Commodores Entertainment Corporation v. Thomas McClary, et al.

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 19-10791; 19-12819
Non-Argument Calendar
________________________

D.C. Docket No. 6:14-cv-01335-RBD-GJK

COMMODORES ENTERTAINMENT CORPORATION,

Plaintiff -
Counter Defendant
Third Party Defendant
Appellee,

versus

THOMAS MCCLARY,
FIFTH AVENUE ENTERTAINMENT, LLC,

Defendants -
Counter Claimants
Third Party Plaintiffs
Appellants,

DAVID FISH,
an individual, et al.,

Third Party Defendants.
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________________________

Appeals from the United States District Court
for the Middle District of Florida
________________________

(July 23, 2020)
Before ROSENBAUM, JILL PRYOR and MARCUS, Circuit Judges.

PER CURIAM:
In this common-law trademark case, Thomas McClary and his company, Fifth
Avenue Entertainment, LLC (“McClary”), appeal the district court’s summary
judgment and damages rulings in favor of Commodores Entertainment Corporation
(“CEC”), denial of his motion to modify the scope of a permanent injunction, and
denial of his motion to join an indispensable party. After careful review, we affirm.
I.
The essential facts surrounding this appeal have been laid out in McClary’s
previous appeals to this Court. See Commodores Entm’t Corp. v. McClary, 648 F.
App’x 771 (11th Cir. 2016) (per curiam) (“Commodores I”); Commodores Entm’t
Corp. v. McClary, 879 F.3d 1114 (11th Cir.), cert. denied, 139 S. Ct. 225 (2018)
(“Commodores II”). The prolonged dispute concerns the ownership of the mark
“The Commodores,” the name of a famous Grammy Award-winning rhythm and
blues, funk and soul music band. McClary was an original member of The
Commodores but left the band in 1984. He later formed a musical group that
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performed as “The 2014 Commodores” and “The Commodores featuring Thomas
McClary.” In 2014, CEC filed this lawsuit against McClary, claiming trademark
infringement, trademark dilution, passing off, false advertising, and unfair
competition. CEC also moved for a temporary restraining order or a preliminary
injunction. McClary raised several counterclaims, alleging, among other things,
intentional interference with present and prospective business relationships,
trademark infringement, misappropriation of likeness and identity, breach of duty of
loyalty and utmost good faith and breach of fiduciary duty, and defamation.
At the outset of the case, the district court granted CEC’s motion for a
preliminary injunction. After the injunction was entered, CEC learned that McClary
and his band were marketing upcoming performances in Europe. Upon CEC’s
motion for clarification, the district court held that the injunction had extraterritorial
application because use of the marks overseas would have a substantial and negative
impact on CEC, an American corporation. We affirmed the entirety of the
preliminary injunction in 2016. Commodores I, 648 F. App’x at 778.
The district court then bifurcated the trial. Phase I determined the trademark
ownership rights and Phase II resolved issues of infringement, liability and damages.
After the defense rested in Phase I, McClary’s renewed motion for judgment as a
matter of law was denied, as was his motion to dismiss the case for failure to join an
indispensable party. The district court then granted CEC’s motion for judgment as
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a matter of law, converted its preliminary injunction into a permanent one, and
entered final judgment for CEC. On appeal, we affirmed the order granting
judgment as a matter of law to CEC and held that the scope of the injunction was
not impermissibly broad, that we lacked jurisdiction to review the denial of the
motion to dismiss, and that McClary did not establish any affirmative defenses.
Commodores II, 879 F.3d at 1142.
Back in the district court for Phase II, the district court granted partial
summary judgment in favor of CEC -- on its trademark infringement claim found in
Count 1 -- and granted summary judgment on or dismissed all of McClary’s
counterclaims and third-party claims. Phase II of the trial began on January 29, 2019
and addressed: (1) damages on CEC’s trademark infringement claim; and (2) CEC’s
claim for violation of Fla. Stat. § 501.201, Florida’s Deceptive and Unfair Trade
Practices Act (“FDUTPA”). The jury found that McClary had actual notice of
CEC’s trademark registrations as of June 2009 and that CEC was entitled to damages
from McClary’s profits resulting from musical performances at: (1) West Hampton
Beach Performing Arts Center (“WHBPAC”); (2) Bury St. Edmonds, United
Kingdom; (3) Norwich, St. Andrews; (4) Basingstoke, Anvil; (4) Northampton,
Spinney; (5) Skegness, Butlins; and (6) Basel, Switzerland. The jury found that CEC
had not shown it had suffered damages under the FDUTPA.
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Thereafter, McClary moved to modify the permanent injunction, arguing that
he had acquired licenses to use the trademark “The Commodores” in Mexico, New
Zealand, and Switzerland. The district court denied the motion, finding that it was
not timely and that McClary did not show a sufficient basis for modifying the
injunction. This timely appeal follows.
II.
First, we are unpersuaded by McClary’s argument that the district court erred
by including in its grant of summary judgment on CEC’s trademark infringement
claim not only his performance at the WHBPAC, but also the European
performances, which he says were not raised in the complaint or summary judgment
motion. We review a district court’s grant of summary judgment de novo, applying
the same legal standard as the district court and construing the facts and drawing all
reasonable inferences therefrom in the light most favorable to the non-moving party.
Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1314 (11th Cir.
2011). We will affirm a grant of summary judgment if the movant has shown, based
on our review of the entire record, “that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
Trademark infringement is proscribed by 15 U.S.C. § 1114(1)(a), which
prohibits any person from using “in commerce any reproduction, counterfeit, copy,
or colorable imitation of a registered mark in connection with the sale, offering for
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sale, distribution, or advertising of any goods or services on or in connection with
which such use is likely to cause confusion, or to cause mistake, or to deceive.” A
party is entitled to damages incurred for trademark infringement, including those
that continued to accrue after its complaint was filed, if properly established during
discovery. See 15 U.S.C. § 1117(a) (plaintiff is entitled, “subject to the principles
of equity,” to recover, inter alia, “any damages sustained by the plaintiff”); see also
Wilcox v. Plummer’s Ex’rs, 29 U.S. (4 Pet.) 172, 182 (1830) (in negligence case,
noting that “it is perfectly clear that the proof of actual damage may extend to facts
that occur and grow out of the injury, even up to the day of the verdict”); Rea v. Ford
Motor Co., 560 F.2d 554, 557 (3d Cir. 1977) (“[I]n general, a court has the power to
award damages occurring up to the date of the ultimate judgment in the case.”).
The plain language of the summary judgment order did not limit CEC’s
damages to any specific performance. The order provided that CEC was entitled to
summary judgment on its trademark infringement claim under 15 U.S.C. § 1114,
because there was no genuine issue of material fact as to whether CEC’s marks were
“used in commerce by the defendant without the [plaintiff’s] consent” and “the
unauthorized use was likely to cause confusion, or to cause mistake or to deceive.”
McClary conceded at the summary judgment hearing that he had used the CEC
marks in commerce. Further, the district court ruled, and our Court affirmed that the
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use of the marks was likely to cause confusion. Commodores II, 879 F.3d at 1139.
The district court simply did not limit its holding to any particular performance.
Moreover, the record reveals that McClary has long been on notice of his
potential liability for the European performances. CEC’s August 2014 complaint
plainly sought damages for continuing infringing conduct that occurred after it filed
its complaint. It alleged that McClary was improperly marketing the band online
using CEC trademarks and using the name “The Commodores featuring Thomas
McClary” in connection with live musical performances, and specified that
McClary’s conduct “has and will continue to cause confusion to, mistake by, and
deception of customers.” Then, after the district court entered a preliminary
injunction -- enjoining McClary from “using any of the Marks at issue in a manner
other than fair use, including performing under the name ‘The Commodores
featuring Thomas McClary’ or ‘The 2014 Commodores’” -- and after McClary
nevertheless used “The Commodores featuring Thomas McClary” and “The
Commodores” to schedule performances in Europe in 2015, the district court issued
a clarification order on December 30, 2014, stating that this conduct violated its
injunction. The court added that “[b]y proceeding in such a precipitous fashion, the
Defendants [sic] conduct reflects contempt for the orders of the Court.”
And later, CEC’s motion for summary judgment argued that Phase I of the
trial determined that McClary used the CEC marks in commerce without CEC’s
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consent and that his use of the marks was likely to cause confusion and did cause
confusion. CEC noted that McClary had admitted to “improperly using the CEC
Marks on their website, Facebook and through, at a minimum, a performance” at
WHBPAC (emphasis added). Further, McClary cannot credibly argue that he had
no notice that the European performances could constitute infringement when the
extraterritorial scope of the injunction was litigated in his two prior appeals, both of
which were decided before the district court entered the summary judgment order at
issue here. Commodores I, 648 F. App’x 771; Commodores II, 879 F.3d 1114.
1

Nor, for similar reasons, did the district court err by awarding damages to
CEC based on McClary’s European performances. The first time McClary argued
that CEC could not seek damages for conduct in the EU was on December 18, 2018,
in his response to CEC’s request for a case management conference as to Phase II.
CEC countered that the issue could be tried by the parties’ express or implied consent
“as a result of such issues being directly advanced in the litigation by both parties in
multiple filings, including Defendants’ assertion of extraterritorial issues on appeal,
and that were not identified as objectionable in the first pretrial statement, Doc. 319.”

1
Thus, this case is unlike those where courts have found that a plaintiff impermissibly
asserted a new claim or added new allegations without notice. Cf. Optimum Techs., Inc. v. Henkel
Consumer Adhesives, Inc., 496 F.3d 1231, 1247 (11th Cir. 2007); Thompkins v. Lil’ Joe Records,
Inc., 476 F.3d 1294, 1310 (11th Cir. 2007); Gilmour v. Gates, McDonald & Co., 382 F.3d 1312,
1315 (11th Cir. 2004). The remaining cases McClary relies on do not support his position, are
distinguishable, and are not even binding on this Court.
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Not only was McClary’s objection delayed, but, as we’ve detailed, the
complaint adequately alleged the conduct at issue, and McClary was on notice since
December 2014 that the district court considered his scheduling of performances in
Europe using the names “The Commodores featuring Thomas McClary” and “The
Commodores” as a violation of its injunction. In addition, two of the parties’ pretrial
statements show that McClary was on notice -- in the joint pre-trial statement for
Phase II, CEC said that if it were found to be owner of the marks, it would seek relief
based on McClary’s conduct “in the U.S. and overseas,” and in its statement on
alleged damages for Phase II, CEC said that it would seek damages for the
“inappropriate use of the Commodores trademarks in booking performances in the
U.S. and Europe.” And again, in the parties’ Joint Notice Regarding Phase II Issues,
CEC restated that it was seeking to recover damages from the performances McClary
booked in the United States and Europe.
The totality of the record thus belies McClary’s argument that he was not on
notice that CEC’s claim would include damages from the U.S. and European
performances he booked. As a result, we conclude that CEC was entitled to damages
incurred for trademark infringement that continued to accrue after its complaint was
filed. See 15 U.S.C. § 1117(a). We affirm the district court’s orders granting
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summary judgment and awarding damages on CEC’s trademark infringement claim
to include McClary’s performances at the WHBPAC and in Europe.
2

III.
Next, we are unconvinced by McClary’s claim that the award of damages for
the WHBPAC concert was improper because CEC did not satisfy 15 U.S.C. § 1111,
which requires a defendant to have actual notice of trademark registration in order
to recover for profits or damages. We review de novo the sufficiency of the evidence
for a jury verdict, taking the evidence in the light most favorable to the prevailing
party and drawing all reasonable inferences and credibility choices in favor of the
jury verdict. U.S. EEOC v. St. Joseph’s Hosp., Inc., 842 F.3d 1333, 1343 (11th Cir.
2016). “Courts are not free to reweigh the evidence and set aside the jury verdict
merely because the jury could have drawn different inferences or conclusions or
because judges feel that other results are more reasonable.” Id. (quotations omitted).
Here, there was ample evidence, viewed in the light most favorable to CEC,
for the jury to decide that McClary had actual notice of CEC’s trademark registration
as of June 2009. At trial, CEC proffered a letter, dated June 8, 2009, from attorney

2
In his reply br ief, McClary adds new support for his claim that the performances in Europe
weren’t to be included -- that CEC sought to continue the Phase II trial until after the European
Intellectual Property Office issued a final decision in ongoing EU litigation regarding “The
Commodores” mark in Europe. However, this motion, which was denied, at most suggests that
CEC thought that the lack of finality in the EU litigation might hinder its efforts to recover damages
in the district court from conduct in the EU. In any event, “[a]rguments not properly presented in
a party’s initial brief or raised for the first time in the reply brief are deemed waived.” In re Egidi,
571 F.3d 1156, 1163 (11th Cir. 2009).
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Edwin Chanin to Thomas McClary with the subject line “Unauthorized
Announcement Regarding Commodores Reunion.” The letter provided that “[a]ll
intellectual property rights to use of the name Commodores and the Commodores
logo are owned by Commodore Entertainment Corp. You have no right to make any
announcement about or use the name Commodores.” The letter also said that “any
future unauthorized use of the Commodores trade name or logo will be regarded as
intentional misconduct which will not be tolerated.” McClary dismisses this as
merely a threatening letter that did not mention the trademark registrations. But the
letter clearly expressed that “[a]ll intellectual property rights” belong to CEC, and
the jury quite reasonably could have concluded that this included registered
trademarks. The statement that CEC would treat “any future unauthorized use of the
Commodores trade name or logo” as misconduct further put McClary on actual
notice of CEC’s trademark registrations. We affirm on this issue as well.
IV.
We also are unpersuaded by McClary’s challenge to the district court’s order
denying his motion under Rule 60(b)(5) and (b)(6) to modify the permanent
injunction. We review a district court’s decision under Rule 60(b) for abuse of
discretion. Am. Bankers Ins. Co. of Fla. v. Nw. Nat. Ins. Co., 198 F.3d 1332, 1338
(11th Cir. 1999). To show an abuse of discretion, McClary “must demonstrate a
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justification so compelling that the court was required to vacate its order.” Cavaliere
v. Allstate Ins. Co., 996 F.2d 1111, 1115 (11th Cir. 1993) (quotations omitted).
Rule 60(b)(5) “permits a party to obtain relief from a judgment or order if,
among other things, ‘applying [the judgment or order] prospectively is no longer
equitable.’” Horne v. Flores, 557 U.S. 433, 447 (2009). Modification is proper if
“‘ a significant change either in factual conditions or in law’ renders continued
enforcement ‘detrimental to the public interest.’” Id. (quotations omitted). “The
party seeking relief bears the burden of establishing that changed circumstances
warrant relief.” Id. Rule 60(b)(6) permits a party to obtain relief from a judgment
or order for “any other reason that justifies relief.” “Relief from ‘judgment under
Rule 60(b)(6) is an extraordinary remedy’” that requires showing “extraordinary
circumstances” to justify reopening an order. Arthur v. Thomas, 739 F.3d 611, 628
(11th Cir. 2014) (quotations omitted). Additionally, “[a] motion under Rule 60(b)
must be made within a reasonable time.” Fed. R. Civ. P. 60(c)(1). What constitutes
a reasonable time is determined by considering “whether the parties have been
prejudiced by the delay and whether a good reason has been presented for failing to
take action sooner.” BUC Int’l Corp. v. Int’l Yacht Council Ltd., 517 F.3d 1271,
1275 (11th Cir. 2008) (quotations omitted).
McClary argues that the permanent injunction should be modified to exclude
Mexico, New Zealand, and Switzerland, because these countries issued exclusive
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licenses for the mark “The Commodores” that cover live music performances.
However, we agree with the district court that McClary’s motion was not filed within
a reasonable time as Rule 60(c)(1) requires. McClary filed his motion to modify the
permanent injunction on May 20, 2019 -- more than five years after the court entered
the preliminary injunction, three years after it issued the clarification order
confirming its extraterritorial reach, two-and-a- half years after it entered the
permanent injunction, and over a year after our Court affirmed the scope of the
permanent injunction. Moreover, McClary obtained the licenses in April 2017, July
2017, June 2018, and August 2018. He did not move for two years after his first
acquisition, and about nine months after his last. The district court was well within
its discretion to find this time frame unreasonable, especially in light of the extensive
litigation over the injunction and McClary’s failure to explain the delay.
3

V.
There is likewise no merit to McClary’s claim that the district court abused its
discretion in denying his motion to join Ronald LaPread -- who McClary says was
an original member of The Commodores claiming partial ownership of the marks --
as an indispensable party. We “review a district court’s decision regarding the

3
Further, McClary has not shown that significant circumstances warrant relief under Rule
60(b)(5) or (6). As we see it, the district court did not err in finding that the substantial negative
effects on CEC in the United States from McClary’s use of the marks abroad were sufficient to
maintain the scope of the injunction. See Steele v. Bulova Watch Co., 344 U.S. 280, 288 (1952)
(“Unlawful effects in this country . . . are often decisive.”); Commodores II, 879 F.3d at 1139–40.
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joinder of indispensable parties for abuse of discretion.” Vanover v. NCO Fin.
Servs., Inc., 857 F.3d 833, 837 (11th Cir. 2017) (quotations omitted). To determine
whether a party is indispensable under Rule 19, a court first must determine whether
the party should be joined if feasible. Focus on the Family v. Pinellas Suncoast
Transit Auth., 344 F.3d 1263, 1279–80 (11th Cir. 2003). Second, if the party is
required but joinder is not feasible, “then the court must inquire whether, applying
the factors enumerated in Rule 19(b), the litigation may continue.” Id.
For starters, McClary has not addressed whether joinder of LaPread is
feasible. Rule 19(a)(1) provides that joinder is feasible if the party is “subject to
service of process” and the “joinder will not deprive the court of subject-matter
jurisdiction.” LaPread’s 2015 affidavit says that he is a New Zealand resident, and
trial witnesses confirmed this. McClary cites no authority about whether LaPread
would be amenable to service of process in New Zealand.
Moreover, LaPread is not an indispensable party in this suit. “A party is
considered ‘necessary’ to the action if the court determines either that complete relief
cannot be granted with the present parties or the absent party has an interest in the
disposition of the current proceedings.” Laker Airways, Inc. v. British Airways,
PLC, 182 F.3d 843, 847 (11th Cir. 1999) (citation omitted); see also Fed. R. Civ. P.
19(a)(1). According to McClary, LaPread is an indispensable party under Rule
19(a)(1)(B)(i), in that LaPread “claims an interest relating to the subject of the action
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and is so situated that disposing of the action in the person’s absence may . . . as a
practical matter impair or impede the person’s ability to protect the interest.”
In Commodores II, we held that the denial of McClary’s motion to dismiss for
failure to join an indispensable party was not a reviewable final order, and declined
to exercise pendant appellate over the claim since it was not inextricably intertwined
with the permanent injunction. 879 F.3d at 1127–28. Our analysis of the claim is
nevertheless relevant. We noted that “LaPread would not be precluded from suing
in the future to determine any ownership rights he may have in the marks because,
in Florida, both res judicata and collateral estoppel require an identity of the parties
and LaPread is neither a party to nor in privity with any party to this suit.” Id. at
1128 (citations omitted). We adhere to our earlier analysis. Because disposing of
this suit without LaPread does not impede his ability to later assert any claimed
interest in the marks, the court did not abuse its discretion in denying the motion.
4

VI.
Finally, we reject McClary’s argument that the district court erred in granting
CEC summary judgment on his counterclaims and third-party claims, which include
(1) his commercial misappropriation counterclaim; (2) his FDUTPA counterclaim;
(3) his defamation/business disparagement claims; (4) his interference-with-present-

4
As for any new arguments about LaPread that McClary raises in his reply brief, we again
decline to consider them. See In re Egidi, 571 F.3d at 1163. Moreover, as we’ve said, LaPread
remains free to sue to determine his rights in the marks.
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and-prospective-economic-opportunities claims; and (5) his breach-of-duty-of-
loyalty-and-utmost-good-faith and breach-of-fiduciary-duty claims.

As for McClary’s argument that the district court erred in granting summary
judgment in favor of CEC on his counterclaim for commercial misappropriation of
his likeness and identity under Fla. Stat. § 540.08 -- when, he says, it used his name
and likeness on “social media sites like Facebook” without his permission -- we
disagree. “To defeat a motion for summary judgment, the nonmoving party may not
rely on ‘mere allegations.’ It must raise ‘significant probative evidence’ that would
be sufficient for a jury to find for that party.” LaChance v. Duffy’s Draft House,
Inc., 146 F.3d 832, 835 (11th Cir. 1998) (footnotes and quotations omitted).
To support his claim, McClary offered screenshots of a Facebook page run by
“The Commodores,” which had a blue checkmark next to the name “The
Commodores,” and used his picture on the page. McClary alleged that the blue
checkmark is a “verified badge,” which means that Facebook has confirmed that the
account belongs to the group it represents. CEC, in response, introduced an unsworn
declaration from William King, current member of The Commodores and CEC’s
president, submitted pursuant to 28 U.S.C. § 1746(2), averring that CEC does not
maintain a Facebook page. The district court accepted the declaration and treated it
as an affidavit for summary judgment purposes. See United States v. Four Parcels
of Real Prop. in Greene & Tuscaloosa Ctys. in State of Ala., 941 F.2d 1428, 1444
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n.36 (11th Cir. 1991). McClary failed to present any rebuttal evidence, which could
have included authority about the blue checkmark’s meaning or how Facebook
confirms the identity of a verified account. Indeed, the district court asked
McClary’s counsel at the summary judgment hearing whether she wanted the court
to take judicial notice of the blue checkmark and what it meant. Counsel responded,
“to be honest with you, Your Honor, I didn’t know either. My daughter told me
what the blue check meant.” On this record, McClary, as the nonmovant, did not
offer sufficient evidence to defeat summary judgment.
Nor are we convinced by McClary’s challenges to the district court’s
summary judgment ruling on his FDUPTA counterclaim. A successful FDUTPA
claim requires three elements: “(1) a deceptive act or unfair practice; (2) causation;
and (3) actual damages.” Dolphin LLC v. WCI Communities, Inc., 715 F.3d 1243,
1250 (11th Cir. 2013). The district court properly held that McClary maintained no
ownership rights in the marks, so, as McClary concedes, his FDUTPA counterclaim
fails to the extent it was based on his claim of trademark infringement. On appeal,
he argues that this counterclaim was also based on the CEC’s misappropriation of
his likeness and identity, and relies on the argument we’ve just rejected. We,
therefore, affirm on this ground as well.
We also disagree with McClary that the court erred in granting summary
judgment on his counterclaim and third-party claims for defamation/ business
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disparagement. Florida law generally requires five elements to prove defamation:
(1) publication; (2) falsity; (3) the actor acted with knowledge or reckless disregard
as to the falsity on a matter concerning a public official, or at least negligently on a
matter concerning a private person; (4) actual damages; and (5) the statement is
defamatory. Jews For Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1106 (Fla. 2008).
McClary hinged this claim on allegedly false e-mail communications CEC’s
former manager David Fish made to non-parties, representing that McClary was
enjoined from any use of CEC’s marks. In the first e-mail, Fish requested contact
information for a promoter after becoming aware that a band was marketing itself as
The Commodores. The second e-mail informed John Hessenthaler, a UK promoter,
that McClary was improperly marketing and promoting appearances by The
Commodores in the UK and could not use CEC’s marks, and directed Hessenthaler
to the district court’s preliminary injunction.
5
Because the district court had already
ruled that McClary’s use of CEC’s marks, including “The Commodores featuring
Thomas McClary,” created a likelihood of confusion and actual confusion, Fish’s
statements in the emails about McClary were therefore true when McClary
continued to market himself as “The Commodores featuring Thomas McClary” in
the EU. Additionally, Fish ameliorated any ambiguity about McClary’s rights to use

5
To the extent he cites, for the first time on appeal, an e-mail from Matt Santos at Pyramid
Entertainment Group, we decline to consider it. See Taylor v. Mentor Worldwide LLC, 940 F.3d
582, 598 (11th Cir. 2019) (litigants generally waive issues raised for the first time on appeal).
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the marks by attaching the preliminary injunction to his e-mail to Hessenthaler.
Thus, the district court did not err in granting summary judgment on this claim.
Likewise, we find no merit to McClary’s argument that the district court erred
in granting summary judgment on his counterclaims and third-party claims for
present and prospective interference with economic opportunities. To establish a
claim of tortious interference with a present or prospective business relationship in
Florida, a plaintiff must show: “(1) the existence of a business relationship that
affords the plaintiff existing or prospective legal rights; (2) the defendant’s
knowledge of the business relationship; (3) the defendant’s intentional and
unjustified interference with the relationship; and (4) damage to the plaintiff.” Int’l
Sales & Servs., Inc. v. Austral Insulated Prods., Inc., 262 F.3d 1152, 1154 (11th Cir.
2001). A plaintiff cannot establish a cause of action in a tortious interference case
if the defendant merely provided truthful information to a third party. See
Worldwide Primates, Inc. v. McGreal, 26 F.3d 1089, 1092 (11th Cir. 1994).
McClary’s interference-with-present-economic-opportunities claim rested on
Fish’s alleged misrepresentations and threats of legal action to the WHBPAC, with
whom McClary had an existing performance contract. McClary also alleged that
after the preliminary injunction was entered, CEC sent “blast e-mails” threatening
promoters and agents with litigation in booking McClary under the name “The
Commodores featuring Thomas McClary.” He further claimed that CEC interfered
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with his business opportunity with The Halls performance center in the UK through
an e-mail. The interference-with-prospective-economic-opportunities claim arose
from Fish’s communications with booking agents and talent buyers, informing them
that McClary had no right to use “The Commodores” marks and threatening legal
action for booking McClary’s band. McClary argued that this interfered with
prospective economic relationships with the Tampa Bay Black Heritage Festival,
Italian promoter Luigi Sidero, U.S. promoter Carlos Keyes, and European venues.
He also included the e-mail to The Halls in his prospective interference claim.
On appeal, McClary says that CEC’s motion for summary judgment on the
present-interference claim did not address all of his claims because it focused on his
relationship with the WHBPAC and not on his relationships with European vendors.
However, as we’ve detailed, McClary mostly listed interference with European
relationships in his prospective interference claim, and CEC addressed those claims
in its summary judgment motion. It noted the allegations regarding The Halls in its
discussion of prospective inference. In its discussion of present interference, CEC
duly addressed McClary’s claims regarding the WHBPAC performance and the blast
e-mails. CEC adequately responded to his claims.
Nor are we persuaded by McClary’s other arguments that the court erred in
granting summary judgment to CEC on these claims. We already decided, in the
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context of the defamation claims, that the statements made by CEC’s agents and Fish
were truthful, and the court properly applied this finding to the interference claims.
Lastly, we conclude that the district court did not err in granting summary
judgment in favor of McClary’s third-party claims against current members of The
Commodores King and Walter Orange for breach of the duty of loyalty and utmost
good faith and their fiduciary duties by denouncing McClary’s rights as a
shareholder and failing to follow corporate formalities. Both parties acknowledge
that these claims turn on whether McClary is still a shareholder in CEC. The district
court held that there was no genuine dispute of material fact because McClary had
presented no evidence to dispute CEC’s contention that he was no longer a
shareholder. The district court relied on King’s statements acknowledging
McClary’s resignation and cancellation of his shares, as well as McClary’s cancelled
stock certificate. McClary attempts to create a dispute of fact about his status as a
shareholder by citing his declaration, which stated that he “never sold, traded,
surrendered or otherwise disposed of [his] shares” in CEC and that he had never seen
the stock certificate.
6

6
For the first time on appeal, McClary says that the stock certificate was not authenticated
under Federal Rule of Evidence 901(a). Accordingly, this argument is waived. See Taylor, 940
F.3d at 598. Regardless, King authenticated the stock certificate in his declaration. See Fed. R.
Evid. 901(b)(1) (testimony of a witness with knowledge satisfies the authentication requirement).
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Notably, however, McClary did not present any evidence rebutting King’s
declaration that McClary never participated as a shareholder after he stopped
performing with The Commodores in 1984. Indeed, as we previously held, “[n]o
reasonable juror could have found that McClary remained with the group in the
position he had previously held.” Commodores II, 879 F.3d at 1132. Similarly, no
reasonable juror could have found that McClary retained his status as a shareholder.
In short, we affirm the district court’s summary judgment rulings in favor of
CEC, its judgment granting damages to CEC, its denial of the motion to modify the
scope of the permanent injunction, and its denial of the motion to join an
indispensable party.
AFFIRMED.

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