The Virginia Business Litigation Blog
AWP, Inc. is engaged in the business of traffic control solutions for road construction sites and emergency situations. AWP alleges that Shawn Watkins, a former employee, began his own traffic control business, Traffic Control Solutions, LLC (TCS) while still working at AWP, and that he misappropriated information he obtained from his position at AWP such as the identity, needs and issues of customers, pricing, and protocols and methodologies for traffic control. AWP deems this information protected trade secrets. Watkins also allegedly solicited four AWP employees to join him at TCS. AWP prepared to sue Watkins but settled prior to litigation, with Watkins agreeing to cease TCS operations, never work with an AWP competitor, and turn over all AWP property. Watkins also signed an affidavit stating that he was instrumental in creating TCS and had access to AWP’s trade secrets which he used without permission to underbid AWP on jobs and misappropriate AWP customers.
Instead, AWP sued its competitor Commonwealth Excavating, Inc. and its president, Ira Biggs. AWP claimed that Watkins approached Biggs and offered to sell AWP’s trade secrets and equipment for $45,000. Commonwealth allegedly offered to hire the four AWP employees who left for TCS, and it offered Watkins an $85,000 salary which Watkins refused for fear of violating his non-compete agreement. AWP believes that Watkins and Biggs plotted to have Commonwealth take over at least four of AWP’s customers, but the complaint does not state whether any of the customers accepted the offer. The complaint contains counts for common law conspiracy, statutory business conspiracy, misappropriation of trade secrets under the Virginia Uniform Trade Secrets Act (VUTSA), tortious interference with contract or business relationships and unjust enrichment. The defendants moved to dismiss.
Under Federal Rule of Civil Procedure 12(b)(6), a plaintiff must show more than a mere possibility that a defendant has acted unlawfully. Rather, a plaintiff must demonstrate enough factual matter which, if accepted as true, states a plausible claim for relief. In ruling on a 12(b)(6) motion, a court will accept factual allegations as true and construe them in the light most favorable to the plaintiff, but threadbare recitations of the elements of a cause of action are not sufficient and must be supported by sufficient facts.
Here, Commonwealth and Biggs argued that the complaint did not state enough facts to support a business conspiracy claim because AWP did not allege that it lost any business as the result of the alleged conspiracy. Defendants also argued that the intra-corporate conspiracy doctrine barred the conspiracy claims; that the VUTSA preempted AWP’s claims; and that the complaint failed to state a claim for tortious interference because AWP did not plead a connection between the alleged tortious interference and any resulting loss of business.
The court first addressed the conspiracy claim. To state a claim for business conspiracy, a plaintiff must plead (1) a combination of two or more persons for the purpose of willfully and maliciously injuring plaintiff in his business; and (2) resulting damage to plaintiff. To survive a motion to dismiss, a plaintiff must plead these elements with sufficient particularity, alleging some details of time, place, content, identity and damages. Here, AWP alleged that Watkins, knowing that AWP and 
Commonwealth were competitors, met with Biggs between Christmas and New Year’s Eve for the purpose of transferring TCS’s business to Commonwealth. According to the complaint, Biggs and Commonwealth knew that TCS obtained the customers by misappropriating confidential and propriety information and in breach of his non-compete agreement. AWS stated particular dates on which the meetings occurred, and it named the customers that Watkins and Biggs allegedly approached. AWP claimed damages associated with a loss of business, a loss of customers, and injury to its reputation and business goodwill. The court found that these allegations were sufficiently specific to survive a motion to dismiss.
The court also found that the doctrine of intra-corporate immunity did not bar the conspiracy claim. The intra-corporate immunity doctrine requires the involvement of at least two legally distinct persons or entities in order to meet the requirement of concerted action. A corporation and its employees cannot conspire, nor can agents of a corporation acting within the scope of their agency. Here, AWP alleged that Watkins conspired with Biggs and Commonwealth, but AWP did not name Watkins as a defendant. Watkins was not an employee of Commonwealth, and the court held that the fact that AWP did not name Watkins as a defendant was irrelevant to the analysis as not all members of a conspiracy must be named as parties.
Defendants next argued that AWP failed to allege facts sufficient to establish a claim under VUTSA which requires the existence of a trade secret and misappropriation of that secret. AWP alleged that the identities of its customers, their needs and issues, and protocols and methodologies for traffic control qualified as trade secrets and that it took efforts to maintain confidentiality of these secrets by limiting the number of employees that had access to the secrets. AWP claimed that it derived economic value from the information being kept secret and that disclosure of these secrets would damage its business. Given these facts, the court found that AWP successfully established the existence of trade secrets. The court also found that AWP met the misappropriation requirement by alleging that its former employee disclosed the trade secrets to its competitor and that defendants knew that Watkins acquired the trade secrets improperly.
The court disagreed with defendants’ argument that VUTSA’s preemption provision barred AWP’s claims for common law and statutory conspiracy, tortious interference and unjust enrichment. VUTSA was intended to eliminate alternative theories of common law recovery premised on misappropriation of a trade secret, but it does not affect contractual remedies, civil remedies not based on misappropriation of a trade secret or criminal remedies. Additionally, although AWP alleged the existence of a trade secret, it hadn’t yet proven its entitlement to relief under VUTSA and therefore, defendants’ preemption argument was premature.
Defendants also argued that the tortious interference count must fail because AWP did not indicate whether Commonwealth successfully captured any of AWP’s customers. AWP identified four customers that defendants had solicited, and it alleged that it had specific existing contracts or expectancies with the customers. AWP asserted that it had lost business and customers as a result of defendants’ tortious interference. The failure to identify a specific customer lost was not fatal to the claim at the pleading stage, so the court held that AWP had sufficiently pleaded the elements of a tortious interference claim.
Finally, the court found that AWP had successfully stated a claim for unjust enrichment which requires a showing that (1) plaintiff conferred a benefit on defendant; (2) defendant knew of the benefit and should have expected to repay plaintiff; (3) defendant accepted the benefit without paying for its value. AWP alleged that defendants should have expected to pay for the use of AWP’s alleged trade secrets, confidential information and equipment and that they did in fact agree to pay Watkins $45,000 for the information. AWP alleged that defendants knew that Watkins had misappropriated these benefits and that defendant sought to exploit Watkins’ inside information to underbid AWP. These allegations were sufficient to establish unjust enrichment.
Accordingly, the court denied defendants’ Motion to Dismiss and all of the claims will go forward.