N.C. Business Court Opinions, July 16, 2025 – July 29, 2025
By: William H. Scott and Ashley Oldfield
Dapper Dev., L.L.C. v. Cordell, 2025 NCBC 33 (N.C. Super. Ct. July 15, 2025) (Brown, J.)
Key Terms: judgment on the pleadings; Rule 12(c); breach of contract; judicial estoppel; North Carolina Wage & Hour Act; N.C.G.S. § 95-25.14(b)(4); declaratory judgment; termination of membership interest; negligent/fraudulent misrepresentation; inspection of books and records; judicial dissolution
The Individual Plaintiffs and Defendant were each 25% members of Plaintiffs Dapper Development, L.L.C. and Tantalum Holdings, LLC (the “Companies”). The Companies’ Operating Agreements provide that the Companies shall be operated by Managers with each Member serving as a Manager. Following a series of disputes, Plaintiffs began to negotiate a voluntary buyout of Defendant’s membership interest in the Companies. In June 2023, Plaintiffs voted to remove Defendant from the Companies and offered a cash payment. Defendant rejected the buyout offer, extended a counteroffer, and filed suit against Plaintiffs after the counteroffer’s rejection. During continued buyout negotiations, Defendant voluntarily dismissed the Initial Lawsuit. Plaintiffs then filed suit against Defendant in April 2024. Defendant answered and asserted numerous counterclaims. Plaintiffs moved for a judgment on the pleadings on some of their claims and on many of Defendant’s counterclaims.
Defendant’s Counterclaim for Declaratory Judgment – Employment Status. Defendant asserted that there was a controversy regarding whether he was an employee of the Companies. However, because Defendant had made repeated and unqualified factual allegations in the Initial Lawsuit that he was an employee of the Companies, the Court concluded that Defendant was judicially estopped from alleging in this action that he was not an employee of the Companies. Thus, the Court dismissed this counterclaim with prejudice.
Defendant’s Counterclaim for Negligent/Fraudulent Misrepresentation. The Court dismissed Defendant’s misrepresentation counterclaim with prejudice, concluding that Defendant failed to allege facts showing reasonable reliance on Plaintiffs’ representations about his employment status, especially considering that he had been with the Companies since their formation and had participated in drafting and updating the Companies’ operating agreements.
Defendant’s Counterclaim for Violation of North Carolina’s Wage & Hour Act. The Court dismissed Defendant’s Wage & Hour Act counterclaim with prejudice, agreeing with Plaintiffs that the bona fide executive exemption of N.C.G.S. § 95-25.14(b)(4) barred Defendant’s recovery because he was a 25% owner of the Companies who was actively engaged in their management.
Declaratory Judgment: Status as Member. The parties disputed whether Defendant had been removed as a member of the Company. The Court agreed with Plaintiffs that Defendant had been removed as a member because the Operating Agreements provided that a member was terminated upon the affirmative vote of a majority of the membership interest and such a vote had occurred.
Declaratory Judgment: Status as Manager. The parties disputed whether Defendant had been removed as a Manager of the Companies. Defendant argued that because he remains a Member, he also remains a Manager because the Operating Agreements provide that each Member is a Manager. Since the Court had already determined that Defendant was not a Member, the Court found Defendant’s argument moot and granted Plaintiffs a declaratory judgment that Defendant had ceased to be a Manager.
Defendant’s Counterclaim for Inspection of Books and Records. Because the information rights provided by N.C.G.S. § 57D-3-04 are limited to members of LLCs and Defendant did not make his demand for inspection until after his membership had terminated, the Court dismissed this counterclaim.
Defendant’s Counterclaim for Judicial Dissolution. Because the Court had determined that Defendant was no longer a member of the Companies, the Court dismissed the counterclaim as Defendant lacked standing to request judicial dissolution.
Defendant’s Counterclaim for Breach of Fiduciary Duty. Defendant alleged that Plaintiffs breached their fiduciary duties as Managers to him as a Member. Since no de jure fiduciary relationship exists between Managers and Members, the Court looked to whether Defendant had pleaded the existence of a de facto fiduciary relationship based on complete domination and control. Although Defendant alleged numerous controlling actions by Plaintiffs, he also alleged facts showing that he still “held a card or two.” Thus, the Court determined that a de facto fiduciary relationship did not exist and, therefore, dismissed the claim.
Defendant’s Counterclaims for Breach of Contract and Breach of the Implied Covenant of Good Faith and Fair Dealing: Operating Agreements. Defendant alleged that Plaintiffs had breached various provisions of the Operating Agreements. Plaintiffs sought judgment in their favor, arguing that the pleading was deficient because it did not describe the date or substance of any breach. The Court disagreed with Plaintiff and found that the breach of contract claim was adequately pleaded under the notice pleading standard. The Court also denied judgment on the ICGFFD claim for the same reasons.
Defendant’s Counterclaim for an Equitable Accounting. The Court dismissed the “claim” for an equitable accounting, but without prejudice to Defendant’s ability to seek an equitable accounting as a remedy at a later stage as permitted by law.
Defendant’s Counterclaim for Reimbursement/Contribution. Defendant sought reimbursement for payments he made to satisfy the Companies outstanding debts after he received notice of his termination. The Court was unable to conclude that Plaintiffs were entitled to judgment as a matter of law on this claim and thus denied the motion.
Declaratory Judgment: Occurrence of Triggering Event. The parties disputed whether a Triggering Event had occurred under the Operating Agreements. The Court agreed with Plaintiffs that a Triggering Event had occurred. First, under the Operating Agreements’ plain language, Plaintiffs’ June 2023 vote to terminate Defendant’s employment unambiguously constituted a Triggering Event. Second, since Defendant had taken contrary positions in the Initial Lawsuit, the Court held that the doctrine of judicial estoppel barred him from asserting in this lawsuit that a Triggering Event had not occurred.
Declaratory Judgment: Valuation Dates. The Court found that Defendant had adequately pleaded the existence of a controversy regarding the effective date for a valuation of the Companies as neither the Operating Agreements nor the Consent Order in the Initial Lawsuit clearly identified a date. Accordingly, judgment on the pleadings was denied.
Declaratory Judgment: Winston Property. The parties disputed whether any payment to Defendant in exchange for his Membership Interest was subject to setoff. The Court concluded that based on the relevant documents, Plaintiffs were entitled to a declaratory judgment that they were entitled to an offset against the purchase price of Defendant’s interest.
Plaintiffs’ Claim for Breach of Contract: Operating Agreement. Plaintiffs sought judgment on the pleadings on their claim that Defendant had breached the Operating Agreements by refusing to accept a buyout offer in June 2023. The Court denied the motion because it was unable to conclude that no material issue of fact existed and that Cordell breached the Operating Agreements by refusing to accept a buyout offer solely based on the parties’ pleadings.
Plaintiffs’ Claim for Breach of Contract: Consent Order. Since Plaintiffs did not address this claim in their brief, the Court denied Plaintiffs’ motion for judgment on the pleadings on it.
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Value Health Sols. Inc. v. Pharm Rsch. Assocs., 2025 NCBC 34 (N.C. Super. Ct. July 23, 2025) (Davis, J.)
Key Terms: Rule 12(f); motion to strike; summary judgment; statute of limitations; anticipatory repudiation; North Carolina Supreme Court
This lawsuit involves a dispute between Plaintiffs Neil Raja and Value Health Solutions Inc. (“VHS”) and Defendants Pharmaceutical Research Associates, Inc. and PRA Health Sciences, Inc. (PRA) in connection with PRA’s acquisition of VHS and its proprietary software (PSO). The Court previously entered orders dismissing certain of Plaintiffs’ claims and granting summary judgment as to Plaintiffs’ remaining claims. As summarized here, the North Carolina Supreme Court affirmed all but one of the Business Court’s rulings. The Supreme Court reversed the Court’s entry of summary judgment against Plaintiffs on the issue of PRA’s alleged breaches of Section 2.6 of the parties’ Asset Purchase Agreement and remanded for further proceedings. PRA allegedly breached Section 2.6(b)’s schedule of “Milestones” for business development; upon completing a Milestone, PRA was obligated to pay VHS set sums of money. Following supplemental discovery, Plaintiffs moved to strike Defendants’ statute of limitations affirmative defense and Defendants moved for summary judgment on three issues: 1) whether the statute of limitations barred Plaintiffs from asserting certain breaches of Section 2.6(b); 2) whether a signed agreement between PRA and third-party Takeda Pharmaceuticals constituted an External Sale under the APA; and 3) whether PRA’s internal use of PSO was an External Sale under the APA.
Motion to Strike: Defendants’ Statute of Limitations Defense. Plaintiffs argued that Defendants’ single-sentence statute of limitations affirmative defense should be stricken because it was not pleaded with the requisite specificity. The Court rejected this argument, concluding that the allegation was sufficient to put Plaintiffs on notice. Further, the Court found that Plaintiffs would not be unfairly prejudiced by allowing Defendants to pursue this defense as Plaintiffs had been on notice of it for over five years and had never previously asserted that it was insufficiently pleaded. Accordingly, the Court denied Plaintiffs’ motion to strike.
Summary Judgment: Statute of Limitations. Defendants contended that Plaintiff Raja had first learned of Defendants’ alleged breaches of contract through a conversation with PRA’s CEO in June 2015. The Court concluded that to the extent this conversation was sufficient to give rise to a claim for breach of contract at that time, the claim would be based on a theory of anticipatory repudiation. However, the evidence was clear that Plaintiffs did not treat the statements as an anticipatory repudiation at that time. Accordingly, the Court was unable to conclude as a matter of law that Plaintiffs’ claim accrued in June 2015. The Court denied Defendants’ motion for summary judgment, finding that significant questions of fact remained as to when Plaintiffs’ claim accrued.
Summary Judgment: External Sales
The Court granted Defendants’ motion for summary judgment related to External Sales. With respect to Takeda, the Court found that there was no evidence that the Takeda master service agreement was drafted to require Takeda to pay consideration to acquire and use a license of the PSO. Accordingly, the Takeda MSA was not an External Sale under the APA. With respect to PRA’s internal use of PSO to conduct research for customers, the Supreme Court had instructed that “in order for an External Sale to have occurred under the APA, a contract between PRA and its customer must have included a transfer of license for the customer to use PSO.” Since PRA had not conveyed a license to a customer, no External Sale occurred.
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Compass Tax Servs. LLC v. Karki, 2025 NCBC 35 (N.C. Super. Ct. July 23, 2025) (Robinson, C.J.)
Key Terms: counterclaim; breach of contract; material misrepresentation; fraud; breach of fiduciary duty; UDTPA; bench trial; final judgment
As summarized here, this dispute arose out of Defendant/Counterclaim Plaintiff Rabindra Karki’s sale of five Liberty Tax franchise locations to Plaintiffs/Counterclaim Defendants Compass Tax Services, LLC, Ashok Lamichhane, and Amar Shrestha pursuant to a sale Agreement. Although some payments were made under the Agreement, the full price was never paid to Karki. Karki asserted counterclaims arising from Counterclaim Defendants’ failure to pay and from Lamichhane’s conduct managing Compass Tax. The Court previously dismissed all of Plaintiffs’ claims leaving only Karki’s counterclaims for trial. Following a bench trial, the Court entered a final judgment.
Breach of Contract. The Court had previously determined that one or more of the Counterclaim Defendants failed to pay Karki under the Agreement. The only issue remaining was which of the Counterclaim Defendants were obligated to make the payments. Karki contended that Lamichhane and Shrestha were personally liable, while they contended that Compass Tax was liable. The Court concluded that Lamichhane and Shrestha were personally liable, jointly and severally, based on the evidence that they had signed the Agreement in a personal capacity and used their personal funds to make initial payments to Karki.
Fraud. The Court dismissed the fraud counterclaim with prejudice because Karki had failed to demonstrate by the greater weight of the credible evidence that Lamichhane knowingly made false promises to Karki regarding his intent to make payments pursuant to the September Agreement at the time that agreement was signed.
Breach of Fiduciary Duty. The Court dismissed Karki’s breach of fiduciary duty counterclaim against Lamichhane without prejudice. The Court first determined that, based on Lamichhane’s majority interest in Compass Tax and managerial control, Lamichhane owed a fiduciary duty to Karki–a minority member. The Court also concluded that there was ample evidence that Lamichhane had breached his fiduciary duties owed as majority and managing member. However, the evidence showed that any harm suffered as a result of Lamichhane’s actions was harm suffered by Compass Tax, not Karki. Accordingly, Karki lacked standing to bring a direct claim for breach of fiduciary duty for harm suffered by Compass Tax.
Constructive Fraud. The Court dismissed Karki’s constructive fraud counterclaim without prejudice, as the alleged harm was to Compass Tax, not to Karki.
UDTPA. The Court dismissed the UDTPA counterclaim with prejudice because the underlying tort claims had all been dismissed and, with respect to the breach of contract claim, Lamichhane’s and Shrestha’s conduct did not rise to the level of egregious or aggravating circumstances necessary to support a UDTPA claim. Further, the alleged misconduct concerned intra-corporate actions and therefore was not “in or affecting” commerce.
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Pridgen v. Carlson, 2025 NCBC 36 (N.C. Super. Ct. July 25, 2025) (Robinson, C.J.)
Key Terms: motion to dismiss; fraud; fraudulent concealment; statute of limitation; discovery rule; professional services; North Carolina Investment Advisers Act; N.C.G.S. § 78C-38(d); N.C.G.S. § 1-538.2; negligent misrepresentation
This action arises out of Plaintiff’s contention that beginning in 2007, Defendant Carlson, her investment advisor, made fraudulent statements to induce her to enter an investment advisor relationship with him and that he continued to make fraudulent statements throughout their relationship regarding his status as a registered investment advisor and the status of her investments. She further contended that the corporate Defendants—Carlson Financial and Repple—agreed to manage her investment profiles through Carlson, thereby becoming responsible for Carlson’s fraudulent acts. Plaintiff terminated her relationship with Carlson around July 2021 and filed suit on April 17, 2024. The Carlson Defendants moved to dismiss under Rules 12(b)(1) and 12(b)(6) and Repple moved to dismiss under Rule 12(b)(6).
Statute of Limitation. Defendants argued that Plaintiff’s fraud claims should be analyzed under N.C.G.S. § 1-15(c), which provides that a cause of action for malpractice arising out of professional services accrues at the time of the occurrence of the last act of defendant giving rise to the cause of action. The Court rejected this argument, concluding that investment advisors did not fall under professional services for purposes of N.C.G.S. § 1-15(c). Instead, the Court applied N.C.G.S. § 1-52(9), which provides that causes of action for fraud do not accrue until the aggrieved party’s discovery of facts constituting fraud or mistake.
Fraudulent Inducement & Common Law Fraud
The Court denied dismissal of the claims for fraudulent inducement and common law fraud, as Defendants conceded that Plaintiff alleged these claims with sufficient particularity under Rule 9(b). The Court also found that Plaintiff met the burden to demonstrate Repple’s vicarious liability for Carlson’s conduct while he was in Repple’s employ.
Fraudulent Concealment. The Court also denied dismissal of Plaintiff’s claim for fraudulent concealment. Plaintiff’s allegations that Carlson and Carlson Financial maintained total discretionary control over her investment portfolio created a fiduciary duty where Carlson had a “duty to speak” to inform Plaintiff of the true and diminishing value of her portfolio. Because Carlson sent Plaintiff monthly account statements containing false financial information through Repple, the Court determined that Plaintiff pleaded a valid claim against Repple.
Violation of the North Carolina Investment Advisers Act. The Court denied dismissal of this claim, rejecting Defendants’ five-year statute of limitations argument. Under the IAA, no person may sue more than three years after the person discovers the facts constituting the violation, but in any case no later than five years after the rendering of investment advice, except that if the violation is concealed through fraud, the suit may be commenced not later than three years after the person discovers that the act was fraudulent. Since Plaintiff had adequately alleged fraudulent conduct and there were disputed facts regarding when Plaintiff should have discovered the fraud, the Court declined to dismiss the claim at this stage.
Negligent Misrepresentation. The Court denied dismissal, noting the need for a more developed record to determine whether the applicable three-year statute of limitations barred the claim.
Civil Liability under N.C.G.S. § 1-538.2. N.C.G.S. § 1-538.2 allows private actions based on violations of criminal statutes. However, since the discovery rules does not apply to this claim, the three-year statute of limitations of N.C.G.S. § 1-52(2) barred the claim to the extent it was based on any actions that took place before 17 April 2021.
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United Therapeutics Corp. v. Liquidia Techs., Inc, 2025 NCBC 37 (N.C. Super. Ct. July 29, 2025) (Earp, J.)
Key Terms: summary judgment; trade secrets; compilation trade secret; process trade secrets; reasonable efforts to maintain secrecy; damages; UDTPA
As summarized here and here, this dispute concerns the alleged misappropriation of trade secrets by Defendant Roscigno from his former employer Plaintiff UTC to the benefit of his new employer, Defendant Liquidia. Liquidia moved for summary judgment on UTC’s misappropriation of trade secrets and UDTPA claims, arguing that the documents at issue (the “UTC Documents”) are not a protectable compilation or process trade secret and that UTC did not engage in reasonable efforts to protect its trade secrets.
Individual Trade Secret Documents. Although UTC claimed that the “totality” of the UTC Documents constituted a trade secret, it also referenced specific information within some of the documents. The Court found that a factfinder could conclude that the UTC Documents contain individual trade secrets that UTC had identified with sufficient particularity. Liquidia also argued that UTC could not recover damages for unjust enrichment for misappropriation of individual trade secrets because its expert did not apportion damages by-document. The Court, however, was unable to conclude that UTC would be incapable of presenting evidence to allow the calculation of damages with respect to at least some of the trade secrets. Additionally, if successful on liability, UTC could obtain injunctive relief, punitive damages, or attorneys’ fees. Accordingly, the Court denied summary judgment on this basis.
Compilation Trade Secrets. Liquidia argued that UTC could not support its claim for misappropriation of a compilation trade secret because it did not present evidence regarding the effort or cost expended in compiling the information and some of the information was publicly available. The Court rejected both these arguments, noting that it would be left to the jury to decide whether Roscigno compiled the documents as a “roadmap,” as UTC argues, or whether the documents “were randomly compiled in the course of doing business,” per Liquidia’s stance. Thus, the Court denied summary judgment on this basis.
Process Trade Secret. The Court found that record evidence existed to support a conclusion that the documents at issue constitute a process trade secret. Although the UTC Documents contained some information that is publicly available, other portions of the UTC Documents were not publicly available and thus the process may constitute a trade secret. Accordingly, the Court denied summary judgment on this basis.
Efforts to Maintain Secrecy. Liquidia asserted that the trade secret claim failed because, when it comes to efforts to maintain secrecy, UTC did not distinguish between its trade secrets and other confidential information. The Court disagreed, concluding that the failure to differentiate security measures was not dispositive. The evidence of UTC’s efforts to maintain the secrecy of its information was sufficient to go to the jury.
Unfair and Deceptive Trade Practices. The Court denied Defendant’s motion related to the UDTPA claim because it was based on the surviving trade secret misappropriation claim.
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Meridian Renewable Energy LLC v. Birch Creek Dev., LLC, 2025 NCBC Order 51 (N.C. Super. Ct. July 23, 2025) (Robinson, C.J.)
Key Terms: order on designation; N.C.G.S. § 7A-45-4(a)(1); N.C.G.S. § 7A-45-4(b)(2); N.C.G.S. § 7A-45.4(e); notice of designation; Chapter 59
As summarized here, the Court previously rejected Defendant Birch Creek Development, LLC’s attempt to designate this case as a complex business case based on Plaintiff Meridian Renewable Energy LLC’s second amended complaint. Thereafter, however, Birch Creek filed an answer with counterclaim and third-party complaint, asserting a claim for breach of fiduciary duty and declaratory relief against Pine Gate and other third-party defendants. Birch Creek contemporaneously filed a Notice of Designation, asserting that the case now met the criteria for a mandatory complex business case under N.C.G.S. § 7A-45.4(a)(1). Meridian timely filed an opposition to designation, contending that designation was improper.
Per N.C.G.S. § 7A-45.4(a)(1), designation as a mandatory complex business case is proper for actions involving a material issue related to “[d]isputes involving the law governing corporations . . . including disputes arising under Chapters 55, 55A, 55B, 57D, and 59 of the General Statutes.” Meridian argued that Birch Creek’s third-party complaint insufficiently referenced Chapter 59 and partnership law and that on the face of the contracts at issue, no joint venture or partnership existed. The Court disagreed, concluding that the action “involves the law governing partnerships under Chapter 59 of the General Statutes,” as Birch Creek’s new breach of fiduciary duty claim named Pine Gate as a joint venture partner and sought declaratory relief concerning the existence of a partnership. Moreover, the Court declined to make a determination on the merits at this stage as to whether a joint venture existed. Accordingly, the Court overruled Meridian’s Opposition and determined that the action was properly designated as a mandatory complex business case.
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Mohr Partners, Inc. v. Elior, Inc., 2025 NCBC Order 52 (N.C. Super. Ct. July 23, 2025) (Davis, J.)
Key Terms: summary judgment; stipulation; supplemental order
As summarized here, the Court previously issued an order and opinion which granted Plaintiff Mohr Partners, Inc’s motion for summary judgment concerning its entitlement to a commission for work on the Moosic Transition from Defendant Elior, Inc. but deferred ruling on the amount of the commission that Plaintiff was due. Thereafter, the parties stipulated that Plaintiff was due $450,000 plus pre-judgment interest and post-judgment interest.
This Order supplemented the original order by entering partial summary judgment in favor of Plaintiff on the Moosic Transaction for the parties’ stipulated amount.
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In Re Asheville Eye Assocs. Data Incident Litig., 2025 NCBC Order 53 (N.C. Super. Ct. July 24, 2025) (Davis, J.)
Key Terms: pro hac vice revocation; sua sponte judicial reconsideration; habitual practice; N.C.G.S. § 84-4.1
The Court previously entered an order granting pro hac vice admission to Raina C. Borrelli in ongoing litigation, after finding that Borrelli had satisfied the requirements of N.C.G.S. § 84-4.1, the statute governing pro hac vice admissions.
Thereafter, a supplement to the motion for Borrelli’s PHV admission was filed, which provided that Borelli had been admitted pro hac vice in North Carolina fifteen times in the last five years, rather than eight times, as was stated in the original PHV motion. The supplement stated that the failure to include the seven undisclosed cases in the original PHV motion was due to an “inadvertent error.”
N.C.G.S. § 84-4.1 forbids North Carolina courts from allowing nonresident attorneys to practice in this State’s courts habitually. The Court revoked Borrelli’s pro hac vice admission, concluding that her fifteen pro hac vice admissions within five years constituted habitual practice.
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Comic Certification Serv. LLC v. CBCS Operations, LLC, 2025 NCBC Order 54 (N.C. Super. Ct. July 28, 2025) (Davis, J.)
Key Terms: comics; default; Rule 55(a)
The Court entered default under Rule 55(a) against Defendants Eli Global, LLC and Global Growth Holdings, LLC for failing to timely file an answer or plead in response to Plaintiffs’ Amended Complaint.
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In re Matter of the 2025 Ann. S’holders’ Meeting of Charles & Colvard Ltd., 2025 NCBC Order 55 (N.C. Super. Ct. July 29, 2025) (Robinson, C.J.)
Key Terms: order on designation; application for court-order shareholder meeting; contemporaneous filing requirement
On 10 July 2025, Riverstyx initiated this action by filing an Application for Court-Ordered Shareholder Meeting pursuant to N.C.G.S. § 55-7-03. One week later, it filed a notice of designation under N.C.G.S. § 7A-45.4(a). The Chief Justice issued a determination order, directing the Court to determine whether the action was properly designated. Because the NOD was not filed contemporaneously with the filing of the Application, as required by N.C.G.S. § 7A-45.4(d)(1), the Court determined that the action was not properly designated as a mandatory complex business case.
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United Therapeutics Corp. v. Liquidia Techs., Inc., 2025 NCBC Order 56 (N.C. Super. Ct. July 29, 2025)
Key Terms: expert witness; trade secrets; value from secrecy; damages apportionment; Rule 403; Rule 702; state of mind
As summarized here and here, this dispute concerns the alleged misappropriation of trade secrets by Defendant Roscigno from his former employer Plaintiff UTC to the benefit of his new employer, Defendant Liquidia. UTC retained an expert witness to support its trade secret misappropriation claim, who opined in his report as to the value that Liquidia received from the trade secrets. Liquidia moved to exclude the expert under Rules 702 and 403 of the Rules of Evidence.
Liquidia first contended that the expert’s testimony should be excluded because it was based on his speculation about the “state of mind” of Defendants and the FDA. The Court agreed with Liquidia that to the extent the expert’s conclusions regarding the value Liquidia placed on the alleged trade secrets was not based on record evidence, it should be excluded. However, given the expert’s qualifications and experience, he could opine generally on the value this type of information would have to a competitor like Liquidia. The Court also held that the expert could testify as to what the FDA actually did and said based on the documents he reviewed and could testify as to the FDA’s general practices.
Next, Liquidia asserted that the expert’s opinions with respect to the value of the documents was inherently unreliable because his analysis lacked a specific methodology and he failed to assess the independent economic value of the trade secrets on a by-category or by-document basis. With respect to the first point, the Court determined that a specific methodology is unnecessary when the expert’s testimony is based on experience. Since the expert here had extensive relevant experience, his testimony was sufficiently reliable. As to the second point, the Court acknowledged that since the expert’s testimony did not apportion damages between specific trade secrets, Liquidia may have difficulty establishing damages at trial in the event that the jury determined that not all of the alleged trade secrets were misappropriated. However, this issue was left for trial.
Lastly, Liquidia argued that the expert’s opinions regarding the independent economic value of UTC’s alleged trade secrets were irrelevant because the expert did not address their value “derived from secrecy” since some of the information was in the public domain. The Court rejected this argument, concluding that most of the information was not publicly available and a fact-finder could conclude that UTC expended significant resources developing and including the publicly available information in its drug development efforts and that Roscigno purposefully chose those documents to include in a larger compilation which he then shared.
The Court also concluded that the probative value of the expert’s opinions outweighed the danger of misleading the jury.
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