Kirsch ex rel. Kirsch v. Brightstar Corp. (78 F. Supp. 3d 676, 2015)

MEMORANDUM OPINION AND ORDER

Chief Judge Rubén Castillo

Plaintiff Lawrence S. Kirsch, as Shareholders’ Representative of Lawrence S. Kirsch, Charles W. Kriete, Michael J. Chase, and George Puszka (collectively “Shareholders”), brings this diversity action against Brightstar Corporation (“Brightstar”) alleging common law breach of contract. (R. 1, Compl.) Presently before the Court are Brightstar’s motion for partial summary judgment, (R. 117, Def.’s Mot. Summ. J.), and Plaintiffs cross-motion for summary judgment, (R. 124, PL’s Mot. Summ. J.). Additionally, Plaintiff moves to strike some of Brightstar’s responses to Plaintiffs statement of facts. (R. 174, Pl.’s Mot. to Strike Resp.) For the reasons stated below, the Court grants in part and denies in part Brightstar’s motion for partial summary judgment, and grants in part and denies in part Plaintiffs motion for summary judgment. The Court also denies as moot Plaintiffs motion to strike.

RELEVANT FACTS

Before summarizing the facts of this case, the Court first addresses Plaintiffs motion to strike several of Brightstar’s responses to Plaintiffs Local Rule 56.1 statement of facts. (R. 174, Pl.’s Mot. to Strike Resp.) Local Rule 56.1 requires the non-movant’s response to the movant’s statement of facts to contain, “in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon[.]” L.R. 56.1(b)(3)(B). Plaintiff argues that more than half of Brightstar’s responses to his statement of facts violate Local Rule 56.1(b)(3)(B) because they are argumentative, fail to cite to the record, or assert new facts. (R. 174, PL’s Mot. to Strike Resp.) The Court has carefully reviewed and considered Plaintiff’s objections. To the extent that any of Brightstar’s responses are argumentative, conclusory, or fail to cite the record, the Court disregards them. See Greene v. CCDN, L.L.C., 853 F.Supp.2d 739, 744 (N.D.Ill.2011). To the extent that any of Brightstar’s responses contain new facts that do not specifically refute Plaintiffs fact statement to which they are responsive, the Court disregards the new facts. Id. Accordingly, Plaintiffs motion to strike is denied as moot.

1. Background

Shareholders are all individuals residing in Illinois or New Hampshire, and Brights-tar is a Delaware corporation with its principal place of business in Florida. (R. 146, Def.’s Rule 56.1 Resp. ¶ 1.) Brightstar was founded in 1997 by Marcelo Claure, and is currently the world’s largest wireless device distribution company. (R. 151, PL’s Rule 56.1 Resp. ¶ 2.) Brightstar’s main business is to distribute wireless devices to the “telecom channel,” which means retailers, wireless carriers who maintain their own retail stores, and small dealers. (Id.)

Shareholders collectively owned all of the stock of OTBT, Inc. (“OTBT”). (Id. ¶ 3.) In 2010, OTBT was a small technology startup whose business was selling and activating cell phones, accessories, devices, and plans through U.S.-based information technology (“IT”) resellers. (Id. ¶ 4.) OTBT’s target market was non-consumer resellers, that is, resellers whose primary customers were not retail, but rather institutional, such as businesses, governments, or health care facilities. (Id.) On August 31, 2010, OTBT was purchased by Brights-tar pursuant to a Stock Purchase Agreement (“SPA”). (Id. ¶ 3.) Plaintiff was the largest pre-acquisition shareholder and acts as representative of all Shareholders for purposes of this suit. (Id.) Shareholder Charles Kriete was OTBT’s president at the time of the acquisition and worked for OTBT while it was owned by Brightstar. (Id.)

Similar to Brightstar, Tech Data Corporation (“Tech Data”) focuses on distribution and logistics; however, unlike Brightstar, Tech Data’s primary business is the sale and distribution of IT products (computers, servers, printers, etc.) to resellers and other companies operating in what is referred to as the “IT channel.” (Id. ¶ 7.) The IT channel consists of resellers that primarily service institutional end customers, not consumers. (Id.) The IT channel includes value added resellers (“VARs”), which are resellers who sell IT products to customers that are typically businesses (small, medium, or enterprise), governments, or health care institutions. (Id. ¶ 8.) An “IT reseller” can also refer to a VAR. (Id.) However, depending on the context, VAR can have a broader meaning as well, such as any technology reseller. (Id.)

The dispute in this suit involves Brights-tar’s alleged breaches of certain provisions of the SPA. The SPA dictates that Brightstar, as part of OTBT’s purchase price, will pay Shareholders an amount (the “Earn-Out”) that is based upon OTBT’s performance during a subsequent one-year period. The SPA outlines specific requirements for calculating the Earn-Out, and the parties disagree over whether Brighstar followed those requirements and properly calculated the Earn-Out.

II. Brightstar’s Interest in OTBT

In late 2009, Patrick Stokes was hired by Brightstar to help grow the U.S. business, and one growth strategy he focused on was developing sales to enterprise customers. (R. 146, Def.’s Rule 56.1 Resp. ¶ 12.) Stokes helped launch Brightstar’s enterprise group, which Brian Corey became president of in 2010; the role of the group was to assess the services Brights-tar could provide to VARs whose primary end customers were businesses or governments. (Id. ¶¶ 13-14; R. 170, PL’s Resp. Add’l Facts ¶6.) At the same time, Brightstar was also investigating new lines of business altogether, particularly wireless activation services. (R. 151, PL’s Rule 56.1 Resp. ¶ 9.)

In January 2010, Brightstar and Shareholders began discussing a possible acquisition of OTBT. (Id. ¶ 10; R. 164, Def.’s Resp. Add’l Facts ¶ 6.) OTBT’s greatest assets to Brightstar at that time were: (1) its software platform called CellManage; (2) its wireless carrier contracts (a.k.a. activation agreements) with three U.S. carriers, which allowed wireless plans to be activated by VARs and their customers via OTBT’s software platform; and (3) its employees, particularly Shareholders Kriete and Michael Chase. (R. 151, PL’s Rule 56.1 Resp. ¶ 5; R. 164, Def.’s Resp. Add’l Facts ¶ 4.) Activation agreements were very challenging to obtain and were hugely valuable. (R. 151, PL’s Rule 56.1 Resp. ¶ 6.) None of OTBT’s carrier contracts included territories outside of the United States. (Id.) Additionally, OTBT had no reseller customers outside of the United States. (Id.)

According to Shareholder Kriete, Shareholders were at first reluctant to consider Brightstar as an acquirer because Brights-tar’s focus was seen as consumer- and retail-oriented, and Brightstar did not have access to the channel that OTBT required to scale the business. (Id. ¶ 10; R. 146, Defi’s Rule 56.1 Resp. ¶ 19.) Shareholder Kriete expressed these concerns to Stokes' at an initial dinner meeting, and Stokes told Kriete about Brights-tar’s existing joint venture with Tech Data in Europe. (R. 146, Def.’s Rule 56.1 Resp. ¶¶ 19, 21.) Tech Data did business in the IT channel, like OTBT, and so the possibility of a joint venture between Brightstar and Tech Data, which would include the acquisition of OTBT, was discussed. (R. 151, Pl.’s Rule 56.1 Resp. ¶ 10.) Tech Data had access to the kinds of customers OTBT targeted, while Brightstar had access to a mobility product and a distribution infrastructure that Tech Data did not have; neither had a software platform or the carrier contracts necessary to sell activated mobile devices to enterprise customers in the IT channel in the United States. (Id. ¶ 11.) Shareholder Kriete believed a joint venture involving OTBT could potentially augment the existing relationship between Brightstar and Tech Data by providing access to business opportunities in the United States that Brightstar did not then have, namely selling to resellers in the IT channel. (Id. ¶ 13.) This led Shareholders to conclude that an acquisition deal that included a partnership between Brightstar and Tech Data might be a good fit. (Id. ¶ 11.)

III. SPA Negotiations and the Earn-OutProvision

In April 2010, Brightstar’s attorneys drafted a letter of intent reflecting that Brightstar sought to purchase all of the outstanding capital stock of OTBT. (R. 146, Def.’s Rule 56.1 Resp. ¶ 26.) The final version of the letter of intent, dated June 10, 2010, stated that Brightstar would like to purchase OTBT for a total purchase price of $1 million plus debt obligations and payment of a performance-based Earn-Out. (R. 144, Sealed Def.’s Rule 56.1 Resp. ¶ 26.)

According to Corey, who led the negotiations for Brightstar, Shareholder Kriete and Plaintiff were concerned about how the performance-based Earn-Out would be calculated. (R. 151, Pl.’s Rule 56.1 Resp. ¶ 14.) Plaintiff testified in his deposition that one of his main concerns about the Earn-Out was that Brightstar might “play games” by routing sales that should have rightfully been OTBT’s through its other subsidiaries and affiliates in order to avoid paying Shareholders their fair Earn-Out. (Id.) Plaintiff wanted a provision in the SPA that would protect Shareholders from that possibility. (Id. .¶ 15.) Corey testified in his deposition that Brightstar was willing to provide assurances to Shareholders that revenue fairly belonging to OTBT would stay with OTBT. (Id. ¶ 16.) Corey agreed that if sales were made to an IT channel customer and activated through OTBT, but OTBT did not actually record the sale for whatever reason, OTBT would still get credit for the sale. (Id.) Corey testified that Brightstar was selling extensively to non-VAR customers at the time of the acquisition; the protection provided to OTBT would be for business OTBT was bringing to the table, namely, sales to resellers with primarily business customers. (Id. ¶ 17.)

On June 25, 2010, Brightstar sent Shareholders a first draft of the SPA. (Id. ¶ 18.) Several drafts of the SPA were exchanged between the parties and their attorneys with changes being made to the representation and warranty language (the “Representation and Warranty”) in the Earn-Out Provision. (Id. ¶¶ 18-23). The final version of the original SPA was executed by both parties on August 31, 2010, and the transaction closed and payment was made on October 1, 2010. (R. 146, Def.’s Rule 56.1 Resp. ¶ 47.) The Earn-Out Provision in Section 2.1(c) of the SPA provides:

[Brightstar] shall pay to the Shareholders a performance based earn-out (the “Earn-Out”) which shall be deemed additional Purchase Price when paid in accordance with the following:

(i) The Earn-Out shall be linked to tiered milestones of [OTBT’s] GAAP-reported revenue (“Revenues”) and EBITDA derived from any and all sales including, but not limited to, all handsets, information technology devices (including laptops, tablets, net-books, etc.), accessories, activation commission, airtime, and other ancillary service revenue derived through the following channels: Tech Data channel partners, additional IT product distributor relationships such as Ingram Micro or Synnex, and current and future direct [OTBT] and/or [Brightstar] IT reseller channel partners (including wireless carrier partners that utilize [OTBT] for back office support, such as billing on behalf of or activation services) with primary end customers in the commercial (small-medium-large business or enterprise), health care, and government (state, local, education, and federal) markets, for the twelve (12) month period commencing on April 1, 2011 and ending on March 31, 2012 (the “Earn-Out Period”) as shown on [OTBT’s] financial statements as adjusted pursuant to Section 2.1(c)(ii) below. [Brightstar] represents and warrants that, except as set forth in Section 2.1(e)(ii) below, prior to March 31, 2012, neither [Brightstar] nor any of its Affiliates (except [OTBT]) will directly or indirectly sell any products or services which would generate Revenue.

(R. 151, Pl.’s Rule 56.1 Resp. ¶ 25.)

Plaintiff testified that in his view, for a sale to be counted toward OTBT’s “Revenue” if not actually made by OTBT, it would have to go through one of the channel partners identified in the Earn-Out Provision, to a reseller, who would have to have primary end customers in the commercial, health care, or government markets; consumers are not listed as primary end customers in the Earn-Out Provision. (Id. ¶ 26.) Plaintiff testified that no one from Brightstar informed him that Brightstar intended to route business opportunities already in place in Europe or Latin American through OTBT. (Id. ¶ 27.) Plaintiff never told Brightstar that was his expectation, and he also knew of no one from OTBT who expressed such an expectation. (Id.) Plaintiff testified that he “never said [Brightstar] [was] required to route” existing business to OTBT; the complaint, however, alleges that Brightstar was required to route sales to OTBT. (Id. ¶ 29.) Shareholder Kriete did not recall informing Brightstar that he expected the activities of any Brightstar affiliate outside the United States to result in revenue credited to OTBT for purposes of the Earn-Out. (Id. ¶ 30.) Shareholder Kriete also could not recall if anyone from Tech Data had suggested that Brightstar Europe (“BEL”) or other Tech Data revenue would count towards the Earn-Out. (Id.)

The Representation and Warranty makes specific reference to Brightstar’s Affiliates, and “Affiliate” is defined in the SPA as follows:

“Affiliate,” as applied to any Person, means any other Person directly or indirectly controlling, controlled by, or under common control with, that Person. For the purposes of this definition, “control” ... as applied to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of that Person, whether through the ownership of voting Securities or by contract or otherwise. For purposes of this definition, a Person shall be deemed to be “controlled by” a Person if such Person possess, directly or indirectly, power to vote 10% or more of the Securities having ordinary voting power for the election of directors of such Person.

(R. 146, Def s Rule 66.1 Resp. ¶ 34.) “Person” is defined as including natural persons and corporations. (Id.) Claure, Brightstar’s CEO, testified that the Representation and Warranty “[pjretty much [ ] says that [Brightstar and its Affiliates] will not compete with the product that OTBT has, which in [his] opinion would be activation services or [] billing_” (Id. ¶36.)

The Earn-Out is calculated based on the SPA definition of EBITDA (earnings before interest, taxes, depreciation, and amortization). (R. 146, Pl.’s Rule 56.1 Resp. ¶ 43.) Beyond the common usage of the term EBITDA, the parties negotiated several “add-backs” and/or qualifications of expenses that could be assigned to OTBT and computed in the calculation of the EBITDA:

“EBITDA” means, without duplication, calculated in each case in accordance with GAAP, the sum of (i) net income, plus (ii) interest expense to the extent deducted in computing net income, plus (iii) charges against income for foreign, federal, state and local taxes to the extent deducted in computing net income, plus (v) amortization expense, including, without limitation, amortization of goodwill and other intangible assets to the extent deducted in computing net income. The calculation of EBITDA for purposes of this Agreement shall not include expenses related to (y) the retention portion of the Earn-Out accrual plus any additional compensation paid to a Shareholder for taxes attributable to the Earn-Out or (z) bonuses including, but not limited to, variable compensation, payable to individuals whose compensation is included in the calculation of EBITDA including, but not limited to, former Company executives which, for purposes of this Agreement includes any compensation in excess of accepted base salary industry standards. However, business operating expenses allocated to [OTBT’s] business based on a reasonable allocation by Purchaser consistent with allocations to Purchaser’s other subsidiaries shall be included in the calculation of EBITDA.

(Id. ¶ 44.)

IV. The Quartering Provision and Formation of the Joint Venture with Tech Data

Section 2.1(c)(iii) of the original SPA provided a schedule of revenue thresholds, and corresponding EBITDA caps, which would apply to the Earn-Out calculation. (R. 151, PL’s Rule 56.1 Resp. ¶31.) If, during the Earn-Out period, OTBT received at least the. gross revenue set forth in Column A, then the Earn-Out was set to be OTBT’s EBITDA up to the cap specified in Column B:

(Id.) Section 2.1(c)(iv)(y) of the SPA (the “Quartering Provision”) provides:

[Brightstar] further acknowledges and agrees that if it does not enter into a joint venture or similar relationship with one of the JV Partners (the “JV Relationship”) on or prior to March 31, 2011 ... the Earn-Out table set forth in Section 2.1(c)(iii) above shall be modified by dividing each of the Revenue Thresholds set forth in Column A by four (4) and leaving the corresponding EBITDA Cap set forth opposite such Revenue Threshold as is.

(Id. ¶ 82).

Throughout the entirety of the negotiations of the SPA, the parties discussed and intended that Brightstar would form a joint venture (“JV”) with Tech Data to run OTBT. (R. 146, Def.’s Rule 56.1 Resp. ¶ 38.) The intended focus of the JV would be Tech Data’s IT channel/VAR customers in the United States; Tech Data had already been selling IT products to these resellers, and Brightstar brought the ability to sell mobility products to these customers, while OTBT would provide the bundled activation services which neither parent company had at that time. (R. 151, PL’s Rule 56.1 Resp. ¶ 33.)

After the SPA was executed, Brightstar and Tech Data quickly began working toward forming a JV to jointly own OTBT. (Id. ¶ 34.) By October 15, 2010, a steering committee for the JV had been established, and additional steering committee meetings were held thereafter. (Id. ¶ 35.) The Shareholders’ Agreement between Brightstar, Tech Data, and OTBT (the “JV Shareholders’ Agreement”), relating to the operation of OTBT, was executed on March 23, 2011. (Id. ¶ 36.) The JV Shareholders’ Agreement identified the operating territory for the JV as the 50 United States and Puerto Rico. (R. 153, Sealed Pl.’s Rule 56.1 Resp. ¶ 36.) Fully executed copies of both the JV Shareholders’ Agreement and the Stock Purchase Agreement between Tech Data and Brightstar (the “JV SPA”) were circulated on March 28, 2011. (R. 151, PL’s Rule 56.1 Resp. Id. ¶ 36.) The JV SPA specified that the transaction would close by April 29, 2011. (R. 144, Sealed Def.’s Rule 56.1 Resp. ¶ 59.) Tech Data, Brightstar, and OTBT executed their Services Agreement on September 16, 2011. (Id. ¶63.) The Services Agreement set forth the contributions both Tech Data and Brightstar would make to the JV and specified what operating expenses would be charged to the JV. (Id. ¶ 64.) The Services Agreement provided that Tech Data and Brightstar could charge OTBT for services provided to OTBT, such as employee’s services and IT services, as well as management fees. (Id. ¶¶ 65-66.) The Services Agreement also stated that the JV Shareholders’ Agreement was effective as of April 29, 2011. (R. 166, Sealed Def.’s Resp. Add’l Facts ¶ 19.)

On April 11, 2011, Shareholder Kriete emailed Mike Reilly, Brightstar’s director of finance of global enterprise, to inquire whether Reilly had an issue “starting the hiring/onboarding process for the JV,” before the agreement officially closed. (R. 166, Sealed Def.’s Resp. Add’l Facts ¶ 12.) When Shareholder Chase questioned whether OTBT’s website should reference Tech Data, Corey responded: “In less than 10 days when we officially close we can mention [Tech Data].... Until then, look and feel like bstarcorp.com with as little content as possible.” (Id. ¶ 14.) On April 26, 2011, Brightstar’s attorney, Christopher'Tillson, wrote to Shareholder Kriete about his “preparation^] for the implementation of [the OTBT] joint venture.” (Id. ¶ 16.) On May 1, 2011, Shareholder Chase asked Corey what they should put up on OTBT’s website now that the JV is “official.” (Id. ¶ 17.) Lastly, in a July 2011 e-mail, Reilly stated that the JV “started in May.” (Id. ¶ 18.)

V. The Second Amendment to the SPA

During negotiations for the JV with Brightstar, Tech Data stated that it would not run its laptop sales through the JV. (R. 146, Def.’s Rule 56.1 Resp. ¶ 55.) Jeremy Evans, Tech Data’s director of corporate development, explained in his deposition that routing sales of Tech Data’s laptops through OTBT was not financially viable for tax reasons. (R. 151, Pl.’s Rule 56.1 Resp. ¶ 38.) On March 12, 2011, Reilly contacted Shareholders via e-mail to propose a revised schedule for calculating the Earn-Out under the SPA. (Id.) In his e-mail, Reilly explained that contrary to prior assumptions, OTBT would not be credited with revenue from sales of laptops made through Tech Data, although OTBT would be credited with activation commissions. (Id.) “To account for this loss, of revenue,” Brightstar offered to reduce the revenue thresholds stated in Section 2.1(e)(iii) of the SPA by 21.3%, based on the previous assumption in the JV financial models that laptop sales would account for 21.3% of OTBT’s revenues. (Id.; R. 166, Sealed Def.’s Resp. Add’l Facts ¶ 24.) Corey testified that the offered amendment was to “make up for the fact that [Brightstar] couldn’t get laptop revenue to be credited.” (R. 166, Sealed Def.’s Resp. Add’l Facts ¶ 24.)

In a March 23, 2011 e-mail, Plaintiff appeared to object to Brightstar’s proposed amendment, claiming that the Earn-Out Provision of the SPA spells out in great detail that Brightstar will need to incorporate Tech Data laptop revenue in any Earn-Out calculation. (R. 151, PL’s Rule 56.1 Resp. ¶39.) Corey then arranged a call with Plaintiff to explain why the amendment would be “good for” Shareholders. (Id.) Shortly thereafter, Plaintiff asked Brightstar to draft the language for the amendment. (Id.)

The Second Amendment to the SPA (“Second Amendment”) was executed on March 31, 2011, and provides that Section 2.1(c)(iii) of the SPA is amended with a new schedule of revenue and EBITDA:

(Id. ¶ 40.) The Second Amendment does not make any other substantive changes to the SPA. {Id.)

The Second Amendment does not provide any benefit to Brightstar, or new obligation by Shareholders, not already contained in the SPA. (Id. ¶ 41.) Plaintiff testified that in his view, the Second Amendment does not provide for the exclusion of laptop sales in the calculation of OTBT’s Revenue. (Id.) Plaintiff could not articulate any reason the Second Amendment benefitted Brightstar; he instead stated, “Thank you Brightstar, I guess,” and replied that he could not “be responsible if people don’t pay attention to detail.” (Id.) Shareholder Kriete likewise would not acknowledge any reason for Brightstar to reduce the revenue thresholds in the Second Amendment. (Id.) Shareholder Chase also could not identify what Brightstar received in exchange for agreeing to reduce the revenue thresholds. (R. 191, Pl.’s Add’l Rule 56.1 Resp. ¶ 42.) In his answers to Brightstar’s interrogatories, Plaintiff cited nothing Brightstar received for the Second Amendment and stated that he agreed to the Second Amendment because it contained no objectionable language. (Id. ¶ 43.) Also in his answers to Brightstar’s interrogatories, Plaintiff asserted that Tech Data’s laptop sales should have been included in OTBT’s Revenue for purposes of the Earn-Out. (Id.)

Revenues from Tech Data’s laptop sales were not included in OTBT’s Revenue. (R. 164, Def.’s Resp. Add’l Facts ¶27.) OTBT was credited with the activation commission for those sales, however, if the laptops were activated. (Id.)

VI. Operation of OTBT as a Joint Venture

Claure testified that after acquiring OTBT, Brightstar’s enterprise group was rolled into the OTBT JV with Tech Data. (R. 191, PL’s Add’l Rule 56.1 Resp. ¶44.) Corey was the President of the JV until his departure in September 2011. (Id.) On September 21, 2010, Brightstar issued a press release entitled “Brightstar Enters Activation Business in the United States by Acquiring OTBT.” (Id. ¶46.) The press release states: “In addition to the core offering and activation services, Brightstar will also be able to provide U.S.-based VARs with data devices, software, hardware, accessories, technical support, billing management, asset management, training services, and installation services.” (Id.) Corey is quoted in the press release, saying that while Brightstar launched a European presence in 2007 to attempt to sell to the IT reseller channel, the “acquisition of OTBT is a great first step for our United States presence.” (Id.)

As a joint venture, OTBT’s focus was on United States customers. (Id. ¶ 45.) Evans testified that there was no question that Shareholders Kriete and Chase were aware that the intended scope of the JV was the United States and Puerto Rico. (Id.) In an April 4, 2011 Brightstar press release entitled “Tech Data and Brightstar Announce U.S. Joint Venture: [OTBT],” Shareholder Kriete is quoted as follows: “Brightstar and Tech Data bring a new level of wireless distribution expertise in the U.S. market with an offering that is completely unique in this space.” (Id. ¶ 47.) Also in the press release, Tech Data’s CEO states, “We are thrilled to be partnering again with Brightstar to form this U.S.-based joint venture, and to accelerate our participation in the U.S. mobility market.” (Id.) Further, the press release states that OTBT will offer Tech Data’s U.S.-VARs a centralized and customized service. (Id.)

Shareholder Kriete testified that he and the other Shareholders discussed taking OTBT globally during their initial meetings with Brightstar, and that during the Earn-Out period some attempts were made to take the OTBT platform outside the United States. (R. 191, Pl.’s Add’l Rule 56.1 Resp. ¶ 50.) In late 2010, Corey had hopes of using OTBT’s software and business model globally. (R. 144, Sealed Def.’s Rule 56.1 Resp. ¶ 49; R. 166 Sealed Def.’s Resp. Aff 1 Facts ¶ 10.) However, Kriete testified that as of the date of his deposition, the software platform was still not ready to be taken globally. (R. 191, Pl.’s Add’l Rule 56.1 Resp. ¶ 50.) Kriete believed that the reason the software had not been used, globally was due to the delay in implementing the platform by both Brightstar and Tech Data. (Id. ¶ 51.) Corey likewise testified that by the time he left Brightstar in September 2011, there had been no use of OTBT’s personnel or software platform outside of the United States, nor was OTBT’s platform usable outside the United States. (Id.) Corey explained that if the OTBT platform had proven successful in the United States, he would have tried to expand it outside the United States. (Id. ¶ 52.) Claure, Brightstar’s CEO, also testified that OTBT could be taken globally only after it was a proven success in the United States. (Id.)

A Brightstar June 27, 2011 S-l statement filed with the Securities and Exchange Commission (“SEC”) describes Brightstar’s “Government and VARS Services,” which includes: (1) acting as the master agent, where it activates wireless devices; (2) providing a customized billing platform; and (3) distributing and selling software products. (Id. ¶ 48; R. 164, Def.’s Resp. Add’l Facts ¶ 1.) Claure testified that this section of the SEC statement referred to the services Brightstar intended to provide via the OTBT JV. (R. 191, PL’s Add’l Rule 56.1 Resp. ¶ 48; R. 164, Defi’s Resp. Add’l Facts ¶ 1.)

Claure testified that OTBT was “tremendously underperforming” during the Earn-Out period. (Id. ¶ 54.) Dimitry Izo-tov, an accounting manager for OTBT, testified that prior to adding back certain expense items required by the SPA for purposes of the Earn-Out, OTBT had a net loss during the Earn-Out period. (Id.) OTBT’s financial projections were lowered for future years, principally because of the decline of the RIM Blackberry (a staple product of OTBT) and the trend of companies to allow “bring your own device,” which “virtually eliminate^] one of the value adds that OTBT originally brought to the table.” (R. 192, Sealed PL’s Add’l Rule 56.1 Resp. ¶ 54.) Claure concluded that mobility products are incompatible with the corporate IT channel. (Id.)

VII. BEL

Brightstar Europe, Limited (“BEL”) was a joint venture formed between Tech Data and Brightstar in April 2007 to facilitate the distribution of mobility-related products in the European markets; it was not an operating company and thus had no direct sales. (R. 191, PL’s Add’l Rule 56.1 Resp. ¶ 64.) Actual sales were made entirely through Tech Data’s European subsidiaries. (Id.) BEL’s revenue was consolidated on Tech Data’s financial statements. (Id.) Claure testified that Brightstar’s ownership interest in BEL was akin to an investment. (Id. ¶ 65.) Brightstar does not report revenues from Europe on its financial statements and instead accounts for profits from BEL as an investment, reported as “other income (expenses).” (Id.) On its May 23, 2011 S-l statement filed with the SEC, Brightstar stated that it invested $10 million in exchange for a 50% ownership interest in BEL. (Id.) On its June 27, 2011 S-l statement filed with the SEC, Brightstar stated that it conducted business in Europe through BEL, “a joint venture company formed in 2007, which is owned equally and controlled jointly with Tech Data and [Brightstar].” (R. 164, Def.’s Resp. Add’l Facts ¶ 38.) Brightstar and Tech Data each appointed three members to BEL’s Board of Directors; directors were not appointed via voting of the shares. (R. 191, Pl.’s Add’l Rule 56.1 Resp. ¶ 66.) Claure was the Chairman of BEL’s Board of Directors. (R. 144, Sealed Def.’s Rule 56.1 Resp. ¶ 11.) Corey testified that BEL’s employees, however, were controlled by Tech Data and that Brightstar did not dictate BEL’s activities. (R. 191, PL’s Add’l Rule 56.1 Resp. ¶ 66.)

BEL was Brightstar’s first entry into Europe. (Id. ¶ 67.) Claure testified that the vast majority of what BEL did was sell Brightstar’s “telecom products” (mobility products such as phones and tablets) and Tech Data’s IT products (such as laptops) to the “telecom channel,” i.e., mobile carriers, retailers, and dealers. (Id.) BEL was very successful in this regard. (Id.) Only certain Tech Data company sales were to be reported through BEL — sales of IT products to the telecom channel, sales of mobility products to the telecom channel, and sales of telecom products to the IT channel. (Id. ¶ 68.) Sales of IT products through the IT/VAR channel were specifically excluded because that was Tech Data’s “bread and butter” business. (Id.) Brightstar’s June 27, 2011 S-1 statement filed with the SEC states that BEL’s “core services in the region include value-added distribution, government and VARs, and consumer services.” (Id. ¶ 69.) Claure testified, however, that the vast majority of BEL’s profits — in excess of 99% — came from sales to the telecom channel, not the IT/VAR channel. (Id.) Claure stated that BEL was never able to generate many sales of telecom products to the IT/VAR channel. (Id.) Corey likewise testified that in 2010, BEL was only selling to a small number of VARs at all; he believed that sales to IT channel VARs primarily with business customers, if any, were immaterial. (Id.) Claure testified that Brightstar, through BEL, OTBT, or otherwise, has never been successful in taking telecom products into the IT VARs. (R. 192, Sealed PL’s Add’l Rule 56,1 Resp. ¶ 71.) He testified, “I can look you straight in the eye and tell you that miserably failed. We have not been able to do that in the U.S., Europe, Latin American, Asia, nowhere.” (Id.)

A January 2012 Tech Data company profile states that “[tjhrough [BEL], the company distributes mobile phones and other wireless devices to a variety of customers including mobile operators, dealers, agents, retailers and e-tailers in certain European markets.” (R. 191, Pl.’s Add’l Rule 56.1 Resp. ¶ 70.) Further, at a conference in 2014, a Tech Data executive explained that “the opportunity [Tech Data] attacked [with BEL] was distributing phones to those retail outlets in Europe.” (Id.)

BEL’s sales of mobility-related products during the Earn-Out period totaled 1,306,-638,510.11 ($1,688,497,827.00), broken down as follows: (1) sales in Austria were 67,201,592.00; (2) sales in Belgium were 83,132,766.00; (3) sales in the Netherlands were 328,879,679.00; and (4) sales in the remaining European counties were 827,-424,473.00. (R. 144, Sealed Def.’s Rule 56.1 Resp. ¶ 90.) Izotov testified that he never discussed BEL as it related to OTBT with Shareholders Kriete and Chase, and that the three never discussed or analyzed any of the revenues reported through BEL. (R. 191, Pl.’s Add’l Rule 56.1 Resp. ¶ 53.)

Eventually, Tech Data bought out Brightstar’s 50% ownership in BEL. (Id. ¶ 74.) Despite failing to sell telecom products to the IT channel, BEL was considered a great success in selling products to the retail/telecom channel, and Tech Data planned to expand those operations. (Id.)

VIII. Best Buy and Best Buy for Business

Brightstar does significant business with Best Buy, a nationally known retailer. (Id. ¶ 76.) Best Buy has no means of tracking the end users of products sourced by Brightstar to Best Buy. (Id.) Brights-tar does not deal directly with and is not a fulfillment partner for “Best Buy for Business,” the enterprise-focused group within Best Buy. (Id.) However, OTBT has done some business directly with Best Buy for Business.

IX. The Earn-Out Calculation and Filing of the Lawsuit

Izotov, a Tech Data employee, began working for OTBT as an accounting manager. (R. 146, Def.’s Rule 56.1. Resp. ¶ 70.) Under the SPA, Brightstar was required to “prepare the Applicable Finan-cials in good faith and to deliver them to the Shareholder Representative.” (Id. ¶ 72.) In February 2012, Plaintiff e-mailed Izotov asking to review OTBT’s financials for the nine-month period ending December 2011 in relation to the. Earn-Out. (R. 191, Pl.’s Add’l Rule 56.1 Resp. ¶ 55.) On February 24, 2012, Izotov provided Plaintiff and Shareholder Kriete a preliminary calculation, showing that OTBT had $7,614,000.00 in revenue and -$153,000.00 in EBITDA for the nine-month period. (R. 192, Sealed Pl.’s Add’l Rule 56.1 Resp. ¶ 55.) The balance sheet Izotv provided did not attribute to OTBT any revenues originating from BEL or Brightstar’s global Affiliates. (R. 191, PL’s Add’l Rule 56.1 Resp. ¶ 55.) Izotov testified that Shareholder Kriete, who had access to OTBT’s financial information during the entire relevant period, never objected to BEL or Affiliate revenue not being reported on OTBT’s books, (Id.). Kriete stated in his affidavit that he did not raise concerns about sales and other revenue being handled outside of OTBT because he was an employee of OTBT; Plaintiff, as Shareholder Representative, was supposed to handle any issues so that Kriete’s employment would not be affected. (R. 164, Def.’s Resp. Add’l Facts ¶ 34.)

On June 27, 2012, Mike Cost, on behalf of Brightstar, sent a letter to Plaintiff, providing him with OTBT’s official earnings statement ' for the twelve-month Earn-Out period, and informing him that, as defined by the SPA, OTBT’s gross revenue was $16,867,000.00, and EBITDA was $226,000.00; the Earn-Out amount Shareholders were entitled to was thus $226,000.00. (R. 192, Sealed Pl.’s Add’l Resp. ¶ 56.) Izotov performed this Earn-Out calculation. (R. 146, Def.’s Rule 56.1 Resp. ¶ 72.) After Izotov prepared the Earn-Out calculation, it was reviewed by Brightstar’s Vice President of Finance Bjorn Rektorli, Brightstar’s counsel Brad Romig, and Cost. (R. 171, Sealed Pl.’s Resp. Add’l Facts ¶ 8.)

The Earn-Out calculation did not include credit for revenues originating from BEL or Brightstar’s global Affiliates. (R. 191, PL’s Add’l Rule 56.1 Resp. ¶ 57.) When calculating the Earn-Out, Izotov did not inquire from anyone at Brightstar whether it had any “Relevant Sales” that should be included in the Earn-Out. (R. 146, Def.’s Rule 56.1 Resp. ¶ 73.) When calculating the Earn-Out, Izotov did not add back any variable compensation or bonuses because he and Brightstar viewed it as being within industry standards to pay sales commissions and bonuses. (Id. ¶ 75.) Joseph Kalinoski, Brightstar’s corporate representative, testified that he was not aware of any specific analysis that was performed by Brightstar of the base salaries paid to OTBT employees for purposes of determining whether they met or exceeded industry standards. (R. 144, Sealed Def.’s Rule 56.1 Resp. ¶ 76.) When calculating the Earn-Out, Izotov did not compare the business operating expenses Brightstar allocated to its Affiliates. (Id. ¶ 78.) However, according to Brightstar, it did not allocate any of its operating expenses or overhead to OTBT. (Id. ¶ 79.) Kalinoski testified that the allocations of general operating expenses were “de min-imis,” being approximately .05% of OTBT’s revenue. (Id. ¶ 80.) During the Earn-Out period, OTBT paid Brightstar U.S. and Tech Data $2,961,737.00 for various fees and charges. (Id. ¶¶ 81-82.)

Throughout July 2012, Plaintiff requested from Izotov a number of items regarding OTBT’s financial information. (R. 191, PL’s Add’l Rule 56.1 Resp. ¶ 58.) Plaintiff testified that Izotov made “a good effort” to provide him the requested information. (Id.) Izotov also provided Plaintiff information obtained from Brightstar’s human resources department. (Id.) Izotov testified that at a meeting on August 10, 2012, Plaintiff informed Izotov for the first time that he believed all of Brightstar’s earnings relating to BEL should have been included in the Earn-Out calculation, and Izotov found this “shocking.” (Id. ¶ 59.) According to Izotov, prior to that time, Plaintiff had not requested any information about BEL or Brightstar’s global Affiliates’ sales. (Id.)

After Plaintiff challenged the Earn-Out calculation, Izotov added in the variable compensation and came up with a new Earn-Out amount of $554,000.00. (R. 144, Sealed Def.’s Rule 56.1 Resp. ¶ 85.) Izotov explained that he computed this hypothetical amount and left it on the books as an accrual of potential liability if Plaintiff s arguments regarding variable compensation were later accepted. (Id.) This new Earn-Out was never disclosed to Shareholders. (Id.)

Plaintiff began communicating with Cost in August 2012, and continued to assert that the financial information provided by OTBT was incomplete. (R. 191, PL’s Add’l Rule 56.1 Resp. ¶ 60.) Plaintiff and Cost discussed having another meeting in an August 24, 2012 e-mail. (Id.) Before the meeting occurred, however, Plaintiff filed this lawsuit on August 30, 2012. (Id.) Plaintiff did not inform Cost of the filing of the lawsuit prior to or during the meeting. (Id.) Upon learning about the lawsuit after their meeting, Cost informed Plaintiff on September 4, 2012, that further discussions would have to be suspended pending instructions from counsel. (Id.)

Section 2.1(c)(v) of the SPA contains an accounting dispute resolution provision (the “ADR Provision”) which provides that in the event of a disagreement over the Revenues and EBITDA for the Earn-Out calculation, as shown in the Applicable Fi-nancials, the parties would engage in certain efforts to resolve the disagreement. (R. 146, Def.’s Rule 56.1 Resp. ¶45.) “If any objection cannot be resolved, the Shareholder Representative and [Brights-tar] shall each promptly appoint a separate independent accountant ... to determine the applicable Revenue and/or EBITDA for the Applicable Financials, as applicable.” (R. 146, Def.’s Rule 56.1 Resp. ¶ 45; R. 127-8, Ex. W, SPA at 97.) If the parties’ independent accountants cannot agree on the correct Earn-Out calculation, then a third independent accountant is appointed to resolve the dispute. (R. 127-8, Ex. W, SPA at 97.) In summer 2012, Plaintiff shared many if not all of OTBT’s financial documents that he received from Izotov with his accountants, Ron Hornsey and William Polash. (R. 170, PL’s Resp. Add’l Facts ¶ 11.) Plaintiff never informed Brightstar that he was retaining an accounting firm to review these confidential documents, nor did Plaintiff obtain Brightstar’s permission to do so. (Id.) Plaintiff testified that according to his accountant, the Earn-Out could not be calculated at all because the parties did not agree on what the applicable Revenues were; Plaintiff thus filed the lawsuit. (R. 191, Pl.’s Add’l Rule 56.1 Resp. ¶ 61.) Plaintiff then attempted to invoke the ADR Provision of the SPA in a February 8, 2013 letter to Brightstar’s counsel; in the letter Plaintiff suggested that a number of issues purportedly not raised in the original lawsuit, all relating to the calculation of EBITDA rather than Revenue, should be resolved under the ADR Provision. (Id. ¶ 62.) Brightstar explained in response that while it had been trying to resolve these and other issues informally, Plaintiff “chose to litigate rather than negotiate,” and that “it [made] little sense to waste time and energy negotiating a handful of issues that [could not] lead to a resolution of the Earn-Out issue” given that the parties could not agree on what the Revenues even were. (Id.)

X. Details Regarding Disputed Revenue Sources

Brightstar tracks its own customers, i.e., the resellers (dealers, retailers, and carriers), and manages its business by the various channels in which its customers operate. (R. 144, Sealed Def.’s Rule 56.1 Resp. ¶ 93.) Brightstar does not track, however, the individual end-users who purchase products from the resellers. (Id.) Brightstar provided Plaintiff lists of all the customers to whom Tech Data’s subsidiaries sold goods and services during the relevant period, which were reported through BEL and resulted in earnings for Brightstar. (R. 191, Pl.’s Add’l Rule 56.1 Resp. ¶ 73.) Neither Brightstar nor Tech Data can identify any of these entities as resellers with primary end customers in the commercial, health care, or government sectors. (Id.) Plaintiffs expert, Kenneth Malek, also could not say that any of these entities were resellers with primary end customers in the commercial, health care, or government sectors. (Id.) Brightstar is unaware of any sales during the Earn-Out period by any of its Affiliates, other than OTBT, to resellers with primary end customers in the corporate, government, or health care markets. (Id. ¶ 75.)

Brightstar also provided Plaintiff a list of its Affiliates’ customers in Latin America with revenue broken out by “VAR’s” and “Enterprise”; this list recorded a total revenue of $20,835,591.00. (R. 164, Def.’s Resp. Add’l Facts. ¶ 35.) However, Kali-noski testified that the revenues recorded on this list were sales of two-way radios and related infrastructure. (Id.)

Shareholder Kriete testified that his only firsthand knowledge of what he alleges to be a breach of the Earn-Out Provision was an instance where a contact at Best Buy “intimated” to him that Best Buy was “running their Best Buy For Business business through Brightstar directly.” (R. 191, Pl.’s Add’l Rule 56.1 Resp. ¶77.) Kriete also testified that as to Europe, he was “pretty confident that there was probably some sell through of the products to those markets in some areas.” (Id.) Plaintiff testified that his basis for believing that BEL had revenues that should have counted toward the Earn-Out was the profits Brightstar received from its sale of its share of BEL to Tech Data, which were recorded in Brightstar’s June 27, 2011 S-l statement. (Id. ¶ 78.) Plaintiff assumed that OTBT should have been credited for 75% of BEL’s reported revenues, a number he indicated he “pulled [ ] out of the air.” (Id.) Shareholder Chase testified that it was his opinion that “betwixt [Brightstar and Tech Data], they definitely sold, distributed products that qualified under [the SPA].” (Id. ¶ 79.) Chase admitted, however, that none of these alleged sales outside of the United States occurred using any asset of OTBT. (Id.) Similarly to Kriete, Chase testified that the only example of a qualifying sale that OTBT was not credited for, which he could cite to, was an alleged relationship between Brightstar and Best Buy for Business; however, Chase was uncertain as to any details of Brightstar’s relationship with Best Buy for Business. (Id.)

Plaintiff’s expert Malek testified that all he could opine was that OTBT’s revenues during the Earn-Out period were in excess of $19,675 million, but he could not provide any additional specificity. (Id. ¶ 80.) Ma-lek agreed that the extra revenues “were being pursued [by Brightstar] independent of OTBT’s platform, software, activation capabilities, billing management capabilities.” (Id.) Malek believed that some portion of Brightstar’s sales to Best Buy were relevant to the Earn-Out, to the extent that “some portion of those customers are believed to be business end users.” (R. 171, Sealed Pl.’s Resp. to Add’l Facts ¶ 2.) However, Malek did not make any determination of the dollar value of such revenues, and he could not say who Best Buy’s “primary end customers” were. (Id.) Malek could not identity a single “Relevant Reseller” to whom a Brightstar Affiliate sold products or services during the Earn-Out period. (Id. ¶ 3.)

XI. Sale of Brightstar’s Remaining Interest in OTBT to Tech Data

On August 15, 2013, Brightstar executed a second stock purchase agreement with Tech Data whereby it sold its remaining interest in OTBT to Tech Data. (R. 144, Sealed Def.’s Rule 56.1 Resp. ¶ 95.) Tech Data purchased Brightstar’s ownership for a total price of $2,661,000.00; $554,000.00 of that total purchase price represented “the currently accrued [Earn-Out] payable to [OTBT’s] prior shareholders,” which Brightstar was responsible for. (R. 144, Sealed Def.’s Rule 56.1 Resp. ¶ 98.) According to Brightstar, the $554,000.00 amount represented an estimated liability and did not represent what Brightstar believed was actually owed. (Id.)

XII. Plaintiffs Employment at MNJ

Plaintiff at all relevant times was head of sales for MNJ Technologies Direct, Inc. (“MNJ”), a fill service technology reseller focused on servicing the needs of enterprise business, government agencies, and educational institutions. (R. 170, Pl.’s Resp. Add’l Facts ¶ 9.) In early 2013, Plaintiff communicated with individuals of GTSI Corp. (“GTSI”), including a GTSI representative for Department of Defense sales. (R. 171, Sealed Pl.’s Resp. Add’l Facts ¶ 10.) MNJ and GTSI at that time were discussing GTSI using MNJ as a vendor. (Id.)

XIII. Indemnification Provision

The SPA includes an Indemnification Provision in Section 7.4 that states:

Each of the Shareholders, jointly and severally, and [Brightstar] (the indemnifying party being hereinafter referred to as the “Indemnitor”) agree to defend ... indemnify, pay and hold harmless the other party and the officers, directors, employees, agents, heirs, trustees, successors, assigns, and Affiliates of the other party (collectively called the “Indemnitees”), from and against any and all Indemnified Liabilities (as hereinafter defined)....

As used herein, “Indemnified Liabilities” means, collectively, any and all liabilities, obligations, losses, damages ... penalties, actions, judgments, suits, claims ... costs ... expenses and disbursements of any kind or nature whatsoever (including the reasonable fees and disbursements of counsel for In-demnitees in connection with any investigative, administrative or judicial proceedings commenced or threated by any Person, ... whether direct or indirect, whether or not involving a third party claim, and whether based on any federal, state or foreign laws, statutes, rules or regulations ... on common law or equitable cause or on contract or otherwise, that may be imposed on, incurred by, or asserted against any such Indem-nitee, in any manner relating to or arising out of (i) this Agreement, the other Purchase Documents or the transactions contemplated hereby or thereby....

(R. 146, Def.’s Rule 56.1 Resp. ¶ 46; R. 127-8, Ex. W, SPA, at 183.)

PROCEDURAL HISTORY

Plaintiff initiated this action on August 30, 2012, by filing a one-count complaint. (R. 1, Compl.) In his complaint, Plaintiff alleges that Brightstar breached the SPA by failing to route all sales of the agreed upon products and services through OTBT, which would have resulted in Revenue for OTBT, and instead selling the relevant products and services through other affiliated entities. (Id. ¶¶ 9, 38.) On December 12, 2013, Brightstar filed a motion to dismiss the complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (R. 11, Def.’s Mot to Dismiss.) This Court denied Brightstar’s motion to dismiss on September 4, 2013, finding the language in Section 2.1(c)(i) of the SPA ambiguous and susceptible to both parties’ interpretations. (R. 23, Mem. Op. & Order.) The Court additionally granted Plaintiff’s motion for leave to file a supplemental complaint. (Id.) In his supplemental complaint, Plaintiff alleges that Brightstar further breached its obligations under the SPA, including its implied obligations of good faith and fair dealing, by: (1) miscalculating the EBIT-DA; and (2) refusing to participate in the ADR process. (R. 18-1, Supp.Compl.1ff 3, 15-16, 22.)

On September 24, 2013, Brightstar answered both the complaint and supplemental complaint and also raised affirmative defenses. (R. 24, Answer to Compl.; R. 25, Answer to Supp. Compl.) Plaintiff responded to Brightstar’s affirmative defenses on October 15, 2013. (R. 30, Pl.’s Resp. to Affirmative Defenses.) On August 18, 2014, Brightstar moved to amend its answer and add the affirmative defense of failure of consideration as to the Second Amendment to the SPA, (R. 95, Def.’s Mot. to Amend), which the Court granted on October 10, 2014, (R. 138, Mem. Op. & Order).

On . September 22, 2014, Brightstar moved for partial summary judgment, (R. 117, Def.’s Mot. Summ. J.), and Plaintiff moved for summary judgment, (R. 124, Pl.’s Mot. Summ. J.). On October 24, 2014, both parties responded to the others’ motion for summary judgment, (R. 145, Def.’s Resp.; R. 149, Pl.’s Resp.), and on November 7, 2014, both parties replied, (R. 163, Def.’s Reply; R. 172-1, Pi’s Reply). Additionally, on October 24, 2014, Plaintiff moved to strike certain paragraphs of Brightstar’s Local Rule 56.1 statement of facts, (R. 156, Pi’s Mot. to Strike Facts), and on November 7, 2014, moved to strike certain responses in Brightstar’s response to his statement of facts, (R. 174, Pi’s Mot. to Strike Resp.). On November 25, 2014, the Court de'nied Plaintiffs motion to strike certain paragraphs of Brightstar’s statement of facts and ordered Plaintiff to respond to the remaining paragraphs. (R. 184, Order.) Plaintiff responded to the remaining paragraphs on December 5, 2014. (R. 191, Pi’s Add’l Rule 56.1 Resp.)

LEGAL STANDARD

Summary judgment is appropriate when the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(a). “A disputed fact is ‘material’ if it might affect the outcome of the suit under governing law.” Hampton v. Ford Motor Co., 561 F.3d 709, 713 (7th Cir.2009) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A genuine issue of material fact exists when “the evidence is such that a reasonable' jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. In determining whether a genuine issue of material fact exists, the Court must view the evidence and draw all reasonable inferences in favor of the party opposing the motion. Id. at 255, 106 S.Ct. 2505; Omnicare, Inc. v. UnitedHealth Grp., Inc., 629 F.3d 697, 704 (7th Cir.2011) (“[Djistrict courts are not required to draw every requested inference; they must only draw reasonable ones that are supported by the record.”). The moving party has the initial burden of demonstrating that it is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir.2008). The moving party “can prevail just by showing that the other party has no evidence on an issue on which that party has the burden of proof.” Brazinski v. Amoco Petroleum Additives Co., 6 F.3d 1176, 1183 (7th Cir.1993).

Once the moving party has met this burden, the nonmoving party must “come forward with specific facts demonstrating that there is a genuine issue for trial.” Wheeler, 539 F.3d at 634. “The existence of a mere scintilla of evidence, however, is insufficient to fulfill this requirement. The nonmoving party must show that there is evidence upon which a jury reasonably could find for the plaintiff.” Id. (citing Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505.) The nonmoving party may not rely on “mere conclusions and allegations” to create a genuinely disputed issue of material fact. Balderston v. Fairbanks Morse Engine Div. of Coltec Indus., 328 F.3d 309, 320 (7th Cir.2003). Instead, the nonmov-ing party “must make a showing sufficient to establish any essential element of her cause of action for which she will bear the burden of persuasion at trial.” Smith on Behalf of Smith v. Severn, 129 F.3d 419, 425 (7th Cir.1997); see also Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548. Weighing evidence and making credibility decisions are jury functions, and it is not appropriate for a judge to assume those functions when ruling on a motion for' summary judgment. Anderson, 477 U.S. at 255, 106 S.Ct. 2505.

On summary judgment, the Court limits its analysis of the. facts to the evidence that is presented in the parties’ Local Rule 56.1 statements. See Bordelon v. Chi. Sch. Reform Bd. of Trs., 233 F.3d 524, 529 (7th Cir.2000) (referring to Local Rules 12(M) and (N), which were replaced by Local Rule 56). To adequately dispute a statement of fact, the opposing party must cite specific support in the record; an unsubstantiated denial or a denial that is mere argument or conjecture is not sufficient to create a genuinely disputed issue of material fact. Malee v. Sanford, 191 F.R.D. 581, 585 (N.D.Ill.2000); see also Judson Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec, 529 F.3d 371, 382 n. 2 (7th Cir.2008).

ANALYSIS

I. Whether Brightstar Breached the Representation and Warranty in Section 2.1(c)(i) of the SPA

In his complaint, Plaintiff alleges that Brightstar breached the Representation aud Warranty in the Earn-Out Provision in Section 2.1(c)(i) of the SPA by selling relevant products and' services, which should have resulted in Revenue for OTBT, through affiliated entities other than OTBT. (R. 1 Compl. ¶ 38.) The Representation and Warranty provides that “neither [Brightstar] nor any of its Affiliates (except [OTBT]) will directly or indirectly sell any products or services which would generate Revenue.” (R. 151, Pl.’s Rule 56.1 Resp. ¶ 25.) Revenue is defined immediately prior to the Representation and Warranty as follows: “The Earn-Out shall be linked to.tiered milestones of [OTBT’s] GAAP-reported revenue (“Revenues”) and EBITDA derived from any and all sales including, but not limited to, [Relevant Products] derived through the following channels: [Relevant Channels] with [Relevant End-Users]....” (Id.)

The parties have different interpretations of the definition of Revenue. Brightstar argues that the SPA defines the term “Revenues” as OTBT’s “GAAP-reported revenue,” and thus the Representation and'Warranty “bars Brightstar only from diverting the sale of OTBT’s products or services to any. Brightstar entity other than OTBT, which would have the effect of reducing OTBT ‘Revenue’ and thus the Earn-Out.” (R. 119, Def.’s Mem. at 17.) Brightstar contends that the language of the SPA does not prohibit Brightstar from continuing to do business by selling its own products to its own customers around the world, independent of OTBT. (Id.) Plaintiff argues that Brightstar’s interpretation of the term Revenue would render the Representation and Warranty “illusory.” (R. 150, Sealed Pl.’s Resp. at 21.) Plaintiff contends that the definition of Revenue “includes the sale of Relevant Products through Relevant Channels to Relevant End-Users and that Brightstar agreed not to engage in Relevant Sales during the Earn-Out Period” other than through OTBT. (R. 126, Sealed Pl.’s Mem. at 12.) At the motion to dismiss stage, this Court found the language in Section 2.1(c)(i) ambiguous and susceptible to both parties’ interpretations. (R. 23, Mem. Op. & Order at 8-11.) Both parties now argue that extrinsic evidence supports their interpretation of the term Revenue. (R. 119, Def.’s Mem. at 19-21; R. 126, Sealed PL’s Mem. at 12-15); see PartyLite, Gifts, Inc. v. MacMillan, 895 F.Supp.2d 1213, 1233 (M.D.Fla.2012) (“Under Florida law, extrinsic evidence is admissible regarding the intent of parties to a contract if a latent ambiguity exists.” (collecting cases)); Strama v. Union Fidelity Life Ins. Co., 793 So.2d 1129, 1132 (Fla.Dist.Ct.App.2001). The Court need not resolve this ambiguity, however, because it can decide whether Brightstar breached the Representation and Warranty using Plaintiff’s expansive interpretation.

Brightstar argues that even assuming Plaintiff’s expansive interpretation of Revenue is correct, Plaintiff has failed to meet his burden of providing sufficient evidence to support his claim that Brightstar actually breached the Representation and Warranty. (R. 119, Def.’s Mem. at 12-20.) Specifically, Brightstar argues that Plaintiff has produced no evidence that Brights-tar or its other Affiliates engaged in sales of Relevant Products to Relevant Resellers, i.e., those with primary end customers in the commercial, health care, and government markets. (Id.) Plaintiff argues that the evidence shows that: (1) BEL engaged in sales of Relevant Products to Relevant Resellers; and (2) Brightstar sold Relevant Products to Relevant Resellers through its enterprise division and through Brightstar U.S. (R. 126, Sealed PL’s Mem. at 19-24.) Plaintiff contends that the revenue from these Relevant Sales should be added to OTBT’s Revenue, thereby entitling Shareholders to the maximum Earn-Out cap of $5 million.

A. Whether BEL engaged in Relevant Sales

Plaintiff relies on Brightstar’s June 27, 2011 S-l statement filed with the SEC to support his argument that BEL engaged' in Relevant Sales during the Earn-Out period. (R. 150, Sealed Pl.’s Resp. at 26-27.) This SEC filing, filed two months into the Earn-Out period, states that BEL’s “core services in the region include value-added distribution, government and VARs, and consumer services.” (R. 191, PL’s Add’l Rule 56.1 Resp. ¶ 69.) Additionally, it states that:

[BEL] serves device manufacturers, operators and retailers in 15 countries, providing value-added distribution, supply chain, retail, government and VARS and consumer services.... In addition ... [BEL] recently launched enterprise services in Europe that enable VARS to sell wireless devices to small and medium businesses and consumers.... The services that [BEL] provides to VARS include (i) operator management services; (ii) channel and merchandising services; and (iii) back office administration services.

(R. 164, Def.’s Resp. Add’l Facts ¶ 38.) Brightstar argues that “this high-level, general description of BEL’s business is not evidence that BEL generated revenue from any sale of a Relevant Product to a Relevant Reseller during the Earn-Out Period”; in Brightstar’s view, it is simply a description of the various market segments BEL attempted to serve. (R. 119, De