Infospan, Inc. v. Emirates Nbd Bank Pjsc

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 7, 2018
• Docket: 17-55000
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION AUG 07 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

INFOSPAN, INC., No. 17-55000

Plaintiff-Appellant, D.C. No. 8:11-cv-01062-JVS-AN v.

EMIRATES NBD BANK PJSC, MEMORANDUM*

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding

Argued and Submitted July 11, 2018 Pasadena, California

Before: BERZON and N.R. SMITH, Circuit Judges, and CASTEL,** District Judge.

InfoSpan, Inc. appeals from an adverse jury verdict on its trade secret

misappropriation, misrepresentation, and unfair competition claims against

Emirates NBD Bank PJSC (the Bank). On appeal, InfoSpan raises a series of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable P. Kevin Castel, United States District Judge for the Southern District of New York, sitting by designation. evidentiary rulings that it claims prejudiced its case at trial, and it claims that its

case was further prejudiced by an improper instruction on United Arab Emirates

(UAE) law that pertained to one of the claims at issue. Because we conclude that

InfoSpan was not prejudiced by the adverse evidentiary rulings and the jury was

properly instructed, we affirm.

1. Evidentiary Issues. “[J]udicial error alone does not mandate reversal.”

Obrey v. Johnson, 400 F.3d 691, 699 (9th Cir. 2005). Prejudice is also required.

See id. In response to InfoSpan’s claims of error on appeal, the Bank amply

established that any erroneous evidentiary rulings were “more probably than not

harmless.” See id. (quoting Haddad v. Lockheed Cal. Corp., 720 F.2d 1454, 1459

(9th Cir. 1983)). By way of example, the Bank identified voluminous record

evidence to establish the following:

• InfoSpan never developed a stored value card capable of doing what it promised.

• InfoSpan misrepresented that it had a stored value card that had already been deployed for commercial use.

• The Bank decided to terminate the agreement with InfoSpan because the Bank discovered InfoSpan’s misrepresentations of its technology and inability to deliver the product it promised.

• The Bank never received the servers that InfoSpan said contained the allegedly misappropriated trade secretes.

2 InfoSpan fails to grapple with any of this evidence. Moreover, the evidence

InfoSpan cited to establish its ownership of trade secrets and the Bank’s alleged

misappropriation of the same was vague, and portions of it tended to corroborate

the Bank’s theory rather than its own. For example, the evidence InfoSpan cited in

its reply brief includes references to the non-functioning “NOBOCARD.” It also

included manuals and documents relating to the stored value card that list dates of

creation post-dating InfoSpan’s agreement with the Bank by over a year.

In contrast to the voluminous evidence establishing the Bank’s defense, the

allegedly prejudicial evidence was thin and briefly touched upon in the course of a

ten-day trial.1 Accordingly, even assuming the trial court erred in its evidentiary

rulings, any errors were “more probably than not harmless.” Obrey, 400 F.3d at

699 (quoting Haddad, 720 F.2d at 1459).

2. UAE law instruction. We find no error in the trial court’s decision not to

include the “good faith” language InfoSpan requested in the jury instruction on

UAE law. As an initial matter, InfoSpan offered the instruction after the Bank

1 In particular, the testimony regarding the rape or sexual assault incident (involving one of InfoSpan’s high level employees in Pakistan) was brought to the jury’s attention in a relatively short exchange during the trial and the Bank mentioned the incident only obliquely and in passing in its closing argument. InfoSpan’s decision to highlight and belabor the incident in its own closing argument does not establish prejudice. 3 rested. But even if timing were no issue, we review “the particular formulation of

civil jury instructions for abuse of discretion.” White v. Ford Motor Co., 312 F.3d

998, 1020 (9th Cir. 2002), opinion amended on denial of reh’g, 335 F.3d 833 (9th

Cir. 2003). To establish prejudicial error in civil jury instructions, InfoSpan needed

to show that the instructions taken as a whole failed to correctly and fairly cover

the substance of the applicable law. Id. at 1021. Yet InfoSpan has not asserted that

the instruction given suggested that filing a criminal complaint in bad faith was

permissible under UAE law. The district court’s decision not to expressly add the

good faith qualifying language InfoSpan requested was not an abuse of

discretion—especially where the only support for the final-hour instruction was a

declaration of a previously undisclosed expert witness.

AFFIRMED.