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Opus, Drew file counterclaim against AirPro in breach of contract, EULA dispute

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Business Practices | Legal
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In their answer to a breach of contract lawsuit filed by AirPro Diagnostics against its subsidiary, Drew Technologies, Opus IVS denies accusations that it violated the terms of an information-sharing agreement between the companies. A counterclaim has also been filed.

AirPro filed suit against Opus and Drew in December in the U.S. District Court for the Eastern District of Michigan over an agreement between the companies that was signed Feb. 13, 2017. Under the terms, the parties agreed to exchange information with one another, including “business strategies, pricing, techniques, computer programs, methods, drawings, formulas, specifications, software, or other data of a business or technical nature[.]”

AirPro claims Drew used what it learned to become a direct competitor and violated a license agreement for AutoEngenity’s Giotto product. AutoEngenity is a Drew subsidiary and is named as another defendant in the AirPro suit in addition to Opus President Brian Herron. They’ve been accused of unfair competition.

Drew first attempted to have the lawsuit dismissed but U.S. District Judge Linda V. Parker denied that motion in September.

She wrote in her order and opinion that AirPro “provides sufficient notice of Defendants’ alleged unfair play” in its accusations of wrongful use of proprietary and confidential information to directly compete with AirPro and hire its technicians.

Now, Drew and Opus deny all allegations against them including breach of contract, unfair competition, and tortious interference with business expectancy.

The defendants claim that the Giotto product’s license agreement stands on its own to deny AirPro’s claim that it carries no use restrictions.

The parties are at odds in their filings over the terms described in user agreements, when or whether the documents were provided to all parties, and allegations made in letters from Herron to AirPro regarding the termination of its software license. Before the dispute was brought to court, a new end-user license agreement (EULA) was penned that AirPro says it wasn’t privy to.

Opus and Drew contend that AirPro should’ve been aware of the new EULA through the use of Giotto because the installation of major updates on it is conditional on the end user accepting the EULA and consenting to the terms of it.

“Defendants expressly deny that the [new] EULA ‘specifically prohibited AirPro’s entire business model for providing remote diagnostic services,'” Drew wrote in its answer to the complaint.

In its counterclaim, Opus and Drew allege AirPro is in breach of contract and has participated in unfair competition. AirPro is also accused of failure to act in good faith and within reasonable commercial standards, unlawful misrepresentation of the Giotto product, failure to purchase licenses for each concurrent user, and subjecting the defendants to potential third-party liability for their misuse and misrepresentation of Giotto.

Opus uses the outcome of a separate lawsuit filed by Ford against AirPro in its defense to discredit AirPro, specifically quoting the court’s statement that, “It cannot be disputed that… AirPro set out to identify Ford as one source of OEM software used on its scan tool, not just to claim that its scan tool is compatible with Ford’s Diagnostic Software.”

Opus added, “AirPro inaccurately and unlawfully advertised and marketed the Giotto Product as an OEM scan tool software in an effort to, on information and belief, successfully mislead consumers and unfairly compete with Opus.”

A judgment from the court that AirPro recovers nothing from Opus or Drew via its lawsuit is sought as well as an award for damages in an amount to be determined at trial plus pre- and post-judgment interest at the legal rate.

The plaintiffs have also asked the court for a waiver and estoppel of AirPro’s questioning of the validity of the EULA because of its alleged continued use of the product and agreement to the EULA terms.


Featured image credit: Tippapatt/iStock

Opus IVS, Drew Technologies, and AutoEnginuity provided a screenshot of the alleged EULA that’s in question within Giotto. (Pulled from the defendants’ answer and counterclaim court filing)

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