If a third party sends you someone’s trade secrets, and you delete them as soon as you know they’re trade secrets, you’re off the hook for misappropriation.
That, in a nutshell, is what a Florida federal judge held on January 14, when he dismissed Dyncorp International LLC’s allegations that rival contractor AAR Airlift Group, Inc. stole trade secrets to gain an unfair advantage in securing a multibillion-dollar government contract. The contract, which Dyncorp had performed for more than 20 years, was to provide aviation support to the U.S. State Department for its counter-narcotics operations.
The dispute arose on April 27, 2015, when a whistleblowing former AAR employee notified Dyncorp that AAR had misappropriated trade secrets and other confidential information relating to Dyncorp’s performance of the existing contract with the State Department. On May 4, 2015, Dyncorp filed a protest with the State Department regarding AAR’s alleged conduct. That same week, AAR informed the State Department that it was in possession of a Dyncorp spreadsheet known as a profit margin analysis or “PMA,” which contained roughly 10,000 rows of confidential and trade secret information.
After the court denied Dyncorp’s motion for a preliminary injunction, Dyncorp filed an amended complaint in October 2015, asserting a violation of the Florida Uniform Trade Secrets Act and other related claims. In a January 14, 2016 order, Judge Presnell granted AAR’s motion to dismiss Dyncorp’s amended complaint.
Judge Presnell found two major flaws with Dyncorp’s allegations. First, as to the PMA document, the court noted that Dyncorp’s allegations centered on information obtained by AAR, rather than information misappropriated by AAR. Dyncorp alleged that an employee of one of its subcontractors sent an unsolicited email containing the PMA to an AAR subcontractor, who later shared it with an AAR manager. AAR maintained that it deleted the document as soon as it realized it contained trade secrets. Even though Dyncorp’s pleading suggested that it does not believe that AAR had deleted the document, this was not enough to establish “misappropriation,” the judge reasoned, as nothing in the amended complaint constituted an affirmative allegation that AAR ever disclosed or used the PMA document.
Second, as to Dyncorp’s remaining allegations, the judge concluded that these were “extremely vague” and failed to state a claim as well. In particular, the whistleblower, identified only as “Witness A,” claimed to have seen a former Dyncorp employee “in possession of a portfolio of information” but provided “no specifics as to what that information was.”
In the meantime, we will have to wait and see if the third time is the charm for Dyncorp. The judge’s order gives the company an opportunity to file a second amended complaint by January 29.