UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

In Re: JON S. WILSON,
Debtor.

COOK GROUP, INCORPORATED;
WILSON-COOK MEDICAL,
INCORPORATED; COOK, INC.; VANCE
PRODUCTS, INCORPORATED; SABIN     No. 97-1924
CORPORATION,
Plaintiffs-Appellants,

v.

JON S. WILSON; WILTEK MEDICAL,
INCORPORATED,
Defendants-Appellees.

In Re: JON S. WILSON,
Debtor.

COOK GROUP, INCORPORATED;
WILSON-COOK MEDICAL,
INCORPORATED; COOK, INC.; VANCE
PRODUCTS, INCORPORATED; SABIN     No. 97-1983
CORPORATION,
Plaintiffs-Appellees,

v.

JON S. WILSON; WILTEK MEDICAL,
INCORPORATED,
Defendants-Appellants.
Appeals from the United States District Court
for the Middle District of North Carolina, at Greensboro.
N. Carlton Tilley, Jr., District Judge.
(CA-96-657-2, AP-94-6010W, BK-93-50034C-11W)

COOK GROUP, INCORPORATED;
WILSON-COOK MEDICAL,
INCORPORATED; COOK, INC.; VANCE
PRODUCTS, INCORPORATED; SABIN
CORPORATION,
                                                                  No. 98-1315
Plaintiffs-Appellants,

v.

JON S. WILSON; WILTEK MEDICAL,
INCORPORATED,
Defendants-Appellees.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
N. Carlton Tilley, Jr., District Judge.
(MISC-98-1)

Argued: June 2, 1998

Decided: September 23, 1998

Before HAMILTON and WILLIAMS, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Aaron J. Kramer, SCHIFF, HARDIN & WAITE, Chi-
cago, Illinois, for Appellants. James Robert Fox, Alan Meredith

                    2
Ruley, BELL, DAVIS & PITT, P.A., Winston-Salem, North Carolina,
for Appellees. ON BRIEF: Linda K. Stevens, Ronald Wilder,
SCHIFF, HARDIN & WAITE, Chicago, Illinois; Jeffrey E. Oleynik,
Jim W. Phillips, Jr., BROOKS, PIERCE, MCLENDON, HUM-
PHREY & LEONARD, Greensboro, North Carolina; William B. Sul-
livan, WOMBLE, CARLYLE, SANDRIDGE & RICE, Winston-
Salem, North Carolina, for Appellants. Charles M. Ivey, III, IVEY,
MCCLELLAN, GATTON & TALCOTT, Greensboro, North Caro-
lina, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

This case involves two appeals and a cross-appeal from judgment
entered by the bankruptcy court after a bench trial. Appellants Cook
Group, Incorporated, Wilson-Cook Medical, Incorporated, Cook,
Incorporated, Vance Products, Incorporated, and Sabin Corporation
(collectively "Cook") are engaged in the manufacture and sale of
medical devices. Cook brought numerous claims against defendants
Jon Wilson ("Wilson") and Wiltek Medical, Incorporated ("Wiltek")
to trial including twenty-seven trade secret claims, a breach of con-
tract claim, claims for financial misappropriations and unfair business
practices, and claims for trademark, trade dress, and copyright
infringement. In the first appeal, Cook challenges the lower court's
rejection of eleven of its claimed trade secrets, 1 the compensatory
_________________________________________________________________
1 As indicated, Cook brought twenty-seven trade secret claims to trial.
Cook prevailed on only nine of the claims and appeals only eleven of the
eighteen rejected claims. The eleven trade secrets at issue on appeal
include:

         trade secret no. 1 (glass molds);
         trade secret no. 2 (balloon step forming);

                    3
damages award for the found trade secret violations, the lower court's
denial of its request for attorney's fees and its rejection of Cook's
breach of contract claim. Cook also challenges an order of the lower
court allowing Cook only one post-judgment inspection of Wiltek's
facilities. Defendants cross-appeal, challenging the punitive damages
award for the found trade secret violations. In the second appeal,
Cook challenges a ruling of the bankruptcy court modifying an exist-
ing protective order and allowing a third-party to inspect Wiltek's
plant. We affirm.

I

In 1990, Wilson-Cook Medical, Inc. ("Wilson-Cook") sued Wiltek
alleging, among other things, misappropriation of trade secrets. Sub-
sequently, the case was consolidated with a lawsuit filed by Cook
against Wilson, the founder of Wiltek and former president of
Wilson-Cook, and an adversary proceeding filed in connection with
Wilson's personal bankruptcy action.

The consolidated action was tried without a jury before the United
States Bankruptcy Court for the Middle District of North Carolina.
On May 22, 1995, the court issued a 194-page Memorandum Opin-
ion, Findings of Fact and Conclusions of Law ("Memorandum"),
rejecting eighteen of Cook's trade secret claims but finding in its
favor on nine such claims. The court permanently enjoined defendants
from using, licensing, marketing or otherwise displaying or disclosing
any of the found trade secrets, awarded Cook compensatory damages
of $183,341 and punitive damages of $300,000, but declined to award
attorney's fees. Additionally, the court awarded Cook $90,664.38 on
its claims for financial misappropriations and rejected Cook's claims
for trademark, trade dress, and copyright infringement, unfair busi-
ness practices, and breach of contract. The district court affirmed. In
_________________________________________________________________
           trade secret no. 4 (snarehead forming machine);
           trade secret no. 9 (apparatus to abrade);
           trade secret no. 10 (3M grinding disks);
           trade secret no. 11 (hard-packed buffing wheel);
           trade secret no. 12 (soft-packed buffing wheel);
           trade secret no. 13 (polishing rouge);
           trade secret no. 17 (swedging); and
           trade secret nos. 19 & 20 (hot iron tapering).

                    4
the interim, Cook filed a motion with the bankruptcy court to amend
its Memorandum and allow Cook to inspect Wiltek's facilities. On
November 7, 1995, the bankruptcy court granted Cook's motion in
part, allowing Cook the right to make one surprise inspection of
Wiltek's facilities.

On October 17, 1997, pursuant to defendants' motion, the bank-
ruptcy court modified an existing protective order, allowing third-
party Ballard Medical Products to inspect Wiltek's plant and conduct
due diligence in preparation for a possible purchase of Wiltek. The
district court affirmed.

II

A

Cook contends that the bankruptcy court erred in rejecting trade
secrets nos. 1-2, 4, 9-13, 17, and 19-20. "Although we review the
[lower] court's determination that a trade secret does not exist for
clear error, we independently review the [lower] court's conclusions
of law and the court's application of the law to the facts."
Comprehensive Technologies Int'l, Inc. v. Software Artisans, Inc., 3
F.3d 730, 736 (4th Cir. 1993) (citation omitted).

Under the North Carolina Trade Secrets Protection Act, a trade
secret is

         business or technical information, including but not limited
         to a formula, pattern, program, device, compilation of infor-
         mation, method, technique, or process that:

         a. Derives independent actual or potential commercial
         value from not being generally known or readily ascer-
         tainable through independent development or reverse
         engineering by persons who can obtain economic value
         from its disclosure or use; and

         b. Is the subject of efforts that are reasonable under the
         circumstances to maintain its secrecy.

                    5
N.C. Gen. Stat. § 66-152(3) (1992). A trade secret's existence is not
negated "merely because the information comprising the trade secret
has also been developed, used, or owned independently by more than
one person." Id. § 66-152. Under the statute, misappropriation means
"acquisition, disclosure, or use of a trade secret of another without
express or implied authority or consent, unless such trade secret was
arrived at by independent development, reverse engineering, or was
obtained from another person with a right to disclose the trade secret."
Id. § 66-152(1). Finally, to establish a prima facie case, a misappro-
priation plaintiff must introduce "substantial evidence" that the defen-
dant "[k]nows or should have known of the trade secret" and "[h]as
had a specific opportunity to acquire it for disclosure or use or has
acquired, disclosed, or used it without the express or implied consent
or authority of the owner." Id. § 96-155. A defendant can rebut this
showing with "substantial evidence" that he"acquired the information
comprising the trade secret by independent development, reverse
engineering, or it was obtained from another person with a right to
disclose the trade secret." Id.

Having considered the record and the parties' briefs and oral argu-
ments, we conclude that the bankruptcy court's decision rejecting
trade secrets nos. 1-2, 4, 9-13, 17, and 19-20 was not clearly errone-
ous. We discuss in detail only Cook's challenge to the court's rejec-
tion of trade secret no. 17.

Trade secret no. 17 involved a process known as"swedging" for
affixing metal bands on catheters. The bankruptcy court rejected this
claimed trade secret, finding that the processes and equipment used
by Cook and Wiltek for swedging "are plainly different even though
they accomplish a similar result." (J.A. 691.) 2 Moreover, the court
concluded, swedging equipment "is commercially available and com-
monly used in the gastroenterological medical device industry and
elsewhere." (Id.)

Cook challenges this ruling, arguing that it claims a trade secret not
in its swedging equipment but in the concept of swedging. The bank-
ruptcy court found, however, and Cook does not dispute, that swedg-
_________________________________________________________________
2 Citations to "J.A." refer to the joint appendix in nos. 97-1924,
97-1983.

                    6
ing equipment is commercially available and commonly used in the
medical device industry. (Id.) The bankruptcy court also found, and
again Cook does not dispute, that Cook personnel had seen swedging
machines at medical device shows. (Id. at 692.) Given the general
availability of swedging equipment in the industry, it is difficult for
Cook to argue that the very concept of swedging metal bands on cath-
eters is a trade secret. Certainly the bankruptcy court's rejection of
this contention was not clearly erroneous.

B

Cook challenges the bankruptcy court's compensatory damages
award for the found trade secrets, arguing that the court arbitrarily
awarded it only 10% of Wiltek's gross profits. Cook also contends
that the court erred in failing to award damages for the January 1,
1994 to May 22, 1995 time period. We review the compensatory
damages award under the clearly erroneous standard. See Bills v.
Hodges, 628 F.2d 844, 846 (4th Cir. 1980).

The bankruptcy court rejected Cook's argument that it should
recover all of Wiltek's gross profits since its inception, concluding
instead that damages should be based on the profits defendants real-
ized through their use of Cook's trade secrets. Considering "many
factors," the bankruptcy court determined that Cook should be
awarded 10% of Wiltek's gross profits. Among the factors expressly
considered by the court were

          the nature of the trade secrets which were misappropriated,
          the type of products in the Wiltek product line as reflected
          in its catalogs as well as products not shown in the catalogs
          such as electrocautery probes, the type of products which
          Wiltek produced for [third parties] and the extent to which
          the trade secrets were utilized in manufacturing the various
          products produced and sold by Wiltek, recognizing that this
          varied from one medical device to another.

(J.A. 728.) The bankruptcy court's decision plainly was not an arbi-
trary one but one based on a careful consideration of relevant factors
and was supported by the evidence. It was not therefore clearly erro-
neous.

                     7
Cook also contends that the bankruptcy court erred in failing to
award it compensatory damages for the period between January 1,
1994 and May 22, 1995. According to Cook, defendants' misappro-
priation continued through May 22, 1995, the date of bankruptcy
court's Memorandum.

In calculating compensatory damages, the bankruptcy court consid-
ered Wiltek's profits for the 1989-1993 period, noting that Cook
failed to offer evidence regarding post-1993 profits. (Id. at 727.) On
appeal, Cook argues that it was unable to present evidence regarding
post-1993 profits because 1994 and 1995 financial data was not avail-
able at the time of trial in late 1994. Cook, however, had the burden
of presenting evidence upon which a compensatory damages award
could be based. Having failed to present any evidence regarding post-
1993 profits at trial--whether by preliminary data or by estimates--
it cannot now complain that the bankruptcy court erred in failing to
award damages for misappropriation occurring after 1993.

C

In their cross-appeal, defendants challenge the bankruptcy court's
punitive damages award. N.C. Gen. Stat. § 66-154(c) provides that a
court may, in its discretion, award punitive damages where there is
willful and malicious misappropriation. Here, the bankruptcy court
concluded that defendants acted willfully, finding that they "knew
that Jon Wilson had learned the processes and equipment constituting
the trade secrets at [Cook] and . . . intended to take the steps involved
in utilizing the trade secrets." (J.A. 734.) The court also found that
defendants acted maliciously. Specifically, it found that after having
been put on notice of Cook's claims to certain trade secrets, defen-
dants continued using the trade secrets in derogation of Cook's rights.
(Id. at 735.)

Defendants argue that the bankruptcy court's ruling"turns the bur-
den of proof on its head," requiring them to stop using claimed trade
secrets as soon as the items are alleged to be protected, even if the
claims are not ultimately successful. (Br. of Appellees/Cross-
Appellants at 27.) The bankruptcy court, however, recognized that
where a defendant has reasonable grounds for disputing claimed trade
secrets and acts in good faith in doing so, his continued use of the dis-

                     8
puted trade secrets during ensuing litigation will not be treated as a
malicious misappropriation. (J.A. 735.) But, recognizing the princi-
ple, the court nevertheless determined that defendants' conduct pre-
cluded them from avoiding liability on this basis. With regard to trade
secret no. 14 (glycerine forming), for example, the bankruptcy court
found that defendants provided false information to Cook in order to
conceal their use of this trade secret. (Id. at 735-36.) Although defen-
dants challenge this factual finding, it has support in the record. (See,
e.g., id. at 2581-86.) That the evidence may be viewed in another way
does not compel reversal. See Anderson v. City of Bessemer, 470 U.S.
564, 574 (1985) ("Where there are two permissible views of the evi-
dence, the factfinder's choice between them cannot be clearly errone-
ous.").

D

Cook contends that the bankruptcy court erred in denying its
request for attorney's fees on its trade secrets claims. N.C. Gen. Stat.
§ 66-154(d) provides that where the defendant has engaged in willful
and malicious appropriation, "the court may award reasonable attor-
neys' fees to the prevailing party."

Cook made no serious attempt to argue the attorney's fees issue in
its opening brief. In fact, in the argument section of its 47-page open-
ing brief, Cook devoted little more than two sentences to this issue
within a subsection dealing not with attorney's fees but with the pro-
priety of the compensatory damages award. Because Cook failed ade-
quately to argue the attorney's fee issue, it might properly be
considered waived. See Fed. R. App. P. 28; Welsh v. Derwinski, 14
F.3d 85, 86 n.5 (1st Cir. 1994) (per curiam) ("issues adverted to in a
perfunctory manner and without developed argumentation are deemed
waived on appeal").

In view of the ambiguities attending the issue, we decline to con-
sider it waived, but addressing it on the merits, find no abuse of dis-
cretion in the bankruptcy court's refusal to award attorney's fees.
Cook contends that having found willful and malicious appropriation
the bankruptcy court was obligated to award fees. This, however,
ignores the language of the statute which is not mandatory but per-
missive. See N.C. Gen. Stat. § 66-154(d) ("court may award . . . fees")

                     9
(emphasis added). The bankruptcy court declined to award fees after
"consider[ing] all of the circumstances involved in this case." (J.A.
732.) Here, substantial exemplary damages were awarded. Also,
while Cook brought twenty-seven trade secrets claims to trial, it suc-
ceeded on only nine. In these circumstances, the bankruptcy court did
not abuse its discretion in denying Cook's request for attorney's fees.3

E

Cook challenges the bankruptcy court's November 7, 1995 order
amending its Memorandum and allowing Cook only one surprise
inspection of Wiltek's facilities. According to Cook, it is entitled to
at least one surprise inspection per year for as long as its trade secrets
last. Because Cook has presented no evidence or argument indicating
an abuse of discretion, we reject this contention.

III

In the course of the litigation below, Cook attempted to assert a
breach of contract claim based on a confidentiality agreement alleg-
edly signed by Wilson while in Wilson-Cook's employ. The bank-
ruptcy court rejected Cook's breach of contract claim on the ground
that it had not been properly pleaded in Cook's federal complaint, in
a related action in Indiana state court, nor in the adversary proceed-
ing. The bankruptcy court further found that even if the claim had
been pleaded, it failed on the merits.

Cook contends that its breach of contract claim was properly
pleaded. Alternatively, Cook asserts that the bankruptcy court erred
in denying its post-trial motion to amend its complaint to conform to
the evidence presented at trial. Finally, Cook asserts that under Fed.
R. Civ. P. 54(c), it was entitled to relief on the breach of contract
claim irrespective of whether the claim was properly pleaded. We
summarily reject Cook's latter contention and discuss only the first
two.
_________________________________________________________________
3 In conjunction with the attorney's fees issue, we grant Cook's June
8, 1998 motion for leave to file a brief "to clarify non-waiver on attor-
neys' fee claim."

                     10
As indicated, the bankruptcy court concluded that Cook's breach
of contract claim was not properly pleaded. Although Cook's com-
plaints alleged a number of causes of action, none expressly pleads
a breach of contract claim. That the confidentiality agreement was
attached to at least one of the complaints and that the complaints men-
tion the agreement is not enough to constitute "a short and plain state-
ment" of the claim. Fed. R. Civ. P. 8(a). The bankruptcy court,
therefore, did not err in concluding that the breach of contract claim
was not properly pleaded.

Cook continues, arguing that the breach claim was tried by implied
consent, noting that both parties submitted evidence regarding the
validity of the confidentiality agreement. Even assuming such evi-
dence was presented, it was relevant to issues already in the case,
namely the trade secret claims. In such circumstances, the bankruptcy
court did not abuse its discretion in determining that the issue was not
tried by consent. See 6A Charles Alan Wright, et al., Federal Practice
and Procedure § 1493, at 32, 41 (2d ed. 1990).

IV

In its second appeal, Cook contends that the bankruptcy court erred
in allowing third-party Ballard to inspect Wiltek's facilities.

On September 16, 1997, Ballard prepared a letter of intent to pur-
chase Wiltek. The letter indicated that the purchase was contingent
upon a investigation and analysis of Wiltek and its products, assets,
and liabilities. Upon receiving the letter of intent, defendants moved
to modify a protective order, previously entered in the case, to allow
Ballard to conduct the necessary due diligence inspection. Cook
opposed the motion, arguing that if disclosure was made before their
appeal of the eleven rejected trade secrets was final, their trade secrets
would be lost even if they ultimately prevailed on appeal. The bank-
ruptcy court granted defendants' motion.

"[F]or good cause shown," a court may enter a protective order
requiring "that a trade secret . . . not be revealed or be revealed only
in a designated way." Fed. R. Civ. P. 26(c)(7). A protective order
entered pursuant to rule 26 is reviewed for abuse of discretion. See
M & M Med. Supplies & Serv. Inc. v. Pleasant Valley Hosp., Inc., 981

                     11
F.2d 160, 163 (4th Cir. 1992) (en banc), cert. denied, 508 U.S. 972
(1993).

Our rejection of the eleven claimed trade secrets in the first appeal
disposes of Cook's second appeal: since the eleven claimed trade
secrets were properly found not to be trade secrets, they are not enti-
tled to Rule 26(c)(7) protection.

V

For the reasons discussed above, the judgment of the district court
is

AFFIRMED.

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