United States District Court, D. Kansas
ACCOUNTABLE HEALTH SOLUTIONS, LLC and HOOPER HOLMES, INC., Plaintiffs/Counterclaim Defendants,
WELLNESS CORPORATE SOLUTIONS, LLC, Defendant/Counterclaim Plaintiff. Invoice Number Invoice Date Due Date Days Overdue Amount Owed Interest Accrued Total
MEMORANDUM OF DECISION
D. Crabtree United States District Judge
recent years, a variety of factors have generated a new
market for something called wellness services. In simple
form, the market theorized that a healthier workforce would
produce lower health insurance costs for business owners and
operators. And employees would benefit, in turn, because
their share of health insurance costs would reduce.
form of a typical wellness program, the employer selects a
wellness provider. This provider offers employees the chance
to participate in on-site biometric screenings. These
screenings provide each participating employee with
individualized data about that employee's current health
profile. The wellness provider also supplies participating
employees with information and programs designed to
improve-or, at least, maintain-their health.
case currently before the court, two wellness companies
contracted so that one of them-defendant Wellness Corporate
Solutions, LLC-would perform on-site biometric screenings for
plaintiff Accountable Health Solutions, LLC. Accountable
Health then would coordinate and operate wellness plans with
employers and the employees.
got more complicated in 2015. Plaintiff Hooper Holmes, Inc.
bought Accountable Health and the relationship with Wellness
soured. A few months after Hooper Holmes acquired Accountable
Health, they fell behind on the payments owed to Wellness for
services it had rendered. Payment against the outstanding
invoices continued to linger into 2016. And in May 2016,
Wellness contracted to provide wellness services directly to
one of plaintiffs' largest clients. When Accountable
Health and Hooper Holmes learned about this contract, they
objected to it and stopped paying down the debt they owed
Wellness. They also filed this lawsuit.
their Complaint, plaintiffs Accountable Health and Hooper
Holmes asserted claims for breach of contract, breach of the
implied covenant of fair dealing and good faith, tortious
interference with contract, and tortious interference with
prospective business expectancies or relationships.
See Doc. 1. Generally, they alleged that Wellness
was liable under those theories because it had entered into a
contract directly with plaintiffs' former client.
Accountable Health and Hooper Holmes also brought a
declaratory judgment claim. This claim asked the court to
declare that they did not have to pay the amounts they owed
to defendant Wellness on the outstanding invoices.
Id. at 10. Wellness answered and asserted a
Counterclaim, alleging that Accountable Health and Hooper
Holmes had breached the parties' contract by failing to
pay the overdue invoices. Doc. 35. On Wellness's motions
for summary judgment, the court granted summary judgment in
Wellness's favor against Accountable Health and Hooper
Holmes's claims for breach of an implied covenant,
tortious interference with contract, tortious interference
with prospective business expectancy, and the declaratory
judgment. See Doc. 140. This left, for trial, the
Complaint's breach of contract claim and the claim for
breach of contract asserted in Wellness's Counterclaim.
court conducted a bench trial in February 2018. Having
reflected on the evidence and the arguments, the court now is
ready to rule on the claims made by both parties. The court
finds for plaintiffs Accountable Health and Hooper Holmes on
their breach of contract claims and awards them $2.00 in
nominal damages. And the court finds for Wellness on its
breach of contract Counterclaim, awarding it $235, 156.58
plus $111, 069.52 in interest. The court does not award
Wellness its attorneys' fees. The court explains the
rationale for these holdings after making its findings of
an action tried on the facts without a jury . . ., the court
must find the facts specially and state its conclusions of
law separately.” Fed.R.Civ.P. 52(a). While this rule
“does not require inordinately detailed findings,
” the court must provide enough detail to
“'indicate the factual basis for the ultimate
conclusion.'” Colo. Flying Acad., Inc. v.
United States, 724 F.2d 871, 878 (10th Cir. 1984)
(quoting Kelley v. Everglades Drainage Dist., 319
U.S. 415, 422 (1943)); see also OCI Wyo., L.P. v.
PacifiCorp, 479 F.3d 1199, 1204-05 (10th Cir. 2007)
(holding that a district court failed its duty under Rule
52(a) by failing to set out the facts supporting its
verdict). With this standard in mind, the court makes the
following findings of fact.
story that brings these disputes to court involves two
parallel series of events. So the court cannot present the
relevant facts in a strictly linear way. Instead, the court
first addresses who the parties are and how they came to know
one another. The court then discusses the facts attendant to
Wellness's demands for payment. And last, the court
recounts the facts that led Hooper Holmes and Accountable
Health's customer to leave them for Wellness.
parties first encountered one another in 2014 when plaintiff
Accountable Health Solutions bought a company known as
Principal Wellness. Accountable Health and Principal Wellness
both had provided wellness services to employers. For
instance, Accountable Health contracted with employers to
provide their employees with health coaching, a website
portal for employees to track their health status, and
on-site biometric screenings, among other things. The on-site
biometric screenings were performed at the employer's
office, usually during the spring and summer months. These
screenings provided employees with Lipid profiles, blood
pressure readings, and data about their height, weight,
glucose, and Body Mass. Index. Employees who could not attend
on-site screenings received a primary care physician
(“PCP”) form that their doctor could complete.
The PCP form asked the doctor for the same information
provided by on-site screeners.
Principal Wellness had performed the on-site screenings for
its clients. But when Accountable Health bought it in 2014,
Accountable Health delegated this work to defendant Wellness
Corporate Solutions under the terms of a contract known as
the Master Services Agreement (“MSA”). This MSA
took effect on February 15, 2014, and ran for a term of 36
months. See Pls.' Ex. 25 (“the MSA”)
¶ 8. Generally, the MSA required Wellness to provide
on-site screening services to Accountable Health's
clients. In return, Accountable Health promised to pay
Wellness for those services. Id. ¶¶ 1, 7.
For instance, under the MSA, Wellness charged $39.50 per
participant for each finger prick screening. Id. Ex.
B § F. For each PCP form an employee completed under the
MSA, Wellness charged $7.50. Id. And the MSA
specified that Wellness would charge $50 to process at-home
test kits and $15 if an employee ordered such a kit but never
had it processed. Id. Other services governed by the
MSA included cheek swab tests, reports about an
employee's overall health, and venipuncture tests.
Id. The MSA also contained provisions that governed
the work needed to prepare the screening sites. Id.
Wellness performed services under the MSA, it incurred the
costs attendant to the screenings and later, it billed
Accountable Health. These expenses included things like
charges for the screeners' time, purchasing supplies they
needed, and travel expenses. Once Accountable Health received
Wellness's bill, the MSA gave it 14 days to dispute the
bill and 45 days to pay it. Id. ¶ 7. If
Accountable Health failed to pay any undisputed bill within
45 days, the MSA permitted Wellness to charge interest
“on past due accounts” at a rate of 1.5% per
month. Id. The duty to pay Wellness's statements
did not depend on Accountable Health receiving payment from
its clients. Id.
other provisions of the MSA matter to this dispute.
the MSA allows a party to recover attorneys' fees in
the MSA provides:
Each Party agrees to indemnify, defend, and hold harmless the
other Party . . . from and against any and all third party
claims, demands, damages or any other financial demands
(including, without limitation, attorneys' fees and
expenses) arising from or related to the indemnifying
Party's breach of this agreement.
MSA ¶ 10. Second, the MSA provides that neither
party would be liable to the other “for loss of
profits, loss of business, or special, indirect, incidental,
exemplary, consequential, or punitive damages arising from
the performance or nonperformance of this agreement, or any
acts or omissions associated therewith.” Id.
¶ 11. Third, the MSA prohibits Wellness from
competing with Accountable Health. Specifically, it says that
Wellness cannot “encourage any [client of Accountable
Health], either directly or indirectly, to terminate its
relationship with [Accountable Health]” or
“solicit or market [Wellness's] Services [directly]
to [a client] of [Accountable Health] in any way to compete
with [Accountable Health].” Id. ¶ 23(i).
Also, the MSA provides that Wellness cannot “use any
confidential information, intellectual property, or any other
data or information provided by [Accountable Health], or
gained pursuant to [the MSA], to compete in any way with
[Accountable Health] . . . .” Id. ¶
23(ii). Fourth, the MSA incorporates by reference a
Non-Disclosure and Confidentiality Agreement
(“NDA”). Id. ¶ 4. This NDA, as
relevant here, requires both parties to “use and
disclose Confidential Information solely for the purpose of
evaluating the [business opportunity presented by the
MSA].” MSA App. B (“NDA”) ¶ 3. The NDA
also defines “Confidential Information” as:
[A]ll oral, written, electronic[, ] or documentary
information disclosed prior to or after execution of this
Agreement, either furnished or made available (a) by
[Accountable Health] or its Agents . . . to [Wellness]; or
(b) by [Wellness] or its Agents to [Accountable Health], in
connection with the [business opportunity presented by the
MSA], including, but not limited to, marketing philosophy,
techniques, and objectives; advertising and promotional copy;
competitive advantages and disadvantages; financial results;
technological developments; loan evaluation programs;
customer lists; account information, profiles, demographics
and Non-Public Personal Information . . .; credit scoring
criteria, formulas and programs; research and development
efforts; any investor, financial, commercial, technical or
scientific information . . . and any and all other business
information . . . .
Id. ¶ 2. And last, both the MSA and
NDA provide that Delaware law governs all disputes involving
these contracts. MSA ¶ 13; NSA ¶ 11.
2015, plaintiff Hooper Holmes, Inc.-a New York corporation
with its principal place of business in Kansas-bought
Accountable Health and it became a wholly owned subsidiary.
Hooper Holmes already competing in the biometric screening
business, was looking to expand into the wellness coaching
market. Even though it already was providing on-site
screenings, Hooper Holmes agreed to continue honoring the MSA
and use Wellness as an on-site screener. The MSA thus became
binding on it and Accountable Health-the plaintiffs here.
Before turning to the events that led the parties'
dispute to their current disagreements, the court pauses to
explain the naming convention used by the rest of this Order.
Parties on both sides of the caption have asserted claims
against the other, so simply calling the parties
“plaintiffs” and “defendant”
isn't always helpful. So, the court has decided to refer
to the parties by their short form names-plaintiff Hooper
Holmes, Inc. is simply “Hooper Holmes” and
defendant Wellness Corporate Solutions is simply
“Wellness.” Because Accountable Health is a
wholly owned subsidiary of Hooper Holmes, the court typically
does not distinguish between Hooper Holmes and Accountable
Health unless, in a particular context, that distinction
matters to the analysis.
2015, when Hooper Holmes bought Accountable Health,
Accountable Health had accumulated an $8, 000 debt to
Wellness. By July 2015, that debt had ballooned to more than
$600, 000-and $300, 000 of that balance was overdue by July
31, 2015. Hooper Holmes's debt increased so dramatically
in such a short period because most of the screenings
services occurred in the spring and summer months. At the
same time, Hooper Holmes was waiting for its clients to pay
it for the screenings and so, they lacked the cash to pay
Wellness as promised.
31, 2015, Wellness emailed Hooper Holmes about the debt and
Hooper Holmes offered to pay $64, 000. Wellness accepted this
partial payment but also demanded full payment of the entire
outstanding debt. Hooper Holmes acknowledged Wellness's
request and replied that its CFO was aware of the issue and
looking for solutions. In September-after hearing nothing
from Hooper Holmes since August-Wellness asked again for full
payment. Hooper Holmes repeatedly promised that full payment
would come but, when prompted by Wellness, merely offered
partial payments. In mid-October, with Hooper Holmes's
debt amounting to some $575, 000-$114, 000 of which was
overdue-Wellness's CEO Fiona Gathright personally emailed
Arielle Band about the unpaid debt. Ms. Band was one of
Hooper Holmes's Vice Presidents. Ms. Band responded that
Steven Balthazor-Hooper Holmes's new CFO-would respond
shortly to Wellness's inquiry and present a plan to pay
the outstanding debt.
after a few more weeks of silence, on October 31, 2015,
Wellness's CFO, Jeffrey Taylor, directly contacted Mr.
Balthazor about the outstanding debt. The next day, Mr.
Balthazor responded with a plan to pay down the full debt.
Mr. Balthazor offered to pay $10, 000 each week until Hooper
Holmes's cash flow had improved. Once that improvement
occurred, Hooper Holmes would increase its weekly payments to
pay the remainder of the debt as quickly as possible. Mr.
Taylor acknowledged Mr. Balthazor's proposal but he
explicitly invoked Wellness's contractual right to
recover interest on all overdue amounts. Later, Mr. Balthazor
offered to make a $50, 000 good faith payment. Hooper Holmes
never made that payment, however. On November 15, 2015,
Hooper Holmes began paying $10, 000 each week and in February
2016, Hooper Holmes increased its weekly payments to $20,
Wellness was trying to persuade Hooper Holmes to pay its
outstanding bills, it continued sending invoices to Hooper
Holmes for its services, including screenings and PCP forms.
It appears that some employees who had missed Wellness's
health screenings mistakenly sent the PCP forms to Wellness
instead of sending them to Hooper Holmes. Ms. Gathright
testified that Wellness debated whether to forward the forms
because Wellness was unsure: (1) whether the MSA was still
binding; and (2) whether the MSA-assuming it was still
binding- required Wellness to forward the PCP forms. Trial
Tr. 181:14-21. Ultimately, Wellness elected to send the forms
to Hooper Holmes and bill it $7.50 for each one-the price set
by the MSA for this service.
6, 2016, Hooper Holmes made a $20, 000 payment to Wellness.
It was Hooper Holmes's last payment. But Wellness
continued billing Hooper Holmes for PCP forms that employees
of Hooper Holmes's clients sent through September 6,
2016. Hooper Holmes's unpaid balance topped out at $235,
167.63 on September 6, 2016. At trial, Wellness produced an aging
summary of the remaining outstanding balance. Def.'s Ex.
411. The outstanding bills and the interest accrued on them
are described in detail in Appendix A.
9, 2016-three days after Hooper Holmes sent its final $20,
000 payment- Hooper Holmes informed Wellness that it would
make no more payments against its outstanding debt. It
explained that Hooper Holmes had made this decision because
it recently had learned that one of its long-time customers,
Building Materials Corporation of America, doing business as
GAF (“GAF”), had decided not to renew its
contract and, instead, begin contracting directly with
Wellness for GAF's wellness services.
one of the largest roofing material producers in the country.
It was also one of Hooper Holmes's largest clients. In
2012, GAF signed a two-year contract with Principal
Wellness-one of Hooper Holmes's predecessors-to provide
wellness services. This contract provided that it would renew
automatically each year after the initial two-year term
ended. The contract included wellness coaching, on-site
biometric screenings, and an online portal where GAF
employees could track their health status. At first,
Principal Wellness performed the screenings. After
Accountable Health bought Principal Wellness in 2014,
Wellness performed GAF's screenings under the MSA. It did
so in 2014 and 2015. To prepare for these screenings, Hooper
Holmes provided Wellness with a company overview of GAF.
See Pls.' Ex. 42. This overview included
information about GAF's business, where its offices were
located, and the date range when GAF's screenings would
take place. As the screenings approached, Wellness created a
checklist of tasks that it needed to complete to perform the
screenings. During the screenings, Wellness collected data
about where it performed GAF's screenings, how many GAF
employees had participated at each screening site, when
Wellness had performed each screening, and the number of
screeners that Wellness had dispatched to GAF's various
offices. See Pls.' Ex. 41.
February 2015, GAF hired Jeanine Love as its Senior Benefits
Manager. In that role, Ms. Love led a team of people who
managed GAF's wellness program. In summer 2015, Ms. Love
and her team started evaluating GAF's wellness program.
Specifically, they wanted to cut costs. By this time, the
original contract between Hooper Holmes and GAF already had
renewed under the automatic renewal provision, but Hooper
Holmes aspired to form a new contract with GAF before its
employees received their 2015 biometric screenings. In short,
Hooper Holmes hoped to lock GAF into a new three-year
contract that charged higher prices. GAF, on the other hand,
wanted to maintain the same prices and sign a one-year
contract. In the summer of 2015, the parties came to an
agreement whereby Hooper Holmes agreed to maintain existing
prices and GAF agreed to a two-year contract. The effective
date of the contract was retroactive to August 1, 2014. This
contract also contained a provision that automatically
extended the contract for a one-year period after the initial
term expired unless one of the parties gave 60 days'
notice that it would not renew.
the 2015 screenings were completed, GAF continued
debating-internally- whether it should retain Hooper Holmes
to administer its wellness program. By February 2016, Ms.
Love and her team had decided that GAF was not receiving good
value from Hooper Holmes's wellness program. Love Dep.
27:18-21. Ms. Love particularly disliked the online portal
because very few GAF employees used it. Id. at
13:12-20. But still, Ms. Love testified, the screenings
benefited the company. Id. at 13:4-6. So, GAF
reached out to Aon Hewitt-a wellness broker-and commanded Aon to look
for a suitable replacement provider of wellness services. Aon
first contacted a company called Catapult, but Catapult
failed to impress GAF because Catapult's screening
service provided employees, in effect, with an annual
physical. GAF believed that Catapult's model provided
more services than it desired to buy.
then turned its attention to Wellness. Ms. Love testified
that she and her team believed Wellness would fit well with
GAF's goals because Wellness already had performed
screenings for GAF and the two had developed a good working
relationship. Id. at 15:1-3. So, Ms. Love asked Aon
to reach out to Wellness. At no point during this process did
GAF consider renewing its contract with Hooper Holmes.
Id. at 19:20-20:3. While Ms. Love knew that Hooper
Holmes had returned to the screening business when it
acquired Accountable Health, she distrusted Hooper Holmes
because it was too new to the screening enterprise.
Id. at 18:1-15.
March 7, 2016, Aon contacted Wellness about GAF's
wellness work. Kelly Geppi- Wellness's sole salesperson
at the time-took charge of formulating a sales pitch to GAF
and she set up a meeting with Aon. To prepare for its sales
pitch with GAF, Ms. Geppi asked Emily
Kolakowski-Wellness's chief operations officer-what
Hooper Holmes had charged GAF for the screening services that
Wellness performed under the MSA. Pls.' Ex. 37 at 6;
Trial Tr. 428:11-21. Ms. Kolakowski replied that she believed
Hooper Holmes charged 20% more than Wellness's pricing
for the biometric screenings. Ex. 37 at 5. Ms. Geppi
testified that 20% is the standard mark-up in the wellness
industry. Trial Tr. 428:14-21.
sales meeting, Wellness presented a slide show it had
prepared for GAF. It showcased Wellness's capabilities
and included information about an online health tracking
portal licensed through a company called Cerner. Ms. Love
quickly informed Wellness that GAF was not considering online
portal services. After the meeting, Ms. Geppi used a workbook
of information that it had collected while screening GAF
employees under the MSA to advise the broker how much GAF
likely would spend on screenings. Ari Klenicki-Wellness's
Director of Screening Services-also used a workbook Wellness
had created in 2015. This workbook described GAF generally,
how many employee locations had participated in screenings,
the date ranges the screening events took place, and a
timeline when Wellness had completed the tasks necessary to
conduct the screenings. Pls.' Ex. 42.
Ms. Geppi was Wellness's only salesperson at the time,
she did not attend the April 27 sales meeting because she was
far along in her pregnancy and could not make the airplane
trip to GAF's headquarters. Wellness sent two other
employees in her place. One was Ms. Torroella and the other
was Jennifer Silverman-Wellness's Senior Program Manager.
As Senior Program Manager, Ms. Silverman worked with
Wellness's clients who used its online wellness portal.
She was not in sales. But she had become involved with
Wellness's sales pitch to GAF through a chance encounter
at a birthday party a few months earlier.
February 2016, Ms. Silverman attended a birthday party for
her sister-in-law. At that party, she struck up a
conversation with Jennifer Millstone. Ms. Millstone asked Ms.
Silverman what she did for a living and she explained that
she worked for Wellness. She also described what Wellness did
in the wellness marketplace. Ms. Millstone then informed Ms.
Silverman that her husband's company-GAF-was looking for
a new wellness provider and asked if she could connect Ms.
Silverman with someone at GAF. Before Ms. Silverman accepted
Ms. Millstone's offer, she emailed Ms. Gathright on March
3, 2016. Ms. Silverman's email asked if anything in the
MSA precluded Ms. Silverman from speaking with GAF about
Wellness's services. Ms. Gathright replied that she saw
no problem. Ms. Millstone then put Ms. Silverman in touch
with Scott Carroll-Ms. Love's boss. Mr. Carroll, in turn,
directed Ms. Silverman to Ms. Love. On March 31, 2016, Ms.
Silverman sent Ms. Love an email asking if they could discuss
a potential contract.
before March 31, 2016, Ms. Geppi discovered that Ms.
Silverman was speaking with GAF. On March 21, 2016, she
emailed Carisa Herweck-the person at Aon who was working with
GAF-to inform her about Ms. Silverman's involvement. Ms.
Geppi testified that she did so because she wanted to
maintain a strong relationship with Aon and didn't want
Aon to think that Wellness had tried to circumvent Aon. Doing
so, Ms. Geppi testified, would violate industry norms. Trial
Tr. 426:18-427:8. Even though Ms. Silverman had entered the
situation in an unusual fashion, Wellness decided to let her
continue working with GAF because Ms. Geppi was nearing her
delivery date and thus couldn't travel to the April 27
sales meeting at GAF. But despite Ms. Silverman's
personal connection to GAF and her direct contact with GAF,
Ms. Love testified that Ms. Silverman's involvement did
not affect GAF's decision to select Wellness for its new
wellness contract. Love Dep. 25:7-13.
6, 2016, GAF awarded Wellness the contract for its wellness
screening services. When Ms. Kolakowski emailed Ms. Gathright
to inform her about this selection, Ms. Gathright replied,
“[Hooper Holmes] going down.” Pls.' Ex. 20 at
afterward, Hooper Holmes learned about GAF's decision and
it tried to woo GAF back. On June 9, 2016-nine days after the
contract between GAF and Hooper Holmes required GAF to
provide notice that it did not intend to renew-GAF gave
Hooper Holmes official notice that it did not intend to renew
the contract. Hooper Holmes, as noted above, then informed
Wellness that it would not pay any more of its outstanding
balance. This lawsuit followed.
and Conclusions of Law
noted above, the parties presented breach of contract claims
at trial. The court structures its analysis of these claims
and other issues raised during the trial by, first,
discussing which state's law governs these disputes. The
court then decides whether Wellness is liable for breaching
the MSA because of its contract with GAF. Then the court
turns to the claim that Wellness materially breached the NDA.
Fourth, the court addresses Hooper Holmes's oral motion
for reconsideration. Next, the court discusses whether Hooper
Holmes is liable for breach of contract because it failed to
pay Wellness's invoices sent under the MSA. And last, the
court addresses whether Wellness is entitled to recover its
attorneys' fees. The court discusses each issue, in turn,
Delaware law governs these breach of contract
diversity jurisdiction case like this one, federal courts
apply the choice of law rules of the forum state. Klaxon
Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941).
Kansas's choice of law principles provide, “Where
the parties to a contract have entered an agreement that
incorporates a choice of law provision, Kansas courts
generally [apply] the law chosen by the parties . . .
.” Brenner v. Oppenheimer & Co. Inc., 44
P.3d 364, 375 (Kan. 2002). Here, the MSA and the NDA recite
that Delaware law governs. MSA ¶ 13; NDA ¶ 11. And
the parties agree that Delaware law applies. Doc. 120 at 2.
The court thus applies Delaware law to decide the
parties' contract claims.
Wellness breached the MSA but the court only awards Hooper
Holmes $1.00 in nominal damages.
Holmes claims that Wellness is liable for breach of contract
because it contracted with GAF-Hooper Holmes's former
client-in violation of the MSA's non-compete provisions.
Hooper Holmes claims that Wellness's breach cost it to
lose $710, 436 in profits it would have earned but for
Wellness's breach. To prove a breach of contract claim,
under Delaware law, the claiming party must show that (1) a
contract existed, (2) a party materially breached an
obligation imposed by that contract, and (3) the breach
damaged the other party. VLIW Tech., LLC v.
Hewlett-Packard Co., 840 A.2d 606, 612 (Del. 2003). The
parties agree that the MSA is a binding contract. But the
parties dispute whether Hooper Holmes has established the
last two elements.
argues that Hooper Holmes cannot prevail on this breach of
contract claim for four reasons. First, Wellness argues that
Hooper Holmes's earlier material breach discharged any
duty Wellness otherwise would have owed under the MSA.
Second, Wellness contends that it never breached the
MSA-materially or otherwise. Third, Wellness argues that
Hooper Holmes failed to prove that Wellness's breach
caused Hooper Holmes to lose any lost profits. And last, the
MSA's limitation of liability clause, Wellness argues,
bars Hooper Holmes from recovering anything. The court
discusses these arguments in the following four subsections.
Though Hooper Holmes materially breached the MSA by failing
to pay its bills on time, Wellness continued to accept the
benefits of the MSA. Wellness thus ...