Versata Software, Inc. et al v. Internet Brands, Inc. f/k/a CarsDirect.com et al
Filing
185
MEMORANDUM AND ORDER - for the foregoing reasons, the plaintiffs motion for partial summary judgment with respect to the defendants state law counterclaims is DENIED in all respects. Signed by Judge William C Bryson on 2/22/2012. (ch, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
VERSATA SOFTWARE, INC., f/k/a
TRILOGY SOFTWARE, INC.; and
VERSATA DEVELOPMENT GROUP, INC.,
f/k/a TRILOGY DEVELOPMENT GROUP,
INC.
Plaintiffs,
v.
INTERNET BRANDS, INC., f/k/a
CARSDIRECT.COM, INC.,
AUTODATA SOLUTIONS COMPANY,
and AUTODATA SOLUTIONS, INC.
Defendants.
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CIVIL ACTION No. 2:08-cv-313-WCB
MEMORANDUM AND ORDER
Before the Court is the plaintiffs’ Motion for Partial Summary Judgment on the
defendants’ state law counterclaims. (Dkt. No. 151.) The counterclaims are for breach of
contract, misappropriation of trade secrets, and tortious interference with prospective business
relationships, as well as a request for a declaration to quiet title. The plaintiffs argue that (1) all
of the counterclaims are barred by the applicable statutes of limitations; (2) the misappropriation
and breach-of-contract counterclaims are precluded by a settlement agreement; and (3) all of the
counterclaims fail on the merits because they are unsupported by any evidence. The defendants
oppose the motion, asserting that it is not yet ripe for decision because discovery has not closed,
that the counterclaims are saved by a Texas statute, and that they are supported by sufficient
evidence at this stage of the litigation to defeat the motion for summary judgment. After
reviewing the parties’ submissions and hearing argument from counsel, the Court DENIES the
motion.
1
I.
Background
The plaintiffs and the defendants are both in the business of creating software to facilitate
comparison shopping on the Internet, in particular the online comparison and purchase of
automobiles. Each party sells its products and services to various automakers, which use those
products to enable consumers to compare vehicles. In 2008, one of the automakers, Chrysler
Corporation, switched from the plaintiffs’ products to the defendants’.
This lawsuit soon
followed.
This is not the first time the plaintiffs and the defendants have found themselves at odds.
In 1997, the parties explored the possibility of collaborating and combining their products. In
order to facilitate their collaboration, the parties entered into a Confidentiality Agreement. That
agreement is central to the defendants’ breach-of-contract counterclaim in this case.
The collaboration failed, and in 1999 the parties found themselves in litigation. The
defendants sued the plaintiffs in California state court, alleging tortious interference with
contractual relations involving a company named IntelliChoice. The plaintiffs responded by
filing a patent infringement action in a federal court in Texas, alleging infringement of a patent
not at issue here. The patent action included several state law claims of interference with a
license agreement and a prospective contract between the plaintiffs and IntelliChoice. Those two
cases settled in May 2001, when the parties entered into an agreement referred to as the
“Settlement Agreement.”
In the present litigation, the release contained in the Settlement
Agreement serves as the basis for several of the plaintiffs’ arguments in favor of partial summary
judgment.
On January 14, 2000, during the pendency of the California and Texas lawsuits, the
plaintiffs filed a provisional patent application that became the basis for two issued patents: U.S.
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Patent No. 7,130,821 (“the ’821 patent”) and U.S. Patent No. 7,206,756 (“the ’756 patent”). The
former issued in 2006 and is entitled “Method and Apparatus for Product Comparisons.” The
latter issued in 2007 and is entitled “System and Method for Facilitating Commercial
Transactions Over a Data Network.” Both patents relate to performing product comparisons and
purchasing products online, with particular focus on comparing, configuring, and ultimately
purchasing automobiles.
On August 8, 2008, the plaintiffs filed the present complaint, alleging that the defendants
had infringed the ’821 and ’756 patents. In response, the defendants filed suit against the
plaintiffs in Texas state court on August 12, 2009, claiming misappropriation of trade secrets and
conversion, and seeking a declaration to quiet title against the defendants. The defendants
alleged that during the parties’ brief period of collaboration, the plaintiffs had obtained
confidential information from the defendants and passed it off it as the plaintiffs’ own inventions
before the Patent and Trademark Office (“PTO”) in the application that culminated in the
issuance of the ’821 and’756 patents. The plaintiffs then filed a second action, in the United
States District Court for the Western District of Texas, seeking a declaration that they did not
breach any confidentiality agreement they had with the defendants and that, in any event, the
statute of limitations would bar any claim for breach of such an agreement.
The defendants filed their answer in this case on January 16, 2010. On January 19, 2010,
the plaintiffs moved to have the declaratory judgment action in the Western District of Texas
dismissed without prejudice. In the state court action, Versata filed a “plea to jurisdiction,”
arguing that the claims in that suit were dependent on the resolution of the questions in this case
and that they should therefore be made a part of this case. That action was dismissed on March
11, 2010. On September 7, 2010, the defendants amended their counterclaims in this case to
3
include the previously asserted state law claims. It is those state law counterclaims that the
plaintiffs challenge in this motion. 1
II.
Discussion
A.
Statute of Limitations
1. The plaintiffs first allege that the defendants’ claim of trade secret misappropriation is
barred by the applicable three-year Texas statute of limitations because the claim accrued no
later than November 2006, when the ’821 patent issued.
The plaintiffs contend that the
defendants either knew of or should have discovered the misappropriation no later than that date,
which would make that counterclaim untimely. The plaintiffs point to five circumstances that
they contend should have put the defendants on notice of the potential counterclaim: (1) the
defendants’ persistent doubts about the security of the trade secrets they shared with the
plaintiffs; (2) the competitive nature of the relationship between the plaintiffs and the defendants;
(3) the fact that the defendants actually inspected the plaintiffs’ technology that they claim
incorporated the trade secrets; (4) the issuance of the ’821 patent; and (5) the public availability
of the allegedly misappropriated technology on a website.
Under Texas law, a claim for misappropriation of trade secrets is barred unless brought
“not later than three years after the misappropriation is discovered or by the exercise of
reasonable diligence should have been discovered.” Tex. Civ. Prac. & Rem. Code § 16.010(a).
In this case, however, the misappropriation is asserted as a counterclaim to the plaintiffs’ patent
infringement allegations. In arguing that the misappropriation counterclaim is related to the
1
Although the counterclaims include a claim for conversion, the parties agree that it is no
longer part of this case. This Court therefore will not address that counterclaim. Moreover,
because the declaration to quiet title rises or falls with the other claims, the Court will not
address that claim separately in this order.
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patent infringement claims, the defendants contend that the ’821 and ’756 patents are invalid
because the defendants’ misappropriated trade secrets are at the heart of the disclosed inventions.
Based on that argument, the defendants contend that several provisions of Texas law save
their counterclaim from the statute of limitations. First, they rely on section 16.069(a) of the
Texas Civil Practice and Remedies Code, which states: “If a counterclaim or cross claim arises
out of the same transaction or occurrence that is the basis of an action, a party to the action may
file the counterclaim or cross claim even though as a separate action it would be barred by
limitation on the date the party’s answer is required.” See Pitts & Collard, L.L.P. v. Schechter,
2011 WL 6938515, at *16 (Tex. App. 2011) (explaining that section 16.069 was “intended to
prevent a plaintiff from waiting until an adversary’s valid claim arising from the same
transaction was barred by limitations before asserting his own claim” (quoting Hobbs Trailers v.
J.T. Arnett Grain Co., 560 S.W.2d 85, 88 (Tex. 1977))). In addition, the defendants rely on
section 16.068 of the Texas Civil Practice and Remedies Code, which permits a party to make
certain amendments to timely filed pleadings without running afoul of the statute of limitations.
Texas law defines a counterclaim as a defendant’s cause of action against a plaintiff that
“if established will defeat or qualify a judgment to which the plaintiff is otherwise entitled.”
McBryde v. Curry, 914 S.W.2d 616, 620 (Tex. App. 1995); see Latham v. Allison, 560 S.W.2d
481, 485 (Tex. Civ. App. 1977). In addition, Texas courts apply a “logical relationship test” to
determine whether counterclaims arise “out of the same transaction or occurrence” as the
principal claims and thus qualify for the benefits of either section 16.068 or section 16.069.
Commint Technical Servs., Inc. v. Quickel, 314 S.W.3d 646, 653 (Tex. App. 2010); see also
Wells v. Dotson, 261 S.W.3d 275, 281 (Tex. App. 2008) (“Under [the logical relationship] test, a
transaction is flexible, comprehending a series of many occurrences logically related to one
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another.”). That test is met “when the same facts, which may or may not be disputed, are
significant and logically relevant to both claims.” Pitts & Collard, 2011 WL 6938515, at *16;
see Commint Technical, 314 S.W.3d at 653.
The misappropriation counterclaim at issue in this case states a cause of action against the
plaintiffs that, if found to have merit, could defeat the plaintiffs’ infringement claims. It arises
out of the same transaction or occurrence—in this case, the grant of the patents-in-suit.
Additionally, the same facts (e.g., the technology underlying the patents and the proper
inventorship of that technology) are significant and highly relevant to both the claim of
infringement and the misappropriation counterclaim. See, e.g., Skytop Brewster Co. v. Skytop
Int’l, Inc., 1993 WL 721287, at *3 (S.D. Tex. 1993) (cited with approval in Gen. Universal Sys.,
Inc. v. HAL, Inc., 500 F.3d 444, 452-53 (5th Cir. 2007)) (finding persuasive defendant’s
argument that “section 16.069 of the Texas Civil Practice and Remedies Code revives its trade
secrets counterclaim regardless of the two year statute of limitations”). In light of section
16.069, the plaintiffs are therefore not entitled to summary judgment regarding the timeliness of
the misappropriation counterclaim.
Even if section 16.069 does not save the misappropriation counterclaim, the plaintiffs
have not shown that they are entitled to summary judgment as to the timeliness of that claim. A
party “moving for summary judgment on the affirmative defense of limitations has the burden to
conclusively establish that defense.” KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp.,
988 S.W.2d 746, 748 (Tex. 1999). The movant must “(1) conclusively prove when the cause of
action accrued, and (2) negate the discovery rule, if it applies and has been pleaded or otherwise
raised, by proving as a matter of law that there is no genuine issue of material fact about when
the [non-movant] discovered, or in the exercise of reasonable diligence should have discovered
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the nature of its injury.” Id. Thus, once a party discovers or in the exercise of reasonable
diligence should have discovered the injury and that it was likely caused by the wrongful acts of
another, the “limitations [period] commences, even if the [claimant] does not know the exact
identity of the wrongdoer.” Childs v. Haussecker, 974 S.W.2d 31, 40 (Tex. 1998); see also
Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194, 207 (Tex. 2011) (“Once a claimant
learns of a wrongful injury, the statute of limitations begins to run even if the claimant does not
yet know the specific cause of the injury; the party responsible for it; the full extent of it; or the
chances of avoiding it.” (internal quotation omitted)).
In this case, the plaintiffs have failed to show that there is no disputed issue of material
fact as to when the defendants should have known of the misappropriation. The plaintiffs have
not shown that no reasonable jury could find that a reasonable person in the defendants’ position
would have investigated the allegations that the plaintiffs were misappropriating trade secrets.
See, e.g., Pressure Sys. Int’l, Inc. v. Sw. Research Inst., 350 S.W.3d 212, 217 (Tex. App. 2011)
(development of competing technology by former employee “not necessarily wrongful in and of
itself”). The issuance of a patent may sometimes suffice to put the defendants on notice that it
incorporates their misappropriated technology. But here there are countervailing circumstances
to consider.
Although the plaintiffs contend that the defendants were on notice of any
misappropriation because they expressed concern that the plaintiffs would steal their trade
secrets, the defendants reply that in response to their concerns the plaintiffs gave them
assurances that their concerns were not well founded, and that those assurances relieved them of
any duty to investigate further. The plaintiffs have not put forth sufficient evidence to entitle
them to summary judgment on the issue of whether the defendants’ reliance on assurances given
to them by the plaintiffs was so unreasonable that, as a matter of law, the defendants were under
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a duty to inquire into the allegations of misappropriation. See id. at 217-18; Childs, 974 S.W.2d
at 45-46; see also Barker v. Eckman, 213 S.W.3d 306, 312 (Tex. 2006). This Court cannot say
that as a matter of law, a reasonable juror would have to conclude that the defendants were on
notice of the misappropriation by November of 2006. See Stark v. Advanced Magnetics, Inc., 29
F.3d 1570, 1577-78 (Fed. Cir. 1994) (observing that factors such as the existence of a
relationship of trust between the parties or deliberate misrepresentation are pertinent to a
determination of whether the issuance of a patent gave the defendants constructive notice of its
content for purposes of statute of limitations).
2. The plaintiffs make similar arguments as to why the counterclaim for breach of the
1997 Confidentiality Agreement should be barred by the applicable four-year Texas statute of
limitations for contract breaches. See Tex. Civ. Prac. & Rem. Code § 16.051. However, for
reasons similar to the ones set forth above, the Court rejects the plaintiffs’ argument that the
defendants’ breach-of-contract counterclaim is barred by the statute of limitations as a matter of
law. The Confidentiality Agreement relates to the defendants’ technology that they say formed
the basis for the plaintiffs’ patents, and the plaintiffs have failed to show the absence of a
disputed issue of material fact as to whether that claim also subject to the savings provisions of
the Texas Civil Practice and Remedies Code.
3.
The plaintiffs argue that the tortious interference counterclaim is barred by the
applicable two-year Texas statute of limitations. See Tex. Civ. Prac. & Rem. Code § 16.004.
The defendants added the tortious interference counterclaim to their second amended answer,
filed on September 7, 2010. In that filing, they alleged that “[o]n or around June 25, 2008,
during the bidding process, Versata’s [CEO] Randy Jacops expressly told Chrysler’s Ch[arles]
Sullivan that the technology required to satisfy the requirements set forth in Chrysler’s Request
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for Proposal would require technology patented and owned by Versata, and thus any company
seeking to replace Versata would need to hold a license to certain Versata patents. These
statements were clear and blatant misrepresentations of fact. . . .”
Under Texas law, an amendment or supplement to a timely filed pleading is not barred by
the statute of limitations “unless the amendment or supplement is wholly based on a new,
distinct, or different transaction or occurrence.” See Tex. Civ. Prac. & Rem. Code. § 16.068; see
also Milestone Props., Inc. v. Federated Metals Corp., 867 S.W.2d 113, 116 (Tex. App. 1993)
(“Since section 16.068 is a remedial statute, designed to protect litigants from loss of their claims
by a plea of limitation in cases where that would otherwise occur, [it] should be liberally
construed and applied to effect that purpose.”). The defendants assert that the tortious conduct
alleged in the counterclaim is inextricably bound up with the validity of the plaintiffs’ patents: If
those patents are valid, the tortious interference counterclaim fails because the CEO’s statements
would not have been misrepresentations; if the patents are invalid, the tort claim becomes
meritorious. Thus, the defendants argue that the tortious interference counterclaim and the
patent validity dispute “share[] the same actors and the same underlying operative facts.” See
Murthy v. Abbott Labs., No. 4:11-cv-105, 2011 WL 5416333, at *18 (S.D. Tex. 2011); see also
Leonard v. Texaco, Inc., 422 S.W.2d 160, 163-64 (Tex. 1967) (interpreting identically worded
predecessor statute). The Court concludes that a reasonable finder of fact could find that the two
sets of claims grew out of the same “transaction or occurrence,” namely the termination of
Chrysler’s contract with the plaintiffs in favor of a contract with the defendants. The plaintiffs
are therefore not entitled to summary judgment on that issue.
There is also a question of fact as to whether the tortious interference counterclaim is
timely under section 16.069 of the Texas Civil Practices and Remedies Code. That is because
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the plaintiffs in their complaint allege that the defendants tortiously interfered with the plaintiffs’
existing contract and prospective business relationships. The alleged interference stemmed from
the defendants’ actions in securing a contract with Chrysler. The facts required to prove both the
plaintiffs’ tortious interference claim and the defendants’ tortious interference counterclaim
concern the events at Chrysler in the spring and summer of 2008 and would likely overlap to a
substantial degree. When the facts underlying both parties’ claims are “closely related” and
logically connected to one another, both the claim and the counterclaim are deemed to arise out
of the same transaction or occurrence, which renders the counterclaim timely. See Wells, 261
S.W.3d at 281; see also Cmty. State Bank v. NSW Invs., L.L.C., 38 S.W.3d 256, 258 (Tex. App.
2001) (under the logical relationship test, “a transaction is flexible, comprehending a series of
many occurrences logically related to one another”).
B.
Release by Settlement Agreement
The plaintiffs next argue that the trade secret misappropriation and breach-of-contract
counterclaims arose before the effective date of the 2001 settlement and are therefore released by
the Settlement Agreement or barred because they could have been asserted in that earlier round
of litigation. The defendants counter that the current counterclaims are not covered by the
language of the Settlement Agreement because the release extends only to claims that related to
the subject matter of the earlier lawsuit or could have been asserted in that lawsuit, and does not
extend to the claims asserted here. The Settlement Agreement states that each party
do[es] hereby release and discharge [the opposing party] from any and all claims,
causes of action, demands, liabilities, damages, . . . or losses of any kind or nature
(hereafter “Claims”) that arose on or before the Effective Date, whether known or
unknown, and are based upon, arise out of or relate to: (i) the subject matter of the
Lawsuit; or (ii) Claims asserted or which could have been asserted in the Lawsuit.
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The claims at issue in the 1999 action relate to U.S. Patent No. 5,825,651 (“the ’651 patent”).
Consequently, the claims in this case cannot be said to be based upon, arise out of, or relate to
the subject matter of that action. The question whether the Settlement Agreement applies to the
defendants’ misappropriation and breach-of-contract counterclaims therefore turns on whether
those claims could have been asserted in the 1999 lawsuit. If so, the plaintiffs would be released
from any liability for them at this time. If not, the claims would survive.
The parties agree that Delaware law governs the interpretation of the Settlement
Agreement. Delaware law permits the use of general releases, which are “intended to cover
everything—what the parties presently have in mind, as well as what they do not have in
mind. . . .
In construing a release, the intent of the parties as to its scope and effect [is]
controlling, and the court will attempt to ascertain their intent from the overall language of the
document.” Corporate Prop. Assocs. 6 v. Hallwood Grp. Inc., 817 A.2d 777, 779 (Del. 2003)
(internal citation omitted). There are some limits to that broad proposition, however. First,
words of general application used in a release following a specific recital of the subject matter
concerned “are not to be given their broadest significance but will be restricted to the particular
matter referred to in the recital.”
Adams v. Jankouskas, 452 A.2d 148, 156 (1982).
Additionally, a general release in a settlement agreement does not bar all claims that could have
been asserted at the time the settlement went into effect. For instance, claims for fraud in the
inducement of the release would not fall within the scope of even the broadest general release.
E.I. DuPont de Nemours & Co. v. Fla. Evergreen Foliage, 744 A.2d 457, 462 (Del. 1999) (noting
that “[i]t is quite another thing, however, to conclude that a person is deemed to have released a
claim of which he has no knowledge, when the ignorance of such a claim is attributable to
fraudulent conduct by the released party”).
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In light of these principles, the Court finds that the plaintiffs have not shown that the
counterclaims for misappropriation of trade secrets and breach of the Confidentiality Agreement
are covered by the Settlement Agreement as a matter of law. In the 1999 lawsuit, the plaintiffs
alleged that the defendants had infringed the ’651 patent and tortiously interfered with existing
and prospective contractual relations. That action did not involve the subsequent use of the
defendants’ technology or any issues regarding a breach of the Confidentiality Agreement. As
explained above, a factual question exists as to whether the defendants were on notice at the time
of the Settlement Agreement of the facts giving rise to their claim that the plaintiffs had
incorporated the defendants’ technology into their patent applications. Cf. Seven Instruments,
LLC v. AD Capital, LLC, 32 A.3d 391, 398 (Del. Ch. 2011) (holding claims released where
party was on notice of fraudulent expenses at the time it entered into the settlement agreement,
“accepted that risk under the terms that were negotiated, and released its right to pursue that
claim as part of the package of consideration exchanged by the parties”).
The defendants contend that at the time of the Settlement Agreement, the plaintiffs gave
them assurances that the defendants’ technology would not be used to compete with the
defendants and would not be passed on to third parties. (Dkt. No. 151-19, Ex. 18, Notes of
Conversation with C. Taylor, at 2). If a finder of fact were to conclude that such assurances were
given with the intent of inducing the defendants not to investigate the plaintiffs’ actions, the
finder of fact could reasonably conclude that the misappropriation and breach counterclaims are
not barred by the release. See DuPont, 744 A.2d at 462; see also Matsuura v. Alston & Bird, 166
F.3d 1006, 1010-12 & n.10 (9th Cir. 1999) (interpreting Delaware law). The plaintiffs are
therefore not entitled to summary judgment based on the Settlement Agreement.
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C.
Sufficiency of the Evidence
The plaintiffs next assert that they are entitled to summary judgment because of the
absence of evidence to support the defendants’ counterclaims. They argue that there is no
evidence that they misappropriated the defendants’ trade secrets (and thus no evidence of a
breach of the Confidentiality Agreement), and that there is no evidence that they interfered with
the defendants’ prospective business relationships.
The defendants assert that they have
proffered sufficient evidence as to those counterclaims to survive summary judgment.
The defendants point to evidence that as early as 1996 they had developed technology
that permitted making comparisons between different vehicles. (Dkt. No. 160-8, AutoQuote Pro
Guide, at 2.) That underlying technology, according to the defendants, was not widely known or
available, as evidenced by the fact that the plaintiffs expended considerable effort to develop
their own vehicle comparison process. (Dkt. No. 160-13, IST POC Study Doc., at 1.) Moreover,
the defendants took several steps to safeguard their proprietary technology. Besides insisting on
the Confidentiality Agreement, the defendants instructed the plaintiffs that the materials that
were disclosed at various meetings were to be considered confidential and not to be disclosed to
any third party. (Dkt. No. 160-19, Fax to C. Taylor.)
The extent to which the plaintiffs had developed their system independently of the
defendants’ technology is a key issue in both the main suit and the misappropriation
counterclaim, and it is sharply disputed. The defendants point to evidence such as a statement
made by a representative of the plaintiffs after a 1997 meeting between the plaintiffs and the
defendants, that the defendants have “already solved our problem of equivalent vehicle compare.
They don't have the algorithm in place to automatically equip equivalent vehicles, but they've
provided an incredibly solid foundation for doing so.” (Dkt. No. 160-17, Meeting Rpt. of A.
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Stein. at 1.) The defendants also point to the similarities between the ’821 patent and their
software that permitted the user to “automatically equip each vehicle using that vehicles correct
ordering and configuration rules.” (Dkt. No. 160-8, AutoQuote Pro Guide, at 2; see also Dkt.
No. 160-26, Sched. Spreadsheet, at 2 (observing that the defendants’ software “will give good
insights into how we want to deal with the standard vs. optional part issues”).)
Although the plaintiffs assert that they sought only the automotive data provided by the
defendants, as opposed to any comparison functions or algorithms, the parties dispute that issue,
which goes to the nature of the collaboration between them. In light of the conflicting evidence,
the Court concludes that the plaintiffs are not entitled to summary judgment on the
misappropriation counterclaim.
The defendants’ breach-of-contract counterclaim, founded on the 1997 Confidentiality
Agreement, asserts that the plaintiffs improperly used and disclosed confidential information that
was covered by the Agreement. The defendants argue that if the plaintiffs misappropriated their
trade secrets, that misappropriation would violate the Agreement. Because the Court finds that
the defendants have put forth sufficient factual allegations to survive summary judgment on the
misappropriation counterclaim, the Court likewise concludes that the defendants have put forth
sufficient evidence to survive summary judgment on the breach-of-contract counterclaim.
As to the counterclaim for tortious interference with contractual relations, the defendants
allege that the plaintiffs made fraudulent misrepresentations regarding the scope and validity of
the plaintiffs’ patents and that those misrepresentations resulted in the defendants’ loss of several
contracts. The defendants further allege that the plaintiffs made those statements and threatened
prospective customers with litigation with the intent to prevent the defendants from securing
contracts with those customers. In support of that contention, the defendants point to the
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deposition testimony of a Chrysler employee who stated that the plaintiffs’ CEO told him during
a luncheon meeting that Versata had initiated litigation against companies that refused to award
contracts to it, including its own customers. (Dkt. No. 160-38, Dep. of C. Sullivan). That
conversation allegedly occurred immediately after Chrysler awarded its contract, previously held
by the plaintiffs, to the defendants. The evidence regarding the content and truthfulness of the
plaintiffs’ representations to the defendants’ prospective customer is sharply contested, but it is
sufficient to survive the motion for summary judgment. See Wal-Mart Stores, Inc. v. Sturges, 52
S.W.3d 711, 726 (Tex. 2001) (finding that “for example, a plaintiff may recover for tortious
interference from a defendant who makes fraudulent statements about the plaintiff to a third
person”).
For the foregoing reasons, the plaintiffs’ motion for partial summary judgment with
respect to the defendants’ state law counterclaims is DENIED in all respects.
SIGNED this 22d day of February, 2012.
__________________________________________
WILLIAM C. BRYSON
UNITED STATES CIRCUIT JUDGE
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