19-440-cv (L)
Broker Genius Inc. v. Drew Gainor, Seat Scouts LLC

                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                                  SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A
PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED
BY COUNSEL.


              At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 20th day of April, two thousand twenty.

PRESENT:             GERARD E. LYNCH,
                     DENNY CHIN,
                                         Circuit Judges,
                     PAUL A. ENGELMAYER,
                                         District Judge. *
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BROKER GENIUS INC.,
               Plaintiff-Counter-Defendant-Appellee,

                                       -v-                                               19-440-cv; 19-2686-cv

DREW GAINOR, SEAT SCOUTS LLC,
               Defendants-Counter-Claimants-
               Appellants,




*     Judge Paul A. Engelmayer, of the United States District Court for the Southern District
of New York, sitting by designation.
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GUINIO VOLPONE, EVENT TICKET SALES LLC,
RAY VOLPONE, 4311 N 161st St Omaha,
NE 68116, STUART GAINOR, 69 Yates Rd
Manalapan, NJ 07726, VOLPONE SOFTWARE LLC,
7202 Giles Road Suite 4 #330 La Vista, NE 68218,
GAINOR SOFTWARE LLC, 5706 Belmont Valley Ct.
Raleigh, NC 27602,
                    Defendants.

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FOR PLAINTIFF-COUNTER-                                                 VERONICA MULLALLY MUÑOZ,
DEFENDANT-APPELLEE:                                                    (Daniel J. Melman, on the brief), Pearl
                                                                       Cohen Zedek Latzer Baratz LLP, New
                                                                       York, New York.

FOR DEFENDANTS-COUNTER-                                                CHRISTOPH C. HEISENBERG,
CLAIMANTS-APPELLANTS:                                                  Hinckley & Heisenberg LLP, New York,
                                                                       New York.

                    Appeal from the United States District Court for the Southern District of

New York (Stein, J.).

                    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment and order of the district court are

AFFIRMED.

                    Plaintiff-counter-defendant-appellee Broker Genius Inc. ("Broker Genius")

brought this action alleging that defendants-counter-claimants-appellants Drew Gainor

and Seat Scouts LLC ("Seat Scouts," and together "defendants") breached their contract

and misappropriated proprietary information. At trial, the jury found for Broker

Genius and awarded it $3,000,000 on its breach of contract claim and $1,500,000 on its

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unfair competition claim. Thereafter, the district court entered a permanent injunction

restraining defendants from developing any products derived from Broker Genius's

ticket pricing product. We assume the parties' familiarity with the underlying facts,

procedural history, and issues on appeal.

              Broker Genius is a technology company serving ticket brokers on the

secondary market. AutoPricer is a web application created by Broker Genius that

allows ticket brokers to automatically and dynamically price their tickets. Use of Broker

Genius's products was subject to conditions set forth in Broker Genius's Terms of Use

(the "ToU"), which included an agreement not to "[m]odify, adapt . . . , reverse engineer,

decompile or disassemble any portion of the Site or Apps or otherwise attempt to

derive any source code or underlying ideas or algorithms of any part of the Site or

Apps" or "[r]eproduce, modify, display . . . or create derivative works of the Site or

Apps or the Content." Appellee's App'x at 1977-78.

              Broker Genius alleged that Gainor, co-founder of Seat Scouts, a competitor

site, used knowledge and information about AutoPricer obtained while Gainor was a

customer of Broker Genius to develop a similar product, Command Center, in violation

of the ToU. Broker Genius sought a preliminary injunction against defendants

enjoining them from using, providing, or making available Command Center. The

preliminary injunction was granted on May 11, 2018. The preliminary injunction went

into effect on May 14, 2018, and that same day defendants debuted Event Watcher, a


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product with substantially the same features as the enjoined Command Center. Finding

that "the preliminary injunction clearly and unambiguously enjoins Command Center,

which is the same as Event Watcher," the district court held defendants in contempt.

S. App'x at 41, 45.

                After the district court entered judgment on the jury verdict and issued a

permanent injunction, defendants moved for judgment as a matter of law pursuant to

Federal Rule of Civil Procedure 50(b) or for a new trial pursuant to Rule 59(a). The

motion was denied. 2 This appeal followed, as defendants raise a host of issues.

I.      Broker Genius's Proprietary Interest in AutoPricer

                Defendants first challenge the jury's finding that Broker Genius had a

proprietary interest in AutoPricer. 3 Under New York law, unfair competition includes




2      Defendants previously appealed the district court's entry of the preliminary injunction.
However, the trial and entry of the permanent injunction occurred before the appeal could be
decided, mooting the appeal. See Broker Genius Inc. v. Gainor, 756 F. App'x 81 (2d Cir. 2019)
(summary order).

3       Although not explicitly so argued by defendants, we construe the appeal of this issue as
a challenge to the district court's denial of its 50(b) motion as it is fundamentally a challenge to
the sufficiency of the evidence. See Rothstein v. Carriere, 373 F.3d 275, 284 (2d Cir. 2004). We
review de novo a district court's denial of a Rule 50(b) motion. See Fabri v. United Techs. Int'l, Inc.,
387 F.3d 109, 119 (2d Cir. 2004). A district court may grant a Rule 50(b) motion only "if there
exists such a complete absence of evidence supporting the verdict that the jury's findings could
only have been the result of sheer surmise and conjecture, or the evidence in favor of the
movant is so overwhelming that reasonable and fair minded [persons] could not arrive at a
verdict against [it]." Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 133 (2d Cir. 2008) (internal
quotation marks and citation omitted).



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"taking the skill, expenditures and labors of a competitor," as well as

"misappropriat[ing] for the commercial advantage of one person . . . a benefit or

property right belonging to another." Roy Exp. Co. Establishment of Vaduz v. Columbia

Broad. Sys., Inc., 672 F.2d 1095, 1105 (2d Cir. 1982) (internal quotation marks and

citations omitted); see also Metro. Opera Ass'n v. Wagner-Nichols Recorder Corp., 101

N.Y.S.2d 483, 492 (Sup. Ct., N.Y. County 1950) (noting that "the effort to profit from the

labor, skill, expenditures, name and reputation of others . . . constitutes unfair

competition which will be enjoined"). A misappropriation claim, however, cannot be

premised on publicly available information. See Schroeder v. Pinterest Inc., 17 N.Y.S.3d

678, 693 n.11 (1st Dep't 2015).

              Here, Broker Genius required users to accept the ToU, which included

restrictions on the reproduction and distribution of the user content and data.

Moreover, while defendants contend that AutoPricer was not confidential because

Broker Genius publicly disclosed it in its patent application, during marketing

demonstrations, and in an in-court demonstration, there was extensive testimony that

the information disclosed in these forums was limited. Accordingly, the record

contains sufficient evidence to support the jury's finding that Broker Genius had a

proprietary interest in AutoPricer.




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II.    Breach of Contract Claim

              Defendants contend that the court erroneously interpreted the ToU when

it determined that "derivative works" was not to be read as importing the framework of

copyright law. We review contract interpretation de novo. See 32BJ N. Pension Fund v.

Nutrition Mgmt. Servs. Co., 935 F.3d 93, 98 (2d Cir. 2019).

              Here, Broker Genius alleged breach of contract and unjust enrichment.

The ToU provided that the user shall not, inter alia, "attempt to derive any source code

or underlying ideas or algorithms of any part of the Site or Apps" or "create derivative

works of the Site or Apps or the Content." Appellee's App'x at 1977-78. The district

court instructed the jury, in relation to the breach of contract claim, that "[t]he term

'derived' means something originates from something else. A later-created product is

derived from an earlier product if, one, the two products or elements therein are

similar; and two, the commonalities present in the later-created product are traceable to

the earlier one." Appellee's App'x at 1930-31. This instruction was not error.

              Defendants contend that the contractual prohibition on "creat[ing]

derivative works of the Site or Apps or the Content" could not support such an

instruction because, in their view, that provision did no more than track the definition

of "derivative works" contained in the Copyright Act. Appellee's App'x at 1978. But

even if this were so -- and the Court has no occasion to reach that question -- the

instruction was warranted based on the provision that more broadly prohibited


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defendants from "attempt[ing] to derive any source code or underlying ideas or

algorithms of any part of the Site or Apps." Appellee's App'x at 1977.

              Defendants' reliance on an earlier decision in which the district court

found that the relevant provision in the ToU "essentially tracks the language of the

Copyright Act of 1976" is misplaced. Broker Genius, Inc. v. Zalta, 280 F. Supp. 3d 495, 522

(S.D.N.Y. 2017) (brackets omitted). There, the court found only that the relevant

contract provisions were not the functional equivalent of a confidentiality clause; it did

not, as defendants claim, conclude that copyright law governed -- let alone exclusively

governed -- the terms of the contract. Accordingly, the district court did not err in

declining to instruct the jury that the breach of contract claim was governed by

copyright law.

              Finally, there was sufficient evidence for a reasonable jury to find that

defendants breached the ToU, on the ground that Command Center was derived from

AutoPricer's underlying ideas. Accordingly, the district court did not err in permitting

the breach of contract claim to reach the jury or in sustaining the jury's verdict, in

Broker Genius's favor, on that claim.

III.   Misappropriation Claim

              Defendants further argue that Broker Genius's misappropriation claim is

preempted by the Copyright Act and that the district court erred when it concluded that

defendants had waived their preemption defense. We review a district court's


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determination that a party has waived an argument by failing to raise it earlier in a

proceeding for an abuse of discretion. See Olin Corp. v. Am. Home Assurance Co., 704

F.3d 89, 98 (2d Cir. 2012). Affirmative defenses raised late in a proceeding may be

subject to waiver, see Saks v. Franklin Covey Co., 316 F.3d 337, 350 (2d Cir. 2003), though

waiver "may not be proper where the defense is raised at the first pragmatically

possible time and applying it at that time would not unfairly prejudice the opposing

party," Rose v. AmSouth Bank of Fla., 391 F.3d 63, 65 (2d Cir. 2004).

              Here, defendants first argued that Broker Genius's unfair competition

claim was preempted by the Copyright Act in the pretrial order, less than a month

before the start of the trial and over a year after the action commenced. Defendants do

not provide any reason why they did not raise the affirmative defense earlier, nor do

they contend that they raised the argument at the "first pragmatically possible time." Id.

Accordingly, it was not an abuse of discretion for the district court to find that it was

waived. See Saks, 316 F.3d at 350.

IV.    Allegedly Prejudicial Comments by the Court

              Defendants next contend that, during the trial, the court engaged in

prejudicial questioning of defendants' witnesses and made prejudicial comments that

suggested to the jury that the court favored Broker Genius. "In reviewing a challenge to

a trial judge's conduct, we determine not whether the . . . conduct left something to be

desired . . . [but] whether the judge's behavior was so prejudicial that it denied [a party]


                                              8
a fair, as opposed to a perfect, trial." Shah v. Pan Am. World Servs., Inc., 148 F.3d 84, 98

(2d Cir. 1998) (internal quotation marks omitted). Provided the court does not "become

an advocate for one side," we have held that "the trial court may actively participate and

give its own impressions of the evidence or question witnesses, as an aid to the jury

. . . ." United States v. Filani, 74 F.3d 378, 385 (2d Cir. 1996).

               Here, our review of the record persuades us that the district court did not

overstep its bounds as it was seeking only clarification for the jury. Moreover, the court

expressly instructed the jury that "the reasons for my questions almost always are to

help elicit things that I think may be unclear to the jury. . . . But I assure you, I have no

view of the facts here. That's your job." Appellee's App'x at 1428. Accordingly, we find

that the district court's conduct did not deny defendants a fair trial.

V.     Evidentiary Rulings

               Defendants further argue that the court erred when it allowed Broker

Genius to reference the ruling finding defendants in contempt of the preliminary

injunction, barred evidence of Broker Genius's rejected patent application, and denied

defendants' request to introduce a discovery order to rebut Broker Genius's reference to

Gainor's "missing laptop." Appellant's App'x at 227-30. We review a district court's

evidentiary rulings for abuse of discretion, reversing only for manifest error. See

Cameron v. City of New York, 598 F.3d 50, 61 (2d Cir. 2010).




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              Here, regarding the contempt ruling, the district court circumscribed the

extent to which it could be discussed, and determined that, subject to these limits, the

ruling was relevant and its probative value was not substantially outweighed by the

danger of unfair prejudice. As for the rejected patent application, the district court

found that its probative value was "almost nil" and that there was significant danger of

confusing the issues, misleading the jury, and causing undue delay. Appellee's App'x

at 917-18. Finally, we identify no abuse of discretion in the district court's exclusion of

the discovery order. The district court's conclusions were not manifestly erroneous.

VI.    Contempt Finding

              Defendants contend that the district court erroneously found them in

contempt of the preliminary injunction. We review a district court's finding of

contempt under an abuse of discretion standard, though a "more exacting" standard

than usual "because a district court's contempt power is narrowly circumscribed." Perez

v. Danbury Hosp., 347 F.3d 419, 423 (2d Cir. 2003). We review de novo any rulings of law

made by the district court. See S. New Eng. Tel Co. v. Glob. NAPs Inc., 624 F.3d 123, 145

(2d Cir. 2010). A party may be held in civil contempt where the order is clear and

unambiguous, proof of noncompliance is clear and convincing, and the contemnor has

not attempted to comply in a reasonable manner. See Paramedics Electromedicina

Comerical, Ltda. v. GE Med. Sys. Info. Techs., Inc., 369 F.3d 645, 655 (2d Cir. 2004).




                                              10
              Here, the injunction was clear and unambiguous in enjoining defendants

from "using or providing or making available" Command Center because Command

Center was likely "created and . . . distributed in violation of the Terms of Use

agreement." Appellee's App'x 118-19. Evidence of defendants' non-compliance was

clear and convincing. Defendants attempted to circumvent the injunction by creating

Event Watcher, which shared all the features of Command Center with the exception of

the capability to automatically update prices, and even there they immediately made

available a patch that allowed customers to restore the automatic pricing update

feature. Following extensive briefing and a hearing, the district court determined that

Event Watcher was "one [and] the same product" as the enjoined Command Center and

found defendants in contempt. S. App'x at 36. Finally, the district court concluded that

defendants did not make a reasonably diligent attempt to comply with the preliminary

injunction, finding that their requests for clarification were disingenuous. The district

court did not abuse its discretion when it found defendants in contempt for violation of

the preliminary injunction.

VII.   Damages Award

              Defendants argue that the jury's award of $4,500,000 in damages was not

supported by evidence and was inconsistent. "[J]uries have wide latitude in setting

compensation for damages," and "our review is narrow, considering only whether the

award is so high as to shock the judicial conscience and constitute a denial of justice."


                                            11
Turley v. ISG Lackawanna, Inc., 774 F.3d 140, 162 (2d Cir. 2014) (internal quotation marks

omitted).

              Here, the award was supported by evidence, as Broker Genius's CFO

testified that Broker Genius had missed its projected revenue for 2018 by $9,000,000,

partly due to competition from defendants' product. The award neither shocks the

judicial conscience nor results in a denial of justice; accordingly, we will not disturb the

award.

VIII. Permanent Injunction

              Finally, defendants argue that the district court erred in issuing the

permanent injunction because the jury's damages award incorporated future damages,

AutoPricer was in the public domain, and the permanent injunction is unconnected to

the actual violation. We review a district court's grant of a permanent injunction for

abuse of discretion. See Entergy Nuclear Vt. Yankee, LLC v. Shumlin, 733 F.3d 393, 408 (2d

Cir. 2013).

              Here, as the district court found, Broker Genius suffered loss of good will

and damage to its reputation that cannot be compensated through monetary damages

alone and defendants' past conduct demonstrated the likelihood that they would

continue to offer products derived from AutoPricer absent an injunction. Moreover,

because the jury was instructed that it could find for Broker Genius only if Broker

Genius had a proprietary interest in AutoPricer, defendants' argument that AutoPricer


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is in the public domain is unavailing. Finally, the injunction, prohibiting defendants

from "making, using, [or] distributing . . . [a] software product derived, in whole or in

part, from . . . Auto Pricer[]," clearly delineates the prohibited conduct. S. App'x at 4-5.

Accordingly, we conclude that the district court did not abuse its discretion when it

entered the permanent injunction.

                                          *   *    *

              We have considered defendants' remaining arguments and conclude they

are without merit. For the foregoing reasons, we AFFIRM the judgment of the district

court.

                                           FOR THE COURT:
                                           Catherine O'Hagan Wolfe, Clerk




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