639 F. App'x 840

GIVAUDAN FRAGRANCES CORPORATION, Appellant v. James KRIVDA; Mane USA.

No. 14-1590.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit LAR 34.1(a) Sept. 9, 2015.

Filed: Feb. 12, 2016.

*842Deborah Brenneinan, Esq., Thompson Hine, Cincinnati, OH, Eric Kraeutler, Esq., Morgan Lewis & Bockius, Philadelphia, PA, Dennis Lafiura, Esq., Day Pit-ney, Parsippany, NJ, Wendy J. Lario, Esq., Theodore J. McEvoy, Esq., Green-berg Traurig, Florham Park, NJ, David Leichtman, Esq., Robins Kaplan, New York, NY, Eric J. Magnuson, Esq., Robins Kaplan, Minneapolis, MN, Elliot H. Scherker, Esq., Greenberg Traurig, Miami, FL, for Plaintiff-Appellant.

Thad M. Barnes, Esq., David B. Owsley, II, Esq., Stites & Harbison, Louisville, KY, Nicole L. Demaise, Esq., William C. Mead, Jr., Esq., John D. Shea, Esq., Litchfield Cavo, Cherry Hill, NJ, for Defendant-Ap-pellee.

BEFORE: VANASKIE, NYGAARD, and RENDELL, Circuit Judges.

OPINION *

NYGAARD, Circuit Judge.

Introduction

Appellant Givaudan Fragrances Corporation creates and produces flavor and fragrance compounds for foods and beverages, household goods, personal care products and — most relevant to this appeal — fine fragrances and perfumes. Gi-vaudan sued a former employee, Appellee James Krivda, and his new employer, Ap-pellee Mane USA, Inc., claiming Krivda stole more than six hundred fragrance formulas before leaving its employ. Litigation has been ongoing since September of 2008. After granting summary judgment to the Appellees on the vast majority of Givaudan’s claims, the District Court permitted some of them to proceed to trial. A jury rejected all of Givaudan’s claims and found in favor of Mane USA and Krivda. We will affirm both the District Court’s award of summary judgment, and the jury’s verdict.

*843 Background

Inasmuch as our opinion lacks prece-dential authority, and because the lengthy factual and procedural background is well known to the parties, we summarize only those facts and events that are relevant to the issues raised and to our decision. Krivda left Givaudan’s employment in 2008 and went to work for a competitor, Mane USA. Givaudan sued Mane USA and Kriv-da for a misappropriation of trade secrets, asserting that prior to leaving the company, Krivda removed hundreds of secret fragrance formulas from Givaudan databases.1 Givaudan claimed the stolen formulas were worth millions of dollars and were the “life blood” of its business.2 The lawsuit proceeded to discovery, which the District Court characterized as contentious.3 The Appellees requested that Gi-vaudan identify, with some specificity, the formulas it believed were misappropriated. Givaudan responded that its formulas were trade secrets and refused to turn over more detailed information.

Instead, Givaudan provided Mane USA and Krivda with a document it labeled a ‘print list.’ This document identified the name of each formula Givaudan believed Krivda improperly accessed. Givaudan’s list also related an identification number, and the date Krivda printed it. This list was 48 pages in length and contained 40 formulas per page, but did not reveal the specific ingredients for each fragrance formula. Appellees made repeated requests for additional information about the allegedly stolen formulas, but Givaudan demurred. Ultimately, Givaudan did provide detailed ingredient information and specific percentage amounts for 34 fragrance formulas, but continued to balk at disclosing formula specifics for the remaining recipes. The District Court granted summary judgment to the Appellees on claims where Givaudan refused to provide further detailed information, but allowed claims on 34 formulas to proceed to trial.

A five-week jury trial ensued. The jury unanimously ruled in favor of Mane USA and Krivda on all claims, finding that Gi-vaudan failed to prove that Krivda violated his employment contract or that any of Givaudan’s formulas were misappropriated. Givaudan has timely appealed, challenging the District Court’s summary judgment and assigning error to decisions of the District Court during trial. We will affirm.4

The Summary Judgment Ruling

We review the District Court’s grant of summary judgment de novo, viewing the facts in the light most favorable to the non-moving party, in this case, Givaudan.5 At summary judgment, Mane USA and Krivda6 argued that the lack of specific *844information made it impossible for them to defend against claims that Krivda provided Mane USA with any misappropriated formulas. In other words, without knowing the specific components of Givaudan’s fragrance formulas, Mane USA and Krivda had no basis for investigation and/or comparison. For its part, Givaudan responded that it had provided access to its formulas through the print list. Givaudan further argued that it had also allowed Mane USA and Krivda to access the allegedly stolen formulas during discovery, but with some restrictions: first, the formulas would be displayed on a computer screen at Givau-dan’s corporate offices; second, Givaudan’s counsel would be present; and third, no copying or, taking notes would be permitted.

The District Court found that Givaudan sufficiently identified 34 formulas, but rejected the fragrance company’s arguments on the remaining formulas. The District Court noted Givaudan’s burden to put Mane USA and. Krivda on “specific notice of trade secret protection, or else lose that protection,” and found that the company failed to meet that burden.7 Givaudan’s print list, the District Court determined, failed to provide any details as to the ingredients or percentages of ingredients *845in each formula.8 The District Gourt also took a dim view of Givaudan’s efforts to restrict access to its alleged trade secrets. It found the restrictions prohibiting copying and note-taking particularly onerous.9 Lastly, the District Court rejected Givau-dan’s argument that a jury could infer that Krivda misappropriated hundreds of other suspected formulas based on circumstantial evidence gleaned from the 34 formulas it did disclose. The District Court noted that Givaudan’s failure to provide specific details made it impossible to disprove such an inference: “Givaudan could have disclosed the specification of each formula, and then appropriate discovery procedures could have precisely identified whether Mane had received any or all of the allegedly purloined formulas.”10

Issues on Appeal Related To Summary Judgment

It is patently obvious that trade secrets must be identified with enough specificity to put a defendant on notice of what is actually alleged to have been stolen.11 Like the District Court, we believe Givaudan failed to provide enough specific information about many of the formulas it believed had been misappropriated. Summary judgment on those claims was proper on this basis alone. Out of hundreds of formulas alleged to have been stolen, Gi-vaudan disclosed sufficient information on just 34. Information the company did provide on the remaining formulas was too vague because the exact ingredients for each formula were not disclosed and the nonspecific formula names that did appear on the list (such as “Jasper,” “Bombs Away,” and “Savage Girl”)12 did not provide Mane USA and Krivda with any information from which they could compare formulas in Mane USA’s database.

On appeal, Givaudan re-raises arguments it presented to the District Court on summary judgment. For example, Givau-dan argues that the District Court should not have granted summary judgment on the vast majority of its formulas because it could have proven their misappropriation at trial by relying on inferences derived from circumstantial evidence. We disagree. We initially note that the District Court did permit Givaudan to present circumstantial evidence to the jury on the 34 formula claims that proceeded to trial.13 That circumstantial evidence included Mane USA’s recruitment of Krivda, Kriv-da’s printing actions before leaving Givau-dan, and formula name changes and similarities.14 The jury, however, rejected this evidence and unanimously found against Givaudan on the 34 formulas before it. We agree with the Appellees that, given this, a different decision on the unnamed formulas could not have been expected. Givaudan points to our decision in SI Handling Systems, Inc. v. Heisley15 to support its position that it should have been permitted to use circumstantial evidence to establish the misappropriation of the re*846maining trade secrets. In SI Handling, we did note that,

[i]n trade secret cases [mjisappropriation and misuse can rarely be proved by convincing direct evidence. In most cases plaintiffs must construct a web of perhaps ambiguous circumstantial evidence from which the trier of fact may draw inferences which convince him that it is more probable than not that what plaintiffs allege happened did in fact take place. Against this often delicate construct of circumstantial evidence there frequently must be balanced defendants and defendants’ witnesses who directly deny everything.16

But unlike here, the court and the parties in SI Handling were well aware of the components of each trade secret at issue.17 In this case, no detailed information was made available. Circumstantial evidence can be used to establish a misappropriation of trade secrets, but only after enough specific information has been given to the accused party so they can defend what it is they are accused of stealing. Inferences drawn from circumstantial evidence cannot be used to substantiate bald assertions.18

Givaudan next devotes two scant paragraphs of argument to their contention that the District Court erred by granting summary judgment prematurely. Various discovery disputes, Givaudan maintains, were unresolved and the District Court erred by granting summary judgment without resolving those disputes first. The District Court ruled that, regardless of any deadlines, the remaining discovery motions were immaterial to the legal issues before the court on summary judgment.19 We agree. Discovery had closed by the time the District Court entered summary judgment and we can find ho objection by Givaudan to the discovery deadlines on the record,

Lastly, Givaudan argues that the District Court’s grant of summary judgment to Mane USA and Krivda was a de facto sanction for the company’s failure to abide by various discovery requests and/or orders. We have reviewed the record and conclude that the District Court’s decision was clearly based on the merits of the issues before it. Furthermore, there is no evidence of any intent by the District Court to use the motion for summary judgment as a means to sanction Givau-dan. We therefore reject Givaudan’s argument.

For all these reasons, we find no error in the District Court’s award of summary judgment to Mane USA and Kridva and we will affirm that ruling. We now turn our attention to Givaudan’s claim that, through various actions and rulings, it was deprived of a fair trial.

Issues on Appeal Related To Trial

Givaudan’s purported trial errors involve the admission of evidence and the *847propriety of jury instructions.20 Upon review of the entire record, we see no abuse of discretion with regard to any of the numerous evidentiary issues Givaudan raises.21 We will highlight a few, beginning with the District Court’s exclusion of the print list from evidence. The District Court was rightly concerned with the trustworthiness of this document. The record contains no explanation of how this list was created, and the purpose for its creation. Givaudan’s vice president of technology testified that he did not prepare the print list and did not know what instructions were given to create this list.22 Further, it was not an abuse of discretion for the District Court to prohibit Givaudan from introducing evidence that formulas beyond those under consideration at trial were transferred to Mane USA’s data storage facilities in other countries. This evidence was properly excluded because it lacked the necessary foundation to connect it with the 34 claims that were actually on trial.

Givaudan also maintains that the District Court abused its discretion by permitting Appellee Krivda to testify as a surprise expert witness. There was no abuse of discretion, however, because Krivda’s testimony was not disinterested expert testimony, but rather fact testimony that was based on his own personal knowledge of the events at issue.23 And, Krivda’s testimony could hardly be surprising to Givaudan, given Krivda’s 2010 pre-trial declaration and the Joint Final Pretrial order that indicated what Krivda’s testimony would encompass.

Givaudan takes further issue with several instructions the District Court gave to the jury. Again, having reviewed the record, we see no error with any of the instructions utilized by the District Court. For example, Givaudan maintains that the District Court should not have instructed the jury that it would only be considering whether Krivda “placed 34 ... formulas into Mane’s formula database.”24 Instead, Givaudan argues that such an instruction implied to the jury that its claims on the other formulas were baseless. Inasmuch as we saw no error in the District Court’s *848decision on summary judgment, we see no error in its instructions limiting the jury’s consideration to the 34 claims that were actually on trial.

Givaudan additionally charges that the District Court erred by instructing the jury that an “exact' match” was necessary for a formula to be misappropriated. Such an instruction, however, was never given. Instead, the District Court instructed the jury that liability for misappropriation exists where a party uses information that was “substantially derived” from a trade secret.25 Not only is this a correct statement of New Jersey law,26 we cannot find an objection to this instruction from Givau-dan on the record.

Lastly, Givaudan contends that the District Court erred by not charging the jury on its theories of unfair competition, conversion, replevin, aiding and abetting, and tortious interference claims. Again, we see no error. The elements of these other claims were subsumed into the instructions the District Court issued for breach of contract, misappropriation, and conspiracy.27 Given that the jury found in favor of Mane USA and Krivda on those claims, it could not have found in favor of Givaudan on the omitted counts due to the overlapping of elements. In sum, and having reviewed the entire record, we find no error in any of the jury instructions issued by the District Court.

Conclusion

The District Court’s decision to grant Mane USA and Krivda summary judgment on the vast majority of Givaudan’s claims will be affirmed. We further find no error which deprived Givaudan of a fair trial. As such, we see no basis on which to overturn the jury’s verdict.

Givaudan Fragrances Corp. v. Krivda
639 F. App'x 840

Case Details

Name
Givaudan Fragrances Corp. v. Krivda
Decision Date
Feb 12, 2016
Citations

639 F. App'x 840

Jurisdiction
United States

References

Referencing

Nothing yet... Still searching!

Referenced By

Nothing yet... Still searching!