GeoMetWatch v. Hall et al
SEALED MEMORANDUM DECISION AND ORDER granting 271 MOTION TO DISMISS CLAIMS ASSERTED AGAINST DEBBIE WADE; granting 288 Motion to Dismiss Claims Asserted Against Mark Hurst; granting 289 Motion to Dismiss Claims Asserted Against B rent Keller; granting 290 Motion to Dismiss Claims Asserted Against Erin Housley; grant in part and deny in part 296 Alan Halls, Island Park Investments, and Tempus Global Data, Inc.s Motion to Dismiss; The court hereby ORDERS that the follo wing causes of action be DISMISSED WITHOUT PREJUDICE:1. GMWs first and third causes of action for breach of contract and breach of the implied covenant of good faith and fair dealing against Hall;2. GMWs second cause of action for trade secret mi sappropriation against Housley, Hurst, Wade, and Keller;3. GMWs fourth cause of action for intentional interference with existing or potential economic relations against Hall, Island Park, Tempus, Housley, Hurst, Wade, and Keller;4. GMWs fift h cause of action for violations of Section 43(a) of the Lanham Act against Hall and Island Park;5. GMWs sixth cause of action for unjust enrichment against Hall, Island Park, and 6. GMWs seventh cause of action for violation of the Utah Trut h in Advertising Act against Hall and Island Park;7. GMWs eighth cause of action for violations of the Utah Unfair Practices Act against Hall and Island Park;8. GMWs ninth claim for fraudulent inducement against Hall;9. GMWs eleventh caus e of action for Fraudulent Nondisclosure against Hall, Tempus, Housley, Hurst, Wade, and Keller; and10. GMWs twelfth cause of action for civil conspiracy against Hall, Housley, Hurst, Wade, and Keller. Signed by Judge Jill N. Parrish on 3/27/17. (jlw) (Additional attachment(s) added on 3/27/2017: # 1 Errata Mailing Certificate) (jlw).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
GEOMETWATCH CORPORATION, a
ALAN HALL, et al.,
UTAH STATE UNIVERSITY RESEARCH
FOUNDATION and ADVANCED
WEATHER SYSTEMS FOUNDATION,
SEALED MEMORANDUM DECISION
AND ORDER GRANTING DEBBIE
WADE’S MOTION TO DISMISS;
GRANTING MARK HURST’S MOTION
TO DISMISS; GRANTING BRENT
KELLER’S MOTION TO DISMISS;
GRANTING ERIN HOUSLEY’S MOTION
TO DISMISS; AND GRANTING IN PART
AND DENYING IN PART ALAN HALL’S,
ISLAND PARK INVESTMENTS’, AND
TEMPUS GLOBAL DATA, INC.’S
MOTION TO DISMISS
Case No. 1:14-cv-00060-JNP-PMW
District Judge Jill N. Parrish
GEOMETWATCH CORPORATION, a
UTAH STATE UNIVERSITY RESEARCH
DAVID CRAIN, an individual,
Before the court are the following motions: Debbie Wade’s Motion to Dismiss [Docket
271], Mark Hurst’s Motion to Dismiss [Docket 288], Brent Keller’s Motion to Dismiss [Docket
289], Erin Housley’s Motion to Dismiss [Docket 290], and Alan Hall’s, Island Park Investments’
(“Island Park”), and Tempus Global Data, Inc.’s (“Tempus”) Motion to Dismiss [Docket 296].
The court heard oral argument on the motions on December 20, 20161, after which the court took
the motions under advisement. After considering the parties’ written submissions, oral argument,
and relevant legal authority, the court issues this Memorandum Decision and Order Granting
Debbie Wade’s Motion to Dismiss; Granting Mark Hurst’s Motion to Dismiss; Granting Brent
Keller’s Motion to Dismiss; Granting Erin Housley’s Motion to Dismiss; and Granting in Part
and Denying in Part Alan Hall, Island Park Investments, and Tempus Global Data, Inc.’s Motion
Because the factual allegations of the Complaint are to be “taken as true,” the facts
recited here are the relevant facts as alleged in the Complaint. Kansas Penn Gaming, LLC v.
Collins, 656 F.3d 1210, 1214 (10th Cir. 2011).
GeoMetWatch Corporation (“GMW”) is a global weather services company. GMW’s
business model is to provide unique and proprietary earth observation and weather data from an
array of state-of-the-art hyperspectral sensors in orbit around the earth. Hyperspectral
In addition to these motions, the court heard argument on Curtis Roberts’s Motion to Dismiss
[Docket 283], Robert Behunin and Utah State University Research Foundation’s (“USURF”)
Motion for Judgment on the Pleadings [Docket 361], Scott Jensen and Advanced Weather
Systems Foundation’s (“AWSF”) Motion for Judgment on the Pleadings [Docket 330], and
AWSF’s Joinder in the other parties’ motions to dismiss [Docket 380]. Near the conclusion of
the December 20 hearing, counsel for USURF notified the court that USURF, Mr. Roberts, and
Mr. Behunin had filed a motion for summary judgment [Docket 398] in which they challenged
the court’s subject matter jurisdiction to hear the tort and state statutory claims against them
under the Utah Governmental Immunity Act (“Immunity Act”). Mr. Jensen and AWSF also filed
a motion for summary judgment arguing that the Immunity Act applied to claims against them
[Docket 404]. Because these motions for summary judgment challenge this court’s subject
matter jurisdiction over the state statutory and tort-based claims against them, rulings on Mr.
Roberts’s Motion to Dismiss, Mr. Behunin and USURF’s Motion for Judgment on the Pleadings,
and Mr. Jensen and AWSF’s Motion for Judgment on the Pleadings will be withheld until after a
ruling on the summary judgment motions.
imaging/sounding technology utilizes sophisticated technology to simultaneously collect
thousands of atmospheric “soundings” every minute. The technology was initially developed by
the U.S. National Oceanic and Atmospheric Administration (NOAA) and National Atmospheric
and Space Administration (NASA), but was abandoned after an investment of more than $400
million. In September 2010, GMW obtained the first-ever license from NOAA to use the
technology in the private sector. Through the efforts of GMW, the hyperspectral sounder
program was reborn commercially as the Sounding and Tracking Observatory for Regional
In 2009, GMW approached Utah State University (“USU” or the “University”) as a
potential contractor to build STORM-1, the first of a planned network of sensors. USU agreed to
work with GMW through the Utah State University Research Foundation (“USURF”). On
January 28, 2010, GMW and USURF entered into a nondisclosure agreement (“GMW-USURF
2010 NDA”) for the purpose of keeping confidential GMW and USURF’s proprietary
information related to the STORM project and associated business model and partnering
discussions. On July 20, 2010, GMW and USURF signed a two-year, extendible preferred
provider agreement to develop the STORM-1 sensor (“GMW-USURF 2010 PPA”). Under the
GMW-USURF 2010 PPA, GMW agreed to exert all reasonable efforts to obtain title to a sensor
prototype to assist USURF in developing and building the STORM-1 sensor and to obtain a
license from NOAA to launch, fly, and operate a satellite. The GMW-USURF 2010 PPA cited
the GMW-USURF 2010 NDA and noted that the parties would be exchanging proprietary
technical and other information as necessary to fulfill the purposes of the agreement, and that
both parties would keep that information confidential. On April 23, 2012, GMW and USURF
signed another preferred provider agreement (“GMW-USURF 2012 PPA”) for contract work on
the STORM project, setting forth additional terms relating to exclusivity and commercialization
In January 2013, USU formed the Utah State University Advanced Weather Systems
Foundation (“AWSF”) to assist USURF with the STORM project. On Feb 25, 2013, GMW and
AWSF entered into a nondisclosure agreement (“GMW-AWSF 2013 NDA”). At the request of
USU and USURF officials, GMW and USURF entered into a Mutual Termination Agreement
(“GMW-USURF 2013 Termination”) formally terminating the GMW-USURF 2012 PPA for the
purpose of having GMW enter into a new Preferred Provider Agreement with AWSF. The
termination did not affect the GMW-USURF 2010 NDA. GMW and AWSF entered into a
preferred provider agreement (“GMW-AWSF 2013 PPA”), which became effective April 19,
2013. Through this agreement, AWSF became the sole preferred provider to build the STORM-1
On June 19, 2013, GMW signed an agreement with NASA to provide it with data from
GMW's first STORM mission in return for a sensor prototype that AWSF could use to develop
and complete the STORM-1 sensor. After obtaining the prototype, GMW was still in need of a
partner that could get the STORM-1 sensor into orbit. GMW approached a number of
commercial satellite operators over several years, until it was introduced to Asia Satellite
Telecommunications Co. (“AsiaSat”) in the summer of 2011. After a prolonged relationshipbuilding process and extensive negotiations, GMW and AsiaSat executed a Cooperation
Agreement ("AsiaSat Agreement"). Through the AsiaSat Agreement, AsiaSat obtained the rights
to become an equity and strategic partner in GMW and agreed to join GMW as an applicant and
guarantor on a U.S. Export - Import (EXIM) Bank loan. AsiaSat agreed to finance, on a
reimbursable basis, construction and integration of the STORM-1 sensor and to share in the
revenue generated. STORM-1 was slated to be launched on the AsiaSat-9 rocket in 2016.
With the sensor prototype from NASA and the AsiaSat Agreement in hand, GMW still
faced significant hurdles for the STORM project. The overall expected cost of the STORM
project was about $170 million. GMW developed a funding model that relied on securing loans
from EXIM Bank. AsiaSat agreed to guarantee the payments on these loans but, to reduce its
risks, also required GMW to obtain “backstop” funding for these payments—financial
guarantees equivalent to AsiaSat's total STORM investment. Beginning in early 2013, University
officials repeatedly represented to GMW and AsiaSat that USU could provide this backstop. In
an effort to reduce USU’s financial exposure, GMW continued to work with USU to seek
financial commitments related to the backstop from other investors and financial institutions.
On or about September 20, 2013, GMW’s attorney introduced GMW to Alan Hall, a
potential large-scale investor. USU, USURF, and AWSF strongly encouraged GMW to meet
with Hall as someone who could potentially provide the backstop funding himself or who could
bring investors to do so. USU, USURF, and AWSF also represented to GMW that Hall had
already signed a non-disclosure agreement with them and pressured GMW to share "everything"
with Hall, including all of its confidential information, and to introduce him to persons of interest
in connection with GMW’s business, including AsiaSat, so that Hall could evaluate a potential
GMW was initially encouraged that Hall could provide the backstop funding needed to
keep the STORM project moving forward. Based on assurances from USU, USURF, and AWSF
and pressure from Hall, GMW made numerous “advocacy introductions” of Hall to key players
in the market, including business, government and academic contacts that had taken GMW years
In early October 2013, USU and AWSF asked GMW to sign a new GMW-AWSF
Contract for STORM Fabrication (“STORM 001 Contract”) that included an automatic
termination provision if the EXIM funding did not close by January 6, 2014. USURF and AWSF
employees also repeatedly represented that AWSF would extend the dates for termination if the
EXIM funding was pushed back. Relying on these representations, GMW signed the new
STORM 001 Contract.
Beginning on October 11, 2013, relying on representations by USU, USURF, and AWSF
that Hall had signed an NDA with USU, and Hall's own assurances that he would sign an
additional NDA with GMW, GMW made dozens of highly sensitive and confidential business
and technical files available to Hall and his due diligence team members at Island Park. These
files were loaded into a folder on a secure, web-based file sharing-site (the “GMW Data Room”),
and only a very limited number of immediate employees of Hall and/or Island Park, USURF, and
AWSF were “invited” to access the site. Specifically, Hall, Housley, Hurst, Wade, and Keller
were provided access to the GMW Data Room. These individuals downloaded, accessed and
studied GMW’s confidential documents to evaluate a potential investment.
On November 6, 2013, Hall and GMW entered into a Mutual Non-Disclosure Agreement
(“GMW-Hall NDA”). The GMW-Hall NDA states that it is "between" Alan Hall and GMW, and
bears the signature of Hall as Chairman of Island Park Investments. The NDA memorialized
GMW’s prior understanding with Hall and expressly protected against the unauthorized use and
disclosure of GMW’s confidential information.
Hall made a series of informal investment proposals to GMW. Hall’s proposed
investment was to be through a new business entity, SkyStar. Even though GMW reduced some
of these proposals to writing, Hall never signed a written offer or contract. Instead, he requested
access to more of GMW’s confidential documents to continue his investigation of the project.
Beginning at least as early as October 2013, GMW alleges that Hall and his
representatives began privately meeting with GMW’s commercial partners, without GMW
present. These meetings included representatives of AsiaSat, USU, AWSF, USURF and possibly
others. By early November of 2013, if not sooner, Hall began to discuss methods and actions
with USU and AsiaSat that would harm GMW, including forcing GMW into a desperate
bargaining position, and leveraging the automatic termination provision of the STORM 001
Contract against GMW as a way to dilute GMW’s financial interest in its business or to destroy
In response to these actions by Hall, Wade, Keller, Housley, and Hurst sent a
memorandum (the “Ethics Memorandum”) to Hall outlining their concerns that Hall had met
with AsiaSat and USU without GMW being present. The Ethics Memorandum stated the
GMW is being left out of the conversations you are having with AsiaSAT and
AWS[F]. While this perhaps has been necessary in the short-term while you
feel things out, we believe that negotiating a deal behind their back is not
ethical. The reason we feel this way is that GMW has divulged confidential
information to us and is helping us (without even an NDA in place) to have
conversations with those they have relationships with believing that doing so
is in their best interest and will help them. However, if you do this while
waiting for the time to elapse for them to default on the loan, and then come
forward with a different deal to save them, they will perceive you as a
predator that unethically used their information to capitalize on your own
purposes. Even if you don’t take a dime from them, they could come after you
legally for misuse of their information, and they could rightfully make this
Hall did not respond to the Ethics Memorandum by email and claims to have no memory of it or
any conversation related to it.
On November 14, 2013, Hall told GMW that he had an investor (or investors) that were
willing to backstop the STORM project for $150 million and requested further details of GMW’s
specific use of funds. GMW sent Hall two highly confidential documents in response, entitled
“Use of Funds” and “GMW Revenue Model.”
On or around November 22, 2013, after Hall threatened to interfere with GMW’s
shareholders to undermine GMW’s management, GMW unshared the GMW Data Room and
removed access to its confidential files. This effectively blocked Hall, his due diligence team,
and anyone else from those files, but could not keep anyone from using either the information
that they had already seen, or from using files that they had downloaded during the
approximately six weeks that the confidential Data Room was accessible.
On December 20, 2013, Hall formed a new company, Tempus, in Ogden, Utah. On
January 7, 2014, AWSF sent GMW a Notice of Termination, citing the EXIM funding deadline
in the STORM 001 Contract. Based on the contested provision of the STORM 001 Contract,
AWSF purported to terminate both the STORM 001 Contract and the GMW-AWSF 2013 PPA,
even though GMW had been promised extensions as necessary to get the full EXIM funding for
the AsiaSat-9 deal. On March 31, 2014, Tempus announced via a press-release on its website
that it had “opened its operations in Utah to deliver next generation weather data to commercial
and government customers.”
On April 1, 2014, Tempus announced that it was in the final stages of securing a Remote
Sensing License from the Department of Commerce. On April 14, 2014, AsiaSat formally
notified GMW that the GMW-AsiaSat Cooperation Agreement was terminated. Tempus
announced an agreement with AsiaSat and acknowledged on its website that AsiaSat “originally
signed its sensor hosting agreement with GMW.”
GMW brought this suit, filing its complaint on May 16, 2014. [Docket 2]. GMW filed its
first amended complaint a month later. [Docket 16]. GMW moved to file a second amended
complaint to add claims against Robert Behunin and USURF. [Docket 43]. The court granted the
unopposed motion [Docket 46] and GMW filed its second amended complaint on December 12,
2014 [Docket 48]. In February 2016, GMW again sought leave to amend its complaint. [Docket
124]. The court granted GMW leave to amend and GMW filed its Third Amended Complaint on
May 27, 2016, adding claims against Erin Housley, Mark Hurst, Debbie Wade, Brent Keller,
Curtis Roberts, and Scott Jensen. [Docket 229 (the “Complaint”)]. The Complaint alleges twelve
causes of action against twelve defendants, including misappropriation of trade secrets under the
Utah Uniform Trade Secrets Act (“UTSA”), breach of contract, several federal and state
statutory violations, fraud, and civil conspiracy.
“[T]o withstand a [Rule 12(b)(6)] motion to dismiss, a complaint must have enough
allegations of fact, taken as true, ‘to state a claim to relief that is plausible on its face.’” Kansas
Penn Gaming, LLC, 656 F.3d at 1214 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Although the court must take the factual allegations of the complaint as true, the court is
not required to take “mere labels and conclusions,” or “formulaic recitation[s] of the elements of
a cause of action” as true. Id. (quotations and citations omitted). Rather, “a plaintiff must offer
specific factual allegations to support each claim.” Id.
“[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.”
Id. “‘[P]lausibility’ refers to ‘the scope of the allegations in a complaint: if they are so general
that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs have not
nudged their claims across the line from conceivable to plausible.’” Id. at 1215 (quoting Robbins
v. Okla. ex rel. Dep’t of Human Servs., 519 F.3d 1242, 1247 (10th Cir. 2008)). This standard
“may have greater bite” when dealing with “complex claims against multiple defendants.”
Robbins, 519 F.3d at 1249. It is therefore “particularly important in such circumstances that the
complaint make clear exactly who is alleged to have done what to whom, to provide each
individual with fair notice as to the basis of the claims against him or her, as distinguished from
collective allegations . . . .” Id. at 1249–50 (emphasis in original).
Further, the Federal Rules of Civil Procedure require a plaintiff alleging fraud-based
claims to “state with particularity the circumstances constituting fraud . . . .” Fed. R. Civ. P. 9(b).
“At a minimum, Rule 9(b) requires that a plaintiff set forth the ‘who, what, when, where and
how’ of the alleged fraud and must set forth the time, place, and contents of the false
representation, the identity of the party making the false statements and the consequences
thereof.” U.S. ex rel. Sikkenga v. Regence Bluecross Blueshield of Utah, 472 F.3d 702, 726–27
(10th Cir. 2006) (internal quotations and citations omitted). When evaluating fraud-based claims
under Rule 9(b), the court will accept as true “well-pleaded facts, as distinguished from
conclusory allegations.” Id. at 726.
Although the court normally will not consider any evidence beyond the pleadings in
reviewing a Rule 12(b)(6) motion to dismiss, “the district court may consider documents referred
to in the complaint if the documents are central to the plaintiff's claim and the parties do not
dispute the documents’ authenticity.” Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th
Cir. 2007) (quoting Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir.2002)).
Finally, when a motion to dismiss under Fed. R. Civ. P. 12(b)(6) is granted, dismissal
with prejudice is appropriate only when granting leave to amend would be futile. Brereton v.
Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006).
The Law of the Case Doctrine
GMW contends that the law of the case doctrine demands dismissal of each of
defendants’ motions. The law of the case doctrine permits a court, at its discretion, “to decline
the invitation to reconsider issues already resolved earlier in the life of a litigation.” Entek GRB,
LLC v. Stull Ranches, LLC, 840 F.3d 1239, 1240 (10th Cir. 2016). But the Tenth Circuit has held
that the law of the case doctrine “only applies if there was a final judgment that decided that
issue.” United States v. Phillips, 59 F. Supp. 2d 1178, 1187 (D. Utah 1999) (first citing United
States v. Bettenhausen, 499 F.2d 1223, 1230 (10th Cir. 1974); then citing Unioil v. Elledge (In re
Unioil), 962 F.2d 988, 993 (10th Cir. 1992)). Indeed, “where a ruling remains subject to
reconsideration, the doctrine is inapplicable.” Unioil, 962 F.2d at 993. See also Price v. Philpot,
420 F.3d 1158, 1167 n.9 (10th Cir. 2005) (“[E]very order short of a final decree is subject to
reopening at the discretion of the district judge.”). GMW urges the court to apply the law of the
case doctrine because defendants’ arguments to dismiss the Complaint are strikingly similar to
arguments that they previously presented to the Court in opposing GMW’s motion to amend its
In opposing GMW’s motion to amend, the defendants argued that the amendment would
be futile because the Complaint failed to sufficiently plead certain claims. [See, e.g., Dockets
146, 16; 142, 9; 145, 4]. Magistrate Judge Warner granted GMW’s motion to amend its
complaint. [Docket 224]. Defendants objected to Judge Warner’s order [Dockets 241, 242, and
243], but the court overruled those objections. [Docket 257]. GMW argues that because “[t]he
standards of review for determining whether a motion to amend should be denied for futility
under Fed. R. Civ. P. 15(a) and determining whether a motion to dismiss should be granted under
Fed. R. Civ. P. 12(b)(6) are identical,” City of Charleston, S.C. v. Hotels.com, LP, 520 F. Supp.
2d 757, 775 (D.S.C. 2007), the law of the case doctrine compels denial of defendants’ motions.
But those previous rulings are not final.
Neither Judge Warner’s order granting GMW’s motion to amend nor the Court’s order
overruling objections to Judge Warner’s order are final. Thus, both remain subject to
reconsideration. See McClendon v. City of Albuquerque, 630 F.3d 1288, 1292 (10th Cir. 2011)
(“[A] final decision does not normally occur until there has been a decision by the District Court
that ends the litigation on the merits and leaves nothing for the court to do but execute the
judgment.” (quoting Van Cauwenberghe v. Biard, 486 U.S. 517, 521–22 (1988))); Fed. R. Civ.
P. 54(b) (“[A]ny order or other decision, however designated, that adjudicates fewer than all the
claims or the rights and liabilities of fewer than all the parties does not end the action as to any of
the claims or parties and may be revised at any time before the entry of a judgment adjudicating
all the claims and all the parties' rights and liabilities.”). Accordingly, the law of the case
doctrine is inapplicable to the resolution of the current motions.
Plausibility of GMW’s Claims
GMW asserts twelve causes of action against twelve Defendants. In the motions now
before the court, Alan Hall, Island Park, and Tempus (the “Hall Defendants”), and Erin Housley,
Mark Hurst, Debbie Wade, and Brent Keller (the “Individual Defendants” and together with the
Hall Defendants, the “Moving Defendants”) seek dismissal of some or all of the claims against
A. The Contract Claims
Hall seeks dismissal of GMW’s first and third claims against him for breach of contract
and breach of implied covenant of good faith and fair dealing. Both of these claims require the
existence of a contract between Hall and GMW. Bair v. Axiom Design, L.L.C., 20 P.3d 388, 392
(Utah 2001) (“The elements of a prima facie case for breach of contract are (1) a contract, (2)
performance by the party seeking recovery, (3) breach of the contract by the other party, and (4)
damages.” (citation omitted)).
Hall argues that the contract-based claims against him should be dismissed under Rule
12(b)(6) because he was not a party to any contract with GMW. Hall maintains that the GMWHall NDA—upon which GMW bases these claims—is between GMW and Island Park, and not
Hall in his personal capacity. Hall argues that although the GMW-Hall NDA recites that the
agreement is between “Alan Hall” and GMW, it was executed by “Alan E. Hall” as “Chairman”
and “duly authorized signatory” for Island Park Investments. He reasons that the Complaint fails
to state a claim because an individual “can be held personally liable for a signed contract only if
he executed the contract ‘in a manner clearly indicating that the liability was his alone.’” Daines
v. Vincent, 190 P.3d 1269, 1280 (Utah 2008) (quoting Starley v. Deseret Foods Corp., 74 P.2d
1221, 1223 (Utah 1938)).
In Daines, the Utah Supreme Court upheld the district court’s conclusion that an agent,
Vincent, was not acting in his personal capacity when he signed an agreement with Daines. Id.
The agreement at issue included a signature line for Vincent directly under the heading “ASC,”
the company for which Vincent worked. Id. Because the agreement expressly stated that Vincent
would sign on behalf of ASC, “it [was] apparent that Daines recognized that he would be dealing
with ASC through Vincent and not with Vincent in his individual capacity.” Id. The Utah
Supreme Court agreed that Mr. Daines had no competent evidence that Vincent was acting in
anything other than a representative capacity for ASC in his dealings with Daines. Id.
GMW alleges that Hall, on behalf of himself and others on his team, entered into the
GWM-Hall NDA. It further alleges that the GMW-Hall NDA lists Hall personally as a party to
the agreement, and that Island Park is an alter ego of Hall. GMW argues that because the GWMHall NDA expressly states that it is between Hall and GMW, the allegations in its complaint
must be taken as true and its claims against Hall should not be dismissed. GMW maintains that
Daines is distinguishable from this case because the agreement at issue there unambiguously
stated that it was between Daines and ASC, not Vincent personally. GMW argues that, at best,
Hall’s argument reveals an ambiguity as to which parties are bound by the GMW-Hall NDA and
that the issue must be resolved by the trier of fact. GMW argues that this case is further
distinguishable from Daines because of the allegation that Island Park was an alter ego of Hall.
GMW also argues that Hall became bound by the GMW-Hall NDA by virtue of his performance
when he received its confidential information under the agreement.
The court concludes that Hall is not a party to the GMW-Hall NDA in his individual
capacity. On its face, the GMW-Hall NDA2 indicates that Hall did not “execute the contract in
a manner clearly indicating that the liability was his alone.” Id. Rather, the manner in which the
contract was executed indicates that it is Island Park that is party to the agreement, as witnessed
by the signature of its authorized representative and chairman, Hall. GMW alleges that Hall
executed the GMW-Hall NDA “on behalf of himself and others on his team,” and the document
itself states that the agreement is between Alan Hall and GMW. While it may be true that GMW
intended for Hall to be subject to the terms of the agreement, the manner of execution shows that
Hall agreed to its terms only in his capacity as an agent of Island Park Investments. Although
GMW has alleged that Island Park is an alter ego of Hall, such an allegation is a mere label or
legal conclusion that the court need not accept as true. And GMW has failed to make factual
allegations sufficient to state a plausible claim that Island Park is, in fact, an alter ego of Hall.3
See Jones & Trevor Marketing, Inc., 284 P.3d at 635–36 (setting out the two prong test and eight
In ruling on a Rule 12(b)(6) motion, the court is normally limited to considering the contents of
the complaint. Berneike v. CitiMortgage, Inc., 708 F.3d 1141, 1146 (10th Cir. 2013). Exceptions
to this general rule include “documents incorporated by reference in the complaint; documents
referred to in and central to the complaint, when no party disputes [their] authenticity; and
‘matters of which a court may take judicial notice.’” Id. (quoting Gee v. Pacheco, 627 F.3d 1178,
1186 (10th Cir. 2010)). Here, the contract may be considered and analyzed by the court because
it is referred to in and is central to the complaint and no party disputes its authenticity.
Even if GMW had made such allegations, the alter ego doctrine is not a basis for treating
officers as if they are the same as a corporate entity. Rather, an alter ego theory allows a plaintiff
to “pierce the corporate veil” and recover from corporate shareholders in order to satisfy the
debts and liabilities of the corporation. See Albright v. Attorney’s title Ins. Fund, 504 F.Supp.2d
1187, 1210 (D. Utah 2007) (“It is only in extreme circumstances that the corporate form will be
disregarded and the personal assets of a controlling shareholder or shareholders may be attached
in order to satisfy the debts and liabilities of the corporation.” (internal quotations and citation
omitted)); Jones & Trevor Mktg., Inc. v. Lowry, 284 P.3d 630, 635–36 (Utah 2012) (“The alter
ego doctrine is an exception to the general rule that limits stockholders' liability for obligations
of the corporation.”).
factors to be considered in determining whether the alter ego doctrine applies to impose personal
liability for the debts and liabilities of a business entity).
Furthermore, Hall’s receipt of confidential information under the terms of the GMW-Hall
NDA does not render him individually liable under the agreement. As an agent and
representative of Island Park, Hall was able to receive and analyze GMW’s confidential
information in his capacity as an agent of Island Park, just like the Individual Defendants,
without becoming a party to the GMW-Hall NDA.
In short, Hall did not “execute the contract in a manner clearly indicating that the
liability was his alone” and GMW makes no allegations that would give rise to personal liability
for Hall under the GMW-Hall NDA. Accordingly, GMW’s contract-based claims against Hall
must be dismissed.
B. The Misappropriation Claim
The Individual Defendants move to dismiss GMW’s second claim against them for
misappropriation of trade secrets in violation of Utah Code § 13-24-1. A trade secret
misappropriation claim requires three elements: (1) the existence of a trade secret, (2)
communication of the trade secret under an express or implied agreement limiting disclosure of
the secret, and (3) use of the secret that results in injury. USA Power, LLC v. PacifiCorp, 235
P.3d 749, 758 (Utah 2010). The Individual Defendants argue that GMW’s allegations fail to
satisfy the 12(b)(6) plausibility standard for each of these three elements.
1. The Existence of a Trade Secret
The Utah Uniform Trade Secret Act defines a “trade secret” as:
information, including a formula, pattern, compilation, program, device, method,
technique, or process, that: (a) derives independent economic value, actual or
potential, from not being generally known to, and not being readily ascertainable
by proper means by, other persons who can obtain economic value from its
disclosure or use; and (b) is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.
Utah Code § 13-24-2(4).
Although the Individual Defendants argue generally that the Complaint fails to satisfy the
plausibility standard for each of the elements of the trade secret misappropriation claim, none of
them advance arguments specific to this first element. And it is clear from the Complaint that
GMW has met the plausibility standard for the existence of its trade secrets.
The Complaint lists certain documents containing information that plausibly meet the
UTSA definition of a trade secret. Those documents include GMW business plans, corporate
documents, customer agreements, EXIM Bank financing documents, market studies, agreements
with GMW business partners, presentations, public relations documents, and its comprehensive
financial model and business plan. [Complaint, ¶ 80]. The Complaint acknowledges that “certain
general technical and business information in these documents is publicly available, such as
through press releases or presentations,” but “the vast majority of the data in these documents is
secret and not available outside of a very small circle of GMW management and under nondisclosure agreements.” [Id. ¶ 84]. The Complaint also describes a proprietary contact list of
“over 100 contacts that are vital to build a global satellite weather data company” and also
GMW’s “rankings of each contact and detailed notes [that] show an informed user which
contacts are most helpful.” This list and the rankings were put together by GMW “at great
expense of time and money.” [Id. ¶ 81].
The Complaint also states that “GMW took extensive steps to protect the proprietary and
confidential trade secrets contained in the documents shared with [Defendants.]” [Id. ¶ 83].
GMW details those steps in the Complaint as follows:
First, only senior GMW employees had access to these documents, and only on a
need to know basis. Second, these documents were kept on a secure hard drive
that is not accessible to anyone outside of GMW. Third, these documents were
only shared with Hall, members of Hall’s team, AWSF, USURF/SDL, Behunin,
Roberts, and Jensen, with the understanding that an NDA was in place directly
between GMW and Hall, USU/CE, USURF/SDL and AWSF, as well as between
Hall, USU/CE, and AWSF. Fourth, GMW management and employees knew
these documents are confidential, treated them sensitively and did not share their
contents outside of work, or under a non-disclosure agreement, on a limited needto-know basis.
[Id. ¶ 83].
Taking the allegations of the Complaint as true, GMW has adequately pled the existence of its
2. Trade Secret Communicated Under an Express Agreement Limiting Disclosure of the
GMW has also adequately pled facts to plausibly satisfy the second element. None of the
Individual Defendants deny that the trade secrets listed above were communicated by GMW to
Island Park under the GMW-Hall NDA and that they were bound, as agents of Island Park, to the
terms of that agreement. The Complaint specifically alleges that GMW shared its confidential
information with the Individual Defendants through the GMW Data Room in reliance on nondisclosure agreements. [Id. ¶¶ 65–66].
3. Use of the Trade Secret that Causes Injury
The Individual Defendants focus their arguments on the third and final element of a claim
for trade secret misappropriation, which requires a showing that the party’s misappropriation or
improper use of a trade secret resulted in injury. The UTSA provides that misappropriation can
occur through the
disclosure or use of a trade secret of another without express or implied consent
by a person who . . . at the time of disclosure or use, knew or had reason to know
that [her] knowledge of the trade secret was . . . acquired under circumstances
giving rise to a duty to maintain its secrecy or limit its use, or derived from or
through a person who owed a duty to the person seeking relief to maintain its
secret or limit its use.
Utah Code § 13-24-2(2)(b).
The Individual Defendants argue that GMW has failed to offer non-conclusory fact-based
allegations that support even an inference that any of them improperly used or disclosed GMW’s
trade secrets in violation of the UTSA or that GMW suffered an injury as a result of any alleged
misuse. In response, GMW first points to the general allegations made regarding the Individual
Defendants’ access to and use of its confidential information. GMW also references the Ethics
Memorandum in support of the plausibility of its misappropriation claim against the Individual
Defendants. In addition to these general allegations relating to all of the Individual Defendants,
GMW asserts specific allegations regarding the use of its information by Wade, Keller, and
Housley. As to its injury, GMW relies on its allegation that “[t]he actions of Defendants . . . have
caused and will continue to cause damage to GMW, in an amount to be determined at trial.”
[Complaint, ¶ 156].
The court concludes that GMW has failed to offer sufficiently specific factual allegations
against the Individual Defendants to satisfy this third element. It therefore grants their motions
to dismiss the misappropriation claim. See Smith, 561 F.3d at 1098 (quotations and citations
i. The general allegations of access and use of GMW’s information by the
GMW first argues that paragraphs 4, 66, 75, 102, and 108 of its complaint contain
adequate allegations to state a plausible misappropriation claim against the Individual
Defendants. But the allegations in these paragraphs “are so general that they encompass a wide
swath of conduct, much of it innocent,” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.
2008) (internal citations and quotations omitted), and do not state a plausible claim against the
Individual Defendants. Paragraphs 4 and 66 of the complaint describe the Individual Defendants’
access to GMW’s confidential information. But these allegations go only to the uncontested issue
of whether confidential information was communicated to the Individual Defendants in the first
place. They say nothing about improper disclosure or use of GMW’s trade secrets.
Paragraphs 75 and 102 lump all of the Individual Defendants together into a collective
group that GMW calls the “Hall Team.” These paragraphs make the conclusory statement that
the “Hall Team” had opportunity and motive to misuse GMW’s trade secrets and that each
member seized that opportunity by misusing that information. These “mere labels and
conclusions” are not sufficient to raise a right to relief above the speculative level. Kan. Penn
Gaming, LLC, 656 F.3d at 1214. Neither Paragraph 75 nor Paragraph 102 reference what it is
that anyone on the “Hall Team” purportedly did to misuse GMW’s confidential information,
simply asserting that misuse occurred.
Paragraph 108 alleges that “Hurst, Wade, and Keller . . . drafted portions of the Tempus
business plan, and relied upon GMW’s confidential materials to draft their respective portions of
the Tempus business plan.” Conspicuously missing from this allegation—and absent through the
entirety of the complaint—is an allegation of what portions of GMW’s confidential information
the Individual Defendants purportedly relied on in drafting their portions of the Tempus business
plan. To survive dismissal, a complaint must “offer specific factual allegations to support each
claim.” Smith, 561 F.3d at 1098 (citing Twombly, 550 U.S. at 555). When dealing with “complex
claims against multiple defendants,” it is “particularly important . . . that the complaint make
clear exactly who is alleged to have done what to whom, to provide each individual with fair
notice as to the basis of the claims against him or her, as distinguished from collective
allegations . . . .” Id. (quoting Robbins v. Okla. ex rel. Dep’t of Human Servs., 519 F.3d 1242,
1249–50 (10th Cir. 2008)) (emphasis in original). Without specifics of what information the
Individual Defendants allegedly used in drafting the Tempus business plan, the claims do not
“provide each individual with fair notice as to the basis of the claims against him or her,” nor do
the claims rise above the level of speculation and into the realm of plausible. Robbins, 519 F.3d
GMW also argues that its allegations regarding the Ethics Memorandum support a
plausible claim against the Individual Defendants. GMW alleges that “[d]espite articulating their
concerns in the Ethics Memorandum, each [of the Individual Defendants] marched forward with
Hall’s plan to destroy GMW and continued to misuse GMW’s confidential and propriety
information,” and that “the [Individual Defendants persisted in their efforts to destroy GMW,
despite their full knowledge that their conduct was unethical and actionable, as they had
articulated to Hall in the Ethics Memorandum.” [Complaint, ¶¶ 75, 110]. But again, these
allegations simply conclude that some misuse of GMW’s confidential information continued
without articulating how any of the Individual Defendants misused that information. While the
allegations reference the Ethics Memorandum, there is nothing in that document that suggests
that any of the Individual Defendants’ actions were unethical or actionable. Rather, the Ethics
Memorandum was aimed at Hall’s conduct in having conversations with AsiaSat and AWSF
without GMW. The Individual Defendants were expressing concern that their work analyzing
GMW’s business could be used in an unethical manner by Hall, not that the Individual
Defendants themselves were doing so. As GMW itself argues, “the Ethics Memorandum
acknowledges that the [Individual Defendants] had been given access to GMW’s confidential
and trade secret information, and either expressly or implicitly acknowledges its use and
disclosure among Hall and the [Individual Defendants].” [Dockets 313, 8; 319, 11; 347, 10; 348,
9]. But Hall and the Individual Defendants were all authorized to access, use, analyze, and
otherwise disclose GMW’s confidential information among themselves as employees of a
potential investor, Island Park. In short, the Ethics Memorandum says nothing about any misuse
or wrongdoing on the part of any of the Individual Defendants.4
ii. Specific allegations against Hurst
GMW does not make any allegation against Hurst other than the general allegations
already discussed. Because of the inadequacy of those allegations, GMW has not pled a plausible
claim against Hurst for misappropriation of trade secrets and that claim against Hurst will be
iii. Specific allegations against Wade
As to Wade, GMW alleges that “Wade actively facilitated the Defendants’
misappropriation of GMW’s trade secrets by, among other things, drafting a commercial market
study for weather data that Tempus ultimately shared with various investors. Wade relied on
GMW’s confidential information for the creation of this document.” [Complaint, ¶ 9]. But this
allegation does not state that Wade improperly disclosed or used any confidential information.
Rather, it alleges that Wade, in the performance of her duties as an analyst for Island Park,
created a commercial market study. At the time the commercial market study was created, Wade
was authorized by GMW to access the GMW Data Room under the GMW-Hall NDA and to
analyze the information contained therein. GMW’s allegation in paragraph 9 of the Complaint
that Tempus later shared the commercial market study with various investors does not make
Wade’s creation of that study wrongful, nor does it subject Wade to liability for misuse of
GMW’s confidential information. GMW alleges that there are “other things” that Wade did to
facilitate the misappropriation of its trade secrets, but no specifics are alleged regarding those
“other things.” In sum, GMW’s allegations against Wade, including the general allegations
Indeed, the Ethics Memorandum states the Individual Defendants’ objections to misusing
GMW’s confidential information and speaks more to their innocence than to any wrongdoing on
analyzed above, fail to support a plausible claim against her for misappropriation of trade secrets.
Accordingly, GMW’s claim for trade secret misappropriation must be dismissed.
iv. Specific allegations against Keller
GMW alleges that “Keller misappropriated GMW’s highly confidential and proprietary
financial models by downloading GMW’s financial models and simply replacing the word
‘GMW’ with various iterations of the names for Hall’s venture, including ‘SkyStar’ and
‘Tempus’ in the headings of the documents.” [Id. ¶ 104]. GMW further alleges that “Keller also
encouraged Housley to use other highly confidential GMW information to build a prospectus or
investor brief.”5 [Id.]
Keller’s alleged encouragement of Housley to use GMW information to build a
prospectus or investor brief is inadequate to support a plausible claim of misappropriation
against Keller. Encouraging Housley to use information that both were authorized to use and
analyze to create a prospectus or investor brief is not misappropriation because there is no
allegation that any prospectus or investor brief was ever actually created. Additionally, GMW
does not allege the purpose of the investor brief or prospectus, whether these documents were
created for a competitor or whether they were created as part of Island Park’s authorized due
Keller responds to GMW’s allegation that he altered the GMW financial models by
arguing that he had permission to download and review the financial models, that he only
minutely altered them and saved them to his computer to distinguish between the original and
altered versions, and then never used them again. It is true that Keller’s downloading and
manipulating GMW’s financial models as part of his due diligence for Island Park would not
In its response to Keller’s motion to dismiss, GMW attached an email from Keller to Housley.
However, that email is not incorporated by reference or otherwise a part of the complaint and is
not appropriately considered on a 12(b)(6) motion.
have been a wrongful use of GMW trade secrets. But if Keller had manipulated the models for a
purpose not authorized by GMW, such as for assisting a potential competitor like Tempus, then
that use would be wrongful. The allegation that Keller replaced GMW’s name with that of other
ventures, at least one of which is alleged to have been created to compete with GMW, gives rise
to a reasonable inference that Keller misused GMW’s financial models. See Big Cats of Serenity
Springs, Inc. v. Rhodes, 843 F.3d 853, 858 (10th Cir. 2016) (“A claim is facially plausible when
the allegations give rise to a reasonable inference that the defendant is liable.” (quoting Mayfield
v. Bethards, 826 F.3d 1252, 1255 (10th Cir. 2016))).
To state a claim for misappropriation of trade secrets, GMW must not only allege misuse
of the trade secrets, it must also allege injury arising from that misuse. Keller argues that GMW
has failed to plead that his alleged manipulation of the financial models or his alleged
encouragement of Housley to use GMW information to build a prospectus or investor brief
resulted in any demonstrable harm to GMW. The UTSA states that “damages can include both
the actual loss caused by misappropriation and the unjust enrichment caused by misappropriation
that is not taken into account in computing actual loss.” Utah Code § 13-24-4. The UTSA also
provides that a reasonable royalty can be awarded in lieu of damages. Id. GMW has generally
alleged that the collective actions of the Defendants have caused and continue to cause it harm.
[Complaint, ¶ 156]. But GMW fails to allege that Keller’s actions damaged it in any way. Even
taking as true GMW’s allegation that Keller relabeled GMW’s financial models, there is no
allegation that Keller’s relabeling of the model caused it any injury. As alleged in the Complaint,
the damaging use of its trade secrets was not perpetrated by Keller, but by Hall, Island Park, and
Tempus when they allegedly usurped GMW’s business and stepped into its shoes. There
similarly is no allegation that Keller has been unjustly enriched by any of his alleged
misappropriation. In short, there are no factual allegations that support a plausible claim that
Keller’s use of GMW’s confidential information injured GMW or unjustly enriched Keller.
Accordingly, Keller’s motion to dismiss the misappropriation claim against him must be granted.
v. Specific allegations against Housley
GMW alleges that “Housley misappropriated GMW’s highly confidential and proprietary
information, including its business plans,” and that “[b]efore GMW blocked the Hall Team’s
access to the GMW Data Room, Housley downloaded at least one copy of GMW’s confidential
Business Plan onto her own computer. She then used GMW’s business plan as the template for a
Tempus business plan that Tempus shared with investors shortly thereafter.” [Id. ¶¶ 105–106].6
Housley argues that the allegations against her do not state a plausible claim. She
maintains that accessing and downloading GMW’s business plan cannot be deemed improper
because GMW itself provided Housley and the other Individual Defendants with its confidential
information so they could perform due diligence on the STORM project. Housley argues that
there needs to be a more specific allegation of wrongdoing against her. For example, Housley
points out that nowhere in the complaint does GMW allege that it instructed Housley to return or
destroy the things to which she had previously been given access after it rescinded access to its
confidential information, nor does GMW allege that it had discontinued its negotiations with
Taking the allegations of the complaint as true, GMW’s claim against Housley for
misappropriation of trade secrets falls short of the mark. The allegations against Housley suffer
from the same deficiencies as the allegations against Keller; they do not link any of their alleged
damages to Housley’s specific conduct. GMW alleges that its confidential business plan was
used by Housley as a template for a business plan that Tempus shared with investors. This
In GMW’s response to Housley’s Motion to Dismiss, it attached an email allegedly supporting
these allegations. But the attached email was neither referenced in the complaint nor attached
thereto and thus the court may not consider it in ruling on a motion to dismiss.
allegation does not link Housley’s conduct to any injury; rather, it shows that it was Tempus’s
alleged use of GMW’s business plan that injured GMW. GMW has not alleged that Housley
caused it injury by disclosing or using GMW trade secrets, only that Tempus did so. There
likewise are no allegations in the Complaint that Housley benefitted or has been unjustly
enriched as a result of any alleged misuse of GMW trade secrets. Again, it was Hall, Tempus,
and Island Park that stood to benefit from allegedly usurping GMW’s business. Accordingly, the
allegations of the complaint do not state a viable claim against Housley.
In sum, GMW’s allegations against the Individual Defendants fail to support a plausible
claim against for misappropriation of trade secrets. The allegations against Wade and Hurst “are
so general that they encompass a wide swath of conduct, much of it innocent.” Robbins, 519 F.3d
at 1247 (internal citations and quotations omitted). Thus, GMW “ha[s] not nudged [its] claims
[against Wade and Hurst] across the line from conceivable to plausible.” Id. With respect to the
claims against Keller and Housley, GMW has not made specific allegations of injury resulting
from their use of its confidential information and therefore has not adequately pled a claim for
relief against them. Accordingly, GMW’s claim for misappropriation of trade secrets under the
UTSA against the Individual Defendants must be dismissed.
C. The Fraud Claims
1. Fraudulent Nondisclosure
GMW brings a claim of fraudulent nondisclosure against Hall, Tempus, Housley, Hurst,
Wade, and Keller.7 The elements of a fraudulent nondisclosure claim are: “(1) the nondisclosed
information is material, (2) the nondisclosed information is known to the party failing to
disclose, and (3) there is a legal duty to communicate.” Hermansen v. Tasulis, 48 P.3d 235, 242
These Defendants, among others, are listed in the heading under GMW’s Eleventh Cause of
Action for Fraudulent Nondisclosure. But all of the factual allegations under that heading refer
only to “Defendants” generally.
(Utah 2002) (citing Mitchell v. Christensen, 31 P.3d 572, 574 (Utah 2001)). Hall, Tempus,
Housley, Hurst, Wade, and Keller do not argue that the Complaint is deficient in its allegations
regarding the first and second elements. Rather, they argue only that GMW failed to allege facts
to support the third element—a legal duty to communicate.
The Moving Defendants argue that the facts alleged in the Complaint do not give rise to a
legal duty to communicate anything to GMW and thus do not state a claim upon which relief can
be granted. Further, Rule 9(b) requires that a plaintiff bringing a fraudulent nondisclosure claim
allege specific facts that show that “the defendant had a legal duty to communicate information.”
Anderson v. Kriser, 266 P.3d 819, 823 (Utah 2011) (emphasis omitted).
The determination of whether a legal duty to communicate exists “is a purely legal
question” answerable by the court. Yazd v. Woodside Homes Corp., 143 P.3d 283, 286 (Utah
2006). The Utah Supreme Court has made clear that a legal duty arises from “the structure and
dynamics of the relationship between the parties . . . .” Id. “A relationship that is highly
attenuated is less likely to be accompanied by a duty than one, for example, in which parties are
in privity of contract.” Id. A legal duty “is the product of policy judgments applied to
relationships.” Id. at 286–87 (citing DeBry v. Valley Mortgage Co., 835 P.2d 1000, 1003–04
(Utah Ct. App. 1992) (“Duty is not sacrosanct in itself, but only an expression of the sum total of
those considerations of policy which lead the law to say that the particular plaintiff is entitled to
protection.” (internal quotation marks and brackets omitted))). Further explaining the
circumstances that give rise to a legal duty, the Yazd court continued:
Age, knowledge, influence, bargaining power, sophistication, and cognitive
ability are but the more prominent among a multitude of life circumstances that a
court may consider in analyzing whether a legal duty is owed by one party to
another. Where a disparity in one or more of these circumstances distorts the
balance between the parties in a relationship to the degree that one party is
exposed to unreasonable risk, the law may intervene by creating a duty on the
advantaged party to conduct itself in a manner that does not reward exploitation
of its advantage.
Id. at 286. Importantly, “[a] person who possesses important, even vital, information of interest
to another has no legal duty to communicate the information where no relationship between the
parties exists.” Id. at 287.
GMW alleges that the Defendants generally had a duty to disclose Hall’s conversations
and negotiations with AsiaSat (what GMW calls the “AsiaSat Omissions”), the alleged
misappropriation of GMW’s confidential information and trade secrets, and that Defendants also
made “other unlawful nondisclosures and concealments.” [Complaint, ¶ 242]. GMW also alleges
that “Defendants owed a legal duty to GMW to communicate and disclose to GMW material
facts, by virtue of their relationship with GMW, the trust and confidence placed in them by
GMW, and their superior knowledge of the relevant facts and circumstances.” [Id. at ¶ 241]. But
outside of these formulaic and conclusory allegations of a duty based on some relationship and
the trust and confidence placed in Defendants generally, there are no particular factual
allegations supporting the kind of relationship that would give rise to a legal duty between many
of the Defendants and GMW.
The complaint alleges that Hall had a contractual relationship with GMW. [Id. at ¶¶ 78–
79]. But as discussed previously, Hall was not personally a party to any contract with GMW.
Although the Yazd court noted that parties who are in privity of contract may have a legal duty to
communicate certain things to each other, Yazd, 143 P.3d at 286, Hall and GMW were not in
privity of contract. Thus, the court concludes that GMW has not adequately pled that Hall owed
GMW a legal duty to communicate.
Likewise, the factual allegations of the Complaint cannot support GMW’s claim that
Tempus or any of the Individual Defendants owed it a legal duty to communicate. First, the only
allegations relating to Tempus’s relationship with GMW refer to Tempus as a competitor.
[Complaint, ¶¶ 5, 82, 95, 131]. A competitive relationship is antithetical to the kind of
relationship that would establish a duty between Tempus and GMW under the standards outlined
Similarly, the alleged relationship between GMW and the Individual Defendants does not
give rise to a legal duty. The Individual Defendants are alleged to be Hall’s agents and
“intimately involved in the collection and review of GMW’s confidential information.” [Id. at ¶
4]. Outside of that introduction and the general allegation that “Defendants owed a legal duty to
GMW,” there are no allegations regarding any relationship between GMW and the Individual
Defendants, let alone a relationship sufficient to give rise to a legal duty.
The court concludes that GMW has failed to allege particular facts sufficient to support a
legal duty to communicate as to Hall, Tempus, Wade, Keller, Hurst, or Housley. Accordingly,
GMW’s eleventh cause of action for Fraudulent Nondisclosure against Hall, Tempus, Wade,
Keller, Hurst, and Housley must be dismissed.
2. Fraudulent Inducement
Hall moves for dismissal of GMW’s claim against him for fraudulent inducement,
arguing that the allegations in the Complaint fail to state a claim under Rule 9(b)’s heightened
pleading standard for fraud claims. Fed. R. Civ. P. 9(b) requires a plaintiff to “state with
particularity the circumstances constituting fraud.” A claim of fraudulent inducement requires
the following elements:
(1) that a representation was made (2) concerning a presently existing material
fact (3) which was false and (4) which the representor either (a) knew to be false
or (b) made recklessly, knowing that there was insufficient knowledge upon
which to base such a representation, (5) for the purpose of inducing the other
party to act upon it and (6) that the other party, acting reasonably and in ignorance
of its falsity, (7) did in fact rely upon it (8) and was thereby induced to act (9) to
that party's injury and damage.
Keith v. Mountain Resorts Development, L.L.C., 337 P.3d 213, 225–26 (Utah 2014).
Hall argues that the only misrepresentation that GMW alleges is that “Hall claimed that
he possessed the means to personally invest significant funds in the GMW business venture, or
that he would be able to raise the money from a venture fund, Mercato Partners.” [Complaint, ¶
123]. Hall maintains that these alleged statements do not concern a presently existing material
fact because the statements do not contain an affirmative commitment to invest and they include
an option for Hall to perform an act in the future by raising money from a venture fund. But Hall
ignores the allegation that he also represented “that he could and planned to personally
investment [sic] $10–20MM of his own money in GMW.” [Id. ¶ 124 (emphasis added)]. Taking
these allegations together as true, GMW has adequately pled that a representation was made
concerning a presently existing material fact.
Hall also argues that GMW failed to allege the who, where, when, and how of the alleged
misrepresentation as required by controlling Tenth Circuit precedent. See U.S. ex rel. Sikkenga,
472 F.3d at 726–27 (stating that to meet Rule 9(b)’s particularity requirement, a plaintiff must
“set forth the who, what when, where and how of the alleged fraud, and must set forth the time,
place, and contents of the false representation, the identity of the party making the false
statements and the consequences thereof” (internal citations and quotations omitted)). Hall
argues that GMW’s allegation that the alleged misrepresentations occurred “in the Fall of 2013 at
various meetings with GMW,” [Complaint, ¶ 124], is insufficient. The court agrees.
GMW’s allegations regarding when and where the alleged misrepresentations occurred
are general. There are no specific, particular allegations regarding where the misrepresentations
occurred other than “at various meetings with GMW.” Likewise, an allegation that a
misrepresentation occurred “in the Fall of 2013” cannot be considered a particular allegation of
when the misrepresentation occurred. During the three or four months that comprised the “Fall of
2013,” there were undoubtedly regular meetings that were attended by both GMW and Hall.
Rule 9(b)’s particularity standard unquestionably requires more than these general assertions in
order to provide Hall with adequate notice of the basis for the fraud claims against him.
Accordingly, GMW’s claim for fraudulent inducement against Hall must be dismissed.
D. The Statutory Claims
Hall and Island Park seek dismissal of GMW’s claims against them for violation of
Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a)–(b), the Utah Truth in Advertising Act,
Utah Code § 13-11a-1, et seq., and the Utah Unfair Practices Act, Utah Code § 13-5-1, et seq.
(the “Statutory Claims”). Hall and Island Park argue that the factual allegations relating to the
Statutory Claims all relate to statements made and actions taken only by Tempus. The Statutory
Claims are each based on false advertising and/or unfair business practices. Hall and Island Park
contend that GMW’s allegations relating to the Statutory Claims focus solely on the advertising
and business practices of Tempus and have little or nothing to do with either Island Park or Hall.
Island Park argues that there are no specific references to Island Park in any of the
allegations supporting the Statutory Claims. The only allegations that could possibly be
construed as referencing Island Park are allegations against “Defendants” generally. [E.g.,
Complaint, ¶¶ 170–78, 185–203]. GMW responds by pointing to its allegation that Island Park is
the alter ego of Hall and thus the conduct of Hall and Island Park may be attributed to each other.
But as discussed above, GMW’s allegation that Island Park is the alter ego of Hall is not a wellpled fact. Rather it is a legal conclusion unsupported by any factual allegations. See supra II.A.
And as previously discussed, this allegation is based upon a misunderstanding of the scope and
purpose of an alter ego claim. See supra n.3. Without any specific allegations of actions by
Island Park that implicate the statutory provisions at issue here, GMW has failed to assert
plausible Statutory Claims against Island Park.
Hall argues that although he is specifically referenced in the allegations supporting the
Statutory Claims, he is referenced only as acting in his role as an agent for Tempus. In spite of
the fact that Hall is alleged to have been the individual making many of the statements giving
rise to the Statutory Claims, the context and content of those statements indicate that Hall was
making those statements in a representative capacity on behalf of Tempus. Business entities
“ordinarily act only through their agents, and, when the agent acts within the scope of his
employment, the agent’s liability generally becomes the liability of the employer.” Diversified
holdings, L.C. v. Turner, 63 P.3d 686, 701 (Utah 2002). GMW responds by arguing that it
specifically alleges that Hall made certain statements that give rise to the Statutory Claims and
that Hall is also included in all of the allegations against the “Defendants” generally.
After analyzing the allegations of the Complaint, the court concludes that GMW has
failed to allege sufficient facts in support of its Statutory Claims against Hall. GMW’s general
allegations about “Defendants” are too general. The allegations against “Defendants” do not
distinguish between any of the twelve defendants named in this case and therefore do not
adequately state a claim against Hall. Furthermore, each of the statements that Hall allegedly
made relates to Tempus, its capabilities, and its obtaining licensing in connection with the
STORM project. [Complaint, ¶¶ 127–30]. It follows that Hall was making these statements in a
representative capacity for Tempus. As pled, GMW’s Statutory Claims go only to the advertising
and business practices of Tempus. Accordingly, GMW’s Statutory Claims against Hall and
Island Park must be dismissed.
E. Intentional Interference Claim
The Individual Defendants each move to dismiss GMW’s fourth claim for intentional
interference with existing or potential economic relations, arguing that GMW has failed to assert
any factual allegations tying any of them to the alleged wrongful conduct.
An intentional interference claim requires three elements: “(1) that the defendant
intentionally interfered with the plaintiff's existing or potential economic relations, (2) ... by
improper means, (3) causing injury to the plaintiff.” Eldridge v. Johndrow, 345 P.3d 553, 565
(Utah 2015). The Individual Defendants argue that GMW failed to adequately plead that any of
them employed improper means to interfere with GMW’s economic relations.
The Utah Supreme Court has stated that “improper means is satisfied where the means
used to interfere with a party’s economic relations are contrary to law, such as violations of
statutes, regulations, or recognized common-law rules.” Leigh Furniture & Carpet Co. v. Isom,
657 P.2d 293, 308 (Utah 1982) (overruled on other grounds by Eldridge, 345 P.3d 553). GMW
argues that it adequately pled improper means by each of the Individual Defendants by alleging
trade secret misappropriation and fraudulent omissions by Defendants.
GMW relies on the following allegations:
Defendants intentionally induced GMW to enter into contracts with Defendants by
deceit or misrepresentation for the purpose of gaining personal competitive
advantage with GMW’s business partners and prospective business partners, and
depriving GMW of its existing or prospective relationships with those business
partners. Defendants also obtained and used GMW’s confidential information by
the improper means of deceit, misrepresentation, breach of contract and by
inducing others to breach their contracts with GMW with the intent to gain unfair
competitive advantage against GMW, to deprive GMW of the value of its
investment and business opportunities and to steal its business and business
[Complaint, ¶¶ 165–66 (emphasis added)]. These allegations make clear that the “improper
means” employed by the “Defendants” were fraudulent inducement and misappropriation of
trade secrets. They say nothing about fraudulent omissions as the means used by the Individual
Defendants to interfere with GMW’s relations with its business partners. And there are no
allegations in the Complaint that the Individual Defendants somehow induced GMW to enter
into any contracts—indeed, GMW brings a claim of fraudulent inducement against only Hall,
USURF, AWSF, and Behunin. Thus GMW cannot plausibly claim that the Individual
Defendants employed the improper means of inducing it to enter into contracts by deceit or
misrepresentation to support its intentional interference claim against them. And the court has
also already determined that the allegations of trade secret misappropriation were inadequate to
state a plausible claim against the Individual Defendants. Because there are no well-pled
allegations that the Individual Defendants employed “improper means,” the intentional
interference claim against them must be dismissed.
F. Conspiracy Claim
The Moving Defendants seek dismissal of GMW’s claim of civil conspiracy against them
arguing that the allegations of the complaint fail to meet the particularity standard of Fed. R. Civ.
P. 9(b). The Individual Defendants also argue that the allegations of civil conspiracy fail to state
a claim under Fed. R. Civ. P. 12(b)(6).
A civil conspiracy claim requires that a plaintiff establish the following elements: “(1) a
combination of two or more persons, (2) an object to be accomplished, (3) a meeting of the
minds on the object or course of action, (4) one or more unlawful, overt acts, and (5) damages as
a proximate result thereof.” Pohl, Inc. v. Webelhuth, 201 P.3d 944, 954–55 (Utah 2008). GMW
alleges that there was a combination of two or more persons and that the object to be
accomplished by them was “to interfere with and destroy GMW’s business, to eliminate GMW
as a competitor, and to improperly exclude GMW from the very business opportunity that GMW
had created and brought to Defendants.” [Complaint ¶ 247–48]. GMW then alleges that “[t]here
was a meeting of the minds as to these objects.” [Id. ¶ 249]. GMW next alleges that the unlawful,
overt acts committed as part of the conspiracy are the other causes of action alleged in the
Complaint, including the misappropriation of GMW’s trade secrets, the interference with
GMW’s contractual and economic relationship with its critical business partner AsiaSat, the
fraudulent representations to GMW, and the fraudulent omissions withheld from GMW. [Id. ¶
250]. GMW finally alleges that it was “damaged as a proximate result of Defendants’ conduct.”
[Id. ¶ 251].
To support their argument that GMW’s civil conspiracy claim must meet the
requirements of Rule 9(b), the Moving Defendants rely on Unified Container, LLC v. Mazuma
Capital Corp., 280 F.R.D. 632 (D. Utah 2012). In that case, the court stated: “As a general rule,
civil conspiracy is not one of the listed causes of action which must meet the requirements of
Rule 9(b). However, where the unlawful act underlying the civil conspiracy is a fraud-based tort,
both the underlying tort and the conspiracy claim must be pleaded with particularity.” Id. at 636–
37 (internal citations and quotations omitted). The court clarified that “even if the [c]ourt were to
find that Plaintiffs have not pleaded their civil conspiracy claims with requisite particularity with
regard to the fraud based claims, Plaintiffs' civil conspiracy claim need not be dismissed to the
extent it is based on non-fraud torts.” Id. at 637.
The court has already determined that GMW’s fraud-based claims against each of the
Moving Defendants fail to meet Rule 9(b)’s requirements. Accordingly, to the extent that
GMW’s civil conspiracy claim against the Moving Defendants is based on fraud, it is
inadequately pled. However, GMW’s conspiracy claim is also based on non-fraud torts (i.e.,
misappropriation of GMW’s trade secrets, and interference with GMW’s contractual and
economic relationship with AsiaSat). Thus, GMW’s failure to plead its fraud claims with
particularity does not justify dismissing the claim in its entirety. Because the Hall Defendants
have not challenged GWM’s civil conspiracy claim against them to the extent that it is on nonfraud torts, they have failed to establish a basis for its dismissal.
In contrast to the Hall Defendants, the Individual Defendants have argued that GMW’s
civil conspiracy claim also fails to state a claim against them under Rule 12(b)(6). The Tenth
Circuit has provided guidance on pleading standards for conspiracy claims, emphasizing that
“[t]he Twombly Court was particularly critical of complaints that ‘mentioned no specific time,
place, or person involved in the alleged conspiracies.’” Robbins, 519 F.3d at 1248 (citation
omitted). The factual allegations supporting the civil conspiracy claim in this case are far too
general to meet this pleading standard because there is no mention of a specific time or place
involved in the alleged conspiracy. The most glaring generality is GMW’s allegation that
“[t]here was a meeting of the minds.” This is a classic example of a “formulaic recitation of the
elements of a cause of action” that simply “will not do.” Twombly, 550 U.S. at 555. This
conclusory allegation with no mention of a specific time or place where a meeting of the minds
took place fails to state a plausible claim that the Individual Defendants came to any kind of
agreement or understanding. GMW also consistently lumps the Individual Defendants together
with all of the other Defendants in its allegations regarding the alleged civil conspiracy. The
allegations do not indicate that the Individual Defendants had the objective to destroy GMW. To
the contrary, the Ethics Memorandum indicates that the Individual Defendants were attempting
to protect GMW. There are simply no specific factual allegations suggesting that the Individual
Defendants entered into a conspiracy to destroy or otherwise harm GMW. Accordingly, GMW’s
claim of civil conspiracy against the Individual Defendants must be dismissed.
Preemption By the Utah Uniform Trade Secrets Act
Each of the Moving Defendants alternatively argues that GMW’s tort-based claims—
specifically, the claims for intentional interference with existing or potential economic relations
(Claim 4), unjust enrichment (Claim 6), fraudulent inducement (Claim 9), fraudulent
nondisclosure (Claim 11), and civil conspiracy (Claim 12)—are premised, in whole or in part, on
the same factual allegations that underpin GMW’s claim for misappropriation of trade secrets
and therefore are preempted by the Utah Uniform Trade Secrets Act. The UTSA “displaces
conflicting tort, restitutionary, and other [Utah law] providing civil remedies for
misappropriation of a trade secret . . . [but] does not affect . . . civil remedies that are not based
upon misappropriation of a trade secret . . . .” Utah Code § 13-24-8. GMW concedes that its tort
claims are based, at least in part, on misappropriation of trade secrets, but argues that the UTSA
does not preempt its tort-based claims because they are not based solely on the misappropriation
of trade secrets.
The Utah Court of Appeals has interpreted the UTSA as preempting tort claims “to the
extent that [they are] based on factual allegations supporting a misappropriation of trade secrets
or otherwise confidential information.” CDC Restoration & Constr., LC v. Tradesmen
Contractors, L.L.C., 274 P.3d 317, 331 (Utah Ct. App. 2012).8 The Utah Court of Appeals
clarified that “[u]nder this standard, if proof of a non-UTSA claim would also simultaneously
establish a claim for misappropriation of trade secrets, it is preempted irrespective o[f] whatever
surplus elements of proof were necessary to establish it.” Id. (citation and quotations omitted).
“Stated differently, if the [non-UTSA] claim fails without the allegations regarding misuse of
information, the UTSA preempts it.” Giles Const., 2015 WL 3755863 at *6. (emphasis in
original) (analyzing UTSA preemption of claims for interference with contractual relations and
unjust enrichment based on the alleged unauthorized use of information). In adopting this more
narrow interpretation of preemption, the Utah Court of Appeals specifically rejected the
interpretation of other state courts that hold that the uniform trade secret act preempts all claims
that are factually related to the alleged misappropriation of trade secrets. CDC Restoration &
The court notes the non-precedential value of this Utah Court of Appeals case, but finds it
persuasive of how the Utah Supreme Court might rule. See Occusafe, Inc. v. EG&G Rocky Flats,
Inc., 54 F.3d 618, 622 n.1 (10th Cir. 1995) (“In a diversity case, federal courts are not ‘absolutely
bound’ by the decisions of intermediate state appellate courts, but those decisions can be
‘persuasive of how the [State] Supreme Court might rule.” (citations omitted)). See also Mona
Vie, LLC v. FVA Ventures, Inc., No. 2:12-cv-152-TS, 2012 WL 1952496, at *2 & *3 (May 30,
2012, D. Utah) (unpublished) (citing to and relying on CDC Restoration in a UTSA preemption
case); Giles Const., LLC v. Tooele Inventory Solution, Inc., No. 2:2-cv-37-RJS, 2015 WL
3755863, *6 (June 2, 2015, D. Utah) (unpublished) (same).
Const., 274 P.3d at 330–31 (citation omitted). The standard articulated in CDC Restoration &
Const. works to accomplish the purpose of the UTSA “to preserve a single tort action under state
law for misappropriation of a trade secret.” Id. at 329 (citation omitted).
In evaluating a UTSA preemption claim, courts perform “a preliminary examination of
the facts underlying the non-UTSA claim . . . to determine whether a claim is preempted.” Id. at
330. The court will accordingly analyze the factual allegations of the complaint underlying each
of GMW’s tort-based claims to determine whether they fail without the allegations regarding
misuse of information.
A. Intentional Interference With Existing or Potential Economic Relations
GMW alleges intentional interference against all of the Moving Defendants. To properly
bring a claim for intentional interference, GMW must allege facts supporting the following
elements: “(1) . . . the defendant intentionally interfered with the plaintiff's existing or potential
economic relations, (2) . . . by improper means, (3) causing injury to the plaintiff.” Eldridge, 345
P.3d at 565. In support of its claim for intentional interference, GMW alleges the following as
the improper means used by Defendants:
165. Defendants intentionally induced GMW to enter into contracts with
Defendants by deceit or misrepresentation for the purpose of gaining personal
competitive advantage with GMW’s business partners and prospective business
partners, and depriving GMW of its existing or prospective relationships with
those business partners.
166. Defendants also obtained and used GMW’s confidential information by the
improper means of deceit, misrepresentation, breach of contract and by inducing
others to breach their contracts with GMW with the intent to gain unfair
competitive advantage against GMW, to deprive GMW of the value of its
investment and business opportunities and to steal its business and business
[Complaint, ¶¶ 165–66 (emphasis added)].
1. The Individual Defendants
As discussed supra II.E., GMW does not allege that the Individual Defendants induced it
to enter into any contracts. Rather, GMW’s claim for fraudulent inducement is alleged against
only Hall, Mr. Behunin, USURF, and AWSF. Thus, the only “improper means” allegedly used
by the Individual Defendants is the obtaining and use of GMW confidential information.
Because proof of the non-UTSA claim of intentional interference against the Individual
Defendants would also simultaneously establish a claim for misappropriation of trade secrets, the
intentional interference claim against the Individual Defendants is preempted by the UTSA.
Preemption is therefore an alternative basis on which to dismiss the intentional interference
claim against the Individual Defendants.
2. The Hall Defendants
The Complaint does not allege that Island Park or Tempus induced GMW to enter into
contracts by deceit, misrepresentation, or otherwise. The only “improper means” allegedly used
by Island Park and Tempus are the obtaining and use of GMW confidential information. Because
proving the improper means would also simultaneously establish a claim for misappropriation of
trade secrets, the intentional interference claim against Island Park and Tempus is preempted by
Hall, on the other hand, is alleged to have fraudulently induced GMW to enter into
contracts with him. But, as discussed supra II.C.2., GMW has failed to plead its claim of
fraudulent inducement against Hall with the requisite particularity. The only adequately-pled
allegation supporting GMW’s claim for intentional interference is its allegation that Hall
misappropriated GMW’s trade secrets. Because GMW’s intentional interference claim against
Hall necessarily fails without the allegations regarding the misappropriation of its trade secrets,
the UTSA preempts it.
B. Unjust Enrichment
GMW brings an unjust enrichment claim against the Hall Defendants. The Hall
Defendants argue that this claim is preempted by the UTSA. Three elements are required to
establish an unjust enrichment claim:
First, there must be a benefit conferred on one person by another. Second, the
conferee must appreciate or have knowledge of the benefit. Finally, there must be
the acceptance or retention by the conferee of the benefit under such
circumstances as to make it inequitable for the conferee to retain the benefit
without payment of its value.
Desert Miriah, Inc. v. B & L Auto, Inc., 12 P.3d 580, 582 (Utah 2000) (internal citations and
GMW’s claim for unjust enrichment is supported by the following allegation: “The
foregoing acts of Defendants [alleged in the Complaint] constitute a wrongful appropriation of,
and invasion into, GMW’s confidential trade secret information under common law.”
[Complaint, ¶¶ 180]. Because GMW’s claim for unjust enrichment against the Hall Defendants is
entirely based on the allegations supporting its claim for misappropriation of trade secrets, its
claim for unjust enrichment against the Hall Defendants is preempted and must therefore be
C. Fraudulent Inducement
GMW brings a claim for fraudulent inducement against Hall. A claim of fraudulent
inducement requires proof of the following elements:
(1) that a representation was made (2) concerning a presently existing material
fact (3) which was false and (4) which the representor either (a) knew to be false
or (b) made recklessly, knowing that there was insufficient knowledge upon
which to base such a representation, (5) for the purpose of inducing the other
party to act upon it and (6) that the other party, acting reasonably and in ignorance
of its falsity, (7) did in fact rely upon it (8) and was thereby induced to act (9) to
that party's injury and damage.
Keith, 337 P.3d at 225–26. Hall argues that the fraudulent inducement claim against him is
preempted by the UTSA. GMW relies on the following allegation to support its fraudulent
inducement claim against Hall: “Hall made the [false] statements for the purpose of inducing
GMW to act upon them, including for the purpose of inducing GMW to divulge its confidential
and proprietary information, and to induce GMW to further evaluate a transaction with Hall to
limit GMW’s bargaining position in the future.” [Complaint, ¶ 225 (emphasis added)].
GMW alleges that Hall had two purposes for making the allegedly false
statements: to induce GMW to divulge its confidential information and to induce GMW
to further evaluate a transaction with Hall. Because proof of Hall’s purpose for making
the alleged false statements would not simultaneously establish a claim for
misappropriation of trade secrets, GMW’s fraudulent inducement claim against Hall is
not preempted by the UTSA. However, because GMW failed to particularly plead this
claim under Fed. R. Civ. P. 9(b), the fraudulent inducement claim against Hall will be
D. Fraudulent Nondisclosure
GMW brings a fraudulent nondisclosure claim against all the Moving Defendants, except
for Island Park. Such a claim is composed of three elements: “(1) that the nondisclosed
information is material, (2) that the nondisclosed information is known to the party failing to
disclose, and (3) that there is a legal duty to communicate.” Yazd, 143 P.3d at 286. GMW alleges
that the material information not disclosed by the Defendants generally included the so-called
AsiaSat Omissions, the fact that none of the defendants informed GMW that they had
misappropriated GMW’s confidential and proprietary information (the “Misappropriation
Omissions”), and “other unlawful nondisclosures and concealments.” [Complaint, ¶ 242].
Proving the nondisclosure of this information would not simultaneously establish a claim for
misappropriation of trade secrets because it does not require proof of a UTSA violation.
Accordingly, GMW’s fraudulent nondisclosure claim is not preempted by the UTSA. As
previously discussed, however, because GMW failed to adequately plead the existence of a legal
duty on the part of the Moving Defendants, the fraudulent nondisclosure claim against them must
be dismissed on that ground.
E. Civil Conspiracy
GMW alleges a claim for civil conspiracy against the Moving Defendants. To prevail on
a claim for civil conspiracy, a plaintiff must demonstrate “(1) a combination of two or more
persons, (2) an object to be accomplished, (3) a meeting of the minds on the object or course of
action, (4) one or more unlawful, overt acts, and (5) damages as a proximate result thereof.”
Pohl, Inc. of Am. v. Webelhuth, 201 P.3d 944, 954–55 (Utah 2008). As to the fourth element,
GMW alleges that
Defendants engaged in one or more unlawful, overt acts in furtherance of this
object, as set forth in the preceding twelve causes of action, including but not
limited to, the misappropriation of GMW’s trade secrets, the interference with
GMW’s contractual and economic relationship with its critical business partner
AsiaSat, the fraudulent representations to GMW, and the fraudulent omissions
withheld from GMW.
[Complaint, ¶¶ 250 (emphasis added)].
GMW alleges that all of the actions on which it bases its claims against the
Moving Defendants were overt acts in furtherance of the alleged conspiracy. As has been
discussed above, however, many of those actions and claims have either been
inadequately pled or are preempted by the UTSA. Specifically, all causes of action
against Hall, Housley, Keller, Hurst, and Wade are either inadequately pled or
preempted. Thus, the civil conspiracy claim against Housley, Keller, Hurst, and Wade
fails because the allegations regarding misuse of GMW’s trade secrets are preempted and
there are no other well-pled allegations of one or more unlawful, overt acts against these
defendants. Likewise, the civil conspiracy claim against Hall fails because all causes of
action except for the trade secret misappropriation claim against him are either
inadequately pled or are preempted. There are, however, still allegations of unlawful,
overt conduct by Island Park and Tempus, i.e., allegations of breach of contract and
breach of the implied covenant of good faith and fair dealing by Island Park, and
allegations of statutory violations by Tempus. Thus, the court denies the motion to
dismiss the civil conspiracy claim against Island Park and Tempus.
CONCLUSION AND ORDER
In sum, the court GRANTS Debbie Wade’s Motion to Dismiss [Docket 271]; GRANTS
Mark Hurst’s Motion to Dismiss [Docket 288]; GRANTS Brent Keller’s Motion to Dismiss
[Docket 289]; GRANTS Erin Housley’s Motion to Dismiss [Docket 290]; and GRANTS IN
PART AND DENIES IN PART Alan Hall’s, Island Park Investments’, and Tempus Global Data,
Inc.’s Motion to Dismiss [Docket 296].
The court hereby ORDERS that the following causes of action be DISMISSED
1. GMW’s first and third causes of action for breach of contract and breach of the
implied covenant of good faith and fair dealing against Hall;
2. GMW’s second cause of action for trade secret misappropriation against Housley,
Hurst, Wade, and Keller;
3. GMW’s fourth cause of action for intentional interference with existing or potential
economic relations against Hall, Island Park, Tempus, Housley, Hurst, Wade, and
4. GMW’s fifth cause of action for violations of Section 43(a) of the Lanham Act
against Hall and Island Park;
5. GMW’s sixth cause of action for unjust enrichment against Hall, Island Park, and
6. GMW’s seventh cause of action for violation of the Utah Truth in Advertising Act
against Hall and Island Park;
7. GMW’s eighth cause of action for violations of the Utah Unfair Practices Act against
Hall and Island Park;
8. GMW’s ninth claim for fraudulent inducement against Hall;
9. GMW’s eleventh cause of action for Fraudulent Nondisclosure against Hall, Tempus,
Housley, Hurst, Wade, and Keller; and
10. GMW’s twelfth cause of action for civil conspiracy against Hall, Housley, Hurst,
Wade, and Keller.
Signed March 27, 2017.
BY THE COURT
Jill N. Parrish
United States District Court Judge
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