Laura Laaman & Associates, LLC v. Davis
ORDER. For the reasons set forth in the attached, the 48 motion for summary judgment is hereby DENIED. Signed by Judge Michael P. Shea on 11/27/2017. (Self, A.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
LAURA LAAMAN & ASSOCIATES, LLC,
No. 3:16-CV-00594 (MPS)
RULING ON MOTION FOR SUMMARY JUDGMENT
Laura Laaman & Associates, LLC (“Laaman”), a company specializing in pet care
training and consulting, brings this suit against its former employee, Lori Davis (“Davis”).
Laaman claims that Davis misappropriated various marketing materials following her departure
from the company and used them to start a competing business. The company sets out claims
against Davis for: (i) violation of the Lanham Act, 15 U.S.C. § 1125 (Count One); (ii) violation
of the Connecticut Uniform Trade Secrets Act (“CUTSA”), Conn. Gen. Stat. §35-50, et seq.
(Count Two); (iii) breach of contract (Count Three); (iv) violation of the Connecticut Unfair
Trade Practices Act (“CUTPA”), Conn. Gen. Stat. § 42-110a, et seq. (Count Four); and (v)
tortious interference with business relations (Count Five). Davis now moves for summary
judgment on all counts, arguing among other things that the materials Laaman alleges she
misappropriated were not trade secrets. (See ECF No. 48-1 at 1-3). For the following reasons,
Davis’s motion for summary judgment is hereby DENIED.
a. Davis’s Employment at Laaman
The following facts, which are taken from the parties’ Local Rule 56(a) Statements and
the exhibits, are undisputed unless otherwise indicated. Laura Laaman, the founder of Laaman,
has provided training and consulting services to businesses in the pet care industry since at least
1995. (ECF No. 48-5, Defendant’s Local Rule 56(a)1 Statement (“Def.’s L.R. 56(a)1 Stmt.”) ¶¶
1-3); ECF No. 53-1, Plaintiff’s Local Rule 56(a)2 Statement (“Pl.’s L.R. 56(a)2 Stmt.”) ¶¶ 1-3).
Around twelve years ago, Ms. Laaman formed the plaintiff as “Outstanding Pet Care” (“OPC”),1
a company that “provides sales, management, and customer service training and consulting
services exclusively tailored for the pet care industry.” (See Def.’s L.R. 56(a)1 Stmt. ¶¶ 4-5;
Pl.’s L.R. 56(a)2 Stmt. ¶¶ 4-5). Laaman offers telephone and on-line training, and “assists
clients with marketing, pricing and networking. . . .” (See Def.’s L.R. 56(a)1 Stmt. ¶¶ 6-8; Pl.’s
L.R. 56(a)2 Stmt. ¶¶ 7-8). Laaman also provides “a program that help[s] clients track key
components of their revenue.” (Def.’s L.R. 56(a)1 Stmt. ¶ 8; Pl.’s L.R. 56(a)2 Stmt. ¶ 8).
Davis began working for Laaman in 2009 as an “administrative assistant or marketing
assistant.” (Def.’s L.R. 56(a)1 Stmt. ¶¶ 9-10; Pl.’s L.R. 56(a)2 Stmt. ¶¶ 9-10). She was
eventually promoted to client coach and then to senior client coach. (Def.’s L.R. 56(a)1 Stmt. ¶
11; Pl.’s L.R. 56(a)2 Stmt. ¶ 11). Davis ended her employment with Laaman in September of
2012. (See ECF No. 1 ¶ 15; ECF No. 13 ¶ 15). Before beginning her position at OPC, Davis
signed a “Confidentiality/Non Compete Agreement” (“agreement”). (See ECF No. 55-1, Exhibit
1). The agreement sets out the following provision governing confidential information:
Except as required in my duties to [Laaman], or with the prior written authorization of an
officer of [Laaman], during the term of my employment and thereafter, I shall not
Since OPC and Laaman are the same entity, I refer to both as Laaman throughout this
ruling for convenience.
directly, indirectly or otherwise use, disseminate, disclose, lecture upon or publish
articles revealing any Confidential Information.
(ECF No. 55-1 ¶ 5). The agreement defines “Confidential Information” as follows:
“Confidential Information” means information which is not generally known in the
relevant trade or industry and confers an economic advantage to [Laaman] or a client of
[Laaman] and includes trade secrets and information disclosed to me or known by me as
a consequence of or through my employment by [Laaman] (including information
conceived, originated, discovered by me), including information received or acquired
from a client of [Laaman], whether or not in the field of employment, including
information about [Laaman] products, processes and services including information
relating to research, development, inventions, purchasing as well as actual and potential
customer lists, customer contacts, cost and pricing information.
(Id. ¶¶ 2.3). The agreement also contains a non-compete provision that prohibits working in a
related industry within Connecticut for a year after termination. (Id. ¶ 9). Once the non-compete
provision lapsed, Davis began her own pet care services training company, Paramount Success
Group (“Paramount”). (See ECF No. 1 ¶¶22-23; ECF No. 13 ¶¶ 22-23).
b. Events Following Davis’s Departure from Laaman
The parties’ accounts sharply diverge following Davis’s departure from Laaman. The
main issues of contention between the parties include the following.
1. Davis’s Computer
Laaman provided a MacBook Air computer to Davis “for use for business purposes”
during her employment with the company. (ECF No. 55-1, Declaration of Laura Laaman
(“Laaman Decl.”) ¶ 12); ECF. No. 55-4, Exhibit 1, Deposition of Lori Davis (“Davis Depo.”) at
64-65). Laaman permitted Davis to keep the computer at the end of her employment, subject to
the condition that she delete all “company information” from the computer at that time. (Laaman
Decl. ¶ 12). Davis stated in her deposition that she thought that she had deleted all of the
Laaman associated files on the computer at the time of her departure from the company. (Davis
Depo. at 65). Laaman’s expert states in his report, however, that forensic analysis of Davis’s
computer2 revealed “several documents located on [Davis’s computer] contain[ing] metadata
with the company name of ‘Laura Laaman & Associates.’” (ECF No. 55-3, Exhibit A, Expert
Report of Sean Tuttle (“Tuttle Rep.”) ¶ 10). The expert states that this indicated that “these
documents were created with a version of Microsoft Office in which the company name was set
to ‘Laura Laaman & Associates.’” (Id. ¶ 15).3 When confronted with a document that listed
Laaman in its properties during her deposition, Davis testified that the “Word document or the
Microsoft Office that was on the MacBook Air that [she] used to create some documents was
licensed under Laura Laaman and Associates.” (Davis Depo. at 164). Forensic analysis of the
computer also demonstrated, in the expert’s estimation, that “one of the documents located on
[Davis’s computer]” contains ‘Laura Laaman & Associates’ in both the header and footer of the
document.” (Id. ¶ 20). The expert states that this document, entitled “Master Activity Package
Worksheets GRP-INDV-PUP-SC.xls,” has a “create date of 2/5/2009” and that, for this specific
document, “the company name was manually changed to Paramount Success Group.” (Id. ¶¶ 2123).
2. Waitlist Management Spreadsheet
Craig Laaman, who has worked at Laaman for the past decade as an information
technology specialist, contends in his Declaration that a “Waitlist Management Spreadsheet”
sold by Paramount is an exact copy of one that he created for Laaman. (ECF No. 55-2,
The computer examined by Laaman’s expert was not the same MacBook Air that
Laaman permitted Davis to keep. Davis stated in her deposition that at some point in 2014, she
gave the MacBook Air to her daughter’s boyfriend so that he could sell it on eBay. (Davis Depo.
at 45). Davis stated that prior to any sale, however, a “smoothie was spilled on it, and it no
longer exists.” (Id. at 50).
The expert also reported that the “company name assigned to the Office installation on
the Davis Computer was ‘Paramount Success Group.’” (Tuttle Rep. ¶ 18).
Declaration of Craig Laaman (“C. Laaman Decl.”) ¶¶ 4-7). He states that the spreadsheet in
question uses “identical or nearly identical” formulas as those in the spreadsheet he created, and
that “[t]here are at least 50 columns that contain identical or nearly identical titles/information
(though slightly reordered or titles abbreviated differently) including at least 10 hidden columns
that are exact or nearly exact copies.” (Id. ¶ 5). Davis stated in her deposition that she created
the document in question without looking to Laaman’s spreadsheet, which she contends was
“locked” on her computer in any event. (Davis Depo. at 178).
3. “Bad Words and Better Replacements”
Laaman contends that Davis copied its training product, “Bad Words and Better
Replacements,” which contains “25 commonly used words/phrases and suggested replacements.”
(Laaman Decl. ¶ 17). Paramount produced a training product entitled “PERFECT Words &
Phrases for Success,” which “includes 18 words/phrases and suggested replacements.” (Id.).
Eight of the words and suggested replacements on Paramount’s list are identical to their
counterparts on Laaman’s list. (See ECF No. 55-1, Exhibits 3-4). Laaman avers that Paramount
is the only other “entity” that “uses these combinations of words and phrases in the pet hotel
industry.” (Laaman Decl. ¶ 17). Davis’s expert contends in her report, however, that the
concepts and materials in “Bad Words and Better Replacements” were “known and being used
well before [Laaman] came into existence.” (See ECF No. 48-2, Exhibit A, Report of Susan
Briggs (“Briggs Rep.”) at 2).
4. Other Training Materials
Laaman alleges that several other products marketed by Paramount constitute copies of
its materials. These purportedly copied materials include: an activity package worksheet that is
allegedly “virtually identical in all respects including columns, rows, formatting, formulas, and
content” to a worksheet provided by Laaman, (Laaman Decl. ¶ 18); a “Successful Reservation
Specialist Interview Process” that Laaman alleges replicates its own product “with very minor
variations” (id. ¶ 19); a “Cat Lodging Script” that Laaman alleges “is verbatim or almost
verbatim to [its] verbiage in [its] product,” (id. ¶ 20); a “Daycare Customer Script” that Davis
alleges is also a near verbatim copy of its own materials (id. ¶ 21); a revenue data sheet sold to a
customer that purportedly strongly resembles Laaman’s own product (id. ¶ 22); and various other
materials provided by Paramount that Laaman alleges are effectively duplicates of its products
(Id. ¶¶ 22-29). Davis’s expert contends that the “concepts and materials” in Laaman’s materials
were well known in the industry and used well before Laaman came into existence. (See Briggs
Rep. at 2-4).
c. Laaman’s Complaint
Laaman alleged in its complaint that Davis “presented material that is the same or
substantially [similar]” to its materials in various pet care industry trade shows. (See ECF No. 1
¶ 26). The company also asserted that Davis, through Paramount, used its “words, terms, or
devices” without its consent, and that she misappropriated its “confidential and proprietary
customer and partner information to solicit [Laaman’s] customers and partners.” (Id. ¶¶ 27-28).
Finally, Laura Laaman contended in her Declaration that various products marketed by Davis’s
company “originated with [Laaman], [and] that [Davis] falsely claimed that she was the origin of
these products. . . .” (Laaman Decl. ¶ 14). In essence, then, Laaman asserts that Davis, acting
through Paramount, misappropriated its materials and held them out as her own.
Standard of Review
Summary judgment is appropriate only when the moving party “shows 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). “In making that determination, a court must view the evidence in the
light most favorable to the opposing party.” Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014)
(internal quotation marks omitted). “A fact is material if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” McCarthy v. Dun & Bradstreet Corp., 482
F.3d 184, 202 (2d Cir. 2007) (internal quotation marks omitted). The moving party bears the
burden “of showing that no genuine factual dispute exists . . ., and in assessing the record to
determine whether there is a genuine issue as to any material fact, the court is required to resolve
all ambiguities and draw all factual inferences” in favor of the non-moving party. Cronin v.
Aetna Life Ins. Co., 46 F.3d 196, 203 (2d Cir. 1995).
a. Lanham Act (Count One)
The Lanham Act provides, in relevant part, that:
Any person who, on or in connection with any goods or services, or any container for
goods, uses in commerce any word, term, name, symbol, or device, or any combination
thereof, or any false designation of origin, false or misleading description of fact, or false
or misleading representation of fact, which—
(A) is likely to cause confusion, or to cause mistake, or to deceive as to the
affiliation, connection, or association of such person with another person, or as to
the origin, sponsorship, or approval of his or her goods, services, or commercial
activities by another person, or
(B) in commercial advertising or promotion, misrepresents the nature,
characteristics, qualities, or geographic origin of his or her or another person’s
goods, services, or commercial activities, shall be liable in a civil action by any
person who believes that he or she is or is likely to be damaged by such conduct.
15 U.S.C. § 1125(a). The gravamen of Laaman’s Lanham Act claim is that Davis engaged in
“reverse passing off”4 of her products. (See ECF No. 55 at 4). “Reverse [passing] off under the
Lanham Act occurs, simply stated, when ‘A sells B’s product under A’s name.’” Societe Des
Hotels Meridien v. LaSalle Hotel Operating Partnership, L.P., 380 F.3d 126, 131 (2d Cir. 2004),
quoting Waldman Publ’g Corp. v. Landoll, Inc., 43 F.3d 775, 780 (2d Cir. 1994) (internal
quotation marks omitted). To prevail on a reverse passing off claim, a plaintiff must establish:
“(1) that the [product] at issue originated with the plaintiff; (2) that [the] origin of the [product]
was falsely designated by the defendant; (3) that the false designation of origin was likely to
cause consumer confusion; and (4) that the plaintiff was harmed by the defendant’s false
designation of origin.” Softel, Inc. v. Dragon Med. & Sci. Communications, 118 F.3d 955, 970
(2d Cir. 1997) (internal quotation marks omitted).
Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003), is the leading
case on the origination requirement for reverse passing off claims. Dastar concerned a reverse
passing off claim stemming from the defendant’s alleged repackaging and sale of the plaintiff’s
film footage. See Dastar, 539 U.S. at 25-26. The defendant had purportedly used video footage
from a television series produced by the plaintiff as the foundation of its own documentary
without in any way crediting the plaintiff. Id. at 27. The question before the Court was whether
the defendant’s action constituted “a false designation of origin” in connection with the
plaintiff’s “goods or services,” thereby violating the Lanham Act. Id. at 28-29. In analyzing this
question, the Court concluded that the phrase “origin of goods” in the Lanham Act referred to
Courts also refer to reverse passing off claims as “reverse palming off” claims. See,
e.g., Societe Des Hotels Meridien v. LaSalle Hotel Operating Partnership, L.P., 380 F.3d 126,
131 (2d Cir. 2004).
“the producer of the tangible goods that are offered for sale, and not to the author of any idea,
concept, or communication embodied in those goods.” Id. at 37.
Applying this definition, the Court held that the plaintiff was not the “origin” of the
defendant’s product because the plaintiff had not produced the tangible product at issue—i.e., the
actual videos, as opposed to the content of the film they contained. Id. at 37-38. The Court
implied that the plaintiff’s claim would only have succeeded if the defendant had passed off the
plaintiff’s actual videotapes as its own. See id. at 31 (“[The plaintiff’s Lanham Act claim] would
undoubtedly be sustained if [the defendant] had bought some of [the plaintiff’s] videotapes and
merely repackaged them as its own.”). After Dastar, courts have uniformly held that a reverse
passing off claim cannot encompass “misrepresentations about the author of an idea, concept, or
communication embodied” in a plaintiff’s goods but rather only misrepresentations about the
origins of the goods themselves. Gary Friedrich Enterprises, LLC v. Marvel Enterprises, Inc.,
713 F. Supp. 215, 234 (S.D.N.Y. 2010); General Universal Systems, Inc. v. Lee, 379 F.3d 131,
149 (5th Cir. 2004) (rejecting plaintiff’s reverse palming off claim on basis that it had not accused
defendant of selling plaintiff’s products but rather of copying plaintiff’s ideas).
The question of where to draw the line between protected goods and unprotected ideas,
however, has divided courts in the aftermath of Dastar. Compare Cvent, Inc. v. Eventbrite, Inc.,
739 F. Supp. 2d 927, 935-936 (E.D. Va. 2010) (holding that defendant’s repackaging and sale of
information stripped from plaintiff’s computer database provided basis for cognizable reverse
passing off claim); Experian Marketing Solutions, Inc. v. U.S. Data Corp., No. 8:09CV24, 2009
WL 2902957, at *10 (D. Neb. Sept. 9, 2009) (holding that defendant’s unauthorized acquisition
of and sale of plaintiff’s consumer data files gave rise to viable reverse passing off claim) with
Smartix Intern. Corp. v. MasterCard Intern. LLC, No. 06 CV 5174 (GBD), 2008 WL 4444554,
at *6-7 (S.D.N.Y. Sept. 30, 2008) (dismissing reverse passing off claim alleging defendant had
stolen and reproduced plaintiff’s software); Bob Creeden & Associates, LTD. v. Infosoft, Inc.,
326 F. Supp. 2d 876, 879-80 (N.D. Ill. 2004) (dismissing reverse passing off claim based on
defendant’s purported theft and distribution of plaintiff’s software to its competitors). The
Second Circuit has yet to weigh in on the issue.
Even if Dastar precluded any claim based on theft and reproduction of proprietary
information, however, summary judgment for Davis would not be warranted. Davis contends
that Laaman’s claim fails because it alleges only that she misappropriated the company’s ideas
rather than its materials. (See ECF No. 56 at 2-4). This argument mischaracterizes Laaman’s
claims. Laaman is not merely alleging that Davis copied her ideas—the company contends that
Davis illicitly maintained its materials on her computer—the actual documents—and sold them
as her own. (See ECF No. 55 at 5-11; ECF No. 1 ¶ 31-36). In other words, the company alleges
that it, not Davis, is the actual “origin” of the documents at issue. For example, in her
declaration, Ms. Laaman avers that she received materials from one of Davis’s clients and that a
review of these materials showed that “[Davis] had retained copies of [Laaman’s] products and
materials and was reselling them as her own.” (Laaman Decl. ¶ 14).
Laaman’s allegations in this vein are not without supporting evidence. Its expert
concluded that hundreds of documents located on Davis’s computer contained metadata
suggesting they were created by Laaman or at least a Laaman-associated computer; he also
opined that the computer included multiple versions of the same spreadsheet, only one of which
set forth the name “Laaman” in both the header and footer of the document. (See Tuttle Rep. ¶¶
10, 20, 23). He further opined that this document was originally created in 2009, while Davis
was working for Laaman. (Id. ¶ 22). While Davis provided an explanation for this phenomenon
in her deposition, the parties’ dueling contentions present a genuine issue of material fact that
cannot be resolved in this posture. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986) (“Credibility determinations, the weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a judge, whether he is ruling on a
motion for summary judgment or for a directed verdict. ”). Admittedly, Laaman’s materials do
not provide any further specification as to which particular documents—other than the
spreadsheet created in 2009—contained the Laaman identifier. Drawing all “justifiable
inferences” in Laaman’s favor, see id., 477 U.S. at 255, however, I find that the evidence
supports the conclusion that each of the allegedly misappropriated materials mentioned in
Laaman’s accusations could have originated with Laaman. Thus, Laaman’s reverse passing off
claim satisfies the origination requirement. It also satisfies the false designation requirement, as
the above analysis demonstrates a genuine issue of material fact concerning whether Davis sold
the materials as her own products.
To determine whether a likelihood of confusion exists due to an alleged false designation
of origin, a court must apply an eight-factor balancing test concerning:
“(1) [T]the strength of the trademark; (2) similarity of the marks; (3) proximity of the
products and their competitiveness with one another; (4) evidence that the senior user
may bridge the gap by developing a product for sale in the market of the alleged
infringer’s product; (5) evidence of actual consumer confusion; (6) evidence that the
imitative mark was adopted in bad faith; (7) respective quality of the products; and (8)
sophistication of consumers in the relevant market.”
International Information Systems Sec. Certification Consortium, Inc. v. Security University,
LLC, 823 F.3d 153, 160 (2d Cir. 2016) (internal quotation marks omitted). The application of
this standard is “not mechanical, but rather, focuses on the ultimate question of whether, looking
at the products in their totality, consumers are likely to be confused.” Id., quoting Star Indus v.
Bacardi & Co., Ltd., 412 F.3d 373, 384 (2d Cir. 2005). Here, the majority of the factors are
irrelevant due to the nature of the allegations. See Suntree Technologies, Inc. v. EcoSense
Intern., Inc., 802 F. Supp. 2d 1273, 1284 (M.D. Fla. 2011) (noting that various factors
adjudicating the similarity of the parties’ respective marks are irrelevant in reverse passing off
As a general matter, however, courts have concluded that a party’s attempt to pass off
another party’s product as its own satisfies the confusion requirement of the Lanham Act for an
obvious reason—it represents a direct attempt to confuse a consumer about the origin of a
product. See Universal Furniture Intern., Inc. v. Collezione Europa USA, Inc., 618 F.3d 417,
438-39 (4th Cir. 2010) (“When a ‘defendant has taken the plaintiff’s product and has represented
it to be his own work,’ it is ‘difficult to imagine how a designation of origin of a product . . .
could be more likely to cause confusion or mistake as to the actual origin of the product.’”)
(quoting Johnson v. Jones, 149 F.3d 494, 503 (6th Cir. 1998)); Mid-List Press v. Nora, 374 F.3d
690, 693 (8th Cir. 2004) (“It is difficult to imagine how the public would not be confused about
the origin of [the defendant’s product], when the [product] actually bore the [plaintiff’s] trade
name and ISBN number.”); Target Advertising, Inc. v. Miller, No. 01 CIV. 7614(AGS), 2002
WL 999280, at *7 (S.D.N.Y. May 15, 2002) (concluding that defendant passing off plaintiff’s
goods as its own created likelihood of confusion). The same principle applies here. Thus,
Laaman’s reverse passing off claim meets the consumer confusion requirement.
Finally, there is a genuine issue of material fact concerning whether Laaman has been
harmed due to Davis’s actions. Courts have generally required only minimal showings of harm
by a party whose goods are passed off and sold by another. See Pop Bar, LLC v. Fellows, No. 12
CIV. 06647 TPG, 2013 WL 4446227, at *6 (S.D.N.Y. Aug. 19, 2013) (plaintiff alleging reverse
passing off claim alleged valid harm due to negative effects to its “goodwill and reputation”);
Carell v. Shubert Organization, Inc., 104 F. Supp. 2d 236, 259 (S.D.N.Y. 2000) (“The harm
caused by reverse passing off is that the originator of the product is ‘involuntarily deprived of the
advertising value of its name and of the goodwill that otherwise would stem from public
knowledge of the true source of the satisfactory product.’”) (quoting Rosenfeld v. W.B. Saunders,
Division of Harcourt Brace Jovanovich, Inc., 728 F. Supp. 236, 241 (S.D.N.Y. 1990)); Universal
Furniture Intern., Inc., 618 F.3d at 439 (same). Even if this intrinsic injury of reverse passing
off did not satisfy the harm requirement, Laaman provided evidence that a number of its
customers had ceased doing business with it shortly after Davis started her company. (See Pl.’s
L.R. 56(a)2 Stmt. ¶¶ 20-32). Thus, drawing all inferences in Laaman’s favor, a trier of fact could
conclude that these customers left Laaman due to Davis’s passing off of its products. Laaman’s
Lanham Act claim therefore satisfies the harm requirement as well.5
For these reasons, Davis’s motion for summary judgment with respect to Davis’s Lanham
Act claim must be denied.6
b. CUTSA (Count Two)
CUTSA “prohibits misappropriation of trade secrets.” Tourmaline Partners, LLC v.
Monaco, No. 3:13-CV-00108 (VAB), 2016 WL 614361, at *2 (D. Conn. Feb. 16, 2016).
The Second Circuit’s opinion in Ortho Pharmaceutical Corp. v. Cosprophar,
Inc., 32 F.3d 690 (2d Cir. 1994), does not alter this conclusion. In Ortho, as Davis notes
(see ECF No. 56 at 4-5), the Second Circuit stated that “[t]he likelihood of injury and
causation will not be presumed” and that the court had “tended to require a more
substantial showing where the plaintiff’s products are not obviously in competition with
defendant’s products. . . .” Id. at 694 (internal quotation marks and citations omitted).
One strains to see how Laaman’s products would not be in competition with those of
Davis, however, given Laaman’s allegations that Davis has been marketing Laaman’s
Given my conclusion, I omit analysis of Laaman’s secondary argument that
Davis violated the Lanham Act by infringing upon its trademarks. See ECF No. 55 at 1213).
Misappropriation is defined in relevant part as the “disclosure or use of a trade secret of another
without express or implied consent by a person who . . . at the time of disclosure or use, knew or
had reason to know that his knowledge of the trade secret was . . . acquired under circumstances
giving rise to a duty to maintain its secrecy or limit its use. . . .” Conn. Gen. Stat. § 35–51(b).
The Connecticut Supreme Court has concluded that former employees with knowledge of the
trade secrets of their employers fall within the ambit of CUTSA. See, e.g., Elm City Cheese Co.,
Inc. v. Federico, 251 Conn. 59, 69 (1999) (“Even after the employment has ceased, however, the
employee remains subject to a duty not to use trade secrets, or other confidential information,
which he has acquired in the course of his employment, for his own benefit or that of a
competitor to the detriment of his former employer.”) (internal quotation marks omitted).
CUTSA defines “trade secrets” as:
information, including a formula, pattern, compilation, program, device, method,
technique, process, drawing, cost data or customer list that: (1) Derives independent
economic value, actual or potential, from not being generally known to, and not being
readily ascertainable by proper means by, other persons who can obtain economic value
from its disclosure or use, and (2) is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.
Conn. Gen. Stat. § 35–51(d). While a trade secret need not be known solely by the proprietor to
merit protection, “a substantial element of secrecy must exist, to the extent that there would be
difficulty in acquiring the information except by the use of improper means.” Robert S. Weiss
and Associates, Inc. v. Wiederlight, 208 Conn. 525, 538 (1988). For example, a customer list can
be a trade secret if an employee “acquired it in confidence from his employer” but would not be
protected “if the customers’ names can readily be ascertained through ordinary business channels
or reference resources.” Id.
Relevant factors in determining whether information is a trade secret include:
(1) the extent to which the information is known outside the business; (2) the extent to
which it is known by employees and others involved in the business; (3) the extent of
measures taken by the employer to guard the secrecy of the information; (4) the value of
the information to the employer and to his competitors; (5) the amount of effort or money
expended by the employer in developing the information; (6) the ease or difficulty with
which the information could be properly acquired or duplicated by others.
Town & Country House & Homes Service, Inc., 150 Conn. 314, 319 (1963). Due to the holistic
nature of this analysis, the question of whether “a party has made reasonable efforts to maintain
the secrecy of a purported trade secret is by nature a highly fact-specific inquiry.” See Elm City
Cheese Co., Inc. v. Federico, 251 Conn. 59, 80 (1999). A “reasonable effort” in one case may
not be adequate in another. Id. As a result, “[t]he question of whether information sought to be
protected by the trade secrets act rises to the level of a trade secret is ‘one of fact. . . .’” Id. at 68,
quoting Allen Mfg. Co., 145 Conn. at 516.
Laaman claims that Davis misappropriated its trade secrets in violation of CUTSA,
including its customer lists and its “proprietary training programs, business strategies, and other
critical business information that would be invaluable – and unavailable – to [a] competitor.”
(ECF No. 1 ¶¶ 18-20). Davis trains all of her fire on the secrecy issue, contending that none of
this purportedly proprietary information constituted “trade secrets” protected by CUTSA due to
Laaman’s failure to make a reasonable effort to protect it. (See ECF No. 48 at 13-18). For
example, Davis contends that Laaman’s customer lists cannot be trade secrets because they are
easily ascertainable via regular means, e.g., Laaman lists certain customers on its website. (See
ECF No. 48-1 at 16-18; ECF No. 48-3 at Exhibit B). Davis also argues that many of Laaman’s
customers could be identified by searching a telephone directory or a “Google search,” and that
she remembered many of the customers from her time at Laaman. (See ECF No. 48-1 at 17). In
support of this argument, Davis relies heavily upon the Connecticut Supreme Court’s decision in
Weiss. (Id.). In that case, the Connecticut Supreme Court upheld a trial court’s determination
that a company’s customer lists were not “trade secrets” in part because of evidence that the lists
“could be obtained independently simply by using telephone directories or making personal
contact.” Weiss, 208 Conn. at 539.
There are three major flaws in Davis’s argument. First, Weiss concerned a review of a
trial court’s factual determination regarding whether the customer lists at issue constituted trade
secrets—as such, the court determined only that the trial court “was not clearly erroneous” in its
conclusion. Id. Such a determination is not analogous to the question at hand here, which
concerns whether the customer lists constitute trade secrets in the first instance. Second, the fact
that the identity of certain customers can be attained using public sources does not prevent the
entire list from being a trade secret. A “trade secret may consist of a compilation of data, public
sources or a combination of proprietary and public sources.” United States v. Nosal, 844 F.3d
1024, 1042-43 (9th Cir. 2016); see also Milso Indus. Corp. v. Nazzaro, No. 3:08CV1026 AWT,
2012 WL 3778978, at *8 (D. Conn. Aug. 30, 2012) (“Although customer lists are on the
periphery of the law of trade secrets, courts have frequently held that customer lists and pricing
information are deserving of trade secret protection.”) (internal quotation marks and citations
omitted). Third, the contention that Laaman was laissez-faire with its proprietary information is
belied by the fact that it required Davis to sign a confidentiality agreement prior to the start of
her employment. (See ECF No. 55-1, Exhibit 1); Milso Indus. Corp., 2012 WL 3778978 at *9
(“Reasonable efforts to maintain secrecy include requiring employees to sign confidentiality
agreements. . . .”) (internal quotation marks omitted).
Davis stands on even weaker ground in contending that Laaman’s various other asserted
proprietary materials are not trade secrets. She contends that the information at hand was
attainable by “proper means” through contact with clients, that she remembered much of the
information due to her work with the company, and that, in any event, Laaman did not prevent its
clients from sharing these materials with others in the industry. (See ECF No. 48-1 at 18-21).
As noted above, however, Laaman required Davis to sign a confidentiality agreement; hence,
Davis’ memory of the materials does not exculpate her. Also, more fundamentally, Laaman
charged its clients for the materials at issue. (See Laaman Decl. ¶ 7). Clients’ willingness to pay
significant sums for the materials suggests that they were not publicly available. Finally, even if
some of the information at issue was attainable through public means, it would not prevent the
materials from being trade secrets. See Motor City Bagels, L.L.C. v. American Bagel Co., 50 F.
Supp. 2d 460, 479 (D. Md. 1999) (concluding that while the information at issue did “contain
some public information and facts ascertainable from the marketplace,” it could still be a trade
secret because it “likewise include[d] personal insights and analysis brought to bear through
diligent research and by marshaling a large volume of information”); Nosal, 843 F. 3d at 104243.
For these reasons, Davis is not entitled to summary judgment on Davis’s CUTSA claim.
c. Breach of Contract (Count Three)
To prove a breach of contract claim under Connecticut law, a plaintiff must establish:
“(1) the existence of a contract or agreement; (2) the defendant’s breach of the contract or
agreement; and (3) damages resulting from the breach.” Chem-Tek, Inc. v. General Motors
Corp., 816 F. Supp. 123, 131 (D. Conn. 1993) (citing O’Hara v. State, 218 Conn. 628 (1991)).
Here, Laaman alleges that Davis breached her confidentiality agreement with the company by
divulging its materials to clients and at conferences where she presented. (See ECF No. 1 ¶¶ 4852). In asserting her claim for summary judgment, Davis avers that she did not breach the
confidentiality agreement because none of the materials allegedly divulged constitutes “a mark
or a trade secret.” (See ECF No. 48-1 at 22). My conclusion in the previous section that there is
at least a triable issue about whether the materials at issue constitute trade secrets under CUTSA
forecloses this argument. Beyond this, the definition of “confidential information” in the
agreement is more extensive than the definition of “trade secrets” under CUTSA. The agreement
extends to any information “not generally known” in the industry, any information “received or
acquired” from a client of [Laaman] “whether or not in the field of employment,” and to
information “relating to research, development, inventions, purchasing as well as actual and
potential customer lists, customer contacts, cost and pricing information.” (ECF No. 55-1 at
Exhibit 1). This expansive language easily generates a genuine issue of material fact concerning
whether Davis breached the agreement.
For these reasons, Davis is not entitled to summary judgment on Laaman’s breach of
d. CUTPA (Count Four)
CUTPA provides that “[n]o person shall engage in unfair methods of competition and
unfair or deceptive acts or practices in the conduct of any trade or commerce.” Conn. Gen. Stat.
§ 42-110b(a). In determining whether a practice violates CUTPA, a court must consider three
(1) [W]hether the practice, without necessarily having been previously considered
unlawful, offends public policy as it has been established by statutes, the common law, or
otherwise—in other words, it is within at least the penumbra of some common law,
statutory, or other established concept of unfairness; (2) whether it is immoral, unethical,
oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers,
[competitors or other businesspersons]. . .
Ulbrich v. Groth, 310 Conn. 375, 409 (2013), quoting Harris v. Bradley Memorial Hospital &
Health Center, Inc., 296 Conn. 315, 350-51 (2010). A practice may violate CUTPA without
meeting all three criteria—i.e. a practice “may be unfair because of the degree to which it meets
one of the criteria or because to a lesser extent it meets all three. . . .” Id. “Whether a practice is
unfair and thus violates CUTPA is an issue of fact.” Milso Industries Corp., 2012 WL 3778978
at *14, quoting De La Concha of Hartford, Inc. v. Aetna Life Ins. Co., 269 Conn. 424, 434
Davis contends that her conduct could not have violated CUTPA because her actions
were not deceptive, did not harm Laaman, and did not disclose proprietary information. (See
ECF No. 48-1 at 23-25). As noted in previous sections, however, all of those contentions present
genuine issues of material fact. Compare Milso, 2012 WL 3778978 at *15 (denying summary
judgment on CUTPA claim based in part on misappropriation of customer lists due to “genuine
issues of material fact” concerning whether plaintiff’s “customer list and ‘business plan” were
comprised of publicly available information).
Thus, Davis is not entitled to summary judgment on Laaman’s CUTPA claim.
Tortious Interference With Business Relations (Count Five)
A party setting out a tortious interference with business relations claim must establish the
following elements: “(1) a business relationship between the plaintiff and another party; (2) the
defendant’s intentional interference with the business relationship while knowing of the
relationship; and (3) as a result of the interference, the plaintiff suffers actual loss.” Hi-Ho
Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 27 (2000). “[F]or a plaintiff successfully to
prosecute such an action it must prove that the defendant’s conduct was in fact tortious. This
element may be satisfied by proof that the defendant was guilty of fraud, misrepresentation,
intimidation or molestation . . . or that the defendant acted maliciously.” Robert S. Weiss and
Associates, Inc., 208 Conn. at 222-223, quoting Blake v. Levy, 191 Conn. 257, 260-61 (1983).
Thus, “a claim is made out [only] when interference resulting in injury to another is wrongful by
some measure beyond the fact of the interference itself.” Blake, 191 Conn. at 262, quoting Top
Service Body Shop, Inc. v. Allstate Ins. Co., 283 Or. 201, 209 (1978). Here, Laaman claims that
Davis interfered with its business relations with its clients through her tortious conduct, thereby
depriving it of those relationships. (See ECF No. 1 at 59-63).
Davis contends that she is entitled to summary judgment on the claim for two reasons: (1)
Laaman does not clearly plead that the alleged misappropriation of its confidential information
tortiously interfered with its business relations; and (2) Laura Laaman stated in her deposition
that the tortious interference claim was based merely on her opinion rather than admissible
evidence. (See ECF No. 48-1 at 28-29). Neither of these claims has merit. As noted above,
Laaman has presented sufficient evidence to generate a genuine issue of material fact concerning
whether Davis misappropriated its confidential information. Misappropriation of confidential
information is, in turn, a tort. See Smith v. Snyder, 267 Conn. 456, 462 (2004) (mentioning
“common-law theory of misappropriation of trade secrets, which is codified in CUTSA”); Evans
v. General Motors Corp., 277 Conn. 496, 508 (2006) (approving party’s contention that CUTSA
“is rooted in the common law”). Laaman alleged in her complaint that this tortious conduct
resulted in her losing various customers to Paramount. (See ECF No. 1 ¶ 61). Such allegations
therefore plead a viable claim for interference with business relations. See Milso Industries
Corp., 2012 WL 3778978 at *14 (denying summary judgment on interference with business
relationships claim where plaintiff “produced evidence that create[d] genuine issues of material
fact . . . as to whether the defendants used improper means by misappropriating the plaintiff’s
trade secrets to solicit [its] customers. . .”).
Davis’s citations to Laura Laaman’s deposition testimony are also unavailing. Davis
contends that Laura Laaman conceded in her deposition testimony that the tortious interference
with business relations claim was merely based on her opinion. (See ECF No. 48-1 at 29). In the
testimony at issue, Ms. Laaman states as follows in response to a question concerning what
evidence she had suggesting Davis had interfered with her company’s business relations: “The
fact that [Davis] had access to our client base, that she had relationships with them, and that they
were paying us for many years, in most cases, and they left and they started with her.” (See ECF
No. 48-6, Deposition of Laura Laaman (“Laaman Depo.”) at 108). When asked if she could
think of any other evidence, Ms. Laaman responded that she could not think of any “at this
moment.” (Id.). Given the other evidence evinced in the parties’ materials, this lone answer
does not dispel any genuine issue of material fact concerning whether Davis tortiously interfered
with Laaman’s business relationships. Also, the parties’ Local Rule 56(a) statements heavily
dispute the nature of Ms. Laaman’s testimony on the matter, 7 the timing of the departure of
various clients from Laaman, and the reasons for their departure. (Compare Pl.’s L.R. 56(a)2
Stmt. ¶¶ 14-32 with Def.’s L.R. 56(a)1 Stmt. ¶¶ 14-32).
As such, there is a genuine issue of material fact that precludes Davis from attaining
judgment as a matter of law on Laaman’s tortious interference with business relations claim.
For the foregoing reasons, Davis’s motion for summary judgment (ECF No. 48) is
IT IS SO ORDERED.
Michael P. Shea, U.S.D.J.
Laaman argues that Davis’s contention mischaracterizes her testimony. The company
notes in its Local Rule 56(a)(2) statement that Ms. Laaman also stated in her deposition that “it
was her opinion that evidence of the tortious interference would be in [Davis’s] possession” or
on her computer. (See Def.’s L.R. 56(a)1 Stmt., Laaman Depo. at 108).
November 27, 2017
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