Connectus LLC v. Ampush Media, Inc.

Filing 233

ORDER: Defendant Ampush Media, Inc.'s Motion for Summary Judgment (Doc. # 212 ) is DENIED. Signed by Judge Virginia M. Hernandez Covington on 5/4/2017. (DRW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CONNECTUS LLC,
Plaintiff,
v.

Case No. 8:15-cv-2778-T-33JSS

AMPUSH MEDIA, INC.,
Defendant.
_____________________________/
ORDER
This matter comes before the Court upon consideration of
Defendant Ampush Media, Inc.’s Motion for Summary Judgment
(Doc. # 212), filed on February 22, 2017. Plaintiff Connectus
LLC filed its response on March 24, 2017. (Doc. # 220). Ampush
replied on April 7, 2017. (Doc. # 227). The Motion is denied.
I.

Background
Connectus brought suit against Ampush on December 3,

2015. (Doc. # 1). Connectus then amended its Complaint on
December 11, 2015, to assert claims against DGS Edu, LLC and
Ampush. (Doc. # 9). Litigation proceeded and, after extensive
briefing, Ampush’s and DGS Edu’s Rule 12(c) motions were
granted in part, which resulted in Connectus filing its Third
Amended Complaint on January 30, 2017. (Doc. # 188); (Doc. #
200).

The

Third

Amended

Complaint

asserts

claims

under

California’s Uniform Trade Secrets Act, Cal. Civ. Code § 3426,
et seq., and for breach of contract against Ampush and DGS
Edu. (Id.).
After the parties fully briefed summary judgment, DGS
Edu reached a settlement with Connectus. (Doc. # 229). Upon
Connectus’s motion, the Court dismissed the claims against
DGS Edu with prejudice. (Doc. # 230). Ampush is now the sole
defendant.
Connectus and Ampush agree on very little. But what is
evident is Ampush and Connectus entered into an agreement on
May 31, 2013. (Doc. # 200-1). The agreement stated, in part:
1.1

Scope

This Service Level Agreement (this “Agreement”),
entered into on May 31, 2013, by and between Ampush
Media,
Inc.
(“AMPUSH”)
and
EDegreeAdvisor,
LLC[1](“VENDOR”)
governs
the
rights
and
responsibilities of the foregoing parties with
respect to the call center services provided by
VENDOR to AMPUSH at all times throughout the course
of their business relationship (the “Service
Period”).
. . . .
1.4

Definitions

Qualified Lead: All leads submitted to Ampush must
contain the following:
i.
ii.

Campus Name;
Last Name of Lead;

1

Connectus does business as EDegreeAdvisor LLC.

2 

iii.
iv.
v.
vi.
vii.
viii.
ix.
x.
xi.
xii.
xiii.
xiv.
xv.
xvi.

First Name of Lead;
Lead IP Address;
Lead Address;
Lead City;
Lead State;
Lead Zip Code;
Lead Country;
Lead Phone Number;
Lead Phone Number Designation;
Lead Email Address;
Program/Area of Interest Requested;
Date/Time Company generates the Lead;
Level of Education; [and]
GED/High School Graduation Year[.]

. . . .
Confidential Information: Means any confidential or
proprietary information, source code, software
tools, designs, schematics, plans or any other
information relating to any research project, work
in
process,
future
development,
scientific,
engineering, manufacturing, marketing or business
plan or financial or personnel matter relating to
either party, its present or future products,
sales, supplies, clients, client lists or other
client
information,
employees,
investors
or
business, disclosed by one party to the other
party, whether in oral, written, graphic or
electronic
form,
and
whose
confidential
or
proprietary nature is identified at the time of
such
disclosure
or
by
the
nature
of
the
circumstances
surrounding
disclosure
should
reasonably be understood to be confidential.
. . . .
2.3 Service Level Indications
. . . .
Any lead(s) generated for which there is no
accompanying audio within forty-eight (48) hours
shall be considered unqualified and will not be
billable.

3 

. . . .
AMPUSH shall only pay for Qualified Leads as
defined above. . . . Any leads . . . submitted to
more than three (3) schools will be considered
unqualified and will not be paid.
. . . .
AMPUSH will not accept leads generated from “cold
calls” . . . .
. . . .
AMPUSH will NOT accept Leads generated from third
party lists, i.e., rented lists. Leads generated in
this manner will be deemed Unqualified Leads.
. . . .
A CCR must always attempt to match the consumer to
the program and/or school preference indicated by
the consumer’s responses to the pre-qualification
questions. If the consumer is unqualified for their
preferred school or program, or if such school or
program is unavailable, then the CCR may suggest
alternative schools or programs . . . . If the
consumer is unqualified, or will not accept a match
to, the school or programs available, the call must
be terminated . . . without submitting any lead
form(s).
. . . .
3.4 Reporting of Qualified Leads; Returns
A Qualified Lead is generated when an individual
that is interested in one or more of the educational
opportunities offered by AMPUSH or its clients and
accurately completes a program lead form via a call
center agent. AMPUSH shall provide [Connectus] with
preliminary Qualified Lead counts on a daily basis.
Accordingly, leads that are not Qualified shall be
reviewed and returned to [Connectus] thirty (30)

4 

days following the end of the calendar month in
which such Lead was generated. It is understood and
agreed that AMPUSH’s records in determining the
number of Qualified Leads shall control and be
binding upon the parties.
. . . .
5.1

Non-Disclosure

Each party agrees that it will not make use of,
disseminate or in any way disclose the other
party’s Confidential Information to any person,
firm or business, except as authorized in this
Agreement and to the extent necessary for
performance of this Agreement. Each party agrees
that it will disclose Confidential Information only
to those of its employees and contractors who need
to know such information and who have previously
agreed to be bound by the terms and conditions of
this Agreement. Each party agrees that it will
treat all Confidential Information of the other
party with the same degree of care as it accords
its own confidential information; each party
represents that it exercises reasonable care to
protect its own confidential information.
. . . .
6.

GOVERNING LAW & ATTORNEYS’ FEES

The interpretation and construction of this
Agreement and all matters relating hereto shall be
governed by the laws . . . of California. . . .
(Doc. # 200-1 at ¶¶ 1.1, 1.4, 2.3, 3.4, 5.1, 6).
The crux of the parties’ dispute—how Connectus input
data into Ampush’s portal and what Ampush did with that data—
arises from the parties’ differing readings of the agreement.
For its part, Ampush maintains Connectus was to contact

5 

prospective
Ampush’s

students

portal

and

after

submit

lead

collecting

the

information
data

into

from

the

prospective student. (Doc. # 212-6, Mayberry Depo. at 46:447:09). Ampush would use that data to determine whether the
prospective student matched with a university. (Id. at 47:1016).

If

the

student

matched

with

a

university,

it

was

considered a “Prequalified Lead,” which would be submitted to
the

university.

(Id.

at

47:17-23).

The

university

would

either reject the lead, causing the Prequalified Lead to
become an Unqualified Lead, or accept the lead, causing the
Prequalified Lead to become a Qualified Lead. (Id. at 47:2548:17).

Ampush

was

contractually

bound

to

only

pay

for

Qualified Leads. (Doc. # 200-1 at ¶ 2.3).
Furthermore, Ampush indicates all the data entered into
its portal would be stored in its database (Doc. # 212-2 at
¶¶ 4, 7), which was automatically swept every seven minutes
to filter out “ancillary data,” (Id. at ¶ 7). Ancillary data
is defined by Ampush as data that was entered into the portal
for which no match was found or which otherwise failed to
become a Prequalified Lead. (Id. at ¶ 4). But, Connectus
disputes the use of that term within the industry. (Doc. #
220-1 at ¶ 15); (Doc. # 220-4, Einhaus Depo. at 65:4-11).

6 

Ampush

also

maintains

it

never

developed

software

enabling Connectus to ping or search Ampush’s portal. (Doc.
# 212-2 at ¶¶ 8, 9). Rather, according to Ampush, Connectus
developed its own software and would mass-ping data into the
portal, which resulted in a large amount of ancillary data.
(Id. at ¶¶ 10, 11). Ampush sold the ancillary data in bulk.
(Doc. # 212-2 at ¶ 4); (Doc. # 212-6, Mayberry Depo. at 49:1350:2).
On

the

other

hand,

Connectus

points

out

the

terms

ancillary data and Prequalified Lead do not show up in the
agreement.

(Doc.

#

200-1).

In

addition,

Connectus

notes

acceptance of a lead by a university is not a component of a
Qualified Lead, as the term is defined under the agreement.
(Id. at ¶ 1.4). Connectus further cites evidence that Ampush
did, in fact, allow Connectus to ping leads into the portal,
and even helped to troubleshoot when issues arose with pinging
the portal. (Doc. # 220-1 at ¶¶ 7, 8); (Doc. # 220-7).
Connectus also presents a different understanding of how
the process of submitting leads into Ampush’s portal was to
function.

According

to

Connectus,

its

call

center

representative would call prospective students and gather
lead information. (Doc. # 220-1 at ¶ 4). The representative
was allowed, but not required, to use Ampush’s portal to

7 

attempt to find a match for the prospective student. (Id. at
¶ 5). If the representative used Ampush’s portal, the lead
information was prepopulated into the data fields and then
the representative would click a “search” button, resulting
in a search of Ampush’s database. (Id. at ¶¶ 7, 8). If the
search yielded a match, the representative would seek the
prospective

student’s

permission

for

the

university

to

contact him or her. (Id. at ¶ 10). If the prospective student
consented, the representative would click the “submit” button
and formally submit the lead to Ampush. (Id.).
In

addition,

the

parties

dispute

whether

lead

information is considered confidential. Connectus maintains
lead information is confidential information, and Ampush knew
or should have known as much, based on the agreement and
industry standardized practice. (Doc. # 200-1 at ¶¶ 1.4, 5.1);
(Doc. # 212-11, Marinucci Depo. at 113:19-114:6); (Doc. #
220-1 at ¶ 9); (Doc. # 220-4, Einhaus Depo. at 72:23-74:3,
88:2-15). Moreover, Connectus took efforts to ensure its lead
data remained confidential. (Doc. # 212-19, Goodman Depo. at
19:2-20:24). In contrast, Ampush asserts lead information was
not identified by Connectus as confidential and therefore the
information was not protected under the agreement. (Doc. #
212 at 3, ¶¶ 18-20).

8 

II.

Legal Standard
Summary judgment is appropriate “if the movant shows

that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”

Fed.

R. Civ. P. 56(a). A factual dispute alone is not enough to
defeat a properly pled motion for summary judgment; only the
existence of a genuine issue of material fact will preclude
a grant of summary judgment. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986).
An issue is genuine if the evidence is such that a
reasonable jury could return a verdict for the non-moving
party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742
(11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ’g
Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if
it may affect the outcome of the suit under the governing
law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.
1997). The moving party bears the initial burden of showing
the court, by reference to materials on file, that there are
no genuine issues of material fact that should be decided at
trial. Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256,
1260 (11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986)). “When a moving party has discharged
its burden, the non-moving party must then ‘go beyond the

9 

pleadings,’ and by its own affidavits, or by ‘depositions,
answers

to

interrogatories,

and

admissions

on

file,’

designate specific facts showing that there is a genuine issue
for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,
593-94 (11th Cir. 1995) (citing Celotex, 477 U.S. at 324).
If there is a conflict between the parties’ allegations
or evidence, the non-moving party’s evidence is presumed to
be true and all reasonable inferences must be drawn in the
non-moving party’s favor. Shotz v. City of Plantation, Fla.,
344 F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact
finder evaluating the evidence could draw more than one
inference from the facts, and if that inference introduces a
genuine issue of material fact, the court should not grant
summary judgment. Samples ex rel. Samples v. City of Atlanta,
846 F.2d 1328, 1330 (11th Cir. 1988) (citing Augusta Iron &
Steel Works, Inc. v. Emp’rs Ins. of Wausau, 835 F.2d 855, 856
(11th Cir. 1988)).
consists

of

conclusional

However,

nothing

if

“more

allegations,”

the

than

summary

non-movant’s
a

repetition

judgment

is

response
of
not

his
only

proper, but required. Morris v. Ross, 663 F.2d 1032, 1034
(11th Cir. 1981).

10 

III. Analysis
As a preliminary matter, the parties have each objected
to the other’s use of certain evidence at summary judgment.
(Doc. ## 221, 224, 225, 226, 231, 232). Even assuming, without
deciding,

that

all

of

Ampush’s

proffered

evidence

is

admissible, summary judgment still would not be appropriate.
Ampush objects to the declaration testimony of Naomi
Barbeau, Connectus’s executive vice president of call center
operations.

(Doc.

#

231).

Ampush

argues

Barbeau

lacks

personal knowledge because she was not employed by Connectus
while Ampush and Connectus were in business with each other.
(Id.). The Court finds Ampush’s objection to be well-taken
and excludes from its consideration Barbeau’s testimony to
the extent Connectus proffered such testimony to show the
practices of Ampush while it was in business with Connectus.
Ampush

further

objects

to

Barbeau’s

declaration

testimony on the grounds that it constitutes improper opinion
testimony and it is irrelevant. However, as vice president of
call

center

operations,

her

particularized

knowledge

is

proper lay witness testimony. United States v. Hill, 643 F.3d
807, 841-42 (11th Cir. 2001) (“Rule 701 does not prohibit lay
witnesses from testifying based on particularized knowledge
gained from their own personal experiences”). Furthermore, as

11 

Barbeau

is

an

executive

within

the

educational

lead

generation industry, her testimony with respect to industry
standards as a whole is not irrelevant. Thus, the objections
are overruled.
In addition, Ampush objects to the deposition testimony
of Brian Einhaus and Kolin Porter, corporate representatives
for

non-party

educational

companies

lead

that

generation

also

industry.

operate
(Doc.

within
#

232).

the
In

relevant part, Ampush argues the testimony is irrelevant and
impermissible opinion testimony. But the experience Einhaus
and

Porter

have

gained

through

their

respective

particularized experiences in the educational lead generation
industry are proper topics for their lay testimony, Hill, 643
F.3d at 841-42, and such testimony is relevant to this action
in that it goes towards industry standards and provides a
basis for inferring consequences of Ampush’s alleged actions.
The objections to the testimony cited herein are therefore
overruled.
A.

Breach of Contract Claim

California law has four elements to a claim for breach
of contract: “(1) a contract, (2) plaintiff’s performance or
excuse for nonperformance, (3) defendant’s breach, and (4)
damage to plaintiff.” Walsh v. W. Valley Mission Cmty. Coll.

12 

Dist., 78 Cal. Rptr. 2d 725, 733 (Cal. Dist. Ct. App. 1998).
Ampush argues Connectus cannot establish the second, third,
or fourth elements.
1.

The Second Element: Performance or Excuse

Ampush

asserts

Connectus

itself

breached

“several

express provisions of the” agreement. (Doc. # 212 at 19).
According to Ampush, Connectus violated the agreement by
pinging

data

submitting

a

into

Ampush’s

Qualified

portal

Lead.

rather

Connectus,

than

formally

however,

has

presented evidence that its practice of pinging data into the
portal was enabled and supported by Ampush. (Doc. ## 220-5,
220-7). Thus, a genuine issue of material fact exists and
summary judgment is not appropriate.
Ampush’s

additional

arguments

as

to

how

Connectus

putatively breached the agreement also fail to persuade the
Court. The agreement does not obligate Connectus to solely
make calls on behalf of Ampush (Doc. # 200-1) and Connectus
presented evidence it used the script developed by Ampush
(Doc. # 212-4, Borghese Depo. at 60:17-61:3); (Doc. # 21220, Marinucci Depo. at 170:23-171:23).
2.

The Third Element: Defendant’s Breach

“Under California law, the interpretation of a contract
is a question of law.” In re Bennett, 298 F.3d 1059, 1064

13 

(9th Cir. 2002) (citation omitted). “‘The fundamental goal of
contract[] interpretation is to give effect to the mutual
intention of the parties. If contractual language is clear
and

explicit,

it

governs.’”

Id.

(citations

omitted).

“Although the intent of the parties determines the meaning of
the contract . . ., the relevant intent is ‘objective’—that
is, the objective intent as evidenced by the words of the
instrument, not a party’s subjective intent.” Shaw v. Regents
of Univ. of Cal., 67 Cal. Rptr. 2d 850, 856 (Cal. Dist. Ct.
App. 1997). Moreover,
particular expressions may, by trade usage, acquire
a different meaning in reference to the subject
matter of a contract. If both parties are engaged
in that trade, the parties to the contract are
deemed to have used them according to their
different and peculiar sense as shown by such trade
usage and parol evidence is admissible to establish
the trade usage even though the words in their
ordinary or legal meaning are entirely unambiguous.
Hayter Trucking, Inc. v. Shell W. E&P, Inc., 22 Cal. Rptr. 2d
229, 238 (Cal. Dist. Ct. App. 1993).
Furthermore, “the Court may consider extrinsic evidence
of the parties’ intent when the contract is ambiguous.”
Mattel, Inc. v. MGA Entm’t, Inc., 782 F. Supp. 2d 911, 943
(C.D. Cal. 2011) (citation omitted). “Admissible extrinsic
evidence includes ‘surrounding circumstances under which the
parties negotiated or entered into the contract; the object,

14 

nature, and subject matter of the contract; and the subsequent
conduct of the parties.’” Id. (citation omitted). “[W]hen .
. . ascertaining the intent of the parties at the time the
contract was executed depends on the credibility of extrinsic
evidence,

that

credibility

determination

and

the

interpretation of the contract are questions of fact that may
properly be resolved by the jury.” City of Hope Nat’l Med.
Ctr. v. Genentech, Inc., 181 P.3d 142, 156 (Cal. 2008).
a.

Non-disclosure provisions

Paragraph 1.4 defines three terms, two of which are
relevant here. The first is “Qualified Lead,” defined as a
lead containing sixteen specific data points. (Doc. # 200-1
at ¶ 1.4). The second is “Confidential Information,” which
contains three elements.
The first element of Confidential Information lists
twenty-five categories of information that fall within its
ambit,

two

of

which

are

confidential

information

and

proprietary information. (Id.). The second element requires
that the information be disclosed by one party to the other.
(Id.). And the third element requires that the information’s
confidential or proprietary nature be “identified at the time
of . . . disclosure or by the nature of the circumstances

15 

surrounding disclosure should reasonably be understood to be
confidential.” (Id.).
Although the parties dispute whether leads constitute
confidential or proprietary information, as those terms are
used in their agreement, it is undisputed both parties are
engaged in the same industry of generating leads to sell to
universities. As such, Connectus may rely on trade usage to
show its construction of the agreement is proper, see Hayter
Trucking, 22 Cal. Rptr. 2d at 238, which it has done (Doc. #
145-7, Porter Depo. at 33:3-13); (Doc. # 212-11, Marinucci
Depo. at 113:19-114:6); (Doc. # 220-1 at ¶ 9); (Doc. # 2204, Einhaus Depo. at 72:23-74:3, 88:2-15). Ampush, for its
part, disputes that leads are considered confidential within
the trade. (Doc. # 227 at 4, ¶ 21). Therefore, a genuine
dispute exists regarding trade usage and, under City of Hope
National Medical Center, Connectus has presented sufficient
evidence to survive summary judgment.
b.

Return provision

Paragraph 3.4 of the parties’ agreement states:
A Qualified Lead is generated when an individual
that is interested in one or more of the educational
opportunities offered by AMPUSH or its clients and
accurately completes a program lead form via a call
center agent. AMPUSH shall provide [Connectus] with
preliminary Qualified Lead counts on a daily basis.
Accordingly, leads that are not Qualified shall be

16 

reviewed and returned to [Connectus] thirty (30)
days following the end of the calendar month in
which such Lead was generated. It is understood and
agreed that AMPUSH’s records in determining the
number of Qualified Leads shall control and be
binding upon the parties.
(Doc. # 200-1 at ¶ 3.4) (emphasis added). A Qualified Lead is
a lead that contains sixteen specific data points: viz.,
campus name; the lead’s last name, first name, IP Address,
address, city, state, zip code, country, phone number, phone
number designation, email address, level of education, and
year of graduating high school or obtaining a GED; the
program/area of interest requested; and the date and time
Connectus generated the lead. (Id. at ¶ 1.4).
Ampush
Prequalified

argues
Leads

paragraph
that

[were]

3.4

“only

ultimately

applies
rejected

to
by

a

school.” (Doc. # 212 at 14). But, paragraph 3.4 does not once
use or define “Prequalified Lead.” Rather, “Prequalified
Lead” comes from Ampush’s reading of the phrase “preliminary
Qualified Lead counts.” Thus, Ampush’s interpretation is not
supported by the agreement’s plain language or the agreement
as a whole.
As to plain language, “Prequalified Lead” is not a term
defined or used by the agreement. Moreover, the parties were
well aware of how to affix the prefix “pre” to the word

17 

“qualification”; indeed, they did just that when they used
“pre-qualification

questions.”

(Id.

parties

“questions”

with

modified

at

¶

the

2.3).

That

adjective

the

“pre-

qualification,” yet did not do so for “Lead” demonstrates
that “preliminary Qualified Lead counts” does not signify
“Prequalified Lead.”
In addition, the structure of the agreement does not
support Ampush’s proffered reading of paragraph 3.4. The
agreement “governs . . . with respect to the call center
services provided by [Connectus] to AMPUSH . . . .” (Id. at
¶ 1.1). Under the agreement, Ampush was to pay only for
Qualified

Leads.

(Id.

at

¶

2.3).

“A

Qualified

Lead

is

generated when an individual [(1)] that is interested in one
or more of the educational opportunities offered by AMPUSH .
. . [(2)] accurately completes a program lead form via a call
center agent.” (Id. at ¶ 3.4). Prior to submitting the lead
form, the call center agent asks the prospective student “prequalification questions.” (Id. at ¶ 2.3).
Furthermore, there are three enumerated instances that
result in a lead being considered or deemed unqualified. In
particular, “[a]ny lead[] generated for which there is no
accompanying audio within forty-eight . . . hours shall be
considered unqualified”; “Any lead[] on which a consumer’s

18 

personal information is submitted to more than three . . .
schools will be considered unqualified”; and “Leads generated
[from third party lists] shall be deemed Unqualified leads.”
(Id.). “[L]eads that are not Qualified shall be reviewed and
returned to” Connectus within thirty days. (Id. at ¶ 3.4).
Importantly, there is nothing in the agreement that makes
rejection of a lead by a school a cause for finding a lead
unqualified.
In light of the foregoing, the Court accepts Connectus’s
invitation and “reject[s] Ampush’s . . . reading” (Doc. # 220
at 12), of paragraph 3.4 as only applying to leads that are
ultimately rejected by universities. Accordingly, Ampush’s
Motion is denied.
3.

The Fourth Element: Damage to Plaintiff

Ampush argues Connectus’s breach-of-contract claim fails
because Connectus has not produced evidence of damages. But,
Connectus has presented evidence allowing for the inference
of damages. (Doc. # 212-20, Marinucci Depo. at 78:23-80:10)
(stating disengagement rate for prospective students whose
information was pinged to Ampush was four times higher than
rate

for

prospective

students

whose

information

was

not

pinged to Ampush); (Doc. # 145-7 at 10, Porter Depo., at
40:13-41:11).

In

addition,

19 

because

Ampush

challenges

Connectus’s showing of damages for the action as a whole, the
Court further notes that “[u]nder the CUTSA, [a plaintiff]
[i]s entitled to recover damages for its actual loss caused
by the misappropriation and also for [a defendant’s] unjust
enrichment not taken into account in computing . . . actual
loss.” Ajaxo Inc. v. E*Trade Fin. Corp., 115 Cal. Rptr. 3d
168, 172 (Cal. Dist. Ct. App. 2010) (citation omitted). There
is no dispute that Connectus is seeking damages in the form
of

unjust

enrichment.

(Doc.

#

200).

Ampush’s

argument

therefore fails to persuade the Court.
B.

CUTSA Claim

To

prevail

on

its

CUTSA

claim,

Connectus

“must

‘demonstrate: (1) [it] owned a trade secret, (2) [Ampush]
acquired,

disclosed,

or

used

[Connectus’s]

trade

secret

through improper means, and (3) [Ampush’s] actions damaged
[Connectus].’” Language Line Servs., Inc. v. Language Servs.
Assocs., Inc., 944 F. Supp. 2d 775, 799 (N.D. Cal. 2013).
“Trade

secret”

means

information

that

“(1)

[d]erives

independent economic value . . . from not being generally
known to the public or to other persons who can obtain
economic value from its disclosure or use[,] and (2) [i]s the
subject

of

efforts

that

are

reasonable

under

the

circumstances to maintain its secrecy.” Cal. Civ. Code §

20 

3426.1(d).

“‘Improper

means’

includes

theft,

bribery,

misrepresentation, breach . . . of a duty to maintain secrecy,
or espionage through electronic or other means.” Cal. Civ.
Code § 3426.1(a).
Ampush argues Connectus failed to maintain the secrecy
of the lead data. “The determination of whether ‘reasonable
efforts’ have been taken is quintessentially fact-specific.
. . . Only in extreme cases is it appropriate to take the
issue away from the jury.” Mattel, Inc. v. MGA Entm’t, Inc.,
No. CV 04-9049 DOC(RNBx), 2011 WL 3420571, at *2 (C.D. Cal.
Aug. 4, 2011) (citations omitted); see also In re Providian
Credit Card Cases, 116 Cal. Rptr. 2d 833, 844 (Cal. Dist. Ct.
App. 2002) (stating “whether a party claiming a trade secret
undertook

reasonable

efforts

to

maintain

secrecy

is

a

question of fact”). “Reasonable efforts to maintain secrecy
need not be overly extravagant, and absolute secrecy is not
required.” Allergan, Inc. v. Merz Pharm., LLC, No. SACV 11446 AG(EX), 2012 WL 781705, at *11 (C.D. Cal. Mar. 9, 2012)
(citation

and

internal

quotation

marks

omitted).

The

reasonable-efforts requirement may even be met by a showing
of an implied confidential relationship. Direct Techs., LLC
v. Elec. Arts, Inc., 836 F.3d 1059, 1070-71 (9th Cir. 2016).

21 

After review of the record, the Court cannot say this is
one of those “extreme cases” where it is appropriate to take
the issue—i.e., whether Connectus took reasonable steps under
the circumstances—from the jury. See, e.g., (Doc. # 212-19,
Goodman Depo. at 19:2-20:24).
Ampush further argues Connectus cannot show that Ampush
committed an act of misappropriation. Misappropriation is
defined as:
(1) Acquisition of a trade secret of another by a
person who knows or has reason to know that the
trade secret was acquired by improper means[, which
includes
“theft,
bribery,
misrepresentation,
breach or inducement of a breach of a duty to
maintain secrecy, or espionage through electronic
or other means”]; or
(2) Disclosure or use of a trade secret of another
without express or implied consent by a person who:
(A) Used improper means to acquire knowledge
of the trade secret; or
(B) At the time of disclosure or use, knew or
had reason to know that his or her knowledge
of the trade secret was:
(i) Derived from or through a person who
had utilized improper means to acquire
it;
(ii) Acquired under circumstances giving
rise to a duty to maintain its secrecy or
limit its use; or
(iii) Derived from or through a person
who owed a duty to the person seeking

22 

relief to maintain its secrecy or limit
its use; or
(C) Before a material change of his or her
position, knew or had reason to know that it
was a trade secret and that knowledge of it
had been acquired by accident or mistake.
Cal. Civ. Code § 3426.1(b).
With

regard

information

in

to

use,

“‘[e]mploying

manufacturing,

the

production,

confidential
research

or

development, marketing goods that embody the trade secret, or
soliciting

customers

through

the

use

of

trade

secret

information, all constitute use.’” AgencySolutions.com, LLC
v. TriZetto Grp., Inc., 819 F. Supp. 2d 1001, 1028 (E.D. Cal.
2011) (citation omitted). “‘One clearly engages in the “use”
of a secret, in the ordinary sense, when one directly exploits
it for his own advantage . . . .’” Id. (citation omitted).
Connectus has presented sufficient evidence to create a
genuine issue of material fact as to whether Ampush used
Connectus’s trade secret (Doc. # 212-6, Mayberry Depo. at
50:3-22) (explaining that Ampush would sell unmatched lead
information or call those leads that were not matched to a
university), and whether Ampush knew or had reason to know
the lead information was confidential, i.e., that it had a
duty to maintain the secrecy of the information or limit its
use (Doc. # 200-1 at ¶¶ 1.4, 5.1); (Doc. # 212-11, Marinucci

23 

Depo. at 113:19-114:6); (Doc. # 220-1 at ¶ 9); (Doc. # 2204, Einhaus Depo. at 72:23-74:3, 88:2-15). Therefore, Ampush’s
Motion is denied.
C.

Joint and Severally Liable

Ampush argues Connectus may not seek joint and several
liability. But a case cited by Ampush undercuts that very
argument.

Brocade

Communications

Systems,

Inc.

v.

A10

Networks, Inc., 873 F. Supp. 2d 1192, 1217-18 (N.D. Cal.
2012). To be sure, the court in Brocade concluded that
liability

on

claims

under

CUTSA

is

generally

joint

and

several. Id. Furthermore, Ampush’s argument that it did not
have sufficient notice of Connectus’s intention to seek joint
and several liability is belied by its own statement that
Connectus identified the theory during discovery. (Doc. # 212
at 23).
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Defendant

Ampush

Media,

Inc.’s

Motion

for

Summary

Judgment (Doc. # 212) is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this 4th
day of May, 2017.

24