Both sides of a breach of contract lawsuit filed by AirPro Diagnostics against Opus IVS and its subsidiary, Drew Technologies, have filed for summary judgment.

If granted, the case won’t go to trial. Drew company, AutoEnginuity, and Opus CEO Brian Herron (former Drew president) are also named defendants in the case.

AirPro filed suit against Opus and Drew in December 2022 in the U.S. District Court for the Eastern District of Michigan over an agreement between the companies signed on 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[.]”

In October 2023, Opus and Drew countersued, denying all allegations against them including breach of contract, unfair competition, and tortious interference with business expectancy.

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

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.

All of the defendants seek dismissal of each of AirPro’s claims. Opus also moves for partial summary judgment as to liability on its breach of contract claim against AirPro.

In its Feb. 18 motion, Opus states that AirPro only designated a single item of confidential information, as “information” is defined in the mutual party agreement (MPA) between the companies, and that it wasn’t used “in the independent development of its products and services.”

“AirPro manufactured its breach claim after years of open and lawful competition by Opus,” the motion states. “Years after AirPro knew about and accepted legitimate business competition with Opus in the automotive collision repair remote diagnostics market… Opus terminated AirPro’s Giotto Software license. Upset with Opus for terminating the license, AirPro manufactured a breach of contract claim unrelated to the license termination.”

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. This also indicates to any end user the critical importance of reviewing EULAs before accepting new tool updates.

Drew contends that it didn’t violate its MPA with AirPro because AirPro only disclosed one document that was designated as confidential information and never designated any information that was verbally disclosed as confidential.

Specifically, Drew argues that AirPro’s use of the Giotto Software and CarDAQ VCIs wasn’t designated as confidential under the MPA, citing a 2013 YouTube interview with Jay Horak, of AutoEnginuity (now Opus), which was four years before the execution of the MPA.

In the interview, Drew says Horak “openly discussed his plan to port the Giotto Software to a J2534 interface.”

The motion also states that because Opus terminated AirPro’s license to the Giotto software due to “legitimate and acknowledged liability concerns,” AirPro’s claim for tortious interference fails.

In AirPro’s motion for summary judgment, also filed Feb. 18, the company states that a discussion between the parties on Feb. 12 about Opus’s counterclaim resulted in Opus’s counsel agreeing to withdraw any damages claims, such as lost profits and customers, based on its own financial records. Instead, Opus will pursue disgorgement as its remedy, according to the motion.

AirPro contends that it’s entitled to summary judgment on Opus’s breach of contract claim because it didn’t breach its new EULA with Opus.

Opus argues, however, that AirPro breached the EULA by allowing its customers to perform “‘self-scans,’ where a collision shop employee who would normally work in tandem with an AirPro technician to address a repair would instead work solely on his or her own, using the AirPro device.”

“Not only is this argument non-sensical but Opus is, in any event, unable to tie the factual circumstances surrounding AirPro’s actual operations to the language of the new EULA,” AirPro wrote in the motion.

“AirPro would buy a license for each and every device that it had in the field, with a single copy installed on each device. This is exactly the manner in which the new EULA contemplates the use of the software, as confirmed by AutoEnginuity’s own Technical Support Manager, Bill VanOrden, who testified that a license is tied to a particular device… There is no evidence that AirPro ever installed a copy of the same license to Giotto software on more than one AirPro device at a time. In reality, this entire claim is premised on Mr. Herron’s after the fact argument that the use case described above, in which an AirPro customer uses the AirPro device to perform a service without involving AirPro, somehow constitutes ‘concurrent’ use by multiple users.”

Opus also claims that AirPro breached the new EULA by making statements about the capabilities of the Giotto software in comparison to OEM diagnostic systems.

“[T]he provision at issue only prohibits a licensee from making ‘statements that diagnostic services performed using software are equivalent to the OE diagnostic system,'” AirPro wrote in its motion. “The bulk of Opus’s complaints relate to the use of phrases like ‘OEM sourced’ and ‘OEM compliant.’ Not only… are those phrases truthful and perfectly appropriate but they do not implicate the actual language of the new EULA.

“Indeed, Opus has yet to come forward with any representation by AirPro after December 1, 2020, in which AirPro claimed that its services were ‘equivalent to’ OEM diagnostic systems. As such, Opus has no tenable breach of contract claim.”

AirPro also seeks summary judgment on Opus’s unfair competition claim because it has done nothing that constitutes that under Michigan law.

Using a position statement on OEM tool use from ETI, the Autocare Association and the Automotive Aftermarket Suppliers Association to back its statements up, AirPro says the unfair competition its accused of is “the very competition contemplated by the R2R [right to repair] legislation and the MOU [memorandum of understanding]” between OEMs and the aftermarket agreed to in 2014.

“The entire purpose of the R2R legislation and the MOU was to create an equivalent and competitive service to that of the OEMs’ franchised dealerships,” AirPro’s motion states. “One key to enabling this competition was to require that the OEMs provide scan tool manufacturers and their developers with the equivalent diagnostic information as is provided to the OEMs’ dealerships.

“Even Lothar Geilen of Opus conceded that he ‘wouldn’t doubt’ that the goal of this law was the creation of aftermarket scan tools with equivalent capabilities of automaker dealership tools.”

As of Friday afternoon, nothing else had been filed concerning the summary judgment motions.

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