Full opinion text
MEMORANDUM OPINION & ORDER DAVID L. BUNNING, District Judge. This is an action for breach of contract and unjust enrichment under Kentucky law brought by Plaintiff representative/distributor, MidAmerican Distribution Inc., against Defendant distributor, Clarification Technology, Inc. (CTI). This matter is before the Court on cross motions for summary judgment by Defendant CTI (Doc. # 74) and Plaintiff MidAmerican (Doc. # 97). The motions have been fully briefed and, at the Court’s request, supplemented. (Docs. # 118, 125, 126, 131, 133). Upon review of the briefs, the Court finds oral argument unnecessary. For the reasons that follow, Defendant CTI’s motion for summary judgment is granted. Cross motions for summary judgment are also pending between Defendant CRS Holdings, AG (Doc. # 77) and Plaintiff MidAmerican (Doc. # 98) on Plaintiffs alter ego claim. Those two motions have been held in abeyance pending disposition of Plaintiff’s underlying claims against Defendant CTI. (Docs. # 106, 121). Because dismissal of the underlying claims against Defendant CTI also disposes of Plaintiff’s claims against Defendant CRS, the abeyance is lifted and Defendant CRS’s motion for summary judgment is granted. 1. FACTUAL BACKGROUND A. DRG Marketing, Inc. agreed to represent CTI’s products Defendant CTI, which does business under the trade name “Filtercorp,” sells and distributes products used to filter and maintain frying oil in the food service market. (Doc. # 1-6 at 9). DRG Marketing, Inc., a nonparty to this suit, was created by Dave Goble, Sr. to represent companies in the food service industry. (Doc. # 58 at 13-14). In 1996, CTI and DRG entered a manufacturer’s representative agreement which obligated DRG to represent Filter-corp products in exchange for a commission on each sale within its specified territory. (Docs. # 58 at 24-25, 32; 58-3). The agreement was to remain in effect for three years and continue thereafter for one-year periods unless terminated by either party. (Doc. # 58-3 at 3). Sometime around the beginning of 2001, CTI presented DRG with a proposed agreement, which would have altered DRG’s role to that of a “licensed regional stocking distribution warehouse.” (Doc. # 58-4). This proposed agreement represented a fundamental change in CTI’s business model to a regional distribution warehouse (RDW) program. (Docs. # 7 at 15; 74-1; 74-2; 74-3). Under the new model, DRG (and other RDWs) would actually buy Filtercorp products, own the products, and sell them in the marketplace for a markup. (Doc. # 58 at 32). The RDW would receive exclusive distribution rights to Filtercorp products within its region. (Docs. # 74-1; 74-2; 74-3). The evidence does not establish whether DRG executed the 2001 agreement. At his 2010 deposition, Goble stated that DRG “never signed it” — though he was unable to remember why. (Doc. # 58 at 26-27). The copy of the agreement in the record is unsigned. (Docs. # 1-6 at 19; 58-4). In response to Defendant CTI’s request that Plaintiff “[a]dmit that an Agent for DRG Marketing, signed the ‘Licensing and Distribution Agreement,’ ” Plaintiff responded, “Cannot admit or deny.” (Doc. # 1-3 at 44-45). Plaintiff further represented that it had “made reasonable inquiry and the information known or readily obtainable is insufficient to enable an admission or denial.” (Doc. # 1-3 at 45). By contrast, CTI’s President, Robin Bernard, stated in a 2007 affidavit that “[o]n January 1, 2001, Filtercorp contracted with DRG Marketing (hereinafter DRG), a Kentucky company located in Florence, Kentucky.” (Doc. # 1-6 at 9). Later, however, Bernard conceded that CTI has been unable to locate the document, though he stated that CTI’s former President, Don Eskes, said that CTI and DRG executed the agreement. (Doc. # 6 at 33). Whether the agreement was signed or not, DRG and CTI continued to do business with DRG operating at an RDW under the Filtercorp trade name as Filtercorp MidAmerica (FCMA). When asked about the terms of DRG’s relationship with CTI, Goble explained that “the deal was always fluid; we operated in compliance with their (CTI’s) direction. (Doc. # 58 at 28). B. The companies’ initial involvement with Wendy’s CTI first targeted Wendy’s as a potential customer sometime between 1998 and 2000 after hiring an employee, Rick Gibson, who was working for a competitor at the time and was familiar with the Wendy’s and McDonald’s accounts. (Docs. # 7 at 14-15; 97-3 ¶ 5). CTI was unable to secure the account at this time, so it terminated Gibson and shifted its focus away from marketing to the largest national chains (e.g., McDonald’s and Burger King). (Doc. # 7 at 16). CTI continued to work on Wendy’s “to a degree” because of the investment it had already made toward securing it as a customer. (Doc. # 7 at 16). In the early 2000s, Robin Bernard showed Goble a product and “said we need to take this into Wendy’s.” (Doc. # 58 at 47). About that time, Goble reached out to Mike Landis, who served as a liaison between operations and research and development at Wendy’s. (Docs. # 6 at 12; 97-3 ¶¶ 2, 6). According to Landis, Goble was the first CTI representative who had contacted him for some time after his initial interaction with Gibson. (Doc. # 97-3 ¶¶ 5, 6). Landis stated that from that point until Wendy’s ultimate acceptance of CTI’s product, Goble and Goble, Jr. (Goble’s son and DRG’s Filtereorp product specialist) “worked exceptionally hard to sell Wendy’s a filter pad product.” (Doc. # 97-3 ¶ 7). By July 2003, DRG’s efforts began to show dividends as Landis agreed to test Filtercorp’s product, even though the product was not a high priority of Wendy’s executives at the time. (Docs. # 6 at 14; 97-3). The field tests were conducted in several Northern Kentucky Wendy’s locations and supervised by Goble, Jr. (Docs. # 58 at 55-56; 63 at 9). The testing involved considerable effort on the part of DRG, as detailed in a letter from Robin Bernard to Mike Landis recommending a nine-step test implementation and evaluation program. (Doc. #97-3 at 6-8). As Landis documented in a later email, these tests lasted for over two-and-a-half years and yielded “positive results,” which led to expanded testing in June and July 2006. (Docs. # 58 at 55; 58-5). C. Plaintiff alleges that the “initial terms of the Wendy’s deal” were laid out in a September 2003 email and subsequently supplemented According to Plaintiff, it was shortly after Wendy’s began testing Filtercorp’s filter in July 2003 that CTI “formed the initial terms of the Wendy’s deal.” (Doc. # 97-1 at 7). This came in the form of an email from Robin Bernard to all the RDWs on September 2, 2003, which provided “the notes and minutes of the [2003 Mid-Year] Council Meeting.” (Doc. # 69-14). In the email, Bernard explained that the “National Account Program” would be structured as follows: Basic split; 40% Distribution Region, 40% Specifying territory, 20% Destination territory. Distribution Region will receive a $5.00 per box minimum or 10% gross margin whichever is greater on pallet quantity shipments. The paragraph concluded with the qualification, however, that “payout is determined by the final negotiated price and gross margin available on a case by case basis for each national account.” (Doc. # 69-14). Sometime in the summer or fall of 2004, Goble determined that another of his companies, MidAmerican Distribution, Inc., which he had started in 2001 to import shelving products to be used in the food service industry, would be a more effective RDW than DRG, which was primarily a marketing and representation business. (Docs. # 58 at 18-19, 31; 58-2 at 96; 1-5 at 21-22). Accordingly, Goble shifted CTI’s business with DRG to MidAmerican. (Doc. # 58 at 31). He communicated the change to CTI verbally, “and there didn’t seem to be a problem with that at all.” (Doc. # 58 at 33). CTI’s President, Robin Bernard, has stated that CTI never executed a contract with MidAmerican and “DRG never requested assignment of its rights to MidAmerican Distribution Inc[.] and Filtercorp never authorized assignment.” (Docs. # 1-6 at 10; 6 at 4). Robin Bernard sent an email to Goble nearly a year later, in July 2004, that Plaintiff contends “reinforc[ed] the initial terms set out in the previous year.” (Doc. # 97-1 at 7). The email explained that “[t]here are modifications to the earlier financial profiles we discussed through the earlier months” because “[q]uoting Wendy’s a delivered price complicated the quotations.” (Doc. # 66-7 at 37). It continued on to state that “[t]he purpose for creating this final financial model below for MidAmerican & the other 3 RDW’s is to take into consideration any information that affects costs before publicizing final price sheets. Please look at the MidAmerica model below:” (Doc. # 66-7 at 37). The email detailed: Specifically, we were anticipating a $5.00 per carton margin for each RDW — on a weighted basis MidAmerica will now enjoy a $6.75 gross sales in the [sic] both the MidAmerica & Northeast Regions in the final model. This is the good news — the bad news is: in the other RDW’s the only way Filtercorp could provide a gross sales margin of $5.00 per carton was to reduce the specification fee to $2.00 per carton. A month later, in August 2004, Bernard sent Goble an email with a “Revised Price Performa” that showed MidAmerican receiving an average net margin of $6.72 for 30-count boxes and $11.49 for 60-count boxes. (Doc. # 58-17). Plaintiff contends that by mid-2004 it was providing valuable services to Defendant CTI. First, a MidAmerican employee learned what CTI’s competitor was charging Wendy’s, and provided that information to CTI. (Doc. # 6 at 15). Second, as the July 2003 testing was reaching its first year anniversary, Goble continued to meet with his contact at Wendy’s, Mike Landis, and believed things were going well. (Docs. # 6-7; 6-8; 97-3 ¶¶ 8, 10, 11). There is no evidence that Plaintiff had requested or received any compensation from CTI at this point, because CTI had not yet contracted with Wendy’s. D. The Wendy’s deal appears imminent and a new distribution agreement between CTI and the RDWs is discussed In February 2006, more than two-and-a-half years after the first tests began in the Northern Kentucky locations, Wendy’s was ready to expand testing into Cincinnati. (Doc. # 7-7). During this expanded testing phase, Wendy’s expected CTI to “show [it] exactly how [CTI] would do an install and train the stores at both the store and district level.” (Doc. # 7-7). At a planning meeting on April 5, 2006 attended by Goble, Jr. and Robin Bernard, it was decided that fifty Cincinnati-area Wendy’s would test the product for 30-45 days. (Doc. # 6-11). The plan also called for Goble, Jr. to “be CTI’s point on this training/roll out.” (Doc. # 6-11). Less than a week after the meeting, Robin Bernard announced to all the RDWs that “Wendy’s first official product rollout will be completed by May 1 [2006]. A special thanks to Dave Goble and Dave Goble, Jr. for the countless hours of work they contributed to make this project successful.” (Doc. # 58-9). Subsequent events proved this announcement premature. Later in April 2006, Bernard sent another email to the RDW owners attributing the Wendy’s “success story” to Goble, but informing them that the additional revenue Wendy’s would produce “does not relieve each Regional Market’s responsibility & obligation to meet its budget commitments.” (Doc. # 58-13). To the contrary, “Wendy’s revenue is a separate line item and will not be credited towards each region’s revenue/profit budgets.” (Doc. # 58-13). This meant that although the RDWs would receive their specified revenue for sales to Wendy’s, CTI would not consider those sales in determining whether the RDWs met their sales quotas. (Doc. # 58 at 89-91). As Robin Bernard later acknowledged, the April 2006 email was the first time that CTI informed the RDWs that the Wendy’s account would be independent of their general budget. (Doc. # 6 at 24). Bernard also explained, however, that it was his prerogative to set such a policy. (Doc. # 66-6 at 14). Laura Bernard further explained that the change had “no effect on Dave Goble” because sales quotas were set annually; if Wendy’s was counted toward each RDW’s quota, CTI would simply increase the quota to account for the dramatic increase in business. (Doc. # 66-12 at 14). Moreover, including Wendy’s sales would have “skewed” all the RDWs’ numbers, because it was such a large business. (Doc. # 7 at 27). About the same time, in late May 2006, the RDWs collectively approached Robin Bernard to negotiate a new distribution agreement. In an email to Bernard, the RDWs’ representative (Dave Kuelpman, the owner of Filtercorp Far West) listed a series of outdated or inaccurate provisions from the “original contract” (presumably the 2001 agreement). (Doc. # 58-16). The RDWs also noted that “our 5 year contract expired as of the end of 2005 and we are currently in a rolling 1 year program.” (Doc. #58-16 at 2). Bernard agreed that “there have been too many changes over the years, and too many dollars involved between the parties to not be prudent with the legal structure of our relationship(s)” and suggested that the parties meet in August 2006 to discuss a new agreement. (Doc. # 58-16). Meanwhile, Goble and Bernard had apparently discussed the relationship between their two companies and Wendy’s pricing plans during a trip to Prague. Following the trip, Goble emailed Bernard on May 19, 2006, thanking him for opportunity to discuss “how we have gotten to this point and where we are going.” (Doc. # 58-14). Goble explained to Bernard: It helps me allot [sic] when you commit that any changes to the Wendy’s program will be done only after you and I have gotten together and looked at the numbers and determined what is right. Also that what we have in place will stay in place until we have that meeting. I will forward to you a copy of the letter outlining both the $5 per box and the $2 spec fee for the Wendy’s pads. Later, Bernard acknowledged that he did agree to “spec fees for the entire country” though he “didn’t agree necessarily to [the] numbers” that Goble had proposed. (Doc. # 6 at 25). To the contrary, Bernard testified that his message to Goble was that “at the end of the day, when the final pricing was done and the final costs were done, then we would set those margins. But $5 per box was minimum.” (Doc. # 6 at 25). In his 2010 deposition, Bernard confirmed that his response was, “David, let’s wait until the final deal is put together, [b]ut yes, we will work with you.” (Doc. # 66-6 at 15). Goble’s motivation was just the opposite; he wanted something more concrete: “I wanted something coming back to me in writing that said this was the deal, because the deals have always been fluid.” (Doc. # 58 at 95). A few months later, in August 2006, CTI and the RDWs met for their biannual Council Meeting. The minutes to the meeting reveal that the parties discussed a new distribution agreement, as well as a “Wendy’s Distribution Model.” (Doc. # 59-2). Plaintiff contends that at this meeting, CTI “agreed to a 10-year term and price.” (Doc. # 97-1 at 16). The minutes, however, reflect far less certainty. Under the heading “New Distribution Agreement,” the minutes stated that “[t]he new distribution draft agreement is targeted to be available for review September 1st” with the goal of having “all new agreements in place by January 1st 2007.” (Doc. # 59-2 at 1). The minutes then outlined the six “primary topics discussed during the meeting,” one of which was that “each Principal will be offered a term of 10 years to commence January 1 2007.” (Doc. # 59-2). The “To Do” section of the minutes tasked Bernard with having “first draft[s] to principals by September 1st for review & comment.” (Doc. # 59-2 at 1). The “National Accounts” section of the minutes provided pricing, but the “To Do” section required “Robin (Bernard) to develop price sheets for each Nat. Acct. with fee structure to distribution.” (Doc. # 59-2 at 2). The second heading was “Wendy’s Distribution Model,” and the minutes explained: The Wendy’s distribution model is based on Wendy’s granting Filtercorp market share in FCFW, FCMA & FCSW regions. Each Distributor will import containers from either HOBRA (CRS’s manufacturing mill in the Czech Republic) or Columbia mills and redistribute to authorized Wendy’s distributors in the region. All Filtercorp price quotes have been “delivered” to authorized DC(s) (distribution center). The following is Filtercorp’s basic distribution model; FCMA — $7.10 per ctn. discount FCSE — $5.00 per ctn. discount FCSW — $5.25 per ctn. discount FCFW — $5.50 per ctn. discount The additional $2.00 per ctn. discount to FCMA represents the Specification Credit. Destination Credit is not applicable in this model. The “To Do” section required “Robin to finalize Wendy’s negotiation and distribution Performa for each region.” (Doc. # 59-2 at 2). In discussing this document, Laura Bernard said that the numbers changed each year because the deal “was fluid.” (Doc. # 7 at 34). Robin Bernard, too, emphasized that the minutes embodied what was discussed at the meeting, but it was not “a policy document.” (Doc. # 6 at 28). He emphasized that the ten-year term was merely “proposed.” (Doc. # 6 at 28). On August 28, 2006, before any draft agreement had been circulated, Goble and Bernard had a conversation, after which Bernard emailed Goble in an attempt to “clarify matters between FCMA (MidAmerican) & FC (Filtercorp/CTI).” (Doc. # 58-21). Specifically regarding the Wendy’s account, Bernard stated that “we have had multiple discussions over the past couple of years as this account’s business proposition has modified.” Bernard estimated that “[t]he distribution Performa will be available for your review and approval no later than Wednesday of this week. I think you will find it embodies the spirit of our many conversations these past couple of years.” (Doc. # 58-21). Later, Bernard explained that in that email he was “trying to tell David (Goble) that we don’t have a deal yet” but that “we’re getting pretty close.” (Doc. # 66-6 at 21-22). In the same email, Bernard updated Goble on the progress of a distribution agreement that CTI would execute with all the RDWs: “I am attempting to deliver a draft contract to each [RDW] principal for review & comment by months end. As stated during the Muirfield meeting, the replacement distribution agreement will be offered on a 10-year term.” (Doc. # 58-21). Goble expressed his desire to “have all agreements signed and in-force by years end. We look forward to your personal comments as the draft agreement is formalized later this year.” (Doc. # 58-21). E. Goble seeks “clarity” on the companies’ relationship, outside of formal negotiations regarding the new distribution agreement Explaining that he “did not get the clarity [he] was looking for,” Goble responded the next day, August 29, 2006, with six specific questions. (Doc. # 58-22 at 1). First, Goble asked: “Are we under a ten year agreement today?” (Doc. # 58-21). Goble later explained that this question referred not to a Wendy’s agreement specifically, but to all business that MidAmerican had with CTI. (Doc. # 58-2 at 14). Bernard replied: No — FCMA (MidAmerican) is operating under the terms of the original agreement through December 31 2006. The new distribution agreement is in draft form. The initial draft will be delivered to your office as soon as possible. After its approval and execution, FCMA & CTI will operate under that agreement. As we discussed in Muirfield, it is CTI’s commitment to its Filtercorp distribution principles, including; FCMA, FCSE, FCSW & FCFA, the term for the new agreement will be 10 years. I anticipate we will execute this agreement prior to the end of the year; however, the effective date will be January 1, 2007 as discussed. Goble later stated that based on Bernard’s response, at this point, “we were operating under a ten-year agreement in our minds.” (Doc. # 58-1 at 34). Goble also asked: “What is the program for the Wendy’s distribution and spec credits for the field? You mentioned we would have this by Wednesday, but a heads up would help.” (Doc. # 58-22). Bernard responded: No problem — basically, the deal is a $5.00 discount to FCSW & FCFW & a $7.00 discount to FCMA. FCMA will receive a $7.00 discount for the NE, or a $2.00 Spec fee depending on CTI’s distribution plan for this market, and a $2.00 spec fee for FOSE. A $.040-$0.50 marketing fee is in the Performa. The $1.25 destination fee is eliminated. Issues remaining begin with ensuring the model works on a delivered basis to the DC for all markets, thus, the delay. In addition, another complication exists between FCSW & FCFW regarding the Denver market — it must ship from Dallas to work; however, it is in FCFW’s market — so, we are working on a compensation program between the two RDWs. Until distribution is finalized and published, this model is the backbone of the program consistent with the 2004 worksheets. Bernard closed the email with his “sincere hope ... that somewhere in the neighborhood of $325,000 annual gross profit prior to additional market expansion will help feed your family.” (Doc. # 58-22). Bernard later characterized the $325,000 reference as “a snide little comment back to him” because that was Goble’s gross margin “prior to Wendy’s .... he had been getting that money for ten years.” (Doc. # 6 at 31). Goble responded to Bernard’s email with: “Now a great big thanks for your commitment, although I never thought that it was different, I just wanted to feel positive about it.” (Doc. # 58-22). When asked at his deposition whether, following these emails, “the deal with Wendy’s [was] still fluid,” Goble responded that “[i]t was a lot less fluid, based on this letter.” (Doc. # 58-1 at 38). However, Goble also acknowledged that the Wendy’s business was far from certain in August 2006, because “[i]t had completely stalled in the [Wendy’s] supply chain.” (Doc. # 58-1 at 36). Goble had concluded that it “[j]ust didn’t seem to be a high priority” for Wendy’s, but nonetheless “didn’t understand why it wasn’t going forward.” (Doc. # 58-1 at 36). F. Wendy’s approves CTI as an official supplier while CTI and its RDWs continue to negotiate a new distribution agreement In October 2006, Mike Landis recommended final approval of CTI’s filter pad. (Doc. # 6-15). In an email to a member of Wendy’s operations administration, Landis overviewed the years of satisfactory testing in Northern Kentucky, Cincinnati, and West Virginia. (Doc. # 6-16). Landis also identified Goble as “[t]he point person” and recognized that CTI had invested “nearly four years in an effort to become a Wendy’s approved supplier” and is “determined to prove that service will not be an issue.” (Doc. # 6-16). On December 12, 2006, Bernard announced that Wendy’s had formally approved CTI as a supplier. (Doc. # 6-18). Just a week before Wendy’s final approval, Robin Bernard distributed a draft “Distributor Agreement” to the RDWs for comment. (Doc. # 59-6). Bernard highlighted some areas of concern, specifically the fact that the “National Accounts & definitions on the schedules are open for modification,” as well as a termination without cause provision. (Doc. # 59-6). Accordingly, Bernard encouraged the RDWs to review the proposed agreement carefully and expressed his hope that the agreement could be completed in time for a “January 1st [2007] effective date.” (Doc. # 59-6). On January 3, 2007, Dave Kuelpman, the RDWs’ representative, circulated among the RDWs a proposed letter to Robin Bernard requesting a series of revisions to the draft distribution agreement. (Doc. # 59-9). Kuelpman’s proposed letter was an attempt to incorporate issues raised in a conference call (and subsequent emails) between the RDWs that took place in response to Bernard’s proposed distribution agreement. (Doc. # 59-9). Goble later explained that the RDWs did not agree on how to respond to Bernard’s proposed agreement. In particular, Goble was concerned about whether Wendy’s would be a national account and, if so, how that would affect MidAmerican’s spec credit, i.e., MidAmerican’s commission on Wendy’s orders. (Doc. # 58-1 at 76). Because MidAmerican was the only RDW that would receive spec credit, the others “didn’t care” about the issue. (Doc. # 58-1 at 76). Though Kuelpman’s email solicited “approval or changes,” from the RDWs, Goble was unable to recall whether he responded. (Doc. # 58-1 at 79). At his deposition, Goble explained that he was not concerned about the proposed contract because MidAmerican and CTI were operating under the terms of Bernard’s August 30, 2006 email — “[t]he one that said we would make 325,000 a year if Wendy’s bought the products, if we closed the deal.” (Doc. # 58-1 at 79) (referencing Doc. # 58-22). On January 27, 2007 Bernard responded with a revised proposed agreement that incorporated some, but not all, of the RDWs’ requests. Kuelpman characterized the concessions to the RDWs as “[s]everal key wins.” (Doc. # 59-13 at 1). Goble, however, was far from satisfied with the progress, calling CTI’s concession that it would pay $1 per carton severance fee in case of termination “insignificant compensation for services rendered.” (Doc. # 58-2 at 5). Goble’s concerns with the proposed agreement were driven by his belief that the Wendy’s agreement, which he believed was formed by the August 30, 2006 email from Bernard, would have been superseded “without special exemption” by a new agreement. (Doc. # 58-2 at 7). Goble renewed his concerns at CTI’s annual meeting in Anaheim, which took place a few days later, from January 30 until February 1, 2007. (Docs. # 6-20; 58-2 at 6). When asked to characterize the tenor of the discussion, Goble responded that he didn’t “want to say [it was] argumentative, but there was not complete agreement on this (the new agreement) at all.” (Doc. # 58-2 at 6). Nonetheless, on February 1, 2007, Goble emailed Laura and Robin Bernard thanking them “for confirming the program for all the RDW’s last evening at the KLH office and on'the course today, that being a $2 fee for a box of 30 pads and $4 fee [for] a box of 60 pads credited monthly for purchases made by Far West, Southwest and in the future Southeast (the other RDWs). The distribution discount will be $5 for a 30 count and $10 for a 60.” (Doc. # 59-14). Goble said that he sent this email to confirm a conversation they had had in Anaheim, and believed he needed to do so because the situation was still fluid at this point. (Doc. # 58-2 at 17). At his deposition Bernard confirmed that these numbers were “close” to the ultimate deal, but that he later learned that Goble wanted “a specification fee also for his own region, and that has never been the deal in our 20 years.” (Doc. # 66-6 at 30). Bernard contended that “[i]t was never that way, and I did not realize that he had a problem with that, really, until the deposition.” (Doc. # 66-6 at 30). Robin Bernard announced to the RDWs on February 9, 2007 that beginning June 9, 2007, CTI would no longer accept American Express for Wendy’s orders. (Doc. # 59-15). Bernard acknowledged that at the Anaheim meeting he had “declared [that] Filtercorp would not change its Terms on the Wendy’s business until the September Meeting,” but after spending a week reviewing costs with the manufacturing partners found himself “in the uncomfortable position of reversing [his] statement.” (Doc. # 59-15). Goble explained that this change in terms illustrated the fluid nature of MidAmerican’s relationship with CTI: “You know, we were operating under an agreement and then it changes.” (Doc. # 58-2 at 19). An email on February 20, 2007, however, revealed that Goble and Bernard had discussed the American Express issue and reached an alternate arrangement. According to the email, beginning June 9, 2007, CTI would accept 60-day payment terms for Wendy’s orders, instead of the normal 45-day payment terms. (Doc. # 59-16). On the same day that Bernard informed the RDWs that American Express would no longer be accepted, Bernard emailed Goble to “to ask [for his] help” by considering CTI’s “request to voluntarily reduce [MidAmerican’s] specification fee.” (Doc. # 59-17). Bernard explained that two pressures had reduced CTI’s anticipated margins. First, CTI’s price quote to Wendy’s had decreased since the first quote in 2003 and, second, its manufacturers’ costs had risen. (Doc. # 59-17). Goble agreed to voluntarily reduce MidAmerican’s spec fee. (Docs. # 66-6 at 35). Bernard later pointed to this email as probably when “the final numbers are coming out. That’s the final deal.... And that was why we always said, let’s wait and see how the numbers come out.” (Doc. # 6 at 34). G. All RDWs, except MidAmerican, sign the new distribution agreement On February 21, 2007, Bernard distributed the final draft of the new distribution agreement. (Doc. # 59-18). Bernard asked each RDW to execute an original copy of the agreement and return it to CTI. The agreement was to last ten years, commencing January 1, 2007. (Doc. # 59-18 at 2). “Having confidence all the RDW’s concerns were addressed, [Kuelpman, on behalf of Filtercorp Far West] executed two original agreements and returned one original to CTI.” (Doc. # 74-1 at 2). As the representative of the RDWs, Kuelpman stated that he “heard no further concerns from any of the RDW’s after the final draft was sent and received.” (Doc. # 74-1 at 2). Goble, on behalf of Plaintiff MidAmerican, however, did not sign the agreement because the concerns he had expressed all along remained unaddressed in the new distribution agreement. (Doc. # 58-2 at 25). H. The RDWs agree to allow CTI to ship pads directly to Wendy’s while CTI recovers losses from disastrous rollout As Bernard was distributing the final draft of the new distribution agreement, CTI began receiving reports from Wendy’s franchises that its first batch of filter pads — shipped during CTI’s grand roll-out — was defective. (Docs. # 7 at 39; 66-13 at 30). Goble Jr. began investigating the problem, including having the pads tested at Miami University, and determined that the defective pads were not the same as those that had been extensively tested by Wendy’s. (Docs. # 66-1 at 55; 66-5 at 11; 6-25). Apparently CTI had used filter pads manufactured by a mill in Mexico during the in-store testing phase. After formal approval from Wendy’s, however, CTI had filled part of the initial large order with pads made to the same specifications as the test pads, but manufactured in CRS’s mill in the Czech Republic. (Doc. # 59-19). CTI moved quickly to quarantine the defective product and promised to replace it at its own expense. (Doc. # 66-13 at 30-31). On March 5, 2007, Bernard updated the affected RDWs on the cause of the problem and the steps taken to address it. (Doc. # 59-19). CTI conceded that because it could not supply Wendy’s with pads manufactured by the mill in the Czech Republic, “the challenge of continuing supply with no standing inventory has been difficult at best.” (Doc. # 59-19). Accordingly, Bernard explained that CTI “has needed to expedite pallets directly to Wendy’s DC’s [distribution centers] suspending normal channel operations until it is possible to begin shipping containers again to each RDW.” (Doc. # 59-19). Bernard continued: Filtercorp’s commitment to ensure uninterrupted supply and complete recall of any out-of-spec product has put huge financial strain on the Company. As a result of the recall, quarantine/re-work and expedited inventory, not only has any profit entirely evaporated from the program, but it is actually costing the Company many thousands of dollars. Filtercorp requests that each RDW authorize the Company to invoice on a direct basis until the container program restarts. It is anticipated each RDW will begin receiving merchandisable product in container shipments by the end of April first part of May. At that time direct shipping will suspend as each RDW beings to fill and invoice orders again. Goble later explained that by cutting the RDWs out of the process, and shipping directly to Wendy’s distribution centers, CTI would not have “to pay out a $5 distribution fee per box or $2 spec fee per box” which amounted to “a tremendous savings for them.” (Doc. # 58-2 at 33-34). Though the RDWs knew that they were sacrificing additional revenue, they agreed to the change because, as Goble explained, everyone “understood the sense of urgency to get working product to the customers” and that “[t]here was no other avenue to take.” (Docs. # 58-2 at 28-29; 74-1 at 2). On April 17, 2007 Bernard sent the RDWs another update on the Wendy’s rollout failure. The email attached a letter from Christian Rusch, a member of CRS’s board of directors (the 97% owner of CTI), which tallied the Wendy’s rollout losses at over $800,000 — approximately $581,000 was CTI’s losses and around $250,000 was losses to CRS’s Czech Republic factory. (Doc. # 59-20 at 3). The letter also explained that CTI’s “extraordinary” $600,000 line of credit with CRS was fully drawn and would not be extended. (Doc. # 59-20 at 3). Rusch closed by asking Bernard to develop a plan to bring CTI back to profitability and expected “severe actions, whether popular or not, to lead the company out of this crisis.” (Doc. # 59-20 at 3). Bernard told the RDWs that his answer for Rusch was that CTI would “need to continue shipping directly to Wendy’s through the end of this year (2007) to recover approximately $800,000 of losses suffered during roll-out.” (Doc. # 59-20 at 2). At the same time, Bernard reaffirmed CTI’s “longstanding policy” to “distribute its products through RDW partners” and gave his “word that this policy will also apply to the Wendy’s business once Filtercorp has recovered its losses for this business.” (Doc. # 59-20 at 2). Goble did not question Bernard about his factual assertion or his pledge to return the product to the RDWs during the conference call that took place a few days later. (Doc. # 58-2 at 33). Instead, during the conference call all the RDWs— including Goble on behalf of MidAmerican — agreed to allow CTI to bypass the RDWs and ship directly to Wendy’s distribution centers in an attempt to offset the losses CTI incurred during the rollout failure. (Doc. # 74-1 at 3). On July 12, 2007, Bernard emailed the RDWs CTI’s six-month revenue report. In that email, Bernard formally announced that “Wendy’s distribution will commence through respective Regional partners (RDWs) beginning January (2008) regardless of Filtercorp’s year-end position of recovery from this year’s losses in this business.” (Doc. # 59-22). I. First overt signs of strain between CTI and MidAmerican Five days later, Goble emailed Bernard and asked how the Wendy’s program was progressing and when Bernard thought it would return to the RDWs. (Doc. # 59-23). Goble explained the reason for this email was that he thought CTI may have recovered its losses more quickly than anticipated and, if so, that it would incorporate the RDWs sooner than anticipated. (Doc. # 58-2 at 43-44). But in response Bernard quoted his July 12, 2007 revenue report (circulated five days earlier) which formally announced that distribution through the RDWs would commence in January 2008, regardless of CTI’s year-end position. (Doc. # 59-23). Bernard confirmed to Goble that CTI was committed to this plan, even though it would not recover its total losses until the end of the first or second quarter of 2008. (Doc. # 59-23). Bernard’s response also expressed concern that MidAmerican was not meeting its obligation “to field a professional salesman in the territory.” (Doc. # 59-23). Bernard said CTI would be “satisfied if you follow through with recruiting an appropriate individual to work the territory.” (Doc. # 59-23). Goble later contended that he did not respond because Bernard “knew” that Goble, Jr. was MidAmerican’s Filtercorp specialist. (Doc. # 58-2 at 42, 45). After all, Goble, Jr. had been recognized for his assistance in discovering and addressing the problem that had led to the Wendy’s rollout failure. (Doc. # 58-2 at 45-46). Bernard later explained that although Goble, Jr. “did a very good job on Wendy’s .... that business did not take all of his time.... David’s job was not as a field specialist.” (Doc. # 66-6 at 40). CTI’s CFO, Laura Bernard, however, acknowledged that the Gobles were field specialists. (Doc. # 66-13 at 5). There was also an email exchange on August 1, 2007 in which Goble referenced an “agreement” to pay MidAmerican $1 a box spec fee, i.e., $1 a box commission, while distribution was being done outside the RDWs. (Doc. # 59-24). Goble explained in the email that Wendy’s was selling fewer cartons than anticipated, which cut into MidAmerican’s expected revenues. (Doc. # 59-24). At his deposition, Goble acknowledged, however, that he never accepted a deal for a $1 spec fee; instead, the $1 spec fee was merely proposed by Kuelpman during a conference call as a way to compensate MidAmerican for its efforts while CTI was distributing directly to Wendy’s. (Doc. # 58-2 at 48-49). Goble apparently received checks from CTI for the $1 spec fee, but never cashed them because he maintained throughout that MidAmerican was entitled to a $2 spec fee. (Doc. # 58-2 at 49-50). Other indications of the strains in CTI’s and MidAmerican’s relationship surfaced in an email Bernard sent Goble on August 9, 2007 wherein he expressed concerns about their personal and business relationships. (Doc. # 59-25). Bernard also said that he had consulted an attorney with thoughts of informing Goble that MidAmerican was in breach of its obligation to have a Filtercorp field specialist on staff. (Doc. # 59-25). Instead, Bernard merely warned Goble that he would “no longer tolerate an RDW not having a Field Specialist.” (Doc. # 59-25). Bernard also noted that MidAmerican had not executed the new distribution agreement. “If you want to stay in the deal,” Bernard concluded, “convince me.” (Doc. # 59-25). Goble responded the same day, stating that “we want to be in the deal, period.” (Doc. # 59-25). Goble acknowledged that “from our perspective we maybe have not been treated as others in the (RDW) group have been” but concluded that “on the whole” MidAmerican “feel[s] good about Filtercorp.” (Doc. # 59-25). Regarding the field specialist, Goble explained that over the past three years, MidAmerican had “Bob Driscoll, Tom Phill[i]ps and David [Goble] Jr working the line and made an offer to a sales person last week that was turned down.” (Doc. # 59-25). Nonetheless, Goble assured Bernard that MidAmerican would “continue to look to find the right person and will hire him as quickly as possible.” (Doc. # 59-25). Goble later explained that this promise referred to his longstanding decision — previously communicated to Bernard — to hire two Filtercorp field specialists when MidAmerican got the Wendy’s business. (Doc. # 58-2 at 54). Finally, Goble told Bernard that the “only part” of the new distribution agreement that he thought was unfair was the requirement to arbitrate grievances in Seattle. (Doc. # 59-25). The next day, August 10, 2007, Bernard sent a letter expressing his concern regarding MidAmerican’s marketing and sales on behalf of CTI, and observing that MidAmerican had failed to maintain a Filtercorp product specialist as required by the Licensing and Distribution Agreement. (Doc. # 59-26). Accordingly, Bernard gave MidAmerican notice that it was “in breach of the Agreement (Section 17.2.3)” and had thirty days to cure the breach by hiring a product specialist and submitting a “sales and marketing plan which substantiates your desire to grow Filtercorp sales in your region.” (Doc. # 59-26). Goble has testified that he was and remains unsure of what agreement Bernard referred to. (Docs. # 58-2 at 64; 63 at 51-52). Instead, Goble believed that the parties were operating under the agreements that had been established via email. (Doc. # 58-2 at 64). On September 4, 2007, Goble reported that MidAmerican had hired a Filtercorp product specialist who would be starting within the month. (Doc. # 59-28). On September 18, 2007, Goble informed Bernard that he would have a business plan ready to give him the following day, when they met in Chicago for the biannual Council Meeting. (Docs. # 59-29; 58-2 at 76). Goble and Bernard met for dinner in Chicago, during which Goble presented Bernard with a six-month business plan and the two discussed how their companies would move forward. (Doc. # 66-6 at 43). After dinner, Goble slipped Bernard a letter, which Bernard did not review until he returned home from Chicago after the Council Meeting. (Doc. # 66-6 at 43). The letter from Goble, dated September 18, 2007, asked Bernard “get going on a new agreement” which will void “anything in the past.” (Docs. # 58-2 at 77; 59-30). The letter communicated Goble’s “strong belief’ that CTI would not have the Wendy’s account “if it wasn’t for the efforts of my company.” (Doc. # 59-30). “Therefore,” Goble continued, “I want you to agree to pay me” $311,000 for the product CTI delivered to Wendy’s from February 1, 2007 through December 31, 2007.” (Doc. # 59-30). Goble further requested that CTI “compensate MidAmerican Distribution a minimum of $324,000 annually for 10 years for distributing the product to existing Wendy’s approved partners as was in place on February 1, 2007.” (Doc. # 59-30). Goble continued on, stating that “[t]his would be payable in equal monthly installments, and due and owing even if the[ ] distribution changes from MidAmerican to other regions, and regardless of whether MidAmerican, Filtercorp, or any other party handles distribution of the Filtrox product designed for Wendy’s.” (Doc. # 59-30). Goble closed: “By your signature below, you agree and bind Clarification Technologies to the terms listed above.” (Doc. # 59-30). Instead of agreeing, at the top of the letter is a handwritten notation, “Rejected 9/25/07 Robin Bernard.” (Doc. # 59-30). On September 25, 2007 — the same day that Bernard rejected Goble’s new proposal — Bernard emailed Goble his summary of the dinner meeting they had had in Chicago nearly a month earlier. (Doc. # 59-31). For Bernard, “the most important result from our meeting was the shared interest that MidAmerica remains in the Filtercorp program.” (Doc. # 59-31). Bernard viewed Goble’s decision to hire a qualified regional sales manager as an act of “good faith,” but Bernard renewed CTI’s demand that to fully cure its breach, MidAmerican must enact an “approved sales plan for the region during the next six (6) months.” (Doc. # 59-31). Bernard also informed Goble that his “request to renegotiate language or intent in the Distribution Agreement adopted by the Council last January 2007” was rejected because the agreement had been finally adopted by CTI and the RDWs in February 2007. (Doc. # 59-31). Further, MidAmerican’s “request to isolate a separate agreement defining payment of fees associated with Wendy’s business to MidAmerica is rejected.” Finally, “[pjayment of fees to MidAmerica from the Wendy’s business has already been defined in practice. This defined payment plan will reinstate January 1 2008 as we discussed.” (Doc. # 59-31). On October 2, 2007, Bernard emailed the RDWs and informed them that, as previously promised, they would receive the Wendy’s business beginning January 1, 2008. (Doc. # 59-32). Bernard set out a schedule whereby CTI would ship filter pads to MidAmerican on November 7, December 10, and December 21, 2007; then, beginning January 1, 2008, MidAmerican “will begin shipping Wendy’s product to designated authorized Wendy’s distribution centers on its own account.” (Doc. # 59-32). In short, CTI was “transferring the Wendy’s distribution business back to its RDWs partners as promised last spring.” (Doc. 59-32). However, the relationship between MidAmerican and CTI concluded before the scheduled shipping took place. The other affected RDWs confirmed that CTI shipped on schedule and returned the Wendy’s business as promised. (Docs. # 74-1; 74-2; 74-3). The same day that Bernard informed the RDWs that they would be receiving the Wendy’s business, Bernard emailed Goble a summary of a telephone conversation the two had had earlier that day, and invited Goble to correct any inaccuracies. (Doc. # 59-33). According to Bernard’s email, he first asked why MidAmerican had not executed the new distribution agreement. (Doc. # 59-33). Goble apparently responded that he did not feel that the agreement was in the best interest of MidAmerican, absent a separate agreement governing the Wendy’s distribution business. (Doc. # 59-33). Bernard responded by quoting his September 25, 2007 email, which expressly rejected a separate Wendy’s agreement. (Doc. # 59-33). Bernard closed by stating CTI’s position: “Filtercorp must have an executed ‘Distributor Agreement’ in its possession by not later than October 15th of this month. If it has not received FCMA’s executed agreement by this date, the HOBRA-Skolnik shipments scheduled to ship to FCMA Florence, KY will be diverted to Filter-corp’s Chicago warehouse until this dispute is resolved.” (Doc. # 59-33). J. MidAmerican files suit and CTI terminates their relationship On October 17, 2007, MidAmerican filed suit against CTI in Boone Circuit Court. (Doc. # 1-6 at 32). CTI had not yet terminated MidAmerican when it filed suit. But, on October 26, 2007, CTI’s attorney notified Plaintiff that it was terminated for failure to satisfy the minimum sales requirements, as set out in January 2001 Licensing and Distribution Agreement between DRG and CTI. (Doc. # 74-4). CTI executed a distribution agreement with a new RDW, Zink Marketing, on December 26, 2007, which now does business under the Filtercorp trade name as Filtercorp MidAmerica. (Doc. # 74-6). The new RDW began sales and distribution to Wendy’s in 2008. (Doc. # 74-6). K. Procedural Posture After Plaintiff filed suit in Boone Circuit Court, Defendant CTI moved to dismiss for failure to state a claim upon which relief can be granted, failure to join an indispensable party, and on grounds that Plaintiff was not the real party in interest. In early 2008, the Boone Circuit Court construed Defendant’s motion to dismiss as a premature motion for summary judgment and denied it. Shortly thereafter, Defendant moved for reconsideration, arguing that it should be dismissed for lack of personal jurisdiction. In May 2008, the Boone Circuit Court again denied Defendant’s motion. In May 2009, Plaintiff filed an Amended Complaint, which alleged that CRS Holdings, AG, a Swiss corporation that now owns 97% of CTI, is Defendant CTI’s alter ego. Shortly thereafter, CTI filed a motion for summary judgment. In June 2009, the Boone Circuit Court denied Defendant CTI’s motion for summary judgment as premature. On July 1, 2009 — nearly two years after the original Complaint was filed — Defendant CRS removed the action to this Court. (Doc. # 1). Defendant CRS then moved to dismiss for lack of personal jurisdiction. (Doc. # 5). After the motion was fully briefed, the Court conducted an oral argument in October 2009, at which time it denied Defendant’s motion. (Doc. #21). Defendant CRS next sought to bifurcate Plaintiffs breach of contract and unjust enrichment claims against CTI, from Plaintiffs alter ego claim against CRS. (Doc. # 30). CRS contended that CTI’s potential contractual liability to Plaintiff was separate and distinct from whether CRS was CTI’s alter ego. Accordingly, CRS argued that the equitable remedy of piercing the corporate veil (to reach CRS) should only be pursued if, and when, CTI was found liable on the underlying claims and was unable to a satisfy a resulting judgment. In February 2010, the Magistrate Judge denied CRS’s motion as premature, with right to renew following a period of preliminary discovery. (Doc. # 38). The Court affirmed the Magistrate Judge’s Order over CRS’s objections. (Doc. # 46). In November 2010, Defendant CRS renewed its motion to bifurcate. (Doc. # 56). This time the Magistrate Judge granted CRS’s motion (Doc. # 73), and the Court affirmed over MidAmerican’s objections. (Doc. # 93). While the bifurcation motion was pending, and on the final day of discovery, Plaintiff MidAmerican moved for leave to file a Second Amended Complaint. (Doc. # 84). Plaintiffs proposed Second Amended Complaint would have altered several factual allegations, and added a promissory estoppel claim against CTI. The Magistrate Judge denied Plaintiffs motion to amend (Doc. # 120) and the Court affirmed (Doc. # 135). II. ANALYSIS Rule 56(a) entitles a moving party to summary judgment if that party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Rule 56(c)(1) further instructs that “[a] party asserting that a fact cannot be or is genuinely disputed must support the assertion by” citing to the record or “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” In deciding a motion for summary judgment, the court must view the evidence and draw all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The “moving party bears the burden of showing the absence of any genuine issues of material fact.” Sigler v. Am. Honda Motor Co., 532 F.3d 469, 483 (6th Cir.2008). The moving party may meet this burden by demonstrating the absence of evidence concerning an essential element of the nonmovant’s claim on which it will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the movant has satisfied its burden, the nonmoving party must “do more than simply show that there is some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S.Ct. 1348, it must produce specific facts showing that a genuine issue remains. Plant v. Morton Int’l, Inc., 212 F.3d 929, 934 (6th Cir.2000). If, after reviewing the record in its entirety, a rational fact finder could not find for the nonmoving party, summary judgment should be granted. Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 349 (6th Cir.1998). Moreover, the trial court is not required to “search the entire record to establish that it is bereft of a genuine issue of material fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir.1989). Rather, “the nonmoving party has an affirmative duty to direct the court’s attention to those specific portions of the record upon which it seeks to rely to create a genuine issue of material fact.” In re Morris, 260 F.3d 654, 665 (6th Cir.2001). A. Article II of the Uniform Commercial Code does not apply Kentucky adopted Article II of the Uniform Commercial Code (UCC) effective as of July 1, 1960, codified at KRS Chapter 355.2. A & A Meek, Inc. v. Thermal Equip. Sales, Inc., 998 S.W.2d 505, 509 (Ky.Ct.App.1999). Article II of the UCC applies to “transactions in goods.” KRS 355.2-102. Defendant CTI argues that the alleged agreement is one for the sale of goods (i.e., filter pads from CTI to MidAmerican) and is therefore governed by Article II of the UCC. (Doc. #74 at 17). Plaintiff MidAmerican concedes that the alleged agreement involved the sale of goods, but contends that the “predominate purpose of their agreement was for MidAmerican to service Wendy’s, not to buy filters from CTI,” and, accordingly, is not governed by Article II. (Doc. # 97-1 at 38). For the reasons that follow, the Court agrees with Plaintiff on this point. Kentucky’s highest court has instructed that in determining the true nature of a contract, “isolated expressions in the instrument” are “not necessarily controlling.” Buttorff v. United Elec. Labs., Inc., 459 S.W.2d 581, 585 (Ky.1970). Instead, “courts will ignore apparently inconsistent language used, and look to the real nature of the agreement between the parties, what its real purpose was, and what, from the nature of the transaction, must have been in the minds of the parties.” Id. Buttorff involved a contract that required plaintiff to market and establish distributorships for a camera, and in exchange, defendant would sell plaintiff the cameras for about $500 less than their resale price. Id. at 583. In practice, however, plaintiff never took title of the cameras. Id. Instead, plaintiff forwarded orders to defendant, who shipped the cameras directly to the customers; the customers paid defendant who, in turn, remitted plaintiffs commission to him. Id. The court held that the contract was “not for the sale of goods as such but [was] a contract for personal services.” Id. at 585. Accordingly, Article II of the UCC did not apply. Id. The Kentucky Court of Appeals distinguished Buttorff in holding Article II of the UCC applicable in Leibel v. Raynor Manufacturing Company, 571 S.W.2d 640, 642-43 (Ky.Ct.App.1978) because plaintiff was not merely a commissioned salesman, but a dealer-distributor who bought and resold goods. In Leibel, the manufacturer was to sell and deliver garage doors to the distributor, who would then sell, install, and service the garage doors to customers. Id. at 641-42. The Kentucky court held that the UCC applied because “the time has come to recognize that a distributorship agreement must be recognized as an agreement for the sale of goods and subject to the provisions of Article II of the Uniform Commercial Code, which has been adopted by Kentucky.” Id. at 643. Thus, in Kentucky, “[t]he UCC applies to transactions in goods, including mixed contracts for goods and services where the predominant factor is the sale of goods.” Marley Cooling Tower Co. v. Caldwell Energy & Envtl., Inc., 280 F.Supp.2d 651, 659 (W.D.Ky.2003). As the Sixth Circuit has observed, however, “[o]ne can imagine a distributorship agreement in which the service component predominates over the goods component.” Watkins & Son Pet Supplies v. Iams Co., 254 F.3d 607, 612 (6th Cir.2001). And as Plaintiff argues, this is such a case. First, this is unlike a typical distributorship, as in Leibel, where the distributor purchases product from the manufacturer and then enters bilateral contracts with customers. Instead, Defendant CTI contracts with the customer (in this case, Wendy’s) for a certain price and quantity of goods, then sells that quantity to Plaintiff MidAmerican at a pre-arranged, discounted price. MidAmerican must then sell to the product to the customer at the price Defendant CTI arranged. Thus, unlike a typical distributorship, and more like a commission-based system, Plaintiff does not directly control its margins or volumes. Additionally, the negotiations between the parties contemplated a straight commission to MidAmerican for the products sold to Wendy’s outside its territory. That is, Plaintiff would effectively be paid for the services it rendered in securing Wendy’s as a CTI customer, even when Plaintiff would not be involved in the sale of goods. Lastly, Laura Bernard characterized Plaintiff MidAmerican’s role as far more than distributor who bought and resold Filtercorp products. When asked about MidAmerican’s role in landing Wendy’s she responded: “[D]id Dave Goble and his son assist us? Tremendously, yes. Absolutely. It was their job. They were manufacturers’ representatives.” (Doc. # 7 at 15). Laura Bernard continued on to explain that the “very specific reason” for developing the RDW program “was to have strong representation in” the major regions of the United States. (Doc. # 7 at 15). Indeed, to ensure strong representation, CTI required the RDWs to have at least one Filtercorp field specialist on staff. (Doc. #7 at 15). Robin Bernard even went so far as to call the RDWs “partners.” (Doc. # 6 at 37). Because the relationship between CTI and its RDWs is more than that of a manufacturer and distributor, the Court finds that Leibel is not controlling. Instead, as directed by Buttorff, 459 S.W.2d at 585, after “looking] to the real nature of the agreement between the parties, what its real purpose was, and what ... must have been in the minds of the parties” the Court holds that the parties’ relationship (and any alleged agreement) was predominately for services, rather than goods. Accordingly, the UCC is not applicable, and Kentucky common law governs this case. B. Plaintiffs alleged “Wendy’s Agreement” is unenforceable for indefiniteness Under Kentucky law, “[t]o prove breach of contract, the complainant must establish three things: 1) existence of a contract; 2) breach of that contract; and 3) damages flowing from the breach of contract.” Metro Louisville/Jefferson Cnty. Gov’t v. Abma, 326 S.W.3d 1, 8 (Ky.Ct.App.2009). Thus, “[t]o establish a breach of contract claim under Kentucky law, the plaintiff must show by clear and convincing evidence that an agreement existed between the parties.” Associated Warehousing, Inc. v. Banterra Corp., No. 5:08-cv-52-TBR, 2010 WL 2745981, at *2 (W.D.Ky. July 9, 2010). Of course, “[n]ot every agreement or understanding rises to the level of a legally enforceable contract.” Kovacs v. Freeman, 957 S.W.2d 251, 254 (Ky.1997). Rather, a valid contract requires “offer and acceptance, full and complete terms, and consideration.” Coleman v. Bee Line Courier Serv., Inc., 284 S.W.3d 123, 125 (Ky.2009) (quoting Cantrell Supply, Inc. v. Liberty Mut. Ins. Co., 94 S.W.3d 381, 384 (Ky.Ct.App.2002)). Though the parties vigorously dispute whether there was an offer and acceptance, the Court finds that the alleged contract did not include full and complete terms, and is therefore unenforceable for indefiniteness. Kentucky case law has firmly established that “an enforceable contract must contain definite and certain terms setting forth promises of performance to be rendered by each party.” Kovacs, 957 S.W.2d at 254 (citing Fisher v. Long, 294 Ky. 751, 172 S.W.2d 545 (1943)). The court in Quadrille Business Systems v. Kentucky Cattlemen’s Association, Inc., 242 S.W.3d 359, 364 (Ky.Ct.App.2007) explained that “[w]hile the agreement need not cover every conceivable term of the relationship, it must set forth the ‘essential terms’ of the deal.” (quoting Auto Channel Inc. v. Speedvision Network, LLC, 144 F.Supp.2d 784, 790 (W.D.Ky.2001)). Accordingly, “[w]here an agreement leaves the resolution of material terms to future negotiations, the agreement is generally unenforceable for indefiniteness unless a standard is supplied from which the court can supplant the open terms should negotiations fail.” Cinelli v. Ward, 997 S.W.2d 474, 477 (Ky.Ct.App.1998). Three cases help define the contours of Kentucky’s rule that an agreement must be sufficiently definite to be enforceable. First, in Cinelli, 997 S.W.2d at 476, the parties entered an agreement for plaintiff to loan defendants $2.65 million at a future date, evidenced by a promissory note. Pursuant to the agreement, plaintiff had the option to convert the note into stock representing 54% of the outstanding shares in defendants’ companies. Id. The agreement explicitly stated that “[t]he parties acknowledge and agree that this Agreement is a valid and binding agreement, enforceable against each of them in accordance with its terms.” Id. at 481. Subsequent negotiations revealed several disagreements which prompted defendants to notify plaintiff that negotiations were terminated. Id. at 476. Plaintiff brought suit thereafter, arguing that defendants breached the original agreement by refusing to complete the transaction. Id. The Kentucky Court of Appeals held that th