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Inc. v. WinCo Foods, LLC

Court of Appeals of Oregon

September 27, 2017

IVERSON'S UNLIMITED, INC., Plaintiff-Appellant,
v.
WINCO FOODS, LLC, Defendant-Respondent, WINCO FOODS, LLC, Counterclaim-Plaintiff,
v.
IVERSON'S UNLIMITED, INC.; and James Iverson, Counterclaim-Defendants.

          Argued and submitted January 26, 2016.

         Marion County Circuit Court 12C13617; Vance D. Day, Judge.

          Kevin J. Jacoby argued the cause for appellant. With him on the briefs were Paul R.J. Connolly, Tyler P. Malstrom, and Connolly & Malstrom.

          Elizabeth Tedesco Milesnick argued the cause for respondent. With her on the brief were John F. Neupert, P.C., and Miller Nash Graham & Dunn LLP.

          Before DeVore, Presiding Judge, and Lagesen, Judge, and James, Judge. [*]

         [288 Or. 11] Case Summary: Plaintiff brought claims against defendant that included misappropriation of trade secrets and breach of an oral contract. The trial court entered a limited judgment dismissing those two claims after granting defendant's motion for summary judgment. Plaintiff assigns error to the trial court's grant of summary judgment, arguing that the evidence, including its attorney declarations fled pursuant to ORCP 47 E reporting that plaintiff retained an expert to testify about causation, presents a question of fact for a jury to determine whether competitors had harmed plaintiff by using its trade secrets. Held: The trial court erred. Causation may be proved by circumstantial evidence, expert testimony, or common knowledge. Plaintiff's contravening evidence, including its expert's testimony, presented a genuine issue of material fact on causation asking how its competitors used plaintiff's trade secrets. The same factual question remains as to plaintiff's claim for breach of contract.

         [288 Or. 12]

          DeVORE, P. J.

         Plaintiff Iverson's Unlimited, Inc. (Iverson) brought claims against WinCo Foods, LLC (WinCo), that included misappropriation of trade secrets and breach of an oral contract. The trial court entered a limited judgment dismissing those two claims after granting WinCo's motion for summary judgment and denying Iverson's motions to amend the claims and to plead punitive damages. Iverson assigns error to each of those rulings. As to the first assignment of error, we agree that there is a genuine issue of material fact on the issue of causation that is common to the claims, which precludes summary judgment. Therefore, we reverse and remand. We do not reach the latter assignments, because the questions of amendment of the complaint may be renewed and reconsidered in a different light given our reversal of the summary judgment ruling.

         We describe the facts consistent with our standard of review of a summary judgment ruling. "On review, we view the evidence and all reasonable inferences that may be drawn from the evidence in the light most favorable to the nonmoving party." Becker v. Pacific Forest Industries, Inc., 229 Or.App. 112, 114, 211 P.3d 284 (2009). The nonmoving party is Iverson.

         Iverson had provided unloading services to commercial carriers of goods being delivered to WinCo, an owner and operator of supermarkets. In the past, Iverson had been paid largely by the carriers. Beginning about 2005, WinCo put the contract for unloading services out for bid, providing that, in exchange for the right to exclusive use of WinCo's facilities and equipment, the unloading contractor would pay WinCo a percentage of fees collected from the carriers in a "revenue share" arrangement. Iverson was awarded the contracts after bidding in 2005 and 2008. Iverson paid WinCo about 50 percent of its revenue from carriers.

         During this time, Iverson provided WinCo with reports on the dates of unloading, number of loads, service fees by load, number of cases and pallets unloaded, the elapsed times of unloading, and names of carriers paying Iverson ("unloading data"). The information allowed WinCo to confirm that Iverson was charging carriers correctly and [288 Or. 13] sharing the proper amount of revenue. Iverson expected its data to remain confidential when shared with WinCo. Iverson did not intend that its data would be shared with companies outside of WinCo or Iverson. As construed in Iverson's favor, such productivity, cost, and revenue information was confidential.[1]

         In 2011, Belliveau, a WinCo employee, began another request for proposals (RFP) process. Upon request, Iverson gave Belliveau general access to Iverson's secured server and emailed an electronic file to him containing all of Iverson's unloading data for 2010 and seven months of 2011. Iverson told Belliveau that the electronic file was confidential. Belliveau agreed.

         WinCo solicited bids from Iverson and a number of competitors, and, when WinCo sent its 2011 RFP documents, WinCo attached the file that Iverson had prepared for Belliveau. Iverson's information, which WinCo sent to Iverson's competitors, was in a searchable database or spreadsheet form. The spreadsheets included unloading dates, times, purchase order numbers, vendors, start and stop times of tasks, the number of cases, and the amounts Iverson charged carriers, but excluded the revenue share that Iverson owed WinCo for each load. WinCo's vice-president of distribution, Parker, explained that WinCo provided unloading data for over a year so that "RFP proponents [had] a good view of what they were actually going to be doing." Belliveau ...


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