UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Pure Barnyard, Inc.

v. Civil No. 08-cv-501-JL

Opinion No. 2011 DNH 035

Organic Laboratories, Inc.

and Results Capital, Inc.

OPINION AND ORDER

This case arises out of a failed deal to merge two companies

in the fertilizer market, plaintiff Pure Barnyard, Inc. and

defendant Organic Laboratories, Inc. (“Organic Labs”), into a

third entity, Organic Labs Holdings, Inc. (“Organic Holdings”). 

Pure Barnyard alleges that, during discussions over the proposed

deal, Organic Labs--acting through its alleged agents, including

defendant Results Capital, Inc.--misrepresented the quantity of

fertilizer material to be provided under an agreement between

Organic Holdings and a supplier. Pure Barnyard further alleges

that, in reliance on these misrepresentations, it committed to

selling that material (instead of its own products) to its

customers, causing it a variety of commercial damage when the

material turned out to be unavailable.

This court has subject-matter jurisdiction under 28 U.S.C. 

§ 1332(a)(1) (diversity), because Pure Barnyard is a New

Hampshire corporation and the defendants are Florida

Case 1:08-cv-00501-JL Document 95 Filed 03/07/11 Page 1 of 23
corporations. Organic Labs has moved for summary judgment, see 1

Fed. R. Civ. P. 56, arguing that (1) there is no evidence to show

an agency relationship between it and the sources of the alleged

misrepresentations, and (2) any misrepresentations were

“corrected” before Pure Barnyard acted in reliance on them.2

Organic Labs has also moved to strike certain documents submitted

by Pure Barnyard with its summary judgment objection, arguing

that they should have been produced in discovery but were not. 

Following oral argument, Organic Labs’ motion for summary

judgment is denied except as to count 1, which is unconnected to

the alleged misrepresentations and on which Pure Barnyard

concedes summary judgment should enter. First, there is

Results Capital, which was just defaulted for failing to 1

have new counsel appear on its behalf after its latest (and

fourth) set of attorneys withdrew, did not join in Organic Labs’

motion or file a summary judgment motion of its own.

Organic Labs also argued that Pure Barnyard could not 2

recover any of its claimed damages without expert testimony,

which had not been properly disclosed, and, on that same basis

moved to strike from the record an “expert witness report” by

Pure Barnyard’s chief executive officer, John Packard. In a

later conference call with the court, however, Pure Barnyard

agreed to make Packard available for deposition before trial and

to allow Organic Labs the chance to designate a damages expert,

even though the deadlines for doing those things expired more

than three months ago. At oral argument, Organic Labs agreed

that, in light of these accommodations, it was withdrawing its

argument for summary judgment based on Pure Barnyard’s lack of a

properly disclosed damages expert. 

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sufficient evidence for a rational factfinder to conclude that at

least one of the sources of the alleged misrepresentations made

them while acting as Organic Labs’ agent. Second, there are

factual disputes as to whether Pure Barnyard acted in reliance on

the alleged misrepresentations before Organic Labs “corrected”

them. Because, in reaching these conclusions, the court has not

relied on any of the materials challenged by Organic Labs’ motion

to strike, that motion is denied as moot.3

I. Applicable legal standard

Summary judgment is appropriate where the “pleadings, the

discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact and

that the movant is entitled to a judgment as a matter of law.” 

Fed. R. Civ. P. 56(c)(2). Under this rule, “[o]nce the moving

party avers an absence of evidence to support the non-moving

party’s case, the non-moving party must offer ‘definite,

competent evidence to rebut the motion.’” Meuser v. Fed. Express

The court also denies Organic Labs’ motion to strike Pure 3

Barnyard’s surreply memorandum for exceeding the page limit set

by L.R. 7.1(e)(3). While the better practice would have been for

Pure Barnyard to seek leave of court before filing an overlong

memorandum, Organic Labs has not claimed any prejudice from the

excess pages and, in any event, Organic Labs was given the

fullest opportunity to make whatever points it wished at oral

argument on its summary judgment motion. 

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Corp., 564 F.3d 507, 515 (1st Cir. 2009) (quoting Mesnick v. Gen.

Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991)).

In ruling on a motion for summary judgment, the “court must

scrutinize the record in the light most flattering to the party

opposing the motion, indulging all reasonable inferences in that

party’s favor.” Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 19

(1st Cir. 2003). The following facts are set forth accordingly,

though the court has made an effort to note Organic Labs’ version

of events where appropriate.

II. Background

A. The underlying facts

Pure Barnyard, based in Portsmouth, New Hampshire, had been

a leader in the organic lawn and garden fertilizer market,

selling to a number of national hardware chains and similar

retailers. John Packard, its founder, serves as its chairman and

chief executive officer. Organic Labs, based in Stuart, Florida,

is also engaged in the business of manufacturing, distributing,

and selling fertilizers and other garden and lawn care products. 

Organic Labs is owned by David Keen, who also serves as its

president, and Keen’s wife. Also involved were David Webb, the

chief executive officer and majority owner of Results Capital, a

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private equity firm based in West Palm Beach, Florida, and Mark

Conboy, an “entrepreneur” from that area. 

In February 2008, Conboy, who had known Webb for nearly 15

years, introduced him to Keen, who wanted to sell his and his

wife’s shares in Organic Labs and no longer have responsibility

for the company’s day-to-day operations. The nature of the

resulting relationship is a matter of dispute. Conboy says that,

as he recommended to Keen, Organic Labs “retained Webb and

Results Capital to market Organic [Labs] for sale to a group of

investors,” while Keen says that neither he nor Organic Labs ever

“authorized” Results Capital, Webb, or Conboy to “act as [an]

agent.” Webb agrees with Keen that “neither the Keens nor

Organic [Labs] ever retained [him] or Results Capital as their

investment banking firm, or in any other capacity.” Instead,

Webb explains, he personally “became interested in creating an

opportunity consistent with . . . Keen’s stated desire to get out

of the day-to-day operation” of Organic Labs.

Webb and Conboy also disagree over how Pure Barnyard became

involved in their plan for Organic Labs. Webb says that he

“learned about” Pure Barnyard through research into the organic

fertilizer industry that he conducted after meeting with Keen and

that, as a result, Results Capital began “working toward a

proposed vertical integration of both Organic [Labs] and Pure

5

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Barnyard that was entirely of [Webb’s] own conception.” Conboy,

however, says that, “[a]cting on behalf of” both Results Capital

and Organic Labs, he “began to assist” Results Capital in its

“efforts to find investors,” and came to learn of Pure Barnyard

from the former president of a bank that did business with it.

In June or July 2008, Webb, Conboy, and Keen--joined by

Michael Williams, Organic Labs’ vice president of sales and

marketing--called Packard and “proposed a purchase of Pure

Barnyard” through Organic Holdings. As Packard recalls the 4

terms of the proposal, “Webb, Conboy, and Keen would form [that]

entity to purchase the assets” of both Organic Labs and Pure

Barnyard with capital raised through the sale of stock in Organic

Holdings, “in which Keen would be a shareholder.” Packard says

he understood that “Keen would be a founder and co-owner with

Webb and Conboy” in Organic Holdings. When Organic Holdings was

formed, however, its only shareholders were Webb and Conboy--but

Keen and his wife would have received $570,000 worth of stock in

Williams recalls that he “participated in the effort to 4

sell Organic Labs,” including by giving Webb and Conboy

information at Keen’s request, and that Keen and Organic Labs

“allowed, encouraged, and permitted [Organic] Holdings, Results

[Capital], Webb and Conboy to act on their behalf.”

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the company as the result of the asset purchase agreement between

Organic Labs and Organic Holdings.5

Packard further recalls that Webb and Conboy later “made a

series of representations” to encourage him to commit Pure

Barnyard to the proposed transaction. Chief among them was that

Organic Labs “had a firm contract” to buy from Cargill--which

Packard knew as “one of the biggest, if not the biggest chicken

processor in the United States”--60,000 tons of “feather meal

based material at a price no greater than $200” per ton, as well

as “North American distribution rights” for this material. 

Packard explains that chicken feather meal is high in nitrogen,

“which makes it an ideal, but historically expensive base for

organic fertilizer.” Thus, Packard says, Organic Labs’ right to

purchase 60,000 tons of the feather meal at only $200 each “was

critically important because it made organic fertilizer products

cost-competitive” with their non-organic alternatives.

Neither Webb nor Conboy has denied making this statement to

Packard. Conboy, in fact, says that he “advised Pure Barnyard of

the Cargill contract” based on what Keen had told him, i.e.,

One version of this agreement, dated August 29, 2008, was 5

notarized on September 9, 2008, and another version was notarized

on October 7, 2008. Both versions, however, provided that the

Keens would receive $570,000 in Organic Holdings stock as part of

the purchase price, and there is evidence that Keen, Webb, and

Conboy had discussed that provision as early as August 8, 2008. 

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“that Organic [Labs] had a binding supply agreement with Cargill

that obligated [it] to sell Organic [Labs] 60,000 tons of its new

poultry feather, organic fertilizer during 2009” (capitalization

corrected). Packard recalls that, in meetings in July and August

2008, Keen “assured [him] that Cargill had developed a method or

process that made the processing of feather meal easier and

cheaper” and that this “new process explained the $200 [per ton]

cost.” Packard says that Keen even showed him a sample of the

feather meal. Keen has not denied any of this on the record.6

There is some dispute, though, as to when Webb and Conboy

made the representation at issue. Consistent with the

allegations of Pure Barnyard’s first amended complaint, Conboy

says that the representation occurred when he and Webb

“telephoned Packard and the other Pure Barnyard [d]irectors to

convince them to authorize Packard to enter into an asset

At oral argument, Organic Labs explained that, while its 6

position is that the alleged misrepresentations were not even

made, it did not submit any evidence to that effect for fear of

creating a dispute of material fact that would undermine its

summary judgment motion. This is difficult to understand, since

the motion assumes that the misrepresentations were made, but

argues that makes no difference due to the lack of evidence that

there was an agency relationship with Webb and Conboy or reliance

by Pure Barnyard. A dispute over whether the misrepresentations

were made, then, would have had no effect on the outcome of

summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317,

323 (1986) (“a complete failure of proof concerning an essential

element of the nonmoving party’s case necessarily renders all

other facts immaterial,” and summary judgment appropriate).

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purchase agreement” with Organic Holdings in “July/August 2008.” 

Packard’s affidavit says that the representation occurred in July

2008, though it does not reference the other directors’ presence

on the call. But Webb says that the “conference call where the

proposed acquisition of Pure Barnyard by [Organic] Holdings was

discussed with the Pure Barnyard Board of Directors” took place

on September 11, 2008 (without describing the substance of the

call). Finally, an email from Packard to Webb and Conboy refers

to a Pure Barnyard board meeting, to take place on August 25,

2008, “to discuss a possible merger with Organic Labs.”

The timing of the representation is potentially important

because Pure Barnyard subsequently learned that it was untrue,

i.e., that Cargill had not in fact agreed to provide Organic Labs

with 60,000 tons of the feather meal. There is evidence that, on

or around September 19, 2008, Keen told Packard “there will only

be 750 tons available for the retail market in 2009.” Then, on 7

The evidence of what Keen told Packard around this time is 7

an email from Conboy to Webb describing a prior conversation

between Conboy and Packard. The email itself, then, is likely

inadmissible hearsay, even if offered to prove Packard’s

awareness of what Keen told him (because the email is an out-ofcourt statement by Conboy). See Fed. R. Evid. 801(c), 802; but

see James M. Rosenbaum, “In Defense of Rule 808, Federal Rules of

Evidence,” 12 Green Bag 165, 166 (2009) (facetiously proposing

that “if it’s an email, it may be admitted,” despite hearsay or

other evidentiary problems). Yet without any objection from Pure

Barnyard, the court will consider the email for that purpose. 

See Perez v. Volvo Car Corp., 247 F.3d 303, 315 (1st Cir. 2001). 

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October 1, 2008, Keen informed Packard of Cargill’s production

schedule for the next four months, which called for “a minimum of

60 tons per month” of feather meal throughout 2009. Packard

responded, by email, “This is not good!” because the schedule

“obviously puts us out of the [retail] chains and independents

for 2009 and likely 2010.”

Packard explains that, based on the initial representation

about Cargill’s contract to supply Organic Labs with the product,

Pure Barnyard had “reached an agreement” to provide Home Depot

and other “big box” retailers with the new feather meal product

instead of Pure Barnyard’s own products. Pure Barnyard also

convinced the retailers to change the layout of their shelving to

accommodate the new product, and ordered packaging for it.

Packard maintains that he took these actions before Keen told him

that Cargill could not in fact provide the stated quantity of

feather meal material, and that, by the time he learned the

truth, “Pure Barnyard had already taken itself out of the 2009

market” for its own products.

There is some evidence, largely in the form of

contemporaneous emails from Packard to Conboy, suggesting that

Pure Barnyard had not in fact agreed to sell the feather meal

product to its customers or ordered the packaging for it until at

10

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least late September 2008. But Packard explains that, insofar 8

as these imply that Pure Barnyard had not yet committed itself to

selling the product, they were just “threatening innuendos

intended to push [the merger] to completion,” rather than an

accurate account of the status of its business dealings. 

Pure Barnyard alleges that, as a further consequence of the

misrepresentations about Organic Labs’s arrangements with

Cargill, Pure Barnyard’s board of directors authorized it to

enter into an asset purchase agreement with Organic Holdings. 

There is no question, though, that Pure Barnyard knew that

representation was false by the time it claims to have actually

Organic Labs points to four emails. One is the email from 8

Webb from Conboy discussing his conversation with Packard about a

conversation he had with Keen around September 19, 2010. See

note 7, supra. After reporting that Keen had told Packard about

the limited quantity of feather meal product available, and

noting that it was “substantially less than the 12,000 tons

[Packard] said they could sell to retail in 2009,” Conboy adds

that Packard “is OK with this, better to know the truth than to

over promise and not be able to deliver the boxes.” The second

is a September 2, 2008 email from Packard that seems to announce

Pure Barnyard’s decision to present its own product at an

upcoming trade show, while noting that “[w]e may be showing other

product from [Organic Labs] if we can fast forward our merger

discussions.” The third is a September 17, 2008 email to Webb

and Conboy from Packard stating that he has “bought until next

week to give [Pure Barnyard’s] customers a complete analysis of

what we’re doing for 2009. If I don’t have anything from Organic

Labs, I will have to go with our original blended product. I

will be committing to my bag manufacturer on [September 19, 2008]

for 2009-2010.” The fourth is a September 20, 2008 email to

Conboy from Packard saying that he “will be ordering bags on

[September 22]. Hopefully, they’re yours.” 

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signed the asset purchase agreement, on October 8, 2010.9

Furthermore, the asset purchase was never consummated--because,

Conboy explains, Keen told Webb “to call the Pure Barnyard part

of the transaction off.” Ultimately, the asset purchase between

Organic Labs and Organic Holdings was not consummated either.

B. Procedural history

In late November 2008, Pure Barnyard commenced this action

against Organic Labs and Results Capital in Rockingham County

Superior Court. The defendants removed the case to this court,

see 28 U.S.C. § 1441, and moved to dismiss for lack of personal

jurisdiction, see Fed. R. Civ. P. 12(b)(2). Following a hearing,

the court denied the motion, based largely on Conboy’s account of

his and Webb’s phone call to Packard, while he was in New

Hampshire, during which the alleged misrepresentations were made. 

Order of Sept. 11, 2009.

Pure Barnyard later filed a first amended complaint in six

separately numbered counts:

Pure Barnyard has not submitted a version of the asset 9

purchase agreement signed by either party, though Conboy claims

to have seen Packard sign it on Pure Barnyard’s behalf and hand

it to Webb. And there is no evidence that Organic Holdings ever

manifested its assent to the agreement. This dispute is

immaterial, though, because Pure Barnyard’s claims do not arise

out the asset purchase agreement between it and Organic Holdings

(which is not even a party here).

12

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• “interference with contractual relations,” arising

out of the defendants’ allegedly contacting Pure

Barnyard’s employees “to induce them to leave and come

work for Organic Labs” (count 1);

• civil conspiracy, arising out of the defendants’ use

of the alleged misrepresentations as part of a plan “to

maximize the amount of money which they could take

from” merging Organic Labs and Pure Barnyard into

Organic Holdings (count 2);

• fraud, based largely on the alleged misrepresentation

as to Organic Labs’ arrangement with Cargill (count 3);

• negligent misrepresentation, based largely on the

same alleged statement (count 4); 

• violation of the New Hampshire Consumer Protection

Act, N.H. Rev. Stat. § 358-A, based on the same alleged

misrepresentation (count 5); and

• a “common-law claim for attorneys’ fees, costs, and

expenses” (count 6).

Organic Labs then moved to dismiss counts 2, 3, 5, and 6 for

failure to state a claim for relief. See Fed. R. Civ. P.

12(b)(6). Organic Labs argued, among other things, that Pure

Barnyard had not alleged any fraudulent misrepresentation “by

Organic Labs or any of its principals,” but only by Webb. The

court ruled, however, that Pure Barnyard had plausibly alleged an

agency relationship between Webb and Conboy, on one hand, and

Organic Labs, on the other. The court therefore denied the

motion to dismiss except as to count 6 (the common-law claim for

attorneys’ fees). Order of Aug. 10, 2010. The case has since

been scheduled for a bench trial.

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III. Analysis

In moving for summary judgment on counts 2-5 (civil

conspiracy, fraud, negligent misrepresentation, and violation of

N.H. Rev. Stat. Ann. § 358-A), Organic Labs makes two independent

arguments: (A) there is insufficient evidence for a rational

factfinder to conclude that Webb and Conboy were acting as its

agents when they made the alleged misrepresentations, and

(B) the alleged misrepresentations were “corrected” before Pure

Barnyard acted in reliance on them. The court will address 10

these arguments in turn.

A. Agency

Under New Hampshire law, “the necessary factual elements to

establish agency involve: (1) authorization from the principal

that the agent shall act for him or her; (2) the agent's consent

to so act; and (3) the understanding that the principal is to

exert some control over the agent's actions.” VanDeMark v.

Organic Labs also moves for summary judgment on count 1 10

(arising out of its alleged efforts to lure away Pure Barnyard’s

employees) because, among other reasons, none of those employees

actually went to work for Organic Labs. Pure Barnyard concedes

in its surreply that, on this basis, summary judgment should

enter against it on count 1.

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McDonald’s Corp., 153 N.H. 753, 760-61 (2006). Organic Labs 11

argues that Pure Barnyard cannot satisfy this test because it has

no evidence of the requisite “authorization” from Organic Labs

that Webb and Conboy act on its behalf.

In one of his affidavits submitted here, however, Conboy

attests that Organic Labs “retained Webb and Results Capital to

market Organic [Labs] for sale to a group of investors.” Organic

Labs does not question that, if it did in fact retain Webb to try

to sell the company, then that would amount to the authorization

necessary to make Webb the agent of Organic Labs for that

purpose. Instead, Organic Labs argues that, because “none of the

documents . . . produced by [Pure Barnyard] in discovery even

remotely demonstrates that Keen ever authorized” Webb, he “could

not have acted as an agent of Organic Labs.” But a principal

need not authorize its agent in writing. “The granting of actual

authority may be either express or implied from the parties’

conduct or other evidence of intent.” Dent v. Exeter Hosp.,

Inc., 155 N.H. 787, 792 (2007).

The parties’ summary judgment briefing relies solely on 11

New Hampshire law in addressing the agency issue. The court

takes that as a tacit agreement that New Hampshire law controls

that question here, see, e.g., Anderson v. Century Prods. Co.,

943 F. Supp. 137, 150 n.2 (D.N.H. 1996), despite Florida’s

substantial relationship to the underlying events, cf. Demers v.

Pilkington N. Am., Inc., 2010 DNH 193, 9 n.3.

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Organic Labs also complains (as it does about much of

Conboy’s affidavit) that his statement that the company “retained

Webb and Results Capital to market Organic [Labs] for sale to a

group of investors” is merely “conclusory” and therefore

insufficient to create a genuine issue of fact. It is true that 12

“[a] properly supported motion for summary judgment cannot be

defeated by relying upon conclusory allegations.” Ahern v.

Shinseki, 629 F.3d 49, 54 (1st Cir. 2010). But Conboy offers

more than just the conclusion that Organic Labs retained Results

Capital; he also describes the surrounding facts in some detail. 

As discussed in Part II.A, supra, Conboy attests that, after

learning that Keen wanted to sell his company, Conboy introduced

Keen to Webb, and recommended that Keen retain Webb’s firm,

Results Capital, for that purpose. Conboy says that he and Webb

then undertook “efforts to find investors” toward that end,

It could be argued that Conboy’s affidavit fails to show 12

the basis of his personal knowledge that Organic Labs “retained”

Results Capital, see Fed. R. Evid. 602, and that his statement to

that effect is therefore inadmissible on summary judgment, see

Fed. R. Civ. P. 56(c)(4). But the closest Organic Labs comes to

making this argument is a footnote in its summary judgment

memorandum pointing out that Conboy “was not employed in any

capacity by Results Capital” and calling his statement

“unsupported.” That is insufficient. See Perez, 247 F.3d at

314. It is also worth noting that Williams--who was employed by

Organic Labs--says in his affidavit that Organic Labs “allowed,

encouraged, and permitted . . . Webb and Conboy to act on [its]

behalf.” See note 4, supra. 

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eventually leading to Pure Barnyard. Conboy also recalls that

both Keen and another Organic Labs employee, Williams, joined

Webb and Conboy in calling Packard to propose the sale of Pure

Barnyard to Organic Holdings. Finally, Conboy says that the deal

was halted at Keen’s request.

Thus, Conboy’s account--though disputed not only by Keen but

by Webb, who insists that Results Capital was working strictly on

its own behalf --has “substance in the sense that it limns 13

differing versions of the truth which a factfinder must resolve,”

making summary judgment inappropriate. Nat’l Amusements, Inc. v.

Town of Dedham, 43 F.3d 731, 735 (1st Cir. 1995) (quotation marks

and ellipse omitted). Indeed, his account bears little

resemblance to the kinds of “conclusory” statements which the

court of appeals typically deems ineffectual on summary judgment. 

See, e.g., Rios-Jimenez v. Principi, 520 F.3d 31, 42 n.7 (1st

Cir. 2008) (finding witness’s statements that plaintiff was

“qualified” to perform her job, “without any explanation or

Organic Labs argues that Webb’s account “is inherently 13

reliable because it is akin to a statement against interest,”

since Webb’s firm, Results Capital, would be solely liable for

his alleged misrepresentation if he had not been acting on

Organic Labs’ behalf. While this argument may ultimately have

some merit, “credibility determinations are for the factfinder at

trial, not for the court at summary judgment.” Simas v. First

Citizens’ Fed. Credit Union, 170 F.3d 37, 49 (1st Cir. 1999). 

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reference to evidence,” insufficient to avoid summary judgment on

that issue); Sanchez v. Triple S Mgmt. Corp., 492 F.3d 1, 11 n.11

(1st Cir. 2007) (finding witnesses’ statements that defendants

acted “in furtherance of a scheme” insufficient to avoid summary

judgment on that issue, given a “complete lack of specificity”).

Conboy’s testimony that Organic Labs “retained” Webb, then,

suffices to create a triable issue of fact as to whether the

company authorized him to act on its behalf so as to make him its

agent. In light of this ruling--together with the evidence that

it was Webb, either alone or in addition to Conboy, who made the

allegedly fraudulent representations--the court need not address

the thrust of Organic Labs’ agency argument, which is that there

is no evidence that Conboy was acting as its agent. The court

also need not address Pure Barnyard’s principal responses, which

are that proof of the alleged agency relationship is inessential

in light of Keen’s own statements to Packard about the Cargill

material, and that, even if Webb and Conboy lacked actual

authority, they acted with apparent authority. If necessary,

those arguments can be addressed in connection with trial in this

matter, where the court will sit as the finder of fact.

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B. Reliance

Organic Labs also argues that, even if Webb or Conboy were

acting as its agents when they allegedly told Packard that it had

a contract with Cargill for 60,000 tons of the feather meal, Pure

Barnyard still cannot recover on any of its claims because the

alleged misrepresentation was “corrected” before Pure Barnyard

acted in reliance on it. As Organic Labs points out, Pure

Barnyard can recover under its fraudulent or negligent

misrepresentation theories only for “‘pecuniary loss caused to

[it] by [its] justifiable reliance upon the misrepresentation.’” 

Gray v. First NH Banks, 138 N.H. 279, 283 (1994) (quoting

Restatement (Second) of Torts § 525 (1976)).14

Organic Labs argues that the same limitation applies to 14

Pure Barnyard’s Consumer Protection Act claim, relying on the

statutory language that “[a]ny person injured by another’s use of

any method, act or practice declared unlawful under this chapter

may bring an action.” N.H. Rev. Stat. Ann. § 358-A:10, I. This

provision goes on to state, however, that “recovery shall be in

the amount of actual damages or $1,000, whichever is greater,”

id., and the New Hampshire Supreme Court has ruled that this

section “does not require a showing of actual damages for a

claimant to be awarded the statutory minimum and attorney’s fees”

(which the statute also authorizes). Becksted v. Nadeau, 155

N.H. 615, 620 (2007). On this basis, in fact, the court in

Becksted reversed a directed verdict against the plaintiffs on

their § 358-A claim, which the Superior Court had entered because

“they didn’t lose anything as a result of the deceptive acts they

claimed.” Id. at 620-21. Nevertheless, this court will assume

for purposes of the summary judgment motion that Pure Barnyard

cannot prevail on its § 358-A claim without proving that the

alleged misrepresentation caused injury to it.

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Organic Labs argues that, because Packard knew that Cargill

had not in fact agreed to provide Organic Labs with 60,000 tons

of the feather meal before he signed the asset purchase agreement

on behalf of Pure Barnyard, he could not have done so in reliance

on the alleged misrepresentation. That is correct. But Packard

says that he also caused Pure Barnyard to take other acts in

reliance on the alleged misrepresentation, i.e., entering

agreements to supply its customers with (and buying packaging

for) the feather meal product, rather than Pure Barnyard’s own

product line. As discussed in Part II.A, supra, there are a

number of factual disputes going to whether those acts occurred

before Packard learned the truth about Cargill’s feather meal.

First, there is conflicting evidence as to when the alleged

misrepresentation was made: Packard says it was July 2008,

Conboy says it was “July/August 2008,” a contemporaneous email

from Packard suggests that it was August 25, 2008, and Webb says

(without admitting or denying that he made the misrepresentation)

that it was September 11, 2008. Second, there is conflicting

evidence as to when Packard first learned the alleged

misrepresentation was false: emails suggest that it was either

September 18, 2008, or October 1, 2008. Third, there is

conflicting evidence as to when (and perhaps even whether) Pure

Barnyard agreed to supply the feather meal product to its

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customers and ordered the bags for it: Packard maintains that it

was before he learned the truth, but contemporaneous emails

suggest it was not until later (if at all), see note 7, supra.

Resolving all--or even some--of these disputes in Pure

Barnyard’s favor, a rational factfinder could conclude that Pure

Barnyard acted in reliance on the alleged misrepresentation

before learning that it was false. So Organic Labs is not

entitled to summary judgment on the ground that Pure Barnyard

cannot prove detrimental reliance.

At oral argument, Organic Labs maintained that, even if Pure

Barnyard did act in reliance on the alleged misrepresentation

before it was corrected--by committing to sell the feather meal

product, instead of Pure Barnyard’s existing products, to its

customers, and the like--that reliance was not justifiable in

light of the fact that the asset purchase agreement between Pure

Barnyard and Organic Holdings was not yet in place. Out of

fairness, this court does not ordinarily consider points

mentioned for the first time at oral argument. See, e.g., Doe v.

Friendfinder Network, Inc., 540 F. Supp. 2d 288, 304 n.19 (D.N.H.

2008). The court sees no reason for an exception here simply

because, just before oral argument, Organic Labs received a

transcript of the September 11, 2008 conference call between Webb

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and Conboy, on one hand, and Packard and the other Pure Barnyard

board members, on the other.

First, counsel for Organic Labs candidly acknowledged that,

while they had only recently received a transcript of the call,

they had been in possession of a tape recording of it for at

least a year. This is not a case, then, where the non-moving

party failed to turn over discoverable evidence in time for the

moving party to incorporate it into its summary judgment

presentation. Second, Organic Labs could have made its new

justifiable reliance argument without the transcript: while

Packard did state during the call that Pure Barnyard had yet to

commit itself to the merger at that point, the other evidence of

record is largely to the same effect. See notes 8-9, supra. 

Indeed, Organic Labs argued exactly that point in its reply

memorandum (which was filed before it had the transcript)--albeit

in support of its argument that Pure Barnyard could not have

acted in reliance on the alleged misrepresentation when it

committed to the merger, rather than its new argument that

nothing Pure Barnyard did in reliance on the alleged

misrepresentation before it committed to the merger could have

been justifiable. This new argument, then, will have to await

consideration at trial.

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IV. Conclusion

For the foregoing reasons, Organic Labs’ motion for summary

judgment is DENIED except as to count 1, as to which it is 15

GRANTED by assent; Organic Labs’ motion to strike is DENIED as 16

moot; and Organic Labs’ motion to strike the surreply is DENIED. 17

SO ORDERED.

____________________________

Joseph N. Laplante

United States District Judge

Dated: March 7, 2011

cc: Mark F. Weaver, Esq.

William S. Gannon, Esq.

Robert H. Miller, Esq.

Christopher Cole, Esq.

Courtney H.G. Herz, Esq.

Results Capital Group, Inc.

document no. 15 65.

document no. 16 77.

document no. 17 86.

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