BioPoint, Inc. v. Dickhaut

110 F.4th 337

• Court: Court of Appeals for the First Circuit
• Decided: July 30, 2024
• Docket: 23-1575
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 23-1575

BIOPOINT, INC.,

Plaintiff, Appellee,

v.

ANDREW DICKHAUT; CATAPULT STAFFING, LLC, d/b/a Catapult Solutions Group,

Defendants, Appellants,

LEAH ATTIS,

Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Rikelman, Lynch, and Howard, Circuit Judges.

Dana A. Zakarian, with whom Christopher J. Hurst, Steven D. Procopio, and Smith Duggan Cornell & Gollub LLP were on brief, for appellant. Allison L. Anderson, with whom James W. Bucking, Rachel L. Kerner, and Foley Hoag LLP were on brief, for appellee. July 30, 2024 LYNCH, Circuit Judge. Catapult Staffing, LLC and Andrew

Dickhaut (collectively, "Catapult") appeal from separate jury and

judge findings that they misappropriated BioPoint, Inc.'s trade

secrets, misappropriated its confidential business information,

were unjustly enriched by these activities, tortiously interfered

with BioPoint's prospective business relationships, and violated

the prohibitions on unfair and deceptive trade practices in the

Massachusetts Consumer Protection Law, Mass. Gen. Laws ch. 93A,

§ 11 ("chapter 93A").

The jury found that Catapult had misappropriated and

used BioPoint's trade secrets with respect to three candidates

recruited by Catapult and with respect to two of BioPoint's

clients, the firms Vedanta and Shire/Takeda. It also found

Catapult had engaged in tortious interference with BioPoint's

business relationship with one candidate. The jury awarded

BioPoint $312,000 in lost profits.

The judge, prior to the jury trial, had reserved to the

court decision on all equitable claims for relief. He notified

the parties he would hold a bench trial and decide those equitable

claims after the jury trial. He held a bench trial and then issued

a twenty-nine-page decision entitled "Findings of Fact, Rulings of

Law, and Order After a Bench Trial." The judge found for BioPoint

as to all equitable claims and awarded it $5,061,444, consisting

of the amount by which "Catapult was unjustly enriched" by its

- 3 - "misappropriation of BioPoint's trade secrets," trebled because

"Catapult's conduct also violated [chapter 93A]." The court also

awarded BioPoint reasonable costs, attorneys' fees, and

prejudgment and postjudgment interest.

We largely affirm, but reduce the judge's award, and the

award of judgment, by $157,068. We also reverse the district

court's imposition of joint-and-several liability on Andrew

Dickhaut and remand for further proceedings.

I.

"As this case comes to us following a bench trial" and

a jury trial, "we recount the relevant facts as found by the

district court, consistent with record support." Reyes v. Garland,

26 F.4th 516, 518 (1st Cir. 2022) (quoting Gonzalez-Rucci v. INS,

539 F.3d 66, 67 (1st Cir. 2008)).

BioPoint is a life sciences consulting firm based in

Massachusetts which scouts for highly skilled candidates to place

in temporary positions at pharmaceutical, biopharmaceutical, and

medical device companies. Those companies pay BioPoint a

(typically hourly) rate for the candidates' services (the "bill

rate"), and BioPoint remits a portion of that payment to the

candidates (the "pay rate"), profiting from the difference.

BioPoint maintains an internal database in which it records

proprietary information regarding clients, candidates, and their

- 4 - respective bill and pay rates. In 2015, BioPoint hired Leah Attis,

who became one of the company's top salespeople.

Catapult, based in Texas, is also a placement company

that operated in other industries until it attempted to enter the

same field as BioPoint. Catapult opened a Boston office in 2017

and hired Andrew Dickhaut, Attis's fiancé, as Managing Director.

(Dickhaut and Attis were married on February 1, 2020.) At the

time that Catapult entered the Boston market, it had no intention

of operating in the life sciences industry. It planned to focus

instead on the "technology, light industrial, accounting, and

finance industries." But Catapult's plans shifted and it began to

target the life sciences space after a "disastrous" first year for

the Boston office, which resulted in Dickhaut's having to take a

pay cut.

In December 2017, Jeff Autenrieth, a talent acquisition

consultant at Moderna, a pharmaceutical company, contacted Attis

at BioPoint seeking to fill a life sciences placement at his

company. Dickhaut knew Autenrieth from high school and had

introduced him to Attis in 2016 at her request. Autenrieth had a

particular candidate in mind, Chris Foley, and suggested that Foley

be placed through BioPoint. Attis initially agreed but then

proposed to Autenrieth that Dickhaut handle the placement not

through BioPoint but through Catapult, because "[h]e need[ed] the

headcount." When Autenrieth followed up, Attis stated that she

- 5 - "[didn't] want to put anything in writing over [her] system" and

that Dickhaut (her fiancé) "really need[ed] a deal." Catapult

ended up placing Foley at Moderna, and he was the company's first-

ever life sciences placement.

In February 2018, Autenrieth became a talent acquisition

consultant at Vedanta, a biotechnology company. Although

Autenrieth relied on Dickhaut to place several "somewhat entry

level" contractor roles at Vedanta, Autenrieth did not think

Catapult had the ability at that point to fill higher-level

positions.

Soon, though, Catapult did begin to make a few of those

high-level placements at Vedanta. In March 2018, Dickhaut

identified a candidate for a quality-assurance life sciences role

at Vedanta. Dickhaut told his boss that his fiancée Attis, though

she was at BioPoint, had "helped [him] with the search" and was

"pitching in a little bit too via LinkedIn."

Dickhaut continued to make inroads at Vedanta. In

December 2018, Catapult and Vedanta entered into a "managed

services provider" ("MSP") agreement, which had been pitched by

Dickhaut, under which Catapult would manage all of Vedanta's

candidates' labor contracts. That agreement also granted Catapult

"master vendor status" with Vedanta, such that Catapult had the

first opportunity to fill openings at Vedanta.

- 6 - Under the MSP agreement, in January 2019, Vedanta had an

opening for a "study team leader." Dickhaut asked Attis to give

him both BioPoint's bill and pay rates for that role and also to

give him names of suitable potential candidates from information

she had at BioPoint. Attis provided him with the rates and said

she "[couldn't] give [him] names from [BioPoint's] system" because

"[p]eople ha[d] [gone] to jail for that."

Around this time, Attis suggested to her supervisors the

possibility of BioPoint's "supporting [Dickhaut's] hiring needs

for [Vedanta]" by becoming a vendor through their MSP. Attis's

superiors at BioPoint not only rejected this proposal, but they

also warned Attis that she was not allowed to share any of

BioPoint's confidential information with Dickhaut.

Attis did not heed that warning. In January 2019,

Dickhaut asked her what BioPoint's pay rate would be for a clinical

operations director, and she responded that she would "look up"

someone in a comparable role whom she had just placed through

BioPoint. Attis also discussed candidates for Vedanta positions,

apparently obtained from BioPoint's system, with Dickhaut.

Indeed, at one point, after Dickhaut had moved forward with a

candidate without consulting Attis, Attis told him that "[n]ext

time" he should "wait for [her] to check [her] system."

In March 2019, Vedanta needed to hire a medical director.

When Dickhaut was having trouble finding someone, he asked Attis

- 7 - for help. Attis again asked her supervisors whether BioPoint could

partner with Catapult to help fill that role, and they once again

refused, reiterating that there was a "conflict of interest" and

that they had "no interest in partnering with a competitor."

Dickhaut became "furious" when Attis conveyed this conversation to

him, and he "criticiz[ed] [Attis] and BioPoint for not working

with him." Trying to appease Dickhaut, Attis wrote him: "I

understand if you don't want to work with BioPoint, but I do have

those two candidates set aside for you."

Using BioPoint's database information provided by Attis,

Dickhaut went on to place three candidates in the medical director

role, each of whom had been or was being vetted by BioPoint: Chris

Da Costa, Stephen Haworth, and Candida Fratazzi. In fact, BioPoint

had been about to place Fratazzi at Shire, a pharmaceutical company

and Attis's biggest client, for a pay rate of $250 an hour, when

Fratazzi suddenly withdrew from consideration because she had

accepted a position at Vedanta for a pay rate of $300 an hour. A

few days before Fratazzi withdrew, Dickhaut asked Attis for the

bill rates of Takeda, a company that was in the process of

acquiring Shire.

BioPoint terminated Attis's employment on December 4,

2019, after discovering that she had helped Dickhaut place Fratazzi

at Vedanta. In May 2020, Vedanta terminated its MSP agreement

with Catapult.

- 8 - On January 21, 2020, BioPoint sued Catapult, Dickhaut,

and Attis in the U.S. District Court in Massachusetts. In March,

the court dismissed without prejudice BioPoint's claims against

Attis so that BioPoint could refile them in state court, as

required by her employment contract. BioPoint then filed a four-

count amended complaint against Catapult and Dickhaut, bringing

three Massachusetts state-law claims and one federal claim, under

federal question and supplemental jurisdiction. BioPoint alleged

(1) misappropriation of trade secrets in violation of the

Massachusetts Uniform Trade Secrets Act ("MUTSA"), Mass. Gen.

Laws. ch. 93 § 42, (2) misappropriation of trade secrets in

violation of the federal Defend Trade Secrets Act ("DTSA"), 18

U.S.C. §§ 1831-39, (3) tortious interference with prospective

relationships in violation of Massachusetts common law, and (4)

unfair and deceptive trade practices in violation of chapter 93A.

In the complaint, BioPoint requested damages under MUTSA and DTSA

as well as "all damages authorized by" chapter 93A.

Catapult filed a motion to dismiss the complaint in full,

which the court denied, and the case proceeded to discovery and

ultimately to trial. On December 22, 2021, Catapult filed a motion

in limine to exclude at trial, as a discovery sanction, any damages

calculations not yet disclosed by BioPoint. The court granted the

motion on January 4, 2022, ruling that "to the extent that lost

profits damages were not disclosed during discovery, they w[ould]

- 9 - be excluded," and that, because "unjust enrichment is an equitable

remedy to which the right to a jury trial does not attach, . . .

[d]isgorgement damages . . . [would] be reserved to the court and

not presented to the jury." On May 10, 2022, Catapult submitted

a letter to the court seeking clarification as to the scope of the

jury trial in light of the court's ruling. The court issued this

order on May 11, 2022: "As the only lost profits evidence disclosed

during discovery concerns Ms. Fratazzi, the scope of the jury trial

will be limited to issues regarding her placement. Depending on

the jury's finding of liability, the court may confer with the

parties as to the necessity for further proceedings." BioPoint

filed a "motion for reconsideration and/or clarification," arguing

that "[r]estricting the liability phase of this case to Fratazzi’s

placement" would mischaracterize the complaint, lead to the

exclusion of "key evidence," and "prevent BioPoint from proving

the claims which could lead the Court to award disgorgement." In

response, the court issued the following order on May 13:

The jury will be asked to decide only questions at law, and issues of equity will be reserved for the court. Damages at trial shall be limited to that of BioPoint's asserted lost profits disclosed during discovery, as the court previously ruled. The court will confer with counsel . . . as to the scope and content of the liability issue to be presented to the jury. To that end, parties shall submit their respective proposed jury verdict slips to the court . . . .

- 10 - At a hearing on May 19, the court explained how it would

divide the claims between a jury trial on legal claims and a

possible subsequent bench trial on claims for equitable relief.

Neither party objected. The court then issued its order:

Having carefully considered the contours of the dispute in this case and the parties' respective positions, the court determines that the issues of liability at law -- that is, on plaintiff's claims for trade secret misappropriation and tortious interference -- will be presented at the jury trial. The bulk of the asserted damages (with the exception as to Ms. Fratazzi) are those sounding in equity and they will be considered together with the equitable unfair competition claim at a subsequent bench proceeding, should the jury return a finding of liability.

Both parties again did not object.

Before and during the trial, the court requested that

the parties submit proposed special verdict forms ("verdict

slips"). The court then issued a verdict slip for the parties'

consideration, which, the court explained, was drafted so that all

would know "what exactly the jury decided to do with respect to

various aspects of information that are being claimed as trade

secrets." The court rejected Catapult's objection to the verdict

slip on the grounds that it did not require "the jury to identify

what information it finds is a trade secret" and did not ask the

jury to determine whether allegedly misappropriated trade secrets

were actually used by Catapult.

- 11 - At the jury trial, where Catapult's liability for lost

profits was, due to BioPoint's discovery violation, limited to

damages arising from Fratazzi's placement, BioPoint also presented

evidence as to other candidates and clients. The verdict slip

then asked the jury to determine whether Catapult had

misappropriated BioPoint's trade secrets "concerning" five

candidates, including Fratazzi, and two client firms, including

Vedanta. The jury was given the standard Massachusetts trade

secrets misappropriation instructions without any differentiation

as to the causes of action stated.

The jury found that Catapult had misappropriated trade

secrets concerning the firms of Vedanta and Shire/Takeda and also

concerning candidate Fratazzi as well as other individual

candidates, and that it had tortiously interfered with BioPoint's

business relationship with Fratazzi. The jury awarded BioPoint

$312,000 in damages "as reasonable compensation for the damages it

incurred in the placement of Dr. Fratazzi because of Andrew

Dickhaut's and Catapult's conduct[.]" That lost-profits number

was calculated from BioPoint's disclosure that it had expected to

make $5,000 per week on Fratazzi's placement at Shire.

The court then held, as it had said it would, a bench

trial on the issues of whether Catapult had been unjustly enriched

by its misappropriation of BioPoint's trade secrets, whether

Catapult had engaged in unfair and deceptive trade practices,

- 12 - whether that conduct was knowing and willful, and what damages

were warranted. After the trial, the court issued a carefully

reasoned twenty-nine-page order stating its findings of fact,

conclusions of law, and order granting awards on the equitable

claims.

In its Findings of Fact, Conclusions of Law, and Order,

the court began by carefully noting the jury's findings:

At the conclusion of a June 14-22, 2022[,] trial, a jury found defendants Andrew Dickhaut and [Catapult] liable for the misappropriation of trade secrets from plaintiff [BioPoint]. Catapult and BioPoint are competitors in the highly lucrative life sciences consultant search market. The jury found that Catapult and Dickhaut had misappropriated trade secrets with respect to three candidate consultants recruited by BioPoint and had tortiously interfered with BioPoint's prospective business relationships with one of those candidates. The jury awarded BioPoint $312,000 on the successful tortious interference claim. The jury also found that Catapult and Dickhaut misappropriated BioPoint’s trade secrets concerning two of its prospective clients, Vedanta and Shire. Following the jury trial, a two-day bench trial was convened on October 18-19, 2022, to try BioPoint’s remaining equitable claims for unjust enrichment, violations of the Massachusetts Fair Business Practices Act, Mass. Gen. Laws ch. 93A, and for an award of enhanced damages and attorneys' fees.

Turning to the requested equitable relief before the court of

unjust enrichment, the court correctly stated: "The unjust

enrichment 'attributable' to trade secret misappropriation is

distinct from the issue of whether a defendant appropriated a trade

- 13 - secret." The court stressed that "Catapult's use of BioPoint's

trade secret ha[d] already been determined by the jury," thus

laying the basis for an unjust enrichment award by the court. In

weighing whether to make such an award, it stated that:

One theory of unjust enrichment is a plaintiff’s trade secret giving a defendant a head start. To establish that a misappropriated trade secret gave a defendant a head start, plaintiff must proffer evidence "(1) that the alleged misappropriation gave [defendant] a head start and (2) that the head start helped to bring about certain earnings over the following months or years." Alifax Holding Spa v. Alcor Sci. Inc., 2021 WL 3911258, at *1 (D.R.I. Sept. 1, 2021).

Later the court also noted as to the chapter 93A claims:

To determine whether conduct violates Chapter 93A, the court considers "(1) whether the practice . . . is within at least the penumbra of some common-law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; [and] (3) whether it causes substantial injury to consumers (or competitors or other businessmen)." PMP Assocs., Inc. v. Globe Newspaper Co., 366 Mass 593, 596 (1975). . . . A finding of trade secret misappropriation is also sufficient to establish an unfair or deceptive act under Chapter 93A. See Mass. Eye & Ear Infirmary v. QLT Phototherapeutics, Inc., 412 F.3d 215, 243 (1st Cir. 2005) ("Under Massachusetts law, misappropriation of trade secrets alone can constitute a violation of Chapter 93A."); see also Prescott v. Morton Int'l, Inc., 769 F. Supp. 404, 407 (D. Mass. 1990) ("The standards for finding misappropriation of a trade secret provide the criteria for finding an unfair or deceptive act."); Juncker Assocs. & Co. v. Enes, 2002 WL 31104013, at *4 (Mass. Sup. Ct. Sept. 5, 2002) (same). The same is true with

- 14 - respect to a jury’s finding of tortious interference. See People's Choice Mortg., Inc. v. Premium Cap. Funding, LLC, 2010 WL 1267373, at *18 (Mass. Super. Ct. Mar. 31, 2010) ("Topdot’s actions constituted a tortious interference with an advantageous business relationship. Thus, Topdot’s actions were within a concept of unfairness established at common-law. For this reason, the court concludes that Topdot's actions merit relief under [Mass. Gen. Laws ch.] 93A, § 11.").

Under the law and under the findings set forth in the judge's

order, the court then stated: "The court finds that the jury's

verdict amply supports a determination that Catapult violated

Chapter 93A and that no further findings of fact on this issue are

required." BioPoint, Inc. v. Dickhaut, No. 20-10118, 2023 WL

3071422, at *8 (D. Mass. Apr. 25, 2023) (emphasis added).

The court held accordingly: (1) citing to a Rhode Island

case on the head start doctrine, that BioPoint was entitled to the

entirety of Catapult's profits arising from its relationship with

Vedanta, because those profits "were made possible because of

BioPoint's trade secret information and therefore amount to unjust

enrichment"; and (2) that Catapult was liable under chapter 93A

and that its conduct was knowing and willful under the statute,

which authorized an award of exemplary damages. The court also

held that "Dickhaut at all times was acting within the scope of

his employment for the benefit of Catapult" and that "Dickhaut's

conduct and culpable state of mind [were] imputable to Catapult as

- 15 - his employer under the long-established principles of vicarious

liability." As to damages, the court awarded treble damages

jointly against Dickhaut and Catapult, totaling $5,061,444:

Catapult's Vedanta profits, multiplied by three, plus the jury's

award for Catapult's lost profits on Fratazzi, multiplied by three.

Catapult's Vedanta profits included the profits made from placing

Fratazzi at Vedanta, such that BioPoint was awarded both lost

profits related to Fratazzi (by the jury) and unjust enrichment

based on Catapult's profits from placing Fratazzi at Vedanta (by

the court).

In May 2023, after entry of final judgment, Catapult

filed a motion requesting judgment as a matter of law, a new trial,

remittitur, and amendment of the judgment. The court denied the

motion, and Catapult timely appealed to this court.

II.

We analyze first the most important issues presented by

the appeal.

A. Unjust enrichment and the court's award based on the head start doctrine

Catapult argues that the district court erred in

awarding to BioPoint as unjust enrichment the entirety of the

profits that it derived from its relationship with Vedanta.

When evaluating the district court's unjust enrichment

award, we review the court's factual findings for clear error and

- 16 - its legal conclusions de novo. See SEC v. Sanchez-Diaz, 88 F.4th

81, 87 n.2 (1st Cir. 2023).

Catapult argues to us, but did not timely argue to the

district court, that the district court relied on an inapplicable

legal theory, the "head start" doctrine, to justify the award of

the entire Vedanta profits. The district court stated that it

found, "[c]onsistent with the jury's verdict" that Catapult had

misappropriated some of BioPoint's trade secrets, and that

Catapult's misappropriation of those trade secrets "gave [it] a

head start in developing a working relationship with Vedanta,

enabling it to obtain the MSP agreement," such that Catapult was

unjustly enriched to the extent that it profited from that

relationship. In its rulings of law, the court noted that "[o]ne

theory of unjust enrichment is a plaintiff's trade secret giving

a defendant a head start," and cited Alifax Holding Spa v. Alcor

Sci. Inc., No. 14-440, 2021 WL 3911258 (D.R.I. Sept. 1, 2021), for

the elements of that theory. The court then described in its

findings of fact1 how Catapult had obtained and used information

that Dickhaut and his fiancée Attis had misappropriated from

BioPoint in order to develop and maintain a working relationship

with Vedanta. Rejecting Catapult's argument that BioPoint could

1 The court also noted again that "[t]he court has discretion whether to apply a jury's factual findings to a Chapter 93A claim or whether to ask the jury for a non-binding advisory opinion with respect to the chapter 93A claim."

- 17 - not recover as unjust enrichment profits from placements that had

not been submitted to the jury, the court held that "[b]ut for the

misappropriation of BioPoint's trade secrets, there would have

been no ongoing relationship between Catapult and Vedanta" and

that "Catapult's entire relationship with Vedanta was enabled and

sustained with BioPoint information." That conclusion, the court

noted, was "further supported by the fact that Catapult did not

make any further placements at Vedanta after BioPoint terminated

Attis."

Catapult argues both that, in this Massachusetts case,

the court erred in relying on Rhode Island law, see BioPoint, Inc.,

2023 WL 3071422, at *6 (citing Alifax Holding Spa, 2021 WL 3911258,

at *1), and that under Massachusetts law the head start doctrine

is limited to certain manufactured product trade secret cases.

As the Massachusetts Supreme Judicial Court ("SJC") has

explained, the "'head start rule' has no application" in a case in

which the "trade secret . . . has never appeared in any marketed

product or otherwise lawfully been made publicly accessible." USM

Corp. v. Marson Fastener Corp., 392 Mass. 334, 354 (1984) (citing

Jet Spray Cooler, Inc. v. Crampton, 377 Mass. 159, 171 n.11 (1979)

("Generally, the 'head start rule' has been applied in cases where

the plaintiff's product, including the trade secret, has been

marketed.")). It is possible to read the SJC cases as establishing

that in product trade secret cases alleging unjust enrichment,

- 18 - such damages under the head start doctrine are limited to the time

that it would take to reverse engineer, or otherwise legitimately

discover, the secret in the public domain. The rationale for this

limitation is that "[t]he marketing of the product gives

competitors a legitimate opportunity to study the product and to

learn the principles of the trade secret through reverse

engineering or similar procedures." Jet Spray, 377 Mass. at 171

n.11.

Regardless, Catapult did not argue in a timely fashion

to the district court either of its two points. In its proposed

findings of fact and conclusions of law following the bench trial,

BioPoint argued:

Catapult's Vedanta profits [could] also be disgorged based on an unfair "head start" theory. []"Head start" damages refer to the development and delay costs defendants avoid through misappropriation that can be inferred from the evidence presented. See Alifax Holding Sp[a] v. Alcor Sci. Inc., 404 F. Supp. 3d 552, 577-78 (D.R.I. 2019) (explaining that one year of profits attributable to the defendant's unfair head start, gained through its misappropriation, was a rational measure of damages).

In Catapult's reply to BioPoint's proposed rulings, it did not

argue either of the two points it now asserts on appeal, noting

instead that "Autenreith's testimony . . . destroy[ed] BioPoint's

'head start' argument. . . . Catapult's 'head start' was

Dickhaut's relationship with Autenreith -- not BioPoint's alleged

- 19 - trade secrets."2 Catapult did not, then, make a legal argument

that the head start doctrine was not applicable, but argued,

rather, that it was contradicted by the evidence. The district

court then issued its findings of fact and rulings of law, in which

it cited the Alifax case and held that the Catapult's

misappropriation of trade secrets gave it a head start. In

Catapult's postjudgment motion, it briefly stated that the head

start rule did not apply to this case, but failed to cite any

authority for this statement, as BioPoint noted in its opposition

to that motion. Because Catapult "did not adequately

present . . . to the district court" the argument that

Massachusetts law limits the head start rule in unjust enrichment

cases to contexts involving manufactured products under Jet Spray

and USM, "[it] has waived" the argument. See Kelly v. Riverside

Partners, LLC, 964 F.3d 107, 117 (1st Cir. 2020).

The district court may well have extended Massachusetts

law as to unjust enrichment as set forth in Jet Spray and USM,

which federal courts usually may not do if a proper objection is

made and preserved. See CVS Pharmacy, Inc. v. Lavin, 951 F.3d 50,

58 (1st Cir. 2020) ("[A federal court] must 'take care not to

2 BioPoint did not argue to the district court the theory asserted by the dissent that the jury's finding of no misappropriation as to one of the Vedanta candidates precluded the court from determining that there was a causal relationship between Catapult's misappropriation of trade secrets and its profits from the Vedanta relationship.

- 20 - extend state law beyond its well-marked boundaries in an

area . . . that is quintessentially the province of state

courts.'" (omission in original) (quoting Markham v. Fay, 74 F.3d

1347, 1356 (1st Cir. 1996))). We leave that issue for a case in

which it is properly raised.3

We turn to Catapult's other, not waived, attacks. Based

on the fact that, in its special verdict form, the jury found that

BioPoint had proven misappropriation of trade secrets concerning

only three out of the five candidates that BioPoint had chosen to

3 It is clear that it is not the law of Massachusetts that a jury which has found misappropriation of a plaintiff's trade secrets (but has rejected certain claims of misappropriation) limits the court from making a full award of the defendant's unjust enrichment and/or chapter 93A violations. Nor does it limit the use of the head start doctrine against a defendant whose misappropriation gave it a head start in a relevant new business it would not otherwise have had. In Jet Spray, the SJC noted that "[a]n award to a plaintiff of the defendant's net profits is made primarily to ensure that the defendant is not unjustly enriched as a result of his wrongful acts," such that "the plaintiff may actually recover far more than its actual loss." 377 Mass. at 159, 182. The court next stated: Here, the plaintiffs have been awarded the entirety of the defendants' net corporate profits from 1964 to 1975. This award is made because it is impossible for the defendants to segregate the portion of their profits which is attributable to the misappropriated trade secrets from the portion of their profits which may be attributable to other factors.

Id. at 183; see also Governo L. Firm LLC v. Bergeron, 166 N.E.3d 416, 428 (2021) ("[O]bject of restitution in certain contexts is to eliminate profit from wrongdoing[.]" (citing Restatement (Third) of Restitution and Unjust Enrichment § 51 (2011))).

- 21 - submit to the jury (Candida Fratazzi, Steven Haworth, and Chris Da

Costa), Catapult argues there was no basis for the court to award

all of the Vedanta profits as unjust enrichment. Catapult argues

that the only damages that can be awarded as unjust enrichment are

those arising from life sciences placements as to which the jury

found that Catapult had misappropriated trade secrets.

This argument misunderstands the law, the procedural

history of this case, and the jury verdict. The district court

ruled, without objection, that "the scope of the jury trial w[ould]

be limited to issues regarding [the] placement" of Fratazzi,

consistent with its prior ruling sanctioning BioPoint for its

discovery violation. The court ruled further that "[t]he bulk of

the asserted damages (with the exception as to Ms. Fratazzi) [were]

those sounding in equity," and that those would "be

considered . . . at a subsequent bench proceeding, should the jury

return a finding of liability." The court explained accordingly

at a hearing before the jury trial took place that if the jury

returned a finding of liability as to Fratazzi, the court would

"sort out the rest" at a subsequent bench trial. The parties

assented. The jury did find trade-secrets misappropriation as to

Fratazzi, so Catapult cannot have been surprised that the district

court did exactly what it said that it would do by awarding

disgorgement damages that exceeded the lost profits arising from

the Fratazzi placement.

- 22 - We repeat that the court correctly noted in its rulings

of law that "[t]he unjust enrichment 'attributable' to trade secret

misappropriation is distinct from the issue of whether a defendant

[mis]appropriated a trade secret." The jury had already determined

that Catapult was liable with respect to the placement of Fratazzi,

and the amount of gain (not including lost profits) that was

attributable to, or which arose on account of, Catapult's improper

conduct was for the court to decide as an equitable matter.4 The

court did not err in finding that but for Catapult's

misappropriation of BioPoint's trade secrets, it would not have

had a business relationship with Vedanta, such that all of the

Vedanta profits arose on account of Catapult's misappropriation

and thus were recoverable as unjust enrichment.5

In the special verdict form, the jury found, too, that

Catapult had misappropriated trade secrets concerning Vedanta,

separately from its finding of misappropriation concerning

Fratazzi and other candidates. In Catapult's filed objections to

4 Indeed, under MUTSA, damages for misappropriation "can include both the actual loss caused by misappropriation and the unjust enrichment caused by misappropriation that is not taken into account in computing actual loss." Mass. Gen. Laws ch. 93, § 42B(a) (emphasis added); see also 18 U.S.C. § 8 1836(b)(3)(B)(i)(II) (similar language in DTSA). 5 The court's citation to a case under Rhode Island law and its invocation of the head start doctrine may have been inapposite, but this arguable error, if any, was at most harmless error. The court's reasoning was sound and grounded in Massachusetts unjust enrichment law and the text of MUTSA and DTSA.

- 23 - the court's draft verdict slip, Catapult in fact agreed with the

court that the jury should be asked for a finding regarding

misappropriation as to Vedanta specifically, separately from its

findings regarding misappropriation as to individual candidates.6

By negative implication, Catapult admitted that the equitable

claim regarding Vedanta was not coextensive with the claim

regarding Fratazzi and the other candidates.7 And the jury

6 Catapult did request, by contrast, that the jury not be asked whether Catapult had misappropriated trade secrets concerning Moderna, because "[t]he equitable claim for Moderna is the same as [the claim for] Chris Foley," whom the verdict slip already included. 7 Indeed, "Massachusetts law provides two distinct theories of recovery based on the improper use of confidential information: misappropriation of trade secrets and unjust enrichment." Mass. Eye & Ear Infirmary v. QLT Phototherapeutics, Inc., 552 F.3d 47, 61 (1st Cir. 2009) (citing Jet Spray Cooler, Inc. v. Crampton, 361 Mass. 385, 282 (1972) and USM Corp. v. Marson Fastener Corp., 379 Mass. 90, 393 (1979)). "Thus, the entry of judgment with respect to [a] trade secrets claim d[oes] not legally compel the same result with respect to [an] unjust enrichment claim." Id. The case Specialized Technology Resources, Inc. v. JPS Elastomerics Corp., 80 Mass. App. Ct. 841 (2011), is also relevant to the issue of separate jury and judge findings in trade secret cases. There, the plaintiff had asserted a claim for misappropriation of trade secrets under the common law and a claim under chapter 93A. Id. at 842. The jury found in favor of the defendants on the common-law misappropriation claim, but the judge, in a subsequent bench trial, disagreed with the jury and found the defendants liable for misappropriating trade secrets, awarding damages under chapter 93A. Id. The Massachusetts Appeals Court affirmed, holding, in accordance with prior caselaw, that "a judge who has reserved a c. 93A claim is [not] bound by [the] jury's factual findings[.]" Id. at 846. The court also affirmed the award of disgorgement of profits under chapter 93A. Id. at 850. Citing Jet Spray and the

- 24 - subsequently found that Catapult had misappropriated trade secrets

concerning Vedanta, separately from its finding that Catapult had

misappropriated trade secrets concerning three individual

candidates. The district court appropriately relied on this jury

finding, which should not be read as redundant, in disgorging the

Vedanta profits.

We do agree with Catapult, however, that "[t]he

disgorged profits from the placement of Dr. Fratazzi" are

"duplicative of BioPoint's lost profits claim." Under the

governing law, BioPoint may not recover both the lost profits

associated with Fratazzi and the unjust enrichment that accrued to

Catapult as a result of her placement. See 18 U.S.C.

§ 1836(b)(3)(B)(i) (providing for "damages for actual loss caused

by the misappropriation of the trade secret; and . . . damages for

Restatement (Third) of Unfair Competition, the court noted that the plaintiff was "entitled to the profit he would have made had his secret not been unlawfully used, but not less than the monetary gain which the defendant reaped from his improper acts." Id. Rejecting the defendants' argument that the plaintiff had not established "the requisite monetary harm," the court found that "the precise scope of [plaintiff's] monetary loss [was] difficult to quantify," and, "[h]aving satisfied the requirement that it demonstrate some monetary loss, the use of disgorgement of profits to compensate [plaintiff] for the defendants' misuse of the trade secret was entirely appropriate." Id. (citing Jet Spray, 377 Mass. at 170-71). This case shows that the court, when considering a chapter 93A claim, may adopt factual findings that contradict the jury's prior findings with respect to trade secrets misappropriation, and the court may award disgorgement for trade-secret misappropriation under chapter 93A.

- 25 - any unjust enrichment caused by the misappropriation of the trade

secret that is not addressed in computing damages for actual

loss"); Mass. Gen. Laws ch. 93, § 42(B)(a) ("Damages can include

both actual loss caused by misappropriation and the unjust

enrichment caused by misappropriation that is not taken into

account computing actual loss."); Jet Spray, 377 Mass. at 170 ("Of

course, a plaintiff is not entitled to both the profits made by

the defendant and his own lost profits."). The district court

awarded $52,356 as disgorged profits for the placement of Fratazzi,

and then trebled that sum, for a total of $157,068. Because this

constituted clear error, the unjust enrichment award must be

reduced by that amount.

B. Dickhaut's joint and several liability

Catapult further contends that the district court

improperly disgorged Dickhaut of unreceived profits when it held

him jointly and severally liable for the unjust enrichment award.

We agree that holding an individual like Dickhaut jointly and

severally liable for the entirety of his employer's unjust

enrichment is a bridge too far.

After the district court awarded damages "jointly

against both Dickhaut and Catapult," the defendants asked the court

to "specify that the unjust enrichment award [was] against Catapult

only." Citing Liu v. SEC, the defendants argued that Dickhaut

could not be disgorged of profits he never received. 591 U.S. 71

- 26 - (2020). The district court disagreed, maintaining Dickhaut's

joint-and-several liability because he "collaborated with and

ranks high in the firm." According to the court, Liu "did not

address situations in which multiple parties engage in concerted

wrongdoing" and so provided no obstacle to imposing joint-and-

several liability on Dickhaut.

We read Liu differently. Liu explicitly recognized

that -- notwithstanding the general rule against joint-and-several

liability for profits that have accrued to another, see id. at

82-83 (citing Belknap v. Schild, 161 U.S. 10, 25–26 (1896);

Keystone Mfg. Co. v. Adams, 151 U.S. 139, 148 (1894); Jennings v.

Carson, 4 Cranch 2, 21 (1807)) -- the common law permitted "some

flexibility to impose collective liability" in equity,

specifically on "partners engaged in concerted wrongdoing," id. at

90-91 (citing Ambler v. Whipple, 87 U.S. 546, 559 (1874)). Though

the Liu Court admittedly declined to "wade into all the

circumstances" in which the concerted-wrongdoing exception might

apply, it pointed to several factors that might render joint-and-

several liability inappropriate. Id. at 91. These circumstances

included where the defendants' "finances were not commingled,"

where "one [defendant] did not enjoy the fruits of the scheme,"

where "one [defendant] was a mere passive recipient of profits,"

and where "other circumstances would render a joint-and-several

disgorgement order unjust." Id. In addition to these guideposts,

- 27 - the Liu Court clarified the structure of the analysis: lower courts

must determine, based on the facts of each case, whether joint-

and-several liability would be consistent with traditional

equitable principles at common law. Id.

Here, BioPoint does not dispute that the profits

attributable to trade-secret misappropriation accrued to Catapult

and not to Dickhaut. Thus, the district court should have analyzed

whether -- given factors like Dickhaut's relationship to Catapult,

his role in the scheme, his enjoyment (or lack thereof) of the

profits, and his status as an individual -- joint-and-several

liability would be consistent with traditional equitable

principles at common law. The district court did not conduct this

inquiry.8 Examining the issue ourselves, we conclude that imposing

joint-and-several liability on Dickhaut is inconsistent with

traditional equitable principles.

We begin with Liu itself. Multiple red flags identified

in Liu are present here. BioPoint does not allege, and there is

no reason to believe, that Catapult and Dickhaut commingled

8 To support its position that "parties can be held joint- and-severally liable where the individual 'collaborated with and ranks high in the firm,'" the district court cited only an unpublished, out-of-circuit, district-court case, SEC v. Bahgat, 17-CV-9721, 2023 WL 3491733 (W.D.N.Y. May 17, 2023). Bahgat itself did not contend with Liu; it did not conduct an analysis of equitable powers at common law; and it involved, in stark contrast to Catapult and Dickhaut, a "managing member," id. at *2, and "a company that [he] owned," Complaint at 2, Bahgat, 2023 WL 3491733 (No. 17-CV-971).

- 28 - finances. And other than through his salary and commissions,

evidence of which the district court excluded from trial, Dickhaut

did not receive any profits or otherwise enjoy the fruits of the

scheme.

Massachusetts state courts have rejected joint-and-

several liability in similar circumstances before. In USM Corp.,

the SJC vacated the imposition of joint-and-several liability on

an employee who had misappropriated trade secrets because the

employee had "not been unjustly enriched by the use of [the] trade

secret." 392 Mass. at 340. The SJC compared the USM defendant to

the "stockholders, officers[,] and directors" in Jet Spray Cooler,

361 Mass. at 844, who had reaped "the benefits of [trade] secrets"

and for whom joint-and-several liability had been appropriate.

Id. (quoting Jet Spray Cooler, 361 Mass. at 844). The control

Dickhaut exercised over Catapult and the benefits he received are

more similar to USM than to Jet Spray Cooler. Dickhaut, a regional

manager for a national company, exercised far less control over

his entity co-defendant than did the stockholder-officer-director

defendants in Jet Spray Cooler. And, as in USM, the district court

did not address whether Dickhaut benefited from the illegal scheme

and, if so, to what extent.

No other circuit has applied Liu's concerted-wrongdoing

exception to a non-owner employee as minor as Dickhaut. In SEC v.

Johnson, the Fourth Circuit allowed the imposition of

- 29 - joint-and-several liability on an entity and an individual who was

the entity's control person and owner. 43 F.4th 382, 389-93 (4th

Cir. 2022). In SEC v. World Tree Financial, LLC, the Fifth Circuit

allowed joint-and-several liability on an entity and an individual

who was the entity's 60% owner and CEO. 43 F.4th 448, 448, 467

n.15 (5th Cir. 2022). In Integrity Advance, LLC v. CFPB, the Tenth

Circuit allowed joint-and-several liability on an entity and an

individual who was the entity's sole employee, founder, president,

CEO, and majority shareholder. 48 F.4th 1161, 1165, 1177 n.21

(10th Cir. 2022); see Petitioner's Reply Brief at 13-14, Integrity

Advance, 48 F.4th 1161 (No. 21-9521); see also SEC v. Camarco, No.

19-1486, 2021 WL 5985058, at *18 (10th Cir. Dec. 16, 2021)

(rejecting joint-and-several liability where non-profiting

defendant merely "indirectly benefited" from profiting defendant's

wrongdoing). Each of these defendants was more closely related to

and exerted more control over the profiting entity than did

Dickhaut.

We need not and cannot define all the facts and

relationships that would render defendants "partners engaged in

concerted wrongdoing" such that joint-and-several liability would

be appropriate. It is sufficient, for today, to decide that the

district court exceeded its equitable powers when it imposed

joint-and-several liability on an individual, non-owner,

non-director employee, without concluding whether or how much the

- 30 - employee benefited from the scheme, merely because the employee

"collaborated with and ranks high" in the entity that profited

from the wrongdoing. Given this conclusion, Dickhaut cannot be

held severally liable for the entirety of Catapult's unjust

enrichment. Due to the state of the record, it is difficult from

our vantage to calculate the amount by which Dickhaut was unjustly

enriched through his earnings. On remand, however, it ought to be

a simple matter for the parties to agree on these earnings. If

not, the district court will need to conduct further proceedings.

C. Catapult's other arguments

We address and reject Catapult's remaining arguments.

First, Catapult argues that the district court should

have granted its motion for a new trial under Rule 59(a) because

of alleged errors in the jury's special verdict form. We review

for abuse of discretion the district court's denial of such a

motion, which should be granted "only 'if the verdict is against

the law, against the weight of the credible evidence, or tantamount

to a miscarriage of justice.'" Sánchez v. Foley, 972 F.3d 1, 16

(1st Cir. 2020) (quoting Thomas & Betts Corp. v. New Albertson's,

Inc., 915 F.3d 36, 60 (1st Cir. 2019)). Legal error does not

warrant a new trial if it is harmless (or not prejudicial) to the

moving party. See, e.g., Granfield v. CSX Transp., Inc., 597 F.3d

474, 488 (1st Cir. 2010) ("We have sent cases back for a new trial

when we have found the trial court abused its discretion in not

- 31 - granting a new trial where it had admitted irrelevant and highly

prejudicial damages evidence which tainted the award."); Dall v.

Coffin, 970 F.2d 964, 969 (1st Cir. 1992) ("[W]e have held that a

party seeking a new trial based on nondisclosure by a juror must

'demonstrate actual prejudice or bias.'" (quoting United States v.

Aponte-Suarez, 905 F.2d 483, 492 (1st Cir. 1990))).

Catapult argues that the district court abused its

discretion by issuing a special verdict form that did not require

the jury to (1) "make specific findings regarding the trade secrets

that were allegedly misappropriated," or (2) to determine that

Catapult had actually used the trade secrets that it

misappropriated.

"The questions in a special verdict form must be

'reasonably capable of an interpretation that would allow the jury

to address all factual issues essential to judgment.'" Johnson v.

Teamsters Loc. 559, 102 F.3d 21, 28 (1st Cir. 1996) (quoting United

States v. Real Property Located at 20832 Big Rock Dr., 51 F.3d

1402, 1408 (9th Cir. 1995)). "[T]he court's instructions to the

jury" and "the special verdict form are examined as a whole to

determine if they fairly presented the issues to the jury." Id.

We hold that there was no error in the special verdict

form, because, read in context with the jury instructions, it

enabled the jury to determine all the relevant factual issues.

The court provided the definition of a trade secret and instructed

- 32 - the jury that BioPoint, in order to prevail, had to show by a

preponderance of the evidence that its "asserted information

constituted confidential trade secrets" and that "Catapult [had]

misappropriated and used this trade secret information [w]ithout

BioPoint's permission." Neither party objected to those

instructions. The jury then indicated in the special verdict form

that Catapult had "misappropriated BioPoint's trade secrets

concerning" certain "individuals/entities," including Fratazzi,

whom Catapult had placed at Vedanta. Considered with the jury

instructions, the verdict form adequately presented the issues to

the jury.

Second, Catapult argues that the district court erred by

imposing exemplary damages pursuant to chapter 93A because, as

Catapult argues, MUTSA supersedes and prevents the award of damages

under chapter 93A in this case. Section 42F(a) of MUTSA provides

that MUTSA "supersede[s] any conflicting laws of the commonwealth

providing civil remedies for the misappropriation of a trade

secret." Mass. Gen. Laws ch. 93, § 42F(a). In contrast to chapter

93A, MUTSA requires a finding of maliciousness to award exemplary

damages for trade secret misappropriation and, even then, permits

only double, not treble, damages. Mass. Gen. Laws ch. 93, § 42B;

see Mass. Gen. Laws ch. 93A, § 11.

We will assume arguendo in Catapult's favor that

BioPoint's MUTSA claim is not barred by MUTSA's retroactivity

- 33 - clause.9 We find, in any case, that Catapult did not preserve this

argument at the district court. Catapult raised this argument for

the first time in its postjudgment motion, and the district court

ruled, correctly, that Catapult had forfeited the argument by

failing to raise it earlier. Catapult did argue during the bench

trial that a finding of maliciousness was required for an award of

exemplary damages under MUTSA, but it did not timely argue the

separate issue of whether MUTSA would supersede chapter 93A in

this case. "[L]egal arguments are preserved only when 'raised

squarely' in the district court," United States v. Lindsey, 3 F.4th

32, 41 (1st Cir. 2021) (quoting United States v. Peake, 874 F.3d

65, 72 (1st Cir. 2017)), which Catapult did not do.

Because the argument was not preserved, we review it for

plain error. See Triantos v. Guaetta & Benson, LLC, 91 F.4th 556,

563 (1st Cir. 2024). To prevail under this standard, Catapult

must show that "(1) an error was committed; (2) the error was

'plain' (i.e. obvious and clear under current law); (3) the error

was prejudicial (i.e. affected substantial rights); and (4) review

is needed to prevent a miscarriage of justice." Dimanche v. Mass.

Bay Transp. Auth., 893 F.3d 1, 10 (1st Cir. 2018) (quoting Smith

v. Kmart Corp., 177 F.3d 19, 26 (1st Cir. 1999)). We need not

9 For that reason, we do not need to resolve the question of whether judicial estoppel plays any role in this case.

- 34 - conclusively resolve each prong of the test to reject Catapult's

plain-error argument. See id. at 12 (bypassing the final prong).

Here, we find that Catapult's argument fails under the

second prong because, if there was any error, it was not plain.

As Catapult notes, "no appellate court ha[s] provided guidance on

the issue" of "[w]hether MUTSA super[s]edes Chapter 93A[.]"

Because there was no precedent to guide resolution of this issue,

there was no plain error. See United States v. Olano, 507 U.S.

725, 734 (1993) ("At a minimum, court of appeals cannot correct an

error pursuant to Rule 52(b) unless the error is clear under

current law.").

III.

For the reasons stated, we reject Catapult's requests

for a new trial, to remit the exemplary damages award, and to remit

the jury's lost profits award, but reduce the damages award by

$157,068, and reverse the district court's decision to hold

Dickhaut jointly and severally liable and remand for further

proceedings. No costs are awarded.

-Dissenting Opinion Follows-

- 35 - RIKELMAN, Circuit Judge, dissenting in part. I

respectfully dissent from part II.A of the majority opinion. In

my view, the district court's unjust enrichment award went far

beyond the jury's verdict on the extent of Catapult's liability

for using BioPoint's trade secrets. And because the trade secret

statutes allow a plaintiff to recover only unjust enrichment

"caused by" a defendant's misappropriation, the court erred as a

matter of law in awarding the entirety of Catapult's Vedanta

profits to BioPoint. Thus, I would vacate and remand for a

recalculation of the unjust enrichment award before any trebling

under chapter 93A.

I part ways with the majority opinion on this critical

issue because I have a different view of the record and the legal

questions resolved by the district court. To explain this

disagreement, I recount what the record demonstrates about the key

twists and turns of this case.

I. BACKGROUND

BioPoint sued Catapult in January 2020, six weeks after

it terminated Leah Attis. It brought four claims against Catapult:

two statutory trade secret misappropriation claims under MUTSA and

DTSA, a tortious interference claim under Massachusetts common

law, and a chapter 93A claim.

As the case proceeded, the parties disagreed heatedly on

the scope of discovery. BioPoint sought information about every

- 36 - life-sciences consultant and client with whom Catapult had worked

since March 1, 2017; Catapult objected that this request was far

too broad. In the course of this dispute, Catapult disclosed that

it had directly placed at least twenty life-sciences consultants

at Vedanta.

Eventually, the district court had to intervene to

resolve the parties' discovery disputes. It ruled that Catapult

had to provide BioPoint with a list of around forty-five

life-sciences consultants placed by Catapult across five clients

so that BioPoint could cross-reference this list against the

consultants in its own confidential, internal database. Under the

district court's ruling, BioPoint could then obtain further

discovery only about the consultants or clients who appeared both

on Catapult's list and in BioPoint's database. By comparing

Catapult's list to its database, BioPoint identified twelve

overlapping life-sciences consultants, nine of whom Catapult had

placed at Vedanta. The parties then completed their discovery

process.

After discovery ended, the parties discussed with the

district court the scope of the jury and bench trials. Eventually,

the court ruled that BioPoint's trade secret and tortious

interference claims would be presented at the jury trial, and thus

Catapult's liability on those claims would be decided by the jury.

- 37 - At the jury trial, BioPoint pursued its trade secret

claim based on Catapult's work with just five life-sciences

consultants (Chris Foley, Candida Fratazzi, Chris Da Costa,

Stephen Haworth, and Jordan Pothier) and three companies (Moderna,

Vedanta, and Shire/Takeda). The jury found trade secret

misappropriation as to only three of these five consultants -- the

individuals Catapult placed into Vedanta's medical director role.

The jury expressly rejected the claim that Catapult had

misappropriated BioPoint's trade secrets when Catapult placed

Pothier as a research associate at Vedanta, the only other Vedanta

consultant BioPoint put to the jury. (It also rejected BioPoint's

claim that Catapult had tortiously interfered with BioPoint's

relationship with Vedanta.) Thus, the jury found trade secret

misappropriation for only a fraction of the life-sciences

consultants Catapult placed at Vedanta.

The jury also rejected BioPoint's trade secret claim for

Foley, Catapult's first ever life-sciences placement, even though

BioPoint had argued strenuously that Foley had "launched"

Catapult's life-sciences business. Foley was the Moderna

consultant "payrolled" by Catapult, and he was placed at Moderna

while Jeff Autenrieth still worked there. On the special verdict

form, the jury found that Catapult had not misappropriated any of

BioPoint's trade secrets concerning Foley or Moderna. Thus,

although the majority opinion suggests that Catapult used

- 38 - BioPoint's trade secrets to place Foley and several other unnamed

life-sciences consultants, the jury made no such findings.

Importantly, there was also no liability finding by the

jury on Catapult's first life-sciences placement at Vedanta in

March 2018. The Vedanta placements for which the jury did find

trade secret liability, the three consultants Catapult placed into

the medical director role, did not begin until May 2019, more than

a year later. In sum, the jury found liability for only a fraction

of the consultants Catapult placed at Vedanta, and those placements

occurred long after Catapult began its relationship with Vedanta,

fourteen months later to be precise.10

After the jury trial, the district court again reviewed

with the parties the scope of the coming bench trial. According

to the court, the bench trial would focus on the disgorgement

damages, meaning the unjust enrichment award, and the chapter 93A

claim. The court said: "The issue of disgorgement damage[s] [was]

not presented to the jury, and [thus] the court will hear evidence

of causation to the extent not presented at the jury trial (that

is, whether the profits sought [to be] disgorged are attributable

10 The majority opinion also discusses that Catapult did not place any more consultants at Vedanta after BioPoint terminated Attis. It is important to put this fact in context. Vedanta functionally ended its relationship with Catapult about two months after BioPoint sued Catapult in late January 2020, which was just one month after BioPoint terminated Attis in December 2019. Vedanta featured in BioPoint's lawsuit against Catapult; indeed, Vedanta was named twenty-two times in BioPoint's complaint.

- 39 - to the use of the misappropriated trade secret[s])." (Emphasis

added.) The court indicated that it would determine the amount to

disgorge without "disturb[ing] the jury's verdict that [Catapult]

misappropriated trade secrets relating to certain

consultants/client[s]."

With the district court's directive about the bench

trial in mind, BioPoint argued that MUTSA and DTSA provided the

statutory authority to disgorge all of Catapult's Vedanta profits.

As BioPoint said, citing the statutes, "a court may award 'damages

for any unjust enrichment caused by the misappropriation of the

trade secret that is not addressed in computing damages for actual

loss.'" (Quoting 18 U.S.C. § 1836(b)(3)(B)(i)(II).)

Catapult disagreed that BioPoint was entitled to all the

Vedanta profits. It argued that the district court could not award

the full Vedanta profits "as a matter of law" because doing so

would "disgorge Catapult's profits for the placement of a

consultant for which the jury found no liability," Pothier. More

generally, Catapult contended that BioPoint was not legally

entitled to its profits for placing Vedanta consultants "for whom

BioPoint has not even claimed trade secret misappropriation" and

"for which there was no finding of liability," because BioPoint

had failed to prove that these profits were "caused by

misappropriation of BioPoint's trade secrets."

- 40 - During the bench trial, BioPoint tried to enforce the

district court's ruling that it would not disturb the jury's

liability verdict. When Catapult sought to offer testimony or

argument that was arguably inconsistent with the jury's verdict,

BioPoint objected. In response, the court agreed with BioPoint

that "[t]he jury did [already] determine" the misappropriation

issue. And BioPoint made a similar point in its briefing after

the bench trial, arguing that the court had decided that "the jury

verdict [would] provide[] the full set of facts for c. 93A

liability."

After the bench trial, the district court issued its

ruling on the unjust enrichment award and Catapult's chapter 93A

liability. In its decision, the court evaluated the unjust

enrichment issue first, as an entirely separate issue from

Catapult's chapter 93A liability. In addressing unjust

enrichment, the court reiterated that "Catapult's use of

BioPoint's trade secrets ha[d] already been determined by the

jury." The court's only task, in its own words, was to determine

whether Catapult's Vedanta profits were "attributable to the use"

of those trade secrets. The court ultimately determined that all

the Vedanta profits fell into this category by relying on

BioPoint's argument about the "head start" theory, including a

case cited by BioPoint that discussed this theory and was decided

under the Rhode Island trade secret statute. See BioPoint, Inc.

- 41 - v. Dickhaut, No. 20-10118-RGS, 2023 WL 3071422, at *6 (D. Mass.

Apr. 25, 2023) (citing Alifax Holding Spa v. Alcor Sci. Inc., C.A.

No. WES 14-440, 2021 WL 3911258, at *1 (D.R.I. Sept. 1, 2021)).

The district court also ruled that Catapult had violated

chapter 93A, which prohibits unfair or deceptive acts. The court

explained that, under Massachusetts law, "[a] finding of trade

secret misappropriation is . . . sufficient to establish an unfair

or deceptive act under Chapter 93A." Thus, the court concluded

that "the jury's verdict amply support[ed] a determination that

Catapult violated Chapter 93A and . . . no further findings of

fact on this issue [were] required." Id. at *7-8 (emphasis added).

To determine whether BioPoint was entitled to exemplary damages

under chapter 93A, the court then evaluated whether Catapult's

violations had been knowing and willful. Based on its conclusion

that Catapult's conduct was knowing and willful, the court trebled

the lost profits and unjust enrichment awards. Id. at *10.

I reach three conclusions based on this record. First,

the jury explicitly found that Catapult did not use BioPoint's

trade secrets in all its work for Vedanta. To the contrary, the

jury verdict indicates that BioPoint's trade secrets played a role

in a fraction (substantially less than fifty percent) of Catapult's

life-sciences placements at Vedanta. Second, the district court

awarded BioPoint unjust enrichment damages under the trade secret

statutes, not chapter 93A. Third, the district court decided that

- 42 - it would base its chapter 93A liability ruling on the jury's

verdict. It expressly declined to treat the jury's verdict as

only advisory for chapter 93A purposes.

II. DISCUSSION

The district court's unjust enrichment award cannot be

squared with the governing law. Based on how the district court

structured the jury and bench trials, the court's unjust enrichment

award had to be consistent with the jury's liability verdict. And

it was not. The jury found liability for trade secret

consultants that Catapult placed at Vedanta. And this finding

severs the legally necessary causal connection between Catapult's

misappropriation of BioPoint's trade secrets and all the Vedanta

profits.

A. The Scope of the Award

BioPoint sought Catapult's Vedanta profits as a measure

of the "actual damage[]" caused by Catapult's trade secret

misappropriation. BioPoint was expressly authorized to seek this

recovery under the trade secret statutes, which provide that

damages "can include both the actual loss caused by

misappropriation and the unjust enrichment caused by

misappropriation that is not taken into account in computing actual

loss." Mass. Gen. Laws ch. 93, § 42B(a); see also 18 U.S.C. §

1836(b)(3)(B)(i)(II) (similar language in DTSA).

- 43 - But to recover under the trade secret statutes, BioPoint

had to prove that Catapult's unjust enrichment was "caused by" its

misappropriation, see Mass. Gen. Laws ch. 93, § 42B(a), and

BioPoint failed to do that for all the Vedanta profits. At trial,

BioPoint failed to prove by a preponderance of the evidence that

Catapult had misappropriated trade secrets with respect to two of

the five consultants BioPoint put to the jury, including,

crucially, Pothier, a Vedanta placement. Thus, the jury absolved

Catapult of using BioPoint's trade secrets for some of the

life-sciences consultants it placed at Vedanta. That liability

finding contradicts the district court's conclusion that all of

Catapult's life-sciences placements at Vedanta, not to mention the

entirety of Catapult's Vedanta profits, were attributable to

Catapult's misappropriation of BioPoint's trade secrets.

To be sure, the jury also found that Catapult

misappropriated trade secrets "concerning Vedanta." And the

district court's task was to apply the jury's verdict. But viewing

the verdict as a whole, it is clear the jury did not intend to

hold Catapult liable for every consultant placed at Vedanta, given

that it found no liability for Pothier. Further, the jury's

liability finding on Vedanta follows necessarily from its finding

that Catapult misappropriated BioPoint's trade secrets when it

placed three consultants at Vedanta -- Fratazzi, Haworth, and Da

- 44 - Costa (the medical director placements).11 Indeed, in response to

a question from the jury about what misappropriating trade secrets

"concerning Vedanta" meant on the special verdict form, the

district court instructed the jury that the phrase meant simply

"relating to" the client. Thus, the jury's verdict did not

establish with any "degree of certainty" that the entirety of

Catapult's Vedanta profits were caused by Catapult's

misappropriation of BioPoint's trade secrets. See Restatement

(Third) of Unfair Competition § 45(2) (Am. L. Inst. 1995) (listing

factors courts should consider when determining "[w]hether an

award of monetary relief is appropriate" in a trade secret

misappropriation case).

To the contrary, BioPoint did not put the vast majority

of Catapult's life-sciences placements at Vedanta to the jury at

all. (Indeed, it put to the jury only four of the nine

"overlapping" Vedanta consultants identified through discovery.)

And BioPoint failed to meet its burden of proof on one of the few

life-sciences Vedanta placements that it did include in the trial.

11 The majority opinion concludes that, before the jury trial, Catapult admitted by "negative implication" that the Vedanta claim was not coextensive with the claims related to the individual consultants placed at Vedanta. Even if this were true, it would mean only that Catapult conceded that it could be liable on the Vedanta claim for damages beyond those associated with individual consultants. It would not mean that Catapult conceded that it could be liable for damages relating to Vedanta consultants for whom the jury found no liability.

- 45 - Thus, the jury's verdict reflects a practical resolution: The jury

agreed with some of BioPoint's trade secret claims, but not all,

and found that some of Catapult's Vedanta profits, but not all,

were "caused by" Catapult's misappropriation of BioPoint's trade

secrets.

The district court reached a different conclusion by

relying on the "head start" theory discussed in a decision about

the Rhode Island trade secret statute. See Alifax Holding Spa,

2021 WL 3911258, at *1. The majority opinion concludes that

Catapult waived any legal argument about the application of this

theory in non-products-liability cases like this one. Still, even

assuming such a waiver, the head start theory cannot save the

unjust enrichment award for two reasons.

First, however one frames the head start theory, it

cannot overcome the explicit requirement in the trade secret

statutes of a causal connection between the misappropriation and

the extent of the unjust enrichment award. The parties may not

waive or stipulate away this statutory requirement, and, in any

event, Catapult repeatedly argued that all its Vedanta profits

were not "caused by" any misappropriation. See TI Fed. Credit

Union v. DelBonis, 72 F.3d 921, 928 (1st Cir. 1995) ("Issues of

law are the province of courts, not of parties to a lawsuit . . . .

Courts, accordingly, 'are not bound to accept as controlling[]

- 46 - stipulations as to questions of law.'" (quoting Sanford's Est. v.

Comm'r, 308 U.S. 39, 51 (1939))).

Second, head start, in any iteration, cannot bridge the

causal gap between the jury's finding of liability for just three

Vedanta placements and the district court's award of all of

Catapult's Vedanta profits. Under Massachusetts law, for example,

the head start "rule" limits, rather than expands, the scope of

damages. As the Supreme Judicial Court of Massachusetts has

explained, the rule "limit[s] damages to that period of time in

which 'others in the trade are likely, through legitimate business

procedures, to have become aware of [the misappropriated trade]

secrets.'" Jet Spray Cooler, Inc. v. Crampton, 385 N.E.2d 1349,

1357 n.11 (Mass. 1979) (citation omitted). But the district court

did not use the head start rule in this way. In crafting the

unjust enrichment award, it never defined the time period of any

head start by Catapult; instead, it simply awarded the entirety of

Catapult's Vedanta profits.

Nor does the theory invoked by federal courts when

measuring the "benefit conferred" upon a trade secret defendant by

the value of the "head start" it obtained in its business through

misappropriation bridge the causal gap here. Epic Sys. Corp. v.

Tata Consultancy Servs. Ltd., 980 F.3d 1117, 1130 (7th Cir. 2020).

For example, a court might measure the value of the defendant's

head start by its total avoided research and development costs,

- 47 - see id., or the profits obtained during the period that it would

have taken the defendant to develop the product on its own, see

Alifax Holding Spa v. Alcor Sci. Inc., 404 F. Supp. 3d 552, 576-77

(D.R.I. 2019), aff'd in part, rev'd in part sub nom. Alifax Holding

SpA v. Alcor Sci. LLC, No. 2022-1641, 2024 WL 2932910 (Fed. Cir.

June 11, 2024). But the district court did not attempt to measure

the value of Catapult's head start by calculating its saved

expenses or its profits during a limited time period. To put it

differently, the court did not separate the discrete value of

Catapult's head start from any other benefit that accrued to

Catapult through its misappropriation. Thus, like the

Massachusetts rule, this version of head start does not provide

the necessary causal link between the jury's limited liability

verdict and the sweeping unjust enrichment award.

In sum, I recognize that there is no precise science to

calculating the unjust enrichment that accrued to a defendant

because of its trade secret misappropriation. Indeed, unjust

enrichment "can take several forms and cover a broad array of

activity." See Syntel Sterling Best Shores Mauritius Ltd. v. The

TriZetto Grp., Inc., 68 F.4th 792, 809 (2d Cir. 2023). But the

requirement of a causal connection remains, and the lack of that

connection here to the entirety of Catapult's Vedanta profits means

that the award exceeded the legal boundaries of the trade secret

- 48 - statutes.12 See, e.g., SEC v. First City Fin. Corp., Ltd., 890

F.2d 1215, 1231 (D.C. Cir. 1989) (explaining that disgorgement

must "be a reasonable approximation of profits causally connected

to the violation").

B. The Majority Opinion's View

At times, the majority opinion suggests that the

district court awarded disgorgement under chapter 93A, not under

the trade secret statutes, and thus the award simply reflects that

the district court found Catapult's liability under chapter 93A to

extend beyond its statutory trade secret liability.13 Based on my

review, the record does not support this conclusion for two

reasons.

First, the district court's ruling, especially when read

in light of the case's procedural history, orders disgorgement of

the Vedanta profits as a remedy for Catapult's statutory trade

12 I agree with the majority opinion that a court may "make[] a full award of the defendant's unjust enrichment." But, in my view, the award here was legally invalid because it included profits that the jury concluded were not "unjustly" obtained by Catapult because they were not "caused by" Catapult's trade secret misappropriation. 13 The majority opinion also briefly suggests the presence of a free-standing, common-law equitable unjust enrichment claim against Catapult, based on Catapult's misappropriation of BioPoint's confidential information. Cf. Mass. Eye and Ear Infirmary v. QLT Phototherapeutics, Inc., 552 F.3d 47, 56 (1st Cir. 2009). But there was no free-standing unjust enrichment claim in the complaint. Instead, as BioPoint argued, unjust enrichment is a measure of damages under the trade secret statutes.

- 49 - secret violations.14 And, as I explained above, the scope of the

district court's remedy cannot be squared with the damages

provisions of those statutes.

Second, even if the district court had awarded unjust

enrichment as a remedy for BioPoint's chapter 93A claim, the award

would still be legally invalid as inconsistent with the jury's

verdict. I agree with the majority opinion that, under

Massachusetts law, the court could have decided to treat the jury's

verdict on a related claim as merely advisory for chapter 93A

purposes. See Specialized Tech. Res., Inc. v. JPS Elastomerics

Corp., 957 N.E.2d 1116, 1120 (Mass. App. Ct. 2011). In my view,

however, that's just not what happened here.

The district court treated Catapult's chapter 93A

liability as derivative of BioPoint's claims that went to the jury.

As the court noted in its decision following the bench trial, "[a]

finding of trade secret misappropriation is . . . sufficient to

establish an unfair or deceptive act under Chapter 93A." BioPoint,

14 That chapter 93A, unlike MUTSA or DTSA, does not expressly authorize unjust enrichment as a measure of damages supports my view. The statute provides that "[a] person may assert a claim under [chapter 93A] . . . for money damages only." Mass. Gen. Laws ch. 93A, § 11. Such "damages may include double or treble damages" and "attorneys' fees or costs," but chapter 93A does not refer to unjust enrichment, unlike MUTSA and DTSA. And the SJC has never addressed whether chapter 93A authorizes disgorgement. See Atlantic Rsch. Mkt'g Sys., Inc. v. Troy, No. 07-11576-PBS, 2010 WL 1904849, at *6 (D. Mass. May 11, 2010) (declining to award disgorgement damages under chapter 93A "[g]iven the statute's focus on actual monetary loss").

- 50 - 2023 WL 3071422, at *7. And although the court recognized that it

"ha[d] discretion whether to apply [the] jury's factual findings

to [the] Chapter 93A claim," it elected not to stray from the

jury's verdict. Id. Instead, the court concluded that "the jury's

verdict amply support[ed] a determination that Catapult violated

Chapter 93A and . . . no further findings of fact on this issue

[were] required." Id. at *8 (emphasis added). Thus, in my view,

the district court ruled that Catapult's chapter 93A liability

would be coextensive with its trade secret liability, as found by

the jury, and that is how the parties litigated the case.15

So, regardless of whether the district court awarded the

Vedanta profits under the trade secret statutes or chapter 93A,

its unjust enrichment remedy had to square with the jury's

liability findings. And, for the reasons I explained, it does

not. Thus, I respectfully dissent from part II.A of the majority

opinion.

15 As BioPoint argued vigorously after the bench trial, "[p]er the Court's many earlier rulings, and its authority to treat the verdict as definitive, the jury verdict provided the full set of facts for c.93A liability."

- 51 -