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

Filing 553

OPINION and ORDER denying defendants American Mariculture, Inc., American Penaeid, Inc., and Robin Pearl's 483 Motion for New Trial; denying defendants American Penaeid, Inc. and Robin Pearl's 484 Motion for Judgment Notwithstandi ng Verdict; denying plaintiff TB Food USA, LLC's 485 Motion for Permanent Injunction; denying plaintiff TB Food USA, LLC's 486 Motion for Judgment Notwithstanding Verdict; denying defendants American Mariculture, Inc., American Penaei d, Inc., and Robin Pearl's 487 Motion for Sanctions; granting in part and denying in part plaintiff TB Food USA, LLC's 488 Motion to Alter Judgment; granting in part and denying in part defendants American Mariculture, Inc., American Penaeid, Inc., and Robin Pearl's 530 Motion to Alter Judgment; denying defendants American Mariculture, Inc., American Penaeid, Inc., and Robin Pearl's 543 Motion to Dismiss Count IV for lack of subject matter jurisdiction. See ORDER for details. The Clerk of Court shall file an Amended Judgment consistent with this Opinion and Order. Signed by Judge John E. Steele on 8/1/2022. (TLP)

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.

OPINION AND ORDER
This matter comes before the Court on review of the following
eight post-trial motions: (1) Defendants American Mariculture,
Inc., American Penaeid, Inc., and Robin Pearl’s Motion For a New
Trial Pursuant to Rule 59 (Doc. #483); (2) Defendants American
Penaeid, Inc. and Robin Pearl’s Renewed Motion for Judgment As a
Matter Of Law (Doc. #484); (3) Plaintiff TB Food USA, LLC’s Motion

For Permanent Injunction (Doc. #485); (4) Plaintiff TB Food USA,
LLC’s Renewed Motion for Judgment As a Matter Of Law (Doc. #486);
(5) Defendants American Mariculture, Inc., American Penaeid, Inc.,
and Robin Pearl’s Renewed Motion for Sanctions (Doc. #487); (6)
Plaintiff

TB

Food

USA,

LLC’s

Motion

For

Enhanced/Exemplary

Damages, Pre and Post Judgment Interest, and Disgorgement (Docs.
##488, 529); (7) Defendants American Mariculture, Inc., American
Penaeid, Inc., and Robin Pearl’s Motion to Amend Judgment Pursuant
To Rule 59 (Docs. ##530, 531, 544); and (8) Defendants American
Mariculture,

Inc.,

American

Penaeid,

Inc.,

and

Robin

Pearl’s

Motion To Dismiss Count IV of the Amended Complaint For Lack of
Subject Matter Jurisdiction (Doc. #543).

The parties have filed

Responses in Opposition and Replies to each other’s motions. (Docs.
##489, 502, 504-505, 509-510, 526-528, 534, 540, 542, 546-547.)
The Court heard oral arguments on the motions on May 23, 2022.
With leave of court, the parties filed supplemental memorandum
thereafter.

(Docs. ##551, 552.)
I. Jury Verdicts

On November 1, 2021, a jury trial began on the claims set
forth in Plaintiff’s Amended Complaint (Doc. #20) and in thirdparty Plaintiff’s Counterclaim (Doc. #80) which had not been
resolved prior to trial.

The jury rendered its verdicts on

November 19, 2021 (Doc. #465) as follows:

2

A. Amended Complaint
(1)

Count I — Breach of Contract

The jury found that TB Food USA, LLC (TB Food) had proven
American Mariculture, Inc. (AMI) (the only defendant) breached the
Nondisclosure Agreement (NDA) and the Grow-Out Agreement (GOA).
The jury rejected two equitable estoppel affirmative defenses by
AMI, but found that AMI had proven its affirmative defense that
the breach of contract claim was barred by the in pari delicto
defense. Therefore, TB Food was not awarded any damages as to Count
I. (Doc. #465, ¶¶ 1-13; Doc. #500.)
(2)

Count III — Defamation

The jury found that TB Food had not proven its defamation
claim against AMI or American Penaeid, Inc. (API), but had proven
the defamation claim against defendant Robin Pearl (Mr. Pearl).
The jury awarded TB Food $500,000 in compensatory damages against
Mr. Pearl.
(3)

(Doc. #465, ¶¶ 14-18; Doc. #500.)
Count IV — Federal Defend Trade Secrets Act

The jury found that TB Food had not proven its federal Defend
Trade Secrets Act (DTSA) claim against AMI, but had proven the
claim against API and Mr. Pearl.
$4,950,000.00 in compensatory damages.
#500.)

The jury awarded TB Food
(Doc. #465, ¶¶ 19-30; Doc.

The jury also found that TB Food had proven that Mr. Pearl

and API had willfully and maliciously misappropriated one or more
of Primo’s trade secrets, but awarded no exemplary damages.

3

(Id.)

(4)

Count V — Florida Uniform Trade Secrets Act

The jury found that TB Food had not proven its Florida Uniform
Trade Secrets Act (FUTSA) claim against AMI, but had proven the
claim

against

API

and

Mr.

Pearl.

The

jury

awarded

TB

Food

$4,950,000.00 in compensatory damages and no exemplary damages.
(Doc. #465, ¶¶ 31-40; Doc. #500.)
(5)

Count VI — Lanham Act False Advertising Claim

The jury found that TB Food had not proven its Lanham Act
False Advertising claim against AMI, but had proven the claim
against API and Mr. Pearl.

The jury awarded TB Food compensatory

damages of $100,000.00 and no exemplary damages. (Doc. #465, ¶¶
41-50; Doc. #500.)
(6)
The

Counts VII and VIII — Florida Unfair Competition

jury

found

that

TB

Food

had

not

proven

Competition claims against AMI, API, or Mr. Pearl.

its

Unfair

(Doc. #465, ¶¶

51-53; Doc. #500.)
B. Counterclaim
The jury found that AMI had proven that PB Legacy, Inc. (PB
Legacy) breached the Grow-Out Agreement.

The jury also found,

however, that PB Legacy had proven its affirmative defenses of
equitable estoppel and ratification, but not its waiver defense.
Therefore, AMI was not awarded any damages. (Doc. #465, ¶¶ 61-66;
Doc. #500.)

4

II. Renewed Motions For Judgment As Matter of Law
All parties made oral and/or written motions for judgment as
a matter of law pursuant to Fed. R. Civ. P. 50(a) at the appropriate
times during trial.

The Court took some issues under advisement,

while denying the other portions of the motions.

After the trial,

the Court issued an Opinion and Order (Doc. #499) denying the
outstanding portions of the motions.

All parties now renew their

motions for judgment as a matter of law.
Federal Rule of Civil Procedure 50(b) allows a party to renew
a motion for judgment as a matter of law made pursuant to Rule
50(a) following entry of a jury verdict. See Fed. R. Civ. P. 50(b).
Rule 50(b) provides, in pertinent part:
(b) If the court does not grant a motion for judgment as
a matter of law made under Rule 50(a), the court is
considered to have submitted the action to the jury
subject to the court's later deciding the legal
questions raised by the motion. . . . In ruling on the
renewed motion, the court may:
(1) allow judgment on the verdict, if the jury returned
a verdict; (2) order a new trial; or (3) direct the entry
of judgment as a matter of law.
Fed. R. Civ. P. 50(b).
A renewed motion under Rule 50(b) must be based on the same
grounds as the earlier Rule 50(a) motion.

Connelly v. Metro.

Atlanta Rapid Transit Auth., 764 F.3d 1358, 1363 (11th Cir. 2014).
When considering a Rule 50(b) motion, the court determines whether
the record — viewed in the light most favorable to the prevailing

5

party — points so overwhelmingly in favor of the opposing side
that the jury's verdict cannot stand. Yates v. Pinellas Hematology
& Oncology, P.A., 21 F.4th 1288, 1298 (11th Cir. 2021).

“Stated

differently, the verdict will be set aside only if no reasonable
jury could have arrived at it.”

Id.

Where there is substantial

evidence in the trial record that would allow reasonable minds to
reach different conclusions, judgment as a matter of law is not
appropriate.

Mee Indus. v. Dow Chem. Co., 608 F.3d 1202, 1211

(11th Cir. 2010).

The Court does not weigh the evidence or make

credibility determinations in determining such a renewed motion.
Brown v. Ala. Dept. of Transp., 597 F.3d 1160, 1173 (11th Cir.
2010).
A. Defendants API and Mr. Pearl’s Renewed Motion for Judgment As
a Matter Of Law
Defendants API and Mr. Pearl renew their request that the
Court

enter

judgment

in

their

favor

as

a

matter

of

law

on

Plaintiff’s defamation claim (Count III), Defend Trade Secrets Act
(DTSA) claim (Count IV), the Florida Uniform Trade Secrets Act
(FUTSA) claim (Count V), and the federal unfair competition claim
(Count VI). (Doc. #484.) For the reasons discussed below, the
motion is denied. Any argument not specifically discussed is denied
as without merit.

6

(1)

Sufficiency Of Trade Secret Evidence

Defendants API and Mr. Pearl argue that TB Food failed to
introduce legally sufficient evidence that bred shrimp constitute
a valid trade secret under either the federal or Florida trade
secret statutes. (Doc. #484, p. 3.)

Defendants argue that while

the DTSA defines a trade secret to include “forms and types of .
. . information” that the owner endeavors to keep secret, and the
FUTSA protects “information” which has been subject to efforts to
maintain secrecy, neither statute references protection of bred
animals,

genetics,

or

selective

breeding.

(Id.,

pp.

3-5.)

Defendants further assert that both the Amended Complaint and the
Plaintiff’s position at trial was that the trade secret at issue
was both the genetic information about the shrimp and the shrimp
themselves.

The

evidence

fails

to

support

either

theory,

Defendants argue, because (1) Primo never had knowledge of the
information about “underlying Primo shrimp genetics” since no
genetics analysis of its shrimp was ever conducted by Primo, and
none of the so-called “information” was ever disclosed to or
received by AMI (Id., p. 6); and (2) no court in the United States
has ever found that the genetics of bred animals constitute a trade
secret under the DTSA or the FUTSA. (Id., p. 7.) In sum, Defendants
argue that TB Food failed to adduce legally sufficient evidence to
prove that its bred shrimp constituted valid trade secrets under
either the DTSA or FUTSA and, while information can be a trade

7

secret, TB Food failed to present any evidence at trial of any
information that was known to TB Food and misappropriated by
Defendants.

(Id., pp. 8-9.)

TB Food responds that a trade secret under both federal and
Florida statutes consists of certain “information.”
p. 4 n.3.)

(Doc. #489,

TB Food asserts that the trade secrets in this case

were twofold: (1) the “biologic information and markers of animals
including genetic information” (Id., p. 4), and (2) “the underlying
knowledge

as

families.”
The
secrets

to

Primo

shrimp

belonged

to

which

Primo

alleged

trade

(Id.)

Court
may

which

previously

qualify

as

stated

trade

that

secrets

Primo’s
if

the

finder

of

fact

determined they met the statutory criteria in the DTSA and/or
FUTSA.

(Doc. #306, pp. 37-38.)

The jury was instructed in large

part by tracking the language of the statutes.
26-38.)

(Doc. #456, pp.

The jury found that the credible evidence supported the

existence of a trade secret within the meaning of the federal and
Florida trade secret statutes. Despite the respective spins placed
by the parties, no new law was created by the verdicts.
simply

applied

the

trade

secrets

statutes

determined to be supported by the evidence.

to

the

The jury
facts

it

There was sufficient

evidence admitted at trial from which a reasonable jury could find
that there was “information” in this case which qualified as a
trade secret under both federal and Florida law (see Doc. #489, p.

8

6, n. 5, 7) and that Plaintiff had knowledge of underlying genetics
from the many thousands of breeding records received as exhibits
and the testimony of certain witnesses. While much of the evidence
was disputed, Rule 50(b) requires the evidence and reasonable
inferences from the evidence to be viewed in the light most
favorable to the non-moving party – TB Food in these counts.

Since

a reasonable jury could have arrived at the verdicts on the trade
secrets claims, this portion of the motion is denied.
(2)

Sufficient Evidence Of Ownership Of Trade Secrets

Defendants API and Mr. Pearl argue that TB Food failed to
submit legally sufficient evidence that it owned any alleged trade
secret, as required by the DTSA, or “possessed” a trade secret, as
required by the FUTSA. (Doc. #484, p. 9.)

Indeed, Defendants

assert that the evidence established that the shrimp broodstock
that constituted TB Food’s founding broodstock was owned by an
unrelated company, Feedmix Specialists, Inc. (Feedmix). (Id., pp.
9-12.)

Defendants assert that “[o]ther than the false testimony

provided by” two witnesses, there is no evidence of TB Food’s
ownership of the alleged trade secrets.

(Id., p. 12.)

As discussed in more detail below in connection with the
Motion for Sanctions, there was indeed evidence that the founding
broodstock was owned by Feedmix.
evidence to refute this assertion.
9.)

As

with

many

aspects

of

9

But there was also substantial
(See summary at Doc. #489, p.
this

case,

the

testimony

was

contradictory on a variety of issues, and the jury was instructed
to determine credibility utilizing well-established principles.
(Doc. #456, pp. 3-5.)

Nothing required the jury to accept the

Feedmix ownership theory, and the jury’s credibility choice to the
contrary is certainly supported by evidence the jury was entitled
to rely upon.

Viewing the evidence as required in a Rule 50(b)

motion, there was sufficient evidence that TB Food both owned and
possessed the trade secrets at issue.

This portion of the motion

is therefore denied.
(3)

Sufficient Evidence
Engineering

Defendants

API

and

Mr.

Of

“Improper

Pearl

Means”

correctly

-

point

Reverse
out

that

misappropriation of a trade secret by acquisition under both
federal and Florida law requires a showing that a trade secret was
acquired by “improper means.” Defendants also correctly assert
that both federal and state law specifically exclude reverse
engineering from the definition of “improper means.” (Doc. #484,
p. 12, citing Compulife Software Inc. v. Newman, 959 F.3d 1288,
1311 (11th Cir. 2020)).

TB Food agrees that reverse engineering

is not an “improper means” under either the federal or Florida
trade

secret

statutes.

(Doc.

#489,

pp.

11-12,

Compulife Software Inc., 959 F.3d at 1311-13).

also

citing

Defendants argue

that TB Food and its witnesses repeatedly stated that the genetic
analysis of the shrimp at issue was “reverse engineering,” and

10

therefore was a proper means which did not violate either the
federal or state trade secret statutes.

(Doc. #484, pp. 12-16.)

TB Food responds that “Defendants acquired Plaintiff’s trade
secrets by improper means by breaching their duty to maintain
secrecy and not to use Plaintiff’s trade secrets under the Mutual
Non-Disclosure
exploited

it

detriment.”

Agreement
for

and

the

Defendants’

Grow-Out

enrichment

(Doc. #489, p. 12.)

Agreement
and

to

and

then

Plaintiff’s

Thus, TB Food argues, a trade

secret is acquired by an “improper means” when it is reverse
engineered contrary to contractual agreements such as contained in
the NDA and GOA. (Id.) TB Food argues there was sufficient evidence
presented that Defendants were prohibited from using Primo shrimp
and its underlying genetics for anything other than being sold as
table shrimp; were prohibited from unlocking the genetics to
separate live Primo shrimp AMI kept after April 30, 2016, into
families; and were prohibited from disclosure of live Primo shrimp
to third parties.

Therefore, TB Food argues, the evidence shows

conduct which was not merely “reverse engineering.”

(Doc. #489,

p. 13.)
The evidence was sufficient to allow the jury to determine
Defendants used “improper means” not authorized by TB Food or the
law as to the misappropriation of trade secrets claims.

(Doc.

#456, pp. 29-30.) The jury was instructed that “improper means”
did not include “reverse engineering” and was provided a definition

11

of both terms. (Id., pp. 30, 37-38.) Upon consideration of the law
and the evidence, the jury determined that API and Mr. Pearl
misappropriated one or more of TB Food’s trade secrets through
“improper means.”

There was sufficient evidence admitted at trial

from which reasonable jurors could find defendants API and Mr.
Pearl engaged in “improper means” to acquire trade secrets, as
defined by the proper instructions. Therefore this portion of the
motion is denied pursuant to Rule 50(b).
(4)

Sufficient Evidence Of Trade Secret Misappropriation By
Robin Pearl

Mr. Pearl contends that TB Food conceded at trial that its
DTSA and FUTSA claims against him were brought on a theory of
piercing the corporate veil (or alter ego). (Doc. #484, p. 16.)
Mr. Pearl argues that TB Food never set forth such a claim or
theory in its Amended Complaint, and therefore could not properly
assert a “piercing the veil” claim at trial. (Id., pp. 16-17.)
Additionally, Mr. Pearl argues that TB Food adduced no evidence
showing Mr. Pearl individually (as opposed to when acting in his
capacity as a corporate officer) misappropriated any trade secret.
(Id., p. 17.)

Based on the pleading deficiency and the lack of

evidentiary support, Mr. Pearl asserts that the Court should issue
judgment in his favor as to Claims IV and V of the Amended
Complaint. (Id.)

12

TB Food responds that it did not have to pierce the corporate
veil to impose individual tort liability on Mr. Pearl because the
DTSA, FUTSA, and Lanham Act provide for liability based on a
corporate officer’s own torts. (Doc. #489, p. 15.) Thus, TB Food
argues that Mr. Pearl is not shielded from individual liability
even if he acted as an agent and corporate representative of a
defendant

corporation,

since

he

was

the

moving

force

behind

misappropriation of trade secrets and false advertising.

(Id.,

pp. 16-17.)
Florida law provides that “[a] corporate officer may be
individually liable for torts committed even while acting as the
representative of the corporate entity.”

Roth v. Nautical Eng'g

Corp., 654 So. 2d 978, 979–80 (Fla. 4th DCA
omitted).

1995)(citations

See also Littman v. Commercial Bank & Tr. Co., 425 So.2d

636, 640 (Fla. 3d DCA 1983); Scutieri v. Miller, 605 So. 2d 972,
973 (Fla. 3d DCA 1992). "Misappropriation of trade secrets is an
intentional tort in the state of Florida." Bovie Med. Corp. v.
Livneh, No. 8:10-CV-1527-T-24EAJ, 2010 U.S. Dist. LEXIS 134490,
2010 WL 5297172, at *6 (M.D. Fla. Dec. 20, 2010) (citing Vance v.
Tire Eng'g and Distribution, LLC, 32 So.3d 774, 776 (Fla. 2d DCA
2010)).

Likewise, the DTSA provides for individual liability.

18

U.S.C. § 1839.
Additionally, individual liability is also available under
the Lanham Act.

Chanel, Inc. v. Italian Activewear of Fla., Inc.,

13

931 F.2d 1472, 1477 (11th Cir. 1991)(“If an individual actively
and knowingly caused the infringement, he is personally liable
[for

trademark

infringement].”).

“Specifically,

a

corporate

officer who directs, controls, ratifies, participates in, or is
the moving force behind the infringing activity, is personally
liable for such infringement without regard to piercing of the
corporate veil.” Babbit Elecs., Inc. v. Dynascan Corp., 38 F.3d
1161, 1184 (11th Cir.1994).

See also ADT LLC v. Alarm Prot. Tech.

Fla., LLC, 646 Fed. Appx. 781, 787–88 (11th Cir. 2016); Delong
Equip. Co. v. Wash. Mills Abrasive Co., 840 F.2d 843, 851 (11th
Cir. 1988) (finding it unnecessary to pierce the corporate veil to
hold

individuals

liable

for

Lanham

Act

violations

where

the

"[i]ndividual [d]efendants actively and knowingly directed the
false advertising.").
The jury heard testimony directly from Mr. Pearl (and other
witnesses) about his interaction with Plaintiff and the conduct
underlying

the

trade

secret

misappropriation

competition claims brought against him.

and

unfair

The jury was instructed

on the applicable law for each claim, and that TB Food asserted
these claims against all three defendants. The jury verdicts made
distinctions between the parties and, based on testimony and
evidence it determined to be credible, found that Mr. Pearl was
personally liable for participation in the misappropriation of
trade secrets and unfair competition.

14

While Defendants argue that

no

evidence

showed

Mr.

Pearl,

individually,

engaged

activities, the jury reasonably concluded otherwise.

in

such

Viewing the

evidence and inferences in a light most favorable to TB Food in
accordance with Rule 50(b), the Court denies this portion of the
motion.
(5)

Interference with Chinese Sovereignty

Defendants API and Mr. Pearl argue that the Lanham Act confers
jurisdiction

over

extraterritorial

disputes

involving

unfair

competition only when there is a showing that (1) defendant is a
United

States

corporation,

(2)

the

foreign

activity

had

substantial effects in the United States, and (3) exercising
jurisdiction would not interfere with the sovereignty of another
nation.

(Doc. #484, p. 18, citing Steele v. Bulova Watch Co., 344

U.S. 280 (1952).) Defendants assert that TB Food failed to present
any evidence of the second and third requirements. (Id.)
In Steele v. Bulova Watch Co. the Supreme Court considered
the extraterritorial application of a Lanham Act claim, concluding
that a United States company could sue a United States citizen for
trademark infringement occurring in Mexico under the Lanham Act
when: (1) defendant is a United States corporation; (2) the foreign
activity had substantial effects in the United States; and (3)
exercising jurisdiction would not interfere with the sovereignty
of another nation.

Steele, 344 U.S. at 286-89.

15

See also Int'l

Cafe, S.A.L. v. Hard Rock Cafe Int’l., 252 F.3d 1274, 1278 (11th
Cir. 2001).
The evidence, viewed under the Rule 50(b) prism, established
false statements made by Defendants in China.

TB Food argues that

it

Defendants’

introduced

substantial

evidence

that

false

statements and advertising in China had substantial effects in the
United States. (Doc. #489, p. 18.) This included the dissemination
in the United States of the false statements in both Englishlanguage publications and dual-language materials designed to help
API sell shrimp around the world, and that the falsities harmed TB
Food’s reputation and good will.

(Id.)

Viewing the evidence as

required by Rule 50(b), there is sufficient evidence to support
plaintiff’s claim of false advertising and substantial effect in
the United States.
TB Food also argues that the verdict on the Lanham Act claim
has no conceivable impact on China’s sovereignty because it does
not concern a trademark, which is the nature of the ongoing
litigation in China.

(Doc. #489, pp. 18-19.)

TB Food argues that

the Lanham Act liability does not turn on whether Defendants have
a valid mark in China, but on whether they made misrepresentations
about

the

shrimp.

(Id.)

The

evidence

establishes

that

the

trademark litigation in China is not and will not be impacted by
the

verdict

in

this

case,

and

therefore

interfere with the sovereignty of China.

16

this

case

will

not

(6)

Evidence Of Damages Resulting From Defamation

Defendants argue that TB Food’s Count III defamation claim
attempted to state a claim for slander of title, but TB Food failed
to provide any credible evidence demonstrating that any alleged
statements made by Defendants had any effect upon TB Food in China.
(Doc.

#484,

pp.

19-20.)

Defendants

further

argue

that

the

testimony of Teng Zhou and Yijun Zhang is insufficient to establish
damages to a reasonable degree of certainty, (Id., p. 21), and
that there cannot be damages because TB Food does not compete with
AMI or API.

(Id.)

TB Food responds that it produced sufficient evidence for all
of its damages. (Doc. #489, p. 19.) As to TB Food’s damages for
defamation,

Plaintiff

asserts

that

Florida

law

permits

lost

profits to be recovered if the loss can be proven with reasonable
certainty, and that Mr. Lei Zhao’s and Mr. Teng Zhao’s testimony
made clear that Defendants’ defamatory statements affected TB
Food’s profits. (Id., pp. 23-25.)

TB Food further asserts that

Defendants’ argument that they are immune from defamation damages
because API and TB Food are not direct competitors is unavailing
because the key inquiry is whether Defendants’ false statements
damaged TB Food. (Id., p. 25.)
The Court finds no reason to set aside the jury’s verdict as
to damages related to defamation.

The jury heard testimony from

various witnesses about TB Food’s business dealings, the value of

17

the Primo shrimp, and lost profits (Doc. #473, pp. 12-13, 32-33,
143-45;

Doc.

#409,

pp.

36-37),

and

was

well

able

to

make

credibility determinations and draw reasonable inferences as to
what, if any, damages TB Food suffered. The jury was properly
instructed on TB Food’s defamation claim, including damages. (Doc.
#456, pp. 22-24.)

More specifically, the jury was informed that

damages are “any injury to business or reputation in the past or
to be experienced in the future” and that there “is no exact
standard for fixing the compensation to be awarded . . . Any award
should be fair and just in the light of the evidence.” (Id., p.
24.) Despite the parties’ disagreements, the jury’s determination
was sufficient under the Rule 50(b) standard. There is no evidence
that points “‘so overwhelmingly in favor of’ [Defendants] that the
jury's verdict cannot stand.” Yates, 21 F.4th at 1298.
(7)

Sufficient Evidence Of Damages Under The DTSA, FUTSA, Or
The Lanham Act

Defendants argue that TB Food failed to provide sufficient
evidence to support any finding of damages under the DTSA, FUTSA,
or the Lanham Act. (Doc. #484, p. 21.)

Defendants take issue with

the jury’s award of compensatory damages in the amount of $4.95
million on TB Food’s federal and state claims for misappropriation
of trade secrets, $500,000 for TB Food’s defamation claim, and
$100,000 for TB Food’s Lanham Act claim. (Id., p. 22.)

Defendants

assert that TB Food did not ask for, nor did it provide any evidence

18

to support, an award for any of the compensatory damages.

(Id.)

As such, Defendants argue that the Court should vacate or reverse
the jury’s verdict for each such award. (Id., p. 24.)
TB Food responds that the jury’s trade secrets damage award
is the combined verdict amount of $9.9 million, and that sufficient
evidence supported this amount of damages (and more).
pp. 19-25.)

(Doc. #489,

With respect to damages for DTSA and FUTSA claims, TB

Food argues that the record supports the amount of damages based
on either unjust enrichment or lost profits. (Id., p. 20.) TB Food
asserts that it has met the “liberal” burden of proof for unjust
enrichment by providing two reasonable bases from which the amount
of

damages

can

be

inferred

or

approximated:

(1)

financial

statements showing Defendants’ profits from broodstock sales; and
(2) expert testimony as to the value of the “head start” Defendants
received. (Id.)
TB Food argues that the record evidence showed that from 2016
through 2019, API derived revenues from breeder sales that came
from Primo genetics, and that API was paying AMI for “broodstock
grow-out services.” (Id., pp. 20-21.)

According to TB Food,

Defendants therefore were unjustly enriched by an amount equal to
API’s gross profits, plus internal transfers between API and AMI
for grow-out services, which it estimates to be over $10.8 million.
(Id.) TB Food also argues that it is due at least another $1.2
million for profits Defendants received from 2019 through 2021 due

19

to API’s sales of the high-vigor shrimp-descendants from Primo.
(Id.,

p.

21.)

TB

Food

contends

that

there

was

substantial

testimony to prove that Defendants profited millions of dollars
from the “head start” they obtained by misappropriating Primo’s
trade

secrets,

eliminating

development

time

and

millions

of

dollars in investment costs to develop high-disease resistant
shrimp. (Id., p. 22.)
TB Food also argues that lost profits were shown by applying
the “yardstick test” which demonstrated that the only possible
yardstick to estimate its lost profits was API. (Id., pp. 23-24.)
TB Food asserts that API’s inventory spreadsheet shows that in
mid-May 2016, AMI had 652,214 Primo shrimp but by February 2017,
only half may have been salable (approx. 326,107). (Id., p. 24.)
Based

on

testimony,

TB

Food

argues

that

it

would

have

made

approximately $20 per shrimp, and therefore lost $6,522,140. (Id.)
As typical in this case, the evidence was contradictory,
requiring the jury to make factual determinations to resolve the
differing evidence.

Applying the Rule 50(b) standard, the Court

finds that the evidence was sufficient to support the jury’s award
of damages as to all the claims.
portion of the motion.

20

The Court therefore denies this

B.

Plaintiff TB Food USA, LLC’s Renewed Motion For Judgment As
A Matter Of Law

Pursuant to Rule 50(b), TB Food renews its request that the
Court render judgment in favor of TB Food as a matter of law as to
all the claims which the jury resolved against it, specifically
its (1) breach of contract claim against all Defendants; (2) Defend
Trade Secrets Act (DTSA) claim against AMI; (3) Florida Uniform
Trade Secrets Act (FUTSA) claim against AMI; (4) the unfair
competition

claims

under

Florida

common

law

against

all

Defendants; (5) Florida Unfair & Deceptive Trade Practices Act
(FUDTPA) against all Defendants; and (6) Defendants’ in pari
delicto affirmative defense. (Doc. #486.) The jury’s verdicts on
each issue were against TB Food.

For the reasons set forth below,

the motion is denied.
The Court applies the same Rule 50 standard of review as
summarized earlier.

As stated in Pinnacle Advert. & Mktg. Group,

Inc. v. Pinnacle Advert. & Mktg. Group, LLC, 7 F.4th 989, 1001
(11th Cir. 2021):
Under Rule 50, a district court can overturn
a jury's finding on an issue if the court finds
that “a reasonable jury would not have a
legally sufficient evidentiary basis to find
for the party on that issue[.]” Fed. R. Civ.
P. 50(a)(1). To overturn a jury's finding, a
district court must “examine the entire record
in the light most favorable to [the party that
prevailed at trial] ... and ask whether the
evidence
nonetheless
points
‘so
overwhelmingly in favor of’ [the movant] that
the jury's verdict cannot stand.” Royal Palm

21

Props., LLC v. Pink Palm Props., LLC, 950 F.3d
776, 782 (11th Cir. 2020) (quoting Richardson
v. Leeds Police Dep't, 71 F.3d 801, 805 (11th
Cir. 1995)).
All aspects of the renewed motion are denied.

The Court

discusses only the specific points set forth in the motion. Any
argument not specifically discussed is denied as without merit.
(1)

AMI Liability For API And Mr. Pearl’s Unlawful Conduct

TB Food maintains that the jury correctly found that API and
Mr. Pearl were liable for trade secret misappropriation under the
FUTSA and the DTSA.

Given these determinations, TB Food asserts

that it is “axiomatic” that no reasonable jury could have found
that AMI was not also liable for the conduct.

(Doc. #486, p. 3.)

TB Food reasons that the jury found AMI breached the NDA and GOA,
and that the testimony at trial made clear AMI and Mr. Pearl — as
president/CEO of AMI - facilitated API’s misappropriation of trade
secrets. (Id., pp. 3-4.) Thus, because Mr. Pearl ran and dominated
AMI and API, TB Food asserts that it logically follows AMI knew
that API was going to misappropriate Primo’s trade secrets and
acted in concert with API and Mr. Pearl. (Id.) TB Food therefore
concludes that the jury could not have found that API and AMI
breach its duty to maintain secrecy without also finding AMI
breached that duty. (Id., p. 4.)

TB Food argues that Florida’s

agency law dictates the same conclusion under the doctrine of
respondeat superior. (Id.)

“Thus, it logically follows that AMI

22

is liable for those torts that the jury found Pearl liable for.”
(Id., p. 5.)
The jury obviously distinguished between the liability of Mr.
Pearl and his new corporation API and the non-liability of the
original corporation AMI.

Given the conflicting nature of the

testimony and the numerous credibility determinations which were
made by the jury, there is no basis for TB Food to prevail on the
argument that the jury had to find liability by AMI.

Assuming

that this issue was raised in the original Rule 50 motion at trial
and was timely renewed after trial (both of which Defendants
contest), the Court denies this portion of TB Food’s motion.
(2)

AMI Liability As Alter-Ego As A Matter Of Law

TB Food argues that AMI is liable as a matter of law as the
alter-ego of API and by piercing the corporate veil.
pp. 5-6.)

(Doc. #486,

TB Food asserts that API was a mere instrumentality of

AMI, and that API was organized or used by AMI to mislead or
perpetrate a fraud upon Primo.

(Id., p.6.)

TB Food points to

evidence of a lack of separateness between AMI and API, and AMI’s
use of API to misappropriate Primo’s trade secrets and insulate
AMI from liability for contract breaches, which it asserts was the
proximate cause of TB Food’s losses.
"In

order

to

establish

that

(Id., pp. 5-11.)
a

subsidiary

is

the

mere

instrumentality of its parent, three elements must be proved:
control by the parent to such a degree that the subsidiary has

23

become its mere instrumentality; fraud or wrong by the parent
through its subsidiary, e.g., torts, violation of a statute or
stripping the subsidiary of its assets; and unjust loss or injury
to the claimant, such as insolvency of the subsidiary." Vantage
View v. Bali E. Dev. Corp., 421 So. 2d 728, 735 (Fla. 4th DCA
1982).

In Turner v. Homestead Police Dep't, 828 F. App'x 541, 544

(11th Cir. 2020) the Eleventh Circuit stated:
[U]nder Florida law a parent company and its
subsidiaries "are separate and distinct legal
entities." See Am. Int'l Grp. v. Cornerstone
Bus., 872 So. 2d 333, 336 (Fla. Dist. Ct. App.
2004). A parent company is not liable for the
wrongful actions of a subsidiary absent a
showing that the corporate veil should be
pierced. Peacock v. Gen. Motors Acceptance
Corp., 432 So. 2d 142, 143 (Fla. Dist. Ct.
App. 1983). A party seeking to pierce the
corporate veil must prove that "the subsidiary
was a 'mere instrumentality' of the parent"
and that "the parent engaged in 'improper
conduct' through its organization or use of
the
subsidiary."
Johnson
Enters.
of
Jacksonville, Inc., v. FPL Grp., 162 F.3d
1290, 1320 (11th Cir. 1998) (quoting Dania
Jai-Alai Palace, Inc. v. Sykes, 450 So. 2d
1114, 1117-21 (Fla. 1984)). Such improper
conduct occurs only where the subsidiary is "a
mere device or sham to accomplish some
ulterior purpose" or "where the purpose is to
evade some statute or to accomplish some fraud
or [**6]
illegal purpose." Id. (quoting
Dania, 450 So. 2d at 1117).
As

noted

previously,

few

of

the

material

facts

were

undisputed, and the jury was required to make numerous credibility
determinations.

Nothing in the record required a reasonable jury

to determine that AMI was liable for the conduct of API or Mr.

24

Pearl.

After viewing the evidence as required by Rule 50(b), the

Court finds that the motion must be denied.
(3)

In Pari Delicto Defense

The jury determined that TB Food had established its breach
of contract claim against AMI in Count One, but determined that
the claim was barred by AMI’s in pari delicto defense.
pp. 1-4.)

(Doc. #465,

TB Food argues that the jury’s verdict on its breach of

contract claim was purely advisory as to the in pari delicto
defense, and that the Court should reject the defense and find
that AMI breached the contracts. (Doc. #486, p. 11.)
TB Food contends that the equitable defense of in pari delicto
is not entitled to trial by jury and that TB Food never consented
to try this defense to the jury.

TB Food asserts that the jury’s

verdict as to this defense is therefore advisory under Fed. R.
Civ. P. 39(c), and the Court can independently reassess whether
the requirements of this defense have been met. (Id., p. 12.)

TB

Food asserts that the Court should find that the in pari delicto
defense cannot excuse AMI’s breach of the Nondisclosure Agreement
(NDA) and the Grow-out Agreement (GOA), and that as a matter of
law TB Food prevailed on its breach of contract claims against
AMI. (Id., pp. 12-15.)

Assuming it prevails on the argument, TB

Food also argues that AMI’s breach of the NDA demonstrates that it
should prevail on its unfair competition claims against Defendants
under Florida law. (Id., pp. 16-19.)

25

At oral argument it was noted that the jury had also made
determinations as to other equitable defenses.

The parties were

permitted to submit supplemental memoranda on the issue as it
related

to

all

the

equitable

defenses.

In

its

supplemental

Memorandum (Doc. #552), TB Food asserts that pursuant to Fed. R.
Civ. P. 39, the jury’s determinations of all equitable defenses
are advisory because TB Food did not otherwise consent, and that
the Court should make independent determinations in its favor on
all equitable defenses.

In their supplemental Memorandum (Doc. #

551), Defendants assert that the Court should accept the jury’s
determination as to the in pari delicto defense and reject the
jury’s determinations as to the other equitable defenses.

(Id.,

pp. 8-9.)
All parties rely on Fed. R. Civ. P. 39.

Rule 39(c) provides,

"In an action not triable of right by a jury, the court, on motion
or on its own: (1) may try any issue with an advisory jury; or (2)
may, with the parties' consent, try any issue by a jury whose
verdict has the same effect as if a jury trial had been a matter
of right."

FED. R. CIV. P. 39(c).

Rule 39(c) on its face applies only to “an action” which is
not “triable of right by a jury.”
action – the civil action.”

(Id.)

There is “[o]ne form of

Fed. R. Civ. P. 2.

All claims set

forth in the action, i.e., the Amended Complaint and Counterclaim
- are legal claims to which a constitutional right to a jury trial

26

attached. See Hargrove v. Am. Cent. Ins. Co., 125 F.2d 225, 228
(10th Cir. 1942)(“If the issues tendered by the pleadings are
purely legal, the parties are entitled to jury as of right . . .
.”).

Thus, Rule 39(c)’s option of an advisory jury was not

available in this case.
It is correct that there is no constitutional right to a jury
trial on questions of fact relating to equitable defenses.

Burch

v. P.J. Chase, Inc., 861 F.3d 1338, 1347 (11th Cir. 2017).

The

Court has not found, and the parties have not cited, any authority
for the proposition that there is a statutory right to a jury trial
to claims or defenses under the Defense Trade Secrets Act, 18
U.S.C. § 1836, Florida’s Uniform Trade Secret Act, Fla. Stat. §
688.001 et seq., the Lanham Act, 15 U.S.C. §1125(a), or the Florida
Unfair and Deceptive Trade Practices Act, Fla. Stat. §§ 501.201 et
seq.

However, at no point during the pre-trial proceedings or the

trial did any party object to submitting the equitable defenses to
the jury, or suggest that such defenses were to be resolved by the
Court, or were to be the subject of an advisory jury verdict.

The

Court finds that the parties have forfeited their ability to object
to the jury’s verdicts as to the equitable defenses.

See, e.g.,

Bereda v. Pickering Creek Indus. Park, Inc., 865 F.2d 49, 52 (3d
Cir. 1989) (holding that where both parties "requested a jury trial
and the subject of an advisory jury was never mentioned at any
time during the proceedings, [the plaintiff] and [the defendant]

27

must be deemed to have consented to a trial by a nonadvisory jury
under Rule 39(c)"); Thompson v. Parkes, 963 F.2d 885, 886, 888,
890 (6th Cir. 1992) (finding that although Rule 39(c) allows a
court to submit equitable issues to an advisory jury, the court
must give "full effect" to a jury verdict if the court did not
specify it was an advisory jury prior to trial.

The Court also

found there was consent to try equitable claims to a jury under
Rule 39(c) where parties' course of conduct and pretrial order
indicated trial by jury, and noted that “the language of Rule
39(c), . . . permits the district court to try a case ‘with an
advisory

jury,’

not

to

have

the

case

tried

by

a

jury

and

essentially exercise a veto power.”); Broadnax v. City of New
Haven, 415 F.3d 265, 272 (2d Cir. 2005) (“I further ‘find sensible
the proposition that where a party requests a jury determination
of an issue requiring no special competence or authority belonging
solely to the court, and the other party or parties fail to object,
such silence may be deemed 'consent' under Rule 39(c).’"); O2 Micro
Int'l Ltd. v. Monolithic Power Sys., Inc., 399 F. Supp. 2d 1064,
1087 (N.D. Cal. 2005) (citing Rule 39(c) for the proposition that
court lacked power to treat jury's verdict on patent issues as
advisory after case was submitted to a jury, stating this Court
does not have “the power to transform a jury verdict into an
advisory finding after the verdict is returned.”).

28

Alternatively, if the jury’s verdict is simply advisory on
the equitable defenses, the jury’s findings of fact are not
binding, and the Court is free to adopt the jury’s findings in
whole or in part or to disregard them altogether.

See Wilson v.

City of Aliceville, 779 F.2d 631, 635–36 (11th Cir. 1986); Sheila
Shine Products, Inc. v. Sheila's Shine, Inc., 486 F.2d 114, 122
(5th Cir.1973).

If the parties have not forfeited the issue, the

Court alternatively would adopt the findings and conclusions of
the jury with regard to all equitable defenses.

Specifically, the

Court would find that evidence it found credible establishes that:
1. AMI did not prove by a preponderance of the evidence its
two equitable estoppel defenses to the claim in Count I,
but did prove by a preponderance of the evidence its in
pari delicto defense to the claim in Count I;
2. AMI did not prove by a preponderance of the evidence its
equitable estoppel defense or its in pari delicto defense
to the claims in Counts IV, V, VI; and
3. PB Legacy did not prove by a preponderance of the evidence
its equitable estoppel defense to its breach of contract
claim.
III. Defendants API And Mr. Pearl’s Motion For A New Trial
Pursuant To Rule 59
Defendants API and Mr. Pearl request a new trial limited to
liability and damages on Count IV — the Defend Trade Secrets Act

29

- and Count V — the Florida Uniform Trade Secrets Act. (Doc. #483.)
Defendants

assert

that

evidence

was

concealed,

Plaintiff’s

witnesses presented false testimony, and the jury’s damages award
on these counts was excessive. (Id., p. 1.) For the reasons set
forth below, the motion is denied.

Any argument not specifically

discussed is denied as without merit.
A Rule 59 motion for a new jury trial may be granted "for any
reason for which a new trial has heretofore been granted in an
action at law in federal court." Fed. R. Civ. P. 59(a)(1)(A). Such
reasons include that "'the verdict is against the weight of the
evidence, that the damages are excessive, or that, for other
reasons, the trial was not fair ... and may raise questions of law
arising out of alleged substantial errors in admission or rejection
of evidence or instructions to the jury.'" McGinnis v. Am. Home
Mortg. Serv., Inc., 817 F.3d 1241, 1254 (11th Cir. 2016) (quoting
Montgomery

Ward

&

Co.

v.

Duncan,

311

U.S.

243,

251

(1940))

(alteration in original). "Thus, under Rule 59(a), a district court
may, in its discretion, grant a new trial if in the court's
opinion, the verdict is against the clear weight of the evidence
or will result in a miscarriage of justice, even though there may
be substantial evidence which would prevent the direction of a
verdict."

Id.

(cleaned

up).

See

also

Lipphardt

v.

Durango

Steakhouse of Brandon, Inc., 267 F.3d 1183, 1186, 1189 (11th Cir.
2001) (quotation omitted) ("[N]ew trials should not be granted on

30

evidentiary grounds unless, at a minimum, the verdict is against
the great—not merely the greater—weight of the evidence.").

The

remedy of granting a motion for new trial “is sparingly used."
Thomas

v.

Broward

Cnty.

Sherriff's

Office,

No.

19-61324-CIV-

DIMITROULEAS, 2022 WL 1284095, 2022 U.S. Dist. LEXIS 79485, at *4
(S.D. Fla. Mar. 25, 2022) (quoting Johnson v. Spencer Press of
Maine, Inc., 364 F.3d 368, 375 (1st Cir. 2004)).
Defendants argue that they are entitled to a new trial because
their

substantial

rights

were

adversely

impacted

by

the

withholding of certain information and false testimony in the trial
with regards to a prior dispute with a third party (Feedmix
Specialist, Inc.) about the ownership of the alleged trade secrets.
(Doc. #483, p. 4.)
Food

failed

to

More specifically, Defendants argue that TB

identify

Feedmix

as

an

interested

person

in

violation of this Court’s January 13, 2017 Order and did not
provide relevant documents relating to Feedmix despite requests
for the same, and that Ken Gervais and Neil Gervais provided false
testimony with respect to the origin of Primo’s founding shrimp
broodstock. (Id., pp. 5-6.) According to Defendants, the reason
for the concealment of this information was to suppress information
showing that Primo did not own the founding shrimp broodstock, and
thus TB Food does not own the “germplasm or genetics” that it
claims Defendants misappropriated. (Id., pp. 6-7.) Defendants
assert that they were unable to properly address the false evidence

31

at

trial

due

to

intentional

concealment

of

the

same,

which

adversely affected their substantive rights and warrant a new trial
to prevent manifest miscarriage of justice under Rule 59(a). (Id.,
pp. 13-14 n.6.)
The Court is satisfied that no material information was
withheld from required court filings or disclosures, and that the
prior dispute with Feedmix was adequately explored at trial.

As

was the norm for this trial, many “facts” were disputed and
witnesses impeached, creating cries of “false testimony” from both
sides and credibility issues for the jury. At the trial, Defendants
cross-examined Ken Gervais about Feedmix and Primo’s interactions
with it and the shrimp broodstock. (Doc. #479, pp. 67-96, 103-07,
215-16.)

The

credibility

jury

was

able

determinations

to

about

draw
the

reasonable
ownership

of

factual
the

and

shrimp

broodstock and any related misappropriation of trade secrets. The
Court is not persuaded that Defendants were unable to properly
address the false evidence at trial. The Court finds that a new
trial is not warranted under Rule 59 based on the Feedmix theory.
Defendants also seek a new trial as to Counts IV and V or
remittitur because the jury’s damages award was clearly excessive.
(Doc. #483, pp. 15-16.) Defendants argue that it is beyond dispute
that TB Food did not ask for, nor did it provide evidence in
support of an award for $4.95 million in compensatory damages for
trademark misappropriation as to actual loss, unjust enrichment,

32

or any reasonable royalty. (Id., p. 16.) Defendants further assert
that the jury implicitly recognized the lack of evidentiary support
for damages in asking the Court for guidance on how to calculate
damages. (Id., p. 17.)
TB Food Plaintiff’s responds that the jury’s award for its
DTSA and FUTSA claims is the combined verdict amount of $9.9
million, and that it was reasonable based on the evidence presented
at trial.

(Doc. #502, pp. 12-13.)

TB Food reiterates its

arguments, discussed supra, in support of the damages awarded as
set forth in its Response to

Defendants’

Renewed Motion for

Judgment As a Matter Of Law.

TB Food argues that the record

supports the amount of damages based on either unjust enrichment
or a reasonable royalty calculation. (Id., pp. 13-17.) TB Food
again asserts that it has met the “liberal” burden of proof for
unjust enrichment by providing two reasonable bases from which the
amount of damages can be inferred or approximated: (1) financial
statements showing Defendants’ profits from broodstock sales; and
(2) expert testimony as to the value of the “head start” Defendants
received. (Id., p. 13.)
TB Food argues that the record evidence showed that from 2016
through 2019, API derived revenues from breeder sales that came
from Primo genetics, and that API was paying AMI for “broodstock
grow-out services.” (Id., p. 14.) According to TB Food, Defendants
therefore were unjustly enriched by an amount equal to API’s gross

33

profits, plus internal transfers between API and AMI for grow-out
services, which it estimates to be over $10.8 million. (Id.) TB
Food also argues that it is due at least another $1.2 million for
profits Defendants received from 2019 through 2021 due to API’s
sales of the high-vigor shrimp-descendants from Primo. (Id., pp.
14-15.)

TB Food contends that there was substantial testimony to

prove that Defendants profited millions of dollars from the “head
start” they obtained by misappropriating Primo’s trade secrets,
eliminating development time and millions of dollars in investment
costs to develop high-disease resistant shrimp. (Id., pp. 15-16.)
TB Food further argues that evidence was adduced at trial
that provided a clear indication of what a reasonable royalty would
be. (Id., p. 16.) TB Food asserts that API itself licensed the use
of the shrimp genetics it derived from Primo and granted a oneyear license to another company for $1.5 million.

(Id.)

Applying

this licensing rate retroactively to the date of Defendants’
misappropriation, May 1, 2016, and the need for 15 to 18 years to
develop disease resistant shrimp like that of Primo’s, TB Food
argues the jury could have easily entered an award for $22.5 to
$27 million.

(Id., pp. 16-17.)

The Court concludes the jury’s verdict is not against the
great weight of the evidence and does not result in a miscarriage
of justice. The damages awarded for these counts were not clearly
excessive given the evidence presented and the credibility choices

34

made by the jury, and therefore do not warrant either a new trial
or remittitur.
1198,

1200

See Walls v. Button Gwinnett Bancorp, Inc., 1 F.3d

(11th

Cir.

1993)(“the

district

judge

should

not

substitute [his] own credibility choices and inferences for the
reasonable credibility choices and inferences made by the jury.").
This portion of the motion is denied.1
IV.

Defendants AMI, API, And Mr. Pearl’s Renewed Motion For
Sanctions

Defendants AMI, API, and Mr. Pearl urge the Court to impose
sanctions against plaintiff TB Food and third-party defendant PB
Legacy, Inc. under Federal Rule of Civil Procedure Rule 37. (Doc.
#487, p. 1.) The crux of Defendants’ motion is that TB Food failed
to disclose in discovery or at trial facts that were central to
its liability claims (1) that TB Food, who claimed to be the sole
owner

of

the

shrimp

and

its

genetics

during

and

after

its

contractual agreement with AMI, never owned the shrimp that became
the founding stocks for Primo Broodstock, Inc.; and (2) that Primo,
Neil Gervais, and Kenneth Gervais did not pay for costs associated
with obtaining the broodstock from Ecuador, cleaning them of
diseases, importing them to the United States, or having them
tested at the University of Arizona. (Id., pp. 1-10.)

Rather,

Defendants argue that unbeknownst to them, Feedmix Specialist,

The Court has not considered the post-trial affidavits of
Robin Pearl or Henry Uy, to which TB Food had objected (Doc. #501).
1

35

Inc. (Feedmix), the leading integrated aquaculture company in the
Philippines, paid all such expenses for the shrimp that were used
to form the founding families of Primo Broodstock, Inc. (Id., pp.
4-5.) Defendants argue that Feedmix and its principals would
potentially have knowledge of issues regarding the underlying
claims in this case, which could have significantly changed the
entire trial and possibly lead to early dismissal of this entire
lawsuit. (Id., pp. 7-8.)

Defendants seek sanctions pursuant to

Rule 37(c)(1)(C), and argue that because this information was not
known

to

defense

counsel

until

the

end

of

trial,

the

only

appropriate sanction would be striking Plaintiff’s pleadings,
setting aside the jury’s verdict, dismissing the action with
prejudice, and awarding Defendants all reasonable attorney’s fees
and costs incurred in this matter. (Id., p. 9.)
The Court does not find that Defendants have established a
basis for its requested sanctions.

For the reasons set forth

below, the motion is denied.
Rule 37 permits a district court to impose sanctions on a
party that "fails to obey an order to provide or permit discovery."
Fed. R. Civ. P. 37(b)(2)(A). Such sanctions include "striking
pleadings in whole or in part" or "rendering a default judgment
against

the

“Entering

a

disobedient
default

party."

judgment

as

Id.
a

37(b)(2)(A)(iii),
discovery

sanction

(vi).
‘is

appropriate only as a last resort’ and requires a finding of

36

willfulness or bad faith on the part of the offending party.”
Axiom Worldwide, Inc. v. Excite Med. Corp., 591 F. App'x 767, 774
(11th Cir. 2014) (quoting Malautea v. Suzuki Motor Co., Ltd., 987
F.2d 1536, 1542 (11th Cir. 1993)).

The "outright dismissal of a

lawsuit" is a "particularly severe sanction[,]" Chambers v. Nasco,
Inc., 501 U.S. 32 (1991) (citing Roadway Express, Inc. v. Piper,
447 U.S. 752 (1980)), and is not favored. Mene v. Marriott Int’l,
Inc., 238 F. App’x 579, 582 (11th Cir. 2007).
Plaintiff maintains that it complied with discovery requests
by disclosing information that it may use to support its claims or
defenses, and that it did not disclose Feedmix as an “interested
person” since Feedmix had no entitlement to any recovery from this
action and was not an active participant in the litigation. (Doc.
#504, pp. 7-13.) Plaintiff further asserts that it did not fail to
produce any documents since the requests related to documents
generated on or after January 1, 2013, which did not include
documents at issue dating from 2011 to 2012. (Id., p. 11.)
The evidence establishes that in 2011 and 2012, Plaintiff’s
predecessor had a business relationship with Feedmix involving
certain broodstock shrimp that were shipped from Ecuador to the
United States. The details and import of the conduct was the
subject of conflicting trial testimony.

However, there is no

evidence that TB Food failed to disclose, in discovery or at trial,
facts that were central to its liability claims regarding ownership

37

of

the

broodstock.

While

Feedmix

may

have

been

involved

in

initially transporting shrimp broodstock from Ecuador, there is no
indication that Feedmix pursued any legal action ever asserting
ownership over Primo’s broodstock. The Court finds that the record
does not establish a sufficient basis for the various sanctions
sought by Defendants.

There is no evidence TB Food failed to obey

discovery orders, that it acted in bad faith or to the extent
warranting

outright

dismissal

of

its

lawsuit.

Therefore,

Defendants’ motion is denied.
V.

Plaintiff TB Food’s Motion For Permanent Injunction
In addition to the substantial damages awarded by the jury,

TB

Food

seeks

permanent

injunctive

relief.

(Doc.

#485.)

Specifically, TB Food asserts that it has and will continue to
suffer irreparable harm and it has no adequate remedy at law to
prevent further: (a) misappropriation of its trade secrets; (b)
harm from false advertising; and (c) continuing breaches of the
restrictive covenants set forth in the NDA and GOA.

TB Food

asserts that this necessitates the requested injunctive relief.
(Id., p. 2.)
At the Court’s request (Doc. #503), TB Food submitted a draftversion of the permanent injunction it seeks.

(Doc. #516.)

In

brief, TB Food seeks:
1. A seven-year, worldwide injunction against all defendants and
others precluding disclosure, transfer or use of its trade
secrets; marketing or sale of any size or age live shrimp

38

containing Primo genetics; and use of any information or
knowledge of its genetics.
2. A three-year, worldwide injunction against all defendants and
others from breeding, selling, producing, or transferring
live shrimp of any age or size containing any amount of Primo
genetics.
3. A requirement that API and Pearl submit proposed press
releases for publication in the United States and China,
specifically stating that API and Mr. Pearl did not have the
right to use Primo genetics, and will refrain from marketing
or selling shrimp with Primo genetics.
4. The appointment of an independent auditor TB Food selects to
review API’s books and records and to test all shrimp at API’s
facility and to report to the Court, which shall then enter
an order controlling the disposition of the shrimp.
(Id., pp. 3-5.)
To obtain a permanent injunction, TB Food must succeed on the
merits and make the traditional showings necessary for preliminary
injunctive relief.

Siegel v Lepore, 234 F.3d 1163, 1213 (11th

Cir. 2000); Angel Flight of Ga., Inc. v. Angel Flight Am., Inc.,
522 F.3d 1200, 1208 (11th Cir. 2008). Specifically, TB Food must
establish that: “(1) it has suffered an irreparable injury; (2)
remedies available at law, such as monetary damages, are inadequate
to compensate for that injury; (3) considering the balance of
hardships between the plaintiff and defendant, a remedy in equity
is warranted; and (4) the public interest would not be disserved
by a permanent injunction.” Angel Flight of Ga., Inc., 522 F.3d at
1208 (citing eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391
(2006)). "The decision to grant or deny permanent injunctive relief

39

is an act of equitable discretion by the district court . . . ."
eBay, 547 U.S. at 391.
TB Food has not succeeded on the merits with regard to AMI,
and is therefore not entitled to a permanent injunction as to AMI.
Plaintiff has succeeded on the merits of a portion of its claims
in the Amended Complaint against API and Mr. Pearl, and therefore
may be entitled to a permanent injunction as to those claims.
Defendants argue, however, that TB Food has completely failed
to

demonstrate

irreparable

injury;

the

jury

awarded

monetary

damages which were more than adequate compensation; the balance of
hardships posed by the specifics of the permanent injunction sought
by TB Food favors defendants; and the public interest weighs
against the injunction sought.

(Doc. #510, pp. 4-12.)

Defendants

also assert that an injunction should be denied because TB Food
came before the court with unclean hands and has no knowledge of
its trade secrets.

(Id., pp. 15-18.)2

In the exercise of its discretion, the Court declines to enter
the permanent injunction sought by TB Food. The Court will briefly
discuss the eBay factors identified above.

Defendants do not object to a permanent injunction
continuing the prohibition in the preliminary injunction
precluding defendants from utilizing the Primo name. (Doc. #510,
p. 15 n. 2.)
2

40

(1)

Irreparable Harm and Adequate Remedies At Law

Irreparable harm “focuses on the traditional limitation that
equitable relief is available only if there is no adequate legal
remedy available to the plaintiff. A showing of irreparable harm
is the sine qua non of injunctive relief." Northeastern Fla.
Chapter of the Ass'n of Gen. Contractors of Am. v. City of
Jacksonville, 896 F.2d 1283, 1285 (11th Cir. 1990) (citation and
internal quotation omitted). See also Barrett v. Walker Cnty. Sch.
Dist., 872 F.3d 1209, 1229 (11th Cir. 2017) (Generally, where a
party suffers irreparable harm, remedies at law are inadequate.)
Deerfield Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328, 338
(5th Cir. 1981)("An injury is 'irreparable' only if it cannot be
undone

through

monetary

remedies.").

The

irreparable

injury

claimed, "must be neither remote nor speculative, but actual and
imminent." Winmark Corp. v. Brenoby Sports, Inc., 32 F. Supp. 3d
1206, 1223 (S.D. Fla. 2014)(citation omitted). "When an injury is
compensable through money damages, the harm is, by definition, not
irreparable." Id.
TB Food claims it has been irreparably harmed due to loss of
control of the Primo shrimp genetics, loss of trade, goodwill and
reputation, and confusion in the Chinese shrimp market. The jury’s
verdict demonstrates that TB Food has adequate legal remedies which
are sufficient, and that TB Food has not suffered irreparable
injuries.

The jury considered Plaintiff’s misappropriation of

41

trade secrets injuries and awarded TB Food monetary damages in
excess of $9 million.

Moreover, Defendants have ceased using the

Primo name, which diminishes any effect on TB Food’s goodwill and
reputation, as well as the confusion in the Chinese shrimp market.
Therefore, TB Food has not shown that any continuing harm was
irreparable in nature.
(2)

Balance Of Hardships Between The Plaintiff And Defendant
and Service Of Public Interest

In the Court’s view, both the balance of the hardships and
the public interest weigh in favor of denying

the

permanent

injunction requested in this case, or a permanent injunction
premised on less restrictive terms.

As discussed above, the

proposed “permanent” injunction seeks to impose restrictions for
seven years on all worldwide sales of shrimp of any age or size
that contains any Primo genetics (no matter how minute), which
includes

shrimp

that

is

sold

affiliated entities, like AMI.

by

API

and

Mr.

Pearl

(Doc. #516, pp. 3-4.)

and

any

TB Food

further proposes that the Court appoint an auditor to review API’s
books and records and test all shrimp to determine which shrimp
contain or may be derived from Primo genetics. (Id., p. 4.)
The proposed permanent injunction is seriously overbroad and
unduly onerous, and would effectively put API out of business based
on non-broodstock shrimp which are generations removed from the
original Primo broodstock. To impose a worldwide ban on its shrimp

42

sales, along with seven years of genetic testing, is not justified.
See Miccosukee Tribe of Indians v. S. Fla. Water Mgmt. Dist., 280
F.3d 1364, 1371 (11th Cir. 2002) (quoting Truly v. Wanzer, 46 U.S.
(5 How.) 141, 142, 12 L. Ed. 88 (1847)(The United States Supreme
Court warns "there is no power, the exercise of which is more
delicate, which requires greater caution, deliberation, and sound
discretion, or more dangerous in a doubtful case, than the issuing
[sic] an injunction.”)). TB Food sells its broodstock to a single
Chinese company – Haimao. The proposed permanent injunction would
affect all worldwide sales of non-broodstock shrimp not just by
API, but entities like AMI, which was not found liable for trade
secret misappropriation and which grows and sells fresh-killed
table shrimp.
Additionally, the imposition of costs to genetically test all
the shrimp, as well as the breadth of the audit – requiring API to
surrender its “books and records” for review for the next seven
years - is overly broad and burdensome.

The proposed permanent

injunction does not specify what portions of API’s “books and
records” would be subject to review or the parameters of the
review.
Further, requiring API to test all of its shrimp is excessive.
It has been over seven years since AMI gained possession of Primo’s
broodstock, and the life cycle of shrimp is approximately nine
months.

Thus,

the

shrimp

to

43

be

tested

are

at

least

nine

generations beyond the misappropriation of broodstock shrimp which
was found by the jury.
The Court is not persuaded that a permanent injunction would
serve the public interest. Plaintiff sells its shrimp broodstock
exclusively

to

Haimao,

which

only

makes

sales

in

China.

Plaintiff’s proposed permanent injunction, however, seeks to limit
sales both domestically and internationally. This case has already
demonstrated

how

attempting

to

enforce

a

less

restrictive

preliminary injunction in China was both fraught with legal issues
and impractical. See MacDougall v. Green, 335 U.S. 281, 290 (1948)
(Douglas, J., dissenting)("The equity court . . . must always be
alert in the exercise of its discretion to make sure that its
decree

will

not

be

a

futile

and

ineffective

thing.").

Additionally, the public interest would not be served by stifling
companies which sell table shrimp, like AMI. Accordingly, the
public interest considerations weigh against entry of a permanent
injunction.

The Court, in the exercise of its discretion, denies

TB Foods motion for a permanent injunction.
VI.

Plaintiff TB Food’s Motion For Enhanced/Exemplary Damages,
Pre- And Post-Judgment Interest, And Disgorgement

Plaintiff TB Food requests enhanced/exemplary damages, preand post-judgment interest, and disgorgement based on the jury
verdicts against defendants API and Mr. Pearl for willful and
malicious

misappropriation

of

TB

44

Food’s

trade

secrets

under

federal and state law, unfair competition under the Lanham Act,
and defamation. (Doc. #488.) For the reasons discussed below, the
motion is granted in part and denied in part.
(1)

Enhanced/Exemplary Damages

Plaintiff TB Food seeks enhanced/exemplary damages under the
Defend Trade Secrets Act (DTSA), the Florida Uniform Trade Secrets
Act (FUTSA) and the Lanham Act. (Id., pp. 2-3.) The DTSA provides,
“if the trade secret is willfully and maliciously misappropriated,
award exemplary damages in an amount not more than 2 times the
amount of the damages awarded under subparagraph (B) . . . .”
U.S.C.

§

1836(b)(3)(C)).

Similarly,

the

FUTSA

states:

18

“[i]f

willful and malicious misappropriation exists, the court may award
exemplary damages in an amount not exceeding twice any award made
under subsection (1).” Fla. Stat. § 688.004(2).

The Lanham Act

permits a Court “in its discretion, reduce or enhance the resulting
award up to three times the amount of profits or damages, whichever
is greater, as justice shall require.” Optimum Techs., Inc. v.
Home Depot U.S.A., Inc., 217 F. App'x 899, 904 (11th Cir. 2007)
(citing 15 U.S.C. § 1117(a)). "Such an award is discretionary, but
it may not be punitive, and must be based on a showing of actual
harm." Id. (quoting Babbit Elecs. Inc. v. Dynascan Corp., 38 F.3d
1161, 1183 (11th Cir. 1994) (per curiam)).
As to the federal trade secret claim in Count IV, the jury
found

that

API

and

Mr.

Pearl

45

had

willfully

and

maliciously

misappropriated one or more of Primo’s trade secrets, but awarded
no exemplary damages.

(Doc. #465, Questions 29, 30.)

As to the

Florida trade secret claim in Count V, the jury found that that TB
Food was entitled to compensatory but not exemplary damages. (Id.,
Question 39.)

As to the federal false advertising claim in Count

VI, the jury found that TB Food was entitled to compensatory but
not exemplary damages.

(Id., Question 49.)

The Court finds no reason to disagree with the jury as to these
determinations. See Fin. Info. Techs., LLC v. Icontrol Sys. USA,
LLC, 21 F.4th 1267, 1275 (11th Cir. 2021) (“It is for the jury to
determine whether a misappropriation was willful and malicious.”).
Given the facts and circumstances of the case as they relate to
these claims, the Court in the exercise of its discretion declines
to award enhanced or exemplary damages on any of the claims.

This

portion of the motion is denied.
(2)

Pre- And Post-Judgment Interest

Plaintiff TB Food also seeks prejudgment interest pursuant to
the Lanham Act. (Doc. #488, p. 3.) In Lanham Act cases, prejudgment
interest is available in the Court's discretion to successful
plaintiffs. Babbit Elecs., Inc., 38 F.3d at 1183 (“The Court may,
in its discretion, award prejudgment interest on the total amount
of the damages award.”). “The purpose of prejudgment interest is
to compensate the plaintiff for 'the foregone use of the money
between the time of infringement and the date of the judgment,"

46

Gen. Motors Corp. v. Devex Corp., 461 U.S. 648, 656 (1983), and to
place the plaintiff "in the situation [it] would have occupied if
the wrong had not been committed." Fromson v. W. Litho Plate and
Supply Co., 853 F.2d 1568, 1574 (Fed. Cir. 1988) (patent case).
Likewise, Plaintiff moves this Court to award prejudgment
interest with respect to its Florida state law claims. (Doc. #488,
p. 4.) Under Florida law, which has adopted the “loss theory,”
"prejudgment

interest

is

merely

another

element

of

pecuniary

damages." Argonaut Ins. Co. v. May Plumbing Co., 474 So. 2d 212,
214 (Fla. 1985). A plaintiff is entitled to prejudgment interest
as a matter of law; the computation of prejudgment interest is a
mathematical computation and a purely ministerial duty; and no
finding of fact is needed and no discretion is permitted. Seb S.A.
v. Sunbeam Corp., 476 F.3d 1317, 1320 (11th Cir. 2007) (citing
Argonaut Ins. Co., 474 So.2d at 215).

The “plaintiff is to be

made whole from the date of the loss once a finder of fact has
determined

the

amount

of

damages

and

defendant's

therefor.” Argonaut Ins. Co., 474 So.2d at 215.

liability

As to the rate,

TB Food suggests that the Court apply the Florida prejudgment
interest rate (4.25 % per annum) to both its Florida and federal
claims.

(Doc. #488, pp. 4-5, 10.)

TB Food argues that the

beginning date for the prejudgment interest is May 1, 2016, the
date on which Defendants took possession of the Primo shrimp
remaining on the property.

(Doc. #488, p. 9.)

47

The law is clear that TB Food is entitled to prejudgment
interest on its Florida claim, and the Court will therefore grant
this portion of the motion.

The Court awards prejudgment interest

on the Florida claims at the rate of 4.25%.

For the defamation

claim in Count II, prejudgment interest shall begin on November 3,
2016.

For the Florida trade secret claim in Count V, prejudgment

interest shall begin on May 1, 2016.
The Court will exercise its discretion and award prejudgment
interest on the federal claims.

Prejudgment interest on the

federal trade secret claim in Count IV shall begin on May 11, 2016,
the effective date of the federal statute.

Prejudgment interest

on the federal claim in Count VI shall begin on May 1, 2016.

The

prejudgment interest rate will be 0.37% pursuant to 28 U.S.C. §
1961(a).
(3)

Disgorgement

Plaintiff seeks disgorgement under the FUTSA, DTSA, and the
Lanham Act. Disgorgement is an equitable remedy that is intended
to prevent unjust enrichment and is measured by a defendant's illgotten profits or gains rather than a plaintiff's losses. S.E.C.
v. Monterosso, 756 F.3d 1326, 1337 (11th Cir. 2014).
is available under the FUTSA and DTSA.

Disgorgement

Advantor Sys. Corp. v. DRS

Tech. Servs., Inc., 678 F. App'x 839, 857 (11th Cir. 2017).
Additionally, the Lanham Act provides that, upon establishing a
false advertising violation, "the plaintiff shall be entitled, .

48

. . subject to the principles of equity, to recover . . .
defendant's profits[.]" 15 U.S.C. § 1117(a).

The primary limiting

principle is that the damages may not be "speculative." Hard Candy,
Ltd. Liab. Co. v. Anastasia Beverly Hills, Inc., 921 F.3d 1343,
1353 (11th Cir. 2019); Ramada Inns, Inc. v. Gadsden Motel Co., 804
F.2d 1562, 1564 (11th Cir. 1986) ("The partners stress that a
trademark infringement award must be based on proof of actual
damages and that some evidence of harm arising from the violation
must exist. . . .” With respect to disgorgement, the Eleventh
Circuit has explained
The Lanham Act permits recovery of profits because
actual damages are often difficult to prove. It "shifts
the burden of proving economic injury off the innocent
party, and places the hardship of disproving economic
gain onto the infringer." George Basch Co. v. Blue Coral,
Inc., 968 F.2d 1532, 1539 (2d Cir. 1992); Wesco Mfg.,
Inc. v. Tropical Attractions of Palm Beach, Inc., 833
F.2d 1484, 1487-88 (11th Cir. 1987). The statute does so
by expressly providing that "the plaintiff shall be
required to prove defendant's sales only," while the
"defendant must prove all elements of cost or deduction
claimed" against its profits. 15 U.S.C. § 1117(a). So,
when a plaintiff seeks an accounting and disgorgement of
profits as a remedy for trademark infringement, the
focus is entirely on the alleged infringer's gain; the
plaintiff is not required to present any evidence of
particular financial harm that it suffered so as to
justify legal redress.
Hard Candy, 921 F.3d at 1353-54.
TB Food seeks disgorgement of the “ill-gotten gains” by
Defendants, which it asserts amounts to over $12.1 million.
#488, pp. 10-14.)

(Doc.

Specifically, TB Food asserts that disgorgement

49

is appropriate based on API’s gross profits from breeder sales
from 2016 to 2019 in the amount of $10.8 million, AMI and API’s
combined profits of approximately $1.2 million from breeder sales
for the time period of August 2019 to July 2020, as well as at
least $22 million for the “head start” benefit Defendants received
by misappropriating Plaintiff’s trade secrets. (Id.)
The Court finds disgorgement is not appropriate as to any
claim. See SEC v. K.W. Brown & Co., 555 F. Supp. 2d 1275, 1312
(S.D. Fla. 2007) (quoting SEC v. First Jersey Sec. Inc., 101 F.3d
1450,

1474-75

discretion

.

(2d
.

Cir.

.

in

disgorgement . . . .").

1996)("The
determining

District
whether

Court
or

not

has

broad

to

order

The jury awarded substantial damages,

which appear to include the amounts now claimed by TB Food under
its disgorgement theory.

Contrary to TB Food’s calculation, the

Court finds that attempting to compute an amount to be disgorged
is speculative under the facts of this case.

This portion of the

motion is denied.
VII. Defendants AMI, API, and Mr.
Judgment Pursuant To Rule 59

Pearl’s

Motion

to

Amend

Pursuant to Federal Rule of Civil Procedure Rule 59(e),
Defendants AMI, API and Mr. Pearl request that the Court Amend the
Judgment (Doc. #500) rendered in this case. (Doc. # 530.)

More

specifically, Defendants seek to amend the judgment as to TB Food’s
trade

secret

claims

in

order

to

50

prevent

manifest

injustice

resulting

from

TB

Food’s

intentional

concealment

of

material

evidence and repeated perjury. (Doc. #530, p. 2.) Defendants
further argue that the judgment must be amended to preclude
duplicative recovery on TB Food’s “twin trade secret claims,” which
constitutes manifest error of law. (Id., p. 7.) Lastly, Defendants
state that the judgment must be amended to correct various manifest
errors of fact. (Id., p. 9.) For the reasons set forth, the motion
is granted in part and denied in part.
Federal Rule of Civil Procedure 59(e) allows the court to
alter or amend a judgment. Fed. R. Civ. P. 59(e). The only grounds
for altering or amending judgment are newly-discovered evidence
and manifest errors of law or fact. Arthur v. King, 500 F.3d 1335,
1343 (11th Cir. 2007). An order amending or altering judgment
entered according to a jury verdict is an "extraordinary remedy to
be employed sparingly in the interests of finality and conservation
of scarce judicial resources." Rodriguez v. Miami-Dade Cnty, 339
F. Supp. 3d 1279, 1288 (M.D. Fla. 2018).
relief

under

Rule

59(e)

must

demonstrate

The party requesting
strongly

convincing

reasons to reverse the judgment entered according to a jury
verdict.

Liese

v.

Delio,

No.

6:14-CV-1788-Orl-40DAB,

7325649, at *2 (M.D. Fla. May 26, 2016).

51

2016

WL

(1)

TB Food’s Intentional Concealment Of Material Evidence
and Perjury

Defendants argues that TB Food deliberately withheld crucial
information relating to the development and ownership of the shrimp
broodstock that forms the basis of its claims.
Defendants

assert

that

TB

Food

(Doc. #530, p. 2.)

purposefully

withheld

the

identification of Mr. Henry Uy, the owner and operator of Feedmix
Specialist

Inc.,

which

paid

for

the

purchase,

development,

transport, testing, and export of the all pathogen exposed (APE)
shrimp from Ecuador. (Id., p. 3.)

Defendants argue that TB Food

failed to identify Feedmix as an interested person in violation of
this Court’s January 13, 2017 Order, they did not provide relevant
documents relating to Feedmix despite requests for the same, and
Ken Gervais and Neil Gervais provided false testimony with respect
to

the

origin

of

Primo’s

founding

shrimp

broodstock.

(Id.)

According to Defendants, the reason for the concealment of this
information was to suppress information showing that Primo did not
own the founding shrimp broodstock, and thus TB Food does not own
the

“germplasm

or

genetics”

that

it

claims

Defendants

misappropriated. (Id., pp. 3-4.)
The Court has addressed these claims in conjunction with other
motions. Given that Defendants were able to cross-examine Ken
Gervais about Feedmix and Primo’s interactions and the shrimp
broodstock (Doc. #479, pp. 67-96, 103-07, 215-16), and the jury

52

was able to draw reasonable factual and credibility determinations
about the ownership of the shrimp broodstock and any related
misappropriation of trade secrets, the Court does not find that
there are any convincing reasons to amend the judgement entered
according to the jury verdict.

The Court finds no basis to amend

the judgment pursuant to Rule 59(e).
(2)

Duplicative Recovery on TB Food’s Trade Secret Claims

Defendants argue that the judgment in this case contains
manifest

legal

error

in

that

if

fails

to

account

for

the

duplicative recovery occasioned by the jury’s identical award of
damages on Plaintiff’s “twin trade secret claims.”
6; Doc. #530, p. 7.)

(Doc. #500, p.

Relying upon Conway v. Icahn & Co., 16 F.3d

504, 511 (2d Cir. 1994), Defendants argue that the jury in this
case did not express the intent to award TB Food separate damages
for two different causes of action.

(Id., pp. 7-8.) Rather,

Defendants assert that the jury’s identical award of damages for
violation of the DTSA and FUTSA constitutes an impermissible double
recovery under both federal and Florida law for two similar claims.
(Doc. #530, p. 8.) Defendants therefore contend that if the Court
allows the jury’s verdict as to Plaintiff’s trade secret claim to
stand, the judgment should be amended to state a single award of
$4,950,000 for the single injury occasioned by API and Mr. Pearl’s
misappropriation of trade secrets. (Id., pp. 8-9.)

53

TB Food responds that the jury’s award for damages under the
DTSA and FUTSA are not duplicative because the $9.9 million award
was well within the total damages proven at trial.

(Doc. #542, p.

8, citing Coquina Investments v. Rothstein, No. 10-69786-Civ, 2012
WL 4479057, 2012 U.S. Dist. LEXIS 139947 (S.D. Fla. Sept. 28,
2012)).
It is axiomatic that "no duplicating recovery of damages for
the same injury may be had." St. Luke's Cataract & Laser Inst.,
P.A. v. Sanderson, 573 F.3d 1186, 1203 (11th Cir. 2009) (citing
White v. United States, 507 F.2d 1101, 1103 (5th Cir. 1975). A
double recovery occurs when the damages awarded on two or more
claims stemming from the same conduct exceeds the actual damages
proven by the plaintiff at trial. See Democratic Republic of the
Congo v. Air Capital Group, LLC, 614 F. App'x 460, 474 (11th Cir.
2015).

Thus, “a plaintiff may recover damages on two claims

stemming from the same conduct if the total does not exceed actual
damages.”

Id.

While the award of damages stems
(defendants

API

and

Mr.

Pearl’s

from the same conduct

misappropriation

of

trade

secrets), the Court finds that the award for compensatory damages
under the DTSA and FUTSA is not duplicative because the damages
awarded do not exceed actual damages. The jury was instructed that
to the extent they are not duplicative, the jury could award actual
damages (i.e., lost revenue, profits, sales, customers, and profit

54

shares) and unjust enrichment, or reasonable royalties. (Doc.
#456, pp. 31-34, 38-39.) The jury found that TB Food proved by a
preponderance of the evidence that it was entitled to $4,950,000
in compensatory damages for its DTSA claim and $4,950,000 for its
FUTSA claim, for a total of $9.9 million.
A review of the record demonstrates that the $9.9 million
award does not exceed TB Food’s actual loss and is within the total
damages proven at trial.

As to damages for unjust enrichment, TB

Food provided two bases from which the amount of damages could be
inferred: (1) financial statements showing Defendants’ profits
from broodstock sales; and (2) expert testimony as to the value of
the “head start” Defendants received.

At trial TB Food presented

sufficient evidence showing that from 2016 through 2019, API
derived revenues from breeder sales that came from Primo genetics,
and that API was paying AMI for “broodstock grow-out services.”
(Docs. ## 236-239; Doc. #471, pp. 86, 98-99, 102-03, 110.) TB Food
estimated that Defendants were unjustly enriched by an amount equal
to API’s gross profits, plus internal transfers between API and
AMI for grow-out services, which totals over $10.8 million and is
broken down as follows:

55

(Docs. ##236-239.)

TB Food also presented evidence that it is due

at least another $1.2 million for profits Defendants received from
2019 through 2021 due to API’s sales of the high-vigor shrimpdescendants from Primo. (Docs. ##415-416; Doc. #471, pp. 112-19,
120-22.)
Finally,
Defendants

as

to

unjust

obtained

through

enrichment

from

the

“head

TB

Food’s

misappropriating

start”
trade

secrets, there was testimony that supported TB Food’s contention
that

Defendants

profited

millions

of

dollars

by

eliminating

development time (i.e., approximately 15 to 18 years) and millions
of dollars in investment costs (i.e., annual costs of $1.5 million
and $200,000 to $300,000 for genetic testing) to develop highdisease resistant shrimp, as well as maintaining or improving
resistance. (Docs. ##41, 219, 265; Doc. #467, pp. 20-23, 194-95,
203; Doc. #468, pp. 12, 153; Doc. #471, pp. 29, 45-49, 53-54; Doc.
#473, pp. 111-112, 117, 125-126, 131-134, 139, 143-144, 165; Doc.
#474, pp. 14-16, 21, 27-29, 33-39, 41-49, 51, 64-65, 80, 83, 8789, 92, 116, 127-128, 177, 211-213, 215-216, 218-219.)
Based

on

the

foregoing,

the

record

before

the

Court

demonstrates that TB Food presented sufficient evidence at trail
from which the jury determined that $9.9 million was adequate
compensatory

damages

for

defendant

56

API

and

Mr.

Pearl’s

misappropriation of trade secrets, and which falls well below the
actual damages.
(3)

Manifest Errors of Fact

Defendants argue that the judgment: (a) misstates the Court’s
determination of claims in favor of Defendants and against onetime

plaintiff

PB

Legacy,

Inc.;

(b)

misstates

the

Court’s

determination of claims in favor of third-party defendants Kenneth
Gervais

and

Randall

Aungst

and

against

Counter/Third-party

Plaintiff AMI; and (c) suffers from an apparent drafting bias in
favor of plaintiff TB Food and plaintiff/counter-defendant PB
Legacy, Inc. (Doc. #530, pp. 9-12.)

The Court will address

Defendants’ arguments below.
(a) Determination Of Claims In Favor Of Defendants And
Against PB Legacy, Inc.
Defendants contend that the final judgment misstates the
Court’s determination of claims in favor of Defendants and against
PB Legacy, Inc. (PB Legacy). (Doc. #530, p. 9.) Specifically,
Defendants assert that the judgment states that “On April 10, 2020,
an Opinion and Order (Doc. #306) was entered granting summary
judgment as to PB Legacy, Inc., which was dismissed without
prejudice as plaintiff in all counts in the Amended Complaint.”
(Doc. #500, p. 5.) Defendants, however, contend that a factually
correct statement of that decision, and one that is consistent
with other decisional statements contained in the same section,

57

would state, “On April 10, 2020, an Opinion and Order (Doc. #306)
was entered granting summary judgment in favor of defendants as to
Counts III through VIII of the Amended Complaint (Doc. #20) as
brought by plaintiff PB Legacy, Inc.” (Doc. #530, p. 9)(proposed
changes underlined).
Plaintiff responds that given the Court’s denying Defendants’
motion for summary judgment for lack of standing, in which the
Court dismissed PB Legacy claims without prejudice, Defendants
present request invites the Court to misstate its prior ruling and
the jury’s findings in Defendants’ favor to aide their appeal (most
likely in challenging the Court’s ruling as to standing).
Upon review of the April 10, 2020 Opinion and Order, the Court
agrees that this portion of the judgment entitled “non-jury” is
more properly stated as follows:
On April 10, 2020, an Opinion and Order (Doc. #306) was
entered granting Defendants’ motion for final summary
judgment as to PB Legacy, Inc., which was dismissed
without prejudice as a plaintiff as to all counts in the
Amended Complaint (Doc. #20), but was otherwise denied.
(b) Determination Of Claims In Favor Of Third-Party
Defendants Kenneth Gervais And Randall Aungst And
Against Counter/Third-Party Plaintiff AMI
Defendants also argue that the judgment misstates the Court’s
determination in favor of third-party defendants Kenneth Gervais
and Randall Aungst and against counter/third-party plaintiff AMI.
(Doc. #530, p. 9.) Defendants assert that the third paragraph of
the judgment under the heading “Non-Jury” states, “On May 5, 2020,

58

an Opinion and Order (Doc. #307) was entered granting summary
judgment in favor of third-party defendants Kenneth Gervais and
Randall Aungst as to all counts in the Amended Complaint (Doc.
#20) against them.” (Doc. #500, p. 2.) Defendants, however, suggest
that a factually correct statement of that decision would state,
“On May 5, 2020, an Opinion and Order (Doc. #307) was entered
granting

summary

judgment

in

favor

of

third-party

defendants

Kenneth Gervais and Randall Aungst as to Counts II and III of the
Counterclaim

brought

by

third-party

Plaintiff

American

Mariculture, Inc. (Doc. #80).” (Doc. #530, p. 10)(proposed changes
underlined).
The Court has reviewed the May 5, 2020 Opinion and Order,
which only addresses Count III of the counterclaim brought by
third-party AMI as to Mr. Aungst, and which only granted Mr.
Aungst’s motion for summary judgment as to Count III. (Doc. #307,
p. 19.)

On January 23, 2020, the Court issued an Opinion and Order

granting in part and denying in part PB Legacy and Kenneth Gervais’
motion

for

partial

summary

judgment.

Specifically,

the

Order

granted summary judgment in favor of Kenneth Gervais as to Counts
I through III of the Counterclaim, and PB Legacy as to Count III.
Accordingly, the Court finds that amendment of the final
judgment (in the section entitled “Non-Jury”) is warranted and
shall state as follows:

59

“On January 23, 2020, an Opinion and Order (Doc. #285)
was entered granting summary judgment in favor of thirdparty defendant Kenneth Gervais as to Counts I through
III of the Counterclaim, and third-party defendant PB
Legacy, Inc. as to Count III of the Counterclaim brought
by third-party Plaintiff American Mariculture, Inc.
(Doc. #80).”
“On May 5, 2020, an Opinion and Order (Doc. #307) was
entered granting summary judgment in favor of thirdparty defendant Randall Aungst as to Count III of the
Counterclaim brought by third-party Plaintiff American
Mariculture, Inc. (Doc. #80).”
(Docs. ## 285, 307.)
Defendants maintain that there are additional factual errors
in the judgment which states as follows:
(a)

Judgment
is
entered
in
favor
of
American
Mariculture, Inc., American Peneaid, [sic] Inc.
and Robin Pearl as to Count II and Count IX of the
Amended Complaint (Doc. #20) and plaintiff TB Food
USA, LLC shall take nothing as to these counts.

(b)

Judgment is entered dismissing without prejudice
PB Legacy, Inc. as plaintiff in all counts in the
Amended Complaint (Doc. #20).

(c)

Judgment is entered in favor of Kenneth Gervais
and Randall Aungst as to all counts against them
in the Amended Complaint (Doc. #20), and plaintiff
TB Food USA, LLC shall take nothing as to these
defendants.

(Doc. #500, p. 5.)
Defendants suggest that a factually correct statement of the
Court’s prior decisions incorporated into the judgment would read
as follows:
(a)

Judgment
is
entered
in
favor
of
American
Mariculture, Inc., American Peneaid, [sic] Inc. and
Robin Pearl as to Count II and Count IX of the

60

Amended Complaint (Doc. #20) and plaintiffs TB Food
USA, LLC and PB Legacy, Inc. shall take nothing as
to these counts.
(b)

Judgment
is
entered
in
favor
of
American
Mariculture, Inc., American Peneaid, [sic] Inc. and
Robin Pearl as to Count III through Count VIII of
the Amended Complaint (Doc. #20) and plaintiff PB
Legacy, Inc. shall take nothing as to these counts.

(c)

Judgment is entered in favor of Kenneth Gervais and
Randall Aungst as to Count II and Count III of the
Counterclaim (Doc. #80) and counter- and thirdparty plaintiff American Mariculture, Inc. shall
take nothing as to these third-party defendants.

(Doc. #530, pp. 10-11) (proposed changes underlined).
Plaintiff

responds,

stating

that

it

does

not

oppose

Defendants’ proposed language changes as stated above in Section
(a). (Doc. #542, p. 11 n.11.) Likewise, Plaintiff does not object
to Section (c), but suggests the following correction:
(c) Judgment is entered in favor of Kenneth Gervais and
Randall Aungst as to all counts against them in the
Counterclaim (Doc. #80) and counter- and third-party
plaintiff American Mariculture, Inc. shall take nothing
as to these third-party defendants.
(Id.)(proposed changes in bold).
The Court finds that Defendants’ proposed changes to Section
(a) and (b) and Plaintiff’s proposed version of Section (c) are
appropriate.

The final judgment will therefore be amended to

reflect such changes.

61

(c) Drafting Bias In Favor Of Plaintiff TB Food And
Plaintiff/Counter-Defendant PB Legacy, Inc.
Defendants argue that the judgment, as drafted, suffers from
an apparent drafting bias in favor of Plaintiff TB Food, and
plaintiff/counter-defendant

PB

Legacy.

(Doc.

#530,

p.

11.)

According to Defendants, the judgment arising from the jury’s
verdict in favor of defendant AMI on Count I of the Amended
Complaint (for the breach of contract claim) is stated in terms
decidedly more favorable to plaintiff TB Food than the verdict
warrants, and when compared to the judgment arising from the jury’s
verdict

on

Count

IV

of

the

counterclaim

in

favor

of

plaintiff/counter-defendant PB Legacy, which states a breach of
the same contract.

(Id.)

As currently stated, the judgment as to

Count I, states
Count I: Judgment is entered in favor of American
Mariculture, Inc. as to the breach of contract claim
relating to the Nondisclosure Agreement and the GrowOut Agreement based on the jury findings that while
American Mariculture, Inc. had breached the contracts,
American Mariculture, Inc. had proven that the breach of
contract claim was barred by the in pari delicto defense.
TB Food USA, LLC shall take nothing as to this claim.
(Doc. #500, pp. 2-3) (emphasis in the original).

Defendants

propose that the judgment should read as follows as to Count I:
Count I: Judgment is entered in favor of American
Mariculture, Inc. as to the breach of contract claim
relating to the Nondisclosure Agreement and the GrowOut Agreement and TB Food USA, LLC shall take nothing as
to this claim based on the jury finding that American
Mariculture, Inc. had proven its defense of in pari

62

delicto and that TB Food USA, LLC was precluded from
bringing this claim.
(Doc. #530, p. 12)(proposed changes underlined).
Plaintiff responds that Defendants are asking the Court to
remove the portion of the judgment that accurately reflects the
jury’s verdict that AMI breached both the NDA and the GOA, which
will result in a judgment that is biased in Defendants’ favor and
aid Defendants in their appeal. (Doc. #542, p. 11.)
The

Court

is

not

persuaded

by

Defendants’

argument

and

declines to amend this portion of the judgment.
VIII. Defendants AMI, API, and Mr. Pearl’s Motion To Dismiss
Count IV of the Amended Complaint For Lack of Subject
Matter Jurisdiction
Defendants AMI, API, and Mr. Pearl renew their Motion to
Dismiss Count IV of the Amended Complaint For Lack of Subject
Matter Jurisdiction. (Doc. #543.) Defendants note that in its
Original Motion to Dismiss, they argued that TB Food’s claim under
the DTSA was premised on alleged misappropriation of trade secrets
that occurred on or about April 30, 2016, and that the Court lacked
subject matter jurisdiction because the DTSA became effective on
May 16, 2016. (Doc. #543, p. 1-2.)

Defendants further note that

as a facial challenge to subject matter jurisdiction, the Court
was restricted to the four corners of the Amended Complaint when
it

concluded

that

Plaintiff

had

provided

sufficient

factual

allegations to plausibly demonstrate misappropriation of trade

63

secrets on and after May 11, 2016. (Doc. #378, p. 8; Doc. #543, p.
2.) Defendants, however, argue that with the benefit of a jury
trial it is now clear that any alleged misappropriation occurred
on April 30, 2016, when Defendants took possession of the shrimp
broodstock, and any subsequent act was not a separate act of
misappropriation under the DTSA.

(Doc. #543, pp. 2-3.) Therefore,

Defendants conclude the Court lacks subject matter jurisdiction
over TB Food’s Count IV of the Amended Complaint. (Id., p. 3.)
While the Court understands Defendants’ argument, the issue
before

the

Court

is

not

one

of

jurisdiction.

The

crux

of

Defendants’ argument, whether any misappropriation of a trade
secret occurred on or after May 11, 2016, is a merits question.
Subject-matter jurisdiction, by contrast, “refers to a tribunal's
power to hear a case.”

Union Pac. R. Co. v. Locomotive Engineers

and Trainmen Gen. Comm. of Adjustment, Central Region, 558 U.S.
67, 81 (2009) (citation and quotations omitted). It presents an
issue quite separate from the question whether the allegations the
plaintiff makes entitle him to relief. See Bell v. Hood, 327 U.S.
678, 682 (1946)("Jurisdiction . . . is not defeated . . . by the
possibility that the averments might fail to state a cause of
action on which [a plaintiff] could actually recover.").

Although

a "suit may sometimes be dismissed for want of jurisdiction where
the alleged claim under the Constitution or federal statutes
clearly appears to be immaterial and made solely for the purpose

64

of

obtaining

jurisdiction

or

where

such

a

claim

is

wholly

insubstantial and frivolous", Id. at 682-83, that is not the case
here.

As the Court previously found, Plaintiff had alleged a

plausible claim for misappropriation of trade secrets under the
DTSA (over which this
dismissal

for

warranted.

lack

of

Court has jurisdiction), and as such,
jurisdiction

over

this

claim

is

not

See Perry v. MSPB, 137 S. Ct. 1975, 1984 (2017)

(quoting Bell, 327 U.S. at 682-83) (To invoke federal-question
jurisdiction, allegations in a complaint must simply be more than
“insubstantial or frivolous,” and “[i]f the court does later
exercise its jurisdiction to determine that the allegations in the
complaint do not state a ground for relief, then dismissal of the
case would be on the merits, not for want of jurisdiction.”)
Defendants’

motion

to

dismiss

Count

IV

of

the

Amended

Complaint for lack of subject matter jurisdiction is therefore
denied.
Accordingly, it is now
ORDERED:
1. Defendants American Mariculture, Inc., American Penaeid,
Inc., and Robin Pearl’s Motion For a New Trial Pursuant to
Rule 59 (Doc. #483) is DENIED.
2. Defendants American Penaeid, Inc. and Robin Pearl’s Renewed
Motion for Judgment As a Matter Of Law (Doc. #484) is
DENIED.

65

3. Plaintiff

TB

Food

USA,

LLC’s

Motion

For

Permanent

Injunction (Doc. #485) is DENIED.
4. Plaintiff TB Food USA, LLC’s Renewed Motion for Judgment
As a Matter Of Law (Doc. #486) is DENIED.
5. Defendants American Mariculture, Inc., American Penaeid,
Inc., and Robin Pearl’s Renewed Motion for Sanctions (Doc.
#487) is DENIED.
6. Plaintiff TB Food USA, LLC’s Motion For Enhanced/Exemplary
Damages, Pre- and Post-Judgment Interest, and Disgorgement
(Doc. #488) is GRANTED in part as follows, but is otherwise
DENIED.
a. TB Food is awarded prejudgment interest on its
Florida

claims

at

a

rate

of

4.25%.

For

its

defamation claim (Count II), prejudgment interest
shall commence on November 3, 2016, and for its
Florida trade secret claim (Count V), prejudgment
interest shall commence on May 1, 2016.
b. TB Food is awarded prejudgment interest on its
federal claims at a rate of 0.37% pursuant to 28
U.S.C. § 1961(a).
claim

(Count

IV),

For its federal trade secret
prejudgment

interest

shall

commence on May 11, 2016, and for its federal unfair
competition claim (Count VI), prejudgment interest
shall commence on May 1, 2016.

66

7. Defendants American Mariculture, Inc., American Penaeid,
Inc., and Robin Pearl’s Motion to Amend Judgment Pursuant
To Rule 59 (Doc. #530) is GRANTED in part as follows, but
is otherwise DENIED.
a. The

“Non-Jury”

section

of

the

final

judgment

is

amended to include the following:
On January 23, 2020, an Opinion and Order (Doc. #285)
was entered granting summary judgment in favor of
third-party defendant Kenneth Gervais as to Counts I
through III of the Counterclaim, and third-party
defendant PB Legacy, Inc. as to Count III of the
Counterclaim
brought
by
third-party
Plaintiff
American Mariculture, Inc. (Doc. #80).
On April 10, 2020, an Opinion and Order (Doc. #306)
was entered granting Defendants’ motion for final
summary judgment as to PB Legacy, Inc., which was
dismissed without prejudice as a plaintiff as to all
counts in the Amended Complaint (Doc. #20), but was
otherwise denied.
On May 5, 2020, an Opinion and Order (Doc. #307) was
entered granting summary judgment in favor of thirdparty defendant Randall Aungst as to Count III of the
Counterclaim
brought
by
third-party
Plaintiff
American Mariculture, Inc. (Doc. #80).
b. Pursuant to the Court’s prior Opinions and Orders,
judgment is amended to include the following:
(a) Judgment is entered in favor of American
Mariculture, Inc., American Penaeid, Inc. and
Robin Pearl as to Count II and Count IX of the
Amended Complaint (Doc. #20) and plaintiffs TB
Food USA, LLC and PB Legacy, Inc. shall take
nothing as to these counts.
(b) Judgment is entered in favor of American
Mariculture, Inc., American Penaeid, Inc. and
Robin Pearl as to Count III through Count VIII

67

of the Amended Complaint (Doc. #20) and plaintiff
PB Legacy, Inc. shall take nothing as to these
counts.
(c) Judgment is entered in favor of Kenneth Gervais
and Randall Aungst as to all counts against them
in the Counterclaim (Doc. #80) and counter- and
third-party plaintiff American Mariculture, Inc.
shall take nothing as to these third-party
defendants.
8. Defendants American Mariculture, Inc., American Penaeid,
Inc., and Robin Pearl’s Motion To Dismiss Count IV of the
Amended Complaint For Lack of Subject Matter Jurisdiction
(Doc. #543) is DENIED.
9. The Clerk of the Court shall file an Amended Judgment
consistent with this Opinion and Order.
DONE AND ORDERED at Fort Myers, Florida, this
August, 2022.

Copies:
Counsel of Record

68

1st

day of