[00:00:00] Speaker 04:
Good morning and Aloha.

[00:00:04] Speaker 04:
My colleagues Judge Graber, Judge Clifton and I welcome you to the Ninth Circuit.

[00:00:10] Speaker 04:
Today we have three cases on the oral argument calendar but before we get to those we have several cases we have submitted without argument.

[00:00:18] Speaker 04:
Sharp versus Federal Highway Administration is submitted and that's it.

[00:00:26] Speaker 04:
So we have only one case that's been submitted.

[00:00:29] Speaker 04:
We are going to take the argument cases in the order in which they appear on the calendar.

[00:00:33] Speaker 04:
And the first case is Barrett Business Services versus Coleman Era.

[00:00:46] Speaker 03:
Good morning.

[00:00:47] Speaker 03:
May it please the court, Phil Talmadge here representing Barrett Business Services Incorporated, BBSI.

[00:00:52] Speaker 03:
And I'd ask to reserve five minutes of rebuttal time if I could, Your Honor.

[00:00:57] Speaker 03:
Decisions regarding trade secrets are factually rich.

[00:01:01] Speaker 03:
The district court here erred in dismissing BBSI's state and federal trade secrets claims against appellees Alejo and Cominero, who secretly set up a rival business months before their departure from BBSI.

[00:01:17] Speaker 03:
That court had in fact previously denied a Rule 12 motion to dismiss on the very same grounds and on the very same evidence.

[00:01:27] Speaker 03:
On summary judgment, fact issues abounded.

[00:01:29] Speaker 03:
Well, rule 12 don't turn on evidence.

[00:01:32] Speaker 03:
It doesn't, Your Honor, but it was on the very same essential facts that were ultimately proven by BBSI on its... I don't think you can take much from a rule 12 motion to dismiss decision when it gets to summary judgment, but okay.

[00:01:48] Speaker 03:
But in any event, the court had denied the motion to dismiss the Trade Secret Act claims, both state and federal.

[00:01:56] Speaker 03:
on essentially the same grounds, the same facts that were adduced.

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In fact, issues abounded on each and every one of the elements of a trade secret claim, both state and federal.

[00:02:06] Speaker 03:
The district court also erred in levying attorney fees under the Lanham Act for this being an exceptional case when it was not.

[00:02:14] Speaker 00:
Council, I have a question about that.

[00:02:17] Speaker 03:
Yes, Your Honor.

[00:02:18] Speaker 00:
If, just for the sake of this question, assuming that we agree with you that there are genuine issues of fact regarding the trade secrets claims, does that necessarily have any effect on the fees, which appear to be solely under the Lanham Act claim?

[00:02:41] Speaker 03:
I think the issues are in fact distinct, Your Honor.

[00:02:44] Speaker 03:
But we've asked for a reversal on both.

[00:02:47] Speaker 00:
Correct.

[00:02:47] Speaker 00:
I'm just trying to confirm that they're not intertwined.

[00:02:51] Speaker 03:
I don't think they are.

[00:02:53] Speaker 03:
I think the fact of the matter is it probably demonstrates that under the totality of the circumstances, perhaps, this was not an exceptional case, particularly if we have a set of individuals who

[00:03:05] Speaker 04:
Breached duty of loyalty and there is a an abiding state, but but you haven't made that argument in your brief, right you you have not said Correct me if I'm wrong, but to follow up on judge Kramer's question You have not said on in your brief if you reverse on trade secrets Then that's a separate ground for reversing on the Lanham Act.

[00:03:27] Speaker 03:
No, we have not your honor.

[00:03:28] Speaker ?:
I

[00:03:28] Speaker 04:
Okay, and to ask an additional follow-up question, am I correct that your argument is this is not an exceptional case, no fees are appropriate, but you have not argued that if hypothetically we reject that, we should send it back for a fee redo?

[00:03:47] Speaker 04:
You've not challenged the amount, is that right?

[00:03:49] Speaker 03:
We've not challenged the amount, that's correct.

[00:03:51] Speaker 03:
Thank you, counsel.

[00:03:52] Speaker 03:
We've also noted that in fact the costs that were levied by the trial court here far exceed the

[00:03:57] Speaker 03:
The statutory costs and the remaining Street decision of the Supreme Court indicates that only statutory costs were available to the taxable costs But it's not unusual for other costs to be awarded as part of an attorney fee award is it no that's in fact true your honor but in this particular case under remaining Street what Justice Kavanaugh wrote in that case was you have to have some indication in the statute itself that there's some opportunity to recover and

[00:04:23] Speaker 03:
something beyond the taxable costs, the statutory costs.

[00:04:27] Speaker 03:
No indication.

[00:04:27] Speaker 05:
But here we got an award of attorney's fees, which the statute authorizes.

[00:04:32] Speaker 05:
So I'm not sure why the statute's authorization of attorney's fees isn't sufficient to cover non-taxable costs.

[00:04:38] Speaker 03:
Because in Romini Street, the Supreme Court said that it wasn't.

[00:04:42] Speaker 03:
I mean, you have to have something more.

[00:04:43] Speaker 03:
You have to have some indication.

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that there's an opportunity to recover legal expenses as an element of an attorney fee request.

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And there's no such indication in these statutes that that's something that's available.

[00:04:56] Speaker 05:
What I'm really curious about the attorney fee award, the district court described the Lanham Act claims as extraordinarily weak and it identified

[00:05:12] Speaker 05:
the claim as being defendants posing as agents of your client to jewel fruit.

[00:05:20] Speaker 05:
And then the district court said that Burnett has come forward with no evidence to support this allegation, this claim is dismissed.

[00:05:31] Speaker 05:
And in your brief, you argued that the claim was not frivolous, but I don't see where you've established or identified the evidence that the district court said hadn't been presented.

[00:05:42] Speaker 05:
So what evidence was presented?

[00:05:44] Speaker 05:
Where was the district court wrong in its statement?

[00:05:46] Speaker 03:
There were two things, Your Honor.

[00:05:48] Speaker 03:
First, there was the approach to jewel fruit, but also the taking of the staffing agreements and taking the BBSI staffing agreements, deleting BBSI's mark, and inserting persona on it.

[00:06:02] Speaker 03:
These individuals literally took the agreements, the paperwork that BBSI used, and tried to use it as their own.

[00:06:09] Speaker 05:
So I'm looking at

[00:06:11] Speaker 05:
your brief on the attorney fee issue, so where do I find that?

[00:06:16] Speaker 03:
We argued that.

[00:06:17] Speaker 03:
It's in the brief.

[00:06:18] Speaker 05:
That's not the question I'm asking.

[00:06:20] Speaker 05:
Where in the brief?

[00:06:22] Speaker 05:
You can tell me you've argued it, but I looked at it.

[00:06:24] Speaker 05:
I didn't find it.

[00:06:25] Speaker 05:
So my question now is where do I find it?

[00:06:28] Speaker 03:
I don't have the page number off the top of my head, but I'm happy to provide that to the court.

[00:06:33] Speaker 04:
Counsel, maybe you can do it in your rebuttal.

[00:06:37] Speaker 03:
Yes, I'll be happy to do that.

[00:06:39] Speaker 03:
The bottom line is we did make the argument, but the simple proposition is simply because a claim is dismissed on summary judgment doesn't necessarily connote that it's an exceptional case.

[00:06:50] Speaker 03:
Does it stand out from the rest?

[00:06:51] Speaker 05:
Well, what the district court said was that no evidence was presented to support this claim.

[00:06:57] Speaker 05:
If that's the case, it would seem exceptional.

[00:07:00] Speaker 05:
You're telling us evidence was submitted, and that's what I was looking for.

[00:07:03] Speaker 05:
If evidence was submitted, then it wouldn't stand out.

[00:07:06] Speaker 05:
But would you agree that if no evidence was submitted, it would stand out?

[00:07:11] Speaker 03:
Well, it would be a weak case.

[00:07:13] Speaker 03:
It would be something that would be dismissed.

[00:07:15] Speaker 03:
But would it be exceptional standing out in the sense of, was there misconduct on the part of the party?

[00:07:20] Speaker 03:
No.

[00:07:20] Speaker 03:
Was it frivolous?

[00:07:21] Speaker 03:
No.

[00:07:22] Speaker 05:
If you assert a claim and try to pursue it and present zero evidence in support of that claim, hard pressed to say that's not unusual and extraordinary.

[00:07:31] Speaker 03:
Well, there's some indication there has to be something in the nature of misconduct on the part of the party.

[00:07:37] Speaker 03:
There has to be something that's procedurally improper.

[00:07:39] Speaker 05:
A logic claim for which you submit no evidence?

[00:07:42] Speaker 03:
Isn't that enough?

[00:07:43] Speaker 03:
In this case, we did submit the evidence, and I'll provide that on rebuttal.

[00:07:47] Speaker 03:
I'll make note of where that is in the brief, Your Honor.

[00:07:50] Speaker 03:
Let me turn first to the Trade Secret Acts issue.

[00:07:53] Speaker 03:
The Trade Secret Acts elements are the same under state and federal law, essentially.

[00:07:59] Speaker 03:
Did the plaintiff have a trade secret?

[00:08:03] Speaker 03:
Was it appropriated by the defendant?

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Was the plaintiff harmed by that?

[00:08:08] Speaker 03:
And these are factually rich kinds of decisions.

[00:08:12] Speaker 03:
In fact, in Washington, under the .Washington UTSA, there are pattern instructions that govern all of the elements of a trade secret cause of action.

[00:08:21] Speaker 03:
And cases state and federal routinely reverse summary judgment decisions on the question of whether there is or is not a trade secret.

[00:08:29] Speaker 03:
In this particular case, fact issues abound on all of the key issues.

[00:08:34] Speaker 03:
So starting first with the question, did BBSI have a trade secret?

[00:08:38] Speaker 03:
It did.

[00:08:39] Speaker 03:
Under the terms of the Noah Grossky case and also under IntelliClear, you have a circumstance where you had customer lists that BBSI had.

[00:08:53] Speaker 03:
They had lists of

[00:08:54] Speaker 03:
of agribusinesses in the Yakima Valley with whom they did business.

[00:08:59] Speaker 03:
But those lists were not just simply an indication, a listing of the particular agribusiness.

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It had significant information annexed to that list.

[00:09:10] Speaker 03:
Information such as what are the particular needs of the particular customer?

[00:09:15] Speaker 03:
What did they really require with respect to temporary staffing that they needed?

[00:09:20] Speaker 03:
vetted individuals, individuals that BBSI had laboriously compiled who met the needs of that particular business.

[00:09:29] Speaker 03:
Here are all the individuals that meet those needs.

[00:09:31] Speaker 03:
And then the pricing margin.

[00:09:33] Speaker 03:
What do we need to make money on this particular client for our purposes?

[00:09:40] Speaker 03:
The question then arises is do these trade secrets have

[00:09:44] Speaker 03:
economic value.

[00:09:45] Speaker 03:
Do these customer lists have economic value?

[00:09:49] Speaker 03:
Were they protected by BBSI?

[00:09:52] Speaker 03:
Fact questions abounded as to both of those issues.

[00:09:55] Speaker 03:
You have these lists that were protected by confidentiality agreements in the employee handbook and in the code of conduct for employees.

[00:10:04] Speaker 03:
You had these protected with cybersecurity

[00:10:08] Speaker 03:
notations.

[00:10:09] Speaker 03:
So you have the protection that was undertaken by BBSI.

[00:10:13] Speaker 03:
And do they have economic value?

[00:10:15] Speaker 03:
Well, it's pretty obvious that if you know the whole card of your rival competitor,

[00:10:20] Speaker 03:
And that pricing margin is the whole card that that rival has.

[00:10:25] Speaker 03:
That's a fundamentally important value for you as a competitor.

[00:10:29] Speaker 03:
You will always be able to undercut that.

[00:10:32] Speaker 03:
What rival wouldn't want to know all of the staffing individuals that meet the needs of particular customers and the particular price margin for each particular customer?

[00:10:43] Speaker 03:
That was the nature of those lists that these individuals appropriated.

[00:10:47] Speaker 03:
Then the question arises,

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Did they appropriate them?

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And that's a fact question as well.

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Again, WPI pattern instruction in Washington applies to this question.

[00:10:59] Speaker 03:
Circumstantial evidence suggests that the appellees took that information.

[00:11:03] Speaker 03:
They undercut the price that BBSI had for each individual customer known to these individuals.

[00:11:09] Speaker 03:
so you have that appropriation factor.

[00:11:11] Speaker 03:
And then, was there harm to BBSI?

[00:11:14] Speaker 03:
Mr. Parton's information, Mr. Parton's declaration indicates a lost profit of $7.4 million to BBSI, a pretty significant harm.

[00:11:26] Speaker 03:
All of these elements are issues for

[00:11:29] Speaker 03:
a jury.

[00:11:29] Speaker 03:
All of these issues are issues of fact.

[00:11:33] Speaker 03:
All of these issues should not have been resolved by the district court on summary judgment.

[00:11:37] Speaker 03:
It appears to me, at least, that what the district court did was the district court believed that there are a limited number of agribusinesses in the Acoma Valley and believed that that was just a list of the customer, the particular agribusinesses.

[00:11:51] Speaker 03:
that district court did not appreciate the individual vetted employees pertinent to each customer, the price margin pertinent to each customer, the individual information pertinent to each customer that BBSI had laboriously developed as part of these customer lists.

[00:12:10] Speaker 03:
For all of those reasons, we asked the court to reverse

[00:12:12] Speaker 03:
the decision of the District Court on the Trade Secret Act issue and also ask the court to reverse the decision of the court on the Lanham Act attorney fees and the costs for the reasons we've already discussed.

[00:12:27] Speaker 03:
Thank you.

[00:12:44] Speaker 02:
Just about the same height, almost.

[00:12:47] Speaker 02:
Good morning, your honors, and may it please the court, Justo Gonzalez of Stokes Lawrence, Villa Cony, and more insure for the police.

[00:12:56] Speaker 02:
Summary judgment on the trade secrets misappropriation claim should be affirmed for two principal reasons.

[00:13:03] Speaker 02:
There's no evidence presented that a trade secret exists and there's no evidence in the record that any of my clients misappropriated any trade secrets.

[00:13:13] Speaker 04:
There's no evidence that customer lists and pricing and that sort of thing are trade secrets.

[00:13:20] Speaker 02:
That is correct.

[00:13:22] Speaker 02:
We know this because of the public filings of Barrett Business Services, BBSI.

[00:13:28] Speaker 02:
It is a publicly traded company.

[00:13:30] Speaker 02:
Its SEC filings disclose, and my clients have in the record testimony supporting this, that it prides itself on being a decentralized company.

[00:13:41] Speaker 02:
The staffing model relies on the individual efforts of each office

[00:13:46] Speaker 02:
They rely on the, quote, scrappiness of their salespeople, and they have a competitive threat in the marketplace because they have a very lean sales force that relies on leveraging referral partners.

[00:14:02] Speaker 04:
And as part of these public filings, it included compilations of its pricings, its needs, its temporary employee information.

[00:14:13] Speaker 02:
So interestingly enough, Your Honor,

[00:14:16] Speaker 02:
There is no compilation.

[00:14:17] Speaker 02:
There was no compilation of any of this data that my friend just described in your honor is inquiring about.

[00:14:24] Speaker 04:
During the time that my clients worked at BBSI, these... But for my question, even if you're correct and the light most favorable to the plaintiff, was anything during the time your clients were there in those categories publicized, made public?

[00:14:44] Speaker 04:
Yes, they were.

[00:14:46] Speaker 04:
What?

[00:14:47] Speaker 02:
BBSI advertises its clients on a rotating

[00:14:50] Speaker 02:
picture frame like a carousel on its website its clients do not carousel less pricing information and margins the Margins are on the SEC filings.

[00:15:02] Speaker 01:
It's 11% overall That's is a latest customer by customer what the margin is what the pricing is for that customer what that customers needs are and that is not a secret And that's the secret to whom that is not a secret to anyone

[00:15:18] Speaker 01:
Well, it's a surprise to me.

[00:15:20] Speaker 01:
I don't know any of that stuff.

[00:15:21] Speaker 01:
Well, it's readily available to the public, Your Honor.

[00:15:25] Speaker 01:
How?

[00:15:25] Speaker 01:
How do I find that out?

[00:15:28] Speaker 02:
A member of the public, a competitor, can reach out to price packing or Roach Fruit, as happened in this case, and as representatives of those customers testified in this case.

[00:15:41] Speaker 02:
and offer their staffing services.

[00:15:43] Speaker 02:
And Roach Fruit, the representative of Roach Fruit, Price Packing, Mercer Fruit, all of whom went to high school, by the way, with my client Santiago Alejo in Yakima, and say, you want my staffing business?

[00:15:56] Speaker 02:
Kelly is giving me a 33% markup.

[00:16:00] Speaker 02:
BBSI is giving me a 36% markup.

[00:16:03] Speaker 02:
You need to be competitive with that markup.

[00:16:05] Speaker 02:
And that's how a competitor gets that information.

[00:16:08] Speaker 05:
That's not quite the same thing.

[00:16:10] Speaker 05:
the customer looking for the best possible deal says you've got to be.

[00:16:15] Speaker 05:
That may or may not be what actually the competitive firm is offering to the customer.

[00:16:20] Speaker 05:
It's a real advantage to know what the competitor actually has offered from the competitor's perspective.

[00:16:26] Speaker 05:
What the customer is asking for may be a different question.

[00:16:31] Speaker 05:
And how publicly available is it if you're just saying the customer says he wants this?

[00:16:37] Speaker 05:
Well, that tells you what the customer wants.

[00:16:40] Speaker 05:
may or may not tell you what the competitor's offering.

[00:16:43] Speaker 02:
And this goes to the know-how that is not, that cannot be a trade secret.

[00:16:48] Speaker 02:
Santi Alejo and Chuck Colmanero, Charles Colmanero have been in this business for decades.

[00:16:53] Speaker 02:
They, Santiago Alejo himself was a temporary worker, supported himself through high school and community college in the hop fields.

[00:17:02] Speaker 02:
He knows his community.

[00:17:03] Speaker 02:
He knows the individuals who make these decisions.

[00:17:06] Speaker 04:
I'm looking at page 1132 of the excerpts of record, which are a series of July 11th, 2022 emails.

[00:17:18] Speaker 04:
between Kathy Gonzalez and Santiago Alejo.

[00:17:23] Speaker 04:
And I'm sure you're familiar with it, but it says, no problem.

[00:17:27] Speaker 04:
Can we set up a service agreement from Santiago Alejo?

[00:17:32] Speaker 04:
Can we set up a service agreement just to have those ready?

[00:17:35] Speaker 04:
Also, if you would like, we can staff for the other side at Roach Fruit.

[00:17:39] Speaker 04:
I know that they have had a tough time filling those positions, and I can do it at a lower rate.

[00:17:47] Speaker 04:
The lower rate that's referenced is the rate at the former employer.

[00:17:53] Speaker 02:
That lower rate is the rate that BBSI and Kelly Services and Express offer to Roach Fruit.

[00:18:02] Speaker 02:
It's not exclusive to BBSI and it's a rate that Ms.

[00:18:06] Speaker 02:
Gonzalez testified she told Mr. Alejo he needs to beat.

[00:18:12] Speaker 02:
That is in the record from

[00:18:16] Speaker 02:
Miss Kathy Gonzalez's declaration of December 1 2022 and also in her deposition testimony Which is in the record and I can provide those citations, but this undisputed fact I mean This all sounds very factual

[00:18:36] Speaker 02:
It is factual, but it is BBSI's burden as the proponent of the trade secret to establish each element that it has information that belongs to it, is not readily available to the public, that cannot be reverse engineered easily as can be done here, and that they've taken reasonable measures to maintain secret.

[00:18:59] Speaker 00:
And they haven't done that.

[00:19:00] Speaker 00:
Counsel, by saying that they have the burden, it seems to me that you're

[00:19:03] Speaker 00:
Doing the opposite of what we're required to review on summary judgment Which is the absence of any genuine issue of material fact they they may lose It not by not carrying their burden, but they don't Their only burden now is to demonstrate that there's a genuine issue of material fact on any one of those criteria

[00:19:26] Speaker 02:
And here there are none, because the evidence that, well, the record that BBSI argues is evidence is speculation.

[00:19:36] Speaker 02:
It's similar to the allegations in support of the Lanham Act claim that was found to have a dearth of evidence that was based on speculation and assumptions.

[00:19:47] Speaker 02:
It is assumed that by BBSI that

[00:19:53] Speaker 02:
the appellees utilized secret information because that's the only way they could have done business.

[00:19:58] Speaker 00:
Let me ask you this question.

[00:19:59] Speaker 00:
The district court said in its ruling on the Lanham Act that the evidence was weak.

[00:20:06] Speaker 00:
It didn't say there was none.

[00:20:07] Speaker 00:
It said it was weak.

[00:20:09] Speaker 00:
However, if that's identical to what's happening in the trade secret, weak evidence on a material point still creates an issue of fact, does it not?

[00:20:20] Speaker 02:
what the district court held in its ruling.

[00:20:22] Speaker 00:
That was a yes or no question.

[00:20:25] Speaker 00:
If the evidence is weak, but it exists and creates an issue of fact on any of the trade secret requirements, isn't that enough?

[00:20:36] Speaker 02:
Well, the test is, no, because the test is whether a reasonable jury could rule any other way.

[00:20:42] Speaker 02:
Is there an issue that is genuine?

[00:20:45] Speaker 02:
Not issues, you can have issues in droves,

[00:20:48] Speaker 02:
The issue has to be genuine.

[00:20:51] Speaker 02:
And here there are none.

[00:20:52] Speaker 02:
And what the district court held on the Lanham Act claim was that it was exceptionally weak, that there was a dearth of evidence, and it was based entirely on speculation.

[00:21:02] Speaker 00:
OK.

[00:21:02] Speaker 00:
But that isn't the summary judgment standard.

[00:21:04] Speaker 02:
Correct.

[00:21:05] Speaker 02:
But Your Honor was referencing the Lanham Act.

[00:21:07] Speaker 00:
Well, you're the one who said it was an identical ruling on the part of the district court.

[00:21:12] Speaker 00:
And that's what I was exploring.

[00:21:16] Speaker 02:
Understood.

[00:21:16] Speaker 02:
I appreciate the clarification, Your Honor.

[00:21:18] Speaker 02:
So what we have here is a proponent of trade secrets who can't identify any one thing.

[00:21:29] Speaker 02:
There's no one piece of information that is a trade secret.

[00:21:33] Speaker 02:
So what they're attempting then to do is to bundle them together.

[00:21:36] Speaker 02:
Well, if you put it all together, but there's no evidence in the record that BBSI ever put them together.

[00:21:43] Speaker 02:
The spreadsheet that BBSI pointed to down to the district court and on appeal was a document created specifically for this litigation.

[00:21:56] Speaker 02:
That was the gross margin report that Mr. Jones, the then general manager of BBSI's Portland, or rather Oregon and Washington offices.

[00:22:07] Speaker 04:
There were client lists, right?

[00:22:09] Speaker 02:
There were no client lists.

[00:22:11] Speaker 04:
So you couldn't look at the information that they had and list clients from that?

[00:22:19] Speaker 02:
There's no evidence in the record that that could be accomplished.

[00:22:23] Speaker 04:
No evidence in the record that by looking at their documents you couldn't list Who their clients were which documents your honor?

[00:22:34] Speaker 02:
That's that's the question that bbsi could not answer which document with Stata base Where is it held did Mr.. Alejo have access to it?

[00:22:45] Speaker 02:
And did he in fact access access it it's interesting there is a

[00:22:52] Speaker 02:
There is reference in the record to a list of workers.

[00:22:57] Speaker 02:
And there is testimony that my friend is relying on on appeal to suggest that Mr. Alejo obtain this list of temporary workers.

[00:23:09] Speaker 02:
But if you look at the actual record, what we have is testimony from an employee that they printed something off.

[00:23:19] Speaker 02:
That was a list of temporary workers for one particular client.

[00:23:23] Speaker 02:
There's no date of when it happened.

[00:23:25] Speaker 02:
And they say, when I went to the printer, it was gone.

[00:23:28] Speaker 02:
I didn't find it.

[00:23:30] Speaker 02:
That's it.

[00:23:32] Speaker 02:
There's no connection to Mr. Alejo, no evidence that he made off with any list.

[00:23:36] Speaker 02:
And there's no evidence that it would either

[00:23:39] Speaker 02:
even be useful for someone in his position to have a list of temporary workers because this is an industry where you have employees, the temporary workers themselves are highly mobile.

[00:23:52] Speaker 02:
They work for multiple staffing agencies at the same time.

[00:23:55] Speaker 02:
They all talk to each other.

[00:23:56] Speaker 02:
They know who each other are.

[00:23:58] Speaker 02:
and they're not subject to not their needs.

[00:24:01] Speaker 04:
There's no evidence in the record that knowing who the temporary workers that the plaintiff employed would be useful to somebody who was starting their own business and would be in the business of using those temporary workers.

[00:24:18] Speaker 02:
That is actually correct because the workers is

[00:24:22] Speaker 02:
There this is not a stable workforce that there's a huge amount of turnover and they respond in this industry And this is in the record to Facebook ads they're looking at jobs Yakima Valley jobs Facebook post

[00:24:37] Speaker 02:
It has the personal cell phone number of the salesperson at BBSI.

[00:24:42] Speaker 02:
This again goes to whether they took any reasonable measures to keep this information secret.

[00:24:48] Speaker 02:
They had a bring your own device policy at this business.

[00:24:51] Speaker 02:
Employees were encouraged to use their personal cell phones.

[00:24:56] Speaker 02:
to make sales calls to clients, to keep client contacts, to keep temporary workers, and to have temporary workers who were interested in a job reach out to them on their personal cell phones.

[00:25:09] Speaker 04:
Mr. Alejo signed an employee handbook that listed confidential information that he knew he had to keep confidential, right?

[00:25:22] Speaker 02:
That was a policy of BBSI.

[00:25:25] Speaker 04:
And it says in there, for example, confidential information will be made available to me, including product designs, marketing strategies, customer lists, pricing policies, and other related information.

[00:25:39] Speaker 04:
I understand that this information is proprietary.

[00:25:42] Speaker 04:
It's on ER 1335.

[00:25:43] Speaker 04:
Mr. Alejo signed that, right?

[00:25:46] Speaker 02:
He did indeed, Your Honor.

[00:25:48] Speaker 02:
And that describes categories of information that could qualify for trade secret protection if the standard is met.

[00:25:57] Speaker 02:
And here, there isn't specific information that falls into one of those categories that qualifies for trade secret protection.

[00:26:06] Speaker 02:
And there's no evidence of misappropriation.

[00:26:12] Speaker 02:
protect through the trade secrets act, either the state or federal statute, information that someone learns over a lifetime of work, their know-how, their expertise in an industry.

[00:26:24] Speaker 02:
Any salesperson in this industry knows what the range of markups are.

[00:26:30] Speaker 02:
They know who the decision makers at companies are.

[00:26:33] Speaker 02:
The agricultural industry in Central Washington is very small.

[00:26:37] Speaker 02:
It is a small community.

[00:26:38] Speaker 02:
Everyone knows each other.

[00:26:40] Speaker 02:
And you can, as was demonstrated below to the district court, with five minutes of Google research, find the decision maker, the HR person, with their email and phone number at every packing house in the Central Valley in Washington.

[00:26:58] Speaker 02:
It is a very difficult road to establish the existence of a trade secret in this industry, and the district court correctly found that there were no genuine issues here.

[00:27:11] Speaker 02:
The standard on the trade secrets claim was not met.

[00:27:16] Speaker 02:
Turning quickly to the Lanham Act, we certainly argue that the decision to award fees under the Lanham Act was within the court's sound discretion.

[00:27:30] Speaker 02:
And I want to note before we run out of time here in my last 15 or so seconds,

[00:27:36] Speaker 02:
The argument that non-taxable costs under section 1928 are not available under the Lanham Act is an argument that was not made below.

[00:27:48] Speaker 02:
It has been waived.

[00:27:49] Speaker 02:
That is invited error by BBSI.

[00:27:52] Speaker 02:
And Grove v. Wells Fargo is still good law.

[00:27:56] Speaker 02:
There are district courts throughout the Ninth Circuit that in the last couple of months have been awarding witness fees, travel costs, traditionally non-taxable costs in Lanham Act cases.

[00:28:08] Speaker 02:
So with that, Your Honors, I would argue and urge you to affirm the district court orders.

[00:28:13] Speaker 02:
And I thank you for your patience.

[00:28:15] Speaker 04:
All right, thank you.

[00:28:15] Speaker 04:
Counsel, you have some time left for rebuttal.

[00:28:21] Speaker 03:
Thank you, Your Honor.

[00:28:21] Speaker 03:
First, with respect to Judge Clifton's question about whether the issue of the agreements was raised, it's in the second brief at page 14.

[00:28:32] Speaker 03:
And I note as well that in their responsive brief, they did not deny that those agreements had been taken, simply lifting the BBSA mark and plopping Persona's mark on those agreements.

[00:28:44] Speaker 03:
Now, with respect to the trade secret argument, my colleague

[00:28:48] Speaker 03:
My colleague didn't respond to the court's question about a number of the issues that were pertinent to the Trade Secrets Act issue.

[00:28:54] Speaker 03:
Trade secrets are broadly defined in state and federal law.

[00:29:00] Speaker 03:
Very broadly defined.

[00:29:02] Speaker 03:
and usually involve fact issues.

[00:29:04] Speaker 03:
Compilations of data, some of which may be public, still constitute trade secrets.

[00:29:10] Speaker 03:
The Washington Supreme Court's decision in the Lyft case, I think, is instructive.

[00:29:14] Speaker 03:
This was a situation where Uber and Lyft were required to provide data to the city of Seattle regarding the usage of those services.

[00:29:26] Speaker 03:
I mean, that's information I suppose if you track down every single Uber and Lyft driver and there were thousands of them in the city of Seattle, you could consider to be public data.

[00:29:37] Speaker 03:
But the difference was the compilation of the data by these companies and providing it to the city of Seattle constituted the trade secret.

[00:29:47] Speaker 00:
Your friend on the other side seems to distinguish that by saying that this is a market with very few players, unlike the thousands potentially of Lyft or Uber drivers.

[00:30:00] Speaker 00:
Does that make any difference?

[00:30:02] Speaker 03:
No, and there were actually only two.

[00:30:04] Speaker 03:
We're only talking about Uber and Lyft.

[00:30:06] Speaker 03:
I mean, those are the only two companies that we're talking about.

[00:30:08] Speaker 03:
They had lots of drivers.

[00:30:09] Speaker 00:
No, but the amount of data is different.

[00:30:11] Speaker 03:
I understand, Your Honor, but I think in this particular case, what you have is significant data that was compiled by BBSI contrary to counsel's argument that creates the fact issue here.

[00:30:23] Speaker 03:
If you vet each individual temporary worker in accordance with the needs of the particular customer,

[00:30:32] Speaker 03:
You've gone through a process, you've gone through a significant process that requires time and attention to put together that list of individuals that's pertinent and beneficial to that particular customer.

[00:30:44] Speaker 03:
You've looked at that particular customer who has particular needs.

[00:30:48] Speaker 03:
They need certain times, they need it for certain kinds of crops, they need it for certain kinds of things.

[00:30:53] Speaker 03:
That too is pertinent and specific to that specific customer.

[00:30:58] Speaker 03:
And then you have the pricing margin.

[00:31:00] Speaker 03:
Contrary to what Council said,

[00:31:02] Speaker 03:
What rival in the universe wouldn't want to know the whole card of their opponent?

[00:31:07] Speaker 03:
I mean, my lord, you've got a situation where you know that you have to have this margin in order for BBSI to be profitable.

[00:31:15] Speaker 03:
Persona can come in and undercut that margin to their benefit.

[00:31:20] Speaker 03:
I mean, it's a magnificently beneficial thing for these individuals that have

[00:31:24] Speaker 03:
you know, not exactly acted with honorable intentions by setting up a rival corporation, a rival company five months before they departed BBSI.

[00:31:34] Speaker 03:
All of those things suggest you've got fact issues here that require the

[00:31:40] Speaker 03:
the jury in the case to decide whether or not all of the elements have been met.

[00:31:44] Speaker 03:
But for purposes of summary judgment, these fact issues must result in a reversal of the District Court's decision on summary judgment with respect to the Trade Secret Act claims.

[00:31:54] Speaker 03:
And we ask the Court to do that.

[00:31:55] Speaker 05:
I do want to take you back to your referral to be to page 14.

[00:32:01] Speaker 05:
Yes, Your Honor.

[00:32:02] Speaker 05:
District Court had described the Lanham Act claim as being based upon

[00:32:08] Speaker 05:
defendants posing as agents of BBSI to Jewel Fruit.

[00:32:13] Speaker 05:
And so I look at page 14, and that's not what I see there.

[00:32:19] Speaker 05:
Indeed, it talks about how Alejo updated the logo, didn't use the Barrett logo, used his own what was called persona.

[00:32:30] Speaker 05:
So that's not portraying himself as being a representative of BBSI.

[00:32:37] Speaker 05:
had inside information and so forth.

[00:32:38] Speaker 05:
That's the general trade secret type claim, but is that a Lanham Act claim?

[00:32:45] Speaker 05:
I'm still missing what evidence supported the claim that he portrayed himself as being

[00:32:53] Speaker 05:
from VBSI as opposed to being this new competitor.

[00:32:56] Speaker 03:
We've made arguments about that as well, Your Honor.

[00:32:58] Speaker 05:
That's what I asked you to point me to, and you point me to page 14, and I'm having trouble finding that evidence.

[00:33:03] Speaker 03:
Well, I'm sorry, Your Honor, but you asked me to give you a citation to where there was a question about the misappropriation of the mark by virtue of the employment agreements, and that's what I provided you.

[00:33:15] Speaker 03:
I can get you the additional stuff.

[00:33:16] Speaker 05:
Well, stay here.

[00:33:19] Speaker 05:
Where's the misappropriation of the mark?

[00:33:21] Speaker 05:
When it talked about the mark, it said Alejo updated the logo, but he didn't change the substance.

[00:33:27] Speaker 05:
Well, that may be violation of trade secret, but that's not a violation of BBSI's identity.

[00:33:35] Speaker 05:
At that point, the claim is something different from what I understood the Lanham Act claimed to be.

[00:33:40] Speaker 03:
And I'll get you the citations both in our opening, our second brief, and in the reply.

[00:33:45] Speaker 05:
Well, I just asked you for it.

[00:33:46] Speaker 05:
You came back, you gave me this.

[00:33:49] Speaker 05:
This doesn't seem to do it, so I'm not sure what I'm supposed to do.

[00:33:52] Speaker 03:
I apologize if I had misunderstood you, Your Honor.

[00:33:55] Speaker 03:
My understanding was you wanted a citation to where we argued in the brief.

[00:33:59] Speaker 03:
the question about taking the employment, the staffing agreements.

[00:34:03] Speaker 05:
I'm more than happy to get you to- No, no, no, no, no, no.

[00:34:05] Speaker 05:
My question was pointedly aimed at the attorney fee award, and I read from the district court's order that said no evidence was submitted to support the award.

[00:34:14] Speaker 05:
And I asked, so where's the evidence here?

[00:34:16] Speaker 05:
And you point me to page 14, and that doesn't appear to be evidence to support the allegation that they portrayed themselves as being representatives of BBSI.

[00:34:25] Speaker 03:
And we did make the argument in the briefs, and I'll provide that, and we also made that argument.

[00:34:30] Speaker 03:
We provided specific references to the excerpt of record in the FRAP 28J letter that you filed yesterday.

[00:34:35] Speaker 05:
Well, that brings up another question.

[00:34:37] Speaker 05:
We got that letter this week, and it was offered as being under Rule 28J.

[00:34:42] Speaker 05:
Now, what's 28J authorize?

[00:34:45] Speaker 05:
It's citation of supplemental authorities.

[00:34:48] Speaker 05:
That letter didn't mention any supplemental authorities, did it?

[00:34:52] Speaker 05:
It was a sir reply.

[00:34:54] Speaker 05:
Well, it's a... Was there a single mention of a supplemental authority in that letter?

[00:34:59] Speaker 03:
I would suggest that a reference to the record, Your Honor, is a supplemental authority, but... Really?

[00:35:06] Speaker 05:
I mean... Okay.

[00:35:09] Speaker 04:
All right.

[00:35:10] Speaker 04:
Thank you.

[00:35:11] Speaker 04:
We thank counsel for their arguments.

[00:35:12] Speaker 04:
The case just argued is submitted.