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The case:

A software designer creates a program designed to allow financial advisors, financial institutions, and a retirement investor to all talk to each other in an integrated way. Of course, once this works, a big fish swims into the picture, gobbles up one partner in the software venture, and cuts the other partner out of business by creating software that looks an awful lot like the original.

The research:

We conducted two rounds of modified focus groups. The first involved attorney presentations that had the entire range of case facts included. The second round was more restricted, giving a presentation on just the key trade secrets that were created, then taken, as opposed to the defense’s presentation saying that the new software was created independently and/or with property that was jointly owned by the partners at the time they bought out one of the partners.

What we learned that helped resolve the case:

• Jurors did not understand the concept of trade secrets, but focused more on the breach of contract issues. This would not have put us into the treble damage arena, however.
• A step-by-step “mini-lecture” on trade secrets in general and the 5 allegedly purloined trade secrets in this case was created for the expert witness to use and to use in closing. This allowed jurors to rank order the importance of each of the 5 secrets, told us which ones had been taken, and showed us that this put the primary emphasis on the trade secrets without losing the breach of contract as an element of the case.

Final outcome:

$61,000,000 for the plaintiffs. 

The case:

Two warehouse/distribution companies shared a privately built railroad track that brought goods into the facility and sent goods back out. The defendant built the track before the plaintiff was ever even in business. They had a contract to share the track for over 50 years without mishap. Rather quickly, the plaintiff company wanted to more than double its use of the track for a new line of business it had developed. The defendant objects, saying the new volume of rail traffic would create an interference with their business. “Interference” was a contract term used to protect the defendant from their original track being monopolized by the plaintiffs at some point in the future.

The research:

Three focus groups wrestled with the concepts of sharing and interference. Some concluded that the defendants could anticipate that the higher traffic would interfere with their business, while others said the defendant could not claim ‘anticipated interference, but must show “actual” interference. Finally, two strong themes emerged for the defense:

~~“You don’t have to wait for your engine to burn up before you change the oil. You can anticipate damage before it happens.”

~~“If I agree to share my cellphone with a friend, but the friend starts to use it too much so that I have trouble using it like I want, since I was the original owner, I get to say how much the friend can use the phone.”

Final outcome:

Voir dire questions regarding the concept of “anticipated” versus “actual” were developed along with other critical attitude variables that differentiated “plaintiff-leaning” jurors from “defendant-leaning” jurors. Ultimately, no money changed hands and use of the track was “capped” at an acceptable level.