Primo Broodstock, Inc. v. American Mariculture, Inc. et al

Filing 456

Final Jury Instructions. (TLP)

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 1 of 58 PageID 9846

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
TB FOOD USA, LLC, a
Delaware Limited Liability
Company,
Plaintiff,
v.

CASE NO. 2:17-cv-9-FtM-29NPM

AMERICAN MARICULTURE, INC.,
a Florida Corporation,
AMERICAN PENAEID, INC., a
Florida Corporation, and
ROBIN PEARL,
Defendants.
AMERICAN MARICULTURE, INC.,
a Florida Corporation,
Third-Party Plaintiff,
v.
PB LEGACY, INC. a Texas
Corporation,
Third-Party Defendant.

COURT’S INSTRUCTIONS TO THE JURY
Members of the jury:
It is my duty to instruct you on the rules of law that you
must use in deciding this case.
When I have finished you will go to the jury room and begin
your discussions, sometimes called deliberations.

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 2 of 58 PageID 9847

I.
Your decision must be based only on the evidence presented
during the trial.

You must not be influenced in any way by either

sympathy for or prejudice against anyone.
You must follow the law as I explain it – even if you do not
agree with the law – and you must follow all of my instructions as
a

whole.

You

must

not

single

out

or

disregard

any

of

the

instructions on the law.

The fact that a corporation or a limited liability company is
involved as a party must not affect your decision in any way. A
corporation, a limited liability company, and all other persons
stand equal before the law and must be dealt with as equals in a
court of justice. When a corporation or limited liability company
is involved, of course, it may act only through people as its
employees; and, in general, a corporation and limited liability
company are responsible under the law for the acts and statements
of its employees that are made within the scope of their duties as
employees of the company.

As I said before, you must consider only the evidence that I
have admitted in the case.

Evidence includes the testimony of

witnesses and the exhibits admitted. But anything the lawyers say
2

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 3 of 58 PageID 9848

is not evidence and is not binding on you.
You should not assume from anything I have said that I have
any opinion about any factual issue in this case.

Except for my

instructions to you on the law, you should disregard anything I
may have said during the trial in arriving at your own decision
about the facts.
Your own recollection and interpretation of the evidence is
what matters. In considering the evidence you may use reasoning
and common sense to make deductions and reach conclusions.

You

should not be concerned about whether the evidence is direct or
circumstantial.
“Direct evidence” is the testimony of a person who asserts
that he or she has actual knowledge of a fact, such as an
eyewitness.
“Circumstantial evidence” is proof of a chain of facts and
circumstances that tend to prove or disprove a fact. There is no
legal difference in the weight you may give to either direct or
circumstantial evidence.

When I say you must consider all the evidence, I do not mean
that you must accept all the evidence as true or accurate. You
should decide whether you believe what each witness had to say,
and how important that testimony was.
3

In making that decision you

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 4 of 58 PageID 9849

may believe or disbelieve any witness, in whole or in part.

The

number of witnesses testifying concerning a particular point does
not necessarily matter.

To decide whether you believe any witness I suggest that
you ask yourself a few questions:
•

Did the witness impress you as one who was telling the
truth?

•

Did the witness have any particular reason not to tell the
truth?

•

Did the witness have a personal interest in the outcome of
the case?

•

Did the witness seem to have a good memory?

•

Did the witness have the opportunity and ability to
accurately observe the things he or she testified about?

•

Did the witness appear to understand the questions clearly
and answer them directly?

•

Did the witness’s testimony differ from other testimony or
other evidence?
You should also ask yourself whether there was evidence that

a witness testified falsely about an important fact. And ask
whether there was evidence that at some other time a witness said
4

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 5 of 58 PageID 9850

or did something, or did not say or do something, that was
different from the testimony the witness gave during this trial.
But keep in mind that a simple mistake does not mean a witness
was not telling the truth as he or she remembers it. People
naturally tend to forget some things or remember them inaccurately.
So, if a witness misstated something, you must decide whether it
was because of an innocent lapse in memory or an intentional
deception.

The significance of your decision may depend on

whether the misstatement is about an important fact or about an
unimportant detail.
When scientific, technical or other specialized knowledge
might be helpful, a person who has special training or experience
in that field is allowed to state an opinion about the matter. But
that does not mean you must accept the witness’s opinion. As with
any other witness’s testimony, you must decide for yourself whether
to rely upon the opinion.

II.
There are four types of claims involved in this case:

Breach

of contract, defamation, misappropriation of trade secrets, and
unfair competition.

Plaintiff TB Food, which is the successor in

interest to Primo Broodstock, Inc. and PB Legacy, Inc., asserts
that defendant AMI has breached the Nondisclosure Agreement (the
5

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 6 of 58 PageID 9851

NDA) as well as the Grow-out Agreement (GOA), and that defendants
AMI,

API,

and

Robin

Pearl

have

made

defamatory

statements,

misappropriated trade secrets, and engaged in unfair competition.
All

defendants

deny

these

affirmative defenses.

claims,

and

have

asserted

various

Additionally, AMI has brought a third-party

complaint against PB Legacy, Inc. asserting claims of breach of
contract.

PB Legacy, Inc. denies the claims, and asserts certain

affirmative defenses.

It is the responsibility of plaintiff TB Food and third-party
plaintiff AMI to prove every essential part of their claims by a
“preponderance

of

the

evidence.”

Similarly,

it

is

the

responsibility of defendants AMI, API, and Robin Pearl and thirdparty defendant PB Legacy, Inc. to prove every essential part of
their affirmative defenses by a preponderance of the evidence.
This is sometimes called the “burden of proof” or the “burden of
persuasion.”
A “preponderance of the evidence” simply means an amount of
evidence that is enough to persuade you that a claim or defense is
more likely true than not true. If the proof fails to establish
any essential part of a claim or defense by a preponderance of the
evidence, you should find against the party asserting that claim
or defense.

When more than one claim or defense is involved, you
6

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 7 of 58 PageID 9852

should consider each claim or defense separately.
In

deciding

whether

any

fact

has

been

proved

by

a

preponderance of the evidence, you may consider the testimony of
all of the witnesses, regardless of who may have called them, and
all of the exhibits received in evidence, regardless of who may
have produced them.

III.
The Court will explain each of the claims and affirmative
defenses, beginning with the breach of contract claims by TB Food.

A. TB FOOD’S BREACH OF CONTRACT CLAIMS AGAINST AMI
In Count I of the Amended Complaint, TB Food alleges that AMI
breached

the

Non-disclosure

Agreement

(NDA)

and

the

Grow-Out

Agreement (GOA) which AMI had entered with Primo Broodstock, Inc.
(Primo), and as a result TB Food, as the successor in interest of
Primo, suffered damages.

The parties agree that the NDA and the

GOA constitute valid, binding contracts.
As to the NDA, TB Food asserts that AMI breached the NDA by:
(1) failing to preserve Primo’s “Confidential Information,”
as defined in the NDA, by
(a) transferring both males and females of
several highly desirable, disease-resistant
7

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 8 of 58 PageID 9853

lines
of
shrimp
to
instrumentalities; and

AMI’s

agents

and

(b) using Dr. Perez to “unlock” Primo’s
genetic lock by conducting a genetic analysis
of the Primo shrimp in AMI’s possession
without Primo’s consent or authorization;
(2) using Primo’s “Confidential Information” in one or more
ways without Primo’s permission;
(3) not ceasing to use Primo’s “Confidential Information”
when requested by Primo; and
(4) not returning Primo’s Confidential Information to Primo
when requested by Primo.
As to the Grow-Out Agreement, TB Food alleges that AMI was
obligated to kill all shrimp Primo left behind at the AMI facility,
and not use, transfer, or sell any live Primo shrimp without
Primo’s advance written authorization.

TB Food alleges that AMI

breached these obligations in the Grow-Out Agreement by
(1) failing to kill the Primo shrimp remaining at AMI’s
facility as of April 30, 2016, and
(2) transferring all right, title, and interest in the live
Primo shrimp and the underlying genetics to API, knowing that API
would sell the Primo shrimp and utilize the underlying genetics to
sell shrimp throughout the world.
AMI responds that it did not breach either the NDA or the
Grow-Out Agreement, and asserts several affirmative defenses.
8

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 9 of 58 PageID 9854

Breach of Contract Elements
To establish its claim for breach of either the NDA or the
Grow-Out Agreement, TB Food, as successor in interest to Primo,
must prove by a preponderance of the evidence all of the following:
(1)

Primo and AMI entered into a contract;

(2)

Primo did all, or substantially all, of the essential

things which the contract required it to do, or Primo was
excused from doing those things;
(3)

All

conditions

required

by

the

contract

for

AMI’s

performance had occurred;
(4)

AMI failed to do something essential which the contract

required it to do, or AMI did something which the contract
prohibited it from doing and that prohibition was essential
to the contract, or both; and
(5)

Primo was damaged by AMI’s conduct.

As previously stated, the parties agree that the NDA and the GOA
constitute

valid,

binding

element is satisfied.

contracts,

and

therefore

the

first

You must decide whether the remaining

elements are satisfied separately for the Non-Disclosure Agreement
and the Grow-Out Agreement, since you are to decide whether AMI
breached one, both, or neither contract.

9

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 10 of 58 PageID 9855

Under

Florida

law,

every

contract

covenant of good faith and fair dealing.

includes

the

implied

Good faith means honesty

in fact in the conduct of the contractual relations.

Thus, every

contract includes an implied agreement that the parties will
perform their obligations in good faith, even if the contract does
not expressly say so.
Meaning of Terms
TB Food and AMI dispute the meaning of several terms contained
in the Grow-Out Agreement

and the handwritten document.

In

deciding what the terms in the documents mean, you must decide
what the parties agreed to at the time the document was created.
In order to determine what the parties agreed to, you should
normally consider the plain and ordinary meaning of the language
used in the document, as well as the circumstances surrounding the
making of the document. The agreement of the parties is determined
only by what the parties said, wrote, or did. You may not consider
the parties’ thoughts or unspoken intentions.
You may use the following principles to resolve the disputes
over terms in the Grow-Out Agreement and handwritten document.
•

You may assume that the parties intended the disputed terms
in their document to have their plain and ordinary meaning,
unless you decide that the parties intended the disputed terms
to have another meaning.
10

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 11 of 58 PageID 9856

•

You should consider the whole document, not just isolated
parts. You should use each part to help you interpret the
others, so that all the parts make sense when taken together.

•

You should consider how the parties acted before and after
the document was created.

•

Disputed terms should be given the meaning used by people in
that trade, business, or technical field, unless the parties
agreed that the disputed terms should have another meaning.

•

You must first attempt to determine the meaning of the
disputed terms in the documents from the evidence presented
and the previous instructions.

If you cannot do so, you may

consider

the

which

party

drafted

disputed

terms

in

the

documents and construe the language against that party.

Modification of GOA Contract
AMI asserts that the Grow-Out Agreement was modified by the
handwritten document signed by Robin Pearl and Randall Aungst, on
behalf of Ken Gervais.

TB Food denies that the relevant terms of

the Grow-Out Agreement were modified.
The parties to a contract may agree to modify its terms. A
modification merely replaces one or more terms of a valid and
existing agreement.

All terms of
11

the original contract not

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 12 of 58 PageID 9857

replaced by a modification remain in effect. All the parties whose
rights or responsibilities are affected by a modification must
consent to the modification. A party cannot modify a contract
unilaterally, and there must be a meeting of the minds on each
modification. You must decide whether a reasonable person would
conclude from the words or conduct of AMI and Primo that they
agreed to modify the Grow-Out Agreement, and if so, what terms
were modified.

A written contract may be modified by a written

agreement, and unless it is prohibited by the original written
contract, may be modified by a subsequent oral agreement between
the parties or by the parties’ subsequent conduct. AMI has the
burden of proving modification by a preponderance of the evidence.
TB Food disputes there was a meeting of the minds as to certain
terms contained in the handwritten document.

Damages
If you find for TB Food on its breach of contract claim as to
either or both contracts, you should award TB Food an amount of
money that the preponderance of the evidence shows will fairly and
adequately

compensate

TB

Food

for

its

damages.

Adequate

compensation to TB Food includes damages incurred by Primo, but
would

not

include

any

damages

corporation, Haimao.
12

incurred

by

TB

Food’s

parent

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 13 of 58 PageID 9858

You shall consider the following types of damages:
1. Compensatory damages: Compensatory damages is that amount of
money which will put TB Food in as good a position as it would
have been if AMI had not breached the contract, and which
naturally result from the breach.
2. Special damages: Special damages is that amount of money which
will compensate

TB Food

for those damages which do not

normally result from the breach of contract. To recover
special damages, TB Food must prove that when the parties
made the contract, AMI knew or reasonably should have known
of the special circumstances leading to such damages.
3. Nominal damages: If you find for TB Food but find that no
damage has been proved, you may award nominal damages. Nominal
damages are damages of an inconsequential amount which are
awarded to vindicate a right where a wrong is established but
no damage is proved, such as $1.00.

Lost profits are one form of special damages. To be entitled
to recover lost profits, TB Food must prove both of the following:
(a)

AMI’s actions caused TB Food to lose profits; and

(b)

TB Food can establish the amount of its lost profits with
reasonable certainty.
13

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 14 of 58 PageID 9859

For TB Food to establish the amount of its lost profits with
reasonable certainty, it must prove that a reasonable person would
be satisfied that the amount of lost profits which TB Food may be
entitled to recover is not simply the result of speculation.
Instead, TB Food must prove that there is some standard by which
the amount of lost profits may be established. TB Food does not
have to be able to prove that the amount of lost profits can be
calculated with mathematical precision, but must show there is a
reasonable basis for determining the amount of the loss. The
standard may be regular market values, or other established data,
by which the amount may be satisfactorily established.

Affirmative Defenses
If you find that TB Food has established all the elements of
its breach of contract claim against AMI as to either or both
contracts, you must then consider AMI’s affirmative defenses.

If

AMI establishes an affirmative defense as to a specific contract,
AMI is entitled to prevail as to the specific contract even if TB
Food has proven its case as to that contract by a preponderance of
the evidence. AMI asserts the following affirmative defenses to
the breach of the NDA and Grow-Out Agreement claim:

14

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 15 of 58 PageID 9860

(1)

Termination of Obligations By Modification

AMI’s first affirmative defense asserts that the obligations
under the NDA and the GOA were terminated by a modification
contained in

the

handwritten document.

To establish

such a

termination, AMI must prove by a preponderance of the evidence
that:
(a)

the

handwritten

document

constitutes

a

modification of the NDA and the Grow-Out Agreement;
and
(b)

one

of

the

agreed-upon

modifications

was

the

termination of the obligations in the NDA and the
Grow-Out Agreement upon which TB Food’s breach of
contract claim is based.

(2)

Accord and Satisfaction By Modification

AMI’s second affirmative defense asserts that the handwritten
document constituted an accord and satisfaction.

To establish an

accord and satisfaction, AMI must prove by a preponderance of the
evidence that:
(a)

the handwritten document constitutes a modification

of the NDA and the Grow-Out Agreement;

15

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 16 of 58 PageID 9861

(b)

the

parties

mutually

intended

to

effect

a

settlement of an existing dispute by entering into
the modification; and
(c)

there

was

substantial

actual

performance

in

accordance with the modification.
If

there

is

no

substantial

actual

modification, then the defense fails.

performance

under

the

If there is substantial

actual performance, such substantial actual performance of the
modification discharges the prior obligations.

(3)

Novation By Modification

AMI’s third affirmative defense asserts that the handwritten
document constituted a novation.
between

the

parties

for

the

A novation is a mutual agreement
discharge

of

a

valid

existing

obligation by the substitution of a new valid agreement.

To

establish its third affirmative defense of novation, AMI must prove
by a preponderance of the evidence:
(a)

the existence of a previously valid contract;

(b)

the handwritten document constitutes a modification

of the NDA and the Grow-Out Agreement;
(c)

that

the

parties

intended

to

original contractual obligation; and
16

extinguish

the

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 17 of 58 PageID 9862

(d)

(4)

the validity of the modification.

Release By Modification

AMI’s fourth affirmative defense asserts that the handwritten
document effected a “release” from all past, present, and future
claims arising out of their contractual obligations under the NDA
and the GOA.

To establish this release defense, AMI must prove

all of the following by a preponderance of the evidence:
(a) the handwritten document constitutes a modification

of the NDA and the GOA;
(b) the agreed-upon modification was that Primo would

abandon past, present and future claims or relinquish
a right that it could have asserted against AMI under
the GOA at the time of the modification; and
(c) Primo

executed

the

handwritten

agreement

voluntarily and knowingly.

(5)

Waiver By Modification

AMI’s

fifth

affirmative

defense

asserts

that

under

the

handwritten document, after April 30, 2016, Primo gave up or waived
its rights under the NDA and GOA to (a) possess the shrimp and the
underlying genetics contained therein at the AMI facility, and (b)
17

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 18 of 58 PageID 9863

control AMI’s possession and use of the remaining shrimp and the
underlying genetics.

To establish this waiver defense, AMI must

prove all of the following by a preponderance of the evidence:
(a)

Primo had a right to possession and use of the

shrimp and the underlying genetics;
(b) Primo knew or should have known it had the right
to

possession

and

use

of

the

shrimp

and

the

underlying genetics; and
(c) Primo freely and intentionally gave up its
right

to

possess

and

use

the

shrimp

and

the

underlying genetics in AMI’s facility after April
30, 2016.
A waiver may be oral or written or may arise from conduct which
shows that Primo gave up a right.

(6)

Equitable Estoppel

AMI’s next two affirmative defenses assert the defense of
equitable estoppel based on Primo’s alleged change of positions.
To establish the first of these two affirmative defenses, AMI must
prove all of the following by a preponderance of the evidence:
(a)

Primo

initially

recognized

that

the

handwritten document terminated both the Nondisclosure Agreement and the Grow-Out Agreement,
18

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 19 of 58 PageID 9864

but later denied that the handwritten document
terminated the Non-disclosure Agreement and the
Grow-Out Agreement;
(b)

AMI relied in good faith upon Primo’s initial

position

that

the

handwritten

document

terminated the NDA and the GOA; and
(c)

AMI’s reliance on Primo’s initial position

caused AMI to change its position for the worse.

AMI’s next affirmative defense also asserts the defense of
equitable estoppel based on Primo’s alleged change of positions.
To establish this affirmative defense, AMI must prove all of the
following by a preponderance of the evidence:
(a)

Primo initially recognized that the handwritten

document gave AMI the right to the shrimp left at the
AMI facility after April 30, 2016, but later denied
that the handwritten document gave AMI that right;
(b)

AMI relied in good faith upon Primo’s initial

position; and
(c)

AMI’s reliance on Primo’s initial position

caused AMI to change its position for the worse.

19

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 20 of 58 PageID 9865

(7)

In Pari Delicto

AMI’s next affirmative defense is referred to as the in pari
delicto defense, which means “in equal fault.”

AMI asserts that

Primo was at least equally at fault in the same wrongdoing, and
therefore may not recover damages resulting from that wrongdoing.
Specifically, AMI claims that any damages alleged by TB Food result
primarily or equally from Primo’s wrongdoing, including Primo’s
prior breaches of the Grow-Out Agreement and the handwritten
document modifications.

To establish this defense, AMI must prove

the following by a preponderance of the evidence:
(a) Primo participated in the same alleged wrongdoing as
AMI; and
(b)

Primo

bears

responsibility

for

at
the

least

substantially

damages

it

claims

equal

to

have

suffered from the alleged breach of contracts.

(8)

Failure to Mitigate Damages

AMI’s next affirmative defense asserts that TB Food failed to
mitigate its damages.
must

prove

by

a

To establish this affirmative defense, AMI

preponderance

of

the

evidence

that

damages

resulting from a breach of contract could have been avoided with
reasonable

effort

or

expenditures.

You

should

consider

the

reasonableness of TB Food’s efforts in light of the circumstances
20

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 21 of 58 PageID 9866

facing it at the time, including its ability to make the efforts
or expenditures without undue risk or burden.
If AMI breached

the

contract

and

the

breach

caused

damages, TB Food is not entitled to recover for those damages
which AMI proves TB

Food

could

have

avoided

with

reasonable

efforts or expenditures. If TB Food made reasonable efforts to
avoid the damages caused by the breach, then your award should
include reasonable amounts that it spent for this purpose.

21

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 22 of 58 PageID 9867

B. TB FOOD’S DEFAMATION CLAIM AGAINST AMI, API, AND ROBIN PEARL
In Count III of the Amended Complaint, TB Food alleges that
AMI, API, and Robin Pearl made false statements in China which
constituted defamation of Primo.

Defamation is the unprivileged

publication of false statements which naturally and proximately
result in injury to another.
TB Food asserts that publication of the following three
statements each constituted defamation:
(1)

The breeder shrimp that Primo was offering for
sale,
including
through
its
exclusive
distributor in China (i.e., Haimao), are “fake”
and not the “real Primo” shrimp;

(2)

Primo had abandoned all intellectual property
rights in the shrimp it left behind with AMI on
April 30, 2016; and

(3)

Primo had given the full bank of all its genetic
lines to AMI under the Grow-Out Agreement, while
retaining none of the lines for itself at its
headquarters in Brookshire, Texas.

The first issues for your determination about each statement
are whether TB Food has shown by a preponderance of the evidence
that:
(1) a defendant made, published, or broadcasted any
of these statements; and, if so,

22

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 23 of 58 PageID 9868

(2) the statements were in some significant respect
a false statement of fact and tended to injure
Primo’s, or its successor in-interest TB Food’s,
business interests or reputation.
“Publication” of defamatory matter is communication of the
statement to a third person.
A statement is “in some significant respect” false if its
substance or gist conveys a materially different meaning than the
truth would have conveyed. In making this determination, you should
consider the context in which the statement is made and disregard
any minor inaccuracies that do not affect the substance of the
statement.

If

you

find

that

each

of

these

elements

of

TB

Food’s

defamation claim has been satisfied as to any of the statements,
you must next determine whether TB Food has shown a third element
of the claim by clear and convincing evidence:
(3)

That at the time the statement was made, a defendant
knew the statement was false or had serious doubts
as to its truth.

“Clear and convincing evidence” differs from the “preponderance of
the evidence” in that it is more compelling and persuasive.
23

Clear

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 24 of 58 PageID 9869

and convincing evidence is evidence that is precise, explicit,
lacking in confusion, and of such weight that it produces a firm
belief or conviction, without hesitation, about the matter at
issue.
You must make separate determinations of all these issues for
each of the three defendants and each of the allegedly defamatory
statements.

Damages
If you find for TB Food on its claim for defamation, you
should award it an amount of money that the preponderance of the
evidence shows will fairly and adequately compensate it for damages
caused by the statement(s).

A statement is a cause of damages if

it directly and in natural and continuous sequence produces or
contributes substantially to producing such damage.
If you find for TB Food, you should consider the following
components of damage:

Any injury to business or reputation in the

past or to be experienced in the future.
There is no exact standard for fixing the compensation to be
awarded on account of such element of damage. Any award should be
fair and just in the light of the evidence.

24

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 25 of 58 PageID 9870

Affirmative Defenses
If you find that TB Food has established all the elements of
its defamation claim against any of the defendants, you must then
consider their affirmative defense to TB Food’s defamation claim.
Release:

Defendants’ affirmative defense asserts that the

handwritten document effected a “release” from all past, present,
and future claims arising out of their contractual obligations
under the NDA and the GOA.

To establish this release defense,

defendants must prove all of the following by a preponderance of
the evidence:
(a)

the

handwritten

document

constitutes

a

modification of the NDA and the GOA;
(b)

the agreed-upon modification was that Primo

would abandon past, present and future claims or
relinquish a right that it could have asserted
against defendants under the GOA at the time of
the modification; and,
(c)

Primo

executed

the

handwritten

voluntarily and knowingly.

25

document

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 26 of 58 PageID 9871

C. TB FOOD’S FEDERAL TRADE SECRET MISAPPROPRIATION CLAIM AGAINST
AMI, API AND ROBIN PEARL
In Count IV of the Amended Complaint, TB Food claims that
defendants AMI, API and Robin Pearl misappropriated one or more of
TB Food’s trade secrets in violation of a federal statute.

To

prove its claim, TB Food must prove the following facts by a
preponderance of the evidence:
(1)

TB Food, as successor in interest to Primo, was the owner

of a trade secret;
(2)

the trade secret relates to a product or service

used in, or intended for use in, interstate or foreign
commerce; and
(3)

defendants misappropriated that trade secret.

Owner
Federal law defines the term “owner” as the person or entity
which has rightful legal or equitable title to, or license in, the
trade secret.

Trade Secret
A trade secret is defined as all forms and types of financial,
business,

scientific,

technical,

information, if

26

economic,

or

engineering

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 27 of 58 PageID 9872

(1)

the owner thereof has taken reasonable measures to

keep such information secret; and
(2)

the information derives independent economic value,

actual or potential, from not being generally known
to, and not being readily ascertainable through proper
means, by another person who can obtain economic value
from the disclosure or use of the information.
A trade secret may include patterns, plans, compilations, program
devices,

formulas,

designs,

prototypes,

methods,

techniques,

processes, procedures, programs, or codes. A trade secret may be
tangible or intangible. A trade secret does not have to be stored,
compiled, or memorialized. But if it is, it does not have to be
stored, compiled, or memorialized in any particular manner, such
as physically, electronically, graphically, photographically, or
in writing.
To establish that any of their asserted matters constitute a
trade secret, TB Food must prove the following by a preponderance
of the evidence:
(1)

The matter is not generally known to another person who

can obtain economic value from the disclosure or use of
the information;
(2)

Another

person

cannot

through proper means;
27

readily

discover

the

matter

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 28 of 58 PageID 9873

(3)

The matter derives independent economic value, actual or

potential, from not being known to, and not being readily
ascertainable through proper means by, another person who
can obtain economic value from the disclosure or use of
the information; and
(4)

Primo had taken reasonable steps to keep the matter

secret.

Whether another person or company has also come up with the
alleged trade secret is not relevant to the trade secret analysis
here, unless someone who rightly possessed the secret has disclosed
the idea into the public domain, thereby destroying its status as
a trade secret. This is why two companies may simultaneously hold
a valid trade secret in the same information.

Interstate or Foreign Commerce
Use or intended use of the product or service in interstate
commerce means that the product or service involves travel, trade,
transportation, or communication between a place in one state and
a place in another state. Use of the product or service in foreign
commerce means that the product or service involves travel, trade,
transportation, or communication between a place in the United
States and a place outside of the United States.
28

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 29 of 58 PageID 9874

Misappropriation
“Misappropriation” of a trade secret occurs when someone
acquires, discloses, or uses a trade secret without the right to
do so.

For TB Food to prove that defendants misappropriated a

trade secret belonging to Primo, and then to TB Food as Primo’s
successor in interest, TB Food must prove the following by a
preponderance of the evidence:
1. Defendants acquired, disclosed, or used a trade secret
belonging to Primo, and then belonging to TB Food as
Primo’s successor in interest, without Primo’s or TB
Food’s express or implied consent; and
2. Defendants knew or should have known that the trade
secret:
(a)

was

derived

from

or

through

a

third

person who used improper means to acquire
the trade secret; or
(b)

was acquired under circumstances giving

rise to a duty to maintain the secrecy of
one or more of its stated trade secrets or
limit the use of one or more of its stated
trade secrets, or
(c)

was

derived

from

or

through

a

third

person who was under a duty to maintain the
29

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 30 of 58 PageID 9875

secrecy of or limit the use of one or more
of its stated trade secrets.
Each

act

of

acquiring,

disclosing,

or

using

a

trade

secret

belonging to Primo, or to TB Food as successor in interest, may
constitute a separate act of misappropriation.

“Improper

means”

may

include

theft,

bribery,

misrepresentation, and breach or inducement of a breach of duty to
maintain secrecy.
reverse

“Improper means” does not, however, include

engineering.

Reverse

engineering

is

the

process

of

starting with the known product and working backward to determine
the process which aided

in its development, and may include

dissecting the product or having it dissected.
“Express consent” is consent that is clearly and unmistakably
stated.
“Implied consent” is consent that is inferred from one’s
conduct rather than from one’s direct expression.
There are no technical limitations on the nature of the
conduct that constitutes “use” of a trade secret. As a general
matter, any exploitation of the trade secret that is likely to
result in injury to the trade secret owner or enrichment to the
defendant is a “use.”

For example, marketing goods that embody

the trade secret, employing the trade secret in manufacturing or
30

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 31 of 58 PageID 9876

production, or relying on the trade secret to assist or accelerate
research or development all constitute “use.”
The unauthorized use need not extend to every aspect or
feature of the trade secret; use of any substantial portion of the
secret is sufficient to subject the actor to liability. Similarly,
the actor need not use the trade secret in its original form. Thus,
an actor is liable for using a trade secret with independently
created

improvements

or

modifications

if

the

result

is

substantially derived from the trade secret. However, if the
contribution made by the trade secret is so slight that the actor’s
product or process can be said to derive from other sources of
information or from independent creation, the trade secret has not
been

“used”

for

purposes

of

imposing

liability

for

alleged

misappropriation of a trade secret.
Any conduct by the actor that enables another to learn the
trade secret is “disclosure” of the secret.

Damages
If TB Food has proved its claim for misappropriation of trade
secrets under federal law, you must decide the issue of damages.

31

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 32 of 58 PageID 9877

(1)

If

Compensatory Damages
your

verdict

is

for

TB

Food

on

its

claims

for

misappropriation of trade secrets under the federal statute, you
should award TB Food an amount of money that a preponderance of
the evidence shows will fairly and adequately compensate TB Food
for the damage legally caused by defendants’ misappropriation of
the trade secrets. Adequate compensation to TB Food includes
damages incurred by Primo, but would not include any damages
incurred by TB Food’s parent corporation, Haimao.

To the extent that it is not duplicative (that is, double
counting), you may award either:
(a) the amount
i.

of TB Food’s actual damages suffered as a
result of defendants’ misappropriation of
Primo’s trade secrets; and

ii.

of defendants AMI, API, or Pearl’s unjust
enrichment that is a result of their
misappropriation of Primo’s trade secrets,
even if that amount is more than the actual
damages suffered by TB Food.

OR
(b)

the amount of a reasonable royalty payable to TB

Food for defendants’ unauthorized disclosure or use
of Primo’s or TB Food’s trade secrets.

32

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 33 of 58 PageID 9878

Damages for actual loss include but are not limited to TB
Food’s lost revenue, lost profits, lost sales, lost customers, or
lost market share. These are just some examples.
Damages for unjust enrichment include the recovery of the
full total of defendants’ profits, or the amount corresponding to
the

actual

contribution

Plaintiff's

trade

secret

made

to

defendants’ commercial success caused by the misappropriation, or
both.
In determining the amount of unjust enrichment, you may
compare the costs to defendants of achieving the same result with
and without the improper use of the trade secret and award the
difference to TB Food.

This is called the “head start” measurement

of damages.
Additionally, in determining the amount of unjust enrichment,
you may, but are not required to, limit any damages for unjust
enrichment to the period of time it would have taken defendants to
independently develop the product without the benefit of Primo’s
or TB Food’s trade secrets. This is called the “head start” time
period.
Damages in the amount of a reasonable royalty is the price
that would be agreed upon by a willing buyer and a willing seller
for the use made of the trade secret by one or more of the
Defendants.

The

method

is

not
33

limited

to

a

percentage

of

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 34 of 58 PageID 9879

defendants’

sales

or

profits

and

may

instead

rely

on

any

appropriate measure of the fair market value of defendants’ use.

(2)

Exemplary Damages

If you find that defendants have engaged in willful and
malicious misappropriation of the trade secret, you may award
“exemplary” damages, that is, damages meant to make an example of
defendants.
Exemplary damages may be awarded in an amount not more than
two (2) times the amount awarded for compensatory damages (i.e.
the amount awarded for either actual damages plus unjust enrichment
or for a reasonable royalty).
Affirmative Defenses
If you find that TB Food has established all the elements of
its federal trade secret misappropriation claim against any of the
defendants, you must then consider their affirmative defenses to
this claim.

Release By Modification, Waiver By Modification,
Novation by Modification, Equitable Estoppel, In Pari
Delicto, Failure to Mitigate Damages
Defendants asserts that TB Food does not have a right to
assert a claim for federal trade secret misappropriation because
34

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 35 of 58 PageID 9880

the handwritten document effected a release by modification, a
waiver by modification, and a novation by modification, and because
equitable estoppel applied, the parties were in pari delicto, and
there was a failure to mitigate damages.

I have previously

instructed

these

defenses.

you

regarding

These

prior

the

elements

instructions

of

apply

affirmative

equally

to

these

affirmative defenses as asserted in connection with the federal
trade secrets claim.

D. TB FOOD’S FLORIDA MISAPPROPRIATION OF TRADE SECRETS AGAINST
AMI, API AND ROBIN PEARL
In Count V of the Amended Complaint, TB Food alleges that
defendants AMI, API and Robin Pearl misappropriated Primo’s, and
TB Food’s as successor in interest, trade secrets in violation of
the Florida Uniform Trade Secrets Act, which I will refer to as
simply the Florida trade secret statute.
the

Florida

trade

secret

statute,

TB

To prove a claim under
Food

must

prove

by

a

preponderance of the evidence that (1) it possessed a trade secret,
and (2) the trade secret was misappropriated.

Trade Secret
Florida law defines a trade secret as

35

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 36 of 58 PageID 9881

information
...
that:
(a)
[d]erives
independent economic value ... 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 (b) [i]s the subject of
efforts
that
are
reasonable
under
the
circumstances to maintain its secrecy.
A trade secret may include information such as a formula, pattern,
compilation, program, device, method, technique, or process.

To

prove that Primo and/or TB Food had a trade secret, TB Food must
prove by a preponderance of the evidence that:
(1)

Information belonging to Primo:
(a)

derived

actual

or

potential

independent

economic value from not being generally known
to other persons who could obtain value from
its disclosure or use; and
(b)

was not readily ascertainable by proper means

by other persons; and
(2)

Primo took reasonable steps, under the circumstances, to
maintain the secrecy of any of its trade secrets.

Misappropriation
“Misappropriation” of a trade secret occurs when someone
acquires, discloses, or uses a trade secret without the right to
do so.

To establish misappropriation of a trade secret belonging
36

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 37 of 58 PageID 9882

to Primo and/or TB Food, TB Food must prove the following by a
preponderance of the evidence:
(1)

Defendants acquired, disclosed, or used a trade

secret belonging to Primo without Primo’s express or
implied consent; and
(2)

Defendants knew or should have known that the trade

secret:
(a)

was acquired through improper means; or

(b)

was

disclosed

acquired

by

or

used

Defendants

after

using

being

improper

means; or
(c)

was disclosed or used when Defendants

knew or should have known that the knowledge
of the trade secret came from or through a
person

who

had

used

improper

means

to

acquire the trade secret; or
(d)

was disclosed or used when Defendants

knew or should have known that the knowledge
of

the

trade

secret

was

acquired

by

Defendants under circumstances where they
had a duty to maintain its secrecy or limit
its use; or

37

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 38 of 58 PageID 9883

(e)

was disclosed or used when Defendants

knew or should have known that the knowledge
of the trade secret came from or through a
person

who

had

a

duty

to

Plaintiff

to

maintain its secrecy or limit its use.
Each act of acquiring, disclosing, or using that used a trade
secret

belonging

to

Primo

may

constitute

a

separate

act

of

misappropriation. You must unanimously agree as to which acts, if
any, constitute misappropriation of a trade secret.
The Court has previously instructed you on the meanings of
the terms “improper means,” “express consent,” “implied consent,”
“use,” and “disclosure.”

These same instructions apply to this

claim.
Damages
If TB Food has proved its claim for misappropriation of trade
secrets under the Florida statute, you must decide the issue of
damages.
If

your

verdict

is

for

TB

Food

on

its

claims

for

misappropriation of trade secrets, you should award TB Food an
amount of money that a preponderance of the evidence shows will
fairly and adequately compensate TB Food for the damage legally
caused by defendants’ misappropriation of TB Food’s trade secrets.
38

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 39 of 58 PageID 9884

This may include both compensatory and exemplary damages.

The

instructions I gave you concerning the federal trade secret claim
regarding these damages also govern damages under the Florida trade
secret statute.
Affirmative Defenses
If you find that TB Food has established all the elements of
its federal trade secret misappropriation claim against any of the
defendants, you must then consider their affirmative defenses to
this claim.

Defendants raise the same affirmative defenses to the

Florida trade secret claim as they do with the federal trade secret
claim - release by modification, waiver by modification, novation
by modification, equitable estoppel, in pari delicto, and failure
to mitigate damages.
the

elements

instructions

of
apply

I have previously instructed you regarding

these

affirmative

equally

to

these

defenses.
affirmative

These

prior

defenses

asserted in connection with the Florida trade secrets claim.

39

as

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 40 of 58 PageID 9885

INTRODUCTION TO UNFAIR COMPETITION CLAIMS
The last three claims brought by TB Food allege unfair
competition

against

all

three

defendants

similar legal causes of action.
defendants
statements

engaged
in

in

in

referred to as the Lanham Act.

different

but

Count VI alleges that all three

unfair

advertising

under

competition
violation

of

by
a

making

federal

false
statute

Count VII alleges that all three

defendants engaged in unfair competition under the Florida common
law.

Count VIII alleges that all three defendants engaged in

unfair competition in violation of a statute referred to as the
Florida Unfair and Deceptive Trade Practices Act.

40

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 41 of 58 PageID 9886

E. TB FOOD’S FEDERAL CLAIM FOR FALSE ADVERTIZING UNDER LANHAM
ACT AGAINST ALL DEFENDANTS
In Count VI of the Amended Complaint, TB Food alleges that
AMI, API and Robin Pearl engaged in false advertising in violation
of federal law by making false or misleading statements to a number
of

commercial

enterprises

about

defendants’

rights

over

a

significant portion of Primo’s shrimp and intellectual property,
which tended to confuse consumers.

Elements
To establish its claim of false advertising in violation of
federal law, TB Food must prove by a preponderance of the evidence
all of the following:
(1)

Defendants made false or misleading statements of
fact in a commercial advertisement or promotion
about their own or another’s product or services;

(2)

These statements either deceived
capacity to deceive consumers;

(3)

The deception was material, in that it was likely
to influence a consumer’s purchasing decision;

(4)

Defendants caused the false or misleading statement
to enter interstate or foreign commerce.

(5)

TB Food has been or is likely to be injured as a
result of the false or misleading statement either
by direct diversion of sales from themselves to
Defendants, or by lessening of the goodwill and
reputation associated with TB Food’s products.

41

or

had

the

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 42 of 58 PageID 9887

Damages
To recover damages for violation of the Lanham Act, TB Food
must prove two things by a preponderance of the evidence:
(1)

Defendants’ acts of false advertising caused TB Food
injury;

(2)

TB Food was actually damaged.

If you find that TB Food has proved these by a preponderance
of the evidence, then you must consider what amount of money to
fairly and reasonably award to TB Food as damages. Damages consist
of the amount of money required to compensate TB Food for the
injury caused by defendants’ acts of false advertising, but would
not include any damages incurred by TB Food’s parent corporation,
Haimao. You may consider the following types of damages:

(1) TB Food’s Lost Profits On Lost Sales. This consists of the
revenue TB Food would have earned but for a defendant’s false
advertising, less the expenses TB Food would have sustained
in earning those revenues.
(2) Loss Of Goodwill. Goodwill is consumer recognition or drawing
power of a brand or product. In determining loss of goodwill,
you should compare the value of TB Food’s goodwill before

42

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 43 of 58 PageID 9888

the acts of false advertising with the value of TB Food’s
goodwill after the acts of false advertising.
(3) Defendants’ Profits. In addition to TB Food’s damages, TB
Food may recover the profits defendants gained from the acts
of false advertising. You may not, however, include in any
award

of

profits

any

amount

that

you

considered

in

determining actual damages. Profit is determined by deducting
expenses from gross revenue. Gross revenue is all of the
money

a

Defendant

received

due

to

its

acts

of

false

advertising. TB Food is required only to prove a Defendant’s
gross revenue. A Defendant is required to prove any expenses
that it argues should be deducted in determining its profits.
TB Food is entitled to recover a Defendant’s total profits
from its acts of false advertising unless a Defendant proves
that a portion of the profit is due to factors other than
acts of false advertising.
If you find that defendants engaged in false advertising under
the Lanham Act, you must also determine whether TB Food has proven
that, at the time defendants engaged in the false advertising, a
Defendant acted willfully.
A Defendant acts willfully if it knew that a Defendant had
engaged in false or deceptive advertising or if a Defendant acted
with indifference to Plaintiff’s rights. The Lanham Act permits
43

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 44 of 58 PageID 9889

tripling of an award of damages in a case in which a Defendant
acted willfully.

Affirmative Defenses
If you find that TB Food has established all the elements of
its

federal

false

advertising

claim,

you

must

then

consider

defendants’ affirmative defenses to this claim.
Defendants

asserts

four

affirmative

defenses

against

TB

Food’s false advertising claim – release by modification, waiver
by modification, in pari delicto, and abandonment by modification.
I have previously instructed you regarding the elements of the
first

three

instructions

of

these

apply

affirmative

equally

to

these

defenses.
affirmative

These

prior

defenses

as

asserted in connection with the Lanham Act claim.

As to the fourth affirmative defense, defendants assert that
Primo abandoned the shrimp at AMI’s facilities by failing to take
delivery of them by the April 30, 2016 date set forth in the
handwritten document.

To establish this affirmative defense, the

defendants must prove all of the following by a preponderance of
the evidence:

44

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 45 of 58 PageID 9890

(a)

The handwritten document required Primo to

remove its shrimp from the AMI facility by April
30, 2016;
(b)

Primo failed to remove its shrimp from the AMI

facility by April 30, 2016; and
(c)

Primo’s

failure

to

remove

the

shrimp

constituted the intent to abandon the shrimp.

45

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 46 of 58 PageID 9891

F. TB FOOD’S FLORIDA CLAIMS FOR UNFAIR COMPETITION AGAINST ALL
DEFENDANTS
In Counts VII and VIII of the Amended Complaint, TB Food has
alleged unfair competition claims against all defendants under
both the Florida common law and the Florida Deceptive and Unfair
Trade Practices. The legal standards applied to these state law
claims are the same.

Unfair competition covers a wide range of unlawful, unfair,
deceptive or fraudulent acts, including false advertising, trade
libel, misappropriation of trade secrets and infringement of the
right of publicity.

TB Food claims the following business conduct by Defendants
were acts of unfair competition which were contrary to honest
practice in commercial matters, or were deceptive acts or unfair
practices:
(1)

Defendants used Primo’s confidential information that
Defendants gained under the NDA without Primo’s
consent to displace and take Primo’s place in the
broodstock market in Asia by taking and using Primo’s
confidential information to create API’s founding and
subsequent broodstock stocks; and

(2)

Defendants engaged in deceptive or fraudulent conduct
by making false statements that tended to deceive
consumers and/or interfere with Primo’s sales or
potential sales in China.
46

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 47 of 58 PageID 9892

For TB Food’s claim that Defendants used Primo’s confidential
information that Defendants gained under the NDA without Primo’s
consent, TB Food has the burden of proving the following by a
preponderance of evidence:
(1)

Defendants are a competitor of the TB Food;

(2)

Defendants had a duty under the Non-Disclosure
Agreement
not
to
use
or
disclose
Primo’s
confidential
information
without
Primo’s
permission;

(3)

Defendants breached this duty; and

(4)

TB Food has suffered damages.

For TB Food’s claim that Defendants engaged in deceptive or
fraudulent conduct by making false statements that tended to
deceive consumers and/or interfere with Primo’s sales or potential
sales in China, TB Food has the burden of proving each of the
following elements by a preponderance of the evidence:
(1)

Defendants are a competitor of the TB Food;

(2)

Defendants
conduct;

(3)

The conduct
confusion:

engaged

caused

in

deceptive

a

likelihood

or

of

dishonest

consumer

(a) between Primo and AMI/API’s broodstock
shrimp; and/or
(b) as to the origin of API’s broodstock
shrimp, meaning who had the real Primo;
47

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 48 of 58 PageID 9893

(4)

TB Food has been damaged as a result.

Any damages incurred by TB Food includes damages incurred by
Primo, but would not include any damages incurred by TB Food’s
parent corporation, Haimao.

Damages
To recover damages for a violation, TB Food must prove two
things by a preponderance of the evidence:
(1)

Defendants’ acts of unfair competition caused TB Food
injury;

(2)

TB Food was actually damaged.

If you find that TB Food has proved these by a preponderance
of the evidence, then you must consider what amount of money to
fairly and reasonably award to TB Food as damages. Damages consist
of the amount of money required to compensate TB Food for the
injury caused by defendants’ acts of unfair competition, but would
not include any damages incurred by TB Food’s parent corporation,
Haimao. You may consider the following types of damages: TB Food’s
lost profits on lost sales; the loss of goodwill; and defendants’
profits.

My previous instructions as to the meanings of these

terms apply equally to the unfair competition claims.
48

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 49 of 58 PageID 9894

Affirmative Defenses
If you find that TB Food has established all the elements of
its unfair competition claims, you must then consider defendants’
affirmative defenses to these claims.
Defendants asserts the following affirmative defenses against
TB Food’s unfair competition claims – release by modification,
waiver by modification, abandonment by modification, novation by
modification, in pari delicto, and failure to mitigate damages. I
have previously instructed you regarding the elements of these
affirmative defenses.

These prior instructions apply equally to

these affirmative defenses as asserted in connection with the
unfair competition claims.

49

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 50 of 58 PageID 9895

IV.
AMI’S BREACH OF CONTRACT CLAIM AGAINST PB LEGACY, INC.

AMI has brought what is referred to as a third-party complaint
against third-party defendant PB Legacy, Inc. (PB Legacy).

This

third-party complaint alleges a breach of contract claim by AMI
against PB Legacy.
AMI asserts that PB Legacy breached the GOA as originally
entered or as modified by the handwritten document.

PB Legacy,

the successor in interest to Primo Broodstock, Inc., denies that
it breached the contract, either as originally entered or as
modified, and raises certain affirmative defenses.

To establish its claim for breach of contract, AMI must prove
by a preponderance of the evidence all of the following:
(1) Primo and AMI entered into a contract known as the GOA;
(2) AMI did all, or substantially all, of the essential things
which the contract required it to do, or AMI was excused
from doing those things;
(3) All conditions required by the contract for PB Legacy’s
performance had occurred;

50

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 51 of 58 PageID 9896

(4) PB

Legacy

failed

to

do

something

essential

which

the

contract required it to do, or PB Legacy did something
which

the

contract

prohibited

it

from

doing

and

that

prohibition was essential to the contract, or both; and
(5) AMI was damaged by PB Legacy’s conduct.
Under

Florida

law,

every

contract

covenant of good faith and fair dealing.

includes

the

implied

Good faith means honesty

in fact in the conduct of the contractual relations.

Thus, every

contract includes an implied agreement that the parties will
perform their obligations in good faith, even if the contract does
not expressly say so.

Damages
If you find for AMI on its breach of contract claim as to the
original Grow-Out Agreement or the Grow-Out Agreement as modified
by the handwritten document, you should award AMI an amount of
money that the preponderance of the evidence shows will fairly and
adequately compensate AMI for its damages.
You shall consider the following types of damages:
1.

Compensatory

damages:

Compensatory

damages

is

that

amount of money which will put AMI in as good a position as it
would have been if PB Legacy had not breached the contract, and
which naturally result from the breach.
51

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 52 of 58 PageID 9897

2.

Nominal damages: If you find for AMI but find that no

damage has been proved, you may award nominal damages. Nominal
damages are damages of an inconsequential amount which are awarded
to vindicate a right where a wrong is established but no damage is
proved, such as $1.00.

Affirmative Defenses
PB Legacy asserts several affirmative defenses

regarding

AMI’s breach of contract claim.
(1)

Waiver

In its first affirmative defense, PB Legacy asserts that AMI
does not have a right to claim breach of contract for the GrowOut Agreement because AMI gave up or waived its right to require
PB Legacy to perform under the Grow-Out Agreement.
To establish this waiver defense, PB Legacy must prove by a
preponderance of the evidence all of the following:
(a)

AMI had a right to require Primo to ship shrimp

from the AMI facility;
(b)

AMI had a right to require Primo to provide PL’s

for the hatchery;
(c)

AMI had a right to require Primo to implement a

breeding program as described in the GOA;
(d)

AMI had a right to require Primo to make payment;
52

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 53 of 58 PageID 9898

(e)

AMI freely and intentionally gave up its right to

require Primo to perform.
(2)

Estoppel

In its next affirmative defense, PB Legacy asserts equitable
estoppel against AMI. To establish this defense, PB Legacy must
prove by a preponderance of the evidence all of the following:
(a) AMI took action indicating Primo did not have to:
i.

ship shrimp to or from AMI’s facility as
described by the Grow-Out Agreement;

ii.

implement a breeding program at the AMI
facility as described in the GOA; or

iii.

make certain payments of amounts that were
due under the Grow-Out Agreement;

(b)

PB Legacy relied in good faith upon AMI’s action;

and
(c)

PB Legacy’s reliance on AMI’s action caused PB

Legacy to change its position for the worse.

(3)

Ratification

Next,

PB

Legacy

asserts

ratification against AMI.

the

affirmative

defense

of

When a party materially breaches the

contract but does not indicate any intention to renounce or
repudiate the remainder of the contract, the non-breaching party
53

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 54 of 58 PageID 9899

can elect to either continue to perform or cease to perform. If
the nonbreaching party elects to perform, the non-breaching party
is deprived of an excuse for ceasing performance as the nonbreaching party has ratified the remainder of the contract as being
valid and waived the right to rescind the contract.
To

establish

this

defense,

PB

Legacy

must

prove

by

a

preponderance of the evidence all of the following:
(a) Primo performed one or more acts which breached the GrowOut

Agreement,

specifically:

(i)

to

ship

developed

broodstock from the AMI facilities, (ii) provide shrimp
breeders for the hatcheries, (iii) implement a breeding
program as described in the Grow Out Agreement, and (iv)
make payment of amounts that were due under the Grow-Out
Agreement;
(b) AMI knew of these acts or omissions;
(c) AMI

knew

that

it

could

rescind

the

Grow-Out

Agreement

because of these acts; and
(d) AMI accepted the acts or omissions and/or expressed through
words or conduct that it accepted these acts or omissions
and

chose

to

continue

to

perform

under

the

Grow-Out

Agreement.
(4)

Estoppel

In its last affirmative defense, PB Legacy asserts equitable
54

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 55 of 58 PageID 9900

estoppel against AMI. To establish this defense, PB Legacy must
prove by a preponderance of the evidence all of the following:
(a) AMI represented to Primo that Primo did not have to
remove all Primo animals from the AMI facility by April
30, 2016.
(b)

PB

Legacy

relied

in

good

faith

upon

AMI’s

representations; and
(c)

PB

Legacy’s

reliance

on

AMI’s

representations

caused PB Legacy to change its position for the worse.

V.
Your verdict must be unanimous – in other words, you must all
agree. Your deliberations are secret, and you will never have to
explain your verdict to anyone.
Each of you must decide the case for yourself, but only after
fully considering the evidence with the other jurors. So you must
discuss the case with one another and try to reach an agreement.
While you are discussing the case, do not hesitate to reexamine
your own opinion and change your mind if you become convinced that
you were wrong. But do not give up your honest beliefs just because
others think differently or because you simply want to get the
case over with.
55

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 56 of 58 PageID 9901

Remember that, in a very real way, you are judges – judges of
the facts. Your only interest is to seek the truth from the
evidence in the case.

During your deliberations, you must not communicate with or
provide any information to anyone by any means about this case.
You may not use any electronic device with access to the internet,
or any social media such as Facebook or Twitter to communicate to
anyone any information about this case or to conduct any research
about this case until I accept your verdict. In other words, you
cannot talk to anyone on the phone, correspond with anyone, or
electronically communicate with anyone about this case. You can
only discuss the case in the jury room with your fellow jurors
during deliberations. I expect you will inform me as soon as you
become aware of another juror’s violation of these instructions.
You may not use these electronic means to investigate or
communicate about the case because it is important that you decide
this case based solely on the evidence presented in this courtroom.
Information on the internet or available through social media might
be wrong, incomplete, or inaccurate. You are only permitted to
discuss the case with your fellow jurors during deliberations
because they have seen and heard the same evidence you have. In
our judicial system, it is important that you are not influenced
56

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 57 of 58 PageID 9902

by anything or anyone outside of this courtroom. Otherwise, your
decision may be based on information known only by you and not
your fellow jurors or the parties in the case. This would unfairly
and adversely impact the judicial process.

When you get to the jury room, choose one of your members to
act as foreperson. The foreperson will direct your deliberations
and speak for you in court.
A verdict form has been prepared for your convenience.
[Explain verdict]
Take the verdict form with you to the jury room. When you
have all agreed on the verdict, your foreperson must fill in the
form, sign it and date it. Then you will return it to the courtroom.
If you wish to communicate with me at any time, please write
down your message or question and give it to the court security
officer. The court security officer will bring it to me and I will
respond as promptly as possible – either in writing or by talking
to you in the courtroom. Please understand that I may have to talk
to the lawyers and the parties before I respond to your question
or message, so you should be patient as you await my response. But
I caution you not to tell me how many jurors have voted one way or
the other at that time. That type of information should remain in
the jury room and not be shared with anyone, including me, in your
57

Case 2:17-cv-00009-JES-NPM Document 456 Filed 11/17/21 Page 58 of 58 PageID 9903

note or question.

58