Citations
- 71 F. Supp. 3d 866
Full opinion text
ORDER ON PENDING MOTIONS
SARAH EVANS BARKER, District Judge.
This cause is before the Court on three motions: (1) Defendants’ motion to strike Plaintiffs’ affirmative defenses to counterclaims [Docket No. 282], filed on March 17, 2014; (2) Plaintiffs’ motion for summary judgment [Docket No. 329], filed on July 17, 2014; and (3) Defendants’ motion for summary judgment [Docket No. 331], filed on July 17, 2014. For the reasons set forth below, Defendants’ motion to strike is DENIED as moot, Plaintiffs’ motion for summary judgment is DENIED in part and GRANTED in part, and Defendants’ motion for summary judgment is DENIED in its entirety.
Factual and Procedural Background
This matter has been pending on our docket for more than three years, and its antecedent disputes stretch back still further. The array of motions to strike, motions to dismiss, and motions for reconsideration filed by the parties have given us occasion to explore aspects of the case’s factual background, but only now do we arrive at the merits of the intellectual property dispute lying at the core of this sprawling body of litigation. While we have summarized the record previously, we endeavor here to outline the undisputed facts, cognizant that the presence of cross-motions for summary judgment will require us to draw varying inferences from them as we address each of those motions in turn.
Plaintiffs Heckler & Koch, Inc. (HK USA) and Heckler & Koch GmbH (HKG) are firms engaged in the manufacture and sale of firearms — headquartered, respectively, in the United States and Germany. Among products sold under the Heckler & Koch name is the “MP5,” a weapon originally designed as a nine millimeter subma-chine gun by HKG in the 1960s, and which has since become the basis of a “family” of firearms sharing certain core design features; Heckler & Koch first sold the MP5 in the United States in the 1970s. Docket No. 346-5 (Weber Decl.) at ¶¶ 4, 8; Docket No. 333-5 (HKG “Official History”) at 247-249, 252-264. In 1990, HK USA registered the MP5 as an international class 13 (firearms) trademark with the United States Patent and Trademark Office (“PTO”). Cooper Decl. ¶5. HKG registered the MP5 with the German patent office on June 4, 2008. Id. at ¶ 6.
Defendants are also engaged in the firearms business: German Sports Guns GmbH (“GSG”) is an arms manufacturer based in Germany, and American Tactical Imports, Inc. (“ATI”) is an arms importer and retailer incorporated and based in New York. Am. Compl. ¶¶ 7-8. Two individuals, both executives for the Plaintiff companies, are also parties to this suit: Counterclaim Defendant G. Wayne Weber is the president of HK USA, Docket No. 251 at ¶ 5; and Counter Defendant Niels Ihloff is a managing director of HKG and consulted HK USA during the 2009 settlement negotiations. Id. at ¶ 6.
A number of the claims and counterclaims in this case are premised on differing interpretations of two parallel series of events that unfolded between 2008 and 2010: first, HK USA’s initial suit against the Defendants (“the 2009 litigation”); and second, HKG’s attempts to obtain a United States trademark registration for the MP5 weapon.
HK USA filed suit in the Southern District of Indiana against GSG, ATI, and a third firearms manufacturer, Orion Arms Corporation, on January 13, 2009 alleging trademark infringement, trade dress infringement, and other related claims. See Docket No. 1; Heckler & Koch, Inc. v. German Sports Guns GmbH, et al, Cause No. l:09-cv-00039. The crux of the 2009 litigation was HK USA’s claim that GSG, ATI, and Orion were engaged in the manufacture and sale of a weapon — styled the “GSG-5” — that copied the design of the Heckler & Koch MP5. Id. At the instigation of the parties’ respective executives, the parties engaged in settlement negotiations, and on October 8, 2009 they signed a Settlement Agreement (“the Agreement”) that stipulated to the dismissal of the infringement suit. The Agreement’s preliminary recitals stated that HK USA owned “a federal trademark registration in the mark ‘MP5’ (Reg. No. 1594109)” and that it claimed to own “in the United States a proprietary trade dress comprised of the designs of certain elements of the MP5 firearms (the ‘MP5 trade dress’).” Docket No. 45-1 at 1. The Agreement also recited that GSG, ATI, and Orion neither admitted that they had infringed HK USA’s rights nor conceded that HK USA even had any such rights:
WHEREAS, GSG, ATI, and Orion have filed in said Lawsuit Defendants’ Answer and Counterclaim in which they seek a judgment declaring, inter alia, that their activities do not infringe, and have not infringed, any intellectual property rights of HK or otherwise violate any law, and that HK does not own the trademark, trade dress and other intellectual property rights it claims to own.
Id. (emphasis added); see also id. at ¶ 9 (“Defendants make no admission of liability for the claims made against them.”). As for the substance of the Agreement itself, the defendant parties agreed to pay HK USA $300,000 in exchange for the dismissal of the suit. Id. at ¶ 1. They also agreed to halt manufacture of the allegedly infringing GSG-5 design, and to cease selling the weapons once a “sell-off’ date had passed. Id. at ¶ 2. For its part, HK USA covenanted not to sue GSG or any of its commercial partners in connection with a different weapon design, the “GSG-522” firearm:
HK has reviewed the design of the GSG-522 attached hereto as Exhibit “A” (the “GSG-522 Firearm”) and covenants not to sue GSG or any of its customers, distributors, dealers or importers for its sale in the United States or anywhere in the world, provided GSG otherwise complies with this Agreement. This covenant extends to airsoft guns in the design of the GSG-522 firearm.
Id. at ¶ 5.
While the 2009 litigation was pending, ownership of the MP5 registered trademark — together with any accompanying trade dress rights — changed hands between HK USA and HKG. The process began on June 8, 2008, when HKG filed an application for an “international registration under the Madrid Protocol” for the MP5 trademark within the United States, triggering a PTO office action. Cooper Decl. ¶ 7. On September 19 of the same year, the PTO wrote back to HKG, informing it that had provisionally refused the application for at least two reasons: first, the MP5 trademark was registered in the name of HK USA rather than HKG; second, an application by an unrelated company for an intent-to-use registration for the similar mark “MP5A5” was already pending before the PTO, and would need to be resolved before further action could be taken. See Docket No. 332-12 (Defs.’ Ex. L); Cooper Decl. ¶ 8. In order to remove this first obstacle to HKG’s registration of the MP5 mark in the United States, HK USA president G. Wayne Weber executed an assignment agreement (“the Assignment”) transferring to HKG “all right, title and interest in and to the said [MP5] mark, together with the good will of the business symbolized by the said mark and the respective registration.” Docket No. 251-2 at 5. Weber signed the Assignment on March 19, 2009 — some two months after HK USA had initiated the 2009 litigation, and more than six months before the parties to that litigation settled it. But despite the pendency of the litigation, neither Weber nor any other representative of HK USA .informed GSG and ATI that the rights upon which the suit was predicated had been transferred. Docket No. 332 at 20 (citing Defs.’ Ex. H).
Meanwhile, HKG continued in its efforts to secure U.S. trademark registration for the MP5, and both of the Heckler & Koch entities continued to represent to the PTO in the interim that HK USA owned the MP5 trademark, notwithstanding the Assignment. On March 23, 2009, HKG, by counsel, wrote to the PTO that an assignment of the MP5 trademark registration from HK USA to HKG was “being worked,” and therefore requested that its application for Madrid Protocol registration be held in abeyance until the questions of ownership and the pending third-party application could be resolved. Docket No. 332-13 at 5-7. Cooper Deck ¶ 8. Nearly a year later, complying with PTO deadlines for trademark registrants’ periodic filing of affidavits verifying their continued use and intent to renew their marks, HK USA filed a “Section 8/9” declaration with the PTO, holding itself out as the current owner of the MP5 mark. Docket No. 332-15.
In May 2010, the PTO informed HKG that the third party’s competing trademark application had been abandoned, advising HKG that it was nonetheless still necessary for HKG’s ownership of the MP5 mark to be established before the company’s application for U.S. registration of the MP5 could be granted. Cooper Deck ¶ 10. HKG then recorded the Assignment with the PTO on June 20, 2010; this marked Plaintiffs’ first public acknowledgment of the transfer of rights. Docket No. 251-2 at 2. The PTO responded by granting HKG’s registration application on November 9, 2010. Cooper Deck ¶ 10. HKG remains the holder of the registered MP5 trademark. Am. Compl. ¶ 12.
Procedural History
Plaintiffs contend that Defendants have failed to abide by the Settlement Agreement. Specifically, they allege that Defendants have “repackaged” the GSG-5 — a “knock-off’ weapon designed to “replicate the look and feel of the famous MP5®”— and sold it under the label of the GSG-522. Am. Compl. ¶2. By manufacturing, importing, and selling this GSG-5 in GSG-522’s clothes, Plaintiffs argue, Defendants have both violated their covenant not to sell the GSG-5 and deceptively deviated from the GSG-522 design that they submitted for HK USA’s approval in the Agreement. Id. Plaintiffs also allege that Defendants continued to manufacture and sell the GSG-5 under its own label even after the 2010 “sell-off dates.” Id. at ¶ 3, 27-32. According to Plaintiffs, this conduct directly contravenes Paragraph 3 of the Settlement Agreement.
Bearing these grievances, Plaintiffs again brought suit against GSG and ATI. The original version of this complaint, later removed from Indiana state court to this Court, was brought by HK USA alone, and it contained only a claim for breach of contract. See Docket No. 1. Plaintiffs subsequently sought leave to amend the complaint to add HKG as a plaintiff and to include additional claims for tortious interference and fraud against both Defendants as well as claims of state and federal trade dress infringement, trademark dilution, and unfair competition against GSG alone. Magistrate Judge Baker granted leave to amend, Docket No. 44', and Plaintiffs filed their amended complaint on May 22, 2012. Defendants’ subsequent motion to dismiss the amended complaint [Docket No. 49] was granted in part and denied in part. We dismissed Plaintiffs’ claims for tortious interference with a business relationship, fraud, and common-law “unfair competition,” leaving intact their claims for breach of contract, trademark dilution, statutory and common-law federal trademark infringement, and state-law trademark infringement. Docket No. 214.
Defendants have also asserted a number of counterclaims alleging that Plaintiffs wronged them in surreptitiously assigning the MP5 IP rights during the pendency of the 2009 litigation; Defendants also bring counterclaims for breach of the Settlement Agreement and seek declaratory judgments that Plaintiffs lack trade dress rights in the MP5 weapon design and that Defendants are not liable for breach of fhe 2009 Agreement. The tort counterclaims implicate not only HK USA, but also Weber, Ihloff and HKG. Weber signed the Assignment, and Defendants allege that Counter Defendant Ihloff, as a high-ranking officer of HKG, also knew of it. Docket No. 251 at ¶ 27. Defendants initially alleged that an additional agreement between HK USA and HKG arranged for the transfer of trade dress rights and related goodwill associated with the MP5, but after discovery they have asserted that HK USA and HKG completed the assignment in a single signed agreement. Id. at ¶ 26; Docket No. 251 at ¶ 32(f)(v). On September 20, 2012, Ihloff executed a “Ratification and Consent” in which he, on behalf of HKG, announced that the company “hereby ratifies, affirms, and agrees to be bound in all respects to the Settlement Agreement” reached between HK USA and the Defendants. Docket No. 251 at ¶ 34., According to Defendants’ theory, Ihloff and HKG were aware of the false representations contained in the Settlement Agreement at the time they ratified it. Docket No. 274 at 35-39.
The Court subsequently dismissed the actual fraud and constructive fraud claims against Plaintiffs and the two Counter Defendants, and it dismissed the deception and tortious interference claims against Ihloff. Docket No. 215. In its order, the Court primarily addressed Defendants’ failure to establish proximate causation between their alleged damages and the misrepresentations of HK USA and its officers. Id.
Defendants took two steps in response to the Court’s partial dismissal of their counterclaims against HK USA, HKG, Weber, and Ihloff. First, on October 30, 2013, they filed a motion for leave to file an amended answer and counterclaims. Docket No. 228. Second, they filed a motion for reconsideration. Docket No. 235. On January 14, 2014, Magistrate Judge Baker granted Defendants’ motion for leave to amend, and they accordingly filed an Amended Answer that restated all of the counterclaims present in their first Answer — including those that had been dismissed by the Court — and added allegations against Ihloff and HK GmbH based on their ratification of the Settlement Agreement. Compare Docket No. 56 with Docket No. 251. We then granted Plaintiffs’ renewed motion to dismiss as to Counterclaim Count II for constructive fraud, but denied the motion as to all other counts. See Docket No. 298. We denied Plaintiffs’ subsequent motion for reconsideration. See Docket No. 383.
Legal Analysis
Defendants’ Motion to Strike
On March 17, 2014, Defendants filed a motion to strike elements of Plaintiffs’ Answer and affirmative defenses to Defendants’ Amended Counterclaims. Docket No. 282. The pleading that was the subject of this motion, however, has since been replaced by Plaintiffs’ Amended Answer to Defendants’ Amended Counterclaims [Docket No. 304], filed on May 29, 2014.
Plaintiffs’ amended answer supersedes their previous answer, and it therefore renders Defendants’ motion to strike moot. See Massey v. Helman, 196 F.3d 727, 735 (7th Cir.1999); Loren Specialty Mfg. Co. v. Clark Mfg. Co., 241 F.Supp. 493, 500 (N.D.Ill.1965) (noting that amended answers, like amended complaints, supersede the previous'pleading); Horton Archery, LLC v. Farris Bros., Inc., 2014 WL 1239382, at *2 (S.D.Miss. Mar. 26, 2014) (noting that the filing of an amended answer moots a pending motion to strike).
We therefore DENY Defendants’ motion to strike without prejudice.
Motions for Summary Judgment
Standard of Review
Federal Rule of Civil Procedure 56 provides that summary judgment should be granted when the record evidence shows that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. Pro. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-823, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The purpose of summary judgment is to “pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Disputes concerning material facts are genuine where the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In deciding whether genuine issues of material fact exist, the court construes all facts in a light most favorable to the non-moving party and draws all reasonable inferences in favor of the non-moving party. See id. at 255, 106 S.Ct. 2505. However, neither the “mere existence of some alleged factual dispute between the parties,” id., 477 U.S. at 247, 106 S.Ct. 2505, nor the existence of “some metaphysical doubt as to the material facts,” Matsushita, 475 U.S. at 586, 106 S.Ct. 1348, will defeat a motion for summary judgment. Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687, 692 (7th Cir.2000).
Plaintiffs and Defendants have both filed motions for summary judgment. Plaintiffs seek summary judgment in their favor on Counts I and III through IX of Defendants’ Counterclaims, while Defendants move for judgment on all of their own counterclaims and all of Plaintiffs’ extant claims.
I. Counterclaim Count I&emdash;Fraud
Count One of the amended counterclaims alleges actual fraud against HK USA, HK GmbH, Weber, and Ihloff. To prevail on a fraud claim based pn an affirmative misrepresentation, a plaintiff must establish that there was: (1) a material misrepresentation of past or existing fact which (2) was untrue, (3) was made with knowledge of or in reckless ignorance of its falsity, (4) was made with the intent to deceive, (5) was rightfully relied upon by the complaining party, and (6) which proximately caused injury or damage. Lawyers Title Ins. Corp. v. Pokraka, 595 N.E.2d 244, 249 (Ind.1992); Angel v. Powelson, 977 N.E.2d 434, 444-445 (Ind.Ct.App.2012).
Defendants allege that HK USA and its president Weber engaged in fraud when they falsely represented in the 2009 Settlement Agreement that HK USA held the registered trademark and associated rights for the MP5 weapon when, in fact, they had assigned away those rights to HKG some six months earlier. Plaintiffs insist that summary judgment be granted on the fraud counterclaim because: (1) there is no proof that Plaintiffs acted with intent to deceive, (2) Defendants cannot prove that they relied on any misrepresentations and that such reliance proximately caused them damages, and (3) the claim is barred as a matter of law by Indiana’s “litigation privilege.” We address Plaintiffs’ new litigation privilege defense first, before considering whether Defendants have set forth facts sufficient to satisfy the legal elements of a fraud claim.
A. Litigation Privilege
Indiana’s “litigation privilege” is a common-law doctrine barring liability for certain statements made in the course of .judicial proceedings. Van Eaton v. Fink, 697 N.E.2d 490, 494 (Ind.Ct.App.1998). The privilege is based on the idea that the “public interest in the freedom of expression by participants in judicial proceedings ... is so vital and necessary to the integrity of our judicial system that it must be made paramount to the right of the individual to a legal remedy when he has been wronged.” Briggs v. Clinton Cnty. Bank & Trust Co., 452 N.E.2d 989, 997 (Ind.Ct.App.1983). Because it embodies the value of “freedom of expression,” the privilege originally applied only to bar actions for defamation arising out of statements in the course of litigation. See Hartman v. Keri, 883 N.E.2d 774, 777 (Ind.2008); Miller v. Reinert, 839 N.E.2d 731, 735 (Ind.Ct.App.2005). The Seventh Circuit, however, has recently endorsed a limited expansion of Indiana’s privilege “beyond defamation and other similar tort claims to encompass breach of contract claims”; in its 2010 decision in Rain v. Rolls-Royce Corp., 626 F.3d 372 (7th Cir.2010), the court ruled that the privilege barred a breach of contract suit asserting that a party’s statements in the course of litigation violated its obligations under a prior “non-disparagement” covenant. 626 F.3d at 376-378,
In reaching this ruling, the Rain court noted that Indiana law was silent on the precise question at hand, and the court therefore “examine[d] the reasoning of courts in other jurisdictions addressing the same issue and applying their own law for whatever guidance about the probable direction of state law they may provide.” Rain, 626 F.3d at 377 (quoting Pisciotta v. Old Nat'l Bancorp, 499 F.3d 629, 635 (7th Cir.2007)). Plaintiffs urge that we follow that practice here, and they present a series of state court decisions in California, Florida, and New Jersey that extend the litigation privilege to bar actions for fraud (or similar torts) stemming from representations made in the course of judicial proceedings. See Docket No. 330 at 24-27; Silberg v. Anderson, 50 Cal.3d 205, 266 Cal.Rptr. 638, 786 P.2d 365, 370 (1990) (noting that the privilege can extend to all actions except malicious prosecution and approving its application to an intentional tort claim arising out of an attorney’s lies about the identity of a witness); Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So.2d 606, 607-608 (Fla.1994) (extending privilege to bar a tortious interference action); Giles v. Phelan, Hallinan & Schmieg, LLP, 901 F.Supp.2d 509, 523-524 (D.N.J.2012) (applying the privilege in “expansive” fashion to apply to a number of torts).
In doing so, however, Plaintiffs ignore a caveat crucial to the Seventh Circuit’s reasoning in Rain — that expansion of the doctrine is appropriate “where immunity from liability is consistent with the purpose of the privilege.” 626 F.3d at 377. Rain and the cases it cited applied the litigation privilege to claims broadly analogous to defamation; in such contexts, concern for the integrity of judicial proceedings — including the* protection of statements or disclosures otherwise actionable — was thought to outweigh the interests ordinarily protected by tort or contract law. Id. (citing Ellis v. Kaye-Kibbey, 581 F.Supp.2d 861, 880-881 (W.D.Mich.2008); Wentland v. Wass, 126 Cal.App.4th 1484, 25 Cal.Rptr.3d 109, 114-115 (2005) (“[Wjhether the litigation privilege applies to an action for breach of contract turns on whether its application furthers the policies underlying the privilege”)). While it is true that Indiana courts have countenanced the limited expansion of the privilege beyond its original scope as a defense to the specific tort of defamation, we are aware of no case in which they have ventured far beyond this core rationale. Cf. Estate of Mayer v. Lax, Inc., 998 N.E.2d 238, 249 (Ind.Ct.App.2013); Rain, 626 F.3d at 378 (“[T]he question [is] whether applying the litigation privilege in this case would promote the due administration of justice and free expression by participants in judicial proceedings.”). Defendants” counterclaim for fraud alleges that HK USA and its agents lied to GSG and ATI during the 2009' litigation about having assigned away the trademark rights upon which the suit was predicated; we determine that this is not analogous to a suit for defamation or breach of a non-disparagement covenant. See Estate of Mayer, 998 N.E.2d at 250 (noting that the privilege does not shield from causes of action “based on the malicious or abusive use of the judicial system”). Barring suits for fraudulent inducement of settlement agreements would undermine, rather than buttress, the integrity and openness of the judicial process that the litigation privilege seeks to protect. See Tru-Cal v. Conrad Kacsik Instrument Sys., Inc., 905 N.E.2d 40, 46 (Ind.Ct.App.2009) (recognizing a cause of action for fraudulent misrepresentation in procuring a settlement of litigation). Accordingly, we decline to anticipate or predict that Indiana courts would construct the privilege so expansively. Defendants’ fraud counterclaim may thus stand or fall on its merits.
B. Material Misrepresentation and Intent to Deceive
The first broad prerequisite for fraud liability is the existence of an intentionally deceptive written statement. In order to give rise to liability, Plaintiffs’ alleged statements in the Settlement Agreement must have been “(1) material misrepresentation[s] of past or existing fact which (2) w[ere] untrue, (3) w[ere] made with knowledge of or in reckless ignorance of [their] falsity, [and] (4) [were] made with the intent to deceive.” Lawyers Title Ins. Corp. v. Pokraka, 595 N.E.2d 244, 249 (Ind. 1992). Defendants. take issue with this formulation of the fraud standard, insisting that a misrepresentation may be actionable if the responsible party knowingly caused another to rely on it, even if it was not made with an “intent to deceive.” Docket No. 349 at 28-29. In support of this— ostensibly — alternative interpretation of the governing Indiana law, Defendants cite Rosenbaum v. Seybold, 2011 WL 3843946 (N.D.Ind. Aug. 30, 2011), which did indeed recite a different formula. The court there stated that a misrepresentation can serve as the basis for fraud liability where-it “was made with knowledge of or in reckless ignorance of its falsity ... [and] was made with the intent to deceive or induce the plaintiff to act.” Rosenbaum, 2011 WL 3843946, at *16 (emphasis added).
The distinction, however, is illusory. As the Indiana courts have explained, the concept of intentionality is inseparable from the tort of fraud. “An intent to deceive, or ‘scienter,’ is an element of actual fraud, whether classified as a knowing or reckless misrepresentation or as an additional element to a knowing or reckless misrepresentation.” Wright v. Pennamped, 657 N.E.2d 1223, 1230 (Ind.Ct.App.1995). See also Francis v. AIT Labs., 2008 WL 4585423, at *5 (S.D.Ind. Oct. 14, 2008). A tortfeasor’s state of mind, of course, can seldom be proved directly; evidence that a defendant knew, or should have known, that a representation would induce reliance is one, of several factors that may be probative of scienter. “Proof of intent to deceive is determined by a review of all of the relevant factors of the particular case.... Where a person knowingly or recklessly makes false representations which the person knows or should know will induce another to act, the finder of fact may logically infer an intent to deceive.” In re McGinnis, 2010 WL 4956376, at *3 (Bankr.S.D.Ind. Nov. 30, 2010) (citing Mayer v. Spanel Int’l, Ltd., 51 F.3d 670, 673 (7th Cir.1995)). Defendants’ proposed definition confuses the required state of mind for fraud with a means of proving such a mental state; they are correct, however, to the extent they assert that their fraud counterclaim can survive summary judgment even if only indirect evidence of Plaintiffs’ intentions exists.
Plaintiffs urge that HK USA’s representations regarding its ownership of the MP5 intellectual property in the 2009 Agreement were not actually false — or, alternatively, that the representations were made in forgivable ignorance of their falsity. According to Plaintiffs, this is because the assignment was not complete until HKG accepted it in June 2010 — and HK USA’s recitations that they still owned the MP5 intellectual property in the 2009 Agreement were thus both true and made in good faith. We are thus presented with two questions: first, whether the Assignment was complete upon execution; and second, if so, whether HK USA and its agents intentionally deceived Defendants in 2009 by failing to disclose the Assignment.
The first question is one of contract interpretation — and may therefore be decided as a matter of law. TW Gen. Contracting Servs., Inc. v. First Farmers Bank & Trust, 904 N.E.2d 1285, 1287-1288 (Ind.Ct.App.2009) (“Summary judgment is especially appropriate in the context of contract interpretation because the construction of a written contract is a question of law.”). Both parties concede that Virginia law governs the Assignment, which was executed in Virginia by HK USA, a firm incorporated in that state. See Am. Compl. ¶ 5; Docket No. 251-2 at 5. Pointing to a decision of the Eastern District of Virginia, McCloskey & Co., Inc. v. Wright, 363 F.Supp. 223 (E.D.Va.1973), Plaintiffs note the general rule that since mutual assent is required for a contract to be valid, “an assignment does not take effect until the assignee has tendered formal acceptance.” 363 F.Supp. at 228 (citing 6A C.J.S. § 73). We can thus conclude as a matter of law that the Assignment was complete only when HKG had manifested its assent to the transfer.
Plaintiffs’ contention that HKG did not manifest this assent until it “accepted” the Assignment in June 2010, however, is contradicted both by the text itself and by Plaintiffs’ previous statements to the Court. The Assignment speaks of the two entities’ meeting of the minds in the past tense, reciting that they had exchanged “good and valuable consideration, receipt of which is hereby acknowledged.” Docket No. 251-2 at 5. In their court filings, Plaintiffs have conceded, implicitly or explicitly, that the Assignment was effective at the date of its execution, just as it appears to be on its face. In a reply brief in support of their motion to amend their complaint, Plaintiffs stated in March 2012 that the MP5 “rights were assigned on March 19, 2009,” and that “[assignment of the registered MP5 marks from HK USA to HK GmbH, a matter of public record, was effectuated March 19, 2009 and recorded on June 20, 2010.” Docket No. 39 at 7, 8-9. More recently, in answering Defendants’ amended counterclaims, Plaintiffs stated that the - “publicly-filed Short Form Assignment speaks for itself.” Docket No. 265 at ¶ 26. Still more recently, in a November 2014 motion for interlocutory appeal of an earlier ruling, Plaintiffs unequivocally state, as “undisputed” facts, that: “HK USA assigned the MP5 trademark to HKG on March 19, 2009” and “HK did not disclose the assignment of the trademark to GSG/ATI before the execution of the Settlement Agreement.” Docket No. 399 at 6, ¶¶ 2, 6. The only evidence that Plaintiffs present to support their theory of a belated 2010 “acceptance” by HKG is the declaration of HKG’s attorney, Isolde Kurz-Cooper. Cooper Deck ¶ 10. Plaintiffs do not claim that there was any written memorialization of this acceptance, nor does Cooper provide any further details than this bare assertion. Even assuming that Cooper had the requisite firsthand knowledge to convert her statement into admissible evidence, we decline to accept Plaintiffs’ newly-proffered and clearly self-serving theory when it cuts so clearly against the consistent body of their own statements on the question. See Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 237 (7th Cir.1991) (“We have consistently held that a genuine issue of material fact cannot be established by a party contradicting his own earlier statements unless there is a plausible explanation for the incongruity.”) (citing Richardson v. Bonds, 860 F.2d 1427, 1433 (7th Cir.1988)).
A genuine issue of material fact remains, however, with respect to Plaintiffs’ intent to defraud. HK USA’s president G. Wayne Weber, who signed both the Assignment and the Agreement on the company’s behalf, did state that he “expected them [GSG, ATI, and Orion] to rely on the representations made by HK” in the discussions leading to the 2009 settlement. Docket No. 332-1 Weber Aug. 2014 Dep.) at 91-92. Nonetheless, he maintained in his testimony that, in his view at the time, the Assignment had no direct bearing on the ongoing 2009 litigation: “I really didn’t compare the two or relate the two. This was an internal document between HKG and HKI, in my opinion.” Docket No. 330-5 Weber June 2014 Dep.) at 55-56. In other words, as Plaintiffs have argued, Weber did not see the Assignment as material to the 2009 Agreement because the settlement expressly bound not only HK USA, but any “parents, subsidiaries, successors, and assigns.” Docket No. 45-1 at 5, ¶ 21. A reasonable jury could infer Plaintiffs’ deceptive intent from the plain words and meaning of the Assignment itself, but Defendants have offered no evidence that directly contradicts Weber’s account. We therefore conclude that the issue of intent cannot be resolved in either party’s favor at this stage of the proceedings.
C. Reliance and Proximate Causation
The intertwined issues of reliance and proximate cause have been the focus of the parties’ arguments through several stages of the litigation. We conclude,' at last, that Defendants have failed to meet their evi-dentiary burden, and that summary judgment on the fraud counterclaim must therefore be granted in Plaintiffs’ favor.
For a claimant to recover under a fraud theory, “it must show that it had a right to rely on the ... misrepresentations and that it did in fact rely on the misrepresentations to its detriment.” Young v. Thompson, 794 N.E.2d 446, 448 (Ind.Ct.App.2003) (quoting Scott v. Bodor, Inc. 571 N.E.2d 313, 321 (Ind.Ct.App.1991)). The right of reliance may often be more difficult to determine than the fact of reliance, for “the legal obligation that a person exercise the common sense and judgment of which he is possessed is a practical limitation on the actionability of various representations.” Plymale v. Upright, 419 N.E.2d 756, 762 (Ind.Ct.App.1981). In order to prevail on their fraud counterclaim, Defendants must therefore establish that they reasonably relied on HK USA’s misrepresentations with respect to its ownership of the MP5 rights contained in the 2009 Settlement Agreement, and that this reliance proximately caused their damages. See Docket No. 251 at ¶¶ 38-39.
1. The right of reliance
The parties first join issue on the right of reliance — whether a litigant in the position of GSG and ATI in the 2009 litigation could ever reasonably rely on the representations of their party opponents in the preliminary clauses of a settlement agreement. In a previous ruling on Plaintiffs’ motion to dismiss the fraud counterclaim, we concluded that Defendants ■ had adequately stated a claim with respect to reliance; in doing so, we refused to foreclose, as a matter of law, the possibility that GSG and ATI could have reasonably relied on Plaintiffs’ misrepresentations in signing the 2009 Agreement. See Docket No. 215 at 16-17. Plaintiffs now urge that no right of reliance ever existed, for two reasons: first, because the alleged misrepresentations were only “preliminary recitals” to a contract and thus not the proper subjects of reliance; and second, because adversaries in a lawsuit cannot reasonably rely on the representations of their opponents in arm’s length settlement negotiations.
Plaintiffs assert that, because the preliminary recitals of a settlement agreement are “typically restatements of the very issues over which the parties disagreed in the litigation,” they should not be considered “misrepresentations” giving rise to an opponent’s reasonable reliance. Docket No. 330 at 17-18. “[I]n nearly 200 years of jurisprudence,” they add, “Counterclaim Defendants are not aware of a single Indiana state court opinion holding that the preliminary recitals of a settlement agreement may form the basis of a fraud claim.” Id. While Plaintiffs are correct that Indiana law has not endorsed recovery for a fraud claim based on such “preliminary recitals,” neither has it specifically foreclosed such a possibility. Rather, Indiana courts have recognized that preliminary recitals, although less probative than the language of the “body” of a contract, may be useful in interpreting the contract as a whole. In Stech v. Panel Mart, Inc., 434 N.E.2d 97 (Ind.Ct.App.1982), the Indiana Court of Appeals read a preliminary recital as “clearly establishing] the intention of the parties” and as “erasing] the ambiguity” which clouded the body of the contract as to its meaning. 434 N.E.2d at 101. Cf. Kerfoot v. Kessener, 227 Ind. 58, 84 N.E.2d 190, 199 (1949) (observing that “the preliminary recitals of the contract may be of some value, but they are not contractual, and can not [sic] be permitted to control the express provisions of the contract which are contractual in nature”).' The Seventh Circuit, in a decision applying Indiana law, ruled that a party was estopped from reciting in a contract’s preliminary clauses that it was “engaged in the business of selling scientific and rare earth metals” and then later claiming to be inexperienced in the subject. Taurus Holding Co. of Am., Inc. v. Thompson, 129 F.3d 1268, at *36 (7th Cir.1997). To be sure, where a settlement agreement expressly states that its contents are jointly authored, as does the Agreement here, see Docket No. 45-1 at ¶ 15, it is implausible as a matter of fact that one party could “rely” on any statement contained in the agreement, or that such reliance would be reasonable — as we discuss below. But we believe it is fair to construe the statements that “HK owns a federal trademark registration in the mark ‘MP5’ ” and “HK claims to own in the United States a proprietary trade dress comprised of the design of certain elements of the MP5 firearms” as the distillation of HK USA’s litigation stance, which it was reaffirming in writing by endorsing the jointly-constructed Agreement. Docket No. 45-1 at 1, ¶ 15.
Second, Plaintiffs assert that GSG, ATI and Orion cannot have reasonably relied on HK USA’s representations in the Agreement because it was a settlement negotiated at arm’s length, and as such, Defendants’ “duty ... to be diligent in safeguarding [their] interests” foreclosed any right of reliance. See Young, 794 N.E.2d at 449 (citing Plymale, 419 N.E.2d at 762). In doing so, they rely primarily on Prall v. Indiana National Bank, 627 N.E.2d 1374 (Ind.Ct.App.1994), in which the Indiana Court of Appeals rejected the argument of a party to a liability release agreement that it had been fraudulently induced to sign the agreement- by false oral representations. 627 N.E.2d at 1378-1379. There, the court found that the plaintiff had “presented no evidence or argument to show that [defendant’s] alleged misrepresentations about the disbursements induced him to sign the release .... Also, in executing the release [plaintiff] was an adverse party dealing at arms length with [defendant].” Id. at 1379.
We agree with Defendants that the present case is distinguishable, and the general rule Plaintiffs seek to derive from Prall is overbroad. Prall dealt with an agreements integration clause, and the policy interest in reconciling the possibility of claims for fraudulent inducement with the dictates of the parol evidence rule. As the Indiana court in a similar case put it; “The exception for a party who has ‘been induced by a fraudulent misrepresentation to enter the contract,’ must not be stretched or inflated in a way that would ‘severely undermine the policy of the parol evidence rule.’ ” Circle Ctr. Dev. Co. v. Y/G Ind., L.P., 762 N.E.2d 176, 180 (Ind.Ct.App.2002) (quoting Urschel Farms, Inc. v. Dekalb Swine Breeders, Inc., 858 F.Supp. 831, 840 (N.D.Ind.1994)). Here, Defendants do not seek to void a release on the grounds that it was fraudulently induced by oral statements; rather, the misrepresentations to which they point are present on the face of the Agreement itself. See Tru-Cal, Inc. v. Conrad Kacsik Instrument Sys., Inc., 905 N.E.2d 40, 46 (Ind.Ct.App.2009) (distinguishing Prall, which “dealt with alleged oral misrepresentations made prior to the execution of the contract,” from facts in which “the alleged fraud ... involves a forged employment agreement that was filed in a court of law”).
Plaintiffs also overreach in citing Prall as establishing a general rule that “[a] prerequisite to the right of reliance is that the relying party be in a subordinate position.” Docket No. 330 at 19 (citing Prall, 627 N.E.2d at 1379). Instead, Indiana law cautions that while a party who was not in a subordinate bargaining position may still be the victim of fraud, such a party has no excuse from its duty to “exercise the common sense and judgment of which he is possessed.” Thompson, 794 N.E.2d at 448. “[Wjhere persons stand mentally on equal footing, and in no fiduciary relation, the law will not protect one who fails to exercise common sense and judgment.” Id. (quoting Plymale, 419 N.E.2d at 762). This means, for instance, that a party negotiating at arm’s length- — • and represented by an attorney — cannot claim to have been defrauded by an agreement he failed to read carefully. See Plymale, 419 N.E.2d at 762 (“Common sense dictates, and our system of jurisprudence requires ... that parties engaged in the negotiation of a contract ... be obligated to protect their interest by reading the attendant documents before signing.”). Nor can a party to an agreement claim that he was defrauded if he “plainly had the means at hand to unearth the fraud” before signing on. See Tru-Cal, 905 N.E.2d at 46. Here, however, it is not apparent that the falsity of HK USA’s representation could have been revealed by the exercise of reasonable diligence. Although it may true, as Plaintiffs insist, that the PTO website showed a record of HKG’s request that its own application for the MP5 trademark be held in abeyance because an assignment of the rights from HK USA was “being worked,” Docket No. 330-3 at 22, accessing this information would hardly have given GSG and ATI notice that the assignment was complete. See Docket No. 363 at 3. PTO records showed as of October 2009 that HK USA was the registered holder of the MP5 trademark, and indeed it still was; neither the PTO nor anyone else outside the Heckler & Koch corporate family was apparently aware that an assignment of the rights had already been executed. Under such circumstances, we cannot conclude that any reliance upon HK USA’s alleged misrepresentations would have been inherently unreasonable.
2. The fact of reliance
It is upon the fact of reliance that Defendants’ fraud counterclaim founders. In denying Plaintiffs’ motion to dismiss, we concluded that Defendants had successfully pleaded their reliance, judging that “it is at least plausible that [Defendants’] willingness to pay $300,000 to settle the [2009] litigation reflected their judgment that HK’s claims of trademark infringement had merit — a judgment informed by HK’s representations that it owned the MP5 trademark.” Docket No. 215 at 16-17. In a second ruling on Plaintiffs’ motion to dismiss the amended counterclaim, we held that Defendants had also sufficiently pleaded proximate causation. See Docket No. 298 at 17-23. We have also observed, however, that Defendants’ theories face an “uphill evidentiary climb” — for in order to prevail on their claim, they must “reconstruct history, showing that a misrepresentation caused them damages they would not have suffered otherwise.” Docket No. 298 at 29-30. As the Seventh Circuit has often bluntly stated, “summary judgment is the ‘put up or shut up’ moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events.” Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir.2003) (quoting Schacht v. Wis. Dep’t of Corr., 175 F.3d 497, 504 (7th Cir.1999)). Measured against that standard, we find Defendants’ evidence of reliance wanting.
The strongest evidence weighing against Defendants is the Settlement Agreement itself. One of the Agreement’s preliminary recitals reads as follows:
WHEREAS, GSG, ATI and Orion have filed in said Lawsuit Defendants’ Answer and Counterclaim in which they seek a judgment declaring, inter alia, that their activities do not infringe, and have not infringed, any intellectual property rights of HK or otherwise violate any law, and that HK does not own the trademark, trade dress and other intellectual property rights it claims to own.
Docket No. 45-1 at 1. In the body of the Agreement itself, Defendants make the following statement:
9. No admission of liability. In entering into this Agreement, Defendants make no admission of liability for the claims made against them in the Lawsuit or otherwise acknowledge the existence of any rights claimed by HK Similarly, HK makes no admission of the validity of Defendants’ contentions and/or claims in this proceeding against HK.
Id. at ¶ 9 (emphasis added). Defendants counter that these statements in the Agreement are “nothing other than a rephrasing of Defendants’ counterclaim in the 2009 Litigation,” and were not intended to reflect Defendants’ actual belief at the time the Agreement was signed. Docket No. 349 at 25,. This argument is a double-edged sword for Defendants: if these contractual statements are not construed as “representations” on their part, then the preliminary recitals on which the entire fraud counterclaim is based — whose language is markedly similar — can hardly be construed as “representations” themselves. See Docket No. 45-1 at 1. The Agreement stipulates that it has been “drafted jointly by all of the parties” in its entirety. Id. at ¶ 15. Either this nominal joint authorship renders its characterizations of the parties’ respective positions unfit to be attributed to either party individually — in which case the foundation of the fraud counterclaim falls away entirely for lack of any specific misrepresentation on Plaintiffs’ part — or the parties’ statements therein should be taken at face value, in which case Defendants expressly disclaimed reliance. Id. at ¶ 9.
Even if we look beyond the Agreement’s text, Defendants have proven unable to show any affirmative evidence that they relied upon Plaintiffs’ false statement of ownership to their detriment. Defendants argue that they assumed in October 2009 that HK USA owned the trademark and trade dress that it claimed to own, and that it was only based on that assumption that they were willing to pay HK USA $300,000 and cease production of their GSG-5 weapon. Docket No. 349 at 23. It is a plausible explanation. But there is at least one other plausible explanation — that GSG and ATI settled in order to put an end to expensive litigation, stifle bad publicity, or protect business relationships, and that they meant what they said in the Agreement disclaiming any reliance on HK USA’s claim to have enforceable rights in the MP5. At any rate, argument — no matter how plausible — is insufficient to survive summary judgment; Defendants need evidence supporting an inference of reliance. They must show evidence permitting a fact-finder to conclude not only that signing the Agreement with Plaintiffs turned out to be a bad deal for Defendants, but that Defendants entered into that Agreement — and incurred those damages — specifically in reliance upon the misrepresentations at issue.
Defendants point to three pieces of testimony on the question, but none suffices to carry their burden. The first is the deposition of ATI president Anthony DiChario, who answered a question on cross-examination as follows:
Q: So if what I’m understanding is correct, the only thing that would have kept you from signing that very same Settlement Agreement with HK Germany as opposed to HK USA was your belief, whether correct or not, that HK Germany is not allowed to bring a lawsuit in this country against you; is that right?
A: I told you I would not settle the suit with [HK] Germany. There would be no cause to it, no reason, no ability for them to control the commerce here in America unless they had an interest like HK USA here. I know that. I knew that when the suit started and it’s not an option. I would not settle.
Docket No. 332-7 (DiChario Dep.) at 307. DiChario’s testimony speaks to the strategic considerations governing the decision to settle a hypothetical 2009 suit initiated by HKG rather than HK USA; he did not testify as to whether GSG and ATI actually believed HK USA’s representations or acted according to that belief.
Second, Defendants point to the testimony of GSG president Michael Swoboda, who testified in 2012 to his understanding of the nature of his company’s fraud counterclaim against HK USA:
Q: Can you describe for me what your understanding was of the nature of those [counterclaims?
A: One point is as I know that we have made a Settlement Agreement with the company. They have had no rights at all. So I’m a German, I know a little bit [sic] German. I’m not familiar with the U.S. law, but I can speak only for German law. If you make an agreement with company [sic] that has no rights it’s fraud and my opinion is [that this] Settlement Agreement we have made is only confetti, nothing more, because this company has had- no rights at all, because they refer to the rights of another company.
Docket No. 332-2 (Swoboda Dep.) at 318-319. Mr. Swoboda’s testimony establishes that, as of 2012, he believed that his company had been defrauded by HK USA — at least according to the standards of German law. It says nothing at all, however, about whether Defendants relied on the misrepresentations at issue in 2009.
Finally, Defendants refer us to the testimony of their expert Dr. Kenneth Ger-main, who opined:
The ownership issues that had developed by the time of the Settlement Agreement in the 2009 litigation so significantly undermined the validity of the MP5 registration and the enforceability of the MP5 mark that the HK Entities had unwarranted leverage to extract concessions from GSG/ATI because of the HK Entities’ failure to disclose the vulnerability of the trademark to GSG/ ATI.
Docket No. 251-3 (Germain Report) at 6. Accepting Germain’s opinions as correct for the purposes of this motion would support the conclusion that the Settlement Agreement was worth less than the price Defendants paid for it. But as an outside expert, Germain did not, and could not, testify to' the separate question of whether HK USA’s “unwarranted leverage” actually influenced Defendants’ calculations in signing the Agreement.
It seems clear to us that HK USA, at the very least, conducted itself in an underhanded manner by initiating a suit for trade dress infringement, assigning away the rights that formed the basis of the suit, and then settling the suit without disclosing the Assignment. Such behavior may have been subject to sanction by the court with jurisdiction over the 2009 Litigation. Liability for fraud is a different matter, however. As regrettable as it may be to allow such a failure of forthrightness to go unpunished, the law intentionally gives fraud claimants a steep mountain to climb, for “fraud is easy to allege and difficult to prove.” See Bower v. Jones, 978 F.2d 1004, 1012 (7th Cir.1992). Defendants’ claim here is fatally undermined by the plain text of the Agreement disavowing any reliance. While we recognize, of course, the abstract possibility that such language was disingenuous boilerplate, a reasonable fact-finder would need affirmative evidence to find it so. Defendants have come forth with some evidence that the Agreement was harmful to their interests, but not that it was Plaintiffs’ misrepresentations, rather than other considerations, that prompted them to enter into it.
We accordingly GRANT Plaintiffs’ motion for summary judgment on Counterclaim Count I and DENY Defendants’ motion for summary judgment on that count.
II. Counterclaim Count III — Deception Under Indiana Code § 35-43-5-3(a)
Defendants’ Counterclaim Count III seeks treble damages under the Crime Victim Relief Act for Plaintiffs’ crime of “deception.” Docket No. 251 at ¶¶ 69-72. Both parties seek summary judgment on this count.
Indiana’s Crime Victim Relief Act (CVRA), Ind.Code § 34-24-3-1, provides that a person who “suffers a pecuniary loss” as a result of another person’s violation of certain criminal statutes may recover treble damages and other costs and fees. Ind.Code § 34-24-3-1. Among the crimes for which victims may obtain recovery under the CVRA is “deception,” a Class A misdemeanor defined for purposes of this action as “knowingly or intentionally makfing] a false or misleading written statement with intent to obtain property, employment, or an educational opportunity.” Ind.Code- § 35-43-5-3(2). The factual allegations underpinning Defendants’ counterclaim for deception are the same as those upon which the fraud counterclaim is based — that Plaintiffs lied about their ownership of the MP5 intellectual property in the 2009 Settlement Agreement. Docket No. 251 at ¶¶ 69-70.
Plaintiffs' seek summary judgment on three grounds: that the counterclaim is barred by the CVRA’s statute of limitations, that Defendants have failed to establish the prerequisite elements for tort recovery, and that the counterclaim is barred by Indiana’s litigation privilege. Plaintiffs’ argument for the application of the litigation privilege merely reprises the theory they, presented in relation to the fraud counterclaim, see Docket No. 330 at 33; we therefore reject that argument for the same reasons we outlined above. We address Plaintiffs’ two remaining arguments in turn.
A. The Statute of Limitations
Because claims under the CVRA are “penal” in nature, Indiana courts have determined that a two-year statute of limitations applies. Clark v. Univ. of Evansville, 784 N.E.2d 942, 945-946 (Ind.Ct.App.2003) (citing Browning v. Walters, 616 N.E.2d 1040, 1046 (Ind.Ct.App.1993)). As Defendants point out, however, the state’s “fraudulent concealment” statute may influence the two-year period’s starting point: “If a person liable to an action conceals the fact from the knowledge of the person entitled to bring the action, the action may be brought at any time within the period of limitation after the discovery of the cause of action.” Ind.Code § 34-11-5-1 (emphasis added). This provision “effectively moves the date on which the statute of limitation^] begins to run forward from the date of the alleged tort to the discovery date.” Alldredge v. Good Samaritan Home, Inc., 9 N.E.3d 1257, 1262 (Ind.2014) (citing Malachowski v. Bank One, Indianapolis, 590 N.E.2d 559, 563 (Ind.1992)).
Defendants first asserted this deception counterclaim on July 13, 2012, when they filed their first Answer and Counterclaims. See Docket No. 56. The claim is therefore barred by the two-year statute of limitations if Defendants knew of, or should have known of, the alleged deception before July 13, 2010. See Laun v. Laun, 2008 WL 90778, at *12-15 (N.D.Ind. Jan. 9, 2008). Plaintiffs insist that, even if the “date of discovery” rule applies, the two years should have begun to run on June 20, 2010, when Plaintiffs filed the Assignment with the PTO — thus, according to their account, giving Defendants “constructive notice” of the alleged deception they had suffered. Docket No. 330 at 31-32 (citing 15 U.S.C. § 1060(4)).
The key issue raised by Plaintiffs’ statute of limitations defense is therefore whether, and for how long, Plaintiffs concealed the Assignment from Defendants after the date the alleged harm occurred in 2009. “The law narrowly defines concealment, and generally the concealment must be active and intentional.” Olcott Int’l & Co. v. Micro Data Base Sys., Inc., 793 N.E.2d 1063, 1072 (Ind.Ct.App.2003). “The affirmative acts of concealment must be calculated to mislead and hinder a plaintiff from obtaining information by the use of ordinary diligence, or to prevent inquiry or elude investigation. There must be some trick or contrivance intended by the defrauder to exclude suspicion and prevent inquiry.” Johnson v. Blackwell, 885 N.E.2d 25, 32 (Ind.Ct.App.2008). As to the alleged victim, “to invoke the protection provided by this statute ... the plaintiff is charged with the responsibility of exercising due diligence to discover the claims.” Malachowski, 590 N.E.2d at 563-564 (citing Hinds v. McNair, 235 Ind. 34, 129 N.E.2d 553, 560 (1955)).
This is a strenuous standard, and Plaintiffs lean on it, arguing that, had Defendants exercised due diligence, they would have discovered the publicly-available PTO record of the assignment any time after HKG registered it in June 2010. Docket No. 330 at 32 (citing Docket No. 251-2). But even if it is true that Plaintiffs were guilty of no “active and intentional” concealment after they registered the Assignment with the PTO, it would be unreasonable to expect GSG and ATI to be vigilant in searching PTO records in June 2010 on the off-chance that they might find that HK USA had deceived them in a long-since-completed negotiation. HK USA’s failure to disclose the Assignment when the disclosure would have had relevance— that is, during the 2009 litigation — was arguably the type of concealment necessary to toll the limitations period. Defendants state that they did not learn of the Assignment until Plaintiffs incidentally disclosed it on February 10, 2012 in the connection with the current litigation, and they asserted the deception counterclaim some five months thereafter. See Docket No. 39 (Plaintiffs motion to amend complaint). Summary judgment is inappropriate on Plaintiffs’ statute of limitations defense where there is at least a question of fact as to whether, in the exercise of reasonable diligence, Defendants should have known about the cause of action before they actually learned of it. See Laun, 2008 WL 90778, at *12-15 (finding summary judgment not warranted on a CVRA claim because there was a genuine factual issue regarding the claimant’s date of discovery). The statute of limitations issue is ultimately academic, however, because Defendants have not established the necessary elements of their deception claim.
B. Elements of the Deception Claim [14,15] The CVRA is “punitive in nature and must be strictly construed.” Flaherty & Collins, Inc. v. BBR-Vision I, L.P., 990 N.E.2d 958, 968 (Ind.Ct.App.2013); NationsCredit Commercial Corp. v. Grauel Enters., Inc., 703 N.E.2d 1072, 1078 (Ind.Ct.App.1998). In order to obtain a civil recovery under the statute, Defendants must accordingly “show a violation of at least one of the code sections listed in the statute and must demonstrate that the violation caused the loss suffered by the plaintiff.” Flaherty, 990 N.E.2d at 968 (citing McLemore v. McLemore, 827 N.E.2d 1135, 1144 (Ind.Ct.App.2005)).
In addition to proof of a prohibited act and proximate causation, Plaintiffs contend that Defendants are required to establish reliance, just as they were in order to recover for fraud. Docket No. 330 at 32. Plaintiffs rely for this assertion, primarily on Puller Mortgage Associates, Inc. v. Keegan, 829 F.Supp. 1507 (S.D.Ind. 1993), a decision in which the Southern District of Indiana court found that deception and other statutory offenses are “based on and are essentially permutations of’ common law fraud — and thus implicitly endorsed the notion that proof of reliance is a prerequisite of recovery for deception under the CVRA. 829 F.Supp. at 1521. This is not quite correct. As the United States Supreme Court has noted, “[r]eliance is not a general limitation on civil recovery in tort; it ‘is a specialized condition that happens to have grown up with common law fraud.’ ” Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639, 655-656, 128 S.Ct. 2131, 170 L.Ed.2d 1012 (2008) (quoting Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 477, 126 S.Ct. 1991, 164 L.Ed.2d 720 (2006) (Thomas, J., concurring in part and dissenting in part)). In Indiana, of course, “no common-law crimes exist, and the legislature fixes the elements necessary for any statutory crime. We may not read into a statute that which is not the expressed intent of the legislature.” Am. Heritage Banco, Inc. v. McNaughton, 879 N.E.2d 1110, 1117-1118 (Ind.Ct.App.2008) (quoting Knotts v. State, 243 Ind. 501, 187 N.E.2d 571, 573 (1963) (additional citations omitted)). A reliance element is prescribed in neither the deception criminal statute, Ind.Code § 35-43-5-3(a), nor the CVRA statute providing for civil recovery, Ind.Code § 34-24-3-1, nor the Indiana case law interpreting the CVRA, Flaherty & Collins, 990 N.E.2d at 968; Squires v. Utility/Trailers of Indianapolis, Inc., 686 N.E.2d 416, 420-421 (Ind.Ct.App.1997). We therefore decline, in accord with the Indiana courts, to read an explicit reliance requirement into these statutes. See Am. Heritage Banco, 879 N.E.2d at 1118; Decatur Ventures, LLC v. Stapleton Ventures, Inc., 373 F.Supp.2d 829, 851 (S.D.Ind.2005) (“The Plaintiffs must simply show by a preponderance of the evidence that the Defendants committed the crime of deception, and that a