United States Court of Appeals 

For the First Circuit 

No. 15-1954 

CNE DIRECT, INC., 

Plaintiff, Appellant, 

v. 

BLACKBERRY CORPORATION, f/k/a RESEARCH IN MOTION CORPORATION, 

Defendant, Appellee, 

ASSET RECOVERY ASSOCIATES WORLDWIDE, LTD. 

Defendant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. F. Dennis Saylor, IV, U.S. District Judge] 

Before 

Thompson and Kayatta, Circuit Judges, 

and Mastroianni,* District Judge. 

Jack Irving Siegal, with whom William C. Nystrom, Dana A. 

Zakarian, and Nystrom Beckman & Paris LLP, were on brief, for 

appellant. 

Sanford F. Remz, with whom Noemi A. Kawamoto, Donald K. Stern, 

and Yurko, Salvesen & Remz P.C., were on brief, for appellee. 

 * Of the District of Massachusetts, sitting by designation. 
May 2, 2016 
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KAYATTA, Circuit Judge. CNE Direct, Inc. ("CNE") is a 

Massachusetts corporation in the business of buying and reselling 

bulk technological components. In November 2013, CNE reached an 

agreement with Asset Recovery Associates Worldwide, Ltd. ("Asset") 

to purchase phone parts manufactured by BlackBerry Corporation 

("BlackBerry"). Asset thereafter failed to make the parts 

available at the agreed-upon price, causing CNE to suffer a 

substantial loss in connection with its own commitment to resell 

the parts to other parties. In addition to suing Asset, CNE seeks 

to hold BlackBerry itself liable, contending that Asset was acting 

as BlackBerry's actual or apparent agent in the November 2013 

transaction. After each party marshalled its best evidence 

following full discovery, and after entering default judgment 

against the now-defunct Asset, the district court entered summary 

judgment in favor of BlackBerry. CNE Direct, Inc. v. BlackBerry 

Corp., No. 14-cv-10149-FDS, 2015 WL 4750847, at *6, *11 (D. Mass. 

Aug. 10, 2015). After considering CNE's appeal, we affirm. 

I. Background

As this is an appeal from a grant of summary judgment, 

we recite the facts in the light most favorable to CNE, the nonmovant, and draw all reasonable inferences in its favor. See 

Martinez v. Petrenko, 792 F.3d 173, 175 (1st Cir. 2015). 

On October 25, 2013, Asset received an email from 

BlackBerry stating that it was "looking to move" excess memory 
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parts and listing its excess units. Asset forwarded the email to 

CNE. CNE thereafter entered into discussions with Asset on the 

terms pursuant to which Asset would supply the BlackBerry parts to 

CNE. According to CNE, CNE and Asset eventually reached agreement 

on the terms of a sale. CNE then sent Asset a purchase order to 

confirm the agreed-upon deal. The purchase order identified Asset 

as the "supplier" of the parts and stated the agreed-upon price. 

Asset then backtracked, first demanding a price increase of 

approximately 2%, then an increase of approximately 28%. CNE 

claims that Asset's back-tracking was an orchestrated attempt by 

BlackBerry to take advantage of CNE's "position of weakness." CNE 

complained to Asset, and also sought intercession by BlackBerry, 

which declined. 

As we will discuss, there was nothing about the foregoing 

transaction and dealings in October and November 2013 that would 

support an argument that Asset acted as an actual or apparent agent 

of BlackBerry. As CNE points out, though, it had prior dealings 

with Asset for the purchase and sale of BlackBerry parts. Those 

prior dealings, CNE argues, provide a course of conduct, or at 

least context, sufficient to cast the aborted November 2013 

transaction in a different light. So we turn to consider those 

prior dealings. 

In May 2011, Christopher Tejeda, then a trader at CNE, 

first called BlackBerry to inquire about purchasing excess 
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inventory. He reached Chris Efstathiou, the individual 

responsible for managing BlackBerry's excess inventory. During 

their initial phone conversation, Efstathiou told Tejeda that if 

he wanted to purchase BlackBerry's excess inventory, he should 

speak to Stephen Miele, the individual in control of Asset. At 

the time, Asset was one of many third-party resellers to which 

BlackBerry sold its excess inventory. CNE suspected this was the 

case by October 2012 and knew it to be true by October 2013, 

notwithstanding Miele's best efforts to hold himself out as the 

"exclusive" source of BlackBerry parts or as BlackBerry's "agent" 

and BlackBerry's apparent lack of interest in helping to connect 

CNE with a different inventory reseller. 

CNE thereafter dealt with Miele. An initial phone call 

between Tejeda and Miele in May 2011 led to additional 

conversations regarding the available BlackBerry parts and 

negotiations over CNE's bid for the parts. Once CNE and Asset 

reached an agreement, CNE prepared a "purchase order" to confirm 

the purchase price, listing a company affiliated with Asset as the 

supplier. When Asset passed this documentation along to 

BlackBerry, BlackBerry objected and asked that it instead be listed 

as the supplier. CNE changed the purchase order form to 

accommodate this request, received an invoice from BlackBerry in 

return, and wired the funds directly to BlackBerry. BlackBerry, 

in turn, paid Asset a five percent commission on the sale. 
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The next relevant transaction, in August 2011, followed 

a slightly different course. Viewing the record most favorably to 

CNE, it appears that BlackBerry first passed along a list of its 

on-hand excess inventory to Asset. Asset disseminated the lists 

to its customers, including CNE, seeking per-unit bids. Asset 

then collated the bids it received and shared the amounts of bids 

and identities of the bidders with BlackBerry, profiting by 

reserving for itself a markup on the products that varied between 

approximately 10% and 50% of the bid.1 No written agreement 

governed the terms of Asset's relationship with BlackBerry, though 

the parties operated under an understanding that BlackBerry 

retained the right to refuse to sell to Asset based on the amount 

it was willing to pay for the parts or the identity of the intended 

downstream purchaser.2 

Once CNE placed its bid with Asset and BlackBerry had 

informed Asset that the bid was acceptable, CNE confirmed the 

transaction by issuing to Asset a purchase order memorializing the 

agreed-upon price. Asset then remitted a "pro forma" invoice to 

confirm the exact quantity of goods that would be sold. As with 

the original transaction, CNE's purchase order identified 

BlackBerry as the supplier. Unlike the first transaction, CNE did 

 1 CNE knew that this was how Asset profited.

2 For obvious reasons, BlackBerry preferred to avoid selling 

excess parts to its competitors. 
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not pay BlackBerry but instead wired funds to Asset or its 

affiliates. 

Between August 2011 and August 2012, the parties 

conducted seven transactions for BlackBerry parts that followed 

this pattern and amounted to approximately $836,000. At no point 

in the parties' dealings did Asset take physical possession of the 

goods. Rather, CNE retrieved the parts at BlackBerry's warehouse. 

Over time, CNE grew frustrated with Miele's conduct. On 

August 30, 2012, CNE emailed BlackBerry and expressed frustration 

with Miele. On October 23, 2012, CNE emailed BlackBerry to 

complain about Miele's lack of professionalism. CNE at that point 

had determined that Miele was untrustworthy and had lied to CNE 

repeatedly. BlackBerry's response, from a new manager who had 

taken over BlackBerry's dealings with Asset, characterized CNE's 

acquisition of the parts as involving two transactions, one between 

BlackBerry and Asset, and a second between Asset and CNE. 

Consistent with this characterization, the emailed response 

concluded as follows: 

As for professional business standards, the 

purchase of the LCD's was between you and 

Stephen and that is the forum that should be 

maintained is it not? Sorry, but I don't wish 

to get in the middle between yourself and 

Stephen as relationships are important to 

myself and RIM as a whole. I suggest you need 

to deal on this with Stephen. I am not sure 

how else I can help you in this situation. 
- 8 - 

When CNE thereafter emailed BlackBerry to try to address Miele's 

dealings with CNE, BlackBerry called and turned down CNE flatly, 

telling CNE that it "ha[d] to discuss it with Mr. Miele." 

After this conversation, CNE and Asset entered into one 

additional transaction in 2012. Then, in August 2013, Miele told 

CNE to change the supplier listed on future purchase orders to 

Asset, rather than BlackBerry. CNE did so, and entered into at 

least six additional transactions totaling approximately $730,000 

following this new practice prior to the aborted November 2013 

transaction. During this time, BlackBerry and Asset appear to 

have had no further communication, save, perhaps, brief exchanges 

relating to the logistics of picking up inventory at BlackBerry's 

warehouse. Asset occasionally interfaced with BlackBerry to 

facilitate pickup on CNE's behalf. In one October 2013 email sent 

by Catherine Miele--Stephen Miele's wife and apparently an Asset 

employee--to BlackBerry, she explained that "[Asset] ordered the 

parts . . . . I sold the parts to CN Direct [sic] and they are 

sending their trucker to pick up the parts." 

II. Analysis 

We review a district court's grant of summary judgment 

de novo. Martinez, 792 F.3d at 179. The moving party is entitled 

to summary judgment if it "shows that there is no genuine dispute 

as to any material fact and [it] is entitled to judgment as a 

matter of law." Fed. R. Civ. P. 56(a). 
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The parties agree that Massachusetts law governs. 

"[T]he question of agency," the Massachusetts Supreme Judicial 

Court has held, "is usually an issue for the fact finder," but 

summary judgment can be appropriate if the party asserting the 

existence of an agency relationship "fail[s] to advance specific 

facts sufficient to establish the existence of a genuine issue of 

material fact as to [the putative agent's] actual or apparent 

authority to act on behalf of [the principal]." Theos & Sons, 

Inc. v. Mack Trucks, Inc., 729 N.E.2d 1113, 1119 (Mass. 2000). 

Massachusetts follows the Second Restatement view of 

principal-agent relationships, "the essential ingredients" of 

which are: 

1) the agent's power to alter the legal 

relationships between the principal and third 

parties; 2) a fiduciary relationship toward 

the principal regarding matters within the 

scope of the agency; and 3) the principal's 

right to control the agent's conduct in 

matters within the scope of the agency. 

Sorenson v. H & R Block, Inc., 107 F. App'x 227, 231 (1st Cir. 

2004) (unpublished) (citing, inter alia, Restatement (Second) of 

Agency §§ 12–14 (1958)). According to Massachusetts courts, 

particularly salient among these criteria is the principal's right 

to control. See Spencer v. Doyle, 733 N.E.2d 1082, 1086 (Mass. 

App. Ct. 2000) (an "essential characteristic of agency is the right 
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of the principal to control what the agent shall or shall not do 

before the agent acts" (internal quotation omitted)).3 

CNE argues that, as an agent, Asset was cloaked with 

both actual and apparent authority to bind BlackBerry, its 

principal, in contract. We address each argument in turn. 

A. Actual Authority 

Actual authority is a product of "mutual consent, 

express or implied, that the agent is to act on behalf and for the 

benefit of the principal, and subject to the principal's control." 

Theos & Sons, 729 N.E.2d at 1119. CNE points to no evidence of 

any express consent manifested by both Asset and BlackBerry. 

Rather, it argues that there was an implied agreement pursuant to 

which BlackBerry authorized Asset to act on behalf of BlackBerry 

in agreeing to sell parts to CNE. See id. at 1120 n.13 ("Implied 

authority is actual authority that evolves by implication from the 

conduct of the parties." (citing T. D. Downing Co. v. Shawmut 

Corp., 139 N.E. 525, 526 (Mass. 1923))). 

In support of this argument, CNE points only to 

representations by Miele that he had secured an agreement with 

BlackBerry that Asset would find buyers and that BlackBerry would 

 3 Under Massachusetts law, "the principal need not in fact 

exercise that control" over an agent. DiMaria v. Concorde Entm't, 

Inc., No. 12-cv-11139-FDS, 2014 WL 991567, at *4 (D. Mass. Mar. 

12, 2014). Rather, "the crucial inquiry is whether [it] has a 

right to control." Id. 
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simply pay Asset a 5% finder's fee. After June 2011, however, 

there is zero evidence that BlackBerry ever entered into such an 

agreement, impliedly or otherwise. To the contrary, the 

transaction at issue in November 2013 (and at all points other 

than in June of 2011) involved no finder's fee, leaving Asset with 

the upside or downside of any spread between what it agreed to pay 

BlackBerry and what CNE agreed to pay it. In this respect, the 

fact that Miele unsuccessfully sought to proceed on a fixed 

commission basis rebuts rather than supports any claim that there 

was an implied agreement that Asset act as BlackBerry's agent. 

See T. D. Downing Co., 139 N.E. at 526 (declining to find an 

implied principal-agent relationship when "[t]he risks of . . . the 

contracts between the two were wholly with the [putative agent] to 

whom alone the profits would accrue"). 

CNE further argues that BlackBerry's control over Asset 

was such that Asset acted as a "mere conduit for the passing of 

prices [and] terms between Blackberry and CNE." BlackBerry's 

"control" over Asset's operations extended to, at most, the ability 

to decline to sell Asset its excess inventory if the price Asset 

named was not high enough or if Asset stated that it planned to 

resell the parts to one of BlackBerry's competitors or to a 

customer in a foreign country controlled by a loathsome regime. 

These basic commercial ground rules, "merely reflective of the 

ordinary desire of manufacturers to set sufficient minimum 
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performance and quality standards to protect the good name of their 

trademark," simply do not approach the "kind of close control" a 

principal would be expected to assert over an agent's operations. 

Theos & Sons, 729 N.E.2d at 1120; see also Brown-Forman Corp. v. 

Alcoholic Beverages Control Comm'n, 841 N.E.2d 1263, 1269–71 

(Mass. App. Ct. 2006) (finding that an alcohol distributor was not 

the agent of a wholesaler even though the wholesaler had veto power 

over the distributor's marketing plan and pricing structures). 

B. Apparent Authority 

We turn, therefore, to CNE's primary argument: That 

Asset acted with apparent authority on behalf of BlackBerry. 

Unlike actual authority, apparent authority need not find its 

provenance in an agreement between the agent and the principal. 

Rather, apparent authority arises when the principal, here 

BlackBerry, says or does something that, "reasonably interpreted, 

causes the third person to believe that the principal consents to 

have the act done on his behalf by the person purporting to act 

for him." Theos & Sons, 729 N.E.2d at 1120 (quoting Restatement 

(Second) of Agency § 27). 

CNE correctly notes that the parties' prior "course of 

dealing" is relevant to ascertaining the existence of apparent 

authority. Binkley Co. v. E. Tank, Inc., 831 F.2d 333, 337 (1st 

Cir. 1987); see generally Mass. Gen. Laws ch. 106, § 1-303(b) ("A 

'course of dealing' is a sequence of conduct concerning previous 
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transactions between the parties to a particular transaction that 

is fairly to be regarded as establishing a common basis of 

understanding for interpreting the parties' expressions and other 

conduct."). Pointing to the parties' prior transactions here, CNE 

fairly argues that a factfinder could reasonably conclude that, 

given the origin of the transactions in 2011, and given 

BlackBerry's request that the purchase orders list BlackBerry as 

the supplier, CNE could have reasonably formed a belief that 

BlackBerry was its counterparty, with Asset acting only as 

BlackBerry's selling agent. 

The problem for CNE, though, is that the subsequent 

emails and phone conversation in October 2012 constituted an 

obvious and express clarification that should have disabused CNE 

of relying on any such view of the respective relationships. Cf. 

Hudson v. Mass. Prop. Ins. Underwriting Ass'n, 436 N.E.2d 155, 159 

(Mass. 1982) (apparent authority conferred by "conduct by the 

principal [that] causes a third person reasonably to believe that 

a particular person has . . . [such] authority" (citation 

omitted)); see generally Restatement (Second) of Agency, § 8 cmt. c 

("Apparent authority exists only to the extent that it is 

reasonable for the third person . . . to believe that the agent is 

authorized."). In light of the October 2012 communications, the 

reasonableness of any belief that BlackBerry held out Asset as its 

agent would have been tenuous at best. See, e.g., Moreau v. James 
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River-Otis, Inc., 767 F.2d 6, 10 (1st Cir. 1985) (applying Second 

Restatement view, inference of apparent authority unreasonable 

where only manifestation by international union that it could be 

bound by its local representatives was its signature on a master 

collective bargaining agreement); Theos & Sons, 729 N.E.2d at 1121–

22 (inference of apparent authority unreasonable where third party 

relied on presence of would-be principal's logo and name displayed 

on putative agent's invoices and in its place of business, in 

addition to statements by made by putative agent). Our dissenting 

colleague nevertheless posits that perhaps CNE interpreted 

BlackBerry's October 2012 you-deal-with-Asset directives as simply 

indicating that BlackBerry, as supplier, had in-house and outside 

agents, and CNE need deal with the latter. While we find it 

difficult to read the communications in context in this manner, 

the simpler point is that CNE thereafter changed the order forms 

to list Asset as its supplier. There is simply no reasonable basis 

to claim that CNE thereafter viewed BlackBerry as its supplier.4 

CNE, lastly, points out that Asset never took physical 

possession of the goods in question and was a "one-man operation" 

run from Miele's offices, lacking warehouses of its own. It was 

 4 We need not weigh conflicting evidence on an ambiguous 

record to reach this conclusion. Rather, we are simply recognizing 

that, whatever ambiguity may have existed prior to 2013, the logic 

of chronology and subsequent events rendered any earlier ambiguity 

irrelevant to ascertaining the identity of CNE's putative 

counterparty in that aborted 2013 deal. 
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clear to CNE, nevertheless, that in reselling BlackBerry's excess 

inventory, Miele "act[ed] in his own name and receive[d] the title 

to the property which he thereafter [was] to transfer." 

Restatement (Second) of Agency § 14K cmt. a. Nor is there any 

reason why title to the inventory could not pass from BlackBerry 

to Asset, and then from Asset to CNE, while the inventory remained 

at BlackBerry’s warehouses. See Circuit City Stores, Inc. v. 

Comm’r of Revenue, 790 N.E.2d 636, 641 (Mass. 2003) (title to goods 

may pass even though goods remain in physical possession of 

vendor). The fact that Miele did not take on the risk of damage 

or loss under U.C.C. § 2-509 sheds no relevant light in this 

context on the question of agency. In short, nothing about the 

size or manner of his operation belied the fact that BlackBerry 

did not hold him out as its agent in negotiating the aborted deal. 

These findings have particular force given that CNE is 

a commercially sophisticated "third party of reasonable prudence 

in the [same] business" as Asset. Binkley, 831 F.2d at 337. This 

is not to say that CNE must have assumed Asset's relationship with 

BlackBerry to parallel CNE's with its customers. Rather, it is to 

point out that sophisticated commercial parties operate in a world 

in which the terms of commercial forms exchanged with one another 

are customarily controlling. See U.C.C. § 2-207(2). The 

controlling forms here made clear that CNE and Asset shared a 

nearly identical business model: buy products in bulk from 
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manufacturers and re-sell them to other customers in other markets 

"downstream." Just as CNE, not Asset, supplied CNE's customers; 

Asset, not BlackBerry, supplied CNE. 

III. Conclusion

The arrangement between these sophisticated parties 

during the relevant time period was that CNE dealt only with Asset, 

that CNE listed Asset and not BlackBerry as the supplier, and that 

CNE paid only Asset, all in accord with BlackBerry's express 

rejection of CNE's request that it exercise some control over 

Asset. On such a record, no fact finder could rationally conclude 

that BlackBerry gave CNE reason to think that Asset was acting as 

BlackBerry's agent in negotiating the price of the aborted November 

2013 deal. The district court's ruling is affirmed. 

-Dissenting Opinion Follows- 
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THOMPSON, Circuit Judge, dissenting in part. While I 

agree with the majority's conclusion on the actual authority 

question, I dissent from its holding as to apparent authority. 

On our de novo review of a summary judgment motion, the 

court is to view the record in the light most favorable to the 

non-moving party, in this case CNE, and draw all inferences in its 

favor. Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 

(1st Cir. 1994). In other words, "at the summary judgment stage 

the judge's function is not himself to weigh the evidence and 

determine the truth of the matter." Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 249 (1986). But this is exactly what the 

majority has done. The majority opinion has laid out the facts 

that, on one hand, would establish apparent authority, and those 

that, on the other, would suggest there was none. The majority 

has then concluded that the second set of facts outweighs the 

first, and that CNE could not have believed Asset Recovery was 

BlackBerry's agent. But I think a reasonable jury could come out 

the other way, and summary judgment is therefore not proper here. 

An agency relationship exists by way of apparent 

authority where the putative principal's conduct led a "third party 

of reasonable prudence in the business to rely on the agent's 

authority." Binkley Co. v. E. Tank, Inc., 831 F.2d 333, 337 (1st 

Cir. 1987); see also Theos & Sons, Inc. v. Mack Trucks, Inc., 729 

N.E.2d 1113, 1121–22 (Mass. 2000). Viewing the record before us, 
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I think a jury could conclude that CNE believed, based on a 

reasonable interpretation of BlackBerry's conduct, that Asset 

Recovery was BlackBerry's agent. 

The record shows that CNE originally reached out to 

BlackBerry in order to buy its bulk technological parts, and that 

it was BlackBerry that referred CNE to Asset Recovery. During 

CNE's first transaction for the purchase of the parts, CNE's 

purchase order listed a company affiliated with Asset Recovery as 

the supplier, but BlackBerry explicitly directed CNE to change its 

purchase order to list BlackBerry as the supplier. CNE also wired 

payment for the parts directly to BlackBerry, and then picked up 

the parts directly from a BlackBerry warehouse. After this first 

payment, CNE began to make payments to Asset Recovery, but for at 

least seven subsequent transactions it remained the practice that 

BlackBerry was listed as the supplier on the purchase orders, and 

that CNE always picked up the products from BlackBerry. 

Up until this point, it appears the majority and I are 

in agreement that it would be fair to argue that a factfinder could 

find that CNE reasonably believed, based on this course of dealing, 

that Asset Recovery was BlackBerry's agent. According to the 

majority, however, the conversations between CNE and BlackBerry in 

October 2012 change everything. 

The October 2012 communications to which the majority 

refers consist of an email and subsequent phone call, in which 
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BlackBerry refused CNE's request that it get involved in CNE and 

Asset Recovery's souring relationship. Specifically, in late 

August 2012, CNE wrote to BlackBerry to complain that it could not 

"do business through this channel anymore" -- the "channel" being 

Stephen Miele of Asset Recovery. As disagreements between CNE and 

Asset Recovery continued, CNE wrote to BlackBerry again in October 

2012, and in response, a BlackBerry representative told CNE: 

"Sorry, but I don't wish to get in the middle between yourself and 

Stephen as relationships are important to myself and RIM as a 

whole. I suggest you need to deal on this with Stephen. I am not 

sure how else I can help you in this situation . . . ." The 

BlackBerry representative then reiterated in a subsequent phone 

call that BlackBerry would not get involved.

It is the majority's position that these communications 

made it irrefutably clear that Asset Recovery was not BlackBerry's 

agent, and that no jury could conclude otherwise. I beg to differ. 

At the summary judgment stage, we are to view the facts in the 

light most favorable to CNE, and draw all inferences in its favor. 

It is certainly true that one way to interpret those emails would 

be to conclude that BlackBerry refused to get embroiled in the 

spat between CNE and Asset Recovery because Asset Recovery was an 

independent actor and not BlackBerry's agent. It would be equally 

reasonable, however, to conclude that BlackBerry refused to get 

involved simply because it did not want to undermine the decisions 
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that one of its agents had made in handling customer business that 

fell within the scope of that agent's authority. Both 

interpretations are plausible. 

The majority may be right that the first of these 

interpretations is more convincing, and that it was made more 

convincing when a year later, in August 2013, Stephen Miele 

directed CNE to change the purchase orders once again, this time 

to list Asset Recovery as the supplier. But when there is this 

kind of toss-up at the summary judgment stage as to how the 

evidence should be weighed, or which interpretation of the evidence 

is more plausible, the question must go to a jury. In this case, 

the question of whether the later October 2012 communications 

disabused CNE of any notion that Asset Recovery was BlackBerry's 

agent is a question that requires such weighing and interpreting 

of evidence. To decide it ourselves would be to engage in an 

exercise that we are not permitted at the summary judgment phase, 

and would preclude CNE from exercising its constitutional right to 

a trial by jury. 

Finally, I briefly address the majority's point that CNE 

is a "commercially sophisticated" party whose business model 

(i.e., buying and reselling bulk parts) was nearly identical to 

that of Asset Recovery. The majority seems to suggest that because 

CNE conducted its own business autonomously, and not on behalf of 

any principal, CNE should have known that Asset Recovery was also 
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an independent actor and not an agent of BlackBerry. I am not 

certain I agree. Why could it not be the case that one company 

conducted its business independently and another conducted the 

same business as an agent of a principal? Regardless, to the 

extent that it is relevant that CNE and Asset Recovery were engaged 

in the same business, this is, again, something for the jury to 

weigh, along with the rest of the evidence, in determining whether 

it was reasonable for CNE to believe that Asset Recovery was 

BlackBerry's agent. 

For these reasons, I respectfully dissent from the 

majority's holding as to the question of apparent authority.