Nielsen Co. v. Success Systems, Inc. (112 F. Supp. 3d 83, 2015)

AMENDED OPINION AND ORDER

FRANK MAAS, United States Magistrate Judge.

In this diversity contract action, plaintiff The Nielsen Company (“Nielsen”) seeks to recover the damages allegedly arising out of its failed business relationship with defendant Success Systems, Inc. (“Succéss”). Nielsen had retained Success to help automate its collection of data from a statistically-representative sample of independent and small-chain' convenience stores. Nielsen’s Amended Complaint contains three claims for relief sounding in breach of contract and fraud. (ECF No. 53 (“Am. Compl”) ¶¶ 90-111). Success, in turn, has asserted fourteen counterclaims, including claims for breach of contract,-of an oral amendment, and of the duty of good faith and fair dealing, fraud, tortious inference with contract and economic advantage, trade defamation, breach of a court order, aiding and abetting the breach of a fiduciary duty, and violation of the Connecticut Unfair Trade Practices Act (“CUTPA”), Conn. Gen.Stat. § 42-110a et seq. (ECF No. 58 at 20-84 (“Countercls.”)).

The parties have cross-moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure with respect to most of the claims. For the reasons set forth below (and as I previously indicated in an Order dated March 31, 2015 (ECF No. 166)), both Nielsen’s motion, (ECF No. 123), and Success’ motion, (ECF No. 126), are granted in part and denied in part.

Success also has moved to modify a protective order that I entered on November 9, 2011, (ECF No. 33>, in,.order to be able to use information obtained in this case in connection with a proposed lawsuit in Connecticut state court against certain Nielsen employees, Nielsen opposes modification of the protective order and has moved to enjoin Success from bringing any state court claim.that would have constituted a compulsory counterclaim in this action. For the reasons set forth below, bpth those motions, (ECF Nos. 154, 158), are denied.

I. Background

A; Parties

Nielsen is a Delaware limited liability company that provides numerous services, including “a broad range of analytics and market data to the consumer packaged goods ... industry.” (ECF No. 139 (Pl.’s Stmt. of Undisputed Material Facts Pursuant to Local Civil Rule 56.1 (“Pl.’s 56.1 Stmt.”)) ¶ 1). In furtherance of this business, Nielsen collects, aggregates, and analyzes sales data from independent and small-chain convenience stores in order to produce market research reports that are licensed to various manufacturing and retail clients. (Id. ¶¶ 2-4).

Success is a Connecticut corporation that “supplies software and web-based applications” to retail stores-seeking to improve business operations. (Countercls. ¶¶ 1, 7).

B. Automation Project

1. Demand for Automation

In 2010, Nielsen was collecting, sales data manually from a pool of 1,222 convenience stores across the. United States. (Pl.’s 56.1 Stmt. ¶ 5). Nielsen used the data collected from these statistically-representative stores, selected to fill specific geographic slots (the “Original Pool”), to produce monthly market research reports. (Id. ¶¶ 6-7, 9). Because the manual collection process was inefficient, Nielsen began to explore automating its data collection from the Original Pool so that it could produce more frequent weekly research reports. (Id. ¶¶ 8, 10-11).

In the latter half of 2010, Nielsen surveyed the stores comprising the Original Pool to assess their willingness to automate their data collection mechanisms. (Id. ¶ 14). The survey sought to determine- whether the Original Pool stores were willing to automate “without any offer by Nielsen to fund the stores’ cost of automation.” (Id. ¶ 15; ECF No. 134 (Aff. of Brian Moran, sworn to on Apr. 1, 2014 (“Moran Aff.”)), Ex. 5 (“LeClair Dep. I”) at 40). Approximately one-third of the stores responding expressed some interest in automating. (Pl.’s 56.1 Stmt. ¶ 15; LeClair Dep. I at 41). Bouyed by these results, Christopher LeClair, Nielsen’s Vice President- of Professional Services, concluded that as many as fifty to seventy percent of stores might be willing to automate their,, data reporting if the costs of doing so were subsidized by Nielsen. (Pl.’s 56.1 Stmt. ¶ 16; LeClair Dep. I at 108).

2. General Services Agreement

In August 2010, Nielsen circulated a “Request For Proposal” seeking a contractor to assist the company in converting “1,222 [i]ndependent and [s]mall [c]hain convenience stores from manual inventory audit to quality scanned inventory.” (See ECF No. 137 (Aff. of Christopher LeClair, sworn to on. Mar. 29, 2014 (“LeClair Aff’”)), Ex. 1 (“RFP”) at 7). Although the RFP' for this project (the “Automation Project”) identified several distinct sources from which the contractor could recruit stores, (id.), Nielsen’s analytics department had articulated to LeClair the importance of retaining as many Original Pool stores as possible to maintain “validity and historical consistency ... from a statistical, demographic and scientific standpoint.” (LeClair Aff. ¶ 17).

Success submitted a proposal to Nielsen in response to the RFP. (See LeClair Aff. Ex. 2). Nielsen selected the Success proposal, in part, because of a preexisting business relationship between the two companies, (LeClair Aff. ¶ 69; LeClair Dep. I at 59). That relationship dated back to a February 2009 Cooperation Agreement, pursuant to which approximately thirty stores affiliated with' Success had been providing sales data to Nielsen. (Pl.’s 56.1 Stmt. ¶ 68; see ECF No. 141 (Aff. of Brian Moran, sworn to on May 2, 2014 (“Moran Aff. II)), Ex. 4 (“Cooperation Agreement”)).

In early October 2010, Nielsen and Success entered into a General Services Agreement (“GSA”) in'connection'with the Automation Project. Both parties’ contractual obligations were further delineated in an attached Statement of Work (“SOW”). (See LeClair Aff. Ex. 3(GSA) § 2.1; GSA Ex. A(SOW)). Section 2.2 of the GSA, captioned “Change in the Statement of Work,” authorized .Nielsen to “make changes ... to the [SOW],, including the right to make changes in the method or manner of performance,” but required Nielsen to provide an equitable adjustment and modify the GSA if “the change in the scope of [services significantly increase[d] or decrease[d] the cost of or the time for performance.” (Id. § 2.2). Section 12.6 of the GSA provided that the GSA could “not be modified, changed or amended, except by written agreement signed by authorized representatives of both [Nielsen and Success].” (Id. § 12.6).

The SOW expressly identified three sources from which Success could recruit stores for the Automation Project: (a) -299 stores within Success’ existing sample pre-approved by Nielsen as substitutes for Original Pool stores, also referred to as “Existing Store[s];” (b) additional stores outside of Success’ existing sample, to be “selected by Nielsen,” also referred to as “New Store[s];” and (c) a “Farm System” of approximately 5,000 stores that,Nielsen had pre-approved to “address [s]tore attrition issues.” (SOW at 1; Pl.’s 56.1 Stmt. ¶ 105). The SOW required Success to approach recruitment by (a) “[u]tiliz[ing s]tores currently within [Success’] programs — if applicable,” (b) “[u]tiliz[ing s]tores currently cooperating within Nielsen’s manual inventory audit program — if applicable,” (c) “[c]apitaliz[ing] on Existing Stores,” (d) incentivizing stores otherwise unwilling to automate, and (e) “[i]mplement[ing] New Stores within the defined segment parameters and geographical dis-persement [sic].” (SOW at 2). Prior to automating a New Store, Success was required to “[g]ain approval from Nielsen,” , with the SOW providing a mechanism for obtaining Nielsen’s consent. (Id. at 2, 6). Additionally, the SOW required Success to collect data on a weekly basis from the automated stores and provide Nielsen with “100% accurate” data. (Id. at 1-3, 10).

The SOW obligated Nielsen to provide Success with a $999,000 advance upon execution of the GSA, in anticipation of the successful automation of. 333 stores. A subsequent payment of $999,000 was contingent upon the successful automation of an additional .333 stores by December 31, 2010, and a final payment of $1,229,800 was contingent upon the successful automation of the. remaining 556 stores by January 3, 2011. Additionally, Success was entitled to receive payments after the Automation Project was completed for collecting and providing data from the automated stores on an ongoing basis. (Id. at 8-9).

3. Alleged Modifications

a. Exhaustion

Before the ink on the GSA was dry, the parties began to disagree about their respective contractual obligations. On October' 8, 201Ó, in an email challenging Nielsen’s summary of a conference call held earlier that day, Scott Tarlow, the president of Success, indicated that Success could not guarantee that stores in the Original Pool would be “chosen ovér” any alternative store if the alternative store “expressed an] ability to accept [an] offer [first].” (ECF No. 132 (Def.’s Stmt, of Undisputed Material Facts Pursuant to Local Civil Rule 56.1 (“Def.’s 56.1 Stmt.”)), Ex. 34 at 1). Tarlow explained that the Original Pool stores could not be “worked or prioritized sequentially” because .of the tight three-month time frame for the Automation Project. (Id.).

In response, LeClair expressed concern that Success’ approach did not conform to the GSA, - observing that “Nielsen ha[d] stated multiple times the importance- of [stores in the Original Pool] being converted,” and that “priority must be given to the [Original Pool].” (Id.). LeClair emphasized that giving the Original Pool stores “priority” required that Success make “every possible attempt” to have an Original Pool store say yes to converting. LeClair explained — and suggested that Tarlow had agreed — that this required “three valid attempts.” LeClair also indicated that Nielsen was willing to “put additional steps into the process to ensure these attempts.” (Id.). Additionally, according to LeClair, if the three attempts to recruit an Original Pool store were unsuccessful, Success still could not recruit simply any alternative store, but instead had to follow-a “priority order” that ranked Nielsen’s Farm System stores over other nonaligned alternative stores. (Id.).

On October 11, 2010, Tarlow requested 14,000 additional store names for Answer-Net, a telemarketing contractor that Success had retained to assist in the recruitment of stores. (Ex. 33 at 9; see Moran Aff. Ex. 7 (“AnswerNet Contract”)). This request exacerbated LeClair’s concern that stores in the Original Pool and Farm System were not being prioritized sufficiently and were “going to be missed, skipped over, [and] not given full attempts to convert.” (Id. at 7-8; see LeClair Dep. I at 96-97), Although Tarlow acknowledged that “all of these things may happen,” he explained that to have “1,222 stores delivering ... data by [December 31, 2010],” Success needed to approach the list “in parallel [and] not sequentially.” (Ex. 33 at 7). Tarlow further insisted that Success had always described their approach as “first come first serve,” or “parallel,’-’ and that an approach focused on ensuring that each store in the Original Pool received as many opportunities as necessary to decide whether to convert before any other stores were approached would “slow down the deliverables.” (Id.).

On October 12, 2010, LeClair insisted that Success make “[six] calls to the 1,222 Nielsen Stores and [six] calls to [the] 5,000 backups.” (Ex. 35 at 1; see id. at 2 (“[I]f it takes 3, 4, 5,6 calls to [reach a store] then so be it.”)). In response, Tarlow contacted Thad Taylor (“Taylor”), another Nielsen official involved in the Automation Project, to inform him that the GSA would have to be modified, and that LeClair’s request would “have a negative impact on the deliverable dates.” (Id. at 1; see also Ex. 23 at 1 (“[T]he requested modification certainly extends the project.”)). On October 21, 2010, Tarlow reiterated thát Nielsen’s request had “significantly delayed/impeded [Success’] ability to perform under the current timelines,” and that “there has to be some understanding as to the repercussions/impact on the delivera-bles by making these changes.” (Ex. 22 at 1). The delay, Tarlow explained, was the result of requiring AnswerNet’s operators to keep calling seemingly uninterested stores, rather than reáching out to potential replacement stores. (Ex. 35 at 4; see id. at 3 (“If I have to wait a month to exhaust 1,222 and they are all ‘touched,’ gamé over ... Do the math ... [i]f you need the’ 1,222 exhausted you need to push the date, if you want us to have 1,222 running by [December 31] then you need to let us run our show.”) (first ellipsis in original)).

b. Subsequent Developments

Based on Nielsen’s alleged modifications, Success estimated that the Automation Project could not be completed until March 31, 2011, and then only if Nielsen was willing to infuse the Automation Project with more cash. (See Ex. 26 at 1213; Moran Aff. Ex. 1 at 15-38 (“Tarlow Dep. I”) at 59). Accordingly, Tarlow indicated to both LeClair and Taylor on multiple occasions that the GSA needed to be amended to reflect the changes mandated by Nielsen. (See, e.g., Ex. 22 at 1; Ex. 23 at 1).

On October 26, 2010, LeClair responded that, while he “still d[id] not agree that [Nielsen] added'any costs besides Nielsen internal costs to this agreement,Nielsen would “provided' an updated agreement.” (Ex. 15 at 1). That updated agreement, LeClair elaborated, would focus’primarily on extending the time for Success to perform its obligations under the GSA. (Id.). Two days later on October 28, LeClair acknowledged the “dynamic” nature of the Automation Project, and recognized, that, inasmuch as “every SOW has give and take and this one appears to have more,” Nielsen was willing to “work/change the SOW.” (Ex. 40 at 1).. LeClair therefore suggested that Tarlow “relax” insofar., .as he feared that Nielsen would impose “contract penalties” for delay. (Id.).

In. December 2010, Nielsen added , an additional seventy slots to its statistical sample, bringing the number of stores that required automation to 1,292. (Ex. 18 at 1; Pl.’s 56.1 Stmt. ¶ 189). Success.agreed to incorporate these seventy slots into the Automation Project. (Pl’s 56.1 Stmt. ¶¶ 190-94). Nielsen also identified approximately 100-150 stores in the Original Pool that already were automated, but- preferred to send their data directly to Nielsen, bypassing Success during both the automation and .data reporting stages. (Id. ¶¶ 170-71). Nielsen directed those stores to report directly, but gave Success “full credit” for the stores both in connection with the GSA deadlines and with respect to progress payments. (Id. ¶¶ 172-73; see Ex. 41 at 1). Nielsen’s statistics department also determined that only 111 of the 299 stores historically affiliated with Success (“Success Stores”) were suitable to fill a slot in Nielsen’s sample, although they all had been pre-approved for participation in the Automation Project. (Pl.’s 56.1 Stmt. ¶ 175). This required Success to automate 188 more slots than had been anticipated when the GSA was executed. (Id. ¶ 176). As a result, Nielsen agreed to pay Success an additional $50,000 to purchase more hardware, and $100,000 for financial incentives for the additional stores. (LeClair Aff. ¶ 120; PL’s 56.1 Stmt. ¶ 179). Nielsen also agreed to extend the deadline by which Success was required to complete the Automation Project to February 28, 2011, advanced an additional $691,000 (which included the $150,000 previously promised), and agreed not to pursue delay penalties authorized by the GSA. (Pl.’s 56.1 Stmt. ¶¶ 181-83).

During this time, Taylor and Tarlow discussed the contours of a possible amendment to the GSA, floating the possibility of “amending the payment schedule [and] formula” and “re-establish[ing] expectations as they relate ... [to contractual] penalties.” (See Ex. 16 at 2). That same month, Taylor and LeClair agreed to “work up an amendment document” reflecting a target completion date of February 28, 2011, for the successful automation of all 1,292 stores. (Ex. 20 at 1-2).

In February 2011, Taylor reaffirmed to Tarlow that drafting an amendment to the GSA was a “priority.” (Ex. 21 at 1). A proposed amendment was drafted and circulated among Nielsen officials, but was not provided to Success. (See LeClair Dep. I at 137-39; Ex. 8 (“Taylor Dep.”) at 239-41). The proposed amendment would have reflected the increase in the number of slots requiring automation from 1,222 to 1,292, acknowledged Nielsen’s promise to pay Success an additional $150,000 for hardware costs and incentives, and extended Success’ time to complete the Automation Project from January 3 to February 28, 2011. (See ECF No. 144 (Aff. of Brian Moran, sworn to on May 21, 2014), Ex. 1 (“Proposed Amendment”)).

4. Death of the Automation Project

By, February 2011, the Automation Project .was in trouble:, only 66 of the 1,292 stores.requiring automation were successfully reporting data. (Pl.’s 56.1 Stmt. ¶ 217). On February 12, 2011, Tarlow indicated that the Automation Project could continue “well into 2012,” and requested an additional $2 million to “reengineer” the project. (Tarlow Dep. I at 58-59; Pl.’s 56.1 Stmt. ¶¶ 204-208). This exacerbated Nielsens’ already considerable angst. As a consequence, during an internal management meeting on February 15, 201Í, Nielsen determined that it was necessary to scale back Success’ role in the Automation Projection. (LeClair. Aff. ¶ 166; Pl.’s 56.1 Stmt. ¶¶ 247-48).

Nielsen decided to limit Success’ role in the-Automation Project to completing the automation of the 488 stores it had successfully recruited,- thereby eliminating .Success’, further recruitment efforts. (Pl.’s 56.1 Stmt. ¶¶ 249-50, 252, 255). On March 25, 2011, Nielsen’s counsel provided Success’ -counsel with a written proposal for modification reflecting this revised course. (See LeClair Aff. Ex. 12). Further proposals were exchanged on April 5 and 14, 2011. (LeClair Aff. Exs. 13-14). Despite these attempts, the parties never executed any written amendment to the GSA. (PL’s 56.1 Stmt. ¶ 257). Instead, on April 26, 2011, Success terminated the GSA, citing Nielsen’s alleged failure to cure its breach of the GSA. (Ex. 9). By the time it took this action, fewer than ninety of the 488 stores Success had recruited were generating weekly data feeds. (Pl.’s 56.1 Stmt. ¶ 278).

C. Sottile Correspondence

Unbeknownst to Success, during the pendency of the parties’ business relationship, an anonymous Success employee, later revealed to be Scott Sottile (“Sottile”), had communicated with numerous Nielsen employees, claiming that Success had engaged in ongoing fraudulent practices at Nielsen’s expense. (See Ex. 7). These communications began on December 3, 2010, when James Cuminale (“Cuminale”), Nielsen’s Chief Legal Officer, received an email sent from the email address “johndoe99999023@gmail.com.” The sender stated that he worked “at one of [Nielsen’s] contractors,” and that “[e]very'day, week, [and] month” the contractor was committing “fraud ... against Nielsen by faking data and submitting it to -Nielsen as actual data.” (Ex. 50 at 3-4). Nielsen employees exchanged emails with John Doe through mid-January, but the sender’s and contractor’s identities were not disclosed; (Id. at 1-4).

On February 16, 2011, Taylor received an anonymous email from Sottile, who was using the address “fraudandliesatsuccess@gmail.com,” (Ex. 37 at 3-4). In that communication, Sottile- identified Success as the vendor engaged in fraud. Sottile also indicated that he had “information you need to know about Success Systems.” (Id. at 4). Taylor initially rebuffed Sottile, responding that “[t]his is not how Nielsen does business,” but he eventually agreed to keep the identity of the sender anonymous, and not to use any information provided by Sottile in a way which would reveal to Success that one of its employees was-communicating with Nielsen. (Id. at 2-3). With this assurance, Sottile explained that the data Success was sending to Nielsen from the automated stores wás partially fabricated. Specifically, Sottile accused Tarlow of forcing Success to fabricate any dáta -that was missing in order to' make 'it' “look[] perfect” to Nielsen. (Id. at 1-2).

On February 24, 2011, Robert Messemer (“Messemer”), Nielsen’s Chief of Security; contacted Sottile to express his'interest in receiving additional information. (Ex. 49 at 2). Messemer promised that Nielsen “would not disclose the scope of [the sender’s] cooperation to [his] employer.” (Id.). Eventually, Sottile provided Messemer with a seven-page summary of Success’ purportedly fraudulent .activities, as well as a “Data Fabrication Code” .program that Success allegedly had used to fabricate missing data. (Ex. 47 at 1; Ex. 48 at 1-3). A subsequent, email detailed, the specific sales data that Sottile thought-had been fabricated. (See Ex. 54).

In mid-March, Nielsen used the Data Fabrication Code provided by Sottile to conduct an audit. Nielsen concluded that there was “no evidence of widespread fabrication of data that is easily- detectable,” but that some of the Success data was “smoother than expected indicating [that] some imputation may be occurring (against [Nielsen’s] requirement).” (Ex. 43 at 1-2; ECF No. 142 (Affidavit of Christopher LeClair, sworn to on May 1, 2014 (“LeClair Aff. II”)) ¶¶ 6-10). Aside from this inter-, nal audit, Nielsen did not make ,any use of the information provided by Sottile. (LeClair Aff. II ¶ 11).

D.. Post-Termination . Contact With Stores

Following Success’ notice of termination, Nielsen initiated this lawsuit. Thereafter on May 7, 2011, Judge Barbara S. Jones entered a stipulated injunction intended to protect both Nielsen and Success from poaching. (ECF No; 3 (“Stipulated Injunction”)). Pursuant to the Stipulated Injunction, Nielsen was required to release the Success • Stores from their contracts with Nielsen and was. prohibited from soliciting any Success Stores... Nielsen -was, however, permitted to solicit any unaffiliat-edstores that ¡had been .recruited to participate in the Automation Project so long as it did' not interfere with any contracts between those stores and Success. (Id. at 2-3). Success, in turn,, was required to release the Original Pool stores from their contracts with Success and was. prohibited from soliciting both Nielsen Stores and unaffiliated stores for a “period of one year from the date of the respective individual [contract].” (Id. at 2).

On May 16, 2011, Nielsen sent form letters to each of the 488 stores that had been recruited to participate in the Automation Project. The text of -the letters varied depending On the status of the store;' but each letter included contact information for Nielsen’s Automation Project team.' (See LeClair Aff. Exs. 15-17).

Insofar as relevant, the' letter to the Original Pool stores stated:

Nielsen is no longer using Success to help with the hardware and software upgrade and/or installation and training. In fact, Nielsen has initiated a lawsuit against Success.

. Success, as part - of- that lawsuit has agreed (1) not to solicit you for a year for the purpose of seeking, to have you report. data, to a competitor qfi Nielsen for inclusion in an aggregated market research report and (2) t'o release you. from your Web Services Agreement With Success.”

(Id. Ex. 17).

The letter to the Success Stores stated: We know you signed up for the [Automation Project] and signed a Web Services Agreement with Success and a Vendor Cooperation Agreement ■ with Nielsen. [A]s part of the lawsuit, with Success, Nielsen is willing to release you, without any further obligations or restrictions, from your ... Vendor Cooperation Agreement if you so choose.

(Id. Ex. 16).

Finally, in its letter to the unaffiliated stores, Nielsen stated:

Nielsen is no longer using Success to help with the hardware and software upgrade and/or installation and training. In fact,' Nielsen has initiated a lawsuit against Success.

Success, as part of that lawsuit, has agreed not to solicit you for a year for the purpose of seeking to have you report data to a competitor-of Nielsen for inclusion in an aggregated market research report.

(Id. Ex. 15).

Nielsen has not incorporated into , its market research reports any data transmitted by the ninety stores- that Success automated during the Automation Project. (Pl.’s 56.1 Stmt. ¶ 300). Nielsen also has not included any Success Stores in its statistical samples. (Id. ¶¶ 302-07).

II. Standard of Review

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate only when “the movant shows that there is no genuine dispute as to any material fact” based on supporting materials in the record. Fed.R.Civ.P. 56. A factual dispute is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir.2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A fact in dispute is material if it “might affect the outcome of the suit under the governing law.” Id.

In deciding a motion- for summary judgment, the Gourt must “view the evidence in the light - most favorable to the party opposing summary judgment and must draw all permissible inferences” in favor of that party. Harris v. Provident Life & Acc. Ins. Co., 310 F.3d 73, 78 (2d Cir.2002) (quoting Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir.1996)). The Court also -must accept as true the non-moving party’s evidence, if supported by affidavits or other evidentiary material. See Beyer v. Cnty. of Nassau, 524 F.3d 160, 163 (2d Cir.2008). Assessments of credibility, choosing between conflicting versions of events, and the weighing of evidence are matters for the jury, not for the Court. Fischl v. Armitage, 128 F.3d 50, 55-56 (2d Cir.1997). Thus, “[t]he court’s function is not to resolve disputed issues of fact but only "to determine whether there is a genuine issue of material fact to be tried.” Id. at 55. Moreovér, “[s]imply because the parties have cross-moved, and therefore have implicitly agreed that no material issues of fact exist, does not mean that the court must join in that agreement and grant judgment as a matter of the law for one side or the other,” if the Court concludes that material issues of fact nevertheless exist. Aviall, Inc. v. Ryder Sys., Inc., 913 F.Supp. 826, 828 (S.D.N.Y.1996), aff'd, 110 F.3d 892 (2d Cir.1997) (citing Heublein, Inc. v. United States, 996 F.2d 1455, 1461 (2d Cir.1993)).

To defeat a motion for summary judgment, the non-moving party cannot simply rely upon allegations contained in the pleadings that raise no more than “some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Ze nith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Rather, the nonmoving party must offer “concrete evidence from which a reasonable juror could return a verdict in his favor,” Anderson, 477 U.S. at 256, 106 S.Ct. 2505.

III. Discussion

A. Nielsen’s Claims

1. Breach of the GSA

At the heart of this matter are the two parties’ dueling breach of contract claims. Both sides seek summary judgment on these claims, as well as summary judgment dismissing their adversary’s competing claims. (See Am. Compl. ¶¶ 90-94 (Count One); Countercls. ¶¶ 213-26 (Counterclaim Two); ECF No. 124 (“Pl.’s Mem.”) at 4-6, 6-11; ECF No. 127 (“Def.’s Mem.”) at 10-13, 19-20). 3

a. Applicable Law

Under New York law, “to prevail on a breach of contract claim ... a plaintiff must prove [i] a contract; [ii] performance of the contract by one party; [iii] breach by the other party; and [iv] damages.” Williams v. Time Warner Inc., No. 09 Civ. 2962(RJS), 2010 WL 846970, at *6 (S.D.N.Y. Mar. 6, 2010) (quoting Terwilliger v. Terwilliger, 206 F.3d 240, 245-46 (2d Cir.2000)). “[I]t is beyond cavil that the failure of a party to' perform its obligations under a valid and binding 'contract constitutes a breach and entitles--the other contractually bound party to damages which arose out of the breach.” Ez-Tixz, Inc. v. Hit-Tix, 969 F.Supp. 220, 225 (S.D.N.Y.1997) (quoting Custom Imports, Inc. v. Hanmee Trading Co., Inc., 596 F.Supp. 1126, 1130 (S.D.N.Y.1984)).

Initially, the Court must inquire “whethér the contract is unambiguous with respect to the question disputed by the parties.” Int’l Multifoods Corp. v. Commercial Union Ins. Co., 309 F.3d 76, 83 (2d Cir.2002). “A contractual term is ambiguous where it may be ascribed ‘conflicting reasonable interpretations.’ ” Rogath v. Siebenmann, 129 F.3d 261, 267 (2d Cir.1997) (quoting Mellon Bank, N.A. v. United Bank Corp. of N.Y., 31 F.3d 113, 116 (2d Cir.1994)).

Whether the contract is clear or ambiguous is an issue for the Court to decide. Compagnie Financiere de CIC et de L’Union Europeenne v. Merrill Lynch, Pierce, Fenner & Smith Inc., 232 F.3d 153, 158 (2d Cir.2000). “[W]hen' a contract is ambiguous, its interpretation becomes a question of fact” and summary judgment is thus generally inappropriate. Mellon Bank, N.A., 31 F.3d at 116. To avoid summary judgment, however, the nonmov-ant must adduce some relevant extrinsic evidence regarding its actual intent. Id.

b. Application of Law to Facts

Nielsen contends that it is entitled to summary -judgment with respect to - its claim that Success breached the' GSA, as well as Success’ parallel counterclaim, because it is undisputed that Success had not successfully automated 1,222 stores, as initially required by the GSA, by the time Success terminated the GSA on April 26, 2011. (See Am. Compl. ¶¶ 93(a); Countercls. ¶¶ 154, 167; Pl.’s 56.1 Stmt. ¶ 278). In its opposition papers, Success contends that it was Nielsen that breached the GSA, “immediately upon execution,” by .demanding that Success exhaust each store in the Original Pool before recruiting any other stores for the. Automation Project. Success contends - that this requirement “amounted to a material change to the GSA,” which frustrated Success’ performance by “significantly impact[ing] the cost[] and time” of performance. (ECF No. 133 (“Def.’s Opp.”) at 7; see Def.’s Mem. at 11-13, 19-20). Success further contends that, because Nielsen’s “exhaustion” request constituted a significant modification of the GSA, Nielsen violated Section 2.2 of the GSA by failing to provide Success with an equitable adjustment to account for its impact on Success’ performance. (Def.’s Mem. at 11-13).

In their briefs, both sides- devote considerable attention to Section 2.2 of the GSA. (See Pl.’s Mem. at 6-11; Def.’s Mem. at 11-13). That provision authorized Nielsen to make changes to the SOW, “including ... changes in the method or manner of performance,” bút required Nielsen to provide a corresponding “equitable adjustment,” and to modify the SOW accordingly, “[i]f the change in the scope of [sjervices significantly increased] or decrease[d] the cost of or the time- for performance.”' (GSA § 2.2).Nielsen maintains - that Section 2.2 expressly authorized it to make unilateral changes to the SOW. In the alternative, Nielsen contends that an equitable adjustment pursuant to Section 2.2 was not necessary because any modified requirements that it may have imposed were not significant. (Pl.’s Mem. at 6). Success counters that the language, of Section 2.2 required Nielsen to provide it with an equitable adjustment and corresponding amendment of the SOW after Nielsen imposed the exhaustion requirement. (Def.’s Mem. at 11-12).

Both Nielsen and Success assume that Section 2.2 of the GSA is an enforceable provision, but that assumption is, in all likelihood, erroneous. Equitable adjustment provisions frequently are included in public contracts, which provide an administrative process, subject to court review, through which contractors can seek to recover any unexpected costs caused by modifications to the scope of their work during a project. See, e.g., 41 U.S.C. § 7103(a); Affiliated Constr. Grp., Inc. v. United States, 115 Fed.Cl. 607, 611-12 (2014); Cunningham v. United States, 748 F.3d 1172, 1181 (Fed.Cir.20l4). When they are incorporated into private contracts, equitable adjustment provisions generally are paired with a mechanism to resolve disputed claims or a methodology to calculate the value of the change. See, e.g., Morales Elec. Contracting, Inc. v. Siemens Bldg. Techs., Inc., No. 09-CV-2743 (ADS)(ETB), 2012 WL 3779410, at *2 (E.D.N.Y. Aug. 30, 2012); Envirocon, Inc. v. Alcoa, Inc., No. 7:06-cv-0549, 2006 WL 2460640, at *2 (N.D.N.Y. Aug. 23, 2006).

The Second Circuit has declined to enforce equitable adjustment provisions in private contracts that fail to specify how the value of the adjustment will be determined. See Mem’l Drive Consultants, Inc. v. ONY, Inc., 29 Fed.Appx. 56, 58, 60-61 (2d Cir.2002) (denying enforcement of a contract provision stating that upon the occurrence of certain contingencies the parties would “adjust th[e] compensation in an equitable manner to provide a rate of compensation to [plaintiff] equivalent to that contemplated herein,” because this indefinite provision “necessitate^ future negotiations between the parties as to [future compensation]”); cf. Envirocon, 2006 WL 2460640, at *2 (equitable adjustment provision enforceable in contract providing a methodology for. calculating changes); Greater Eastern Transport LLC v. Waste Management of Connecticut, Inc., 211 F.Supp.2d 499, 505-06 (S.D.N.Y.2002) (equitable adjustment provision enforceable because the contracting parties had “previously acted upon it” and an “objective method” existed to calculate the adjustment amount). Section 2.2 is a prime example of an equitable adjustment provision that is unenforceable. It provides neither a means to calculate an adjustment nor 'a mechanism to resolve disputes as to whether an adjustment is warranted. For this reason, neither side is entitled to summary judgment on the basis of this unenforceable contract language.

Notwithstanding the parties’ ill-conceived focus on Section 2.2, the fundamental issue raised by their competing motions remains whether Nielsen’s exhaustion'requirement constituted an impermissible unilateral modification of a material term of the GSA. See Fed. Ins. Co. v. Turner Constr. Co., 779 F.Supp.2d 345, 354 (S.D.N.Y.2011) (“Under general contract rules, an obligation may not be altered without the consent of the party who- assumed the obligation.”) (quoting Bier Pension Plan Trust v. Estate of Schneierson, 74 N.Y.2d 312, 315, 546 N.Y.S.2d 824, 545 N.E.2d 1212 (1989)). Nielsen contends that its “initial insistence in early October 2010 that Success focus on the current pool of 1,222 manually-reporting stores was entirely consistent with Nielsen’s stated objective in both its RFP and ... SOW.” (Pl.’s Mem. at 7). Success counters that “the decision to focus on [those stores] was a material modification of the agreement by Nielsen” which “derailed] Success’ plan for costs and timing to complete the proc jeet.” (Def.’s Mem. at 20). Even if .the Court could resolve this dispute, and Section 2.2 were enforceable, the prevailing party still would not be entitled to summary judgment on its cpntract claim because the finder of fact would have to resolve whether Nielsen’s purported modification “significantly increased” the scope of services that Success was to provide pursuant to the SOW. (See GSA § 2.2).

Since Section 2.2 is unenforceable, the key question is whether Nielsen antici-patorily breached the GSA by insisting on the exhaustion requirement. See Towers Charter & Marine Corp. v. Cadillac Ins. Co., 894 F.2d 516, 523-24 (2d Cir.1990) (quoting REA Express, Inc. v. Interway Corp., 538 F.2d 953, 955 (2d Cir.1976)) (Under New York law, a “plaintiff may recover for, anticipatory breach if it can show [i] that the defendant insisted upon terms,which are not contained in a contract, ,.. • and [ii] .that the plaintiff was ready, willing, and able to perform its own obligations under the contract when per formance was due.”) (alterations and internal quotation marks in original omitted); see also Mount Vernon City Sch. Dist. v. Nova Cas. Co., 19 N.Y.3d 28, 35, 945 N.Y.S.2d 202, 968 N.E.2d 439 (2012) (contractual obligation may' hot be modified “without the consent • of' the party who assumed the obligation”). As noted above, Nielsen’s position with respect to this issue is that LeClair’s instruction thát the stores comprising the Original Pool and Farm System bé “fully exhausted” before any additional stores weré recruited, (Ex. 33 at 1), was consistent with the SOW. (Pl.’s Mem. at 7). Success” conflicting view is that LeClair’s demand dramatically altered its store recruitment strategy, which was developed on the assumption that other stores could be pursued in parallel with the Original Pool and Farm System stores. (See Moran Aff. Ex. 1 at 2-15 (“Tarlow Dep. II”) at 109).

Success’ role, as defined by the SOW, was to “provide [s]tore conversions from existing platforms to automated, scanning platforms.” (SOW at 1). As noted previously, the SOW identified three universes of stores: “Existing Stores,” “New Stores,” and the “Farm System.” (Id.). Success had four broad obligations which were to: (i) “[p]rovide weekly electronic sales data for a minimum of 1,222 [s]tores;” (ii) “[cjonvert convenience stores with the technical and physical means to enable the weekly electronic data file feed;” (iii) “collect executed [tjhird [pjarty [ljetters;” and (iv) “[pjrovide [djata [fjeeds and [mjanage [sjtore [ajttrition.” (Id. at 1-2). The second objective was further broken down into more detailed requirements. Thus, the SOW provided that Success was to automate the Existing Stores, or preapproved Success Stores, “if applicable,” as well as the stores “currently cooperating within Nielsen’s manual inventory audit program,” a reference to the Original Pool stores-also “if applicable.” (Id. at 2). Additionally, Success was required to “[ijmplement New Stores. within the defined segment parameters and geographical dispersement [sic],” after gaining.approval from Nielsen that a particular New Store met Nielsen’s parameters. (Id.).

While the SOW clearly distinguishes among different categories of stores, from which Success could recruit to fill one,of the 1,222 slots of the Automation Project, it fails to describe unambiguously the degree of priority tq be accorded to a particular type of store. For example, Success was instructed both to convert Existing Stores, as well as the Original Pool stores, “if applicable,” and to “[ijmplement New Stores within the defined segment parameters and geographical , dispersement [sic].” (Id.). Based on these instructions, it is unclear how much effort Success was required to exert to convince a store in the Original Pool had a desire to automate. Indeed, the SOW merely instructs Success to áutomate the Original Pool stores “if applicable.” It does not describe the circumstances that would make that requirement inapplicable. Equally importantly, although the SOW did not identify any specific Stores other than Success’ Existing Stores, Original Pool stores, and the Farm System stores, the inclusion of New Stores as a category suggests that the SOW contemplated recruitment efforts' geared toward stores outside these three categories of stores.

Nielsen has raised the belated argument that the category of New Stores was comprised exclusively of the Original Pool stores, and therefore was not an indicator that the parties contemplated the recruitment of stores outside the Existing Stores, Original Pool stores, and Farm System stores. (See ECF No. 169 (Letter to the Court from Brian E. Moran, Esq., dated July 6, 2015) at 2). Nielsen’s argument appears to be based on the fact that the New Stores were defined, in part, as those “selected by Nielsen.” (Id.). According to Nielsen, “[t]he stores ‘selected by Nielsen’ were ... the 1,222 manually-reporting stores from Nielsen’s Historical Pool,” the names of which were identified on a list provided by Nielsen to Success around the time the GSA was executed. (Id.; see SOW at 6 (listing one of Nielsen’s obligations under the GSA as “providing] current, complete and accurate information” on the Original Pool stores). This interpretation of the contractual language fails for at least two reasons. First, if the New Stores and Original Pool stores were the same, there would have been no reason to instruct Success both to convert the Original Pool stores “if applicable,” and to “[fimple.ment New Stores.” (SOW at 2). Second, if the New Stores were simply the Original Pool stores, there would have been no reason for the SOW to describe a process by. which Success was obligated to “[g]ain approval from Nielsen” prior to automating a New Store. (See id. at 2, 6). Although it appears that Nielsen’s position has some support, insofar as there is evidence that the term “New Stores” was- also used to describe the Original-Pool and-Farm System stores, (see id. Attachment 1), the contours of the New Store category are at best ambiguous. Indeed, at least in part because of this ambiguity, the parties had sharp disagreements in late 2010 regarding the SOW’s requirements. (See, e.g., Exs, 22-23, 33-35, 40).

In these circumstances, a reasonable factfinder could determine that Success was obligated under the SOW to make every effort to automate an Original Pool or Farm System store prior to recruiting any alternative store.' A factfinder could also determine, however, that the SOW permitted a less linear approach, in which Success had the obligation to contact Original Pool and. Farm System - stores before reaching out to other stores, but did not have to refrain from contacting alternative stores to fill unclaimed slots after its initial contact with an Original Pool or Farm System' store had proved unsuccessful.

In short, the SOW is ambiguous. When a contractual provision “is ambiguous, ‘summary judgment may be granted only if the ambiguities may be resolved through extrinsic evidence that is itself capable of only one interpretation, or where there is no extrinsic evidence that would support a resolution of these ambiguities in favor of the nonmoving party’s case.’” CP III Rincon Towers, Inc. v. Cohen, 13 F.Supp.3d 307 (S.D.N.Y.2014) (quoting Topps Co. Inc. v. Cadbury Stani S.A.I.C., 526 F.3d 63, 68 (2d Cir.2008)). Here, there is extrinsic evidence to support both sides’ interpretations of the SOW. For example, a series of emails between Taylor and LeClair suggests that'Nielsen did not, in fact, anticipate an exhaustion requirement when the GSA was signed. Specifically, Taylor contacted LeClair to ascertain the reason that LeClair had insisted (in an email) that six calls be placed to each Original Pool and Farm System store before a New Store was contacted. In his emails, Taylor noted that he “honestly d[id not] recall [Nielsen’s] position on this to be so stringent,” and inquired about the purpose of “exhaust[ing] all of our 6,000 stores before bringing others on.” (Ex. 29 at 1; Ex. 33 at 1). Taylor further conceded during his deposition that while Nielsen had “communicated the priority” of automating the stores on “Nielsen’s primary list ... before calling other stores,” it had not informed Success explicitly during the vendor selection process that the exhaustion of those stores was compulsory. (Taylor Dep. at 73-74).

On the other hand, LeClair testified that he had informed Success of the exhaustion requirement during the RFP process. (Moran Aff. Ex. 5a (“LeClair Dep. II”) at 36-37); Pl.’s 56.1 Stmt. ¶¶ 64-65 (During a meeting with Success on . September 1, 2010, “Nielsen emphasized both the importance of converting the current 1,222 manually-reporting stores and the Automation Project’s three-month timeline.”). The contract that Success executed with Answer Net, the telemarketing company retained to help Success fulfill-its obligations under the GSA, also notes that the “primary objective” of the GSA was to convert the Original Pool stores from “manual inventory audit to- quality scanned inventory,” and identifies Nielsen’s “target market” as the stores that already were part of Nielsen’s statistical sample at that time. (AnswerNet Contract at 150499).

There thus is a genuine issue of material fact as to whether Nielsen materially modified the GSA by insisting that each store in the Original . Pool and Farm System be fully exhausted before an alternative store could be recruited. Furthermore, even if Nielsen’s actions constituted a material modification, to recover on its contract claim, Success still must show that it was “ready, willing and able” to perform its own original obligations under the GSA. United States v. 0.35 of an Acre of Land, More or Less, Situated in Westchester Cnty., 706 F.Supp. 1064, 1074 (S.D.N.Y.1988) (plaintiff must show that’ “defendant would haye received what,,defendant had contracted for from plaintiff had defendant performed.”) (quoting Kotcher v. Edelblute, 250 N.Y. 178, 183, 164 N.E. 897 (1928)). Alternatively, Nielsen could prevail by proving that Success had agreed to renegotiate the terms of the GSA, or waived Nielsen’s alleged repudiation, by accéptirig certain further benéfits that Nielsen provided. (See LeClair Aff. ¶¶ 113-14, 121-24, 132; Pl.’s Mem. at 8-9). At this-stage, however, these issues are not ripe for summary judgment.

c,- Success’Damages

Nielsen also argues that it is, at a minimum, entitled to partial summary judgment with respect to the-issue of damages on Success’ breach "of contract claim. (Pl.’s Mem. at 11-13). Nielsen seeks this relief on the theory-that any recovery of Success’ lost profits itemized in the expert report of Michael R: Blezard, (Moran Aff. Ex. 29 (“Blezard Report”)), is precluded by a limitation of liability clause in the GSA. (See GSA § 8.1). Nielsen’s argument is not persuasive.

Section 8.1 of the GSA provides that “neither party -shall be liable to the other party for special, incidental, consequential, indirect, punitive or exemplary damages including but not limited to ... lost profits.” (GSA § 8.1). Despite this language, the Blezard Report calculates “lost -profit” damages in the amount of approximately $18 million allegedly resulting from Nielsen’s breach of the GSA. (Blezard Report at 4). According to the Blezard Report, approximately $2 million of this sum is attributable, to the profits Success would have earned by automating 1,222 stores, approximately’$9 million is attributable to the profits Success would have earned by maintaining the 1,222 stores during-the original term of the GSA, and approximately- $7 million is attributable to the profits Success would have earned had the GSA been extended for an additional five years, (Blezard Report at 3-7, Exs. 1-3).

Nielsen is correct that these damages are “lost profits.” (Pl.’s Mem. at 11). Indeed the Blezard Report characterizes them that way. (See Blezard Report at 3-7). There is, however, a distinction between lost profits that are “direct” or “general” damages and those that constitute consequential damages. See, e.g., Tractebel Energy Mktg., Inc. v. AEP Power Mktg., Inc., 487 F.3d 89, 109 (2d Cir.2007) (“[W]hen the non-breaching party seeks only to recover money that the breaching party agreed to pay, under the contract, the damages sought are general damages.”).. As the Second Circuit observed in Tractebel, general damages may technically qualify as lost profits, because “had the contract been performed, the non-breaching party would have profited to the extent that his cost of performance was less than the total value of the breaching party’s promised, payments.” Tractebel Energy Mktg., 487 F.3d at 109; see Biotronik A.G. v. Conor Medsystems Ireland, Ltd., 22 N.Y.3d 799, 805, 988 N.Y.S.2d 527 (2014) (“[D]amages must be evaluated within the context of the agreement, and ... under the parties’-.[agreement], the lost .profits constitute general, not consequential, damages.”).. As the New York Court of Appeals explained in Biotronik A.G., the operative difference between the two forms of lost profits “is whether the lost profits flowed directly from the contract itself or were, instead, the result of a separate agreement .with a nonparty.” Biotronik A.G., 22 N.Y.3d at 808, 988 N.Y.S.2d 527 (collecting cases).

Under New- York law, even though no third party was involved, the approximately $7 million in damages that the Blezard Report attributes to the profits Success would have earned- had the GSA been extended constitute “speculative profits on [a] collateral transaction ].” Tractebel Energy Mktg., Inc., 487 F.3d at 110. Therefore they are consequential damages that cannot be recovered. On the other hand, the approximately $11 million in lost profits that the Blezard Report calculates Success would have received by automating and maintaining 1,222 stores during the original-term of the GSA are general damages because they are profits directly related to payments' Nielsen agreed to make under the GSA, the loss of which would be the “natural and probable consequence” of Nielsen’s alleged breach. Kenford Co. v. Cnty. of Erie, 73 N.Y.2d 312, 319, 540 N.Y.S.2d 1, 537 N.E.2d 176 (1989).

Section 8.1, of the GSA exculpates the parties from liability for “special, incidental, consequential, indirect, punitive or exemplary damages including but not limited to ... lost profits.” (GSA § 8.1) (emphasis added). The term “lost profits” as it Is used here, clearly refers to an example of losses that fall within the six categories of damages expressly excluded by the GSA. These categories, in turn, clearly refer to damages beyond those flowing directly from the GSA. See In re Indesco Int'l, Inc., 451 B.R. 274, 316 (Bankr.S.D.N.Y.2011) (“Under the doctrine noscitur a sociis, ‘a word is known by the company it keeps.’ ”). Despite the Blezard Report’s description of these losses as “lost profits,” they do not fall into any of the six excluded categories of damages. Accordingly, those losses constitute , general damages which are not limited by Section 8.1. See id. at 315-16. At trial, of course, Nielsen may challenge the Blezard Report’s calculations, and Success still, must demonstrate that but for -Nielsen’s actions, it would have automated the 1,222 stores. See id. at 316-17.

2. Breach of the Cooperation Agreement

Next, Nielsen alleges that Success breached the Cooperation Agreement by “recreating] and transmitting] ... missing data to Nielsen without informing Nielsen of its actions.” (Am. Compl. ¶ 98). Success contends that it is entitled to summary judgment with respect to this claim because “recreating data is expected, necessary to fill in gaps, and widely accepted in the normal course of any data providing, service.” (Def.’s Mem. at 13). Success further posits that Nielsen was aware of its practice of recreating data and had acknowledged on multiple occasions that the data that Success was providing was acceptable. (Id. at 13-14). On these bases, Success also seeks summary judgment on its corresponding counterclaim, (Countercls. ¶¶ 206-12), which alleges that Nielsen breached the Cooperation Agreement by terminating Success prematurely on September 7, 2011. (Def.’s Mem. at 17-19).

The Cooperation Agreement provides, in part, that Success will “collect and deliver to Nielsen” scanned data from its affiliated 1* • ' stores “in the format described in Appendix A-1,” “[f]or an initial period of three year[s] beginning [February 15, 2009,] and yeár-to-year thereafter until canceled by either party at any time upon thirty days prior written notice.” (Cooperation Agreement at 1). Appendix A-1 identifies various elements that the scanned data must contain, including product UPC codes and descriptions. (Id. at Appendix A-1). Appendix A-2 sets forth Nielsen’s “Payment Deduction Policy.” Listed among the errors that would result in payment deductions are missing, incomplete, duplicated, and late data. (Id. at Appendix A-2).

By letter dated September 7, 2011, Nielsen provided notice that it was terminating the Cooperation Agreement. (Ex. 12). In that letter, as well as in its opposition papers, Nielsen asserts that the Cooperation Agreement allowed either party to terminate the Cooperation Agreement at any time upon thirty days’ written notice. (ECF No. 140 (“Pl.’s Opp.”) at 12). The Cooperation Agreement, however, plainly manifests the parties’ intention to be bound for a period of at least three years — through February 2012 — after which the agreement would automatically be renewed on a yearly basis unless canceled by either party. (See Cooperation Agreement at 1). Accordingly, there is no basis for Nielsen’s contention that the Cooperation Agreement was terminable at will within the initial three-year period.

Nielsen has adduced evidence, however, that Success manipulated the data it was transmitting to Nielsen under the Cooperation Agreement in order to enhance its chances of being selected by Nielsen as the contractor, for the GSA. (Moran Aff. II Ex. 1 (“Sottile Dep. II”) at 43-44). Indeed, Success does not expressly deny that it manipulated the data that it provided to Nielsen, contending instead that “recreating data is expected, necessary to fill in gaps, and widely accepted in the normal- course - of any data providing seryice.” (Def.’s Mem. at 13). As support for this proposition, Success cites the deposition testimony of Cuminale, Nielsen’s Chief Legal Officer, who indicated that it would have been appropriate for Nielsen to “fill in blanks in its data sample set.” (Ex. 24 at 79). Success may ultimately be able to prove that data manipulation is an acceptable practice in the industry, but Cuminale’s testimony suggests that Nielsen may have expected Success to provide raw, unmanipulated data consistent with the requirements of Appendices A-l and A-2, after which Nielsen’s own statisticians would determine whether, and, if necessary, to what extent it ’would “smooth” that data.

Success also contends that Nielsen was aware that Success was recreating data because Success stated in the GSA Proposal that it would review the scanned data for “consistency and validity” to “ensure accuracy,” (Def.’s Mem. at 13), and because Nielsen previously had approved the accuracy of the data being provided , by Success, (id.). It is not apparent from either the language of the Proposal, which was drafted more than a year -after -the Cooperation Agreement was executed, or from Nielsen’s own review of the data, whether Nielsen understood that Success was manipulating the data and approved of that practice, or whether Success’ practice potentially constituted a breach of the Cooperation Agreement. Indeed, the very internal Nielsen communications that Success cites to support its argument suggest that Nielsen was concerned about duplicated arid highly smoothed data, (Ex. 28), and had discovered sofne evidence that Success’ data was “smoother thán expected,” (Ex. 43; see also LeClair Aff. II ¶ 18 (“Success was not authorized by Nielsen under the GSA or otherwise to do any ‘smoothing’ of store data or any imputing of data that was either missing shifts or UPC items.”)).

In sum, a genuine issue of fact exists' as to whether Success breached the Cooperation Agreement by providing Nielsen with data that failed to conform to the requirements of the Cooperation Agreement, thereby relieving Nielsen of its own obligation to perform. See Merrill Lynch & Co. Inc. v. Allegheny Energy, Inc., 500 F.3d 171, 186 (2d Cir.2007) (“Under New York law, a party’s performance under a contract is excused where the other party has substantially failed to perform its side of the bargain or,- synonymously, where that party has- committed a material breach.”). Accordingly, Success is not entitled to summary' judgment with respect to any alleged breach of the Cooperation Agreement.

3. Fraud and Misrepresentation by Success

Nielsep’s third claim for relief alleges that Success made multiple fraudulent representations during the negotiation and performance of the GSA — including statements during the RFP process regarding the status of .its efforts to develop certain software applications necessary to complete the Automation Project, and statements in December 2010 concerning its ability to - complete the conversion project by March 2011. (Am. Compl. ¶¶ 100-11). 'Success has moved for summary judgment dismissing this 'claim, arguing first that the representations were true, and second that Nielsen has failed to demonstrate reasonable reliance on them. (Def.’s Mem. at 16-17). That motion is granted in part.

To state a claim for common law fraud in New York,, a,plaintiff must show that “[a] the defendant made a material false representation, [b] the defendant intended to defraud the plaintiff thereby, [c] the plaintiff reasonably relied upon the representation, and [d] the plaintiff suffered damage as. a result of such reliance.” Banque Arabe et Internationale D’Investissement v. Maryland Nat’l Bank, 57 F.3d 146, 153 (2d Cir.1995). Since New York law imposes a heightened standard of proof on a fraud claim, the issue before the Court at the summary judgment stage is whether “ ‘the evidence oh the record could support a reasonable jury finding that the [plaintiff] has shown each element’ of a fraud claim ‘by clear and convincing evidence.’ ” Northern Shipping I, L.L.C. v. Icon Capital Corp., 998 F.Supp.2d 301, 318 (S.D.N.Y.2014) (quoting Abu Dhabi Commercial Bank v. Morgan Stanley & Co., 888 F.Supp.2d 478, 484 (S.D.N.Y.2012)).

Nielsen has presented evidence sufficient to allow a reasonable factfinder to conclude by clear and convincing evidence that, contrary to Success’ representations, the requisite software applications were not fully developed and ready for deployment by the time the GSA was executed, and that Nielsen had relied upon Success’ misrepresentations in the course of selecting Success as the vendor for the Automation Project. In that regard, it apparently is undisputed that Success made the representations at issue, (see LeClair Aff. Ex. 2 at 17, 20), and that Nielsen relied on those representations, (LeClair Aff. ¶ 27; see also LeCIair Dep. II at 52-53). Sottile further has testified that additional work needed to be done to complete multiple software applications. (Sottile Dep. at 7481). Internal Success documents , also appear to confirm both the need for additional software development, (Moran Aff. Ex. 11 at 9-10), and the inadequacy of the existing software, (id. Exs. 14, 16-17). Indeed, Tarlow has expressly acknowledged that there was a need to modify the existing software further. (Moran Aff. Ex. 1 at 50-55 (“Tarlow Dep. III”) at 34-38). Although Success ultimately may be correct that the modifications in question were “minor changes ... limited to updating the user interface ... [and] other adjustments that would be required. when applying the software to any new project,” (ECF No. 146 (“Def.’s Reply”) at 6), whether the software applications were ready to be deployed presents a question of fact that cannot be resolved at this stage of, the litigation.

Turning to the assertion that Success committed fraud after the GSA was signed by misrepresenting its progress and anticipated completion date, “[a] fraud claim that merely alleges that ‘intentionally false statements’ were made by a party ‘indicating his intent to perform under [a particular] contract’ is duplicative of the underlying breach of contract claim ... and must be dismissed as a matter of law.” Revonate Mfg., LLC v. Acer Am. Corp., No. 12 Civ. 6017(KBF), 2013' WL 342922, at *3 (S.D.N.Y. Jan. 18, 2013) (quoting Bñdgestone/Firestone, Inc. v. Recovery Credit Servs., Inc., 98 F.3d 13 (2d Cir. 1996)). Here, that is all that this aspect of Nielsen’s fraud claim alleges. Accordingly, Success is entitle