement to share in the

profits and losses of a business as required to establish a partnership.

A. Zorin cannot establish a partnership.

Zorin admits that his relationship with ABRO began in 1994 as a distributorship

relationship in which certain companies in which he had an ownership interest – such as Sadovy

Dom, JSC Himavtoprom2, Avtobythim, and Aerograf, were buying product from ABRO and

reselling the product. [App. 5, Zorin Dep. at 27-32, 109.] Zorin (or the companies he jointly

owned) kept all the profits from such sales and paid ABRO for the wholesale cost of the product.

[App. 5, Zorin Dep. at 27-32; see also App. 5, Zorin Dep. at 25 (“[I]n the profits and losses in the

business in Russia, Peter [Baranay] was not involved. It was me purchasing the goods, paying

for it, and then selling it in Russia, so losses and profits [ ] in Russia are all mine.”).] Thereafter,

Zorin contends that the relationship morphed into a partnership between him and ABRO as he

2 These were not sole proprietorships. The JSC stands for Joint Stock Company, a form of

Russian entity. [App. 5, Zorin Dep. at 117.] Co-owners of Aerograf are Serge Kustionkov, and

Serge Petrov. [App. 5, Zorin Dep. at 109.] Avtobythim was co-owned by Eino Loukkonen and

others. [App. 5, Zorin Dep. at 114.]

USDC IN/ND case 3:14-cv-01984-TLS-MGG document 167 filed 04/19/17 page 4 of 26
5

18 929440 . 3

agreed “to build big business of ABRO sales in Russia, to promote it, to explore all possibilities,

to invest a lot of money in it and, as a result to gain a lot of money as well.” [App. 5, Zorin, Dep.

at 35.]

Zorin testified that he created a company for the sale of ABRO products called ABRO

Rus. Although he testified that Baranay “approved” the creation of this company for Zorin’s

sale/distribution of ABRO products in Russia, neither Baranay nor ABRO ever received any

share of the profits from Zorin’s company ABRO Rus. [App. 5, Zorin Dep. at 90-91; App. 3,

Baranay Decl. at ¶ 7.] Zorin described the “terms of the partnership” as setting a mutual goal to

reach certain sales targets for sales of ABRO goods in Russia by the year 2017. Zorin describes

the nature of the relationship as requiring ABRO to develop and ship products, while he (and

Babenchik) would assist by developing new products, advertising, and seeking new distributors

to fill potential new markets in Russia. [App. 5, Zorin Dep. at 36-37.]3

The key missing factor, however, is any evidence of “an intention of the parties to share

the profits as common owners” as required to form a partnership. Zorin admits that he was

compensated for his efforts related to growing sales of the ABRO brands in Russia in two ways:

(1) his 40-percent margin on his own companies’ sales of ABRO products; and (2) a 3-percent

3 Zorin and Babenchik both describe the relationship as encompassing multiple

“partnerships,” namely their individual arrangements with ABRO and a mutual agreement

between both of them and ABRO. [App. 5, Zorin Dep. at 175-76; App. 6, Babenchik Dep. at 27-

28.] More confusingly, they actually attribute the relationships to Baranay personally, as

compared to with ABRO, although no breach of fiduciary duty claim is asserted against Baranay

in the Third Party Complaint. [App. 5, Zorin Dep. at 175-76; App. 6, Babenchik Dep. at 27-28.]

Because there is no evidence of any partnership in this case, the question of whether there was

one agreement, multiple agreements, and between what parties, is immaterial for summary

judgment purposes. However, the varying ways in which Zorin and Babenchik describe the

purported partnerships compared to each other and in contrast to their own pleadings

demonstrates the lack of a meeting of the minds and an intent to form any partnership.

USDC IN/ND case 3:14-cv-01984-TLS-MGG document 167 filed 04/19/17 page 5 of 26
6

18 929440 . 3

commission on Russian sales.4[See, e.g., App. 5, Zorin Dep. at 37, 164, 176-79; see also App.

4, Baranay Dep. at 20; App. 2, Molnar Dep. at 56-59.] The first of these is consistent with the

arrangement Zorin acknowledged was not a partnership – simply, him buying product from

ABRO, reselling it and keeping the profits from those sales. [App. 5, Zorin Dep. at 25, 27-32.]

The second involved commissions paid into an account maintained in Zorin’s name by

ABRO and dispersed according to his instructions, which varied from paying his daughter’s

private school tuition, transferring into a personal account, or paying off his accrued balance for

goods purchased from ABRO. [App. 4, Baranay Dep. at 137; App. 2, Molnar Dep. at 60; App.

5, Zorin Dep. at 143-44, 182; App. 3, Baranay Decl. at ¶ 9.] The agreement to pay Zorin a

commission on all Russian sales did not transform the relationship into a legal partnership

because it is not an agreement to share in the profits and losses of a business. This arrangement

represents a sharing in returns or sales without regard to profitability just like the one considered

in Life v. F.C. Tucker. A commission arrangement “falls short of ‘co-ownership’ or a

‘community of profits’ exhibited in a partnership.” 948 N.E.2d at 352, citing Kamm &

Schellinger Co. v. Likes, 179 N.E.23, 25 (1931). To hold otherwise would be to convert every

commission contract into a legal partnership.

Zorin also testified that as part of his efforts to expand ABRO’s sales in Russia, he would

introduce to ABRO new distributors for potential new markets, and that he would act as

guarantor of those distributors’ payments to ABRO. Zorin never actually had to pay for another

distributor’s default in payment to ABRO; and his commission account with ABRO would have

fallen far short of being able to satisfy the product cost and ABRO’s profit on any such sale to a

distributor, leaving ABRO with no assets to satisfy the guaranty. [App. 4, Baranay Dep. at 122;

4 Commissions Zorin earned on sales of products shipped from somewhere other than the

United States were slightly lower at 1.5-percent.

USDC IN/ND case 3:14-cv-01984-TLS-MGG document 167 filed 04/19/17 page 6 of 26
7

18 929440 . 3

see also App. 3, Baranay Decl. at ¶ 8.] Nevertheless, the offer of a guaranty on distributor

payments is, again, not an agreement to share in profits or losses of a business.

Finally, Zorin suggests that ABRO created a partnership with him by reference by

referring to him as his “partner in Russian business, who is responsible for all business in

Russia” and using the term, “the ABRO family in Russia.” [App. 5, Zorin Dep. at 40, 48, 57-

60.] As a matter of law, the substance of the parties’ relationship, not the name applied governs

whether a partnership exists. Driscoll, 115 N.E. at 332-33. Where the requisite intent to share

profits and losses in co-ownership of a business is lacking, alleged use of the term “partner” in a

lay sense from time to time to describe the relationship cannot transform the parties’ legal

relations. Moreover, even Zorin admits that ABRO referred generally to other distributors in

other countries and other business relationships as part of “the ABRO family,” in general, but

acknowledges the use of this term to include “every person who sells ABRO all over the world,”

did not refer to a legal partnership among him and all ABRO distributors worldwide. [App. 5,

Zorin Dep. at 48-69.]5Indiana courts have recognized that the use of the term “partner” does not

establish a partnership. Broadway Radiology Servs. v. Tricou, 725 N.E.2d 435, 441 (Ind. Ct.

App. 2000)(“Even if all of the hearsay evidence suggesting that contracting doctors were referred

5

Similarly, exaggerates the importance of the term the “ABRO family” when it suits his

purposes of trying to establish a fiduciary relationship and then downplays its importance when

the term would not support his claim. Babenchik described his understanding of the term

“ABRO family” to mean the “community or togetherness of people who promote ABRO all over

the world,” but testified that he understood the term “ABRO family in Russia” to have a different

meaning depending on whether being used in a conversation among him, Zorin and Baranay, in

which case it referred to the alleged three-way partnership, or used in conversation with a large

group of Russians present, in which case it meant the “community of many people.” [App. 6,

Babenchik Dep. at 167-69.]

USDC IN/ND case 3:14-cv-01984-TLS-MGG document 167 filed 04/19/17 page 7 of 26
8

18 929440 . 3

to as ‘partners’ were admissible, which we do not decide here, it does not suffice to refute the

overwhelming evidence that BRS was not a partnership as that term is legally defined.”).6

Zorin cannot show ABRO’s intent to form a legal partnership. Where no other fiduciary

relationship is alleged, Zorin’s claim for breach of fiduciary duty fails as a matter of law.

B. Babenchik cannot establish a partnership.

Babenchik’s attempts to establish a partnership relationship fail for all of the same

reasons described above in the discussion of Zorin’s relationship. Babenchik’s claim for breach

of fiduciary duty is further flawed insofar as the relationship he describes is really a relationship

between ABRO and NPTK Krepost (“Krepost”), a Russian company in which he was an owner,

and not between Babenchik and ABRO (or Babenchik and Baranay, as Babenchik alleges).

Babenchik alleges a partnership between himself and Baranay and alleges a “secondary

partnership” between himself and Zorin and Baranay. [App. 6, Babenchik Dep. at 28.] He

describes the terms of this alleged partnership as follows: “I would bring a new client, a new

distributor on the territory of Russia and depending on how much of ABRO product this

distributor would buy, I was receiving a commission or compensation . . . . I was receiving

compensation based on the size of the purchase of the client I would bring to Mr. Baranay.”

[App. 6, Babenchik Dep. at 28-29; see also App. 6, Babenchik Dep. at 30. (“I was told and we

agreed that depending on who much product the distributor buys, I will be paid a certain

percentage as my compensation.”).] Specifically, Babenchik alleges that he and ABRO agreed

to payment of a 10-percent commission for sales to the Kaliningrad distributor, Orient Invest,

6

Steven Hughes from Quest similarly used the term “partnership” in its lay sense when he

wrote to Zorin in an email on November 11, 2013 that he was “looking forward to forming a nice

partnership.” [App. 20, Deposition Ex. 226.] Quest’s company representative disclaimed any

intent by Quest to form a legal partnership with Zorin, and Zorin is not claiming a partnership

with Quest based on the use of this term.

USDC IN/ND case 3:14-cv-01984-TLS-MGG document 167 filed 04/19/17 page 8 of 26
9

18 929440 . 3

with an understanding that with respect to any other distributors in the future, they “were going

to sit down and discuss.” [App. 6, Babenchik Dep. at 36, 170.] In addition, Babenchik described

an agreement to pay a 5-percent commission for sales to a distributor in Kazakhstan, but says to

help develop the business in that area, he suggested that those commissions not be paid. [App. 6,

Babnechik Dep. at 37.]

Additional terms of the relationship Babenchik describes are: (a) his guaranty of

payments by distributors he introduced; (b) assisting distributors with advertising, certificates

required and the best mix of products; and (c) advertising and promoting the ABRO brands.

Babenchik defined “partnership” as “everything that goes along with [him] promoting, [him]

personally promoting the [ABRO] product.” [App. 6, Babenchik Dep. at 118-19.] In short, like

Zorin, Babenchik has described a commission agreement with payments made based on sales,

not profitability. Wholly absent from this relationship was any agreement to share in the profits

and losses of the business as co-owners that is essential to establishing a partnership.

However, while Babenchik refers to oral agreements between him and Baranay as

individuals, he admits that the commissions for sales to the Kaliningrad Distributor (Orient

Invest) were paid to Krepost against the Krepost account with ABRO. [App. 6, Babenchik Dep.

at 228-29.] Other evidence substantiates that the commission arrangement was with Krepost, not

Babenchik individually. [App. 7, Deposition Ex. 40, App. 8, Deposition Ex. 41, App. 9,

Deposition Ex. 44; App. 2, Molnar Dep. at 127-28; App. 3, Baranay Decl. at ¶ 15.] Although

Babenchik claims to see no difference between himself as an individual and Krepost as a

company,7this claim is belied by Babenchik’s recognition that when he decided to leave Krepost

7 Babenchik and Zorin continually conflate the companies involved in this relationship

with their principals. They continually refer to Baranay interchangeably with ABRO. And,

Zorin, when asked in reference to an October 1995 meeting in South Bend whether he was there

USDC IN/ND case 3:14-cv-01984-TLS-MGG document 167 filed 04/19/17 page 9 of 26
10

18 929440 . 3

(and thereby terminate his association with ABRO), the relationship between ABRO and Krepost

continued until later terminated in 2016. [App. 18, Deposition Ex. 45.]8

Babenchik cannot establish an agreement between himself and ABRO for the sharing of

profits and losses. In fact, he cannot establish an agreement with him personally, as compared to

Krepost, for any purposes. Because the alleged partnership cannot be proven, there is no

fiduciary relationship, and Babenchik’s claim for fiduciary duty must be dismissed.

II. CountsII and VI should bedism issed becauseneither Zorin nor Babenchik

can provetherequired elem entsfor breach ofcontract.

It is well settled that to recover for breach of contract, a plaintiff must prove that: (1) a

valid contract existed between the parties; (2) the defendant failed to perform its part of the

contract; and (3) the plaintiff was damaged by the defendant’s breach. Strong v. Commercial

Carpet Co., Inc., 163 Ind. App. 145, 322 N.E.2d 387, 391 (Ind. Ct. App. 1975). A party

breaches a contract when it fails to perform all the obligations which it has agreed to undertake.

Worrell v. WLT Corp., 653 N.E.2d 1054, 1057 (Ind. Ct. App. 1995).

ABRO maintains that its relationships with Zorin and Babenchik’s company, Krepost,

were purchase-order driven relationships for orders placed from time to time. Zorin and

Babenchik each plead an on-going contractual relationship that bound ABRO to continue their

distributorship relationship. Each alleges that ABRO committed a breach by discontinuing their

relationship. For purposes of summary judgment it does not matter whether the parties’

on behalf of himself personally or his company, responded: “I don’t see the differences. . . . I

represent the company; the company is part of me. I don’t see the difference.”

8 Although Babenchik wrote to ABRO announcing his departure from Krepost, the

evidence shows that he never actually severed that relationship. While irrelevant to the legal

issues on summary judgment, this lack of candor is inconsistent with Babenchik’s claim here of a

fiduciary relationship with ABRO.

USDC IN/ND case 3:14-cv-01984-TLS-MGG document 167 filed 04/19/17 page 10 of 26
11

18 929440 . 3

relationships were purchase-order driven or oral agreements for long-term sales and distribution.

Zorin’s alleged contract is unenforceable under the applicable statute of frauds. And, the openended relationship Babenchik alleges is, as a matter of law, terminable at will.

A. Zorin’s alleged agreement that ABRO would continue to ship goods for

distribution and pay commissions until October 2017 is unenforceable under

the Statute of Frauds.

Zorin’s claim for breach of contract alleges that ABRO agreed to continue to ship goods

to Russia as directed by him and to pay him a three percent commission on sales all sales in

Russia from approximately 2007 through October 2017. [Doc. 23, at ¶ 42.] The alleged contract

cannot be performed within one year from the making of the agreement. As such, in the absence

of a writing signed by ABRO containing the essential terms of this agreement, Zorin’s alleged

contract is unenforceable by operation of the applicable Statute of Frauds.

Indiana Code 32-21-1-1(b) provides a “person may not bring . . . [a]n action involving

any agreement that is not to be performed within one (1) year from the making of the

agreement,” unless “the promise, contract, or agreement on which the action is based, or a

memorandum or note describing the promise, contract, or agreement on which the action is

based, is in writing and signed by the party against whom the action is brought or by the party’s

authorized agent.” Ind. Code § 32-21-1-1(b)(5). “[A]n agreement required to be in writing must

completely contain the essential terms without resort to parol evidence in order to be

enforceable.” Reich v. Lincoln Hills Christian Church, Inc., 888 N.E.2d 239, 243 (Ind. Ct. App.

2008), quoting Schuler v. Graf, 862 N.E.2d 708, 713 (Ind. Ct. App. 2007). Where the Statute of

Frauds applies, “parol evidence may not be relied upon to provide the essential terms of a

document.” Schuler, 862 N.E.2d at 713; see also National By-Products, Inc. v. Ladd, 555

USDC IN/ND case 3:14-cv-01984-TLS-MGG document 167 filed 04/19/17 page 11 of 26
12

18 929440 . 3

N.E.2d 518, 520 (Ind. Ct. App. 1990)(“written contract which leaves some essential term thereof

to be shown by parol, is only a ‘parol contract’ not enforceable under the Statute of Frauds.”)

The first required element for a breach of contract claim is the existence of a valid and

enforceable contract. Zorin cannot provide this Court with any writing providing the essential

terms of an agreement between him and ABRO to continue shipping product for distribution and

to continue paying a three-percent commission thereon through October 2017. While there are

writings demonstrating that a commission was paid, there is no writing establishing an agreement

to continue the relationship until at least October 2017. In the absence of such a writing, the

term of the contract can be stablished (if at all) only with parol evidence. As a matter of law,

Zorin’s alleged contract is unenforceable, and his breach of contract claim must be dismissed.9

B. Babenchik cannot establish that ABRO breached any agreement with him.

Babenchik’s breach of contract claim is flawed in many ways. In essence, Babenchik’s

claim is that ABRO agreed to ship product to Krepost for resale, and to pay him a ten-percent

commission on those sales. Babenchik’s breach of contract claim is founded on his belief that

ABRO “unilaterally and without good and just reason,” terminated its agreements with him. He

alleges the termination damaged him in the form of lost profits. Again, there is no alleged written

contract. [App. 6, Babenchik Dep. at 122 (“there was an oral understanding that the product will

be sent, shipped by ABRO to me or to the companies I would name.”).]

As an initial matter, ABRO had no agreement with Babenchik, individually. To the

extent that ABRO had any agreement, it was with Krepost, a company in which Babenchik was

9 To the extent that Babenchik is also alleging that his purported agreement with ABRO

was to continue through 2017, his claim would also be barred by operation of the Statute of

Frauds. However, as shown below, Babenchik’s claim seems to be stated in terms of an openended continuing relationship.

USDC IN/ND case 3:14-cv-01984-TLS-MGG document 167 filed 04/19/17 page 12 of 26
13

18 929440 . 3

one of several owners. Although Babenchik alleges an agreement with him personally, the

undisputed evidence in this case shows solely a relationship between ABRO and Krepost. For

example, in a communication made on behalf of Babenchik, his sister Tatiana Chumakova

wrote: “As you may know, KREPOST brought to ABRO the Kaliningrad dealer – Orient Invest.

We had an agreement with Peter [Baranay] that KREPOST gets 10% commission for their orders

and t[h]at we control there their business with ABRO.” [App., 8, Deposition Ex. 41; see also

App. 7, Deposition Ex. 40 (Krepost’s Statement of Account reflecting both the open invoices and

the application of commissions to Krepost’s account); App. 9, Deposition Ex. 44 (recognizing

ABRO’s 20 year business relationship with Krepost).] Thus, there is a significant question as to

whether Babenchik has standing to pursue a claim against ABRO based on the alleged

termination of the sales and commission agreement.

Regardless, the alleged agreement was terminable at will. “[A] contract providing for

continuing performance and which has no termination date, or which provides that it will last

indefinitely, is terminable at will by either party.” Marksill Specialities, Inc. v. Barger, 428

N.E.2d 65, 69 (Ind. Ct. App. 1981), citing House of Crane v. Fendrich, 146 Ind. App. 478, 256

N.E.2d 578 (1976); see also Rogier v. American Testing & Eng’g Corp., 734 N.E.2d 606, 616

(Ind. Ct. App. 2000)(contract which is silent as to term or which lasts indefinitely is terminable

at will). As this Court has held, “such a contract is enforceable until terminated, but there is no

liability for the termination itself.” Black Agents & Brokers Agency, Inc. v. Near North Ins.

Brokerage, Inc., Case No. 2:01 CV 419 PS, 2004 U.S. Dist. LEXIS 17945, *22 (N.D. Ind. June

7, 2004), citing House of Crane, 256 N.E.2d at 579. Applying this concept in Black Agents &

Brokers Agency, this Court held: “without a termination date, any agreement between BABA

and NNIB was terminable at will and therefore there was no breach by NNIB when it chose to

USDC IN/ND case 3:14-cv-01984-TLS-MGG document 167 filed 04/19/17 page 13 of 26
14

18 929440 . 3

discontinue its relationship with BABA in the summer of 2000. Thus BABA’s claim against

NNIB for breach of contract fails as a matter of law as well.” Id.

House of Crane, the landmark Indiana decision which established this principal of law

almost half a century ago, bears significant resemblance to the case before this Court. Beginning

in 1905, Crane distributed a brand of cigar manufactured by defendant Fendrich in Indianapolis

and Evansville. Thereafter, Crane “undertook to distribute a second brand manufactured by

Fendrich and after many years of concentrated effort in promotion, Crane succeeded in

establishing that particular brand as a sales leader.” 256 N.E.2d at 578. By January 1960,

Fendrich had assigned to Crane exclusive sales privileges for Fendrich brand cigars in 74 Indiana

counties, 24 Illinois counties and 18 Kentucky counties. Id. Crane undertook to use its best

efforts to achieve the maximum sales of Fendrich’s products in the territory; establish and

maintain a system of distribution in the territory for Fendrich’s products; assume all credit risks

on the accounts to which it sold the Fendrich’s products; and to conduct sales promotion

contests, consumer sampling, and display promotion. Id. But, as in this case, circumstances

changed and Crane took issue with Fendrich’s “unwarranted” actions, including permitting and

encouraging other distributors in Crane’s territory and selling products directly to large drugstore

chains. Id. at 579. Crane admitted that the agreement did not specify a definite time or prescribe

conditions that would determine the duration of the contract. Id. at 579 In the absence of a

prescribed term, the contract was terminable at will, and the Indiana Court of Appeals affirmed

judgment in Fendrich’s favor on Crane’s claim.

Babenchik claims he had an “oral agreement whereby ABRO was obligated to ship

product as long as I asked for it, and I would in turn promote ABRO products over the entire

territory of Russia.” [App. 6, Babenchik Dep. at 122-23.] He believed ABRO was required to

USDC IN/ND case 3:14-cv-01984-TLS-MGG document 167 filed 04/19/17 page 14 of 26
15

18 929440 . 3

continue this relationship, indefinitely, so long as he continued to want the arrangement to work.

[App. 6, Babenchik Dep. at 124.] Babenchik admits he and ABRO never discussed the “term” of

the contract, or how long it would last. [App. 6, Babenchik Dep. at 129 (“We never discussed

the time other than in terms – other than in terms of ABRO expressing readiness in the near

future to keep supplying with product either me or my company.”).] Babenchik contends

ABRO breached this contract of indefinite term by “unilaterally and without good and just

reason” terminating shipments to the Kaliningrad distributor, thereby terminating Babenchik’s

commissions for those sales, and later by terminating shipments to Krepost. In light of the

unmistakable and undisputed lack of a definite term in the alleged agreement between ABRO

and Babenchik, any agreement between them was terminable at will. And, as this Court held in

Black Agents & Brokers Agency, “without a termination date, any agreement between

[Babenchik] and [ABRO] was terminable at will and therefore there was no breach by [ABRO]

when it chose to discontinue its relationship with [Babenchik] . . . . Thus [Babenchik’s] claim

against [ABRO] for breach of contract fails as a matter of law as well.”10

To the extent that Zorin alternatively claims an open-ended agreement in addition to an

alleged agreement through October 2017, these same principals would apply. Zorin’s testimony

about his alleged agreement is unclear as to the term. On the one hand, he testified he

understood the relationship would last as long as he wanted it to last, regardless of ABRO’s

willingness to continue in that relationship. [App. 5, Zorin Dep. at 104.] Alternatively, he

testified either party could leave for “very serious reasons” or “a very good reason.” [App. 5,

Zorin Dep. at 104, 106.] Most importantly, Zorin admits the length of the term was not

10 See also Indiana Code section 26-1-2-309(b)(“Where the contract provides for successive

performances but is indefinite in duration, it is valid for a reasonable time but unless otherwise

agreed may be terminated at any time by either party.”)

USDC IN/ND case 3:14-cv-01984-TLS-MGG document 167 filed 04/19/17 page 15 of 26
16

18 929440 . 3

discussed. [App. 5, Zorin Dep. at 103.] As such, any agreement between Zorin and ABRO was

terminable at will, and discontinuing that relationship is not a breach of the agreement.11

Because neither Zorin nor Babenchik has established a valid contract requiring ABRO to

ship products to them or to continue to work with them on a commission basis indefinitely, both

of their breach of contract claims must be dismissed.

III. Counts III and IV should be dismissed because the 1 New Trade parties cannot

show that ABRO acted illegally and without justification in seeking to protect their

intellectual property and goodwill in the Russian market.

A. Indiana law requires proving that the interference was unjustified and

achieved by illegal means to establish a claim for tortious interference with a

business relationship.

The elements of tortious interference with a business relationship are: (1) the existence

of a valid relationship; (2) the defendant’s knowledge of the existence of the relationship; (3) the

defendant’s intentional interference with that relationship; (4) the absence of justification; and

(5) damages resulting from defendant’s wrongful interference with the relationship.” Miller v.

Central Indiana Community Foundation, Inc., 11 N.E.3d 944, 961 (Ind. Ct. App. 2014). “Illegal

conduct by the alleged wrongdoer is an essential element of tortious interference with a business

relationship.” Id.; see also Melton v. Ousley, 925 N.E.2d 430, 436 (Ind. Ct. App. 2010)(“The

Indiana Supreme Court has held that tortious interference with a business relationship requires

the additional showing that a defendant acted illegally in achieving his end.”); Hoffman v.

Roberto, 578 N.E.2d 701, 710 (Ind. Ct. App. 1991)(“[O]ne who alleges tortious interference with

11 Even if “serious” or “good” reason for termination were required, ABRO had ample

grounds to terminate the relationship with Zorin. Zorin admitted to getting into a drunken

argument at ABRO’s October 2012 sales meeting and failing to cooperate with ABRO’s sales

manager for the Russian territory, Molnar. [App. 5, Zorin Dep. at 193-96, 266-69, 272, 279;

App. 10, Deposition Ex. 22.] Zorin’s account with ABRO for product shipped to his companies

was delinquent. And, ABRO discovered that Zorin was working with an affiliate to ABRO’s

supplier (Quest) to set up a competing business using products intentionally designed to replicate

ABRO’s products. [App. 4, Baranay Dep. at 69-70; App. 2, Molnar Dep. at 65.]

USDC IN/ND case 3:14-cv-01984-TLS-MGG document 167 filed 04/19/17 page 16 of 26
17

18 929440 . 3

a contractual or business relationship must allege the intentional doing of a per se wrongful act or

the doing of a lawful act with malice and unjustified in law for the purpose of invading the

contractual rights or business relationship of another.”).

“The existence of a legitimate reason for the defendant’s actions provides the necessary

justification to avoid liability.” Bilimoria Computer Systems, LLC v. American Online, Inc., 829

N.E.2d 150 (Ind. Ct. App. 2005), citing Morgan Asset Holding Corp. v. CoBank, ACB, 736

N.E.2d 1268, 1272 (Ind. Ct. App. 2000). A party is justified in interfering with a third party’s

contract if it “asserts in good faith a legally protected interest of [its] own . . . if the actor believes

that [its] interest may otherwise be impaired or destroyed by the performance of the contract or

transaction.” Morgan Asset Holding, 736 N.E.2d at 1273 n.3, quoting Restatement (Second) of

Torts § 773 (1979). The required element of lack of justification requires a showing that the

alleged interferer acted intentionally, without a legitimate business purpose, and that the alleged

breach is malicious and exclusively directed to the injury and damage of another. Bilimoria, 829

N.E.2d at 156. The existence of a legitimate reason for the defendant’s actions provides the

necessary justification to avoid liability. Id. The Indiana Court of Appeals has recognized that

“[o]ne's privilege to engage in business and to compete with others implies a privilege to induce

third persons to do their business with him rather than with his competitors. In order not to

hamper competition unduly, the rule stated in this Section entitles one not only to seek to divert

business from his competitors generally but also from a particular competitor.” Harvest Life Ins.

Co. v. Getche, 701 N.E.2d 871, 877 (Ind. Ct. App. 1998), quoting Restatement (Second) of Torts

§ 768 cmt. e (1977).

Justification acts not as an affirmative defense which the defendant must prove but as an

element of the plaintiff’s prima facie case on its tortious interference claim. Bradley v. Hall, 720

USDC IN/ND case 3:14-cv-01984-TLS-MGG document 167 filed 04/19/17 page 17 of 26
18

18 929440 . 3

N.E.2d 747, 751 n.4 (1999). “[T]o properly state a cause of action for intentional interference

with contractual rights, a plaintiff must state more than a mere assertion that the defendant’s

conduct was unjustified”; rather “plaintiff must set forth factual allegations from which it can

reasonably be inferred that the defendant’s conduct was unjustified.” HPI Health Care Services,

Inc. v. Mt. Vernon Hosp., Inc., 131 Ill. 2d 145, 545 N.E.2d 627, 677, 137 Ill. Dec. 19 (Ill. 1989).

In assessing justification, courts consider: (a) the nature of the defendant’s conduct; (b)

defendant’s motive; (c) interests of the plaintiff with which the defendant’s conduct interferes;

(d) interests sought to be advanced by the defendant; (e) social interests in protecting the

freedom of action of the defendant and the contractual interests of the plaintiff; (f) proximity or

remoteness of the defendant’s conduct to the interference; and (b) the relations between the

parties. See Winkler v. V.G. Reed & Sons, 638 N.E.2d 1228, 1235 (Ind. 1994).

B. Zorin and Babenchik have not established any prospective business

relationship or ABRO’s knowledge of same.

Zorin’s and Babenchik’s attempt to state individual claims for tortious interference with

business relationship is merely a continuation of their confusion of the entity with the individuals

demonstrated throughout this case. The pleadings establish that the only prospective business

relationships alleged are potential supplier relationships between 1 New Trade, on the one hand,

and Quest and China-based suppliers of products from whom 1 New Trade sought to obtain to

compete with ABRO. Their own pleadings contend that those were potential relationships to

supply product to 1 New Trade, their newly formed company, rather than with them individually.

[Doc. 23, at ¶¶ 64, 65.]

1 New Trade is a Maryland corporation Zorin and Babenchik formed in or around

September 2013 for purposes of competing with ABRO. [App. 5, Zorin Dep. at 242-43. This

separate legal entity did attempt to establish a business relationship with Quest for a supply of

USDC IN/ND case 3:14-cv-01984-TLS-MGG document 167 filed 04/19/17 page 18 of 26
19

18 929440 . 3

products directly competitive to ABRO. Babenchik has also formed a company in St. Petersburg

called 1 New, Ltd., while Zorin at one point owned a company called Novokhim, Ltd. in

Moscow; both were listed as “Representative[s]” where buyers could obtain 1 New Trade’s

products on the 1 New Trade website. [App. 5, Zorin Dep. at 243-45; App. 13, Deposition Ex.

18.] It is possible that one or more of these legal entities was engaged in efforts to establish a

supplier relationship, but there is no evidence that Zorin or Babenchik were engaged in such

efforts in their individual capacities. Nor is there any evidence that ABRO had any knowledge

of such relationship, as required to establish a claim.

Lack of knowledge of any relationship between either Zorin or Babenchik and any

supplier is fatal to their individual claims. Moreover, as shown below, ABRO’s actions were

justified and not illegal. Thus, all defendants’ tortious interference claims fail as a matter of law.

C. ABRO’s actions to protect its intellectual property and goodwill in the

Russian market were justified.

As a leading distributor of top quality automotive, industrial, and consumer products to

customers in countries across the globe, ABRO has expended substantial effort and resources to

build a valuable reputation and substantial good will in its brands. [App. 3, Baranay Decl. at ¶

2.] ABRO’s success is built on its strong network of distributors and the quality and goodwill

associated with ABRO’s intellectual property. ABRO owns an extensive portfolio of intellectual

property rights in more than 165 countries. Because of the value of ABRO’s intellectual

property, ABRO takes enforcement very seriously. ABRO has an extensive anti-counterfeiting

program throughout the world. The program has resulted in countless raids, product seizures,

arrests and jail terms for counterfeiters. [App. 3, Baranay Decl. at ¶ 3.] Zorin recognized the

importance ABRO placed on preventing counterfeit goods in the Russian marketplace and

USDC IN/ND case 3:14-cv-01984-TLS-MGG document 167 filed 04/19/17 page 19 of 26
20

18 929440 . 3

testified that at least beginning in January 2008, he understood that fighting counterfeit products

was part of ABRO’s strategy for growing the Russian market. [App. 5, Zorin Dep. at 161.]

While still doing business with ABRO, Zorin developed a strategy to launch a competing

business replicating ABRO’s business in Russia. In the fall 2013, Zorin met with representatives

from Quest Specialty Coatings to discuss replacing products he was then acquiring from ABRO

with competing products. [App. 14, Quest 30(b)(6) Dep. at 16.] He provided Quest with

[App. 14, Quest 30(b)(6) Dep. at 16; ABRO Deposition Ex. 227.] Zorin

admits that, at this time, he was continuing his work as an ABRO distributor and was concealing

his interactions with Quest from ABRO. [App. 5, Zorin Dep. at 221-22.] While he intended to

cease his relationship with ABRO at some point, Zorin did not want to end that relationship

before he had replacement product. [App. 5, Zorin Dep. at 222.]

Quest was concerned about the effect doing business with Zorin in competition with

ABRO would have on its relationship with ABRO. For example, “Quest did not want to provide

the same products to Mr. Zorin as they were already providing to ABRO . . . . [b]ecause they did

not want to sour the relationship with ABRO.” [App. 14, Quest 30(b)(6) Dep. at 17.] In fact, the

representatives of Quest Automotive Products (“QAP”) division turned down Zorin’s overtures

because of concerns about the existing relationship with Quest. [App. 14, Quest 30(b)(6) Dep. at

34.] However, Steve Hughes, at Quest’s Industrial Products (“QIP”) division was interested in

helping Zorin compete with ABRO at a significant level as he wrote:

[App. 15,

Deposition Ex. 227.] Quest representatives began

USDC IN/ND case 3:14-cv-01984-TLS-MGG document 167 filed 04/19/17 page 20 of 26
21

18 929440 . 3

, as “[b]asic competitive intelligence.” [App. 14, Quest 30(b)(6) deposition at 27; App.

15, Deposition Ex. 227.] Quest was interested in “target[ing] the business ABRO was currently

doing in Russia” “[v]ia Mr. Zorin.” [App. 14, Quest 30(b)(6) deposition at 27.]

As an ABRO supplier since 1994, Zorin understood that ABRO’s Carb & Choke cleaner

was the single best selling ABRO product in Russia. Thus, it was not coincidental that Zorin

targeted the Carb & Choke cleaner for his first product to purchase from Quest. [App. 21,

Deposition Ex. 229.] But, it was not enough to just introduce a competing Carb & Choke

cleaner, 1 New Trade introduced a virtually identical looking Carb & Choke cleaner into the

Russian market with Quest’s help. Below is a side-by-side comparison of ABRO’s top seller,

with which Zorin was well familiar, and 1 New Trade’s competing Carb & Choke cleaner:

There is evidence in the record that the resemblance12 was not accidental, as Zorin instructed

Quest’s representative Dana Jeske that the product

[App. 24, Deposition Ex. 233.]

12 This resemblance was pointed out by photographer Scott Bourdon when counsel for 1

New Trade asked him to compare the ABRO and 1 New Trade Carb & Choke products. [App.

23, Bourdon Dep. at 45 (describing the look of the two products as “very similar”.]

USDC IN/ND case 3:14-cv-01984-TLS-MGG document 167 filed 04/19/17 page 21 of 26
22

18 929440 . 3

While ABRO’s Carb & Choke cleaner was its highest volume product in Russia, spray

paint was its best-selling line of products. [App. 4, Baranay Dep. at 65.] Knowing this from his

years as an ABRO distributor, Zorin reached out to ABRO’s Chinese-based spray paint supplier

Shenzhen Rainbow Fine Chemical Industry Company to obtain competing products. [App. 4,

Baranay Dep. at 65.] 1 New Trade also contacted another Chinese company, Join Leader, the

manufacturer of ABRO’s private label gasket maker, a company Zorin had been introduced to

through his relationship with ABRO. [App. 4, Baranay Dep. at 56.] Again, Zorin’s efforts were

not just to create a competing product but to create what ABRO determined to be a product,

infringing on ABRO’s trade dress in violation of Chinese law. [App. 4, Baranay Dep. at 57-58.]

1 New Trade, Zorin and Babenchik claim ABRO tortiously interfered with these

prospective supplier relationships. In the instance of the Quest relationship, 1 New Trade

contends ABRO interfered by filing this lawsuit. In the instance of the China-based suppliers

Join Leader and Rainbow, 1 New Trade contends ABRO’s interference took the form of

threatened “economic sanctions” and litigation.

It is undisputed ABRO filed this lawsuit against Quest alleging copyright infringement.

[Doc. 23.] However, the 1 New Trade Defendants cannot show ABRO acted illegally and

without justification in filing this lawsuit. In fact, the litigation privilege that attaches to ABRO’s

filing of this litigation. “Indiana law affords absolute privilege to statements made in the course

of a judicial proceeding.” Van Eaton v. Fink, 697 N.E.2d 490, 494 (Ind. Ct. App. 1998). See also

Rain v.Rolls-Royce Corp., 626 F.3d 372, 376 (7th Cir. 2010) (“Indiana law has long recognized

an absolute privilege that protects all relevant statements made in the course of a judicial

proceeding, regardless of the truth or motive behind the statements.”) (quoting Hartman v.

Keri,883 N.E.2d 774, 777 (Ind. 2008)).

USDC IN/ND case 3:14-cv-01984-TLS-MGG document 167 filed 04/19/17 page 22 of 26
23

18 929440 . 3

In Estate of Mayer v. Lax, Inc., 998 N.E.2d 238 (Ind. Ct. App. 2013), a party brought

claims for defamation, negligent supervision and retention, tortious interference with a business

relationship, and tortious interference with a contract against its opponent in a prior action, on

the grounds that the opponent had brought counterclaims in that action accusing it of conspiracy,

bribery, racketeering, and other species of chicanery. 998 N.E.2d at 243–244, 249. Rejecting the

argument that the absolute litigation privilege would bar all of the derivative claims, the court

nevertheless agreed that the privilege could extend beyond the narrow bounds of defamation:

“Other torts related to defamation, or relying upon defamatory statements as proof of

wrongdoing,” the court concluded, “may also be barred by the litigation privilege.” Id. at 249

(emphasis added). Thus, the court applied the privilege to an action for tortious interference,

reasoning analogizing the statement upon which the claim was based to defamation. In Watson

Rural Water Co. v. Ind. Cities Water Corp., 540 N.E.2d 139 (Ind. Ct. App. 1989), the court held

a party’s public statement of its contested litigation position was an improper predicate act for

tortious interference liability and shielded by the litigation privilege. 540 N.E.2d at 149.

Watson essentially contends that Indiana Cities' public representations, that it,

rather than Watson, had the right to provide water utility service to the hospital

and other disputed areas, constituted interference with Watson's business

relationships. Such representations made in good faith, simply do not constitute

illegal acts sufficient to support a claim of tortious interference with a business

relationship. Furthermore, insofar as Indiana Cities representations were made

within the context of litigation, such representations are privileged and will not

serve as a basis for liability.

Id. (citing Briggs v. Clinton Cnty. Bank & Trust Co., 452 N.E.2d 989, 997 (Ind. Ct. App.

1983))(emphasis added).

Even where litigation is not filed, such as in the case of the China-based suppliers, a

qualified litigation privilege attaches where a communication is “fairly made by a person in the

discharge of some public or private duty, legal or moral, or in the conduct of his [or her] own

USDC IN/ND case 3:14-cv-01984-TLS-MGG document 167 filed 04/19/17 page 23 of 26
24

18 929440 . 3

affairs, in a matter where his [or her] interest is concerned. Front, Inc. v. Khalil, 24 N.E.3d 713,

719, 28 N.E.3d 15; 4 N.Y.S.3d 581 (2015), quoting Rosenberg v. Metlife, Inc., 8 N.Y.3d 359,

365, 855 N.E.2d 439, 834 N.Y.2d 494 (2007). The rationale supporting the application of

privileged status to communication made by attorneys during the course of litigation is also

relevant to pre-litigation communication. When litigation is anticipated, attorneys and parties

should be free to communicate in order to reduce or avoid the need to actually commence

litigation.” Front, Inc., 24 N.E.3d at 719. ABRO is alleged to have done nothing more than

pursue its rights and seek to avoid further legal proceedings in China over intellectual property

rights. It acted in protecting its legal rights and valuable good will, as it has done many times in

the past as part of its business.

With respect to the China-based distributors, the purported “economic sanctions” amount

to nothing more than ABRO telling its existing suppliers it will discontinue doing business with

them if they continue to produce virtually identical products for the competing enterprise at 1

New Trade. [App. 4, Baranay Dep. Ex. 4.] With respect to Join Leader, ABRO perceived the

gasket maker product that Join Leader had produced for 1 New Trade to infringe on its

intellectual property. [App. 4, Baranay Dep. at 56-59.] This is a product for which ABRO had

been battling counterfeiting in China for many years and had, therefore, registered the “ABRO

trademark and trade dress in multiple forms, fashions, and formulas to give [ABRO] the broadest

possible protection.” [App 4, Baranay Dep. at 58-59 (noting that those registrations specifically

included filings and registrations in China).] ABRO told Join Leader’s owner that ABRO and its

China-based attorneys viewed the gasket maker as a violation of its intellectual property rights

and that if Join Leader continued to manufacture it for 1 New Trade, it would be at Join Leader’s

own legal peril. [App. 4, Baranay Dep. 64-65.]

USDC IN/ND case 3:14-cv-01984-TLS-MGG document 167 filed 04/19/17 page 24 of 26
25

18 929440 . 3

As the above facts demonstrate, ABRO, a business vigilant in the protection of its

intellectual property rights and goodwill, was faced with the most perilous of competition. Its

long-time distributor and its own suppliers were teaming up to introduce competing products into

the Russian marketplace. Together, 1 New Trade and these suppliers were familiar with

ABRO’s pricing, its purchase costs, its product mix in terms of sales, its distribution network and

essentially all aspects of ABRO’s business. ABRO was justified in being concerned that 1 New

Trade and these suppliers would attempt to “emulate” ABRO’s Russian business to the detriment

of ABRO. ABRO was justified in acting to protect this interest.

There is no evidence that ABRO acted illegally in protecting this interest, as is required

to maintain a tortious interference with business relationships claim under Indiana law. At a

minimum, the 1 New Trade parties must allege an illegal act by ABRO to sustain their claims.

Instead they have alleged nothing more than the filing of a lawsuit for which a privilege provides

immunity, and ABRO’s assertion of its right not to continue to do business with companies it

believes to be causing it harm. ABRO’s business justification and the litigation privilege are

fatal to the claims for tortious interference, and summary judgment should be granted on those

claims.

CONCLUSION

For all the reasons shown above the Counterclaims fail as a matter of law. Summary

judgment should be granted in ABRO’s favor and the counterclaims dismissed with prejudice.

USDC IN/ND case 3:14-cv-01984-TLS-MGG document 167 filed 04/19/17 page 25 of 26
26

18 929440 . 3

Respectfully submitted,

/s/ Anne L. Cowgur

Jonathan G. Polak

Anne L.Cowgur

Taft Stettinius & Hollister LLP

One Indiana Square, Suite 3500

Indianapolis, Indiana 46204

Email: acowgur@taftlaw.com

Tel: 317.713.3500

Fax: 317.713.3699

Attorneys for ABRO Industries, Inc. and

Peter Baranay

CERTIFICATE OF SERVICE

I hereby certify that on April 19, 2017, a copy of the foregoing document was filed

electronically. Notice of this filing will be sent to all attorneys of record by operation of the

Court’s electronic filing system. Parties may access this filing through the Court’s system.

/s/ Anne L. Cowgur

USDC IN/ND case 3:14-cv-01984-TLS-MGG document 167 filed 04/19/17 page 26 of 26