ADDITIONAL CASESGaiam Americas Inc., Fit For Life, LLC, and FFL.Com LLC., Third-Party Plaintiff v. PFSweb, Inc., Third-Party DefendantOPINION & ORDER This decision resolves a motion to dismiss amended counterclaims and third-party claims. Plaintiff Priority Fulfillment Services, Inc. (“PFS”), a provider of logistics and fulfilment services, has sued (1) its former customer, Gaiam Americas Inc. (“Gaiam”), a manufacturer, wholesaler, and retailer of stress-relief-and yoga-related products, (2) Gaiam’s successor and assignee, Fit for Life LLC (“Fit for Life”), and (3) FFL.com LLC (“FFL.com”), an affiliate of Fit for Life. PFS sues Gaiam, Fit for Life, and FFL.com for the non-payment of amounts they allegedly owe PFS for services PFS provided under a written agreement.Defendants previously brought counterclaims against PFS and its parent company, PFSweb (together with PFS, the “PFS Parties”), now a third-party defendant in this action. Defendants alleged that the PFS Parties had misrepresented their capabilities during the negotiations that led to the parties’ agreement. The Court earlier dismissed all counterclaims, while granting leave to amend some. Defendants so amended and now bring amended claims for misrepresentation, based on Colorado statutory and common law.PFS again moves to dismiss defendants’ amended counterclaims and third-party claims. For the following reasons, the Court grants in part and denies in part that motion.I. BackgroundA. Facts1At all relevant times, Gaiam was a manufacturer, wholesaler and direct-to-consumer e-commerce retailer of yoga-, stress-relief-, and fitness-related products. ACC 7. Gaiam sold its products under its own brand name and under the SPRI brand. Id.In 2014, Gaiam began a search for a third-party logistics provider to handle its direct-to-consumer e-commerce operations. Id. 9. In 2014, Gaiam’s principal executive office was in Colorado. Gaiam conducted this search from Colorado. Id. 10. PFSweb was one of three such providers with which Gaiam had initial negotiations. Id. 12.During those negotiations, PFSweb made representations about its ability to perform the tasks required. Id.
15-21. Gaiam believes that agents were acting variously on behalf of PFSweb and PFS separately and together but that, generally, all representatives with which it interacted had PFSweb email addresses and used documents with PFSweb logos. see id.
