Full opinion text
MEMORANDUM OF DECISION ROBERT D. POTTER, Senior District Judge. THIS MATTER is before the Court on the Plaintiffs’ motion for entry of final judgment. For the reasons stated herein, that motion will be granted and the Court will direct the Clerk to enter a final judgment. The background for this case is set forth extensively in the Court’s rulings on the parties cross-motions for summary judgment and it will not be repeated here. For the purposes of this Order, it suffices to say that the above-captioned ease was filed by Meineke’s franchisees; in their complaint they alleged, among other things, that under the terms of their Franchise and Trademark Agreements (FTAs) Meineke was obliged to purchase and place advertising for its franchisees in exchange for their franchise fees; they also alleged that Meineke breached the FTAs and their fiduciary duty to the franchisees, committed civil fraud and other torts when it created a wholly-owned subsidiary “New Horizons” to perform these tasks and took additional fees and commissions from the Weekly Advertising Account (WAC), negotiated volume discounts for advertising and took those discounts for itself, purchased superfluous advertising so fees could be charged against the fund, and used the WAC funds for other improper purposes such as settling a lawsuit, paying some of Meineke’s business expenses and using WAC funds to advertise to attract franchisees (as opposed to generating business for existing franchisees). The case was tried during this Court’s Civil Jury Term beginning November 6,1996 and culminated with a jury verdict on December 18, 1996. Ultimately, the jury found the Defendants liable to the Plaintiff class for breach of contract, breach of fiduciary duty, fraud, and various other torts; it awarded damages on a class-wide basis; but it also held that certain releases procured by the Defendants were not procured by fraud, duress, or undue influence. Shortly after the jury rendered its verdict, the Plaintiffs asked the Court to enter final judgment in this case and the Court directed the parties to brief the various post-trial issues that remained outstanding. The briefing is now completed and the Court is prepared to address the issues presented by the parties. The thrust of the Plaintiffs’ briefing is simple. This Court has held a seven week trial in which the Plaintiffs presented their claims to the jury, the jury has returned a verdict that found the Defendants liable for all but one of the claims advanced at trial, and they have determined the damage caused by the Defendants’ wrongdoing. According to the Plaintiffs, all that remains is for the Court to decide the various legal issues relating to the scope of the releases procured by the Defendants, issues which the Court reserved for consideration after the verdict, and provide a formula for the allocation of damages to class members, issues that can be readily addressed by the Court or a special master. The Plaintiffs believe that these remaining issues are administrative in nature and merely designed to ensure that the form of the judgment reflects the jury’s decision on the merits. Therefore, they assert, the Court has all that is required to enter a final judgment. The Defendants disagree. According to the Defendants there are several steps that the Court must take before it can render a final judgment. Their arguments are grouped under general headings as follows. The Defendants’ first set of arguments center on their contention that the form of the jury verdict prevents the Court from entering a final judgment. Here, the Defendants argue that the Court has yet to resolve certain release issues before it, and they argue that until those release issues are resolved no judgment can enter. Similarly, they claim that the jury’s failure to allocate damages among class members, Defendants or claims prevents the entry of judgment. They also argue that no judgment can issue before the claims are reduced by the value of consideration given for certain releases executed by class members. And they maintain that before any judgment can issue the Court must deduct the interest component of damages awarded by the jury and award prejudgment interest under N.C.G.S. § 24-5. The Defendants’ second group of arguments center on the Plaintiffs’ claim for damages under North Carolina’s Unfair Trade Practices Act, N.C.G.S. 75-1.1 et seq. Here, they argue again that the Court cannot enter a judgment because the interest awarded by the jury must be considered an award of prejudgment interest and prejudgment interest cannot be trebled under § 75-1.1. Here again they argue that the jury’s failure to allocate damages among Defendants and claims precludes an award of damages pursuant to the Act. They also argue that the Court cannot enter a judgment for violation of the Act because Plaintiffs must allocate claims between the Texas and North Carolina Unfair and Deceptive Trade Practices Act. According to the Defendants, the Plaintiffs must allocate claims between the two Acts and that allocation has important consequences in this case because the Plaintiffs are entitled to treble damages under the North Carolina Act but only compensatory damages under the Texas Act. Only when the claims are allocated between the two Acts will it be possible to enter a judgment on these claims. The Defendants’ third group of objections center on the election of remedies. Here, the Defendants argue that the Plaintiffs must choose between punitive and treble damages before any judgment can enter. And they also assert that the Plaintiffs must elect between inconsistent theories of relief (e.g., piercing the corporate veil and aiding and abetting) before judgment can enter. The final set of objections concerns the Plaintiffs’ request for injunctive relief. At root the Defendants assert that the Plaintiffs are not entitled to a permanent injunction under the applicable legal test — in particular because they can always sue again at a later date to recover damages. In the alternative the Defendants argue that any injunction must be narrowly tailored to reflect claims that have been waived as a result of various releases as well as new provisions contained in FTAs executed after March of 1995 and the injunction would have to respect Meineke’s right to offer new contractual arrangements. The Court addresses each of the issues below noting only those facts relevant to its decision. I. FORM OF THE VERDICT As noted earlier, the Defendants offer several arguments designed to show that the form of the jury verdict prevents the Court from entering a final judgment. Here, the Defendants argue’that the Court has yet to resolve certain release issues before the Court, and they argue that until those release issues are resolved no judgment can enter. Similarly, the jury’s failure to allocate damages among class members, Defendants or claims prevents the entry of judgment. They also argue that no judgment can issue before the claims are reduced by the value of consideration given for certain releases executed by class members. And they argue that before any judgment can issue the Court must deduct the interest component of damages awarded by the jury and award prejudgment interest under N.C.G.S. § 24-5. A. Release Issues The dispute between the parties between the legal affect of the releases offered by the Defendants as a defense to the claims of certain class members have an impact on many of the issues raised in the post-trial briefing and therefore the Court will address these issues first. By way of background the Court notes that in their answer and at trial the Defendants offered certain releases as an affirmative defense to claims advanced on behalf of certain class members. The briefing of the parties indicates that these releases fall into two categories: (1) releases executed in connection with Meineke’s “Enhanced Dealer Program” (“EDP”) and (2) releases executed in the ordinary course of business pursuant to the franchise agreements when a franchise was terminated or renewed (referred to herein as the “non-EDP” releases). On the cross-motions for summary judgment, the Plaintiffs argued that these releases were unenforceable because they had been procured by fraud, duress, or undue influence and the Court ruled that the Plaintiffs had produced sufficient evidence to go to the jury on these issues. *3 During the course of the trial, it became evident that the parties also disagreed over the precise scope of the releases and the Court reserved legal issues arising from disputes about the scope of releases for resolution at post-trial proceedings. Ultimately, the jury rejected the Plaintiffs’ contention that the releases obtained by Meineke were procured by fraud, duress, and undue influence. As a result of this jury determination, the release issues raised by the parties are now before the Court. The parties have not quibbled about the legal principles governing the interpretation of the releases for good reason: the relevant inquiries implicate well-settled principles of law. Here, the Court notes that the releases are contractual agreements between the parties and, as such, the Court’s job is to determine the intent of the parties. The language of the agreement between the parties embodies that intent, and where that language is unambiguous, the written agreement controls. An agreement is ambiguous when it is susceptible to two reasonable interpretations, and the question of ambiguity is one for the Court. If the releases are ambiguous then they must be construed against the drafter. With these background principles in mind, the Court believes that none of the releases at issue are ambiguous and that the results set forth below are plainly required by the language of the relevant agreements. 1. EDP Releases. Meineke argues that the EDP releases bar any claim advanced on behalf of class members (about half the class) who executed such releases. The pertinent parts of the EDP release provide: J|c * * % * * 5. If Meineke determined that a sufficient number of Meineke franchisees sign this Program Agreement and attached Contract Addendum, then Meineke will reduce the now current advertising fees of New Horizons Advertising Agency, Inc. (“New Horizons”) in the manner provided in the Meineke Dealer Enhancement Program. If Meineke elects not to implement the changes to New Horizons then Franchisee shall have the right to cancel this Agreement and the Contract Addendum in the manner described in paragraph 11 of this Agreement, but Franchisee shall have no further rights arising from such election. ‡ ‡ :|ft ‡ $ 9. Excluding all obligations created by this Program Agreement and the attached Meineke Contract Addendum and the ongoing obligations of the Meineke Franchise and Trademark Agreement for the shop that is the subject of this Agreement, Franchisee, its stockholders, officers, directors, partners, representatives, heirs, executors, administrators, successors and assigns as the ease may be, hereby release Meineke Discount Muffler Shops, Inc., and its parent, subsidiaries, affiliates, and all of their officers, directors, employees, agents, representatives, successors and assigns of and from any and all rights, duties, responsibilities, claims, or causes of action whatsoever, whether in contract or in tort, existing by common law or by statute, known or unknown heretofore existing between the released parties and Franchisee which may have accrued or which may accrue on account of, arising from or in any manner growing out of or resulting from the franchise relationship and the Meineke Franchise and Trademark Agreement governing that relationship, including, but not limited to, the claims alleged in that one certain cause of action entitled Broussard, et al. v. Meineke Discount Muffler Shops, Inc., Civil Action Cause No. 3:94-CV-255 (the “Litigation”); on file in the United States District Court for the Western District of North Carolina, Charlotte Division, and any claims similar thereto. 10. If Franchisee is named plaintiff in the Litigation upon signing this Agreement he shall dismiss his claims with prejudice and withdraw from the Litigation. If the Franchisee is not a plaintiff in the Litigation then upon signing the Agreement he will decline to be a plaintiff or a class member of the Litigation. 11. Under the terms of the Enhanced Dealer Program, if a sufficient number of dealers do not subscribe to the Program Agreement then at Meineke’s discretion it may elect not to implement the fee reductions of New Horizons described in the Program. Meineke will notify Franchisee within 45 days of his receipt of this Program Agreement whether it plans to implement the changes to New Horizons. If Meineke elects not to implement the changes to New Horizons then Franchisee shall have a right to cancel the Program Agreement and Meineke Contract Agreement by giving to Meineke written notice within 14 days from the date that Meineke announces its decision not to implement the changes to New Horizons. If Franchisee elects to cancel this Program Agreement and the Meineke Contract Addendum, Franchisee shall continue to enjoy all of the privileges and benefits of the Meineke franchise system with the exception of those enhancements listed in this Program Agreement and the Contract Addendum. If Franchisee elects to rescind his Program Agreement, he shall not be required to repay to Meineke the royalty reduction he has enjoyed from the time he signed the Program Agreement through the date of his cancellation. 17. This Program Agreement and its attachments constitute the entire Agreement between the Parties relative to the subject matter contained herein, and all prior understandings, representations and agreements made by and between the Parties relative to the contents contained in this Agreement are merged into this Agreement. Nothing in this paragraph shall act to cancel or be used to avoid any of the ongoing obligations contained in the Meineke Franchise and Trademark Agreement except as modified by this Agreement and the Meineke Contract Addendum. According to the Defendants, these provisions clearly release all of the Defendants in this suit from all of the claims advanced on behalf of the class who signed EDP releases. In response, the Plaintiffs argue that the EDP releases do not bar the recovery of class members for certain types of claims advanced in this case and do not bar any claim against Defendant GKN. First, the Plaintiffs note that the EDP releases excluded “the ongoing obligations of the Meineke Franchise and Trademark Agreement” and argue that since the obligation to purchase and place advertising arose from the Franchise Agreement, the EDP releases do not affect the ability of class members executing the release to recover on their claims that Meineke breached its contractual duty to purchase and place advertising. The Plaintiffs also argue that the releases do not extend to claims against GKN. Here, the Plaintiffs note that the EDP releases only cover claims against Meineke “its parent, subsidiaries, affiliates, and all officers, directors, employees, agents, representatives, successors and assigns.” Relying on Glenn v. Wagner, 67 N.C.App. 563, 575-76 & n. 3, 313 S.E.2d 832 (1984), rev’d on other grounds, 313 N.C. 450, 329 S.E.2d 326 (1985), the Plaintiffs argue that GKN is not an affiliate within the meaning of that case because two corporations are affiliates only when the controlling interest in each corporation is owned by the same person or the same corporation. The relationship between GKN and Meineke does not fit this definition, they argue, and therefore GKN is not an affiliate of Meineke within the meaning of the release. Finally, the Plaintiffs rely on the “ongoing obligations” language of the EDP release to argue that the EDP releases do not release claims for damage caused by any misappropriation of WAC funds occurring after January of 1995, the date when the releases were executed. The Court disagrees with the Plaintiffs. As the Defendants point out, in ¶ 9 of the release the franchisee released “all claims alleged” in this case and “any claims similar thereto”, the releases specifically reference the case by name, and ¶ 10 obliges the franchisee to withdraw from, or decline.to be a plaintiff or class member of, the class action. In addition, ¶ 5 of the agreement specifically provides that Meineke will reduce the fees New Horizons charged to purchase and place advertising if a “sufficient” number of franchisees sign the Program Agreement and attached contract addendum, and that addendum adjusts certain provisions of the Franchise Agreements pursuant to the EDP program. Indeed, ¶ 17 specifically states that nothing in the EDP’s integration clause “shall act to cancel or be used to avoid any of the ongoing obligations contained in the Meineke FTA except as modified by this Agreement and the Meineke Contract Addendum.” Given these provisions waiving all claims advanced in this suit and clearly contemplating that New Horizons will continue to receive fees (albeit reduced fees) for the purchase and placement of advertising, the Plaintiffs’ assertion that the “[ejxeluding ... all obligations of the Meineke Franchise and Trademark Agreement” language in ¶ 9 excludes claims for breach of contract based on Meineke’s payment of commissions to New Horizons for the purchase and placement of advertising is untenable. Thus, the Court concludes that when the agreement is read as a whole, it is susceptible to only one reasonable interpretation: the franchisee waives the claims advanced against Meineke — including the claim that Meineke breached the agreement by creating New Horizons to provide advertising services it was already obliged to provide in exchange for the franchisee fees in order to skim fees from the WAC .fund — in exchange for the promise that New Horizons would charge reduced fees for those services and the other consideration set forth in the release. For a similar reason, the Court agrees with the Defendants that the EDP releases extend to, and release, claims advanced against GKN. Even assuming that the Plaintiffs reading of Glenn, supra, was not strained, the common meaning of the term “affiliate” is much broader. For example, Webster’s defines affiliate as “a company effectively controlled by another or associated mth others under common ownership or control.” Black’s Law Dictionary states that affiliate “[signifies a condition of being united; being in close connection, allied, associated, or attached as a member or branch.” GKN is an affiliate of Meineke under both these definitions, there is no indication that the parties sought to use a narrow, technical definition of the term in the release, and any effort to read the term affiliate so narrowly is unreasonable given the manifest purpose of the release as evidenced in its provisions. For these reasons, the Court concludes that when the agreements are read as a whole and placed in context the agreement is susceptible to only one reasonable interpretation — and that interpretation gives the term “affiliate” its general and broad meaning, a meaning which indicates that those class members who executed EDP releases relinquished their claims against GKN when they released claims against Meineke and its affiliates. That leaves the Plaintiffs’ claim that the EDP releases do not release claims for misappropriations of WAC funds occurring after January of 1995, the date when the releases were executed. In support of this argument the Plaintiffs rely on Travis v. Knob Creek, Inc., 321 N.C. 279, 362 S.E.2d 277 (1987) where the Court held that a release of “claims” or “demands” refers to then existing or matured causes of action, but did not include those causes of action, that had not accrued at that time. Id. at 283, 362 S.E.2d 277. The Court does not believe the rule in Travis, supra, applies here. As noted earlier, the EDP agreement releases all the claims advanced in this lawsuit and “any claims similar thereto” and it expressly provides that New Horizons will continue to receive fees for its purchase and placement of advertising. Under these circumstances, the Plaintiffs’ argument that the release executed in connection with the EDP program does not include claims for such conduct taking place after January 1995 is unpersuasive. Rather, the Court believes this is a case where the release, when read as a whole, does specifically address future claims. Cf. Travis, 321 N.C. at 283, 362 S.E.2d 277 (release did not specifically include future claims). The Plaintiffs argue that this reading of the EDP release makes no sense because if the exclusion of “ongoing obligations” in ¶ 9 is taken to mean obligations modified by the release itself, there would be no meaning to the exclusion of ongoing obligations under the FTAs from the releases since such obligations would not be “ongoing” but would have been changed by the EDP program. The Court disagrees because many of the obligations created by the FTAs are not modified by the EDP at all and these obligations are ongoing in the strict sense urged by the Plaintiffs. Also it does not necessarily follow, as the Plaintiffs argue, that a modified obligation is not properly characterized as an “ongoing” obligation nonetheless. In the Court’s view, ¶ 9 simply and plainly excludes ongoing contract obligations that are not a subject of this suit from the scope of claims released and an ongoing obligation can be modified and yet regarded as ongoing. Despite the Plaintiffs’ arguments, ¶ 17 does not require a different result because that paragraph, which is an integration clause, merely states that nothing in the EDP’s integration clause “shall act to cancel or be used to avoid any of the ongoing obligations contained in the Meineke FTA except as modified by this Agreement and the Meineke Contract Addendum.” Thus, this paragraph clearly indicates that the EDP does modify some obligations created by the FTA — including the royalty and advertising contribution provisions — but leaves other obligations unaffected — therefore this provision supports the Defendants’ reading of ¶ 9. 2. Non-EDP Releases. The Defendants have also offered releases executed in the ordinary course of business when a' franchise was terminated or renewed as a defense to the claims advanced by the Plaintiffs in this ease. In pertinent part some of these releases name Meineke and its “affiliates” while other release name Meineke and extend to its “stockholders.” So far as the parties have indicated, these releases apply to “any and all claims” “arising out of’ the FTAs. According to the Defendants, these releases include all the Defendants and all of the claims advanced in this suit. The Plaintiffs argue that these releases do not apply to certain claims and parties for several’ reasons. First, the Plaintiffs note that many of the releases expressly extend to claims against Meineke, other entities and “affiliates” of Meineke, but not GKN. Since GKN is not an affiliate of Meineke within the meaning of Glenn, supra, the Plaintiffs argue, claims against GKN are not released thereby. Similarly, the Plaintiffs note that many of these releases only release Meineke and “its officers, directors, stockholders, employees, agents, representatives, successors and assigns ... ”. GKN is not a stockholder of Meineke, the Plaintiffs note, and as a result these releases do not reach claims against GKN. Finally, the Plaintiffs insist that none of these releases cover claims against Meineke for its wrongful payment of commissions to New Horizons in the period after any release was executed. For the reasons given earlier, the Court cannot accept the Plaintiffs’ argument that GKN is not an affiliate of Meineke such that GKN does not fall within the scope of those non-EDP releases which extend to “affiliates” of Meineke. Likewise the Court cannot accept the Plaintiffs assertion that these releases, which extend to “any and all rights, duties, responsibilities, and claims which they have or may have arising out of that certain Franchise and Trademark Agreement”, do not extend to tort claims. Although the question is a close one and the Court can find little guidance, it appears that under North Carolina law a general release of any and all “claims” “arising out of’ a contract includes claims sounding in tort. See Colon v. Bailey, 76 N.C.App. 491, 333 S.E.2d 505 (1985), rev’d on other grounds, 316 N.C. 190, 340 S.E.2d 478 (1986) (release of claims arising from lease barred suit for breach of lease and negligent maintenance of equipment). That leaves the Plaintiffs’ contention that GKN does not fall within the scope of those non-EDP releases which extend to claims agáinst Meineke’s stockholders. No one disputes that GKN does not hold Meineke stock so there is no reason to believe that GKN falls within the terms of these non-EDP releases. Nonetheless, the Defendants offer a number of arguments designed to show that GKN falls within the scope of these non-EDP releases which name “Meineke ... and its stockholders.” Here the Defendants argue that GKN is an “indirect stockholder” of Meineke because GKN owns stock in PIC which is the only stockholder in Meineke. Since Meineke had only one stockholder during the period when these releases were executed, they argue, the Court must read the plural “stockholders” to include “indirect stockholders” so that the plural has meaning. The Defendants also argue that GKN is released under the term “directors” insofar as its liability follows from the actions of GKN officers in their service on Meineke’s Board of Directors. The Court finds these arguments unpersuasive. For one thing, the Court believes that Meineke’s effort to read the release language regarding Meineke “stockholders” to include stockholders in stockholders of Meineke is patently unreasonable. It would take much more than a wayward “s” to transform companies which hold no stock in Meineke into stockholders within the plain meaning of that term. The same is true of the Defendants’ effort to extend the language releasing claims against “directors” of Meineke to include claims against other corporations those directors might serve; no meaning of director includes the corporation for which the director acts. The Defendants’ argument that the non-EDP releases must be deemed to release GKN under the “reverse” alter ego doctrine or the doctrine of judicial estoppel are also misplaced. Here, they argue that because the jury found that GKN was an alter ego of Meineke, the release of Meineke must be deemed to release GKN (as Meineke’s alter ego). And they offer the related argument that the doctrine of judicial estoppel precludes the Plaintiffs from asserting that Meineke and GKN are separate entities within the meaning of the releases given the Plaintiffs’ contention that GKN was Meineke’s alter ego at trial and the jury’s finding to that effect. The Court believes these arguments are mistaken for at least two reasons. First, the argument is mistaken because it neglects to note that a release is an affirmative defense created by way of contract and therefore confuses the critical' inquiry: the intent of the parties when they executed the release. See Travis v. Knob Creek, 321 N.C. at 281, 362 S.E.2d 277 (release inquiry focuses on intent of parties). The Plaintiffs maintain that the intent of the parties as reflected in the language of the release clearly indicates that claims against GKN were not released when the term “Meineke” was used and this Court agrees. Indeed, the Defendants have continually denied that GKN is Meineke’s alter ego which makes any contention that the parties understood the proper name “Meineke” to include GKN most untenable. This critical distinction is also at least one reason why the doctrine of judicial estoppel could never apply here because the positions of the Plaintiffs are not inconsistent. On the one hand the Plaintiffs maintain that the intent of the parties reflected in the releases clearly indicates that the release did not extend to claims against GKN; on the other hand they maintain that (as a factual matter) GKN so dominated and manipulated Meineke that it should be hable for Meineke’s wrongdoing under the alter ego doctrine. The Court finds no contradiction. Finally, the Court also agrees that the Defendants’ reliance on the legal effect of the alter ego doctrine is also mistaken because it turns the rule against its purpose: “to prevent fraud or to achieve equity.” Glenn v. Wagner, 313 N.C. 450, 454, 329 S.E.2d 326 (1985). As the North Carolina Supreme Court explained in Glenn, supra: “[it] should be remembered that the theory of liability under the instrumentality rule is an equitable doctrine ... [i]ts purpose is to place the burden of the loss upon the party who should be responsible.” Glenn, 313 N.C. at 458, 329 5. E.2d 326. Given the purpose of the alter ego doctrine as articulated by the courts of North Carolina — to remove the protection from liability afforded by the corporate form when that form has been used as an instrument of wrong-doing — this Court believes that the Supreme Court of North Carolina would not allow the doctrine to be used to perpetuate such wrongdoing and therefore it would agree with those courts holding that the alter ego doctrine is a sword but not a shield from liability. See also Lumpkin v. Envirodyne Indus., 933 F.2d 449, 460 (7th Cir.1991). Such a use of the alter ego doctrine would not be “reverse”, it would be backwards. That leaves the Plaintiffs contentions that none of these non-EDP releases concern claims for the misappropriation of WAC funds occurring after the releases were executed. Initially it seemed that the Defendants disputed this assertion, but at the hearing in this matter the Defendants disavowed any such position. The Court believes that these releases clearly do not release claims for misappropriations of WAC funds occurring after the releases were executed under the rule in Travis v. Knob Creek, Inc., 321 N.C. 279, 281, 362 S.E.2d 277 (1987). Thus far then the release issues presented by the parties have been resolved as follows. EDP Releases: (1) release GKN as an “affiliate” of Meineke and (2) extend to all claims for class members arising from the taking of commissions from WAC funds by Meineke/New Horizons — including contract claims as well as future claims for such conduct. Non-EDP releases: (1) release GKN where the term “affiliate” is used, (2) do not release GKN where the term “stockholders” is used, and (3) do not release any claims of class members for taking of commissions from WAC funds etc. occurring after the release was executed. The judgment entered by the Court will indicate that the jury award for damages will be adjusted to deduct the value of those claims once that value has been determined using the allocation formula approved by the Court. 3. Release Issues Relevant to the Plaintiffs’ Request for Equitable Relief. As explained further below, the Court believes that injunctive relief is appropriate in this case and intends to issue an injunction consistent with the release determinations set forth above. For that reason, the Court notes that the injunction will not extend to the taking of fees calculated on the advertising contributions of class members who have executed EDP releases. In addition, the Court will not extend the injunction to prohibit the taking of fees calculated on advertising contributions of franchisees who have executed FTAs since March of 1995. As the Defendants note, sections 3.1(d) and 7.17(b) of FTAs executed after March 1995 expressly provide that advertising contributions shall also be used to “pay fees or other charges assessed by any advertising agency as Meineke may designate for the placement of such advertisements, whether the advertising agency is in-house or otherwise.” Under these circumstances, the Court will not enjoin Meineke from charging fees for the purchase or placement of advertising insofar as those fees are calculated from the advertising contributions of such franchisees. The Plaintiffs argue that the Defendants made no effort to distinguish these post-March 1995 FTAs from other FTAs during the trial such that the jury’s finding that Meineke breached its contracts with class members extends to these FTAs. Although this argument has merit, the Court believes it is not bound by the jury findings for the purpose of determining whether injunctive relief is appropriate, and given these provisions the Court does not believe that the Plaintiffs are entitled to an injunction preventing Meineke from paying fees to New Horizon for its purchase and placement of advertising to the extent that those fees are calculated based on the expenditure of WAC contributions of franchisees under the post-March 1995 FTA. That FTA plainly authorizes Meineke to “pay fees or other charges assessed by any advertising agency as Meineke may designate for the placement of such advertisements, whether the advertising agency is in-house or otherwise” a provision which plainly authorizes Meineke’s payment of fees taken from WAC funds to New Horizons whether that subsidiary is characterized as an in-house or out-house advertising agency. 4. Miscellaneous Release Issues. The Defendants have also brought a number of miscellaneous release issues to the attention of the Court. The Court agrees with the Defendants on a great many of these issues and believes that there is no genuine dispute concerning their proper resolution. Therefore, the Court rules as follows. First, the Defendants have indicated that some releases have been signed by some (but not all) of the partners of a partnership that owns a franchise or signed by one (but not all) of the co-owners of a franchise; the Court finds these releases are binding on all the partners under well-settled agency principles. The Defendants have raised concerns about EDP releases signed after class certification. Given the jury’s findings that the releases were not procured by fraud, duress, or undue influence the Court will enforce these releases. The Defendants have also indicated that there are approximately 40 class members who have accepted the benefits of the EDP program although there is no completed release in evidence because Meineke either did not have a fully executed release in its files or simply had no release in its files. According to the Defendants, these cases represent a classic example of agreement by the accepting of benefits under a contract. The Court agrees. The evidence at trial showed that Meineke directed a substantial mailing campaign towards its franchisees urging them to sign up for the EDP program around the time that the class was certified. Given that massive mailing campaign detailing the benefits of the EDP program, the Court agrees that any member who accepted the benefits of the EDP program specific to franchisees who joined that program would be estopped from denying the contract, including the mutual release it entailed. Therefore, in those cases where Meineke can show that these class members received the benefits of the EDP program, including the “Pipedream” computer system described in ¶ 2 of the EDP program as well as the benefits set forth in the contract addendum that accompanied the EDP program, those class members will be bound by the release called for by the EDP program. Similarly, the Defendants have noted there are á few cases where class members signed releases, but Meineke never completely executed the document. According to the Defendants these releases were executed in connection with agreements between the parties. And under these circumstances, the Court believes that execution by Meineke is a mere formality and, given the signature of the party against whom the release is to be enforced, the Court finds that such releases are valid. Finally, the Defendants note that there are some releases which do not contain the term “affiliate” but which were executed pursuant to a version of the FTAs which requires the franchisee to release affiliates. The Court does not believe that the Defendants can rewrite the releases to include “affiliates” on the basis of the FTA provision. Even assuming that these agreements must be read together, as the Defendants’ argument intimates, there is an irreconcilable conflict between the two provisions: the FTA anticipates a release of affiliates, but the releases fail to do so. No amount of reasonable “construction” can harmonize this direct conflict, and under these circumstances the narrow language of the releases must govern because releases are construed narrowly and, like any other contract, they are construed against the drafter in cases like this one. See e.g. Sanus v. Dube-Seybold-Sutherland, 837 S.W.2d 191, 196-97 (Tex.App.1992) (although settlement and release contains broad language in referring to the assignment, court must look at the actual assignment itself in determining rights and must eonstrue the general categorical release clauses narrowly); Manzo v. Ford, 731 S.W.2d 673 (Tex.App.1987) (rule that writing is construed most strictly against its author is particularly appropriate where the agreement purports to release the drafter from liability); Baxley v. Nationwide, 334 N.C. 1, 430 S.E.2d 895 (1993) (construe contract against drafter). 5. Contribution Issues. The Defendants have also argued that the Court cannot enter judgment by reason of the Uniform Contribution Among Tort-Feasors Act. N.C.G.S. § IB-4. Here, they argue that in the event that any releases are effective as to certain Defendants but ineffective as to other Defendants the Act would entitle the Defendants to a reduction in the claims against them to the extent of the amount of consideration paid for the release. The determination of that amount, on a class member by class member basis, they argue, will likely involve disputed issues of material fact, as to which parties have the right to trial by jury. The Court disagrees. Section 1B^4 operates to prevent a double recovery just like the common-law doctrine of election of remedies, see United Laboratories v. Kuykendall, 335 N.C. 183, 191-92, 437 S.E.2d 374 (1993) (one function of doctrine of election of remedies is to prevent a double recovery for a single wrong); and where one seeks to avoid double recovery based on matters outside the pleadings those matters must be pled as an affirmative defense and proved at trial or the defense is waived. See North Carolina Federal Savings v. Ray, 95 N.C.App. 317, 321-24, 382 S.E.2d 851 (1989) (election of remedies is an affirmative defense that is waived if it is not pleaded). The Defendants did not plead the statutory right as an affirmative defense and they cannot raise it now in order to secure a reduction in damages. Similarly, the Defendants presented no evidence on this issue at trial and did not request any instruction on- the point — yet another reason why the Court believes that this issue has been waived. In short, the Court denied the Defendants’ motion to bifurcate the case so that release and other issues would be tried separately and the Defendants’ failure to raise this issue at trial is no reason to try these issues now after the jury has rendered its verdict on damages. For this same reason, the Court finds that the Defendants are not entitled to offset any prior judgments secured against class members against their share, if any, in the damages awarded by the jury. The Defendants never raised these judgments in their pleadings or at trial such that the issue is not properly before the Court. Under these circumstances, Meineke must execute on whatever judgments it has obtained against these class members when they receive their damage awards; it cannot introduce a new counter-claim or affirmative defense at this late date. Likewise the Court finds that it is too late for Meineke to ask this Court to decide “whether prior judgmerits (including default judgments) obtained by Meineke against class members release some or all of the Defendants.” The short answer to this issue is: no. Judgments do not release anyone; they may sometimes bar claims under the principles of res judicata, but res judicata is an affirmative defense that must be pleaded by the parties to a suit — which is not the case here — or it is waived. See e.g., Crowe v. Cherokee Wonderland, Inc., 379 F.2d 51 (4th Cir.1967) (defense of res judicata is an affirmative defense that must be pleaded affirmatively and it is waived where it is not raised in trial court); Newman v. Link, 866 S.W.2d 721, 727 (Tex.App.1993) (same). The Defendants are not free to inject this new defense to the Plaintiffs’ damage claims at this stage in the proceeding. B. Failure to Allocate Damages and Prejudgment Interest Issues. The Defendants also argue that no final judgment can enter because the jury verdict does not allocate damages. Here, the Defendants note that, as per the Court’s instructions, the jury found damages on a class-wide basis and did not make a factual finding concerning a formula to allocate damages among class members. According to the Defendants, the jury’s failure to endorse a specific formula for the distribution of damages makes it impossible to allocate its damage award to class members. In addition, the Defendants assert that there can be no final judgment because the jury verdict does not tie its damage award to specific claims (e.g. breach of contract, fraud, etc.) or the individual Defendants. According to the Defendants, the jury’s failure to distribute damages among the various claims on which it found for the Plaintiffs means that this Court cannot enter judgment. Finally, the Defendants assert that any judgment must strike the jury’s award of interest damages and calculate prejudgment interest pursuant to N.C.G.S. § 24-5. The Court disagrees that any of these difficulties preclude the entering of judgment. For one thing, the Court believes it is too late for the Defendants to argue that the jury should have made their damage determination in the form of a formula because the Defendants never requested such an instruction at trial. The Court also believes that in the class action context it can provide for the allocation of damages based on a formula determined by the Court provided that formula provides a reasonable basis for the calculation of damages once the jury has returned a damage verdict. See H. Newberg & A. Conte, Newberg on Class Actions, § 10-12 at 10-31 to 10-33. In this regard, the Court believes that the formula submitted by the Plaintiffs provides a wholly reasonable basis for the allocation of damages and therefore it will employ that formula. In addition, the Court finds that no individualized proof of claim procedure is required because the evidence at trial and the post-verdict proceedings establish that damages can be allocated according to the formula adopted by the Court pursuant to information in the Defendants’ records. The Court will appoint a special master to supervise this process. For several reasons, the Court does not agree with the Defendants’ assertion that there can be no judgment because the jury verdict does not allocate damages among various claims and does not assign damage subtotals to individual Defendants. For one thing, the Court recalls no evidence at trial that would have supported such an effort to allocate damages among claims or defendants. Throughout the trial the Defendants, who were all represented by the same attorneys, made no effort to apportion damages among themselves or among their various activities; and they never attempted to attribute damages to specific wrongful acts. Instead the Defendants presented a united front which consisted in denying liability altogether and insisting that the FTAs permitted their conduct. The jury found that defense unpersuasive, but that does not mean the Defendants can now argue that the jury should have been instructed on a defense theory that was not advanced during the trial or that the Defendants can advance a new theory of defense after the verdict. Also, as the Plaintiffs note, the jury verdict indicates that there will be joint and several liability on any claim where they can collect damages, the jury found that the Defendants aided and abetted each other with respect to Meineke’s breach of fiduciary duty, and it found that the Defendants were corporate alter egos such that they are properly treated as one entity for the purpose of determining liability. Under these circumstances there is no need to allocate damages among claims or Defendants and the Defendants’ concern about the failure to allocate damages among individual claims and Defendants seems most misplaced. The Defendants also argue that the Court must strike that portion of the jury verdict attributed to interest and allow for prejudgment interest as provided by N.C.G.S. § 24-5. Here, the Defendants argue that the jury award of interest is an award of prejudgment interest which must be awarded by the Court pursuant to § 24-5. Again the Court disagrees because nothing in N.C.G.S. § 24-5 precludes the award of interest damages when those damages are recoverable under ordinary damage principles as a natural and foreseeable consequence of wrongdoing or damages within the contemplation of the parties as a probable result of their wrongdoing. See Pipkin v. Thomas & Hill, 298 N.C. 278, 284-86, 258 S.E.2d 778 (1979) (plaintiff could recover interest damages caused by breach of contract to lend); Quate v. Caudle, 95 N.C.App. 80, 381 S.E.2d 842, rev. den., 325 N.C. 709, 388 S.E.2d 462 (1989) (same), Sherrill White Construction v. S.C. National Bank, 713 F.2d 1047, 1052 (4th Cir.1983) (in action against bank for conversion of draw checks interest damages could be recovered as damages); Aetna Casualty v. Hepler State Bank, 6 Kan.App.2d 543, 630 P.2d 721, 729 (1981) (in case of conversion interest is allowed by way of damages and “[t]he allowance is not dependent on statute ... but is merely designed to make the plaintiff whole”). [31] In this case the Plaintiffs presented evidence that the WAC fund was a trust fund that was supposed to be kept in a separate account and managed for the benefit of the franchisees. But the Plaintiffs also presented evidence that Meineke managed the account for its own benefit by, among other things, sweeping WAC funds into Meineke accounts so that Meineke earned interest at the expense of the WAC fund as well as by withdrawing funds from the WAC account to settle lawsuits and using the money to pay some of Meineke’s corporate expenses, purchasing superfluous advertising for the sake of generating commissions, negotiating volume discounts for advertising but keeping those discounts for its benefit while charging the full price to the WAC fund, and using WAC funds to attract new franchisees as opposed to generating business for existing franchisees. It was because of this evidence that the Court determined that the Plaintiffs were entitled to seek damages based on lost interest and to present that issue to the jury. The Court is confident that this evidence supports the jury’s finding that Meineke’s manipulation of the WAC fund — as found by the jury — caused damages in the form of lost interest which are recoverable under the principles governing the recovery of damages in general. Thus, the Court believes that the Defendants’ reliance on N.C.G.S. § 24-5 is mistaken because there is no indication that § 24-5 is designed to cap or otherwise diminish damages based on lost interest where, as here, those damages are recoverable under ordinary damage principles. Quite the contrary, the statute is designed to allow the recovery of interest damages when such damages would not be available under ordinary damage principles. See e.g. Baxley v. Nationwide Mutual Ins. Co., 334 N.C. 1, 430 S.E.2d 895 (1993) (§ 24-5(b) is designed to change common-law rule that judgment did not carry interest on it). Under the Defendants’ reading of § 24-5 an employer who had directed its employee to deposit a principal sum so that it could earn interest at 20%, upon learning that the employee had misappropriated the money and deposited it in his own account where it earned interest at 20% for ten years, would be limited to recovering as money damages the principal and only that interest which would be allowed as prejudgment interest under § 24-5, and only interest accruing from the “trigger” specified in the statute. The Court does not believe that § 24-5 was intended to produce, or requires, such a result. In fact, by arguing that any award of interest is covered by N.C.G.S. § 24-5, the Defendants are making the very argument that was rejected in Quote, supra. II. UNFAIR TRADE PRACTICES ACT ISSUES The Defendants’ second group- of arguments center on the Plaintiffs claim for damages under North Carolina’s Unfair and Deceptive Trade Practices Act (“DTPA”), N.C.G.S. § 75-1.1 et seq. Here, they argue again that the Court cannot.enter a judgment because the interest awarded by the jury must be considered an award of prejudgment interest and prejudgment interest cannot be trebled under § 75-1.1. Here again they argue that the jury’s failure to allocate damages among Defendants and claims precludes an award of damages pursuant to the Act. They also argue that the Court cannot enter a judgment for violation of the Act because Plaintiffs must allocate claims between the Texas and North Carolina Acts. According to the Defendants the Plaintiffs must allocate claims between the two Acts and that allocation has important consequences in this case because the Plaintiffs are entitled to treble damages under the North Carolina Act but only compensatory damages under the Texas Act (because the Plaintiffs did not secure a separate jury determination that the acts which violated the Texas Act justified the imposition of exemplary damages). Only when the claims are allocated between the two Acts will it be possible to enter a judgment on these claims. A. Interest and Allocation Issues. For the reasons given above, the Court believes that the jury’s failure to allocate damages among Defendants or the failure to assign damages to various factual predicates alleged by the jury is immaterial. The Defendants’ evidence at trial provided no basis for any such instructions and the Defendants did not request such instructions at trial, the Defendants are jointly and severally liable on this count of the complaint, and all of the factual predicates are well supported by the evidence so the award of damages en gross is appropriate. And as noted earlier, the Court believes that in this case the lost interest suffered by the Plaintiffs was recoverable under general damage principals and is not limited by § 24-5. See Quate v. Caudle, 95 N.C.App. at 87-88, 381 S.E.2d 842 (trebling interest damages). B. Claims Under North Carolina’s DTPA Concerning FT As Governed by Texas Law. As noted, the Defendants argue that the Court cannot enter a judgment for violation of the North Carolina DTPA because Plaintiffs must allocate claims between the Texas and North Carolina Unfair and Deceptive Trade Practices Acts. According to the Defendants the Plaintiffs must allocate claims between the two Acts and that allocation has important consequences in this ease because the Plaintiffs are entitled to treble damages under the North Carolina Act but only compensatory damages under the Texas Act (because the Plaintiffs did not secure a separate jury determination that the acts which violated the Texas Act justified the imposition of exemplary damages). Only when the claims are allocated between the two Acts will it be possible to enter a judgment on these claims. The fulcrum for this argument is the Defendants’ assertion that the class members must advance claims under the Texas Deceptive Trade Practices Act, instead of the North Carolina Act. Here, the Defendants argued that those franchisees whose contracts contain a Texas choice of law provision had waived their rights to advance claims under North Carolina’s DTPA. The Court disagrees. First, Defendants did not raise such an argument based on this choice of law provision prior to the verdict and it is too late for them to complain at this time. Also, in this diversity case the Court must apply the choice of law rules of the forum state and under North Carolina law such contractual choice of law provisions do not govern duties imposed by common-law or statute. See ITCO v. Michelin Tire, 722 F.2d 42, 49 n. 11 (4th Cir.1983); United Virginia Bank v. Air Lift Associates, 79 N.C.App. 315, 320-21, 339 S.E.2d 90 (1986) (citing ITCO, supra, with approval); United Dominion v. Overhead Door, 762 F.Supp. 126, 128 (W.D.N.C.1991). Thus this case is governed by North Carolina’s DTPA because damages occurred here when, as the jury found, the Defendants misappropriated WAC funds in state, and also because Meineke acted as the agent for class members in this state, this contractual relationship has been centered in this state for ten years, and the North Carolina DTPA expresses North Carolina’s interest in policing businesses in this state to ensure that consumers who purchase goods and services in the state are protected from unfair and deceptive trade practices. III. ELECTION OF REMEDIES The Defendants’ third group of objections center on the election of remedies. Here, the Defendants argue that the Plaintiffs must choose between punitive and treble damages before any judgment can enter. They also assert that the Plaintiffs must elect between inconsistent theories of relief before judgment can enter. As noted at the hearing held in this matter, the Court finds that the conduct found by the jury in this case rises to the level of unfair and deceptive trade practices within the meaning of the Act. For example, in this case the Plaintiffs argued that the FTAs obligated Meineke to purchase and place advertising for the franchisees in exchange for the their franchise royalty fees and that as a result Meineke told its franchisees that the WAC fund was a trust fund which was spent exclusively for the benefit of the franchisees — a fund from which Meineke took no revenue. The Plaintiffs also presented evidence that (among other things) Meineke decided to use that trust fund as a source of revenue and, thereafter, it broke a contract with an advertising firm paid by Meineke to fulfill its obligation to purcháse and place advertising (and later paid a settlement of that lawsuit from WAC funds); it then began to purchase and place advertising itself, charging the WAC fund for these efforts (which had previously been rendered at no charge); it chose advertising media designed to maximize the fees it could charge against the WAC fund rather than selecting advertising on the basis of whether it would serve the long-term interest of the chain; it secured large volume discounts for advertising but kept those discounts for itself to the detriment of the WAC fund; and it used WAC funds designed to attract new franchisees as opposed to attracting customers for existing franchisees. The Plaintiffs also presented evidence that the Defendants concealed their misappropriations of WAC funds by false and misleading representations made with intent to deceive. It was this evidence that the jury relied upon when it found for the Plaintiffs on their claims and the Court believes that the jury findings of fraud, breach of fiduciary duty, interference with contract as well as the specific factual findings of the jury with respect to the conduct alleged as deceptive trade practice are supported by the evidence. Those findings, and the factual findings made by the Court below in connection with the Plaintiffs’ request for injunctive relief, provide a firm factual basis for the Court’s legal determination that the Defendants violated § 75-1.1 in this ease, because the practices were unfair, oppressive, and deceptive. See Marshall v. Miller, 302 N.C. 539, 276 S.E.2d 397 (1981); Johnson v. Phoenix Mutual Life Insurance Co., 300 N.C. 247, 266 S.E.2d 610 (1980); Hardy v. Toler, 288 N.C. 303, 218 S.E.2d 342 (1975). At the hearing held in this matter the Court indicated that conviction to the Plaintiffs and asked the Plaintiffs to elect between punitive or treble damages. At that time, the Plaintiffs argued that they should be allowed to collect both punitive damages and treble damages. Relying on Medina v. Town and Country Ford, 85 N.CApp. 650, 355 S.E.2d 831 (1987), the Plaintiffs argue that they should be able to elect an award of punitive damages on some of the claims found by the jury and take treble damages as to other claims because such claims concern discrete conduct and, in such cases, the recovery of punitive damages and treble damages is allowed. The principle cited by the Plaintiffs is correct and it might well have found an application in this case; however, the Plaintiffs did not ask for an instruction under Medina, supra, at trial and the Court does not believe that its instruction on the punitive damage issues limited the jury to the consideration of certain specified conduct, cf. Medina, 85 N.CApp. at 659, 355 S.E.2d 831. Therefore the Plaintiffs cannot avail themselves of the rule in Medina at this time. When the Plaintiffs learned the Court’s disposition on this matter the Plaintiffs elected to receive the award of treble damages available under North Carolina’s DTPA albeit under protest. At the Court’s questioning they also decided to forego the recovery of damages for unjust enrichment in favor of the recovery of money damages. The Court will reflect those elections in the judgment. The Defendants are not satisfied with these elections. According to the Defendants, the election of remedies requires the Plaintiffs to elect between inconsistent theories — such as aiding and abetting as opposed to the alter ego theory. The Court disagrees because the doctrine, as explained by the North Carolina Supreme Court, is focused on remedies, not theories of liability. The North Carolina Supreme Court’s decision in United Laboratories v. Kuykendall, 335 N.C. 183, 191-92, 437 S.E.2d 374 (1993) both explains the function served by the modern doctrine of election of remedies and illustrates that it applies to remedies, not theories of liability. In that case, the plaintiff had advanced claims under tort (interference with contract) and the North Carolina DTPA based on the same conduct; and later had elected to take compensatory damages and attorney’s fees under the DTPA while taking punitive damages under his tort claim. The North Carolina Supreme Court granted review to determine whether, in a case where tort and deceptive trade practice claims arose from the same conduct, a plaintiff could take compensatory damages (and attorney fees) under the DTPA, while electing punitive damages on the tort claim. After explaining that the modern doctrine of election of remedies serves to prevent inconsistent remedies which would allow a double recovery (such as suing for rescission as well as breach of contract) and also served to prevent awards of damages that would twice remedy a single wrong, the Supreme Court held that the plaintiff’s election was proper. But, Kuykendall, supra, also shows that the doctrine does not apply to theories of liability because the plaintiff was not required to elect between his tort and statutory claim; he was required to elect between overlapping recoveries: the award of compensatory damages under the tort or the statutory claim and the award of punitive or treble damages. Indeed the cases cited by the Defendants recognize as much because they state the commonplace that a Defendant cannot recover twice for the same wrong.