interference with contract claim against KSA (Count IX), and a tortious interference
with prospective economic advantage against KSA (Count X).

Defendant Kurt Salmon Associates filed a motion to dismiss and Defendant
Ann Taylor also filed a motion to dismiss. On November 12, 2003, we denied the
motions to dismiss in part and granted the motions to dismiss in part. Wedenied the
Ann Taylor’s motion to dismiss the ITSA claims (Count I) and KSA (Count II). We
also granted Ann Taylor’s and KSA’s motion to dismiss the fraudulent
misrepresentation claims (Count II])(Count IV), We denied Ann Taylor’s motion to
dismiss the breach of contract claim (Count V). We also granted Ann Taylor’s
motion to dismiss the quantum meruit claim (Count VII) and denied Ann Taylor’s
motion to dismiss the promissory estoppel claim (Count VI). We also denied Ann
Taylor’s motion to dismiss the promissory estoppel claim(Count VIII), denied
KSA’s motion to dismiss the tortious interference with contract claim (Count IX),
and denied KSA’s motion to dismiss the tortious interference with prospective
economic advantage claim (Count X). On May 21, 2004, Verotix reached a
settlement with Ann Taylor regarding the remaining claims against Ann Taylor.

KSA subsequently filed a motion for summary judgment on the remaining
claims. On August 24, 2004, we denied KSA’s motion for summary judgment on
the tortious interference with contract claim and granted KSA’s motion for summary
judgment on the misappropriation of trade secrets claim. In addition, we granted

Verotix’s motion to bar KSA’s proposed damage expert. KSA has now filed a


business associate of KSA. Whether or not Romano is telling the truth and whether
or not he considered the email in his decision making process is a key determination
in this action. KSA’s contention that we should glance at a written declaration
outside the presence of Romano and accept its veracity at face value is not in
accordance with the law. The issue of credibility is for the trier of fact alone and is
not an issue that may be decided on a motion for summary judgment. To the extent
that reasonable inferences could be drawn in reviewing a motion for summary
judgment, we did not conclude in our prior ruling that no reasonable trier of fact
could find that Romano considered the Horst email.

As the United States Supreme Court stated in Anderson v. Liberty Lobby, Inc.,
“summary judgment motions do[] not denigrate the role of the jury.” 477 U.S. 242,
255 (1986). The court explained that the summary judgment process “by no means
authorizes trial on affidavits” and that “[c]redibility determinations, the weighing of
the evidence, and the drawing of legitimate inferences from the facts are jury
functions, not those of a judge, whether he is ruling on a motion for summary
judgment or for a directed verdict.” Jd. The Court further stated that “(t]he evidence
of the non-movant is to be believed, and all justifiable inferences are to be drawn in
his favor.” Id.

KSA argues that in order to avoid summary judgment on the basis of
credibility, there must be conflicting evidence and KSA contends there is no

evidence that contradicts Romano’s assertion that he did not consider the Horst


customer’s goals without a project integrator. In July 2000 as part of the retrofit
project, Ann Taylor decided to make changes to its receiving and shipping conveyor
system and instructed KSA to solicit outside bids for the work. Verotix alleges that
it submitted a bid for the project, but that KSA put pressure on Verotix to submit
designs sooner than other vendors. Verotix also contends that KSA made Verotix
include costs in its bid that other vendors did not have to include and thus KSA was
able to rig the bidding so that Verotix could not submit the lowest bid. On October
20, 2000, Verotix was informed that Key Handling Systems (“Key”) submitted the
lowest bid for the project. KSA also informed Verotix that another outside vendor
would be completing the implementation portion of the warehouse control system.
Ann Taylor allowed Verotix to finish the project through February of 2001. Verotix
alleges that Ann Taylor subsequently used the designs and blueprints submitted by
Verotix to implement the warehouse control system at the Louisville facility and to
implement design enhancements created by Verotix such as the “one Hanger”
design. In its first amended complaint Verotix brings an Illinois Trade Secret Act
(“ITSA”), 765 ILCS 1065 et seq., claim against Ann Taylor (Count I), an ITSA
claim against KSA (Count ID, a fraudulent misrepresentation claim against Ann
Taylor (Count IIL), a fraudulent misrepresentation claim against KSA (Count IV), a
breach of contract claim against Ann Taylor (Count V), a breach of implied contract
claim against Ann Taylor (Count VI), a quantum meruit claim against Ann Taylor

(Count VII), a promissory estoppel claim against Ann Taylor (Count VIII), a tortious


motion for reconsideration regarding our denial of its summary judgment motion on

the tortious interference with contract claim.

LEGAL STANDARD
A motion for reconsideration may be brought “to correct manifest errors of
law or fact or to present newly discovered evidence.” Caisse Nationale de Credit
Agricole v. CBI Indus., 90 F.3d 1264, 1270 (# Cir. 1996). Such motions cannot be
used as a “vehicle to produce new evidence that could have been” produced earlier
or as a vehicle to reargue the same arguments presented to the court on a prior

occasion. Jd.

DISCUSSION

KSA conveniently omits any reference to the legal standard for a motion for
reconsideration which renders the contents of its instant motion entirely improper.
KSA’s entire motion for reconsideration is nothing more than arguments that should
have been presented before our prior ruling and attempts to re-hash the same
arguments to try to get the court to change its mind the second time around. A
motion for reconsideration is not the proper vehicle for such arguments. Therefore,
we may deny the motion for reconsideration on that basis alone.

Despite the fact that KSA could and should have presented its arguments



email. There is sufficient conflicting circumstantial evidence in the instant action.
Nothing requires Verotix to specifically introduce an opposing declaration to
contradict Romano’s declaration. Verotix has introduced evidence that shows that
Horst sent the email criticizing Verotix to Romano and that Romano subsequently
made the pertinent decision that was adverse to Verotix. KSA does not even deny
that those facts are untrue. KSA contends that Verotix must come forth with
evidence that specifically contradicts Romano’s declaration. KSA naturally attempts
to impose such a heavy burden on Verotix because, unless Verotix were to somehow
obtain a contradictory declaration from Romano himself regarding what Romano
considered in his own mind when making the pertinent decision, it would be
virtually impossible for Verotix to meet such a burden. The veracity of Romano’s
declarations is a matter to be decided at trial by the trier of fact. Therefore, we deny

KSA’s motion for reconsideration.

CONCLUSION

Based on the foregoing analysis, we deny KSA’s motion for reconsideration.

: .
Samuel Der-Yeghiayan Z ‘ 2

United States District Court Judge

Dated: October 19, 2004


_:Minute Orde? Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Samuel Der-Yeghiayan Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 02 C 8639 DATE 10/19/2004
CASE Verotix Syst vs. Ann Taylor
TITLE
[ln the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
(1) o Filed motion of [ use listing in “Motion” box above.]
(2) a Brief in support of motion due
(3) Oo Answer brief to motion due. . Reply to answer brief due___.
(4) oO Ruling/Hearing on setfor____at
(5) o Status hearing[held/continued to] [set for/re-set for] on__—set for at
(6) a Pretrial conference[held/continued to] [set for/re-set for]on___———ssetfor_— saat.
(7) oa Trial[set for/re-set for] on at
(8) o [Bench/Jury trial] [Hearing] held/continued toa
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OOFRCP4(m) CLocal Rule 41.1 OFRCP41(a\(1) OO FRCP41(a)(2).

(10) [Other docket entry] _ Status hearing held. Counsel appeared and reported to the Court that a mediation
date has been set. For the reasons stated in the attached memorandum opinion, KSA defendants’ motion to
reconsider the Court’s order dated 08/24/04 is denied. The parties shall exchange proposed witness lists by
11/02/04. Motions in limine are to be filed by 11/09/04. Responses to the motions in limine are to be filed by
11/23/04 and replies by 11/30/04. Joint pretrial order as outlined in this Court’s standing order regarding pretrial
order shall be submitted to chambers by 01/10/05. Copies of the Court’s standing order regarding pretrial maybe
obtained from this Court’s web page or from this Court’s Courtroom Deputy. Pretrial conference set for 01/27/05
at 10:30 a.m. Jury trial set to begin on 01/31/05 at 9:30 a.m. Enter Memorandum Opinion

al) For further detail see Memorandum Opinion attached to the original minute order.

No notices required, advised in open court.

No notices required.
ql number of notices

Notices mailed by judge’s staff,

Notified counsel by telephone.

Y | Docketing to mail notices. Memorandum
Opinion distributed in open Court.

Mail AO 450 form.

docketing deputy initials

Que 02 LoDhede

Copy to judge/magistrate judge.

date mailed notice

4
a

courtroom:
Mw6 deputy’s
initials

Date/time received in
central Clerk’s Office mailing deputy initials



before our prior ruling, which would have allowed for the more efficient use of
judicial resources, and despite the fact that we have already addressed some of
KSA’s arguments, we shall further expend judicial resources in order to leave no
doubt that KSA’s arguments are completely without merit.

In our prior ruling we made reference to an email sent from Jack Horst
(“Horst”), who worked for KSA, to Ann Taylor. KSA acknowledged in its prior
briefs that the email indicated that Verotix was not being cooperative in regards to
Ann Taylor’s request that Verotix submit a bid to Key. (KSA Brief in Support of SJ
9). KSA argues that we improperly considered the email since KSA supplied a
declaration from Anthony Romano (“Romano”), Executive Vice-President of Ann
Taylor, stating that the Horst email played no role in his decision to select a different
vendor for the WCS implementation. KSA argues that this issue is thus
“undisputed.” (Recon Mot. 3). However, as we explained in our prior ruling, KSA
cannot avoid being brought before a trier of fact and deny Verotix its day in court by
providing affidavits and declarations from individuals attempting to whitewash over
any disputed claims. KSA criticizes the court for not understanding the standard for
a summary judgment motion, but it is clearly KSA that does not have a firm grasp on
the summary judgment standard.

As we indicated in our prior ruling, whether or not Romano is telling the truth
is a matter to be addressed by the trier of fact, particularly when Romano works for

an entity that was once a co-defendant in the instant action and was a former


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

VEROTIX SYSTEMS, INC.,
Plaintiff,

v. No. 02 C 8639

qocwered

ANN TAYLOR, INC., ANN TAYLOR
get 20 2004.

STORES CORPORATION, ANN
TAYLOR DISTRIBUTION SERVICES,
INC., ANN TAYLOR RETAIL, INC.,
KURT SALMON ASSOCIATES, INC.,
KURT SALMON ASSOCIATES, KURT
SALMON ASSOCIATES CAPITAL
ADVISORS, INC.,

wwe ww SS SS SSS SSS Ow

Defendants.

MEMORANDUM OPINION

SAMUEL DER-YEGHIAYAN, District Judge

This matter is before the court on Defendant Kurt Salmon Associates, Inc.’s
and Defendant Kurt Salmon Associates Capital Advisors, Inc.’s (collectively
referred to as “KSA”) motion for reconsideration of this court’s partial denial of
KSA’s motion for summary judgment on August 24, 2004. For the reasons stated

below, we deny the motion for reconsideration.

i6|


BACKGROUND

Beginning in early 1998 Ann Taylor Inc. (“Ann Taylor”) hired Verotix to
trouble shoot its control system for the Ann Taylor warehouse in Louisville,
Kentucky. In late 1998 Ann Taylor installed the new control system at the
Louisville facility called the warehouse control system. In February of 2000, Ann
Taylor began a retrofit project for its Louisville facility and allegedly hired Verotix
to consult, design, and implement the warehouse control system. Verotix contends
that it came up with a design change for Ann Taylor that became known as the “one
hanger” or “garment on a hanger” (“GOH”) system. Verotix alleges that the
invention of the GOH system resulted in a more efficient routing system and saved
Ann Taylor significant costs. Verotix claims that its consulting services were billed
at a reduced rate because of Ann Taylor’s promise to use Verotix to design,
implement, license software and maintain the warehouse control system at the
Louisville facility. Verotix also claims that it devoted over 4000 man hours to do
consulting work for the retrofit project and that it limited the amount of business
from other customers in order to have the manpower necessary to work on the
retrofit project.

Ann Taylor hired KSA as the project integrator for the retrofit project.
Verotix contends that KSA held a grudge against Verotix because in March 2000
KSA acted as a project coordinator for a project funded by StrideRite and KSA lost

its contract because Verotix demonstrated that it was capable of meeting the