IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
F I L E D
September 17, 2007
No. 05-21015
Charles R. Fulbruge III
Clerk
GENERAL UNIVERSAL SYSTEMS INC; WORLD TRADE SYSTEMS INC
Plaintiffs - Appellants
JOSE S LOPEZ
Plaintiff - Intervenor Defendant -
Appellant
ELI NASSAR
Third Party Defendant - Appellant
v.
HAL INC; ET AL
Defendants
HAL INC; JOE R HERRIN; ERNEST ALLEN PARKIN
Defendants - Third Party Plaintiffs
Appellees
PANALPINA INC; FRITZ COMPANIES INC; GLOBAL SOUTHPORT
SERVICES INC; UNITED STATES CRATING INC; TRANSWORLD
LOGISTICS INC
Defendants - Appellees
LARRY MASON LEE; LARRY MASON LEE & ASSOCIATES
Intervenor Plaintiffs - Appellees
No. 05-21015
Appeal from the United States District Court
for the Southern District of Texas
Before REAVLEY, GARZA, and DENNIS, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
General Universal Systems, Inc. (“GUS”) originally sued HAL, Inc.
(“HAL”), Joseph Herrin, and Ernest Allen Parkin (“HAL Defendants”) for
numerous state and federal claims for stealing proprietary software. GUS also
sued a number of companies (“Customer Defendants”) to which HAL licensed the
software program. We previously ruled on this case in General Universal
Systems v. Lee, 379 F.3d 131 (5th Cir. 2004) and determined that a remand to
the district court was appropriate to settle the sole remaining claim of trade
secret misappropriation under Texas law.
On remand, the magistrate judge granted summary judgment to the HAL
Defendants, finding that the statute of limitations had expired prior to the
initiation of the lawsuit. Further, the magistrate judge granted summary
judgment to the Customer Defendants, finding that the claims against those
parties were not included in the scope of the remand from this court.
We must now determine the accrual date of an alleged trade secret
misappropriation and whether the claims against the Customer Defendants
were within the scope of our remand.
I
The facts of this case were thoroughly recounted in General Universal
Systems, 379 F.3d at 137-40. Therefore, we will only address those facts and
procedural history relevant to the claim of trade secret misappropriation.
In 1979, GUS developed a software program called CHAMPION PACKER
for Jose Lopez. CHAMPION PACKER was written in BASIC 4 computer
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No. 05-21015
programming language. Later, Lopez created a program based on CHAMPION
PACKER but written in COBOL computer programming language instead of
BASIC 4; Lopez called the new derivative program LOPEZ COBOL and began
selling and leasing the program to clients through his company World Trade
Systems, Inc. One of those clients was Superior Packing, Inc., a company owned
by Herrin. In 1988, Lopez leased a computer to Superior Packing and licenced
Superior Packing to use LOPEZ COBOL. At that time, Superior Packing also
had a license from GUS to use CHAMPION PACKER; the GUS license
originated in 1985. Both license agreements restricted the use and distribution
of the relevant computer programs.
In 1992 Herrin and Parkin agreed to work with Lopez to develop and
market a new software program to succeed LOPEZ COBOL. The three intended
to form a corporation, HAL, Inc., to develop and market the software and then
split the shares and profits amongst each other. The program was to be based
in large part on LOPEZ COBOL. They began working on the design of the
program, called MEPAW, in the summer of 1992. Beginning in December 1992,
Lopez spent seven months incarcerated in a Mexican prison. In a letter of March
22, 1993, Herrin notified Lopez that he and Parkin agreed to oust Lopez from
their agreement because Lopez’s incarceration prevented him from fulfilling his
duties. Through HAL, Herrin and Parkin continued the development of
MEPAW until August or September 1993, when they began marketing MEPAW
to potential clients.
Just prior to the ousting of Lopez, in February 1993, Herrin sent Lopez a
letter stating that Superior Packing was terminating its license agreement with
World Trade Systems for the use of LOPEZ COBOL. In March 1993, Lopez’s son
went to Superior Packing to pick up World Trade Systems’s computer, which
contained the LOPEZ COBOL software, but was told that Superior Packing was
not finished with the program. Lopez claims that his son then entered an oral
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No. 05-21015
agreement to allow Superior Packing to use the computer and software until
July 1993, and he produced a receipt showing that Superior Packing paid a
license fee to World Trade Systems in July 1993.
Although HAL began demonstrating MEPAW in the fall of 1993, it did not
license the software to any customers until October 1994; the first licensee was
Panalpina, Inc. By then, Lopez and World Trade Systems assigned all their
rights in LOPEZ COBOL to GUS. In November 1994, GUS put Panalpina on
notice that MEPAW was improperly derived from its packing software. HAL
continued to licence MEPAW to other customers as well: Fritz Companies, Inc.;
United States Crating, Inc.; and Transworld Logistics, Inc.1 GUS asserts that
all of the Customer Defendants were on notice.
GUS filed suit against the HAL Defendants and the Customer Defendants
in May 1995. In that complaint, GUS raised numerous claims, both state and
federal, most of which lost on summary judgment; a contract claim went to trial,
but the magistrate judge entered judgment as a matter of law for the
defendants. On appeal, we affirmed the magistrate judge’s ruling on all claims,
except the misappropriation of trade secrets claim, on which we reversed and
remanded. Following the remand, the magistrate judge granted summary
judgment to the defendants, finding the trade secrets misappropriation claim
against the HAL Defendants was barred by Texas’s two-year statute of
limitations and the related claim against the Customer Defendants was outside
the scope of our remand.
1
These companies and Panalpina, Inc. are the defendants referred to as the “Customer
Defendants.” Global Southport Services, Inc. was originally also named as a Customer
Defendant, but it was dismissed from the case for failure to serve process. See Final Judgment
of District Court, Sep. 15, 2000 at *1-2. That dismissal was never challenged, and Global
Southport Services, Inc. was not named as a defendant - appellee in the prior appeal.
Therefore, Global Southport Services, Inc. is not subject to GUS’s claims in this case.
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No. 05-21015
II
“We review a grant of summary judgment de novo, applying the same
standards as the district court.” Triple Tee Golf, Inc. v. Nike, Inc., 485 F.3d 253,
261 (5th Cir. 2007) (footnote omitted). Summary judgment is appropriate if the
moving party can show “that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.” Fed. R.
Civ. P. 56(c). We view the evidence in the light most favorable to the non-moving
party))in this case, GUS. Triple Tee Golf, 485 F.3d at 261.
A
We look first at the magistrate judge’s determination that GUS was time
barred from raising its trade secret misappropriation claim against the HAL
Defendants on May 23, 1995, the date GUS initially filed its complaint. All
parties agree that this claim was subject to a two-year statute of limitations.2
Therefore, our task is to determine whether all of GUS’s claims of trade secret
misappropriation accrued before May 23, 1993.
The Texas courts have held that “a cause of action accrues when a
wrongful act causes some legal injury, even if the fact of injury is not discovered
until later, and even if all resulting damages have not yet occurred.” S.V. v.
R.V., 933 S.W.2d 1, 4 (Tex. 1996). Under Texas law, there are three elements
needed to establish the injury of trade secret misappropriation: “(1) a trade
secret exists; (2) Defendants acquired the trade secret by breach of a confidential
relationship or other improper means; and (3) Defendants used the trade secret
without authorization.” Triple Tee Golf, 485 F.3d at 261 (citing Guy Carpenter
2
In 1997, Texas law was amended to extend the statute of limitations period to three
years. Tex. Civ. Prac. & Rem. Code § 16.010(a). This statute also added a discovery rule to
the claim, such that a claim for trade misappropriation did not accrue until the plaintiff knew
of or should have known of the violation. The Texas Supreme Court had previously ruled that
the discovery rule was not applicable to claims of trade secret misappropriation. Computer
Assocs. Int’l v. Altai, Inc., 918 S.W.2d 453, 457 (Tex. 1996).
5
No. 05-21015
& Co. v. Provenzale, 334 F.3d 459, 467 (5th Cir. 2003) (applying Texas common
law)).3
In our prior opinion in this case, only the first and second elements were
at issue, and we held that there was a genuine issue of material fact as to
each))namely, whether Lopez sufficiently protected his computer software
program and whether the agreement between Lopez, Herrin, and Parkin
constituted a confidential relationship for the purposes of establishing the
elements of the claim. General Universal Sys., 379 F.3d at 150. On remand, the
magistrate judge held that it did not need to determine whether LOPEZ COBOL
was a trade secret and Lopez’s agreement with Herrin and Parkin was a
confidential relationship, because even if LOPEZ COBOL were a trade secret
and Lopez’s agreement were a confidential relationship, GUS’s claim accrued
before May 23, 1993 and was therefore time barred by the two-year statute of
limitations. GUS makes three challenges to this ruling. First, it claims that the
HAL Defendants breach of a confidential relationship happened after May 23,
1993. Second, the HAL Defendants did not improperly use LOPEZ COBOL until
after May 23, 1993. And third, trade secret misappropriation is a continuing tort
so the claim did not accrue until the HAL Defendants stopped using LOPEZ
COBOL, which was after May 23, 1993.
1
The magistrate judge applied the ousting of Lopez from HAL as the date
on which the relevant confidential relationship would have been dissolved;
therefore, the magistrate judge treated any “use” of LOPEZ COBOL after the
ousting as the date on which the action accrued. GUS argues that the
confidential relationship issue is more complicated, because aside from the
3
GUS is not seeking relief under the Texas Theft Liability Act. Tex. Civ. Prac. & Rem.
Code §§ 134.002(2), 134.003. Although, in various pleadings, GUS has made reference to
“trade secret theft,” the complaint alleges common-law trade secret misappropriation, and GUS
has not briefed the claim as being brought under the Texas Theft Liability Act.
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No. 05-21015
agreement between Lopez, Herrin, and Parkin to form HAL, there are two other
agreements relevant to our analysis))specifically, the license agreement
between GUS and Superior Packing, which allows Superior Packing to use
CHAMPION PACKER, and the license agreement between World Trade
Systems and Superior Packing, which allows Superior Packing to use LOPEZ
COBOL. GUS contends that the CHAMPION PACKER license agreement never
expired because Superior Packing never returned the computer and software,
and the LOPEZ COBOL license agreement expired at the end of July 1993. As
a result, GUS argues that Herrin and Parkin were authorized to use
CHAMPION PACKER and LOPEZ COBOL even after they ousted Lopez from
the HAL group.
Although during that time, Herrin was the president of Superior Packing
and a member of the HAL group, the licenses granted to Superior Packing did
not authorize Herrin to utilize the programs to develop a competing software
program for a third-party corporation, HAL, which is not a party to either license
agreement. It is undisputed that Herrin and Parkin relied on LOPEZ COBOL,
and therefore allegedly relied on CHAMPION PACKER, to develop MEPAW for
HAL. And GUS even stipulates that HAL, rather than Superior Packing, had
a commercially viable version of MEPAW based on LOPEZ COBOL in March
1993. Because these actions cannot be said to be within the scope of GUS’s and
World Trade System’s respective licensing agreements with Superior Packing,
these license agreements do not sanction the HAL Defendants’ development of
MEPAW.
Therefore, the magistrate judge properly focused on the agreement
between Lopez, Herrin, and Parkin as the only possible basis for a breached
confidential relationship supporting the claim of trade secret misappropriation.
Because Lopez was ousted from the HAL group in March 1993, any use of
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No. 05-21015
LOPEZ COBOL by the HAL Defendants after March 1993 would mark the
accrual of Lopez’s claim of trade secret misappropriation.
2
GUS also challenges the magistrate judge’s definition of “use” with respect
to the third element of trade secret misappropriation. The magistrate judge held
that the HAL Defendants “used” LOPEZ COBOL when they refused to return
World Trade Systems’s computer containing LOPEZ COBOL in March 1993.
The Texas Supreme Court has stated, “A cause of action for misappropriation of
trade secrets accrues when the trade secret is actually used.” Computer Assocs.
Int'l v. Altai, Inc., 918 S.W.2d 453, 455 (Tex. 1996) (emphasis added) (citing
Hyde Corp. v. Huffines, 314 S.W.2d 763, 769 (Tex. 1958)). Texas intermediate
courts have stated, “‘Use’ of a trade secret means commercial use, by which a
person seeks to profit from the use of the secret.” Trilogy Software, Inc. v.
Callidus Software, Inc., 143 S.W.3d 452, 464 (Tex. App. 2004) (citing Atlantic
Richfield Co. v. Misty Prods., Inc., 820 S.W.2d 414, 421 (Tex. App. 1991)).4 And
the Restatement Third of Unfair Competition helpfully expands on the definition
of “use”:
As a general matter, any exploitation of the trade secret that is
likely to result in injury to the trade secret owner or enrichment to
the defendant is a “use” under this Section. Thus, marketing goods
that embody the trade secret, employing the trade secret in
manufacturing or production, relying on the trade secret to assist or
accelerate research or development, or soliciting customers through
4
The magistrate judge defined “use” as “‘[a]ny misappropriation of trade secrets,
followed by an exercise of control and dominion [sic], is considered a commercial use.’”
Memorandum and Order of Magistrate Judge, July 29, 2005 at *11 (quoting Garth v. Staktek
Corp., 876 S.W.2d 545, 548 (Tex. App. 1994)) (second modification added). This definition,
though, has never been employed or approved by the Texas Supreme Court and is not widely
used in Texas courts otherwise. Further, it unnecessarily confuses the standard used to define
conversion. Green Int’l v. Solis, 951 S.W.2d 384, 391 (Tex. 1997) (“Conversion is defined as the
wrongful exercise of dominion and control over another's property in denial of or inconsistent
with his rights.”) (citing Bandy v. First State Bank, 835 S.W.2d 609, 622 (Tex. 1992)).
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No. 05-21015
the use of information that is a trade secret (see § 42, Comment f)
all constitute “use.”
Restatement Third of Unfair Competition, § 40.5
Based on these definitions, it is clear the HAL Defendants “used” LOPEZ
COBOL, not by refusing to return World Trade System’s computer in March
1993, but by continuing to rely on LOPEZ COBOL, either directly or those
portions incorporated into MEPAW, to accelerate the development and
marketability of MEPAW, as GUS alleges. This continued use of LOPEZ
COBOL certainly represents an exploitation of LOPEZ COBOL that was likely
to result in injury to Lopez and enrichment to the HAL Defendants, and it
occurred both after the ousting of Lopez and before May 23, 1993, two years
prior to GUS filing the complaint.
3
GUS further argues that trade secret misappropriation is a continuing
tort. “In a continuing-tort case, the wrongful conduct continues to effect
additional injury to the plaintiff until that conduct stops.” Upjohn Co. v.
Freeman, 885 S.W.2d 538, 542 (Tex. App. 1994) (citing Arquette v. Hancock, 656
S.W.2d 627, 629 (Tex. App. 1983)). For continuing torts, “the cause of action is
not complete and does not accrue until the tortious acts have ceased.” Twyman
v. Twyman, 790 S.W.2d 819, 821 (Tex. App. 1990) (citing Adler v. Beverly Hills
Hosp., 594 S.W.2d 153, 156 (Tex. App. 1980)). Because HAL continued to use
LOPEZ COBOL after May 23, 1993, GUS argues that HAL’s wrongful conduct
continued into the period covered by the statute of limitations.
5
Sections on unfair competition, including trade secret misappropriation, appeared in
Restatement First of Torts (1939), but were left out of Restatement Second of Torts (1957).
These sections now appear in Restatement Third of Unfair Competition. Although Texas
courts still often cite to the Restatement of Torts, the Texas Supreme Court has at times relied
on the Restatement 3d of Unfair Competition. See, e.g., In re Bass, 113 S.W.3d 735, 739-40
(Tex. 2003) (adopting the criteria for establishing a trade secret employed in Restatement
Third of Unfair Competition).
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No. 05-21015
Although often used by Texas intermediate courts, “[t]he Texas Supreme
Court has not ‘endorsed nor addressed’ the concept of the continuing tort
doctrine.” Walston v. Stewart, 187 S.W.3d 126, 129 (Tex. App. 2006) (quoting
Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816 n.8 (Tex. 2005)). Further, the
Texas courts have never directly addressed the question of whether trade secret
misappropriation was a continuing tort prior to the 1997 legislation))legislation
that explicitly precludes treating trade secret misappropriation as a continuing
tort. Tex. Civ. Prac. & Rem. Code § 16.010(b). Other jurisdictions which have
addressed this question are split. Compare Underwater Storage, Inc. v. United
States Rubber Co., 371 F.2d 950, 953 (D.C. Cir. 1966) (finding that trade secret
misappropriation is a continuing tort); Anaconda Co. v. Metric Tool & Die Co.,
485 F. Supp. 410, 426 (E.D. Pa. 1980) (same) with AVCO Corp. v. Precision Air
Parts, Inc., 676 F.2d 494, 498 (11th Cir. 1982) (finding that trade secret
misappropriation is not a continuing tort); Monolith Portland Midwest Co. v.
Kaiser Aluminum & Chemical Corp., 407 F.2d 288, 292-93 (9th Cir. 1969)
(same).
A close examination of Texas cases, though, reveals that Texas would have
unlikely treated trade secret misappropriation as a continuing tort prior to the
1997 legislation. In K & G Oil Tool & Service Co. v. G & G Fishing Tool Service,
314 S.W.2d 782 (Tex. 1958), the Texas Supreme Court stated, “The basis of the
trade secret case is a ‘breach of a contract or wrongful disregard of confidential
relationships.’” Id. at 787 (citation omitted). Jurisdictions that adopt the
“breach theory” of trade secret misappropriation, as opposed to the “property
theory,” generally do not treat trade secret misappropriation as a continuing
tort. See, e.g., Monolith, 407 F.2d at 293 (“California does not treat trade secrets
as if they were property. It is the relationship between the parties at the time
the secret is disclosed that is protected. . . . The fabric of the relationship once
rent is not torn anew with each added use or disclosure, although the damage
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No. 05-21015
suffered may thereby be aggravated.”). Additionally, one intermediate Texas
court has stated, “[A]ppellants’ cause of action [for trade secret
misappropriation] is barred by the applicable statute of limitations, as suit was
not brought within two years of the occurrence of the first breach.” J.C. Kinley
Co. v. Haynie Wire Line Service, Inc., 705 S.W.2d 193, 198 (Tex. App. 1985)
(emphasis added). Such a statement is inconsistent with treating the claim as
a continuing tort. See also Tavana v. GTE Southwest, No. 05-97-00664-CV, 1999
Tex. App. LEXIS 5365, at *12 (Tex. App. 1999) (applying the pre-1997 cause of
action and treating the accrual date as the date of initial use). Other
jurisdictions applying Texas law have reached similar conclusions. See
Computer Assocs. Int’l v. Altai, Inc., 61 F.3d 6, 7-8 (2d Cir. 1995) (applying Texas
law and treating a claim as time barred using an accrual date based on the date
of initial breach rather than last date of continued use);6 Intermedics, Inc. v.
Ventritex, Inc., 822 F. Supp. 634, 643-44 (N.D. Cal. 1993) (rejecting, after a
thorough analysis, the argument that Texas law would treat trade secret
misappropriation as a continuing tort).
Our caselaw similarly suggests that trade secret misappropriation should
not be treated as a continuing tort under Texas law. In Daboub v. Gibbons, 42
F.3d 285 (5th Cir. 1995), although we did not address the specific claim of trade
secret misappropriation, we refused to treat claims of misappropriation and
unfair competition as a continuing tort under Texas common law. Id. at 291-92.
6
This case has a long and complicated procedural history, including an opinion from the
Texas Supreme Court, Computer Assocs. Int’l v. Altai, Inc., 918 S.W.2d 453 (Tex. 1996),
answering certified questions from the Second Circuit. Unfortunately, that opinion of the
Texas Supreme Court only addresses whether Texas recognizes a discovery rule for trade
secret misappropriation and does not discuss the concept of a continuing tort. The Second
Circuit opinion similarly does not address the concept of a continuing tort but, in that case, the
defendant used the trade secret from, at the latest, 1985 until August 1988, when the plaintiff
filed suit. Id. at 454-55. If the court had treated trade secret misappropriation as a continuing
tort, then it could not have been deemed time barred, since the trade secret was being used
until the date of suit was filed.
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No. 05-21015
The claims stemmed from one band allegedly copying the song of another band.
We held that the defendant-band’s continued use of the song, through record
sales and live performances, demonstrates the “concept of continuing damages,
rather than a continuing tort.” Id. at 291; see also Skytop Brewster Co.v. Skytop
Int’l, No. H-93-0204, 1993 U.S. Dist. LEXIS 20472, at *8 (S.D. Tex. 1993)
(“Because Texas has not recognized the applicability of the continuing tort
doctrine to a trade secrets claim, Blue Tee's misappropriation of trade secrets
counterclaim is not thereby saved from operation of the two year statute of
limitations.”).
Based on the weight of caselaw, we decline to apply the concept of a
continuing tort to the Texas common law claim of trade secret misappropriation,
as it was applied prior to 1997. As a result, the magistrate judge properly
treated GUS’s claim of trade secret misappropriation against the HAL
Defendants as time barred.
B
This leaves the question of whether GUS’s claims against the Customer
Defendants are within the scope of the remand. The magistrate judge ruled that
the claims were not within the scope of the remand and, therefore, applying the
mandate rule, the magistrate judge granted summary judgment to the Customer
Defendants.
“‘We review de novo a district court’s interpretation of our remand order,
including whether the law-of-the--case doctrine or mandate rule forecloses any
of the district court’s actions on remand.’” United States v. Elizondo, 475 F.3d
692, 695 (5th Cir. 2007) (quoting United States v. Pineiro, 470 F.3d 200, 204 (5th
Cir. 2006)).
“The mandate rule requires a district court on remand to effect our
mandate and to do nothing else.” United States v. Castillo, 179 F.3d 321, 329
(5th Cir. 1999) (citing United States v. Becerra, 155 F.3d 740, 753 (5th Cir.
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No. 05-21015
1998)). Further, on remand the district court “must implement both the letter
and the spirit of the appellate court’s mandate and may not disregard the
explicit directives of that court.” United States v. Matthews, 312 F.3d 652, 657
(5th Cir. 2002) (quoting United States v. Becerra, 155 F.3d 740, 753 (5th Cir.
1998)). “In implementing the mandate, the district court must ‘take into account
the appellate court’s opinion and the circumstances it embraces.’” United States
v. Lee, 358 F.3d 315, 321 (5th Cir. 2004) (quoting Sobley v. Southern Natural Gas
Co., 302 F.3d 325, 333 (5th Cir. 2002)). Because the mandate rule is a corollary
of the law of the case doctrine, it “compels compliance on remand with the
dictates of a superior court and forecloses relitigation of issues expressly or
impliedly decided by the appellate court.” Castillo, 179 F.3d at 329 (citation
omitted).
Our prior opinion and the circumstances it embraces disposed of any
issues related to the Customer Defendants through waiver. By failing to brief
any arguments against the Customer Defendants, GUS waived any claims
against the Customer Defendants. While our prior opinion did not explicitly
address the Customer Defendants nor any claim by GUS brought against them,
this is not surprising based on the absence of any arguments against the
Customer Defendants in GUS’s brief in the original appeal. GUS’s brief dealt
only with arguments against the summary judgment granted to the HAL
Defendants. Mere mention of the Customer Defendants in the opening sections
of the brief does not suffice to preserve arguments against them on appeal. See,
Justiss Oil Co., Inc. v. Kerr-McGee Refining Corp., 75 F.3d 1057, 1067 (5th Cir.
1996) (finding that failure to advance arguments in the body of the appellant’s
brief, even when those issues were referenced in the Statement of Issues section,
resulted in waiver of those arguments).
The disposition of the Customer Defendants’ claims is also supported by
our treatment of the trade secret claim in our prior opinion. In discussing the
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No. 05-21015
trade secret misappropriation issue, our prior opinion references reversal of the
summary judgment motion in favor of HAL and HAL alone. General Universal
Systems, 379 F.3d at 152 (reversing the “district court’s grant of summary
judgment in favor of HAL”). Further, the opinion’s concluding paragraph
references the seemingly more general Case Number 01-21114, but only refers
to a single trade secret claim. Id. at 159. Use of the singular claim would be
strange if the panel understood Case Number 01-21114 to include multiple
defendants facing varied theories of liability.
Because GUS failed to brief, and thus waived, any arguments against the
Customer Defendants on appeal, the district court’s judgment finally disposed
of any claims against those defendants. As a result, our remand in the prior
opinion did not include any claims against the Customer Defendants.
Therefore, we affirm the magistrate judge’s grant of summary judgment to the
Customer Defendants.
III
We AFFIRM the magistrate judge’s grant of summary judgment to the
HAL Defendants and to the Customer Defendants.
14