[00:00:00] Speaker 01:
25-1278 Edwards Life Sciences versus Thompson.

[00:00:06] Speaker 01:
Council ready?

[00:00:09] Speaker 01:
Please proceed.

[00:00:11] Speaker 04:
Thank you, Your Honor.

[00:00:11] Speaker 04:
Robert Riley on behalf of Michael Thompson.

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Everything in this case turns on an erroneous trade secrets ruling that information that was public, dated,

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merely in Mr. Thompson's head, not in a document compiled by his employer, Edwards, and filed away somewhere in a secret place.

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But information he learned as a salesperson was all a trade secret.

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Information available on the Edwards website was a trade secret.

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Decade-old information was a trade secret.

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And this case is not a threatened misappropriation case.

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Because in the reply brief, Edwards has said they disavowed that they are relying on threatened misappropriation.

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They claim actual misappropriation.

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Under the law, that's not possessing something, not acquiring it legally while you're employed by Edwards.

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It's wrongful use.

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of the information.

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There is zero evidence in this record that Mr. Thompson ever used any of the claimed trade secret information and communicated it to a customer, ever.

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He pledged he wouldn't do it when he was hired by Abbott.

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Abbott instructed him not to do that, and he agreed.

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And that is uncontradicted in this record.

[00:02:00] Speaker 01:
Well, Counsel, can I get you to start with the mootness point, though?

[00:02:03] Speaker 04:
Certainly, Your Honor.

[00:02:04] Speaker 01:
Thank you.

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The test for mootness is whether there are no continuing consequences of the trade secrets ruling.

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There's no effectual relief that you could give.

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And the burden isn't on us.

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It's on the movement to prove that.

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This trade secrets ruling says, if you've got information in your head, Mr. Thompson, you can't solicit, you can't sell without using it.

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That was the evidence they put in as how he misappropriated.

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It's in his head.

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He can't get it out of his head.

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He's got to use it.

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So there's a continuing effect.

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of the trade secrets finding that hangs like a sword of Damocles over his head.

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But how?

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Let's say he engages in some conduct transaction in his new position that would have violated the previous injunction that was in place.

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Could he be held in contempt?

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There is no injunction.

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They could seek another injunction.

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And if they did, and it was in place,

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you could appeal it.

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But if it is capable of repetition under the mutinous doctrine, this court has the discretion to deal with it now.

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Capable of repetition and incapable of being adequately supervised to remedy.

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It's not just capable of repetition.

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It has to be that the repetition is not

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susceptible to individual remedies.

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That is, the repetition would occur so quick that you couldn't get a remedy in place.

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We couldn't get one?

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If you would drop it, and then they'd start a new one, and drop it, and start a new one, and so forth, then you could never keep up with it.

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So it has to also be incapable of being regulated.

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If it does occur again, why couldn't at that certain point they could say, now we see a pattern, now we want a broader injunction?

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We'd have to come up again, and what would happen to us again is the temporary injunction would expire before we could get a ruling.

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We even tried to waive oral argument in order to get a ruling before it expired.

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That's why it's capable of repetition.

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What is suggesting that it would be so short again?

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I mean, that's the problem here, right?

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It's a very short duration.

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It was.

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be longer?

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Why wouldn't you be standing up and asking for a longer one given the experience here?

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We don't control what they request in terms of another preliminary injunction.

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Well, you would at least be arguing in terms of length, wouldn't you?

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They seek right now.

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They seek a permanent injunction.

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They seek damages.

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for any sale he made using, misappropriating, by having in his head this information that he learned being a salesman for both Abbott and Edwards four different times, all of it under this ruling.

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All of it disables him from selling to anybody without subjecting himself to this claim.

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But isn't the problem that because it's still an ongoing case, you're here appealing an injunction

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which we can do so long as, as we pointed out, the injunction is still in force and it is not.

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But what you're asking, it sounds like you may be asking, is for this court now to give

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an advisory opinion, if you will, on the merits of all these other issues that are still alive in the case when in using the vehicle of 1292 to get there.

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So tell me why that's wrong.

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Well, that wasn't our intention when we filed this appeal.

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We wanted to get it up while it pendent, and we just couldn't get a decision.

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But the problem that Mr. Thompson confronts,

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is that he's got to conduct his business life right now.

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He's free to solicit.

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But because he has this information in his head, under the rulings, which I believe aren't supported by Colorado law or the cases interpreting the relevant statutes, because public information

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which was held to be a trade secret is not as a matter of law or as a matter of contract, by the way.

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The contract itself, the employment contract says, if it's public information, if it's readily accessible, it's not a trade secret.

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That was an interpretation of law of a contract.

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All of those legal rulings are in place.

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This court can correct those legal errors.

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And the impact will be substantial on the ability of this man to earn a living without exposing himself to damages claims under these erroneous rulings.

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Isn't that a risk that every business person faces, whether they've got a case that has been around or not?

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There's always a risk.

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whatever action they take may expose them to liability.

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It's part of our system, which may be a plus or a minus.

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But you've got that threat any time you do anything.

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And how are these people any more privileged, or why should they be any more privileged than anybody else?

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I take your point.

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Here's what's different about this situation.

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This isn't the ordinary risk that would be run by somebody who signed an employment agreement.

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The risk arises from an erroneous district court opinion, which holds these things that are not trade secrets under Colorado law to be trade secrets, to hold that it's misappropriation to have it in his head and solicit a sale because he can't get it out of his head.

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So there's that extra layer of prejudice, Your Honor, that distinguishes it from the ordinary risk any business person can confront.

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There's a precedent out there.

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It is troublesome, but every business person has to deal with all kinds of precedent, whether they were involved in the precedent-making or not.

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Yeah, but in this case, it's directed with a bullseye on Mr. Thompson's back.

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It isn't about somebody else.

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It's not about what's in somebody else's head.

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It's what's in his head that has been declared improperly

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against the precedents, against the statute, to be a trade secret.

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Stale information, that's a trade secret.

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Information that he never, on this record, shared with any customer is still a misappropriation.

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So I think that's what distinguishes it from the ordinary risk that a business person confronts.

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And this court can grant some effective relief there.

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You can clarify.

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that those aren't trade seekers.

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That's not, as a matter of law, misappropriation.

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Just possessing information isn't actual misappropriation.

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That would advance this case considerably.

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It would give perfect assurance.

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If our ruling was only possessing trade secret, it isn't a violation.

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And that's what Thompson is doing and complained about, that he is being charged or at risk for simply possessing the information.

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Why isn't that an adequate rule?

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Why isn't that?

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Well, why is he feeling threatened?

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Because the trial court said that is actual misappropriation, to have it in your head and solicit a sale.

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May I share with what Edwards' witness said on this subject, Your Honor?

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He was asked, we asked, what's your evidence that there was actual misappropriation?

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He said he has the information, so it's impossible not to use it.

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He can't erase it from his mind.

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In all but name, that's the inevitable disclosure doctrine.

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The lawyers for Edwards may disclaim relying on it.

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The district court didn't admit it was relying on it.

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That's the evidence of what their claim of actual misappropriation is.

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And it's erroneous as a matter of law.

[00:10:21] Speaker 03:
Counsel, part of your presentation, as I understand it here this morning, is

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that there is some urgency to this matter because your client is in this trap, if you will, about information you can use.

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And you said a moment ago, well, we tried to sort of press this urgently, but we couldn't get a decision, the inference being maybe that our court didn't move at the pace of your liking.

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But as I'm looking here at the docket, the district court's injunction was entered on June 18.

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The civil case was filed here on June 21st.

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Briefs were filed.

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And it's not until December 1st that you filed a motion to expedite the appeal.

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That's true.

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So in terms of your presentation of sort of the urgency and why we must step in and review an injunction that's no longer in place, how do we interpret sort of the procedural history before this court in the context of the presentation you're making?

[00:11:21] Speaker 04:
Number one, I didn't mean to imply that the court was tardy.

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I meant to suggest that the nature of these appeals is that they oftentimes evade review because they expire.

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There are preliminary injunctions of limited duration.

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There are any number of cases that are reported in the district courts that evade appeal because they expire.

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We did our best.

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I grant you that is when we asked for the expedited ruling and offered to waive oral argument because this had dragged on, including granting as a courtesy some extensions, both directions, by the way.

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We couldn't get it done.

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We understand that.

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But it doesn't make these issues less meaningful to Mr. Thompson and the public policy.

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of the state of Colorado strongly supports his right to make a living.

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I see that I've got a little less than three minutes and I'd like to reserve, if I may, for rebuttal.

[00:12:32] Speaker 02:
May it please the court, Tim Kratz for the plaintiff's appellees in this case, Edwards Life Sciences LLC and Edwards Life Sciences Corporation.

[00:12:43] Speaker 02:
Pleasure to be here today, Your Honors.

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The appeals moved.

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The district court found, issued a preliminary injunction

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had three parts to it, one dealt with non-solicitation, one dealt with non-competition, and one dealt with the disclosure of Edwards' confidential information.

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All those were to last for a set period of time.

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That set period of time, without question, expired on January 16th of this year.

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There is no injunctive

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relief that is continuing on in this case at this point in time.

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As Judge Ebell pointed out, to the extent that Mr. Thompson feels that he has this preliminary injunction opinion hanging over his head that is preventing him from being able to earn a living, Mr. Thompson has a legal duty not to misappropriate trade secrets regardless of a preliminary injunction ruling.

[00:13:48] Speaker 02:
Mr. Thompson has a contract

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with Edwards that says do not take and use our confidential information regardless of this ruling that took place in this case.

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This is quite clearly a request for an advisory opinion and nothing more.

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And it is not something that respectfully this court should delve into when the trial court proceeding is alive and well.

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And Mr. Thompson will have most likely an opportunity

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to appeal this after a final ruling, after the trial court finalizes its case.

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And one other thing that I think is important here, Mr. Thompson in his appeal brief did not appeal that third aspect of the preliminary injunction.

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The restraint on him using Edwards' confidential information going forward, there was no specific argument in his appeal brief that that aspect of the preliminary injunction

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should be overturned.

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So here he's complaining about a ruling that is allegedly impacting his ability to get by, and it's not even one of the rulings that he actually addresses in his appeal brief.

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He does address the trade secret aspect of things.

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He does not address the third prong of the injunction that was entered.

[00:15:14] Speaker 03:
Council, since the motion was filed to dismiss on mootness grounds and the response has been filed, has there been any change to facts and circumstances?

[00:15:24] Speaker 03:
I think the last response was filed January 30th, so not that long ago.

[00:15:29] Speaker 03:
But have there been any change to the facts and circumstances of the case that would impact our assessment of mootness?

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None that I am aware of, Your Honor.

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We have not filed

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Yeah, the injunction ran on January 16th, I was going to point out.

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Several months have gone by.

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We have not filed any new requests for another preliminary injunction in the case.

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And Mr. Thompson, as part of the record, I'm sure, in the case, and he puts it in his opening brief, has told us that I'm not using that information.

[00:16:03] Speaker 01:
Chancellor, could you turn to the capable of repetition yet evading review exception to the mootness doctrine and how, I guess in your view, it does not apply here?

[00:16:16] Speaker 02:
Certainly, Your Honor.

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Let's talk about the evading review.

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Part of that is probably the most significant part of it.

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Mr. Thompson is contending that

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Well, actually, strike them.

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Capable of repetition, I think, is really where I want to go.

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Mr. Thompson is contending that we're going to go after him again for violation of his agreement or for using our trade secrets.

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The 10th Circuit authority on that isn't that it's just a possibility of that.

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It has to be a reasonable probability.

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And Mr. Thompson has provided us with no facts whatsoever to indicate that there is any reasonable probability

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that we are going to make another claim against him that he... to seek injunctive... Well, I guess he would say, why wouldn't you?

[00:17:09] Speaker 02:
Well, one reason we wouldn't is because he has sworn to us that he's not using that information.

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So that would be one particular reason.

[00:17:19] Speaker 01:
And you would take his word for it, even though you sued him?

[00:17:23] Speaker 02:
No, that's a fair question.

[00:17:24] Speaker 02:
Honestly, no.

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We wouldn't probably take his word for it.

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Still, I just don't think he meets the standard here.

[00:17:31] Speaker 01:
Well, you brought one once.

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I guess the inference is you would do it again.

[00:17:36] Speaker 01:
How about that?

[00:17:37] Speaker 02:
I'm sorry, what?

[00:17:40] Speaker 01:
You sought an injunction once.

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Why wouldn't you do it again?

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Why wouldn't you seek another injunction?

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It's just drawing an inference from the first one.

[00:17:52] Speaker 02:
Right.

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And the reason would be that because we would have to have new evidence of his misuse of our confidential information in order to go after him again at this point in time.

[00:18:06] Speaker 01:
Okay, how about the evading review part then?

[00:18:09] Speaker 01:
I mean, what would prevent then just assume that you did seek another injunction and you obtained one, but it was for short duration and it expired before an appeal could be taken?

[00:18:25] Speaker 02:
I mean, I think the evading review

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aspect of this case goes back to what has happened previously in the case and they waited, you know, the full 30 days before filing their notice of appeal.

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And as Judge Federico pointed out, they did not file any motion to expedite the appeal until well into the briefing in the case.

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So I think

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the fact that they have not pursued diligently the appeal backfires on them in their argument that this would be evading review.

[00:19:01] Speaker 01:
Well, now they know.

[00:19:02] Speaker 01:
They have to act quickly, right?

[00:19:04] Speaker 01:
Right.

[00:19:04] Speaker 01:
They didn't know before, perhaps?

[00:19:06] Speaker 01:
Right.

[00:19:07] Speaker 01:
I don't know.

[00:19:09] Speaker 02:
I'm sorry.

[00:19:10] Speaker 02:
I didn't mean to interrupt.

[00:19:12] Speaker 02:
No, no.

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I think Your Honors know this, but the standard is not just evading review or capable of repetition.

[00:19:21] Speaker 02:
Both of those aspects, both of those factors have to be met in order for us to allow the appeal to move forward in this situation.

[00:19:31] Speaker 01:
Thank you.

[00:19:32] Speaker 02:
Sure.

[00:19:39] Speaker 02:
And, I mean, it's important to note that the

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Non-compete provisions have absolutely expired.

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Edwards could not assert the same claims against Thompson at this point in time because the claims involved

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the non-compete provisions as well as the non-disclosure provisions.

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Those non-compete provisions could never be asserted again against Mr. Thompson.

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He's not going to go to work for Edwards again, enter another non-compete agreement, and have this type of litigation.

[00:20:13] Speaker 00:
How is Edwards any more at risk than millions of other people that have confidential information perhaps in their head from prior employment situations?

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since there's no injunction against Edwards.

[00:20:27] Speaker 00:
Isn't everybody out there who has learned something from a prior job for which they have an agreement not to compete is facing the same problem with this precedent?

[00:20:39] Speaker 00:
This precedent doesn't single out Edwards.

[00:20:42] Speaker 00:
It would be applicable, I suppose, to anybody within the jurisdiction of the court.

[00:20:48] Speaker 00:
So how does he have any particularized risk here?

[00:20:54] Speaker 02:
In this situation, Your Honor, there is much more than just some generalized knowledge in Mr. Thompson's head.

[00:21:02] Speaker 02:
There's a myriad of facts uncontested in the case, which have been downplayed by opposing counsel in the oral argument that exists here that create a serious threat and risk of misappropriation, not of generalized information, but of trade secrets.

[00:21:19] Speaker 02:
the information that is in Mr. Thompson's head, and by the way, which he sent to himself via email as he was interviewing with his competitive company.

[00:21:30] Speaker 02:
he does not possess any of this information in hard copy format is simply not true.

[00:21:36] Speaker 02:
The evidence in the record is found by Judge Rodriguez is that some of this information was actually sent by him to his own personal email at the same time he was working for a competitor.

[00:21:48] Speaker 02:
But to get more specifically to your question, the information that Mr. Thompson has and that he admits at least in some extent to remembering includes things like he had

[00:22:01] Speaker 02:
around 20 customers in the state of Colorado.

[00:22:04] Speaker 02:
He remembers specific rebate tiers and market share discounts for those customers in Colorado.

[00:22:12] Speaker 02:
It's not that hard for someone as intelligent as Mr. Thompson is to remember critical pricing details like that and to be able to go out and use that against

[00:22:23] Speaker 02:
Edwards against my client going forward, because these are not simply a list price, X amount of dollars, Your Honor.

[00:22:33] Speaker 02:
It is a rebate structure based on the volume of units sold, and that rebate structure can change significantly depending on certain market share arrangements.

[00:22:45] Speaker 02:
If one customer is buying 80% of its heart implant units from Edwards,

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the discount goes down.

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If one is buying 90%, you know, the discount goes up, that type of thing.

[00:22:59] Speaker 02:
Very specific pricing details that indeed could be remembered by someone like Mr. Thompson.

[00:23:05] Speaker 02:
Indeed, he admits he does remember some of that information and could be used to seriously harm my client, Edwards.

[00:23:14] Speaker 02:
Client preferences, another trade secret.

[00:23:18] Speaker 02:
Which physicians want to be involved in trials?

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Which physicians are extremely cost conscious?

[00:23:24] Speaker 02:
Which physicians are more interested in the ease of implanting one of these devices?

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He worked for Edwards for many years developing close relationships with those clients.

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And that is the type of information that is absolutely protectable and

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is justified the protection that was granted by Judge Rodriguez in this case.

[00:24:12] Speaker 02:
So I do think just a brief recitation of some of the facts pertinent to the case would be helpful to you as you evaluate this because there is this sort of overriding concern that we can't show irreparable harm that's been argued by opposing counsel just based on the idea that potentially in the future Mr. Thompson could reveal some information that he has.

[00:24:38] Speaker 02:
So I think it's important to just

[00:24:39] Speaker 02:
understand a brief chronology of what Mr. Thompson indeed has done.

[00:24:44] Speaker 02:
He engaged in a text exchange with Abbott's area vice president of TAVR, a competing unit, Chris Waddell, while he was interviewing for his position with Abbott.

[00:24:57] Speaker 02:
And he gave Mr. Waddell his direct competitor advice on new territories that he believed Abbott should consider opening up.

[00:25:06] Speaker 02:
Another text with Waddell, he recommends potential customer sites that he recommends Abbott, that he thinks Abbott would, that these sites would be friendly to TAVR trials.

[00:25:20] Speaker 02:
And he gives Mr. Waddell information on who the key implanters are at each of those sites.

[00:25:29] Speaker 02:
And then just days before he resigned from our employment, Your Honors, he sent an email to his personal email with a TMTT business planning tool.

[00:25:42] Speaker 02:
And that was just three days prior to his resignation that had confidential Edwards information in it.

[00:25:48] Speaker 02:
He also on the day before his resignation was accessing numerous Taver, Edwards Taver, confidential documents.

[00:25:57] Speaker 02:
Again, just the day before he turned in his resignation to go to this competing entity.

[00:26:03] Speaker 02:
So this isn't a hypothetical pie in the sky.

[00:26:06] Speaker 02:
He has some general information in his head.

[00:26:09] Speaker 02:
type of situation that he's going to use in the future, as found by Judge Rodriguez, there are very concrete acts at issue here that give rise to a clear issue that Mr. Thompson could cause irreparable harm.

[00:26:26] Speaker 02:
And again, I don't know what meaningful relief, getting back to the mootness point, I don't know that there's any meaningful relief that this court

[00:26:37] Speaker 02:
could grant at this point, if the court were to wade into the trade secret issue, which by the way is a question of fact, which could only be overturned on abusive discretion grounds.

[00:26:48] Speaker 02:
And it would be a purely an advisory opinion going down to the lower court on an issue, a live case, a live case that is still moving forward.

[00:27:02] Speaker 02:
And I just, it does not seem like

[00:27:08] Speaker 02:
the type of relief that I don't know how that would even play into at the trial court level if something like that were handed down at this point.

[00:27:19] Speaker 02:
And a similar argument was made in

[00:27:22] Speaker 02:
One of the cases that is cited by both sides for support, sort of this law of the case argument, it was the Vitelli case, which is in the mootness argument.

[00:27:34] Speaker 02:
And the court rejected that, saying that preliminary injunction findings of law and fact are not binding at a trial.

[00:27:45] Speaker 02:
So thank you, Your Honors.

[00:27:46] Speaker 02:
It's a great honor to be able to appear for you.

[00:27:52] Speaker 04:
May it please the court?

[00:27:53] Speaker 04:
I'd like to pick up a couple of those marbles very quickly.

[00:27:57] Speaker 04:
That TMTT tool was sent to another Edwards employee by Mr. Thompson while he was employed by Edwards.

[00:28:09] Speaker 04:
Never to a customer, never to a competitor.

[00:28:11] Speaker 04:
That's as a matter of, that's not misappropriation.

[00:28:15] Speaker 04:
The text exchange.

[00:28:17] Speaker 04:
Edwards filed it in the public record not once, not twice, but multiple times and waived any claim that its identification of customers was a trade secret.

[00:28:30] Speaker 04:
With due respect to counsel, this court said in Rio Grande that the standard on mootness is not

[00:28:39] Speaker 04:
that you have to prove that repetition is more probable than not, specifically so held.

[00:28:45] Speaker 04:
It just needs to be capable of repetition.

[00:28:50] Speaker 04:
You didn't hear counsel say, look, that trade secrets ruling is a nullity.

[00:28:58] Speaker 04:
They didn't because they want to rely on it in the trial court as a ruling by the judge.

[00:29:05] Speaker 00:
How does that differ from somebody wanting to rely on any precedent for any case?

[00:29:09] Speaker 00:
Well, because we're in front of the judge who made the ruling on these facts.

[00:29:14] Speaker 00:
Any other random litigant could be before that same judge.

[00:29:19] Speaker 04:
Your Honor, interestingly, Edwards says, even if you should find this moot, whatever you should do, don't vacate this ruling.

[00:29:29] Speaker 04:
Why do they say that?

[00:29:30] Speaker 04:
Don't vacate it.

[00:29:31] Speaker 04:
Because it's not a nullity in their mind.

[00:29:36] Speaker 04:
They're going to assert that those rulings of law were proper to the judge who made them.

[00:29:42] Speaker 04:
And that's what we're going to confront.

[00:29:44] Speaker 03:
Let me ask you the same question.

[00:29:46] Speaker 03:
What would be your argument for why we should vacate an injunction that's no longer in place?

[00:29:53] Speaker 04:
because you should vacate the trade secrets ruling that is in place.

[00:29:59] Speaker 04:
And the entirety of the injunction was based upon an error of law regarding the trade secrets exception, enforcing a non-solicitation clause that made no reference at all to trade secrets, let alone limiting itself to you can't solicit if you use trade secrets.

[00:30:20] Speaker 04:
That's not what it said.

[00:30:22] Speaker 04:
That's not what the injunction said.

[00:30:24] Speaker 04:
That's not what the contract said.

[00:30:26] Speaker 04:
That ruling was an era, a clear era of law.

[00:30:32] Speaker 04:
I see I'm out of time.

[00:30:33] Speaker 04:
I appreciate the opportunity.

[00:30:35] Speaker 04:
On behalf of Mr. Thompson, we ask for some relief.

[00:30:38] Speaker 04:
Thank you.

[00:30:39] Speaker 01:
Thank you, counsel.

[00:30:42] Speaker 01:
Counsel is excused and the case is submitted.