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Sodexomagic, LLC v. Drexel University

United States District Court, E.D. Pennsylvania

August 2, 2018

SODEXOMAGIC, LLC
v.
DREXEL UNIVERSITY

          MEMORANDUM RE: MOTIONS FOR SUMMARY JUDGMENT AND MOTIONS TO STRIKE

          Baylson, J.

         I. Introduction ............................................................................................................................. 4

         II. Factual Background ................................................................................................................ 5

         (A) The Parties ...................................................................................................................... 5

         (B) The Bid Process .............................................................................................................. 5

         (C) Reaching the Terms of the Management Agreement ..................................................... 8

         (D) Freshman Enrollment Declines ..................................................................................... 12

         (E) Sodexo Misses Profit Projections ................................................................................. 13

         (F) Contract Termination .................................................................................................... 14

         III. Motions to Strike ............................................................................................................... 15

         (A) Drexel's Motion to Strike ............................................................................................. 15

         (1) Legal Standard .......................................................................................................... 15

         (2) Discussion ................................................................................................................. 17

         (B) Sodexo's Motion to Strike ............................................................................................ 19

         IV. Motions for Summary Judgment ...................................................................................... 20

         (A) Legal Standard .............................................................................................................. 20

         (B) Drexel's Motion for Summary Judgment as to Sodexo Count I (Fraudulent Inducement) .............................................................................................................................. 21

         (1) The Parol Evidence Rule .......................................................................................... 22

         a) Procedural Background ............................................................................................. 22

         b) The Parties' Contentions ........................................................................................... 23

         c) Pennsylvania Caselaw ............................................................................................... 24

         d) Integration ................................................................................................................. 30

         e) Ambiguity ................................................................................................................. 34

         f) Sodexo's Submission Regarding the Parol Evidence Rule ....................................... 35

         (2) Gist of the Action Doctrine ....................................................................................... 38

         (3) Clear and Convincing Evidence of Misrepresentations or Omissions ...................... 42

         (B) Drexel's Motion for Summary Judgment as to Sodexo Count II (Breach of Contract) 43

         (1) Drexel's Motion and Reply ....................................................................................... 43

         (2) Sodexo's Response ................................................................................................... 44

         (3) Analysis ..................................................................................................................... 44

         (C) Motions for Summary Judgment as to Sodexo Count V (Breach of Contract) ............ 47

         (1) Briefing with Respect to Drexel's Motion ................................................................ 48

         a) Drexel Motion for Summary Judgment on Sodexo Count V (Breach of Contract) . 48

         b) Sodexo's Response to Drexel's Motion .................................................................... 49

         (2) Briefing With Respect to Sodexo's Motion .............................................................. 49

         a) Sodexo's Motion for Summary Judgment as to Sodexo Count V (Breach of Contract) ........................................................................................................................... 49

         b) Drexel's Response .................................................................................................... 49

         (3) Analysis of Cross-Motions for Summary Judgment as to Sodexo Count V (Breach of Contract) ............................................................................................................................... 51

         a) The Alleged 2016 Agreement ................................................................................... 51

         i. Meeting of the Minds .............................................................................................. 53

         ii. Consideration ...................................................................................................... 54

         b) Sodexo Count V Continued: Claims Based on the Management Agreement .......... 56

         (D) Drexel's Claims against Sodexo ................................................................................... 58

         (1) Fraudulent Inducement (Drexel Count I) .................................................................. 58

         a) Sodexo's Motion ....................................................................................................... 58

         b) Drexel's Response .................................................................................................... 59

         c) Analysis ..................................................................................................................... 61

         (E) Breach of Contract (Drexel Count II) ........................................................................... 62

         (1) Breach of Key Management Positions Clause .......................................................... 62

         (2) Breach of Monetary Support Provisions ................................................................... 64

         (3) Breach of Provision for Visits from “Magic” Johnson ............................................. 67

         (4) Breach for Failure to Discuss Key Performance Indicators ...................................... 68

         (F) Drexel's Motion for Summary Judgment on Sodexo Count III (Unjust Enrichment) . 70

         (1) Parties' Contentions .................................................................................................. 71

         (2) Analysis ..................................................................................................................... 71

         (G) Drexel's Motion for Summary Judgment on Sodexo Count IV (Punitive Damages) .. 75

         V. Conclusion ............................................................................................................................ 76

         I. Introduction

         At its core, this case concerns a breakdown in business relations between a large, private university and its dining services vendor, with which it had a multimillion-dollar, long-term contract.

         The case began with Plaintiff SodexoMAGIC, LLC (“Sodexo”) filing a four-count complaint alleging: (1) fraudulent inducement; (2) breach of contract; (3) unjust enrichment; and (4) punitive damages. Since then, Defendant Drexel University (“Drexel”) asserted two counterclaims against Sodexo for, (1) fraud, and (2) breach of contract, and Sodexo added one supplemental claim to its original allegations (“Count V”) for breach of contract. Accordingly, there are now five claims alleged against Drexel and two counterclaims alleged against Sodexo. The case has featured various motions to dismiss, motions to compel, attorney-client privilege disputes, and motions for sanctions-among many other motions-which have been extensively litigated and decided by this Court in prior opinions (or held in abeyance pending further developments), and will not be restated here.

         Presently before the Court are four motions:

(1) Drexel's Motion to Strike seeks to strike four declarations submitted by Sodexo in support of its Response to Drexel's Statement of Undisputed Material Facts. (ECF 208).
(2) Sodexo's Motion to Strike seeks to strike Drexel's Appendix to its Motion for Summary Judgment. (ECF 221).
(3) Sodexo's Motion for Summary Judgment seeks a ruling that, as a matter of law, dismisses Counts I and II of Drexel's Counterclaim for fraud and breach of contract, and enters judgment in favor of Sodexo as to Sodexo's Count V. (ECF 200).
(4) Drexel's Motion for Summary Judgment seeks to dismiss all five Counts brought by Sodexo. (ECF 220).

         II. Factual Background

         (A) The Parties

         Plaintiff SodexoMAGIC is a Delaware limited liability company with its principal place of business in Maryland. (ECF 211 ¶ 1). SodexoMAGIC is a joint venture between Sodexo Operations, LLC, a wholly-owned subsidiary of Sodexo, Inc., and Magic Food Provisions, LLC, a wholly-owned subsidiary of Magic Johnson Enterprises. (ECF 213, at 1 n. 1). Defendant Drexel University is a Pennsylvania non-profit institution based in Philadelphia. (ECF 211 ¶ 2). Marriott Management Services Corp., which was subsequently acquired by Sodexo Management, Inc., began providing dining services at Drexel in 1995. (ECF 11 ¶ 5; ECF 213 ¶ 18). Dining services generally consisted of managing and operating student and faculty dining halls and retail locations and catering University meetings, events, and functions. (Id. ¶ 19).

         (B) The Bid Process

         On April 18, 2014, Aramark Corp. (“Aramark”), a dining services competitor of Sodexo Management, Inc. (see ECF 211 ¶ 4), approached Drexel with an unsolicited proposal to provide dining services at Drexel. (Id. ¶ 6). The operative contract then in place between Drexel and Sodexo Management, Inc., was not due to expire until 2018. (Id. ¶ 7). Nevertheless, following Aramark's proposal, which included an offer to invest $14.5 million in Drexel's campus, Drexel terminated its contract with Sodexo Management, Inc., and began a process of putting their dining services contract out to bid in June, 2014. (Id.).

         Drexel's dining services bidding process occurred in two phases. (Id. ¶ 8). On June 9, 2014, as part of the first phase, Drexel distributed a Request for Proposal Qualification Overview (also knowledge as a Request for Information, or “RFI”) to five companies to qualify the firms with the best chance to compete for the contract. (Id. ¶ 9). The RFI sent to potential bidders asked responding firms, among other things, to “commit a minimum of $20M over the 10 year agreement with $12M paid up-front.” (Sodexo SOF, Ex. 9). The RFI estimated the contract value “to be between $275M and $300M over the term, ” but made clear “this is strictly an estimate based on past performance and is in no way to be misconstrued as a firm commitment.” (Id.).

         As part of the second phase, following a determination of which companies responded favorably to the RFI, Drexel distributed a Request for Proposal (“RFP”) on July 2, 2014 to four companies that remained in contention for the dining services contract. (Id. ¶ 9). Among the four companies remaining in contention were Aramark and SodexoMAGIC. (Drexel SOF, Ex. 3-8). The RFP stated that “The University's Strategic Plan calls for an enrollment increase from our current number of 26, 132 to 30, 470 students by 2017 and to 34, 000 students by 2021.” (Sodexo SOF, Ex. 14). The RFP continued, “[p]roposed programs, facilities and infrastructure of services should be aligned to this plan.” (Id.). The RFP made clear that “traditional meal plans (aka residential, ‘all-inclusive,' board plans, etc.) are required for residential freshmen and may be purchased on a voluntary basis by all other students and customers.” (Id.).

         In an appendix to the RFP, Drexel projected the number of dining services participants who would purchase a variety of meal plans, with projections “based on information available at time of budget submission.” (Id., Ex. 14, at App'x. II). Drexel calculated the estimated number of meal plans based on an assumption of 3, 100 students in the freshman class. (Resp. to Sodexo SOF ¶ 18; Sodexo SOF, Ex. 16 (Email from Drexel representative stating, “we gave the bidders participant numbers based on a freshman class of 3, 100 and the FY budget that was loaded by Finance is based on 2, 800.”).

         In a pre-proposal meeting Drexel held separately with Sodexo and other bidders in July, 2014, Drexel informed the prospective bidders via PowerPoint presentation that the University's “Strategic Growth Plan” was to:

[g]row enrollment commensurate with student demand and academic capacity, initially by adding graduate and transfer students, and then, after a three-year period, gradually growing subsequent undergraduate freshman classes. By 2017, Drexel will increase enrollment from our current number of 23, 500 to 30, 470 students; by 2021, Drexel will increase to 34, 000 students.

(Sodexo SOF, Ex. 11).

         The PowerPoint presented to the prospective bidders also stated that the “Strategic Growth Plan” was to:

Grow enrollment commensurate with student demand and academic capacity, initially by adding graduate and transfer students, and then, after a three-year period, gradually growing subsequent undergraduate freshman classes.

(Id.).

         Sodexo submitted its Initial Proposal for the dining services contract to Drexel on July 25, 2014. (Id., Ex. 19). Sodexo's Initial Proposal stated:

The financial terms set forth in this proposal and other obligations assumed by SodexoMAGIC herein are based on conditions in existence on the date SodexoMAGIC commences operations, including, by way of example, Client's attendance history; labor; food and supply expenses; and federal, state and local sales, use and excise taxes. In addition SodexoMAGIC has relied on representations regarding existing and future conditions made by [Drexel] in connection with the negotiation and execution of the proposal. In the event of a change in the conditions or the inaccuracy or breach of, or the failure to fulfill, any representation by [Drexel], the financial terms and other obligations assumed by SodexoMAGIC shall be renegotiated on a mutually agreeable basis to reflect such change, inaccuracy or breach.

(Id.).

         On August 6, 2014, Drexel asked Sodexo and Aramark to each submit a Best and Final Offer (“BAFO”). (Resp. to Sodexo SOF ¶ 24). On August 8, 2014, Sodexo submitted its BAFO. (Id. ¶ 25). On August 12, 2014, Drexel's Campus Dining Selection Committee unanimously selected (9-0) and recommended awarding Sodexo the campus dining contract. (Sodexo SOF Ex. 21). On August 15, 2014, Drexel sent a letter to Sodexo, which stated, among other things:

I am pleased to tell you that SodexoMAGIC has been awarded the campus dining contract. The award includes all financial components of the original SodexoMAGIC proposal submitted as well as all enhancements included in the Best and Final Offer (“The Proposal”). Beginning August 25, 2014, Drexel University proposes to reinstate the contract currently in effect and incorporate The Proposal as an amendment while a new agreement is negotiated during a period not to exceed 60 days.

(Id., Ex. 22).

         (C) Reaching the Terms of the Management Agreement

         From this stage onwards, the principal negotiators of the Management Agreement were, on behalf of Drexel, Rita LaRue, Don Liberati, Stacey Kara, Melissa Brown, and Paula King (id. ¶ 31); and on behalf of Sodexo, Nancy Arnett and Rush Sherman. (Id. ¶ 32).

         On September 12, 2014, Sodexo sent to Drexel a first proposal for the terms of the Management Agreement, and then, on September 19, 2014, Sodexo sent to Drexel a first draft of the comprehensive Management Agreement. (Resp. to Sodexo SOF ¶¶ 30, 33). On September 30, 2014, LaRue (of Drexel) wrote to Sherman (of Sodexo): “We received the draft master agreement . . . . I do have to say that there are several inconsistencies and/or omissions from the SodexoMagic proposal and best and final offer that my team is having to check, revise and add . . . .” (Sodexo SOF, Ex. 25).

         As negotiations proceeded, Arnett (of Sodexo) wrote an internal email to Sodexo listing three “potential stumbling blocks”:

1. Indemnity . . . . . .
2. Meal Plan Rates . . . . . .
3. Financial Assumptions: In the RFP and presentations, Drexel provided specific student enrollment goals and suggested that bidders should take these into consideration when preparing a financial proposal. We included these assumptions to act as a trigger for discussion and mutually agreeable modification to the contract in the financial assumptions section - however [LaRue] violently objected to any kind of mention of specific numbers. She expressed that these were goals only and were never intended to be anything that we could count on. . . . I stressed that the numbers are not included as a guarantee on Drexel's part, but rather a baseline to trigger a conversation. Went over like a lead balloon. We left it that I would ask legal to take another pass at the language and they would see, but she told me that she would not take any type of specific numbers to her leadership.
I think that finance should prepare a cast of numbers at their proposed meal and potentially lower student population rate to better judge the overall [year-over-year] impact of any reductions to Sodexo.

(Id., Ex. 27).

         Ultimately, the parties agreed to the Management Agreement, the most relevant sections of which are excerpted below:

3.1 Term and Termination.
A. The term of the Agreement is ten (10) years, ten (10) months, and five (5) days [] commencing [retrospectively] on August 25, 2014 and continuing until June 30, 2025. . . .
B. If either party breaches a material provision hereof (“Cause”), the non-breaching party shall give the other party notice of such Cause. If the Cause is remedied within ten (10) days in the case of failure to make payment when due or thirty (30) days in the case of any other Cause, the notice shall be null and void. If such Cause is not remedied within the specific period, the party giving notice shall have the right to terminate this Agreement . . . .
C. Either party may terminate this Agreement at any time upon sixty (60) days' prior written notice to the other party.
8.15 Campus Visits by Earvin “Magic” Johnson. Mr. Johnson shall appear on [Drexel's] campus (or mutually agreed upon location) as mutually agreed by the parties for up to two (2) 90-minute speaking engagements annually during the term of this Agreement provided that the appearance dates can be mutually agreed upon by the parties. At the time of the request, [Drexel] shall propose a minimum of three (3) dates for consideration and approval subject to Mr. Johnson's availability and provide a proposed agenda for Mr. Johnson's review and consideration. Any such request shall be made a minimum of twelve (12) weeks in advance. . . .
8.17 Measurable Outcomes. SodexoMAGIC shall be evaluated using mutually agreed upon Key Performance Indicators (KPIs) set forth in Exhibit J which shall be used to monitor SodexoMAGIC performance and [Drexel] patron satisfaction. The KPIs shall be reviewed annually by the parties during the Annual Business Review . . . . . . .
9.1 Changes in Policies and Practices. The financial terms set forth in this Agreement and other obligations assumed by SodexoMAGIC hereunder are based on conditions in existence on the date SodexoMAGIC commences operations, including by way of example, [Drexel's] student population; labor, food, and supply costs; and federal, state and local sales, use and excise tax. In addition, each party has relied on representations regarding existing and future conditions and projections made by the other in connection with the negotiation and execution of this Agreement. In the event of a change in the conditions or the inaccuracy or breach of, or the failure to fulfill, any such representation by a party, the financial terms and other obligations assumed by the other party shall be renegotiated on a mutually agreeable basis to reflect such change, inaccuracy or breach. SodexoMAGIC shall submit any requested changes and the cause for such changes to [Drexel], in writing, prior to any negotiations.
9.2 Financial Assumptions. In the interest of a strong and lasting partnership, [Drexel] agrees to review the following items with SodexoMAGIC at the annual meeting in July of each year and discuss any applicable revisions to the Agreement that are mutually agreeable based on any deviations, provided that the relevant data and supporting documentation is submitted to [Drexel] thirty (30) days in advance of the meeting. [Drexel] recognizes that SodexoMAGIC made certain assumptions in preparing the financial package offered in this Agreement and understands that changes to the financial assumptions below may have an adverse economic impact on SodexoMAGIC; in such cases, [Drexel] shall work with SodexoMAGIC in good faith to mutually agree upon solutions in an effort to counter such impact. SodexoMAGIC acknowledges its responsibility to respond quickly and expertly to factors under their control that may affect these outcomes.
• . . .
• Parties agree that the University's growth is a critical factor in calculating the Investments afforded under this Agreement and it has been projected by SodexoMAGIC that this growth will realize an increase of 2% per year in the freshman class year over year. . . .
• . . .
• Minimum Catering Net Sales of Three Million Four Hundred Thousand Dollars ($3, 400, 000) in full Contract Year 1 (July 1, 2015 through June 30, 2016) with projected growth of three percent (3%) annually thereafter.
. . .
10.11 Amendments to Agreement. All provisions of this Agreement hereto shall remain in effect throughout the term thereof unless the parties agree, in a written document signed by both parties, to amend, add or delete any provision. This Agreement contains all agreements of the parties with respect to matters covered herein, superseding any prior agreements, and may not be changed other than by an agreement in writing signed by the parties hereto. This Agreement shall inure to and bind all parties, their successors and assigns.
10.12 Collection Costs and Costs to Enforce Indemnity Obligations. The parties shall pay each other the reasonable collection expenses, attorneys' fees and court costs incurred in collecting from each other any amount not paid when due, and/or in connection with the enforcement of an indemnity obligation of a party under this Agreement.

(Id., Ex. 1).

         The parties executed the Management Agreement, which is dated May 21, 2015, in late-May, 2015. (Drexel Resp. to Sodexo SOF ¶ 40).

         (D) Freshman Enrollment Declines

         Incoming freshmen for the 2015-2016 academic year had an “unofficial” deadline of May 1, 2015 for accepting offers to attend Drexel. (Id. ¶ 46). A set of “talking points” for a Drexel Board of Trustees meeting sent on May 11, 2015 stated that “[m]uch of what we expected, given changes we've made in our approach to recruiting and enrolling new students, has come to fruition, ” including “fewer applications, ” and “fewer offers of admission.” (Sodexo SOF, Ex. 34). At that point in time, Drexel had “2, 902 deposits for the freshman class, ” which, after “melt” (expected declines based on students' changes in circumstances and choice of college) would be expected to yield somewhat fewer freshman enrollees. (Id.). In fact, that email stated, “[t]he adjusted budget is predicated on a class of 2, 600, but we believe we are likely to do better than that due to lower melt.” (Id.).

         On June 8, 2015, President Fry of Drexel issued a “Dear Colleague” letter disclosing that Drexel would not enroll additional students from the waitlist and that the freshman class would be smaller than in prior years. (Sodexo SOF Ex. 33). The next day, Sodexo employee William Cunningham emailed, among others, LaRue (of Drexel), forwarding President Fry's “Dear Colleague” letter and stating, “[t]he message below looks like there will be budget tightening and less mandatory dining plan customers for next year. Have you gotten any update as to what next year's actual first year student enrollment with [sic] be?” (Id. Ex. 36). LaRue forwarded the email to Liberati (of Drexel), who responded: “I guess they were going to find out sooner or later…” (Id.). LaRue later responded to Sodexo's original email, stating, “Currently, there are 2, 918 freshmen admitted. It will be less with melt, potentially 2, 600-2, 700 but the rate of melt is challenging to predict.” (Drexel SOF Ex. 3-20). Drexel's freshman enrollment for the 2015-2016 academic year was 2, 720. (Sodexo Resp. to Drexel SOF ¶ 103).

         (E) Sodexo Misses Profit Projections

         On November 4, 2015, Sodexo's Jeff Hunt stated that the gross project margin for the Management Agreement, initially “projected at 13.9% year 1 and 9.4% year 2, ” constituted “miss[ed] profit projections, ” because “[y]ear 1 actual (FY 2015) was 3.2% and year 2 projected (FY 2016 budget) is 6.2%.” (Id., Ex. 40). Two days later, by email dated November 6, 2015, Hunt instructed Sodexo's Chris Elliott to “set a timetable for contract restructuring” because the gross profit margin that Sodexo's Drexel account was generating did not meeting projections. (Sodexo Resp. to Drexel SOF ¶ 105).

         In a meeting held on November 18, 2015, Sherman (of Sodexo) told LaRue (of Drexel) that Sodexo was experiencing a year-to-date “shortfall of $664, 436 in mandatory meal plans” against Sodexo's budget and a “FY16 shortfall, against SodexoMAGIC budget, [of] $2, 120, 523.” (Drexel SOF, Ex. 3-24).

         After several more discussions between the parties over the ensuing months (see Sodexo Resp. to Drexel SOF ¶¶ 108-112; Sodexo SOF ¶¶ 54-56), Sodexo sent Drexel a letter proposal on June 28, 2016, seeking to change the Management Agreement, which included terms increasing meal rates, hours of operation, and compensating Sodexo for “shortfalls in mandatory boarders and contractual catering.” (Drexel SOF, Ex. 3-26). By letter dated July 19, 2016, Drexel stated its willingness to accept many of the terms in Sodexo's letter, while submitting counterproposals on other terms. (Sodexo Resp. to Drexel SOF ¶ 114).

         (F) Contract Termination

         On September 19, 2016, Drexel notified Sodexo by letter that it was terminating the Management Agreement for convenience, pursuant to section 3.10(C), effective December 10, 2016. (Drexel Resp. to Sodexo SOF ¶ 67; ECF 130-1). The letter also offered to pay Sodexo a daily rate of $22.44 and accept a reduced commission of 7.75% for the fall term if Sodexo agreed to remain on campus through December 10, 2016. (Sodexo Resp. to Drexel SOF ¶ 124). Sodexo responded by letter dated September 26, 2016, stating that it was exercising its “right to terminate the Agreement for Cause effective at the end of today, ” and that it “intended to end the cure period at the close of business . . . effective at the end of today.” (ECF 130-9).[1] Sodexo also stated that it would “[agree] to remain on campus through December 10, 2016” and that it “does not leave students in mid-term.” (Id.).

         The next day, September 27, 2016, Sodexo filed the present lawsuit. (See ECF 1). Sodexo provided dining services to Drexel's students through December 10, 2016. (Drexel Resp. to Sodexo SOF ¶ 90). Drexel did not pay an increased daily rate or charge Sodexo a reduced commission for Sodexo's dining services rendered through December 10, 2016. (Id.).

         III. Motions to Strike

         (A) Drexel's Motion to Strike

         Drexel seeks to strike three declarations submitted by Sodexo in support of its response to Drexel's statement of undisputed facts. Drexel bases its motion on the “sham affidavit” doctrine, asserting that portions of the declarations directly contradict prior deposition testimony which was explicitly adopted as Sodexo's corporate representations. In response, Sodexo contends that the declarations elucidate, rather than contradict, prior testimony: Whereas prior testimony pertained to statements about Drexel being unable to predict future student enrollment, the declarations in question explain that Drexel did not make any statement that it knew enrollment would decline. In its reply, Drexel contends that it had no duty to disclose its knowledge of future enrollment figures, and therefore, because the declarations largely pertain to the extent of Drexel's forthrightness regarding future student enrollment, the entirety of the declarations- rather than any portions thereof-should be stricken.

         (1) Legal Standard

         In the Third Circuit, it is well-settled that “a party may not create a material issue of fact to defeat summary judgment by filing an affidavit disputing his or her own sworn testimony without demonstrating a plausible explanation for the conflict.” Baer v. Chase, 392 F.3d 609, 624 (3d Cir. 2004). When a party does not explain the contradiction between the subsequent affidavit and the prior deposition, the alleged factual issue in dispute can be perceived as a “sham, ” thereby not creating an impediment to a grant of summary judgment based on the deposition. Id. “The court may . . . disregard an affidavit when the ‘affiant was carefully questioned on the issue, had access to the relevant information at that time, and provided no satisfactory explanation for the later contradiction.'” Daubert v. NRA Grp., LLC, 861 F.3d 382, 392 (3d Cir. 2017) (quoting Martin v. Merrell Dow Pharm., Inc., 851 F.2d 703, 706 (3d Cir. 1988)).

         The Court “may similarly disregard an affidavit ‘entirely unsupported by the record and directly contrary to [other relevant] testimony,' or if it's ‘clear' the affidavit was offered ‘solely' to defeat summary judgment[.]” Daubert, 861 F.3d at 392 (quoting Jiminez, 503 F.3d at 254, 253); cf. In re Avandia Mktg., Sales Practices & Prods. Liab. Litig., 639 Fed.Appx. 874, 877-78 (3d Cir. 2016) (“The timing of the testimony recanting the prior sworn testimony clearly increased the likelihood that it was intended solely to defeat the motion for summary judgment.”) (quoting In re Fosamax Prods. Liab. Litig., 707 F.3d 189, 195 (2d Cir. 2013)).

         However, the inverse is also true. The Third Circuit has underscored that even when “there is a discrepancy between deposition testimony and the deponent's later affidavit, a district court is not required in all cases to disregard the affidavit.” Baer v. Chase, 392 F.3d 609, 624 (3d Cir. 2004); Armstrong v. Wes Health Sys., 188 F.Supp.3d 478, 482 (E.D. Pa. 2016). A court may disregard any alleged inconsistency if the affiant offers a “satisfactory explanation” for the conflict between the affidavit and deposition testimony, such as that the subsequent affidavit explains or clarifies a witness's deposition testimony. Jiminez, 503 F.3d at 254; see, e.g., Videon Chevrolet, Inc. v. Gen. Motors Corp., 992 F.2d 482, 487-88 n. 16 (1993) (holding that a party's admission in his deposition which conflicted with an expert's affidavit did not amount to such “clear and extreme facts” necessary to warrant ignoring the later affidavit and concluding that the witness conceded a material issue in the case); Davis v. Mothers Work, Inc., 04-cv-3943, 2005 WL 1863211, at *7 (E.D. Pa. Aug. 4, 2005) (holding that, despite an inconsistency in the declaration and the deposition testimony, a subsequently filed declaration should be considered because it clarified the witness's earlier deposition testimony). A court may also disregard inconsistencies where there is independent evidence in the record to bolster an otherwise questionable affidavit. Armstrong, 188 F.Supp. at 482.

         (2) Discussion

         The Court begins its analysis with two of the declarations, which are quoted by Drexel in its motion. In the declarations, Sodexo employees state that “Drexel employees or representatives never told me or, to my knowledge, anyone at Sodexo or SodexoMAGIC that there was a risk of enrollment decline.” (ECF 208-1, at 5). Drexel claims that this statement is incompatible with deposition testimony-later adopted by Sodexo's corporate representative-in which a Sodexo employee recalled a Drexel employee saying, in sum and substance, “nobody could predict what the freshman enrollment would be going forward, ” and “they didn't know exactly where it [freshman class enrollment] would be.” (Id. at 4).

         The Court finds that, in this instance, the deposition testimony and the declaration are compatible. While the deposition testimony stands for the proposition that Drexel made statements that it could not predict freshman enrollment, the declarations assert that Drexel never said there was a risk that freshman enrollment would decline. One can imagine two statements, in which the first occurred and the second did not: (1) “Drexel cannot predict what student enrollment will be next year, ” and (2) “There is a risk that freshman student enrollment at Drexel will go down next year.” The first statement speaks to the predictability of freshman enrollment numbers. The second statement speaks to the risk of enrollment decline. It is entirely possible for Drexel to discuss ...


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