# [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 14

- 14258

Non

- Argument Calendar

________________________

D.C. Docket No. 1:12

- cv

- 02513

- SCJ

SILVERPOP SYSTEMS, INC.,

Plaintiff

– Counter Defenda n t

– Appellee,

v ersus

LEADING MARKET TECHNOLOGIES, INC.,

Defendant

– Counter Claimant

– Appellant.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

________________________

(January 5, 2016) Case: 14-14258 Date Filed: 01/05/2016 Page: 1 of 15

# 2 

# Before TJOFLAT and MARTIN, Circuit Judges, and ROSENTHAL, ∗ 

# District

Judge.

PER CURIAM:

We AFFIRM the District Court’s well

- reason ed and thorough dec ision for

the reasons stated in the Court’s order of February 14, 2014. A copy of that order

is attached below.

AFFIRMED.

∗ 

# The Honorable Lee H. Rosenthal, U.S. District Judge for the Southern District of Texas, sitting

by designation. Case: 14-14258 Date Filed: 01/05/2016 Page: 2 of 15APPENDIXtORDERThis matter is before the Court on Plaintiff's motions to compel discovery[Doc. Nos.45and 47},l motion for summary judgment [Doc. No.53],and motionsin limine [Doe. No.65and 661,2 and Defendant's motion for partial summaryjudgment [Doe. No. 52].I.FACTUAL BACKGROUNDPlaintiff Silverpop Systems, Inc. ("Silverpop") provides digital marketingservices to businesses such as Defendant Leading Market Technologies, Inc.("LMT"). On January 24, 2005, Silverpop and LMT entered into a serviceagreement whereby LMT was authorized to access Silverpop's web-based e-mailmarketing tool (Engage). In accordance with the terms of the agreement, LMTwould upload digital advertising content and recipient e-mail addresses to theEngage system. That advertising content would then be transmitted to the e-mailaddresses provided.The list of e-mail addresses provided by LMT was stored onthe Engage system. LMT's master e-mail address list was comprised of the e-mailaddress of every person to have ever registered for its MarketBrowser software.LMT would upload select e-mail addresses from its master list to the Engagesystem.As a result, as of November 2010, Silverpop had in its possession a listcontaining the e-mail addresses of 495,591 users of LMT's MarketBrowersoftware ("LMT List").In November 2010, Silverpop's computer network experienced anunauthorized intrusion by unidentified parties ("hackers") who gained access to theinformation stored on the Engage system by 110 of Silverpop's 1,500customers("data breach"). LMT was one of the customers affected by the databreach.According to Silverpop, although it was apparent that the hackers hadcreated export files, it could not be confirmed that the export files were taken outThe District Court's Order of February 14, 2014, is reproduced here in relevant part. Only the formatting andnumbering have been changed.Following the filing of the motions to compel, the parties representedlothe Court their intent to resolve theunderlying discovery dispute without the need for Court action. Relying on that representation and in the absence ofan indication that the parties' discovery dispute remains unresolved, the motions to compel are DISMISSED ASMOOT.2Plaintiff's second motion in limine Doc, No. 66J is incorrectly identified as such. It is in fact the memorandum insupport of the contemporaneously filed motion in liminc [Doe. No. 651. Plaintiff is notified that it is unnecessary totile a motion and its supporting memorandum as separale docket entries. Here, there is only one motion in liminepending before the Court [Doc. No.65J,but, for the purposes of docket clarity and consistency, the Court lists bothdocket entries as representing the motion in limine.Case: 14-14258 Date Filed: 01/05/2016 Page: 3 of 15The parties agree ment does not provide for a suspension of the contract.'On December 1,2010, an amended version of Rule 56 of the Federal Rules olCivil Procedure became effective,The amendments to Rule 56 "are intended to improve the procedures for presenting and deciding summaryjudgment motions" and "arc not intended to change the summary-judgment standard or burdens."Farmers Ins.Exchanget'.RNK. Inc.,632 F.3d 777, 782 n.4 (1st Cir. 2011) (internal quotation marks and emphasis omitied)."IBlecause the summary judgment standard remains the same, the amendments will not affect continuingdevelopment of the decisional law construing and applying the standard now articulated in Rule56(a).Accordingly,while the Court is bound to apply the new version of Rule56,the undersigned will, where appropriate, continue to2Case: 14-14258 Date Filed: 01/05/2016 Page: 4 of 15cite to decisional law construing and applying prior versions of the Rule."Murrayi',Ingram,No. 3: 10-C V-348-MEF, 201 1 WL 671604, *2 (M.D. Ala. Feb. 3, 2011) (internal quotation marks and citations omitted).3Case: 14-14258 Date Filed: 01/05/2016 Page: 5 of 152. LMT'S COUNTERCLAIM FOR NEGLIGENCE To prevail on a claim for negligence under Georgia law, the plaintiff must establish (1) A legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiffs legally protected interest as a result of the alleged breach of the legal duty. Watson v. Gen. Mech. Servs., Inc., 276 Ga. App. 479, 481, 623 S.E.2d 679, 681 (2005) (quoting Bradley Ctr., Inc. v. Wessner, 250

Ga. 199, 200, 296 S.E.2d 693, 695 (1982)). Here, assuming,

arguendo, that Silverpop had a duty to conform its conduct to a particular standard to protect against incidents resulting in a data breach, LMT has failed to present evidence to establish the applicable standard of care. "Evidence of custom within a particular industry, group, or organization is admissible as bearing on the standard of care in determining negligence."

Muncie Aviatio,z Corp. v. Party Doll Fleet, Inc.,

519 F.2d 1178, 1180 (5th

Cir. 1975). Silverpop contends that LMT's expert has not proposed any standards that are ordinarily employed in Silverpop's industry, and LMT fails to rebut this contention. Overall, while LMT highlights several deficiencies in Silverpop's intrusion detection system, it offers no evidence to establish how Silverpop's practices, as they related to intrusion detection, failed to meet the applicable standard of care. Accordingly, as LMT has failed to present evidence establishing the standard of care that governed Silverpop's actions, it cannot establish a breach of the standard of care. Alternatively, LMT's negligence claim is barred by the economic loss rule. The rule "generally provides that a contracting party who suffers purely economic losses must seek his remedy in contract and not in tort."

Gen. Elec. Co. v. Lowe's Home 2enters, Inc., 279 Ga. 77, 78, 608 S.E.2d 636, 637

(2005). However, the economic loss rule does not prevent the recover in tort of "those economic losses resulting from injury to [a plaintiff's] person or damage to his property."

Id. "[B]oth the Georgia Supreme Court and [the Georgia Court of Appeals] have applied the economic loss rule outside of product liability cases."

City of Atlanta v. Benator, 310 Ga. App. 597, 605, 714 S.E.2d 109, 116 (2011).

4Case: 14-14258 Date Filed: 01/05/2016 Page: 6 of 15Here, the parties disagree over whether the economic loss doctrine to thiscase applies to bar LMT's recovery under its claim of negligence. Silverpopargues that the issue here is whether it adequately performed the contract and thusan action for recovery here may be brought only in contract and not in tort. LMTcontends that the economic loss rule does not prevent its recovery in tort because itis seeking to recover for damages to its property (the LMT List) that was not thesubject of the service agreement between the parties. According to LMT, the LMTList was property outside of the subject of the contract and the List lost all value asa saleable asset because no reasonable business would buy a list which had beenthe subject of a data breach.Where a party to a contract suffers damage to property that is not the subjectof the contract, Georgia courts allow for recovery in tort on the premise that "theduty breached in such situations generally arises independent of the contract."Bates & Associates, inc. v. Romei,207 Ga. App. 81, 83, 426 S.E2d 919, 921(1993); see also Voting v. W.S. Badcock Corp.,222 Ga. App. 218,474 S.E2d 87,89 (1996) (quotingUizfied Svcs. v. Home ins. c's.,218 Ga. App.85,87(4), 460S.E.2d545 (1995)) ("[A]tort action cannot be based on the breach of a contractualduty only, [but] it can be based on conduct which, in addition to breaching a dutyimposed by contract, also breaches a duty imposed by law.");Flintkote Co. v.Dravo Corp.,678 F.2d 942, 948 (11th Cir. 1982) ("The [economic loss] rule actsas a shorthand means of determining whether a plaintiff is suing for injuries arisingfrom the breach of a contractual duty. . . or whether the plaintiff seeks to recoverfor injuries resulting from the breach of the duty arising independently of thecontract. . . .).The bar presented by the economic loss rule cannot be circumvented herebecause the duty at issue is one arising under the contract itself. LMT contendsthat its list represented confidential information and Silverpop's duty to protectagainst the disclosure of the LMT List arose from the fact that it "agreed to accept,store, and safeguard" the LMT List [Doc. No. 68, 23]. However, assuming that theLMT List contained confidential information, Silverpop's duty to protect the LMTList arose under Section 4.1 of the parties' agreement, wherein it agreed to protectagainst the disclosure of proprietary information (defined as "confidentialinformation" under the agreement [Doc. No. 1-1, p.7]).5 LMT identifies no otherSection 4.1 provides:Each party hereunder may disclose to the other party certain Proprietary Information of such party- . - . Recipient agrees to hold the Proprietary Information disclosed by Owner in strictestconfidence and not to, directly or indirectly.. . disclose, cause to be disclosed, or otherwisetransfer the Proprietary Information disclosed by Owner 10 any third party...[Doc.No. 1-I, p.4].5Case: 14-14258 Date Filed: 01/05/2016 Page: 7 of 15source for Silverpop's duty to safeguard the LMT List. Thus, to recover itsdamages LMT must proceed under the contract.LMT also argues that the accident and the misrepresentation exceptions tothe economic loss rule apply to its claim of negligence. The accident exception"allows a plaintiff to recover in tort when there is a sudden and calamitous eventthat not only causes damage to the product but poses an unreasonable risk of injuryto persons and other property."Advanced Drainage Sys., hzc. v. Lowinan,210 Ga.App. 731, 734, 437 S.E.2d 604, 607 (1993). According to LMT, the incidentresulting in the data breach was a sudden and calamitous event that caused damageto its property. LMT cites no authority that supports the application of the accidentexception outside the realms of a product liability action, much less to this case.Under the accident exception, a plaintiff may "recover for damages to thedefective product itself, where the injury resulted from an accident."Flinticote Co.,678 F.2d at 948. Here, the parties' agreement encompassed a service and not aproduct. But even if the Engage system was considered a "product" that LMT hadthe rights to access under the agreement, the accident exception does not applybecause LMT does not seek to recover for any damage suffered by the "productitself."Moreover, LMT offers no explanation as to why the data breach incidentconstitutes "a calamity, sudden violence, collision with another object, or somecatastrophic event," justifying the application of the accident exception.Busbee v.Chrysler Corp.,240 Ga. App. 664, 666, 524 S,E.2d 539, 542 (1999). Thus, thereis no basis to apply the accident exception here.LMT's recourse to the misrepresentation exception is also unavailing. Themisrepresentation exception to the application of the economic loss rule recognizesthatone who supplies information . . . in any transaction in which he has apecuniary interest has a duty of reasonable care and competence toparties who rely upon the information in circumstances in which themaker was manifestly aware of the use to which the information wasto be put and intended that it be so used.Advanced Drainage Sys., Inc. v. Low,na,z,210 Ga. App. 731, 734,437 S.E.2d 604,607 (1993) (quoting Robert & Co. Assoc. v. Rhodes-Haveriy Partnership,250 Ga.680,681-682, 300 S.E.2d503(1983).Here, LMT has conceded its fraud claim anditsCounterclaim provides no allegations of misrepresentation with regard to itscause of action for negligence. In the fashion of a shotgun pleading, the count of6Case: 14-14258 Date Filed: 01/05/2016 Page: 8 of 15negligence in the Counterclaim indiscriminately incorporates by reference all ofthe preceding allegations (including allegations of misrepresentation alleged insupport of the claim for fraud). But the sole stated basis for the negligence claim isSilverpop's failure to protect against the data breach [Doc. No. 4, p.13, ¶17].Accordingly, the misrepresentation exception does not apply to LMT's negligenceclaim. See Home Depot U.S.A., Inc. v. Wabash Nat. Corp.,314 Ga. App. 360, 366,724 S.E.2d53,59 (2012) (concluding that while "fraud and negligentmisrepresentation claims.. . fell within the misrepresentation exception" to theeconomic loss rule a claim based on any other tort would have to be encompassedby another exception to the rule to survive dismissal);City of Cairo v. HightowerConsulting Engineers, Inc., 278 Ga. App. 721, 729, 629 S.E.2d518, 525(2006)(concluding that the misrepresentation exception to the economic loss rule appliedbecause the plaintiff had asserted a clam for negligent misrepresentation).Overall, Silverpop is entitled to summary judgement on LMT's claim ofnegligence because LMT has failed to establish the applicable standard of care andthe breach of that standard and, alternatively, because the economic loss ruleapplies to bar LMT's recovery in tort.3. LMT'S COUNTERCLAIM FOR BREACH OF CONTRACT6Each of the parties seeks summary judgment in its favor on LMT's breach ofcontract claim.According to LMT, it is entitled to summary judgment becauseSilverpop breached Section 4.1 of the parties' agreement by failing to protect theLMT List from disclosure to third parties, the damages it incurred as a result of thebreach were direct rather than consequential and, thus, recoverable under thecontract, and even if those damages were consequential, its recovery is not barredunder the damages limitation provision of the contract. Silverpop, on the otherhand, argues that it is entitled to summary judgment on LMT's claim of breach ofcontract because LMT cannot prove its damages, cannot establish that its damageswere caused by Silverpop's alleged breach of the contract, and cannot recover thedamages it seeks because they are consequential damages and the contract bars therecovery of such damages.In analyzing the cross motions for summary judgment on LMT's breach ofcontract claim, the Court first addresses whether the damages LMT seeks areconsequential rather than direct. It is important here to categorize the damagessought as either consequential or direct because while the parties' agreement doesIn accordance with the choice of law provision, parties' agreement is governed by Georgia law [Doc. No. I, Ex.A,111 1.3].7Case: 14-14258 Date Filed: 01/05/2016 Page: 9 of 15not prohibit the recovery of direct damages, the damages limitation provision ofthe agreement, to the extent it is applicable, prohibits the recovery of consequentialdamages.LMT seeks to recoup the lost sale value of its list. It argues that Silverpopwas bound under the contract to protect the LMT List from disclosure to thirdparties.According to LMT, Silverpop did not have in place adequate securitymeasures to protect against the November 2010 data breach and, as a result, anunauthorized third party was able to access the LMT List. LMT contends that itslist, as it existed before the data breach, had a certain value as an asset that couldbe sold but that its sale value was reduced to zero after the data breach. Accordingto LMT, no reasonable business would purchase the LMT List for marketingpurposes once it had been accessed (and very likely exported) by a hacker.7Assuming,arguendo,that the sale value of the LMT List, as it existed prior to thedata breach, was reduced to zero following that breach and that the LMT List wasa confidential document that Silverpop was required to protect from disclosureunder Section 4.1 of the parties' agreement, the question that must be answered iswhich of the two categories of damages (direct or consequential) does the loss ofsale value fall under."The general rule applicable here is that damages recoverable for a breach ofcontract are such as arise naturally and according to the usual course of things fromsuch breach [i.e., general damages] and such as the parties contemplated, when thecontract was made, as the probable result of its breach [i.e., consequentialdamages]."Denny v. Nutt,189 Ga. App. 387, 388,375S.E.2d 878, 879 (1988)(internal quotation marks omitted) (alternations in original). So stated, however,the rule does little to further one's understanding of the type of damages that may"arise naturally from the contract" as opposed to the type that may be the"probable result of the breach." The Court finds it helpful to consider general (i.e.,direct) damages as those damages that compensate for "the value of the veryperformance promised" and consequential damages as those damages that "seek tocompensate a plaintiff for additional losses (other than the value of the promisedperformance) that are incurred as a result of the defendant's breach."Schonfeld v.Hi/hard, 218 F.3d 164, 175-76 (2d Cir. 2000) (internal quotation marks omitted).See also Imaging Sys. Int'l, Inc. v. Magnetic Resonance Plus, Inc.,227 Ga. App.LMT theorizes that once in the hands of a hacker, the LMT List could he sold to any number of parties, whichwould reduce its exclusivity, and the c-mail addresses on the LMT List would be at the risk of spam attacks, whichwould make the address owners more wary about marketing c-mails even if sent by a business that had acquired theaddress through legitimate means (e.g.. by purchasing the List from LMT).8Case: 14-14258 Date Filed: 01/05/2016 Page: 10 of 15641, 646,490 S.E.2d 124, 129 (1997) (direct damages included loss of the benefit of the bargain). Here, LMT's damages are best characterized as consequential. LMT argues that it seeks to recover the lost market value of the LMT List and that lost market value is a direct injury rather than consequential damages. The two cases LMT cites for the proposition that lost market value represents direct damages are inapposite. In NUCO Invs., Inc. v. Hartford Fire Ins. Co.,

No. 1:02 CV 1622 CAP, 2005 WL 3307089 (N.D. Ga. Dec.

5, 2005), the plaintiff sought to recover under an insurance policy the lost market value of a mold-damaged property.

This Court concluded that a loss in value represented direct damages recoverable under the insurance contract based on the understanding that physical damage causes a loss in both the utility and the value of property and that the insurer, having agreed to pay for physical damage, was bound to pay for the loss in value. The

NUCO Court's analysis is unhelpful here.8 Here, the parties' agreement was not one for the safeguarding of the LMT List. Rather, the parties contracted for the providing of e-mail marketing services. While it was necessary for LMT to provide a list of intended recipients (represented as e-mail addresses on the LMT List) to ensure that the service Silverpop provided (targeted e-mail marketing) was carried out, the safe storage of the list was not the purpose of the agreement between the parties. Thus, in the face of a breach of the service agreement by Silverpop, LMT would incur direct damages in the form of a loss of the value (e.g., the money it had paid for the service) of the performance it had been promised. Here, considering the nature of the breach, LMT also suffered a loss in the sate value of the LMT List. That loss, however, is a loss that is separate from the loss of the value of the performance itself. The loss LMT seeks to recover is not of the type that would naturally flow from a breach of contract, irrespective of the actual provision breached by Silverpop. Rather, the loss suffered by LMT is of a type resulting from the breach of a specific term of the agreement. In the absence of a breach of the confidentiality provision, LMT would not have incurred the loss to the sale value of the LMT List. Thus, considering the purpose of the parties' agreement, the damages LMT seeks are not the type that "arise naturally and from the usual course of things." LMT's damages are consequential rather than direct. Next, the Court addresses whether the damages limitation provision of the parties' agreement bars LMT's recovery of its consequential damages.9 Silverpop 8 LMT's reliance on Metro. Atlanta Rapid Transit Auth. r. Dend,

250 Ga.

538, 299 S.E.2d 876 (1983), is equally unavailing. That case concerned the plaintiff's claim for compensation based on the market value ola condemnation action. Under Georgia law, "[tb the extent that consequential damages are recoverable in breach of contract actions, a clause excluding such damages is valid and binding unless prohibited by statute or public policy."

Mark Singleton 9Case: 14-14258 Date Filed: 01/05/2016 Page: 11 of 15Case: 14-14258 Date Filed: 01/05/2016 Page: 12 of 15structural (e.g., relating to remedies and the resolution of disputes) may survivethat termination.Goshawk Dedicated v. Portsmouth Settlement Go. 1,466 F. Supp.2d 1293, 1300 (N.D. Ga. 2006). See also TriState HVAC Equip., LLP v. Big BellySolar,Inc.,752 F. Supp. 2d 517,534 (E.D.Pa. 2010) amended on other ground onreconsideration, No. 10-1054, 2011 WL 204738 (ED. Pa. Jan. 21, 2011) (rejectingthe argument that the forum selection did not apply to parties' dispute because itwas not one of the enumerated provisions that survived the termination of thecontract).LMT argues that a contract is nothing more than a recitation of statements ofmutual obligations and, in essence, argues that the term "obligations" in thesurvival provision encompass all the terms and provisions included in theagreement. Thus, according to LMT, the only provisions that survived thetermination of the parties' agreement were those specific provisions (Sections 4, 6,7, 8, and 9) which were expressly exempted from termination. LMT further arguesthat if "obligations" was intended to be restricted to performance obligations onlythen there would have been no need to selectively exempt certain provisions notdealing with performance obligations (i.e., Sections 8 and 9) from termination.Adoption of LMT's arguments, however, would lead to an anomalous result.For example, the choice of law provision in the agreement (which does notrepresent a performance obligation) would be extinguished.While the agreementwas in force, the choice of law provision in the agreement would dictate the statelaw to be applied to any suit filed under the agreement, but that choice of lawprovision would no longer govern if the suit was filed over the same incidentfollowing the agreement's termination.There is no cogent reason why the partieswould have elected to apply the law of a particular state to a dispute litigated whilethe agreement was in force but have allowed for uncertainty as to the state law thatwould govern any dispute litigated following the termination of the agreement.On the other hand, construing the survival clause as limited to theperformance obligations of the agreement properly gives meaning to the relevantprovisions.Under that interpretation, structural provisions (such as the choice oflaw provision) remain unaffected by the termination of the agreement and applyuniformly regardless of whether the agreement is in force or has been terminated.The damages limitation provision in the parties' agreement is not a performanceobligation that is extinguished upon an agreement's termination. Rather, thatprovision, which limits the damages LMT may recoup, is more akin to a structuralprovision governing remedies and the resolution of disputes under a contract. As1 1Case: 14-14258 Date Filed: 01/05/2016 Page: 13 of 15Case: 14-14258 Date Filed: 01/05/2016 Page: 14 of 15'3Case: 14-14258 Date Filed: 01/05/2016 Page: 15 of 15