OPINION

PARSONS, Vice Chancellor.

This breach of contract action was one of two co-pending actions arising out of the merger of Nextel Communications, Inc. ("Nextel") with and into a subsidiary of Sprint Corp. ("Sprint"). Plaintiffs in this action (C.A. No. 1518-N) Horizon Personal Communications, Inc. ("Horizon") and Bright Personal Communications Services, LLC ("Bright"), along with the plaintiffs in the related action (C.A. No. 1489-N) UbiquiTel Inc. and UbiquiTel Operating Co. (collectively, "UbiquiTel"), asserted claims of breach of contract and anticipatory breach of contract against the two pre-merger companies and the combined entity ("Sprint Nextel"). Plaintiffs also asserted claims of tortious interference with contract against Nextel and civil conspiracy to breach Plaintiffs' contracts against all of the defendants. Plaintiffs seek declaratory and injunctive relief with respect to their allegedly exclusive branding rights, Sprint Nextel's alleged favoring of the legacy Nextel business over Plaintiffs' business and the scope of the confidentiality provisions contained in the parties' agreements.

Although the Court had not formally consolidated the UbiquiTel action and this action, the parties agreed to try them together and the Court held a ten day trial from January 9 to 23, 2006. After extensive post-trial briefing, the Court heard argument on April 4, 2006. Shortly thereafter, UbiquiTel and Sprint Nextel agreed to merge and resolve their dispute. Upon consummation of the merger in early July 2006, the parties stipulated to the dismissal of C.A. No. 1489-N. This Opinion thus embodies the Court's post-trial findings of fact and conclusions of law in C.A. No. 1518-N.

For the reasons set forth below, the Court concludes that: (1) Sprint Nextel will violate the implied duty of good faith and fair dealing if in Plaintiffs' Service Areas it offers iDEN products and services using the Sprint brand and marks or re-brands the legacy Nextel stores using the new Sprint logo; (2) Plaintiffs' objections to certain Sprint Nextel actions that allegedly favor the legacy Nextel business are not ripe for judicial determination, while the remaining challenged actions do not violate the implied duty of good faith and fair dealing; (3) subject to the prohibitions on misuse of Plaintiffs' Confidential Information in the parties' agreements and the safeguards Sprint Nextel has undertaken to employ during the term of the parties' agreements, Sprint Nextel need not strictly limit disclosure of that information to its Affiliate Group; (4) Plaintiffs are entitled to a permanent injunction to enforce their rights in the Sprint brand and marks in the Service Areas; (5) Nextel did not tortiously interfere with Plaintiffs' contracts with Sprint; and (6) Plaintiffs did not prove the existence of a civil conspiracy.

I. BACKGROUND A. The Parties

Horizon and Bright are Ohio entities with their principal executive offices in Schaumburg, Illinois. Both Horizon and Bright are wholly owned by iPCS, Inc., a Delaware corporation with its principal executive offices in Schaumburg.

Sprint was a Kansas corporation with its principal executive offices in Overland Park, Kansas, while Nextel was a Delaware corporation with its principal executive offices in Reston, Virginia. Today, Sprint Nextel is a Kansas corporation with its principal executive offices in Reston and its operational headquarters in Overland Park.

Defendants Sprint Spectrum L.P., WirelessCo L.P., Sprint Communications Co. L.P., Sprint Telephony PCS, L.P. and PhillieCo, L.P. are Delaware limited partnerships with their principal executive offices in Overland Park, Kansas; all five are indirectly owned subsidiaries of Sprint Nextel. Defendants Sprint PCS License, L.L.C. and APC PCS LLC are Delaware limited liability companies with their principal executive offices in Overland Park; both are indirectly owned subsidiaries of Sprint Nextel. Defendant SprintCom, Inc. is a Kansas corporation with its principal executive offices in Overland Park; it, too, is an indirectly owned subsidiary of Sprint Nextel.

B. The Development of the Sprint PCS Network and the Sprint PCS Affiliate Program

Those spectrum licenses incorporated build-out requirements. In furtherance of both those requirements and Sprint's desire to offer seamless wireless service nationwide, Sprint created what became known as the affiliate program. "Affiliates" were third parties who agreed to build out and operate the Sprint PCS network in secondary and tertiary markets in return for, among other benefits, the right to use the spectrum licenses and the right to use the Sprint PCS brands. The Affiliates were to be Sprint PCS in their service areas and "were going to function in their service areas as Sprint PCS." In other words, a customer would be unable to distinguish between a portion of the Sprint PCS network operated by Sprint and a portion of the network operated by an Affiliate.

C. Sprint PCS Network Technology versus Nextel Network Technology

D. Horizon and Bright Become Sprint Affiliates

In contrast to Horizon, Bright was formed "to be a Sprint affiliate." After several months of negotiation, Bright became a Sprint PCS Affiliate in October 1999. In June 2000, Horizon's parent company acquired Bright. Today, Horizon and Bright operate portions of the Sprint PCS network in parts of Ohio, West Virginia, Maryland, Pennsylvania, New York, Tennessee, Indiana and Michigan.

E. The Affiliate Agreements

1. The Management Agreement

Section 2.3 of the Management Agreement provides Horizon and Bright with certain exclusivity rights. To wit,

[Horizon or Bright] will be the only person or entity that is a manager or operator for Sprint PCS with respect to the Service Area and neither Sprint PCS nor any of its Related Parties will own, operate, build or manage another Wireless Mobility Communications Network in the Service Area so long as this agreement remains in full force and effect and there is no Event of Termination that has occurred giving Sprint PCS the right to terminate the agreement. . . .

The remainder of section 2.3 specifies the following exceptions, among others, to Plaintiffs' exclusivity rights:

(a) Sprint PCS may cause Sprint PCS Products and Services to be sold in the Service Area through the Sprint PCS National Accounts Program Requirements and Sprint PCS National or Regional Distribution Program Requirements;

(b) A reseller of Sprint PCS Products and Services may sell its products and services in the Service Area. . . .

The Schedule of Definitions defines Sprint PCS as

any or all of the following Related Parties who are License holders or signatories to the Management Agreement: Sprint Spectrum L.P. , WirelessCo, L.P. , SprintCom, Inc. , PhillieCo Partners I, L.P. , PhillieCo, L.P. , Sprint Telephony PCS, L.P. , Sprint PCS License L.L.C. , American PCS Communications LLC and APC PCS, LLC .

Wireless Mobility Communications Network means "a radio communications system operating in the 1900 MHz spectrum range under the rules designated as Subpart E of Part 24 of the FCC's rules."

Section 12.2 of the Management Agreement governs the handling of "Confidential Information." It provides, in pertinent part:

Except as specifically authorized by this agreement, each of the parties must, for the Term and 3 years after the date of termination of this agreement, keep confidential, not disclose to others and use only for the purposes authorized in this agreement, all Confidential Information disclosed by the other party to the party in connection with this agreement. . . .

The remainder of the section sets out certain exceptions to the parties' obligations.

Finally, section 1.8 of the Management Agreement provides that "[e]ach party must perform its obligations under this agreement in a diligent, legal, ethical, and professional manner," while section 17.22 states that the "provisions of each [Trademark Agreement] governs [sic] over those of this agreement if the provisions contained in this agreement conflict with analogous provisions in the [Trademark Agreements]." Section 17.7 provides that together the Management Agreement, Trademark Agreements and Services Agreement "set forth the entire agreement and understanding between the parties as to the subject matter of this agreement. . . ."

2. The Trademark Agreements

Subject to the terms and conditions hereof, Licensor hereby grants to Licensee, and Licensee hereby accepts from Licensor, for the term of this agreement, a non-transferable, royalty-free license to use the Licensed Marks solely for and in connection with the marketing, promotion, advertisement, distribution, lease or sale of Sprint PCS Products and Services and Premium and Promotional Items in the Service Area.

In section 4.1, Horizon and Bright "acknowledge Licensor's exclusive right, title and interest in and to the Licensed Marks and acknowledge that nothing herein shall be construed to accord to Licensee any rights in the Service Area in the Licensed Marks except as expressly provided herein." Plaintiffs further agree that "the goodwill symbolized by and connected with such use of the Licensed Marks will inure solely to the benefit of the Licensor."

Article 3 of the Trademark Agreements governs Confidential Information. Section 3.1 provides:

Licensor and Licensee and their respective Controlled Related Parties . . . shall cause their respective officers and directors . . . to, and shall take all reasonable measures to cause their respective employees, attorneys, accountants, consultants and other agents and advisors (collectively, and together with their respective officers and directors, "Agents") to, keep secret and maintain in confidence the terms of this agreement and all confidential and proprietary information and data of the other party or its Related Parties disclosed to it (in each case, a "Receiving Party") in connection with the performance of its obligations under this agreement (the "Confidential Information") and shall not, and shall cause their respective officers and directors not to, and shall take all reasonable measures to cause their respective other Agents not to, disclose Confidential Information to any Person other than the parties, their Controlled Related Parties and their respective Agents that need to know such Confidential Information. Each party further agrees that it shall not use the Confidential Information for any purpose other than determining and performing its obligations and exercising its rights under this agreement.

Section 3.2 sets out certain exceptions to these obligations.

The Schedule of Definitions defines "Controlled Related Party" as

the Parent of any Person and each Subsidiary of such Parent. As used in Section 1.2 and Article 3 of the [Trademark Agreements], the term "Controlled Related Party" will also include any Related Party of a Person that such Person or its Parent can directly or indirectly unilaterally cause to take or refrain from taking any of the actions required, prohibited or otherwise restricted by such Section, whether through ownership of voting securities, contractually or otherwise.

Similarly, "Related Party" means

with respect to any Person, any other Person that directly or indirectly through one or more intermediaries controls, is controlled by, or is under common control with the Person. For purposes of the Management Agreement, Sprint Spectrum, SprintCom, American PCS Communications, LLC, PhillieCo Partners I, L.P., and Cox Communications PCS, L.P. will be deemed to be Related Parties. For purposes of this definition, the term "controls" (including its correlative meanings "controlled by" and "under common control with") means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.

F. Sprint Helps the Affiliates Raise Capital and the Affiliates Perform According to the Agreements

Horizon and Bright did raise significant capital and eventually spent approximately $300 million building out the Sprint PCS Network in their Service Areas. From 1998 to 2005, Horizon and Bright also spent approximately $33.5 million on local advertising and promotion of Sprint PCS. Ultimately, Sprint, with the help of the Affiliates, built its nationwide wireless network and achieved the objectives of the affiliate program.

G. The Sprint PCS and Sprint Brands

H. The Sprint Nextel Merger

On December 15, 2004, Sprint and Nextel announced that they had agreed to merge. That same day, Sprint held a conference call with the Affiliates to discuss the Affiliates' role post-merger. Sprint recognized that the addition of the Nextel iDEN network would change the dynamic of its relationship with the Affiliates, but it believed it could renegotiate its agreements with the Affiliates by the time the merger closed. In February 2005, Sprint began discussing the possibility of "reaffiliation" with the Affiliates, but the negotiations slowed considerably after a March meeting.

On July 13, 2005, the shareholders of Sprint and Nextel voted to approve the merger. On July 22, Horizon and Bright sought preliminary injunctive and declaratory relief to prevent alleged imminent breaches of their exclusivity and confidentiality rights. To avoid preliminary injunction proceedings, Sprint and Horizon and Bright entered into a Forebearance Agreement on July 28. On August 12, Nextel merged with and into a wholly-owned subsidiary of Sprint and Sprint changed its name to Sprint Nextel. Both Sprint Nextel and its wholly-owned Nextel Communications, Inc. subsidiary ("Nextel Communications") are Related Parties under the Management Agreement.

I. Sprint Nextel Adopts "Sprint" as its Master Brand and Creates a New Logo

In 2005, Sprint Nextel decided to use "Sprint" as the new company's master brand. Brands like "Nextel" and "Sprint PCS" became product brands under the larger Sprint master brand umbrella. Sprint Nextel also adopted a new yellow and black logo that reads "Sprint — Together with Nextel." A new "wave" logo appears to the right of the word "Sprint" and above the "Together with Nextel" text.

At Sprint Nextel's direction, the Affiliates re-branded their stores and collateral with the new Sprint wave logo, but without the "Together with Nextel" text. Outside of the Affiliates Service Areas, Sprint Nextel has re-branded both legacy Sprint and legacy Nextel stores with the new yellow and black, "Sprint — Together with Nextel" wave logo. Inside the Affiliates' Service Areas, Sprint Nextel has not re-branded the legacy Nextel stores because the Forebearance Agreement prohibits it, but Sprint Nextel intends to re-brand them.

J. The Forebearance Agreement

The Forebearance Agreement also prohibits Sprint Nextel from using the iDEN network to provide CDMA products and services in Plaintiffs' Service Areas, from selling CDMA products and services in Plaintiffs' Service Areas and from re-branding Nextel's stores as Sprint Nextel stores in Plaintiffs' Service Areas. The agreement prohibits Sprint Nextel from using bill inserts or promotional offers to entice Plaintiffs' customers to become Sprint Nextel iDEN customers, from waiving termination fees to entice Plaintiffs' customers to become Sprint Nextel iDEN customers and from integrating its national sales teams in Plaintiffs' Service Areas. Further, Sprint Nextel must print a disclaimer on any national advertising that might reach Plaintiffs' Service Areas to let readers know that iDEN products are only available at certain retail locations, i.e., the stores previously owned by Nextel but not Plaintiffs' stores. Finally, the parties agreed that the Forebearance Agreement constitutes neither an admission by Sprint Nextel as to the scope of Plaintiffs' rights under the Management Agreement nor an admission by Sprint Nextel that the terms were necessary to avoid breach of the Management Agreement.

K. Relief Sought by Horizon and Bright

Plaintiffs also seek a permanent injunction barring Sprint Nextel from engaging in any of those acts and requiring Sprint Nextel to provide periodic reports to them describing each step taken to prevent disclosure of and limit use of Plaintiffs' confidential information and report any and all disclosure or use of their confidential information by persons outside the Affiliate Group. Finally, Plaintiffs seek a declaration that Nextel tortiously interfered with their contracts with Sprint and that all defendants conspired to breach Plaintiffs' contracts with Sprint.

L. Plaintiffs' Abandoned Claim

Plaintiffs originally sought a declaration that the mere operation of the iDEN network by Sprint Nextel in their Service Areas would violate the exclusivity rights provided them by section 2.3 of the Management Agreement. Plaintiffs maintained this claim through trial, but abandoned it in post-trial briefing and at argument. It is thus undisputed at this point that Sprint Nextel may operate the iDEN network nationwide. It also is undisputed that Sprint Nextel may use the Sprint brand and marks to promote iDEN products and services and re-brand legacy Nextel stores with the new Sprint logo outside Plaintiffs' Service Areas. The only brand and marks issues in dispute are whether in Plaintiffs' Service Areas Sprint Nextel may use the Sprint brand and marks to promote iDEN products and services or re-brand legacy Nextel stores with the new Sprint logo.

II. ANALYSIS A. Choice of Law

The Management Agreement contains a choice of law clause that provides for the application of Kansas law to questions of "the validity of this agreement, the construction of its terms, and the interpretation of the rights and duties of the parties." Kansas law therefore governs the parties' dispute.

B. Use of the Sprint Brand and Marks in Plaintiffs' Service Areas

Plaintiffs contend that Sprint Nextel's use of the Sprint brand and marks to promote iDEN products and services in their Service Areas along with Sprint Nextel's plan to re-brand legacy Nextel stores in their Service Areas with the new Sprint logo violate both the Management and Trademark Agreements. Alternatively, Horizon and Bright argue that these actions violate both an express duty of good faith and fair dealing contained in the Management Agreement and the implied duty of good faith and fair dealing.

1. Sprint Nextel's use of the Sprint brand and marks in Plaintiffs' Service Areas does not violate any express provisions of either the Management Agreement or of the Trademark Agreements

a. Management Agreement sections 1.1, 2.3, 5.1 and 6.1

Section 1.1 of the Management Agreement recites Horizon and Bright's four basic obligations under the agreement, while section 2.3 provides Horizon and Bright with certain exclusivity rights with respect to the management and operation of the Sprint PCS network. Section 6.1 of the Management Agreement provides that "Sprint PCS is responsible for (a) all national advertising and promotion of the Sprint PCS Products and Services . . . and (b) all advertising and promotion of the Sprint PCS Products and Services in the markets where Sprint PCS operates without the use of a Manager." These sections never mention or refer to the Sprint brand or marks.

Section 5.1 of the Management Agreement governs Horizon and Bright's use of the brand and requires them a) to enter into the Trademark Agreements, b) to use the brand exclusively in the "marketing, promotion, advertisement, distribution, lease or sale of any Sprint PCS Products and Services within the Service Area" and c) not to promote any of the Sprint PCS Products and Services using a "private label" or anything but the Sprint and Sprint PCS brands. Finally, section 5.1(d) permits Plaintiffs to market Sprint PCS Products and Services bearing the brand in conjunction with their own products and services that "bear a different brand or trademark." This section restricts Plaintiffs' use of the Sprint brand and marks; it does not, however, restrict Sprint Nextel's use of them.

"The primary rule in interpreting written contracts is to ascertain the intent of the parties." "Where contract terms are plain and unambiguous, the intention of the parties and the meaning of the contract are determined from the contract itself." "[T]he fact that the parties differ as to what an unambiguous contract requires does not force this court to find that the contract was, in fact, ambiguous." Rather, to be ambiguous, "a contract must contain provisions or language of doubtful or conflicting meaning, as gleaned from a natural and reasonable interpretation of its language." With respect to the Sprint brand and marks, sections 1.1, 2.3, 5.1 and 6.1 of the Management Agreement are plain and unambiguous. Three of the sections do not even mention or refer to the brand or marks, while the fourth imposes a restriction on Plaintiffs' use of them.

Read in conjunction, these sections provide Plaintiffs nothing more than a right, and, correspondingly, impose a requirement, to use the Sprint brand and marks to perform their obligation to market Sprint PCS Products and Services in their Service Areas. The sections' plain language cannot be read to limit Sprint Nextel's use of the Sprint brand or marks or to provide Plaintiffs with any exclusivity as to them in their Service Areas, except as to Sprint PCS Products and Services. As such, Plaintiffs' argument that sections 1.1, 2.3, 5.1 and 6.1 of the Management Agreement prohibit Sprint Nextel from using the Sprint brand and marks to promote iDEN products and services in their Service Areas and from re-branding legacy Nextel stores in their Service Areas with the new Sprint logo fails. One or more of these provisions, however, do prevent Sprint Nextel from selling Sprint PCS Products and Services in the legacy Nextel stores.

b. Trademark Agreement section 11.4

Plaintiffs next argue that section 11.4 of the Trademark Agreement, read in conjunction with sections 3.1, 4.4 and 5.1 of the Management Agreement, prohibits Sprint Nextel from using the Sprint brand to promote iDEN products and services and from re-branding legacy Nextel stores with the new Sprint logo in their Service Areas because the Sprint-branded iDEN products, services and stores would be confusingly similar to the Sprint-branded CDMA ones offered by Plaintiffs.

Section 11.4 of the Trademark Agreements provides in pertinent part:

Neither Licensor nor any of its Controlled Related Parties shall initiate any products or promotions under names which are confusingly similar to any names of national product offerings or promotions by Licensee. In addition, Licensor will use its commercially reasonable efforts to ensure that no third party licensee under the Licensed Marks initiates any products or promotions in the Service Area under names which are confusingly similar to any names of national product offerings or promotions by Licensee.

None of the Agreements define "national product offerings or promotions by Licensee." Plaintiffs contend that sections 3.1, 4.4 and 5.1 of the Management Agreement "establish that this term refers to Sprint's national product offerings and promotions that Plaintiffs offer and support in their Service Areas." Therefore, Plaintiffs argue, Sprint Nextel cannot re-brand iDEN products and services and legacy Nextel stores because of the prohibition against confusingly similar products and promotions.

Section 3.1 of the Management Agreement provides that Horizon and Bright

must offer for sale, promote and support all Sprint PCS Products and Services within the Service Area. . . . Within the Service Area, [Plaintiffs] may only sell, promote and support wireless products and services that are Sprint PCS Products and Services or are other products and services authorized under Section 3.2. The Sprint PCS Products and Services as of the date of this agreement are attached as Exhibit 3.1. Sprint PCS may modify the Sprint PCS Products and Services from time to time in its sole discretion by delivering to [Plaintiffs] a new Exhibit 3.1.

Section 4.4 of the Management Agreement provides in pertinent part that Horizon and Bright "will offer and support all Sprint PCS pricing plans designated for regional or national offerings of Sprint PCS Products and Services. . . . Additionally, [Plaintiffs] may establish pricing plans for Sprint PCS Products and Services that are only offered in its local markets. . . ."

From these sections, Plaintiffs conclude that the Management Agreement both requires them to "offer and support Sprint Nextel's national product offerings and promotions" using the Sprint brand and allows them to offer their own local pricing plans. Plaintiffs are correct insofar as they conclude that the Management Agreement both requires them to promote "all Sprint PCS Products and Services" using the Sprint brand and allows them to offer their own pricing plans in their Service Areas. Sections 3.1, 4.4 and 5.1, however, do not use the term "national product offerings and promotions" as Plaintiffs appear to contend. Likewise, none of the three sections, whether read individually or collectively, define "national product offerings and promotions by Licensee," as that term is used in section 11.4 of the Trademark Agreements, to mean Sprint PCS Products and Services. In fact, "national product offerings and promotions by Licensee" cannot possibly mean Sprint PCS Products and Services because Horizon and Bright do not offer these products or services nationally.

Perhaps recognizing this textual shortcoming, Plaintiffs argue that sections 3.1, 4.4 and 5.1 must define national product offerings and promotions because they are the only sections to distinguish between national and local offerings. These sections distinguish between national and local offerings, however, to provide that Plaintiffs may offer their own pricing plans.

Read together, the Management Agreement and Trademark Agreements make clear that "national product offerings and promotions by Licensee" refer to non-Sprint PCS Products and Services the Management Agreement permits Plaintiffs to offer. Sections 3.1 and 3.2 of the Management Agreement allow Plaintiffs to offer wireless products and services that are not Sprint PCS Products and Services so long as these other products and services, among other requirements, "do not cause distribution channel conflict with or consumer confusion regarding Sprint PCS' regional and national offerings of Sprint PCS Products and Services" and "comply with the Trademark License Agreements." Further, non-Sprint PCS Products and Services must not be "confusingly similar to Sprint PCS Products and Services."

Section 5.1 of the Management Agreement acknowledges Plaintiffs' right to offer non-Sprint PCS Products and Services and provides Plaintiffs the right to offer these products with Sprint PCS Products and Services. Finally, section 10.3 of the Trademark Agreements prohibits Horizon or Bright from using "any trademark or service mark which is confusingly similar to, or a colorable imitation of, the Licensed Marks or any part thereof. . . ."

Together, the plain and unambiguous language of the Management and Trademark Agreements establishes the rules under which Plaintiffs may offer their own products and services. Section 11.4 affords Plaintiffs some protection in so doing, i.e., Sprint Nextel may not "initiate any products or promotions under names which are confusingly similar to any names of national product offerings or promotions by [Plaintiffs]."

b. The implied duty of good faith and fair dealing

"Kansas courts impose a duty of good faith and fair dealing in every contract." Pursuant to this duty, "[p]arties shall not `intentionally and purposely do anything to prevent the other party from carrying out his part of the agreement, or do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract.'" The purpose of the duty "is to protect the reasonable expectations of the parties."

In this context, the Delaware courts have recognized

that implying contract terms is an occasional necessity to ensure that parties' reasonable expectations are fulfilled, but that this quasi-reformation . . . should be a rare and fact-intensive exercise, governed solely by issues of compelling fairness and that only when it is clear from the writing that the contracting parties would have agreed to proscribe the act later complained of . . . had they thought to negotiate with respect to that matter may a party invoke

the protections of the duty of good faith and fair dealing.

Plaintiffs argue that allowing Sprint Nextel in their Service Areas to re-brand the Nextel stores and sell iDEN products using the "very brand that Plaintiffs have spent millions of dollars promoting would impair Plaintiffs' rights under the Management Agreements [as the exclusive manager or operator for Sprint PCS] and their substantial investment in their goodwill and customer loyalty." Defendants respond that absent any grant of exclusive use of the Sprint brand in their Service Areas, Plaintiffs can expect no more than they secured themselves in the Agreements, i.e., a non-exclusive license to use the Sprint brand to market Sprint PCS Products and Services.

The granting clause of the trademark agreement concerning the Sprint brand ("Sprint brand Trademark Agreement") gives Plaintiffs the right to use the Sprint brand and marks only in connection with the "marketing, promotion, advertisement, distribution, lease or sale of Sprint PCS Products and Services . . . in the Service Area." In section 4.1 of the Sprint brand Trademark Agreement, Plaintiffs acknowledge Sprint Nextel's "exclusive right, title and interest in and to" the Sprint brand. The plain language of the Sprint brand Trademark Agreement thus appears to allow Sprint Nextel to use the Sprint brand in Plaintiffs' Service Areas to sell non-Sprint PCS Products and Services. Sprint Nextel owns the Sprint brand, while Plaintiffs merely have the right to use it to market Sprint PCS Products and Services in their Service Areas. Neither the Management Agreement nor the Services Agreement, however, addresses the scenario presented by the merger of Sprint and Nextel, namely, Sprint Nextel's desire to sell a product distinct from, but directly competitive with that sold by Plaintiffs using the same brand as Plaintiffs from stores that look the same and bear the same brand name as Plaintiffs. In fact, several witnesses representing parties on both sides of the Agreements testified that the parties did not anticipate such a situation when they negotiated the Agreements.

The questions for the Court are thus what rights do Plaintiffs have as, essentially, non-exclusive licensees of the Sprint brand and what would the parties have agreed to had they anticipated the current scenario. Assuming the parties would have agreed to prevent Sprint Nextel from doing what it now wishes to do, the Court also must determine whether compelling fairness requires quasi-reformation of the Agreements to prohibit that conduct pursuant to the implied duty of good faith and fair dealing.

The "`purpose of trademark law is . . . to guarantee that every item sold under a trademark is the genuine trademarked product, and not a substitute.'" "A trademark is meant to identify goods so that a customer will not be confused as to their source." In fact, "[t]he only function of a trademark is to designate a product or service." Fundamentally, then, a trademark is an indication of source.

The term "non-exclusive" "has repeatedly been defined as meaning that the licensee is granted a bare right to use the trademark or patent being licensed without any right to exclude others . . . from utilizing the mark or invention involved." Plaintiffs therefore have a non-exclusive right to use the Sprint brand to identify their products as Sprint PCS Products and Services operating on the nationwide Sprint Nextel CDMA network. Absent Plaintiffs' exclusivity rights, Sprint Nextel, as the owner of the Sprint brand and the CDMA network, also could use the brand to sell Sprint PCS Products and Services in the Service Areas. Everyone agrees, however, that the Agreements prohibit that, subject to a few explicit exceptions not relevant here. Similarly, the evidence shows that Plaintiffs considered that prohibition essential to their business plan.

Sprint Nextel proposes to do something it contends is outside the exclusivity-based prohibition. It wishes to use the Sprint brand on iDEN products and services and to sell those products and services from stores marked with the Sprint logo. In other words, Sprint Nextel wishes to use the same brand as Plaintiffs to identify a different product than Plaintiffs and to sell those different products from a store that looks just like Plaintiffs' stores in Plaintiffs' Service Areas. In the Court's opinion, allowing Sprint Nextel to do so would deny Plaintiffs the benefit of their bargain.

Initially, it may be useful to focus on the relevant rights Sprint Nextel does have under the Agreements. They include the right to sell wireless products and services in the 1900 MHz spectrum outside the Affiliates' Service Areas and to sell such services in the 700-900 MHz spectrum anywhere, including in the Affiliates' Service Areas. The Agreements do not specifically mention Sprint Nextel's rights as to the 700-900 MHz spectrum and some witnesses testified that Plaintiffs did not realize Sprint retained such rights. Based on the evidence, it appears that may be true. All parties to the Agreements, however, were sophisticated business entities represented by counsel. This fact together with the language of the Management Agreement limiting the exclusivity rights acquired by Plaintiffs to the 1900 MHz spectrum makes understandable Plaintiffs' apparent concession that Sprint Nextel has the right to offer products and services in the 700-900 MHz spectrum in their Service Areas. The open issue is whether Sprint Nextel, having effectively given Plaintiffs exclusive rights to use the Sprint brand and marks for Sprint PCS Products and Services in their Service Areas, subject to a few specific exceptions, has the unfettered right to use the Sprint brand and marks on its 700-900 MHz spectrum or iDEN products and services in Plaintiffs' Service Areas. The Agreements do not address this issue. Still, the Court finds based on the language of the Agreements and other relevant evidence that had Sprint Nextel's predecessors and Plaintiffs thought to negotiate over the current scenario, they would have agreed to proscribe Sprint Nextel from taking the branding actions it now claims the right to take.

Plaintiffs reasonably could have expected when they entered into the Agreements that their contracting partner would not claim the right to act in derogation of fundamental principles of trademark law and contrary to Plaintiffs' interests under their trademark licenses. But, arguably, that is exactly what Sprint Nextel will do if it markets iDEN products and services in Plaintiffs' Service Areas using the same Sprint brand as Plaintiffs use to market CDMA products and services from stores that look the same as Plaintiffs' stores. Instead of identifying the source of only Sprint PCS Products and Services, the Sprint brand will identify the source of both Sprint PCS Products and Services and Sprint Nextel iDEN products and services. Although that may not be problematic outside Plaintiffs' Service Areas, the Agreements created a different situation within those areas by granting Plaintiffs exclusivity as to Sprint PCS Products and Services. Sprint Nextel cannot offer Sprint PCS Products and Services in its legacy Nextel stores however it brands them. Similarly, Plaintiffs have no right to offer iDEN products and services in their stores. Thus, in terms of iDEN products and services, Sprint Nextel and Plaintiffs are unrelated entities. In the Court's opinion, allowing Sprint Nextel to use the Sprint brand and new logo for iDEN products and services and on legacy Nextel stores in these circumstances will cause confusion in Plaintiffs' marketplace and may have a negative effect on Plaintiffs' business. As stated in Dunkin' Donuts, Inc. v. Northern Queens Bakery, Inc., "There is a great likelihood of confusion when the infringer uses the exact trademark as the plaintiff. In such cases, likelihood of confusion is inevitable. In fact, cases where a defendant uses an identical mark on competitive goods hardly ever find their way into the appellate reports. Such cases are open and shut."

Plaintiffs also reasonably could have expected at the time they entered into the Agreements that Sprint Nextel would not compete with them in their Service Area using the Sprint brands. Plaintiffs effectively have an exclusive right to use the Sprint brands in their Service Areas to offer Sprint PCS Products and Services. When the parties entered into the Agreements, Sprint only offered wireless services in the 1900 MHz frequency range; Plaintiffs thus had access to all of Sprint's spectrum and effectively were Sprint in their Service Areas. Moreover, Defendants' witnesses testified that, when Sprint entered into the Agreements, it did not anticipate competing with Plaintiffs in their Service Areas less than ten years later. Sprint also "had no expectation or intention" to use the Sprint brands to compete with Plaintiffs in their Service Areas. Sprint representatives confirmed those expectations in presentations to investors about the Affiliates. For example, Sprint told investors in 1999 that the Affiliates would benefit from their "[e]xclusive representation of the Sprint PCS brand in the local market" and "that Sprint PCS is restricted from competing with the Affiliate[s]." Finally, Rekers testified credibly that Bright could not have "raise[d] a single dime" if its investors had known that Sprint believed it had the right to compete with Bright.

Defendants cite a number of franchisor-franchisee cases for the proposition that a franchisor does not violate the implied duty of good faith and fair dealing when it allows other franchisees to open locations near the plaintiff-franchisee when the plaintiff had no exclusive territory. Defendants argue that the same principle applies here. They contend that, "[p]laintiffs obtained no contractual rights to the exclusive use of the Brands under the Trademark Agreements, and Sprint assumed no corresponding duty to refrain from using the Brands in Plaintiffs' Service Areas in connection with non-Sprint PCS Products and Services." Defendants may correctly summarize franchisor-franchisee law, but their application of its principles to this case is inapposite. First, unlike the situation here, the competing franchisees use the same brand as the plaintiff-franchisee to offer identical products. In addition, Plaintiffs' exclusive rights to market Sprint PCS Products and Services in their Service Areas requires a more nuanced evaluation of Sprint Nextel's right to use the Sprint brand and marks on competing products in the same area.

In Burger King, for example, the franchises the plaintiff complained of used the Burger King brand and marks to sell Burger King burgers and French fries. In contrast, Sprint Nextel, to continue the burger analogy, wishes to use the Burger King brand and marks (the Sprint brand and marks) to sell McDonald's burgers and French fries (iDEN products and services) from stores branded Burger King (the legacy Nextel stores). Such a scenario would strip the Burger King trademark of a fundamental purpose of identifying a source for a standardized product. Similarly, Sprint Nextel's use of the Sprint brand and marks to offer iDEN products and services in Plaintiffs' Service Areas would undermine the link between the Sprint brand and marks and the Sprint PCS Products and Services offered by Plaintiffs as contemplated by the parties when they entered into the Agreements. Even more pernicious in this situation, and further distinguishing it from the franchisor-franchisee cases, is that upon seeing a store with the new Sprint logo, the customer would have no way of knowing whether it had any connection to Plaintiffs or what type of products and services it offered, CDMA or iDEN.

Plaintiffs became Affiliates in part to take advantage of the Sprint brand and marks. Stripping that brand and those marks of their fundamental purpose thus would deny Plaintiffs the benefit of the bargain they struck with Sprint. The prejudice is compounded here by the fact that Sprint Nextel can and does offer both CDMA and iDEN products under the new Sprint logo outside Plaintiffs' Service Areas. Indeed, Sprint Nextel touts that capability in its national advertising. Consequently, some customers may be disappointed when only one product line is available in stores in Plaintiffs' Service Area, notwithstanding appropriate disclaimers in the advertising. The inability to tell from a store's exterior which line that will be likely will exacerbate the consumer's frustration, to the detriment of Plaintiffs' goodwill.

The Court thus concludes that had the parties thought to negotiate concerning Sprint Nextel's right to offer iDEN products and services using the Sprint brand from stores that look identical to Plaintiffs' Sprint stores in Plaintiffs' Service Areas, they would have agreed that Sprint Nextel cannot do so. Moreover, the Court finds that the particular facts of this case present an issue of compelling fairness because Sprint Nextel's proposed use of the new Sprint brand and marks contravenes the fundamental purpose of the trademark rights Plaintiffs bargained for and there is no evidence that anyone involved in the negotiation of the Agreements anticipated such a fundamental change in the parties' relationship. The timing of the threatened change and the large up-front investments required by Plaintiffs increases the likely unfairness. Thus, the Court concludes that Sprint Nextel will violate the implied duty of good faith and fair dealing if it offers iDEN products and services using the same or a confusingly similar brand and marks as Plaintiffs or re-brands the legacy Nextel stores with such a brand and mark in Plaintiffs' Service Areas.

Sprint Nextel may re-brand its stores to reflect the fact that Sprint and Nextel are one company. Further, Sprint Nextel conceivably could create an acceptable alternative product brand and mark(s) incorporating the Sprint and Nextel names, but it may not use the same brand and marks as Plaintiffs. Thus, Sprint Nextel conceivably could, for example, offer iDEN products and services or re-brand the legacy Nextel stores in Plaintiffs' Service Areas with a logo that emphasizes the Nextel name and includes "Together with Sprint" in some form of text. Ultimately, although Sprint Nextel may use the Sprint brand in Plaintiffs' Services Areas, as the Agreements allow, it must do so in a way that does not create a likelihood of confusion in the minds of consumers as to the source or nature of iDEN products and services versus the source or nature of Sprint PCS Products and Services. Similarly, Sprint Nextel may re-brand the legacy Nextel stores in Plaintiffs' Service Areas, but it must do so in a way that does not create a likelihood of confusion in the minds of consumers as to the sponsor of the store or which products and services are available in it.

C. Sprint Nextel's Conduct that Allegedly Favors the Legacy Nextel Business

Plaintiffs contend that six specific actions of Sprint Nextel favor the legacy Nextel business and thus violate the implied duty of good faith and fair dealing because they reasonably expected that Sprint would not favor a competitor's business over their own. Sprint Nextel has committed in open court not to engage in four of the six specific acts for the duration of the Management Agreement. Relying on those commitments, the Court concludes that the disputes with respect to those actions are not ripe for adjudication. The remaining two actions — Sprint Nextel's failure to promote Ready Link and the sale of iDEN products and services at Radio Shack — do not violate the implied duty of good faith and fair dealing but require further discussion.

1. There is no present case or controversy concerning four of the six challenged actions allegedly favoring the legacy Nextel business

Counsel for Defendants committed in open court that any dual-mode phone offered by Sprint Nextel would direct voice and data traffic to the CDMA network and not the iDEN network, Sprint Nextel would not waive early termination fees for customers switching from Plaintiffs to Sprint Nextel iDEN service, Sprint Nextel's national business account representatives would offer either CDMA or iDEN products and services, not both, in Plaintiffs' Service Areas and the representatives would not share customer information with each other and, finally, Sprint Nextel will not use bill inserts to entice Plaintiffs' customers to become Sprint Nextel iDEN customers. Counsel committed not to engage in the last three actions for the duration of the Management Agreement. Nevertheless, Plaintiffs argue that these issues remain ripe for judicial determination because Sprint Nextel asserted a right to engage in these actions at one time or actually did engage in some of these actions on one occasion.

"The ripeness of a dispute is a matter entrusted to the discretion of the trial court." The Court must engage in "a practical evaluation of the legitimate interest of the plaintiff in a prompt resolution of the question presented and the hardship that future delay may threaten." When "future events may obviate the need for declaratory relief, the dispute is not ripe, and declaratory relief should not be granted."

Based on Sprint Nextel's representations in open court, the Court concludes that future events almost certainly will eliminate the need for declaratory relief on the four actions they addressed. Plaintiffs have little need for prompt judicial resolution of the questions presented because they should not, for the duration of the Management Agreement, face the possibility of Sprint Nextel engaging in the complained of actions. Plaintiffs also have not identified any particular hardship that would inure to them if the Court declines to address these issues.

As this Court said in UbiquiTel II,

[t]here may be some uncertainty here, but maybe not. Regardless, this Court does not have the time, the resources or the inclination to attempt to resolve all uncertainties that might exist with respect to contractual rights and obligations, especially where, as here, both sides are capable of evaluating the comparative risks of each position and acting accordingly. If the parties to a contract are able to evaluate their rights and obligations under the contract and manifest an understanding of them, then there is much less uncertainty with respect to rights and obligations and this Court has little need to confirm or explain them. In fact, doing so might amount to the granting of an advisory opinion.

As such, the Court dismisses Plaintiffs' claims with respect to dual-mode phones, termination fees, national account representatives and bill inserts as unripe for adjudication.

2. Sprint Nextel's failure to promote Ready Link does not violate the implied duty of good faith and fair dealing

Before the merger of Sprint and Nextel, Sprint offered "Ready Link," a push-to-talk or "walkie-talkie" type product on the CDMA network, while Nextel offered "Direct Connect," a push-to-talk product on the iDEN network. After the merger, Sprint Nextel decided to "push," from a marketing standpoint, Direct Connect over Ready Link, likely because Ready Link is inferior to Direct Connect. Nevertheless, the Affiliates still must offer, promote and support Ready Link.

Plaintiffs argue that Sprint Nextel's failure to promote Ready Link has "remove[d] an arrow from their competitive quiver" and therefore violated the implied duty of good faith and fair dealing. Because Sprint Nextel continues to offer Ready Link, however, Plaintiffs "quiver" still has the Ready Link arrow in it. Although less clear from their briefs, Plaintiffs also appear to complain that Sprint Nextel is not meeting its obligation to provide national advertising for Sprint PCS Products and Services, such as Ready Link, while Plaintiffs must advertise them in their Service Areas. According to Plaintiffs, by requiring them to spend their advertising dollars on a product Sprint Nextel does not support, Sprint Nextel has acted contrary to their reasonable expectations of nationwide advertising support for all Sprint PCS Products and Services.

Plaintiffs' argument fails because the implied duty of good faith and fair dealing "does not increase, amend or otherwise modify the express terms [or] obligations of a contract." Section 6.2 of the Management Agreement provides that Plaintiffs " must advertise and promote the Sprint PCS Products and Services in the Service Area." In contrast, section 6.1 of the Management Agreement merely provides that Sprint Nextel is responsible for "all national advertising and promotion of the Sprint PCS Products and Services." As the divergent language of these two neighboring provisions makes clear, the parties expressly agreed to different obligations on advertising. As such, the Court will not use the implied duty of good faith to alter or circumvent the parties' bargain.

3. The sale of iDEN products at Radio Shack does not violate the implied duty of good faith and fair dealing

Under the terms of the Sprint-Radio Shack agreement, Radio Shack could offer only one other company's wireless products and services. After the merger, Sprint Nextel and Radio Shack amended their contract to provide for the sale of iDEN products and services at Radio Shack. Although Sprint Nextel still competes with just one other wireless carrier's products and services at Radio Shack, Plaintiffs' Sprint PCS Products and Services now compete not only with those products and services, but also with Sprint Nextel's iDEN products and services at Radio Shack stores in their Service Areas.

Plaintiffs argue that Sprint Nextel's addition of iDEN products and services at Radio Shack "will reduce Plaintiffs' share of sales at Radio Shack" and thus violates the implied duty of good faith and fair dealing. Plaintiffs have not, however, identified any reasonable expectation arising out of the Agreements that Sprint Nextel's behavior has contradicted. The Management Agreement requires Plaintiffs to participate in the Sprint PCS National or Regional Distribution Program regardless of the form any such program takes. Just because Plaintiffs historically have had only one competitor at Radio Shack does not mean that they have a right to limit the number of competitors at Radio Shack to one. The one competitor restriction is in Sprint Nextel's contract with Radio Shack, not the Agreements between Sprint Nextel and Plaintiffs. Further, Plaintiffs have not shown they are third party beneficiaries of Sprint Nextel's contracts with Radio Shack; thus, Sprint Nextel is free to alter those contracts as it sees fit.

This Court cannot use the implied duty of good faith and fair dealing to create a free-floating duty unattached to the Agreements. The Management Agreement provides Plaintiffs no rights, and imposes on Sprint Nextel no duties to Plaintiffs, with respect to Sprint Nextel's contract with Radio Shack. Rather, the Management Agreement imposes a duty on Plaintiffs to participate. Therefore, the Court will not imply a contract term in the Agreements in Plaintiffs' favor restricting Sprint Nextel's contract with Radio Shack.

D. Confidentiality Provisions

Plaintiffs argue that section 12.2 of the Management Agreement imposes three obligations on Sprint Nextel. To wit, Sprint Nextel must 1) keep all Confidential Information confidential, 2) not disclose it to others and 3) use it only for the purposes authorized in the Management Agreement. According to Plaintiffs, Sprint Nextel may not disclose their Confidential Information to anyone employed by Nextel Communications because that entity is an "other," as that term is used in section 12.2 of the Management Agreement. Plaintiffs further argue that section 12.2 bars Sprint Nextel from disclosing their Confidential Information to anyone outside of the Affiliate Group, as that term is defined in the Forebearance Agreement, and from disclosing even aggregated information to Sprint Nextel employees with any responsibility for the iDEN network. Finally, Plaintiffs request an injunction that 1) prevents Sprint Nextel from allowing anyone outside of the Affiliate Group to have access to or use their Confidential Information, 2) requires Sprint Nextel "to provide periodic reports describing each step taken to protect the confidentiality of, prevent the disclosure of, and limit the use of Affiliate Confidential Information" and 3) requires Sprint Nextel "to report any and all disclosures or uses of Affiliate Confidential Information to or by persons outside the dedicated Affiliate Group and measures taken to prevent consequent harm to the Affiliates."

Sprint Nextel responds that Plaintiffs' arguments on the confidentiality provisions are not ripe for judicial determination because it has promised to abide by those provisions and Plaintiffs have failed to show that it breached them. Alternatively, Sprint Nextel argues that section 3.1 of the Trademark Agreements controls the disclosure and use of Confidential Information. Under that provision, Sprint Nextel argues, it may share Confidential Information with Controlled Related Parties like Nextel Communications. Finally, Sprint Nextel argues that disclosure of aggregated information does not breach either section 12.2 of the Management Agreement or section 3.1 of the Trademark Agreements because "the act of combining the Affiliates' Confidential Information into a new mass of information changes that information so that it is no longer proprietary to the individual affiliates."

1. Ripeness

Damages would not adequately compensate Plaintiffs for a breach of the confidentiality provisions because the purpose of such provisions is to prevent harm and misuse before it occurs. And, Sprint Nextel has claimed and insisted upon an interpretation of the confidentiality provisions diametrically opposed to Plaintiffs' interpretation. As such, certain aspects of this dispute are ripe for judicial determination.

Other aspects of the confidentiality claims are not ripe, however, for the same reasons that precluded Plaintiffs' complaint concerning certain actions that allegedly favor the legacy Nextel business. At trial and in its post-trial brief, Sprint Nextel committed to do the following for so long as the Management Agreement is in effect: 1) keep Plaintiffs' information regarding network expansion, handset logistics and related forecasts, business forecasts and business accounts within the Affiliate Group; 2) keep Plaintiffs' marketing and advertising campaign materials within the Affiliate Group or limit access to personnel with responsibilities only for the Affiliates; 3) protect Plaintiffs' billing information; 4) restrict access to Plaintiffs' network performance data; and 5) prevent iDEN customer care representatives from having access to information about Plaintiffs' customers. The Court accepts Sprint Nextel's unqualified representations as binding on them for as long as the Management Agreement remains in effect. Therefore, to the extent Plaintiffs request relief commensurate with those undertakings, the Court finds their request not ripe for judicial determination. There is no disagreement among the parties on these issues sufficient to create a legitimate interest of Plaintiffs in a prompt resolution or in avoiding any likely future hardship.

2. Section 3.1 of the Trademark Agreements does not govern Confidential Information disclosed pursuant to the Management Agreement

Section 17.22 of the Management Agreement provides that the provisions of the Trademark Agreements govern over those of the Management Agreement if the provisions conflict. Nevertheless, section 3.1 of the Trademark Agreements does not govern Confidential Information disclosed pursuant to the Management Agreement because section 12.2 of the Management Agreement and section 3.1 of the Trademark Agreements do not necessarily conflict. Both sections 12.2 and 3.1 of the respective agreements expressly govern Confidential Information disclosed pursuant to "this agreement." That is, section 12.2 governs Confidential Information disclosed pursuant to the Management Agreement, while section 3.1 governs Confidential Information disclosed pursuant to the Trademark Agreements. Thus, even though the provisions are substantively different — section 3.1 of the Trademark Agreements provides for disclosure to Controlled Related Parties and Agents while section 12.2 of the Management Agreement does not — they do not conflict when information is disclosed pursuant to one agreement, but not the other. Consequently, the Court concludes that section 12.2 of the Management Agreement governs Confidential Information disclosed solely pursuant to the Management Agreement.

3. Plaintiffs' request that all of their information remain within the Affiliate Group

Section 12.2 of the Management Agreement prohibits the "parties" from disclosing Confidential Information to "others." It is undisputed that Sprint Nextel, like Sprint before it, is not a party to the Management Agreement. It is equally undisputed that the parties to the Management Agreement on the Sprint Nextel side have no employees and exist solely for purposes of holding the spectrum licenses and being contractual parties. Thus, a strict, formalistic interpretation of the Management Agreement leads to the conclusion that Sprint Nextel is not a party for purposes of section 12.2, and thus an "other," and therefore cannot receive Plaintiffs' Confidential Information. This interpretation of section 12.2, however, makes performance impossible and produces an absurd result. This Court, like the Kansas courts, strives to avoid such interpretations.

The parties to the Management Agreement, of course, did not render section 12.2 meaningless by construing it literally. Rather, from the agreement's inception, Plaintiffs disclosed their Confidential Information to Sprint. Where, as here, the parties to a contract, "subsequent to its execution, have shown by their conduct that they have placed a common interpretation on the contract, this interpretation will be given great weight in determining the meaning to be attributed to the provisions in question." After the merger, Sprint Nextel occupied the position of Sprint in terms of the Management Agreement. For these reasons and because of its desire to avoid an absurd result, the Court concludes that section 12.2 permits disclosure of Affiliates' Confidential Information to at least Sprint Nextel.

The Court's conclusion that Sprint Nextel employees, and not just those in the Affiliate Group, may have access to Affiliate Confidential Information — Plaintiffs' forceful protestations notwithstanding — stems from its reading of section 12.2 and the Management Agreement as a whole. In addition to its requirements that authorized recipients keep confidential and not disclose Confidential Information to others, section 12.2 limits use of such information to "purposes authorized" in the Management Agreement. Affiliates' Confidential Information may be disclosed to Sprint Nextel personnel, but they may not use it to compete with Plaintiffs because competition is not authorized by the Management Agreement. Therefore, Plaintiffs' request for a declaration and injunction requiring Sprint Nextel to maintain all of their Confidential Information in the Affiliate Group is denied, subject to the contractual restriction on use of that information and the specific restrictions Sprint Nextel has committed to in these proceedings for the duration of the Management Agreements.

4. Aggregated Information

Sprint Nextel argues that "the act of combining the Affiliates' Confidential Information into a new mass of information changes that information so that it is no longer proprietary to the individual affiliates." This may be an overstatement. It is reasonable to infer that aggregated information is less sensitive, but it may be unreasonable to assume the information "is no longer proprietary" and no longer requires treatment as confidential. Rather, Sprint Nextel should continue to disclose such information only to those who need to see it in order to do their jobs. In light of the Management Agreement's prohibition on misuse of Confidential Information, it might be prudent for Sprint Nextel to avoid to the extent reasonably practicable providing such aggregated information to employees whose responsibility pertains solely to the iDEN business. These employees are less likely to have a legitimate need for the type of information disclosed pursuant to the Management Agreement.

III. PLAINTIFFS' ENTITLEMENT TO PERMANENT INJUNCTIVE RELIEF

Plaintiffs contend that the Agreements stipulate that breach of their provisions will result in irreparable harm to the non-breaching party and specifically provide for injunctive relief to prevent breach. As such, Plaintiffs ask this Court to permanently enjoin Sprint Nextel from violating their rights with respect to the Sprint brand and marks. Alternatively, Plaintiffs argue they have proven their right to permanent injunctive relief under Delaware law. Defendants respond that the sections of the Agreements stipulating to irreparable harm and injunctive relief are inapplicable to Plaintiffs' claims under the implied duty of good faith and fair dealing and that Plaintiffs failed to prove irreparable harm or a balance of the equities in their favor.

A. The Legal Standard

As the parties moving for permanent injunctive relief, Plaintiffs must prove 1) actual success on the merits, 2) that they will suffer irreparable harm if the Court declines to grant injunctive relief and 3) that "the harm that would result if an injunction does not issue outweighs the harm that would befall the opposing party if the injunction is issued." The power to grant or refuse a request for an injunction normally "rests solely in the sound discretion of the Court of Chancery." When the moving parties have succeeded on the merits and proven that they will suffer irreparable harm, however, this Court's "discretion to decline to award an injunction based on a balancing of the equities in favor of the defendants is substantially circumscribed." Thus, the Court must assess whether Plaintiffs have proven that they will suffer irreparable harm if Sprint Nextel uses the Sprint brand to offer iDEN products and services or re-brands legacy Nextel stores with the new Sprint logo in their Service Areas.

B. Section 17.6 of the Management Agreement

Section 17.6 of the Management Agreement provides:

Each party agrees with the other party that the party would be irreparably damaged if any of the provisions of this agreement were not performed in accordance with their specific terms and that monetary damages alone would not provide an adequate remedy. Accordingly, in addition to any other remedy to which the non-breaching party may be entitled, at law or in equity, the non-breaching party will be entitled to injunctive relief to prevent breaches of this agreement and specifically to enforce the terms and provisions of this agreement.

Section 15.9 of the Trademark Agreements is to the same effect.

Defendants contend that these sections are inapplicable because they only apply if one or more of the Agreements' provisions "are `not performed in accordance with their specific terms.'" Where, as here, Plaintiffs ask this Court to imply terms in the Agreements, Defendants argue that they cannot possibly violate the Agreements' specific terms such that sections 17.6 of the Management Agreement and 15.9 of the Trademark Agreements apply. Defendants ignore, however, the fact that the Kansas courts have repeatedly held that terms held by a court to exist by implication in an agreement pursuant to the duty of good faith and fair dealing "are as binding as if written therein." If the Court treats the implicit prohibitions on the offering of iDEN products using the same or a confusingly similar brand and marks as Plaintiffs use and the re-branding of the legacy Nextel stores using the new Sprint logo in Plaintiffs' Service Areas as if written in the Agreements, then sections 17.6 and 15.9 apply and the Court presumes Plaintiffs would suffer irreparable injury from a violation of those prohibitions.

Defendants next argue that such provisions do not completely relieve Plaintiffs of their obligation to prove irreparable harm. Defendants gloss over the fact that in the case they cite the Chancellor ultimately concluded that a defendant may only avoid such a stipulation where "the facts plainly do not warrant a finding of irreparable harm." The Chancellor delineated this limited exception to provisions stipulating to irreparable harm because this Court lacks jurisdiction if a plaintiff has an adequate remedy at law. Thus, in the context of a stipulation of irreparable harm, "where there is no concern that the parties are attempting to improperly confer equitable jurisdiction upon this Court, a defendant cannot successfully argue that there is no irreparable harm."

The facts here do not "plainly" warrant a finding of a lack of irreparable harm. Nor does this Court have any reason to believe the parties are attempting improperly to confer jurisdiction on it. Therefore, sections 17.6 of the Management Agreement and 15.9 of the Trademark Agreements provide a sufficient basis to conclude that Plaintiffs will suffer irreparable harm if Sprint Nextel breaches their implied duties.

C. Irreparable Harm

Even if sections 17.6 and 15.9 do not apply to duties implied pursuant to the duty of good faith and fair dealing, the Court concludes that applicable legal principles mandate a finding that Plaintiffs will suffer irreparable harm if Sprint Nextel proceeds as it wishes in Plaintiffs' Service Areas. Irreparable harm "consists of harm for which there can be no adequate recompense at law," i.e., "an award of compensatory damages will not suffice." The "loss of control of reputation, loss of trade, and loss of goodwill" constitute irreparable injury. Similarly, the possibility of trademark confusion stemming from Plaintiffs and Sprint Nextel's use of the identical brand and marks in the Service Areas for different and directly competing products and services leads to the inescapable conclusion that irreparable injury will result. In fact, courts often assume irreparable harm in the trademark and unfair competition context because "it is virtually impossible to ascertain the precise economic consequences of intangible harms, such as damage to reputation and loss of goodwill, caused by such violations." These principles apply with especial force here because Sprint Nextel's planned actions contravene certain fundamental principles of trademark law and contemplate use of the Sprint brand and marks in a way likely to harm Plaintiffs' business. Therefore, the Court concludes that Plaintiffs will suffer irreparable harm if, in Plaintiffs' Service Areas, Sprint Nextel offers iDEN products and services using the same brand and marks as Plaintiffs and re-brands the legacy Nextel stores with the new Sprint logo.

D. Balance of the Equities

Where, as here, Plaintiffs have succeeded on the merits and will suffer irreparable harm absent an injunction,

the course of a Court of Equity is clear, and final injunctive relief should issue except in the rare case. In this regard, the Delaware Supreme Court has indicated that the Court of Chancery has discretion to refuse to enter final injunctive relief in such instance only if the proof establishes equities in favor of the defendant arising from the inequitable conduct of the plaintiff.

Defendants have offered no proof of equities arising in them as a result of Plaintiffs conduct. In fact, it is difficult to conceive what conduct here could give rise to such equities. Thus, an injunction will issue in conformance with the Court's conclusion that Sprint Nextel's planned use of the Sprint brand and marks and new logo in Plaintiffs' Service Areas will violate the implied duty of good faith and fair dealing.

IV. TORTIOUS INTERFERENCE AND CONSPIRACY A. Choice of Law

In UbiquiTel I, this Court concluded that Pennsylvania law applied to UbiquiTel's tortious interference and conspiracy claims. Applying the same standards, the Court now concludes that Illinois law applies to Horizon and Bright's claims.

B. Tortious Interference with Contract Claim under Illinois Law

To prevail on a claim for tortious interference with contract under Illinois law, Plaintiffs must have proved 1) the existence of a valid contract between them and Sprint, 2) Nextel was aware of the contract, 3) Nextel "intentionally and unjustifiably induced a breach of the contract," 4) Nextel's "wrongful conduct caused a subsequent breach of the contract" by Sprint and 5) Plaintiffs suffered damage as a result of the breach. Plaintiffs failed to prove at least two of the required elements.

First, Sprint Nextel has not breached the Agreements so Nextel's conduct could not have caused a breach. Assuming for the sake of argument that an anticipatory breach of the Agreements would satisfy the breach element, Plaintiffs' claim still fails because they did not prove anticipatory breach during the relevant time period. Anticipatory breach of a contract "is a manifestation by one party to a contract of an intent not to perform its contractual duty when the time comes for it to do so even if the other party has by then rendered full and complete performance." Sprint never manifested such an intent; in fact, it continued to negotiate with Plaintiffs up until the time of the merger in an attempt to reach a re-affiliation agreement. Second, Plaintiffs failed to prove they suffered damages.

For these reasons, Plaintiffs' claim for tortious interference with contract fails. Because Plaintiffs failed to prove the existence of an underlying tort, their claim for civil conspiracy also fails.

V. CONCLUSION

Plaintiffs counsel shall file promptly, on notice, an appropriate form of order embodying the Court's rulings. Each party shall bear its own costs.