Guidance Endodontics, LLC v. Dentsply International, Inc. (708 F. Supp. 2d 1209, 2010)

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on Plaintiff Guidance Endodontics, LLC and Counterclaim Defendant Charles J. Goodis’ Motion for Summary Judgment and Supporting Memorandum, filed July 31, 2009 (Doc. 226). The Court held a hearing on September 1, 2009. The primary issues are whether the Court will grant Plaintiff/Counterdefendant Guidance Endodontics, LLC’s and Counterdefendant Charles Goodis’ motion for summary judgment as to Defendants Dentsply International, Inc. and Tulsa Dental Products, LLC’s counterclaims of: (i) breach of the Manufacturing and Supply Agreement; (ii) breach of implied covenant of good faith and fair dealing; (iii) false advertising in violation of § 43 of the Lanham Act; (iv) trademark infringement in violation of 15 U.S.C. § 1114; (v) common-law unfair competition; (vi) violation of the New Mexico Unfair Practices Act (“New Mexico UPA”); (vii) unlawful misappropriation of the Defendants’ trade values; (viii) fraudulent inducement; (ix) punitive damages; (x) declaratory judgment; and (xi) rescission and/or partial rescission. The Court grants in part and denies in part the motion. The Court will rule as follows: (i) grants the motion as to Count I for breach of contract insofar as it alleges breach of Section 4.7 of the Supply Agreement and otherwise denies as to Count I; (ii) grants the motion as to Count II for breach of the implied covenant of good faith and fair dealing; (iii) grants the motion as to the first four alleged instances of false advertising, but denies the motion as to the fifth and sixth instance of false advertising alleged in Count III; (iv) denies the motion as to the trademark infringement alleged in Count V; (v) denies the motion as to Count VI — common-law unfair competition — with respect to the Defendants’ false-advertising and trademark-infringement grounds, but grants the motion as to the Defendants’ trademark-dilution ground for unfair competition; (vi) grants the motion as to the Defendants’ New Mexico UPA claim because the Defendants lack standing to bring such claim; (vii) denies the motion as to the Defendants’ claim of unlawful misappropriation in Count VIII; (viii) grants the motion as to the Defendants’ Count X fraudulent-inducement claims based on the conduct alleged in paragraphs 18-20 of the Counterclaims, but denies the motion as to the conduct alleged in paragraphs 20a-20c; (ix) grants the motion insofar as it seeks a declaration that the Defendants have no obligation to supply obturators, but denies the motion insofar as it seeks a declaration that the Defendants have no obligations at all under the Supply Agreement; and (x) grants the motion as to the Defendants’ request for partial rescission, but denies the motion as to the Defendants’ request for rescission.

FACTUAL BACKGROUND

For the purpose of this motion, the facts are largely undisputed. See Dents-ply/TDP’s Response to G/G’s Motion for Summary Judgment and Supporting Memorandum at 2, filed August 17, 2009 (Doc. 251)(“Response”); Plaintiff Guidance Endodontics, LLC and Counterclaim Defendant Charles J. Goodis’ Reply Brief in Support of Motion for Summary Judgment at 1-2, filed August 31, 2009 (Doc. 282)(“Reply”). This case concerns a suit that Guidance, a small endodontic-equipment company, has brought against the Defendants, who are both Guidance’s rivals and its suppliers. More background on the lawsuit generally is set forth in the Court’s earlier opinion. See Guidance Endodontics, LLC v. Dentsply Intern., Inc., 633 F.Supp.2d 1257, 1260-65 (D.N.M.2008)(Browning, J.).

The Defendants are manufacturers and suppliers of a variety of dental/endodontic products that compete with Guidance’s products, including endodontic obturators, files, and ovens. See Verified Complaint and Demand for Jury Trial ¶ 32, at 7, filed November 21, 2008 (Doc. 1) (“Complaint”). Dentsply holds itself out as “the world’s largest designer, developer, manufacturer and marketer of a broad range of products for the dental market,” and has over $2.3 billion in sales annually. Complaint ¶¶ 30, 34, at 7. The Defendants have a large share of the United States’ NiTi rotary file and obturator markets, and Guidance is aware of this fact. See Affidavit of James G. Mosch ¶¶ 1-4, at 1-2, filed August 17, 2009 (Doc. 251-16)(“Mosch Aff.”); Complaint ¶ 34, at 7.

1. The Obturator Market.

An obturator is a device used to fill the root canal with gutta percha after the canal has been drilled, cleaned, and shaped. See Declaration of Charles J. Goodis in Support of His and Plaintiffs Motion for Summary Judgment ¶ 5, at 2, filed July 31, 2009 (executed July 31, 2009)(Doc. 227) (“Goodis Dec”). Only endodontists and dentists use obturators. See id. There are two categories of obturators: (i) ones that are to be used “cold” and (ii) ones that must be heated — in an endodontic oven — before use in the patient’s mouth. See id. Guidance uses the trademark “OneFill” in connection with its obturators, as Section 4.7 of its Supply Agreement with the Defendants permits it to do. See Declaration of Kyle C. Bisceglie in Support of Plaintiffs and Counterclaim Defendant’s Motion for Summary Judgment ¶ 7, at 2 & Exhibit 5, filed July 31, 2009 (executed July 29, 2009)(Doc. 228)(“Biseeglie Dec.”). Guidance’s OneFill obturators are ones that must be heated before use. See Goodis Dec. ¶ 6, at 2.

The Defendants, on the other hand, have a brand of obturator called ThermaFil. See id. They only advertise, market and sell it to dentists, dental schools, and other professions who perform endodontic procedures — not to the general public. See Motion at 2. Two of the Defendants’ other competitors, Coltene/Whaledent, Inc. and J.S. Dental Manufacturing, Inc., market obturators under the trademarked names “SuccessFil” and “Quick-Fill,” respectively. See Bisceglie Dec. ¶ 2-6, at 1-2 & Exhibits 1-5; Motion at 3; Goodis Dec. ¶ 9, at 3.

2. The Supply Agreement.

Guidance and Goodis contend that, on or about July 29, 2008, Guidance and the Defendants entered into a Manufacturing and Supply Agreement (the “Supply Agreement”). Motion at 3; Bisceglie Dec. ¶ 7, at 2 & Exhibit 5. The Defendants dispute this allegation, arguing that Guidance and Goodis misstate facts about the Supply Agreement. See Response at 2. The Defendants maintain that the parties entered into the agreement on August 11, 2008, when Jim Mosch affixed his signature. See Response at 2 & Exhibit A. Guidance also contends that, pursuant to that agreement, the Defendants agreed to manufacture all of Guidance’s proprietary endodontic products, and Guidance agreed to purchase all of its requirements for such products from TDP, on an exclusive basis. See Bisceglie Dec. Exhibit ¶¶ 2.1, 2.2, at 3 (“Supply Agreement”); Motion at 3. The Defendants contend that they did not agree to manufacture “all” of Guidance’s endodontic products, but only those listed in Exhibit 1 to the Supply Agreement (Guidance Files and Guidance Obturators). See Response at 2.

Section 4.5 of the Supply Agreement requires TDP to manufacture and provide endodontic files or obturators, which are improvements or successor products of similar design to the Guidance Files or Guidance Obturator, as those terms are defined in the Supply Agreement, as long as Guidance presents product specifications to TDP for such products. See Supply Agreement ¶ 4.5, at 6. Guidance is also obliged under Section 4.5 to “indemnify, defend, and hold harmless TDP for all claims, damages and costs arising from any claim that such file or obturator [manufactured pursuant to Section 4.5] infringes a third party’s rights,” provided that (i) TDP advises Guidance that it reasonably believes there is a material risk that a third party’s rights may be infringed, and (ii) a third party asserts a claim against TDP. See Supply Agreement ¶ 4.5, at 6; Motion at 3-4. As of the filing of Guidance’s motion, no third party had asserted such a claim against Guidance or TDP.

Section 12.8 of that Supply Agreement provides:

Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely upon and shall have no remedy in respect to any statement, representation, warranty or undertaking (whether negligently or innocently made) of any person (whether a party to this Agreement or not) other than as expressly set out in this Agreement.

Supply Agreement ¶ 12.8, at 15. See Motion at 4.

The Defendants allege, with respect to their claim of fraud, that Guidance and Goodis represented to them that, if the Supply Agreement were consummated, Guidance “would not attempt to trade off the reputation, goodwill, intangible trade values, and standing of Dentsply/TDP in the dental community in marketing and selling the Products.” Counterclaims ¶ 18, at 4. Guidance and Goodis also allegedly represented that they would not market Guidance products for use with Dents-ply/TDP products and would not tell Guidance customers that TDP manufactured the Guidance products. See id. ¶¶ 19-20, at 4. Finally, the Defendants allege that Guidance and Goodis represented to them that two particular individuals would be a part of Guidance going forward. See id. ¶¶ 20a-20d, at 4-5. Article V of the Supply Agreement, “Representations and Warranties,” does not contain any of the representations that the Defendants cite in support of their fraud claim. See Supply Agreement art. V, at 7-8; Motion at 4.

3. The Defendants Eventually Refused to Supply Obturators.

The Defendants sent two letters dated September 25, 2008. See Complaint Exhibits 8 & 9. One was from Bill Newell, Vice President and General Manager of Dentsply’s Endodontics division (the “Newell Letter”), and another from Brian Addison, Dentsply’s Secretary and General Counsel (the “Addison Letter”). See Complaint Exhibits 8 & 9. The letters alleged that Guidance had violated Sections 2.4 and 9.1 of the Supply Agreement and the Lanham Act. See Complaint Exhibits 8 & 9. In the Newell Letter, the Defendants further informed Guidance that, until the Defendants received written confirmation that Guidance would cease and desist from the offensive conduct described in the Newell Letter — such as communicating that the Defendants make Guidance’s products and stating that Guidance obturators are the same as Thermal Fill obturators — the Defendants intended to “discontinue the supply of the obturator product.” Complaint Exhibit 8. In the Addison Letter, the Defendants similarly asked that Guidance confirm in writing that it would cease and desist from making the statements enumerated therein — the same statements that the Defendants allege violate § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), in Count III of their Counterclaims. See Complaint Exhibit 9; Defendants’ First Amended Counterclaim Against Plaintiff and First Amended Claim Against Dr. Charles Goodis ¶ 40, at 8, filed April 22, 2009 (Doc. 92)(“Counterclaim”).

Guidance responded to the Newell and Addison Letters on October 1, 2008, and October 7, 2008, respectively, with assurances that it had taken steps to remedy its alleged violations. See Complaint Exhibits 10 & 13. On October 6, 2008, Newell informed Guidance that the Defendants “do not confirm or acknowledge receipt” of Guidance’s pending obturator order. Id. Exhibit 14. On October 14, 2008, Newell wrote to Guidance again, this time stating that Guidance’s alleged conduct “is such that there is no way to cure the impacts of it in the market,” and informing Guidance that “the only appropriate action at this point in time is to discontinue supplying Guidance with the obturator product.” Id. Exhibit 15. Thus, the Defendants refused to supply obturators to Guidance. See id. The Defendants continued, however, supplying Guidance with EndoTapers. See Complaint ¶¶ 133-143, at 26-28.

Section 12.12 of the Supply Agreement requires the parties to mediate any dispute arising out of or relating to the Supply Agreement. See Supply Agreement ¶ 12.12, at 16. The Defendants did not request to mediate the issues raised in the Newell or Addison Letters before ceasing to supply obturators to Guidance. See Bisceglie Dec. Exhibit 6. The parties participated in formal mediation on December 16, 2008, after Guidance filed this lawsuit. See Motion at 5.

4. Guidance’s Marketing Materials and Advertising.

Each of the statements enumerated in Count III of the Counterclaims was made in the first iteration of Guidance’s marketing materials, comprised of: (i) a brochure of Guidance’s full line of products; (ii) a two-page “mailer” marketing the EndoTaper files; and (iii) two versions of a two-page “mailer” marketing the One-Fill obturators (collectively, the “Marketing Materials”). Declaration of John P. Ferone in Support of Application for Temporary Restraining Order ¶¶ 23, 28, 33, filed November 21, 2008 (Doc. 6)(“Fer-one Dec.”). Later, Guidance removed the Marketing Materials containing the complained-of statements from its website. It is, disputed, however, just how much later. Guidance asserts that it removed those material two to three days later, see Motion at 6; Ferone Dec. ¶¶ 25, 26, 29, 30, 34, 35, but the Defendants contend that it took at least one-and-a-half weeks, see Response at 2 & Exhibit B. The dispute is not significant to the resolution of this motion. The Marketing Materials were revised to remove those objectionable statements, as well as any other potentially objectionable statements. See Motion at 6. Guidance contends that the Defendants have not objected to the current version of Guidance’s marketing materials and do not allege that anything in the current version violates the Lanham Act or the Supply Agreement. See Bisceglie Dec. ¶ 9, at 2 & Exhibit 7; Motion at 6. The Defendants point out in their response that: (i) Guidance did not pay for the right to trade off of Dentsply/TDP’s reputation, intangible trade value, and standing in the dental community, but nevertheless was doing so; and (ii) some offensive language — reference to a “Thermal Filling Obturator” — is still found in the current mailer. Response at 2; id. ¶ E, at 3; id. Exhibit F, at 3-5; Supplement to Ferone Dec., filed December 1, 2008 (Doc. 14).

Guidance also used a series of marketing materials that exalted Guidance products. Guidance advertised OneFill, its heated obturator, as “the Best Thermal Filling Obturator System in the World.” Affidavit of William E. Newell in Support of Dents-ply/TDPs’ [sic] Response to Guidance and Goodis’ Motion for Summary Judgment on Dentsply/TDP’s Claims Exhibit 1, filed August 17, 2009 (Doc. 251-8)(“Newell Aff.”). The OneFill obturator is the same obturator as Densfil and Thermafil, and all three products have the same performance characteristics. See Newell Aff. Exhibit 4; Deposition of Charles James Goodis at 29:16-32:10, 32:25-36:8 (taken April 3, 2009), filed August 17, 2009 (Doc. 251-9)(“Goodis Depo.”). OneFill, Densfil, and Thermafil were all on the market while Guidance was advertising OneFill as the world’s best obturator. See Newell Aff. ¶ 6, at 2.

For a period of time, Guidance had both the EndoTaper and the V-Taper on the market. See Goodis Depo. at 24:16-25:10. Guidance advertised EndoTaper as the “Best NiTi File System in the World.” Newell Aff. Exhibit 2. It advertised V-Taper as the “best rotary file in the world.” Newell Aff. Exhibit 3, at 2. Goodis admits that, for some root canals, EndoTaper is better, and for others, V-Taper is better. See Goodis Depo. at 23:25-26:25.

Guidance also advertised V-Taper as “easier, safer, more efficient” than any other NiTi rotary file system “in the world.” Response Exhibit J. It also advertised: “Now you can treat every case better, quicker and safer with EndoTaper.” Response Exhibit K. V-Taper advertisements stated: “The problem with a constant-tapered instrument is canals do not have a constant taper. Constant-tapered instruments ‘fight’ the natural variable taper of the canal (like trying to fit a square peg into a round hole).” Response Exhibit L. Yet, EndoTaper advertisements stated that one could use EndoTaper “to create the perfect canal shape more efficiently and easier than any other file system.” Response Exhibit M. Goodis admitted that EndoTaper does not always create the perfect canal shape. See Goodis Depo. at 26:4-25.

Dentsply/TDP have trademarked “Thermafil.” That trademark is “incontestable” under 15 U.S.C. § 1065, Motion at 21, and the United States Patent and Trademark Office (“USPTO”) has deemed the mark Thermafil to be “more than descriptive.” Response Exhibit T. Thermafil is a widely recognized term used to identify Dents-ply/TDP’s heated obturator. See Deposition of John Paul Ferone at 9:19-10:8 (taken March 31, 2009), filed August 17, 2009 (Doc. 25I-17)(“Ferone Depo.”); Deposition of Anthony Irwin Rittenberry at 35:8-16 (taken March 31, 2009), filed August 17, 2009 (Doc. 251~18)(“Rittenberry Depo.”). Before adopting the term “Thermal Filling” for its marketing materials, Guidance was aware of the mark Thermafil, used by the Defendants, and of its well-recognized status in the endodontic industry. See Ferone Depo. at 9:19-10:8; Rittenberry Depo. at 35:8-16. Guidance has now spent tens of thousands of dollars advertising OneFill using the term “Thermal Filling.” Response Exhibit S (showing the amount Guidance has spent, generally, on advertising and promotion). OneFill and Thermafil are identical in their use and marketplace. See Motion at 24; Response fZ, at 5.

5. The April 22, 2008 Meeting in Dallas, Texas.

The Defendants’ fraud claims arise out of “numerous misrepresentations and omissions ... made at a meeting in Dallas, Texas on April 22, 2008, concerning [Neal] Williams and [Anthony] Rittenberry’s status with Guidance at the time and going forward and Guidance’s intentions of building a direct sales organization.” Response ¶00, at 6. The Defendants contend that Goodis, Williams, and Rittenberry implicitly represented to them that Williams and Rittenberry would be employees and part owners of Guidance going forward, and that Rittenberry would lead Guidance’s efforts to build a direct sales force. See Newell Aff. ¶¶ 8-21, at 3-5. The Defendants also assert that Guidance knew that Williams and Rittenberry would be leaving as early as February of 2008. See Response Exhibit W. The Defendants argue that Williams and Rittenberry knew that Guidance could only afford to buy them out if Guidance and Dentsply/TDP entered into the Supply Agreement, and that Guidance would pay them more if Guidance and Dentsply/TDP consummated the Supply Agreement by April 22, 2008. See id. Exhibits XZ. The Defendants insist that Goodis told Williams and Rittenberry what to wear and what to say at the April 22, 2008 meeting. See id. Exhibit AA.

The Defendants state that they would not have entered into the Supply Agreement, or would not have entered into the Supply Agreement on the same terms, if they had known that Williams and Rittenberry would not be with Guidance going forward. See Newell Aff. ¶¶ 17, 21, 21-26, at 4-6. The Defendants further state that they subsequently learned that Williams entered into a buy-out agreement with Guidance on April 18, 2008, and that Rittenberry entered into a buy-out agreement with Guidance on April 22, 2008 See Response Exhibits U-V. The Defendants contend that appears that Guidance never intended to build a direct sales organization as of April 22, 2008. See id. Exhibits W, BB.

6. The Defendants’ Damages Allegations.

Guidance’s First Set of Interrogatories, Interrogatory No. 3, asked the Defendants to “[d]escribe in detail the basis for Defendants’ claim ... that they have been damaged by Guidance, and identify all documents supporting such allegation.” Dentsply/TDP’s Supplemental Responses to Plaintiff Guidance Endodontics, LLC and Counterclaim Defendant Charles J. Goodis’ First Interrogatories Nos. 3 & 14, at 1, filed July 31, 2009 (Doc. 228-2)(“Damages Interr.”). The Defendants responded that

Guidance’s and Goodis’ wrongful actions caused Dentsply/TDP to lose business (or in the alternative nominal damages in the event lost business cannot be quantified with the requisite certainty), allowed Guidance to make unlawful profits which Dentsply/TDP are entitled to recover, entitles Dentsply/TDP to treble damages, punitive damages, attorneys’ fees and costs. Documents which support Dentsply/TDP damages award include the Supply Agreement, Guidance’s marketing materials, and Guidance’s financial documents....

Damages Interr. at 1-2. The Defendants later supplemented their response to explain that they also sought damages for “all Guidance’s profits from sale of Endotapers and OneFill,” and that additional relevant documents included “Dents-ply/TDP invoices to Guidance, Guidance’s sales records and financial statements.” Id. at 2.

Interrogatory No. 14 of Guidance’s and Goodis’ first set of interrogatories asked the Defendants to “[ijdentify all damages you claim in this case, and identify all documents and witnesses that support your damages claims.” Id. The Defendants specified: (i) loss of business (or nominal damages if the loss cannot be quantified with the requisite certainty); (ii) attorneys’ fees (for having to identify confidential information that Guidance/Goodis wrongfully disclosed); (iii) nominal damages; (iv) Guidance’s profits; (v) attorneys’ fees and treble damages under 15 U.S.C. § 1117; (vi) attorneys’ fees and treble damages under NMSA 1978, § 57-12-10B and C; and (vii) punitive damages. See Damages Interr. at 2-3. Specifically, the Defendants assert that they incurred attorneys’ fees because their attorneys had to rectify Guidance’s filing this case and related documents publicly, rather than under seal, which they allege breached the Supply Agreements’ confidentiality clause. See Affidavit of Thomas P. Gulley in Support of Dentsply/TDP’s Response to G/G’s Motion for Summary Judgment [Doc. 226], filed August 17, 2009 (Doc. 251-6)(“Gulley Aff.”).

PROCEDURAL BACKGROUND

On November 21, 2008, Guidance filed its original Complaint against Dentsply and Tulsa Dental. On December 31, 2008, the Defendants filed their Answer to Guidance’s complaint and set forth thirteen counterclaims against Guidance and its owner, Goodis. See Defendants’ Answer to Verified Complaint and Demand for Jury Trial, filed December 31, 2008 (Doc. 41). The Defendants then amended their counterclaims to seal them and flesh out their factual allegations. See Defendants’ First Amended Counterclaim Against Plaintiff and First Amended Claim Against Dr. Charles Goodis, filed April 22, 2009 (Doc. 92)(“Counterclaims”). Those counterclaims that are the subject of this motion.

Guidance filed a motion seeking leave to exceed the page limits set forth in Local Rule 7.5 and obtained consent from the Defendants’ counsel to submit a memorandum of up to thirty-five pages in length. See Unopposed Motion to Enlarge Page Limitations for Plaintiffs Motion for Partial Summary Judgment, filed July 31, 2009 (Doc. 223). The Court granted that motion. See Unopposed Order Granting Plaintiffs Unopposed Motion to Enlarge Page Limitations for Plaintiffs’ Motion for Partial Summary Judgment, filed August 3, 2009 (Doc. 229). The Court now addresses the substance of this lengthy motion.

Guidance and Goodis move the Court, pursuant to rule 56 of the Federal Rules of Civil Procedures, to render summary judgment on Counts I through XIII of the Defendants’ counterclaims. In the Response, the Defendants withdrew Count IV, a claim for violation of Section 43(c) of the Lanham Act, 15 U.S.C. § 1125(c), and Count IX, a claim for tortious interference with prospective business advantage. See Response at 16, 26. The remaining counts are: (i) breach of contract (Count I); (ii) covenant of good faith and fair dealing (Count II); (iii) violation of the Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) (Count III); (iv) violation of 15 U.S.C. § 1114(1) (Count V); (v) common law unfair competition (Count VI); (vi) violation of the New Mexico UPA, NMSA 1978, §§ 57-12-1 to 57-12-26 (Count VII); (vii) unlawful misappropriation of the Defendants’ reputation, goodwill, intangible trade values and standing in the dental community (Count VIII); (viii) fraud (Count X); (ix) punitive damages (Count XI); (x) declaratory judgment that the Defendants were not bound to perform because of Guidance’s wrongful conduct (Count XII); and (xi) rescission (Count XIII).

Because of the nature of this motion, Guidance did not seek concurrence of opposing counsel. The Defendants oppose the motion. Ultimately, for the reasons stated below, the Court will grant in part and deny in part the motion.

CHOICE OF LAW

This case involves several categories of claims as to which different bodies of law apply. The Supply Agreement included a choice-of-law provision. See Supply Agreement ¶ 12.11, at 16. That provision states: “This agreement shall be deemed to have been made and entered into pursuant to the laws of the State of Delaware. In the event of any dispute thereunder, this Agreement shall be governed by and construed according to the laws of the State of Delaware.” Supply Agreement ¶ 12.11, at 16. Guidance argues that this provision — and therefore Delaware substantive law — applies to its claims for: (i) breach of contract (Count I); (ii) breach of the covenant of good faith and fair dealing (Count II); (iii) fraud (Count X); and (iv) rescission (Count XIII). See Motion at 8. The Defendants agree with this determination, and additionally argue that New Mexico law applies to Guidance’s claims of: (i) unfair competition (Count VI); (ii) violation of the New Mexico UPA (Count VII); and (iii) unlawful misappropriation (Count VIII), because Guidance’s alleged “underlying misconduct is centered in New Mexico and New Mexico still applies the lex loci delicti rule in tort choice of law issues.” Response at 2. Guidance does not disagree with this point.

In filing the underlying suit, Guidance invoked the Court’s diversity jurisdiction, so the Court looks to the forum state’s choice-of-law rules to determine which state’s substantive law to apply. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Pepsi-Cola Bottling Co. v. PepsiCo, Inc., 431 F.3d 1241, 1255 (10th Cir.2005)(“In a diversity action, we apply the substantive law of the forum state, including its choice of law rules.”). The Court therefore applies New Mexico choice-of-law principles in determining what substantive law to apply to each of the state-law Counts in the Complaint.

1. Delaware Law Applies to Counts I, II, X, XII, and XIII Because New Mexico Would Recognize the Choice-of-Law Clause in the Supply Agreement.

Ordinarily, New Mexico will apply the choice-of-law rule of lex loci contractus — the law of the place of contracting — to issues involving contracts. See Ferrell v. Allstate Ins. Co., 144 N.M. 405, 421, 188 P.3d 1156, 1172 (2008). Like most states, however, “New Mexico respects party autonomy; [therefore] the law to be applied to a particular dispute may be chosen by the parties through a contractual choice-of-law provision.” Fiser v. Dell Computer Corp., 144 N.M. 464, 467, 188 P.3d 1215, 1218 (2008) (citing NMSA 1978, § 55-1-301(A)). See United Wholesale Liquor Co. v. Brown-Forman Distillers Corp., 108 N.M. 467, 470, 775 P.2d 233, 236 (1989). “[W]hen application of the law chosen by the parties offends New Mexico public policy,” however, a New Mexico court “may decline to enforce the choice-of-law provision and apply New Mexico law instead.” Fiser v. Dell Computer Corp., 144 N.M. at 467, 188 P.3d at 1218. “New Mexico courts will not give effect to another state’s laws where those laws would violate some fundamental principle of justice.” Id. at 467, 188 P.3d at 1218 (internal quotations omitted). In a case such as this one, where the plaintiff has invoked the federal district court’s diversity jurisdiction, the Court will accept New Mexico’s law regarding whether to honor a contractual choice-of-law provision. See MidAmerica Constr. Mgmt., Inc. v. MasTec N. Am., Inc., 436 F.3d 1257, 1260 (10th Cir.2006)(“In cases like this one, where subject matter jurisdiction is based on diversity of citizenship, federal courts must look to the forum state’s choice-of-law rules to determine the effect of a contractual choice-of-law clause.”).

The choice-of-law provision requires that “any dispute” arising under the Supply Agreement “shall be governed by and construed according to the laws of the State of Delaware.” Supply Agreement ¶ 12.11, at 16. Neither party has argued that application of Delaware contract law would violate any New Mexico public policy, nor have they cited any authority to that effect. In the absence of argument by counsel to the contrary, the Court is not willing to find that Delaware law, in general, “violate[s] some fundamental principle of justice.” Fiser v. Dell Computer Corp., 144 N.M. at 467, 188 P.3d at 1218. The Court will therefore apply Delaware law to the Defendants’ contract-related claims: (i) breach of contract (Count I); (ii) breach of the covenant of good faith and fair dealing (Count II); (iii) fraud (Count X); and (iv) rescission (Count XIII).

Count XII of the Defendants’ Counterclaims seeks a declaratory judgment. See Counterclaims ¶¶ 89-91, at 14. When the declaratory judgment is brought under a court’s diversity jurisdiction, the court is to apply New Mexico’s choice-of-law rules to the case. See Coca-Cola Bottling Co. of Ogden, Inc. v. Coca-Cola Co., 4 F.3d 930, 933 (10th Cir.1993) (citing Moore v. Subaru of America, 891 F.2d 1445, 1448 (10th Cir.1989)). In this case, the declaratory judgment is based on whether the Defendants remain bound to certain promises in the Supply Agreement. See Counterclaims ¶¶ 90-91, at 14. The declaratory action is thus a contract dispute for the purpose of categorization, and Delaware law will therefore govern Count XII.

2. New Mexico Law Applies to Counts VI, VII, and VIII Based on New Mexico’s Lex Loci Delicti Doctrine.

As mentioned, the Defendants assert that their claims of unfair competition, violation of the New Mexico UPA, and unlawful misappropriation fall under the category of torts and are therefore subject to the lex loci delicti rule — the law of the place of the wrong. See Response at 1-2. Guidance does not contest this assertion, although it also does not cite any New Mexico authority in its motion or reply brief. See Motion at 25-26; Reply at 14-15. Implicit in the Defendants’ assertions, and their citation to New Mexico authority for their unfair competition and misappropriation claims, is that the wrong occurred in New Mexico. Guidance has not argued the point one way or the other.

Under New Mexico choice-of-law principles, when the choice of substantive law is not governed by the agreement of the parties, a court must execute a two-step process. First, the court must characterize the claim by the “area of substantive law — e.g., torts, contracts, domestic relations — to which the law of the forum assigns a particular claim or issue.” Terrazas v. Garland & Loman, Inc., 140 N.M. 293, 296, 142 P.3d 374, 377 (Ct.App.2006). There are only a few categories within which claims might fall — “[t]ort cases, i.e. all ‘civil wrongs,’ are one class; contracts, i.e., every kind of enforceable promise, is another single class.” James Audley McLaughlin, Conflict of Laws: the Choice of Law Lex Loci Doctrine, the Beguiling Appeal of a Dead Tradition, Part One, 93 W. Va. L.Rev. 957, 989 (1991)(describing the categories as “tort, contract, or some other”). Once categorized, the court must apply the appropriate New Mexico’s choice-of-law rules for that category of claim. See Terrazas v. Garland & Loman, Inc., 140 N.M. at 296, 142 P.3d at 377. If the underlying claim is categorized as a tort, “New Mexico courts follow the doctrine of lex loci delicti commissi — ’that is, the substantive rights of the parties are governed by the law of the place where the wrong occurred.” Id. at 296, 142 P.3d at 377. Where the elements of the underlying claim include harm, the place of the wrong is the place where the harm occurred. See First Nat’l Bank in Albuquerque v. Benson, 89 N.M. 481, 482, 553 P.2d 1288, 1289 (Ct.App.1976)(referring to the rule as requiring application of “the law of the State of injury”).

The Court has already determined in a prior opinion in this case that it believes the New Mexico UPA should generally be treated like a tort claim for choice-of-law purposes. See Memorandum Opinion and Order, 663 F.Supp.2d 1138, 1149-51 (D.N.M.2009). Further, the conduct underlying the Defendants’ New Mexico UPA counterclaim is the same conduct that underlies their unfair-competition counterclaim. See Counterclaims ¶¶ 65-71, at 11-12. So, if the Court finds that the unfair-competition counterclaim should be categorized as a tort claim, the Court will categorize the Defendants’ New Mexico UPA claim the same way for choice-of-law purposes.

The Defendants’ unfair competition claim is based on three categories of conduct: (i) false advertising; (ii) misappropriation of Guidance’s trade values; and (iii) trademark infringement. The Court cannot find a New Mexico court opinion that categorizes unfair competition — or unlawful misappropriation — into a particular area of substantive law for the purposes of choice-of-law analysis. The Court must therefore predict how the Supreme Court of New Mexico would categorize these claims.

Common-law unfair competition is discussed in the Restatement (Third) of Unfair Competition. See Restatement (Third) of Unfair Competition §§ 1, 2, 38 (1995). The causes of action in the Restatement of Unfair Competition, however, appear to have grown out of the Restatement (First) of Torts, implying that they should be categorized as torts. See Restatement (Third) of Unfair Competition § 2 cmt. b; Restatement (First) of Torts §§ 708-710 (1938)(discussing interference with business relations by use of various trade practices); id. § 760 (“Misrepresentation In Marketing Goods Of Which Another Is The Commercial Source — Liability To The Other”); id. § 761 (“False Advertising — Liability To Competitor”); id. § 712 (discussing the elements of fraudulently marketing one’s goods or services as those of another). Furthermore, a portion of the Court’s reasoning for categorizing a violation of the New Mexico UPA as a tort claim rings true in the context of these claims as well; “[TJhese claims are grounded in breach of a duty created by law [and] not by any agreement between the parties. Finally, both parties agree that the ... claims should be treated as tort claims for choice-of-law purposes.” Memorandum Opinion and Order, 663 F.Supp.2d at 1151. The common law, not the parties’ agreement, creates the duty not to unfairly compete and the duty not to unlawfully misappropriate trade values. The Court concludes that the Defendants’ counterclaim for unfair competition is a tort claim. Furthermore, because the Defendants’ claim for unlawful misappropriation essentially reiterates one of the Defendants’ theories of unfair competition, compare Counterclaims ¶¶ 45-52, at 8-9 and ¶¶ 63-64, at 11 with id. ¶¶ 72-76, at 12, the Court finds that the unlawful misappropriation claim should also be characterized as a tort.

Because the Court categorizes all three claims at issue as torts, it will apply lex loci delicti to them all. The Court finds that much of the advertising conduct about which the Defendants complain occurred in New Mexico, and thus one could assume that many of the lost sales that are the result of the alleged advertising conduct occurred in New Mexico. The Court therefore finds that New Mexico is a state in which some or all of the Defendants’ alleged harm occurred. Because New Mexico is the lex loci delicti, the Court will apply New Mexico substantive law to Counts VI, VII, and VIII.

3. Federal Law Governs Counts III and V, Which Arise Under Federal Law.

The choice-of-law question as to Counts III and V has a simple answer. As each claim is a substantive federal claim, the Court applies federal law when resolving this motion as to those claims. See Erie R.R. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) (“Except in matters governed by ... acts of Congress, the law to be applied in any case is the law of the state.”)(emphasis added); 19 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4501 (2d ed. 1996)(“[T]he substantive law to be applied by the federal courts in any case is state law, except when the matter before the court is governed by ... an Act of Congress, ... or, in special circumstances, by federal common law.”)(emphasis added). The Court will therefore consult federal law in addressing this motion as to the claims arising under that law.

RELEVANT LAW REGARDING MOTIONS FOR SUMMARY JUDGMENT

Summary judgment “should be rendered if 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 judgment as a matter of law.” Fed.R.Civ.P. 56. See Sports Unlimited, Inc. v. Lankford Enters., Inc., 275 F.3d 996, 999 (10th Cir.2002)(“Summary judgment is appropriate only if the admissible evidence shows ‘there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ”) (quoting Fed.R.Civ.P. 56(c)). A party can satisfy this standard as to claims or elements for which the non-movant bears the burden of proof at trial by pointing out that the non-movant has no admissible evidence as to those claims or defenses. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir.1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Once the movant meets this minimal burden, the non-movant must provide evidence showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. at 324, 106 S.Ct. 2548; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir.1993)(“However, the nonmoving party may not rest on its pleadings but must set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.”) (internal quotation marks omitted).

When reviewing a motion for summary judgment, the Court should keep in mind three principles. First, the Court’s role is not to weigh the evidence, but to assess the threshold issue whether a genuine issue exists as to material facts requiring a trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505. Second, the Court must resolve all reasonable inferences and doubts in favor of the non-moving party, and construe all evidence in the light most favorable to the non-moving party. See Hunt v. Cromartie, 526 U.S. 541, 550-55, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999). Third, the Court cannot decide any issues of credibility. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505.

ANALYSIS

Guidance asks the Court to grant summary judgment in its favor as to all of the Defendants’ counterclaims. The Defendants, in their response, argue that with respect to Counts II (covenant of good faith and fair dealing), VI (unfair competition), VIII (unlawful misappropriation), X (fraud), XI (punitive damages), and XII (declaratory judgment), the Court should treat this motion as a motion to dismiss under rule 12(b)(6) because Guidance does not reference any facts. Some of the arguments in Guidance’s summary judgment motion are legal in nature, and the Court may decide those issues without reference to the facts of this case. To the extent that Guidance’s arguments attack the legal viability of the Defendants’ theories, the Court will address the issues as questions of law. Ultimately, some of the Defendants’ counterclaims will survive this summary judgment motion; others will not.

I. THE DEFENDANTS ESTABLISH THAT FACTUAL ISSUES EXIST REGARDING THEIR BREACH-OF-CONTRACT CLAIM (COUNT I) WITH RESPECT TO SECTIONS 2.4, 9.1 AND 12.12, BUT NOT AS TO SECTION 4.7.

In Count I of their Counterclaims, the Defendants allege that Guidance breached four provisions of the Supply Agreement. See Counterclaims ¶¶ 30-33, at 6-7. The first provision, Section 2.4, requires that Guidance not promote obturators and ovens for use with any endodontic system that TOP offers for sale. See Supply Agreement ¶ 2.4, at 3. Next is Section 4.7, which prohibited Guidance from using certain trade names and prefixes on its trade names. See Supply Agreement ¶ 4.7, at 6-7. Relevant to this motion, Guidance was prohibited from marketing any product brands using the prefixes “PRO, THERMA and DENTS.” Id. Third, the Defendants allege breach of Section 9.1, which requires each party to “use reasonable commercial effort not to disclose the terms of the [Supply] Agreement” to any third party. Supply Agreement ¶ 9.1, at 10-11. Finally, they allege breach of Section 12.12, which, in the event of a “dispute,” requires the parties to mediate before “resorting to litigation or some other dispute resolution procedure.” Supply Agreement ¶ 12.12, at 16. Guidance appears to attack the Defendants’ breach-of-contract claims at three points: (i) no evidence of a breach of Section 4.7; (ii) no evidence of a breach of 12.12; and (iii) no evidence of any quantification of damages. See Motion at 8-11; Reply at 3-7.

A. DELAWARE LAW ON BREACH OF CONTRACT.

To state a breach of contract claim under Delaware law, one must establish three elements. “[F]irst, the existence of the contract, whether express or implied; second, the breach of an obligation imposed by that contract; and third, the resultant damage to the plaintiff.” VLIW Tech., LLC v. Hewlett-Packard Co., 840 A.2d 606, 612 (Del.2003). A plaintiff cannot bring a breach of contract claim seeking only nominal damages. The Supreme Court of Delaware appears to require a breach-of-contract plaintiff to show “resultant damage to the plaintiff’ to survive a motion to dismiss. See VLIW Tech., LLC v. Hewlett-Packard Co., 840 A.2d 606, 612 (Del.2003)(explaining that, to survive a motion to dismiss on a breach of contract claim, the plaintiff must demonstrate “the existence of the contract, whether express or implied; ... the breach of an obligation imposed by that contract; and ... the resultant damage to the plaintiff.”). On the other hand, it appears that, when there is evidence of damages, but those damages cannot be calculated with the necessary certainty, the law of Delaware allows the court to award nominal damages. See Ivize of Milwaukee v. Compex Litig., Support, LLC, Nos. 3158-VCL, 3406-VCL, 2009 WL 1111179, at *11 (Del.Ch. Apr. 27, 2009)(holding nominal damages could be awarded when existence of damages was clear but quantity could not be proved with the required certainty); LaPoint v. AmerisourceBergen Corp., No. Civ. A. 327-CC, 2007 WL 2565709, at *9 (Del.Ch. Sept. 4, 2007)(“To be entitled to compensatory damages, plaintiffs must show that the injuries suffered are not speculative or uncertain, and that the Court may make a reasonable estimate as to an amount of damages.”).

The first step in analyzing whether a breach of contract has occurred is to determine what the contract means. The meaning or ambiguity of a contract is a question of law for the court to decide. See HIFN, Inc. v. Intel Corp., No. Civ. A. 1835-VCS, 2007 WL 1309376, at *9 (Del. Ch. May 2, 2007)(“A determination of whether a contract is ambiguous is a question for the court to resolve as a matter of law.”). A contract is ambiguous if it is subject to two or more reasonable interpretations. See Nw. Nat’l Ins. Co. v. Esmark, Inc., 672 A.2d 41, 43 (Del.1996); Addy v. Piedmonte, No. Civ. A. 3571-VCP, 2009 WL 707641, at *8 (Del.Ch. Mar. 18, 2009). “In analyzing disputes over the language of a contract, we give priority to the intention of the parties [and] start by looking to the four corners of the contract to conclude whether the intent of the parties can be determined from its express language.” Paul v. Deloitte & Touche, LLP, 974 A.2d 140, 145 (Del.2009). “Courts consider extrinsic evidence to interpret the agreement only if there is an ambiguity in the contract.” Nw. Nat’l Ins. Co. v. Es mark, Inc., 672 A.2d at 43.

A party cannot be liable for violating a provision that the other party has waived. Under Delaware law, however, the burden to establish a waiver of contract right is fairly onerous. The elements of a waiver of rights “are (1) a right to be waived; (2) the waiving party must know of the right, and (3) he must intend to waive that right.” Pepsi-Cola Bottling Co. of Asbury Park v. Pepsico, Inc., 297 A.2d 28, 33 (Del.1972).

B. UNDER DELAWARE LAW, THE DEFENDANTS HAVE SHOWN THAT A FACTUAL ISSUE EXISTS WITH RESPECT TO SECTIONS 2.4, 9.1 AND 12.12 OF THE SUPPLY AGREEMENT.

Guidance takes issue with the element of breach as to two of the challenged provisions, 4.7 and 12.12, and with the element of damages as to all provisions. Guidance does not appear to challenge the Defendants’ evidence of a breach of Sections 2.4 and 9.1 of the Supply Agreement, except with respect to damages. The Court will thus not grant Guidance’s motion on the grounds that the Defendants lack evidence of breach of those provisions.

1. The Defendants Have Failed to Show a Factual Issue Whether Guidance Violated Section 4.7 of the Supply Agreement.

Section 4.7 of the Supply Agreement provides: Trademarks. It is understood and agreed that Guidance will sell, market, advertise, and promote the Products only under its own brands or trade names, including, without limitation, “GUIDANCE, V-TAPER, ENDOTAPER, ONEFILL, ONESEAL, and NEGOTIATOR. Guidance agrees that it will not use the prefixes PRO, THERMA and DENTS as part of its brands or trade names in connection with any of the Products.

Supply Agreement at 6-7. The Defendants are not particularly forthcoming in their Counterclaims or reply brief regarding how Guidance violated Section 4.7. In an attachment, they circle a statement that lends some insight — the Defendants apparently argue that referring to OneFill as a “Thermal Filling Obturator” violates Section 4.7. See Response Exhibit C. Guidance argues that the Defendants cannot show a breach of Section 4.7 because that provision expressly permits Guidance to use the trade name “OneFill” in connection with its products. See Reply at 3. Guidance hypothesizes that the alleged violation is based on the Defendants reading very broadly a portion of Section 4.7 that prohibits Guidance from using “the prefixes PRO, THERMA and DENTS as part of its brands or trade names in connection with any of the products.” See Reply at 3. It further hypothesizes that the Defendants’ alleged breach is based on the fact that the phrase “OneFill Thermal Obturator” has a visual appearance similar to using the prefix “THERMA.” See Reply at 3. The Court is unconvinced.

Under Delaware law, whether a contract is ambiguous is a question of law for the Court to decide. See HIFN, Inc. v. Intel Corp., 2007 WL 1309376, at *9. A contract is ambiguous if it is subject to two or more reasonable interpretations. See Addy v. Piedmonte, 2009 WL 707641, at *8. The Court does not believe this provision is subject to more than one reasonable interpretation.

The Supply Agreement’s language — that “Guidance will sell, market, advertise, and promote the Products only under its own brands or trade names, including, without limitation, ... ONEFILL” — is not ambiguous in the context of this dispute. Section 4.7 expressly permits Guidance to market its product under the name One-Fill. Further, there appears to be no ambiguity as to what the section prohibits — it prohibits use of the prefixes “PRO, THERMA, and DENTS.” Supply Agreement ¶ 4.7, at 6-7. A prefix is “[a]n element placed at the beginning of a word or stem to adjust or modify its meaning.” Oxford English Dictionary Online, “prefix, n,” (2d ed. 1989, Oxford University Press), available at http://dictionary.oed. com/egi/entry/50186993 (last accessed Oct. 8, 2009). In the Court’s view, this definition would include a series of characters that are attached to the beginning of the root word, but would not include prior or subsequent words in their entirety. Use of the phrase “Thermal Filling Obturator” in conjunction with the permissible trade name “OneFill” does not use any of those prefixes. Indeed, it does not use any prefixes at all. Marketing a product called ThermaOneFill, for instance, would violate this section of the Supply Agreement. Use of the word “Thermal” immediately following the word “OneFill,” however, does not. The Defendants do not provide any argument regarding how Section 4.7 has otherwise been violated, nor have they pointed the Court to any evidence in the record that would prove that violation. The Court will hold that there is no material fact in dispute whether Guidance breached Section 4.7 of the Supply Agreement.

2. The Defendants Have Shown a Fact Issue Whether Guidance Violated Section 12.12 of the Supply Agreement.

Section 12.12 of the Supply Agreement provides:

Mediation. If a dispute arises out of or relates to this Agreement, or the breach thereof, and if the dispute cannot be settled through negotiation, the parties agree first to try in good faith to settle the dispute by mediation administered by JAMS under its Mediation Rules before resorting to litigation or some other dispute resolution procedure.

Supply Agreement ¶ 12.12, at 16. The Defendants assert that Guidance breached this provision by filing this lawsuit. Guidance asserts that it could not have violated this provision because the Defendants waived their right to insist on mediation by failing to mediate before they stopped providing Guidance with obturators, “unilaterally terminating” the Supply Agreement. Motion at 9. It implicitly argues that the Defendants’ allegations, found in the New-ell and Addison letters, represent a “dispute” that had to be mediated before using any other method of dispute resolution, such as ceasing to perform under the contract. Motion at 9-10. Guidance also argues that it was not bound to mediate because mediation would be futile, given that the Defendants sent a letter to Guidance stating that its “conduct is such that there is no way to cure the impacts of it in the market.” Motion at 10; Complaint Exhibit 15.

In response, the Defendants assert that they have not waived their right to insist on mediation before litigation. They argue that, under Delaware law, the burden of proving waiver is very high and that Guidance has not met it. See Response at 8. They further point to Section 12.7 of the Supply Agreement, which states “a failure of either side to enforce its rights hereunder shall not be deemed a waiver of such rights unless specifically stated.” Response at 8; Supply Agreement ¶ 12.7, at 15. They argue that this provision requires them to specifically state that they waive their right to insist on mediation before that right is waived. See Response at 8. Finally, they contend that they did not waive the right to mediate by unilaterally terminating the Supply Agreement because they did not terminate the agreement when they failed to supply obturators; they continued to supply EndoTaper files and ovens. See Response at 8.

In their reply brief, Guidance argues that a no-waiver clause can be waived just like any other contract provision. See Reply at 6. In other words, it appears to argue that no-waiver clauses like Section 12.7 have no purpose. Pepsi-Cola Bottling Company of Asbury Park v. Pepsico, Inc., 297 A.2d at 33, which Guidance cites for this proposition, appears only to hold that a clause providing that contract amendments must be in writing can be waived by failing to object to an implied modification of the contract terms for fifteen years. See 297 A.2d at 33-34. The Court does not read this case as laying the foundation for ignoring Section 12.7 when the Defendants seek to assert it in their defense. The Defendants appear to be correct, however, that Guidance’s burden in establishing a waiver of contract right is fairly onerous. The elements of a waiver of rights “are (1) a right to be waived; (2) the waiving party must know of the right, and (3) he must intend to waive that right.” Pepsi-Cola Bottling Co. of Asbury Park v. Pepsico, Inc., 297 A.2d at 33. Clearly, the contract provision itself creates the right. See Supply Agreement at 16. The Court is also comfortable in concluding that the Defendants knew of the right. The Court is not, however, confident that the Defendants intended to waive that right. Guidance provides nothing to support its assertion of waiver except the argument that the Defendants breached the Supply Agreement. See Motion at 9. The Court believes that is a dispute to which the Supply Agreement refers. If Guidance’s accusation that the Defendants breaching the contract was enough to nullify the mediation clause, the clause would have very little purpose, as most disputes arise out of alleged breaches.

The cases cited by Guidance to support waiver are inapposite. Nutzz.com, LLC v. Vertrue, Inc., No. Civ. A. 1231, 2006 WL 2220971, at *8 (Del. Ch. July 25, 2006), for instance, held that actions “inconsistent with [a] right to arbitrate” might result in relinquishing that right. 2006 WL 2220971, at *8. That case, however, dealt with what Guidance has done — file suit without first seeking mediation — rather than the Defendants’ conduct, which Guidance alleges breached the contract. The case does not support the position that actions inconsistent with the contract’s terms constitute a waiver of the right to demand mediation. In DaimlerChrysler Corp. v. Matthews, 848 A.2d 577 (Del.Ch.2004), the Delaware Chancery Court held only that, where one party asserts his right to non-binding arbitration under a contract’s specific dispute resolution protocol, and the other party refuses to submit to such arbitration, the refusing party cannot later assert that the other party was required to arbitrate before bringing suit. See 848 A.2d 577, 581-82. Thus — assuming mediation and arbitration clauses are treated the same' — 'if Guidance had demanded mediation and the Defendants had refused, then the Defendants would likely have waived their right to demand that Guidance mediate before bringing suit. Neither of these situations is before the Court, so Guidance’s waiver argument does not persuade the Court. The Court believes there is a factual issue whether Guidance breached the mediation provision of the Supply Agreement.

3. The Defendants Have Provided Some Evidence of Damages from Guidance’s Alleged Breach of the Supplg Agreement.

In its motion, Guidance argues that the Defendants have presented no expert report or other evidence of damages that Guidance’s alleged breach of contract caused. See Motion at 10. Guidance argues that, because damages are an element of a claim for breach of contract and the Defendants have no evidence thereof, summary judgment is appropriate. See id. The Defendants respond that they do not need an expert to establish their damages. See Response at 8. They argue that they have ample employees competent to testify on the subject of damages, that they are entitled to nominal damages under Delaware law, and that they have attached the affidavit of Mr. Gulley as evidence of their damages in the form of attorneys fees. See id. at 9.

The only items of evidence that the Court finds attached to the Defendants’ response that goes to the issue of damages are: (i) an affidavit by Mr. Gulley; and (ii) a snippet of hearing testimony by James Mosch, a representative of the Defendants. Although barely, that is enough. In his affidavit, Mr. Gulley states that: (i) he is an attorney for the Defendants; (ii) the Defendants believe that Guidance’s act of publicly filing pleadings and other documents violated Section 9.1 of the Supply Agreement; and (iii) the Defendants have paid for his services in attempting to seal those documents. See Response Exhibit E. Thus, the Defendants have provided evidence of damages in the form of attorneys fees, which are damages one would expect from a breach of Paragraphs 9.1 and 12.12 of the Supply Agreement. If Guidance breached Paragraph 9.1, that conduct arguably forced the Defendants to retain counsel to try to get Guidance’s filings put under seal. If Guidance had not breached Paragraph 12.12, a fact finder might reasonably conclude that litigation might have been avoided and attorneys fees might have been less. Mr. Gulley’s affidavit is sufficient evidence to raise a genuine issue of material fact regarding the Defendants’ attorneys fees.

The Defendants’ alleged breach of Section 2.4 is more troublesome. The Defendants concede that they have not provided a means by which to quantify their lost-business damages. The Defendants cite an unpublished case from the Delaware Chancery court for the proposition that a breach-of-contract action can be maintained on an allegation of nominal damages. See LaPoint v. AmerisourceBergen Corp., 2007 WL 2565709, at *9. See also Ivize of Milwaukee v. Compex Litig. Support, LLC, 2009 WL 1111179, at *11. The Supreme Court of Delaware, however, seems to require a plaintiff to show “resultant damage to the plaintiff’ to survive a motion to dismiss its breach of contract claim. VLIW Tech., LLC v. Hewlett-Packard Co., 840 A.2d at 612. It would be nonsensical to require that more elements be pled than be proven.

The Court understands LaPoint v. AmerisourceBergen Corp. and other similar cases to require some evidence that the claimant has suffered actual damages, and that those damages could be quantified, but to allow the claimant to win at trial even if its evidence of the quantity of damages turns out to be insufficient. See LaPoint v. AmerisourceBergen Corp., 2007 WL 2565709, at *9 (“To be entitled to compensatory damages, plaintiffs must show that the injuries suffered are not speculative or uncertain, and that the Court may make a reasonable estimate as to an amount of damages.”). In that situation, the award of damages can be nominal. The Court therefore believes that the Defendants have a burden to establish that they have suffered some damages from Guidance’s alleged breach of contract. And, though just barely, the Defendants satisfy this burden.

The Defendants’ only evidence of lost-business damages is a snippet of hearing testimony from Mosch, a representative of the Defendants. In the passage, Mosch discusses some of Guidance’s alleged wrongful conduct and states: “[Cjlearly we had a loss of sales and revenue.” Response Exhibit F. The Court acknowledges that this statement is self-serving. From it, however, the Court believes that a reasonable jury could be convinced that the Defendants suffered damages to some extent. While an award of a specific amount on this evidence alone would be speculation, it is enough to prove some damages were sustained. In their reply brief, Guidance cites some authority that they argue stands for the proposition that the Defendants must provide a “meaningful estimate” of their loss of business damages. See Reply at 4. With one exception, Guidance’s ease law is either irrelevant or support the Court’s conclusion that, where there is evidence of damages but no evidence of their quantity, the plaintiff can recover nominal damages. Jones v. United States, 49 Fed.Cl. 516, 521 (2001) (cited only for the statement that summary judgment is “the ‘put up or shut up’ moment in a lawsuit”); Yale 41 Assocs. Ltd. P’ship v. Five Shopping Ctr. Co., 16 Fed. Appx. 921, 922-23 (10th Cir.2001) (holding a liquidated-damages provision void because the party seeking to assert it failed