United States Court of Appeals

for the Fifth Circuit

No. 19-10350

Nicolas Salomon, 

Plaintiff—Appellant,

versus

Kroenke Sports & Entertainment, L.L.C.; Outdoor 

Channel Holdings, Incorporated, 

Defendants—Appellees.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:15-CV-666

Before Jones, Smith, and Elrod, Circuit Judges.

Per Curiam:*

In 2013, Nicolas Salomon served as the president of two subsidiaries 

of Outdoor Channel Holdings, Inc. With his venture partner, Pacific 

Northern Capital, LLC, Salomon pursued preliminary negotiations to 

purchase the two subsidiaries from Outdoor. The parties executed a term 

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

April 1, 2021

Lyle W. Cayce

Clerk

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2

sheet, which laid out various parameters of the potential sale. The only 

binding portion of the term sheet was the “Exclusivity” section, which 

established an exclusive period of negotiations with respect to a sale of the 

subsidiaries.

The sale of the subsidiaries fell through—after a merger with Kroenke 

Sports & Entertainment, LLC, Outdoor decided not to go through with the 

deal. Salomon remained president of the subsidiaries for approximately one 

year until he was terminated. Shortly after he was terminated, he brought 

this lawsuit.

Salomon alleged breach of contract against Outdoor, tortious 

interference with existing contract against Kroenke, tortious interference of 

prospective relations against Kroenke, breach of fiduciary duty against 

Pacific for breaching its fiduciary duties as joint venture partner to Salomon,

aiding and abetting breach of fiduciary duty against Kroenke and Outdoor, 

unjust enrichment against Kroenke, Outdoor, and Pacific, and civil 

conspiracy against Kroenke, Outdoor, and Pacific.

Defendants Kroenke and Outdoor moved for summary judgment on 

all claims. In addition, Kroenke and Outdoor moved to exclude the testimony 

of Salomon’s damages expert, and Salomon moved to exclude the testimony 

of Kroenke and Outdoor’s expert on public company mergers and 

acquisitions. After a Daubert hearing, the district court issued an order 

granting Salomon’s motion to exclude the defendants’ expert, granting in 

part and denying in part the defendants’ motion to exclude the testimony of 

Salomon’s expert, and granting the defendants’ motion for summary 

judgment as to all claims. Salomon timely appealed.

Based on a review of the briefs, arguments, and pertinent portions of 

the record, we find no reversible error of fact or law in the district court’s 

summary judgment analysis or abuse of discretion in its exclusion of certain 

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testimony offered by Salomon’s damages expert. We affirm essentially for 

the reasons stated in the district court’s thorough opinion and here need only 

summarize the essential failings of the appellant’s position.

This is a contract interpretation case under Texas law. The

Exclusivity provisions formed a contract that related to the sale of the 

subsidiaries, but the parties disagree about whether there was breach under 

the facts of this case—whether Outdoor’s negotiations with Kroenke relating 

to Kroenke’s offer to acquire all of Outdoor’s outstanding stock implicated 

the Exclusivity provisions at all.

“[A] parent corporation and its subsidiaries are distinct legal 

entities.” Docudata Recs. Mgmt. Servs., Inc. v. Wieser, 966 S.W.2d 192, 197 

(Tex. App.—Houston [1st Dist.] 1998, pet. denied); see also Cap. Parks, Inc. 

v. Se. Advert. & Sales Sys., Inc., 30 F.3d 627, 629 (5th Cir. 1994) (holding that 

a wholly-owned subsidiary was a “separate legal entity possessing its own 

separate assets and liabilities”). The sale of a parent company’s stock does 

not necessarily implicate agreements relating to the sale of subsidiaries. See 

id. (“[T]he transfer of the parent corporation’s stock and assets . . . does not 

affect the ownership of assets held by the subsidiary.”); Tenneco Inc. v. Enter. 

Prod. Co., 925 S.W.2d 640, 645 (Tex. 1996) (“[T]he purchaser of stock in a 

corporation does not purchase any portion of the corporation’s assets, nor is 

a sale of all the stock of a corporation a sale of the physical properties of the 

corporation.” (quoting McClory v. Schneider, 51 S.W.2d 738, 741 (Tex. Civ. 

App.—Amarillo 1932, writ dism’d))). 

We agree with the district court that, under the terms of the 

Exclusivity provisions, Outdoor did not breach by negotiating with Kroenke 

about the acquisition of Outdoor or by accepting Kroenke’s offer to acquire 

Outdoor’s stock. The Exclusivity provisions concerned only the 

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subsidiaries, and the sale of all of Outdoor’s stock was not equivalent to the 

sale of its subsidiaries.

For Salomon’s claims against Kroenke and Outdoor arising from an 

alleged breach of fiduciary duty by Salomon’s venture partner Pacific, the 

parties disagree about what inferences are properly drawn from an attempted 

amendment to the original contract that included a signature line for Pacific

but not for Salomon. We agree with the district court that Salomon failed to 

create a genuine issue of material fact with respect to whether Kroenke and 

Outdoor were aware that they were participating in an alleged breach of 

fiduciary duty by Pacific. Salomon’s speculations do not suffice. See Ramsey 

v. Henderson, 286 F.3d 264, 269 (5th Cir. 2002) (“‘[C]onclusory allegations, 

speculation, and unsubstantiated assertions are inadequate to satisfy’ the 

nonmovant’s burden in a motion for summary judgment.” (quoting Douglass 

v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc))).

Finally, the district court’s ruling to exclude in part the testimony of 

Salomon’s damages expert was not an abuse of discretion. The district court 

explained that the expert’s proposed testimony on benefit-of-the-bargain 

damages were based on an equity structure Salomon proposed to his venture 

partner Pacific but to which Pacific never agreed and thus, this testimony was

“unreliable.” See Hoffman v. L & M Arts, 838 F.3d 568, 584 (5th Cir. 2016) 

(“‘[A] hypothetical, speculative bargain that was never struck and would not 

have been consummated’ cannot serve as a baseline for benefit-of-thebargain damages . . . .” (quoting Formosa Plastics Corp., USA v. Presidio Eng’rs 

& Contractors, Inc., 960 S.W.2d 41, 50 (Tex. 1998))).

The district court’s judgment is AFFIRMED.

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