Simon Marketing v. Price Waterhouse
Simon Marketing, Inc. was retained by McDonalds Corporation to assist it in developing and administering promotional games for McDonalds customers. Simons director of security Jerry Jacobson was responsible for maintaining the integrity of the promotional games and personally distributed (or seeded) the high-value game pieces to various McDonalds restaurants throughout the country. Simon engaged the accounting firm PricewaterhouseCoopers, L.L.P. (PwC) to monitor the printing of the high-value game pieces, transportation of the pieces to various packaging plants and insertion of the pieces into McDonalds packaging materials. According to Simon, these duties included supervision of Jacobsons handling of the high-value game pieces between the printing site and the designated seeding location. Nonetheless, Jacobson successfully embezzled high-value game pieces over a period of several years before he was exposed, indicted and convicted of various felonies. Simon sued PwC for breach of contract, alleging its failure to properly supervise Jacobsons work permitted the embezzlement to occur and caused Simon to lose its business relationship with McDonalds. In an earlier appeal we reversed the trial courts order sustaining PwCs demurrer to Simons third amended complaint without leave to amend. (Simon Marketing, Inc. v. Pricewaterhouse Coopers LLP (Sept. 21, 2005, B175221) [nonpub. opn.] (Simon I).) The case has now returned after the trial court granted summary judgment in favor of PwC. Court again reverse.
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