                                     PUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                     No. 17-2092



AIRFACTS, INC.,

            Plaintiff – Appellant,

v.

DIEGO DE AMEZAGA,

            Defendant – Appellee.


Appeal from the United States District Court for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, Senior District Judge. (8:15-cv-01489-DKC)


Argued: September 27, 2018                                Decided: November 20, 2018


Before AGEE and FLOYD, Circuit Judges, and John A. GIBNEY, Jr., United States
District Judge for the Eastern District of Virginia, sitting by designation.


Affirmed in part, vacated in part, and remanded by published opinion. Judge Agee wrote
the opinion, in which Judge Floyd and Judge Gibney joined.


Nicholas Hantzes, HANTZES & ASSOCIATES, McLean, Virginia, for Appellant. Jerry
R. Goldstein, JERRY R. GOLDSTEIN, P.C., Silver Spring, Maryland, for Appellee.
AGEE, Circuit Judge:

       AirFacts, Inc. (“AirFacts”) appeals from the district court’s judgment after a bench

trial in favor of Diego de Amezaga on AirFacts’ breach of contract and misappropriation

of trade secrets claims. AirFacts, Inc. v. de Amezaga, No. DKC 15-1489, 2017 WL

3592440 (D. Md. Aug. 21, 2017). For the following reasons, we affirm the judgment in

part, vacate it in part, and remand to the district court for further proceedings consistent

with this opinion.



                                             I.

                                             A.

       Diego de Amezaga worked for AirFacts, a developer and licenser of revenue

accounting software, from 2008 to 2015. AirFacts’ primary product is TicketGuard, an

auditing software that analyzes ticket fares for airlines and travel agencies to ensure

tickets are sold for the appropriate price. TicketGuard’s algorithms compare a ticket price

to commissions, taxes, and airline industry rules like those collected by the Airline Tariff

Publishing Company (“ATPCO”). 1 An AirFacts employee conducts an automated audit

by inputting ticket data into TicketGuard, running the software, and recording the ticket’s

proper price. If that price differs from the price for which the ticket sold, AirFacts issues

a debit memo to the airline or travel agency that sold the ticket, and the airline or travel



       1
        ATPCO, a private company, collects public fare data and makes it available to
subscribers for a monthly fee.

                                             2
agency under audit handles the refund process. AirFacts also audits ticket refunds for

airlines and travel agencies, but it does not process ticket refunds for them.

       At AirFacts, Mr. de Amezaga rose from a product development analyst to a

director responsible for managing programmers and coders, developing analytical

software, and managing client relationships. He worked under an Employment

Agreement with AirFacts (“Agreement”), two paragraphs of which are at issue here.

First, Paragraph 4.2 required Mr. de Amezaga to return all AirFacts property, including

documents, upon leaving the company:

       Upon termination of his engagement with AirFacts for any reason, the
       Employee shall promptly deliver to AirFacts all equipment, computer
       software, drawings, manuals, letters, notes, notebooks, reports, and all other
       material and records of any kind, and all copies thereof (including copies
       on written media, magnetic storage or other computer storage media), that
       may be in the possession of, or under the control of, the Employee,
       pertaining to Confidential Information acquired and Inventions developed
       by the Employee during the term of his engagement with AirFacts. The
       Employee further agrees to fully disclose and deliver any of the above
       described materials in his possession and, at AirFacts’s request, execute,
       upon his own (or his counsel’s) review, any and all documents reasonably
       necessary to ensure and verify compliance with the terms of the Agreement.

J.A. 1213. On February 6, 2015, Mr. de Amezaga gave AirFacts his notice of resignation.

Before he departed the company, Mr. de Amezaga’s supervisors informed him that they

might contact him if they had questions about his work after he left. On February 13, Mr.

de Amezaga’s final day at AirFacts, he emailed a spreadsheet outlining a proration




                                              3
framework and a database model (collectively, “Proration Documents”), both relating to

AirFacts’ upcoming proration software product, to his personal email account. 2

       Prior to the end of his employment with AirFacts, the company had allowed Mr.

de Amezaga and “a few” other employees to set up Lucidchart accounts to store and

access company documents. J.A. 830. Lucidchart is an online document storage provider.

       About a month after his AirFacts employment ended, Mr. de Amezaga used his

AirFacts employee credentials to remotely log in to his AirFacts account on Lucidchart.

From the Lucidchart account, Mr. de Amezaga downloaded two flowcharts displaying

ticket price rules derived from the ATPCO and its Fare By Rule system (“Flowcharts”).

Mr. de Amezaga had spent about four months at AirFacts creating the Flowcharts to

display the rules, relevant processing information, and “things from [his] head” to make

auditing tickets more systematic and easier for AirFacts employees. J.A. 827. After

downloading the Flowcharts, he submitted them as a part of his job application to a travel

agency. Except as noted, Mr. de Amezaga never accessed the Proration Documents or

Flowcharts or disclosed them to anyone. AirFacts claims Mr. de Amezaga breached

Paragraph 4.2 by retaining these documents after he resigned and misappropriated

AirFacts’ trade secrets by sending the Flowcharts to the travel agency. 3




       2
         The proration issues are discussed below.
       3
         AirFacts alleged in the Complaint that Mr. de Amezaga misappropriated two
other sets of trade secrets by sending one to a potential employer and printing the other.
The district court held those documents were not trade secrets under the Maryland
Uniform Trade Secrets Act, and AirFacts does not appeal those rulings.

                                             4
      The second paragraph of the Agreement at issue, Paragraph 8.1, imposed a non-

compete restriction on Mr. de Amezaga’s employment for a year after he left AirFacts. In

Paragraph 8.1, Mr. de Amezaga agreed not to

             (d) [p]erform services for, own, work for, consult, be employed by,
      or become financially interested in any the [sic] employer’s customers (as
      defined below) unless the services being performed is [sic] not in
      competition with, or similar to, either (i) the services or products provided
      by the employer during the term of the employee’s employment or (ii)
      anticipated services or products of the employer of which the employee has
      material knowledge.

J.A. 1213. In 2014, American Airlines (“American”) obtained a license from AirFacts to

use TicketGuard as part of American’s in-house ticket auditing process. American’s

Travel Agency Audit department audits domestic flight tickets sold by travel agencies

and is the only department at American that uses TicketGuard.

      Three months after leaving AirFacts, Mr. de Amezaga began working at American

in the Refunds department, but only after he informed his future supervisors of the

Agreement and its prohibitions on the types of work he could perform. American assured

AirFacts that Mr. de Amezaga’s work would not violate the Agreement and informed Mr.

de Amezaga’s new coworkers of his legal obligations to AirFacts. 4 At American, Mr. de

Amezaga manages approximately 100 ticket refund employees whose task is to process

ticket refunds directly to passengers. When passengers seek refunds directly from

American, the airline uses proprietary software to analyze tickets under industry fare


      4
        Mr. de Amezaga’s future supervisor at American called AirFacts’ CEO and
informed her that Mr. de Amezaga’s work would not violate the Agreement and that Mr.
de Amezaga had signed a document for American to that effect.

                                           5
rules and then issues refunds to passengers when appropriate. On one occasion, Mr. de

Amezaga helped American’s Travel Agency Audit department process a backlog of

international flight ticket refunds. AirFacts contends Mr. de Amezaga has breached the

Agreement through his work at American.

       AirFacts also alleges Mr. de Amezaga breached the Agreement’s restriction on

providing services which are similar to AirFacts’ anticipated products. Specifically, while

at AirFacts, Mr. de Amezaga helped to develop customized proration software for

airlines. Proration occurs when a passenger buys a multi-airline ticket for a trip and the

ticket revenue must be prorated among each airline pursuant to negotiated airline

agreements and industry standards. AirFacts developed its proration product to help an

airline recoup the revenue due for its leg of the trip. Mr. de Amezaga helped to develop

and market the proration software to American and Alaska Airlines (“Alaska”), but only

Alaska purchased the customized product. Although the software was unfinished when

Mr. de Amezaga left, he spent about fifty percent of his final months at AirFacts working

on the proration product.

       Since joining American, Mr. de Amezaga has, among his duties, attended weekly

staff meetings that included senior employees of American’s Proration department,

received intra-company emails addressed to him as well as Proration department

employees, and coordinated between the Revenue Accounting department (the Refunds

department’s parent) and the Proration department on an accounting project. AirFacts

claims Mr. de Amezaga’s interaction with American’s Proration department employees



                                            6
constitutes a breach of the Agreement in light of his intimate prior knowledge of the

proration software AirFacts was developing when he resigned.

                                           B.

      AirFacts sued Mr. de Amezaga in the District of Maryland 5 for breach of contract

under Paragraphs 4.2 and 8.1 of the Agreement (Count One); misappropriation of trade

secrets under the Maryland Uniform Trade Secrets Act (“MUTSA”) (Count Two); and

conversion (Count Three). AirFacts also sought injunctive relief to protect the documents

Mr. de Amezaga took, and the district court entered a temporary restraining order

prohibiting Mr. de Amezaga from destroying any AirFacts documents. Later, the Parties

consented to a preliminary injunction requiring Mr. de Amezaga to return all AirFacts

documents and allowing AirFacts to forensically search his electronic devices. The

forensic searches confirmed that Mr. de Amezaga did retain the documents integral to the

claims on appeal after his termination of employment with AirFacts.

      The court held a five-day bench trial during which AirFacts abandoned its

conversion claim, admitting that it “ha[d]n’t been able to establish” that Mr. de Amezaga

deprived AirFacts of any documents. J.A. 1010; see 2017 WL 3592440, at *3. In its

memorandum opinion, the court concluded that AirFacts had also abandoned its

Paragraph 4.2 breach of contract claim. The court thus analyzed Count One only as to

Paragraph 8.1 of the Agreement and found that Mr. de Amezaga’s work at American was

neither similar to AirFacts’ work nor in competition with AirFacts’ proration product. On

      5
         The district court had diversity jurisdiction because AirFacts is a Delaware
corporation headquartered in Maryland and Mr. de Amezaga is a Virginia citizen.

                                           7
Count Two, the court found that the Flowcharts contained public information and were

widely available to AirFacts’ employees, and it concluded those documents were not

trade secrets under the MUTSA. And while the court held the Proration Documents were

MUTSA trade secrets, the court found that Mr. de Amezaga did not misappropriate those

documents because he accessed them with authorization while he was an AirFacts

employee. Consequently, the court entered judgment for Mr. de Amezaga on all counts.

AirFacts timely appealed, and this Court has jurisdiction under 28 U.S.C. § 1291.



                                             II.

       “We review a judgment following a bench trial under a mixed standard of

review—factual findings may be reversed only if clearly erroneous, while conclusions of

law . . . are examined de novo.” Roanoke Cement Co. v. Falk Corp., 413 F.3d 431, 433

(4th Cir. 2005).



                                             III.

       We first address AirFacts’ two breach of contract challenges, applying Maryland

law under the Agreement’s choice of law provision. J.A. 1213 (“This Agreement shall be

subject to and governed by the internal laws of the State of Maryland . . . .”).

                                             A.

       The district court found that AirFacts “narrowed its [breach of contract] claim

during trial to a breach of [P]aragraph 8, the non-solicitation of clients provision,”

thereby abandoning its claim under Paragraph 4.2 for Mr. de Amezaga’s retention of

                                              8
documents. 2017 WL 3592440, at *3. This statement was the district court’s only

mention of the Paragraph 4.2 claim. On appeal, AirFacts contends that it never

abandoned the claim and that the district court was therefore required to address the

claim. Mr. de Amezaga responds that AirFacts did “expressly” abandon the Paragraph

4.2 claim in closing argument when the district court requested a summary of Count One

and AirFacts did not specifically mention Paragraph 4.2 in response. Response Br. 15.

                                             1.

       Because an order failing to address all claims is not a final, appealable order, we

must first ensure that we have jurisdiction over this appeal. See Harrington v. Carlough,

No. 97-2710, 1999 WL 92419, at *2 (4th Cir. Feb. 24, 1999) (unpublished table decision)

(per curiam). Since the district court did not rule on the merits of the Paragraph 4.2 claim,

we directed the Parties to provide supplemental briefs on the issue of whether, if AirFacts

did not abandon its Paragraph 4.2 claim, the district court’s order was a final order over

which we have jurisdiction under 28 U.S.C. § 1291. See ECF No. 35. The Parties both

contended that appellate jurisdiction does exist. Having carefully examined the record

and relevant case law, we agree.

       This is not a case in which a court entirely overlooked a party’s claim. Cf.

Harrington, 1999 WL 92419, at *2. Rather, the court addressed AirFacts’ Paragraph 4.2

claim, albeit summarily, in deeming it abandoned. Furthermore, the district court’s order

lacks any indication that the court intended it to be anything but final: “[J]udgment will

be entered in favor of [Mr. de Amezaga] on all counts in the complaint.” 2017 WL

3592440, at *15; see Martin v. Duffy, 858 F.3d 239, 246 (4th Cir. 2017) (“[A]n order that

                                             9
fails to explicitly address or dispose of all claims presented to the court may nevertheless

qualify as a final, appealable order if [its] language . . . is calculated to conclude all the

claims before the district court . . . .” (internal quotation marks omitted)). We therefore

conclude there is a final, appealable order.

                                               2.

       Satisfied that we have jurisdiction, we turn to the court’s determination that

AirFacts abandoned its Paragraph 4.2 claim. Upon review of the record, particularly the

closing argument transcript and AirFacts’ filings, we cannot “fairly draw[ ]” an inference

of abandonment. See Jackson v. Fed. Express, 766 F.3d 189, 196 (2d Cir. 2014).

Accordingly, we reverse the district court’s finding that AirFacts abandoned its Paragraph

4.2 claim and vacate its judgment in that regard.

       Whether a claim was abandoned is “a primarily factual finding” we review for

clear error. Ellis v. United Airlines, Inc., 73 F.3d 999, 1003 (10th Cir. 1996), overruled on

other grounds by Smith v. City of Jackson, Miss., 544 U.S. 228 (2005). If not express,

abandonment must be clear and unambiguous. See Santos v. Frederick Cty. Bd. of

Comm’rs, 725 F.3d 451, 463 (4th Cir. 2013) (“The defendants cite no authority, nor can

we find any, holding that an ambiguous statement made during oral argument waives an

argument clearly raised in a brief.”); Lemmons v. Georgetown Univ. Hosp., 241 F.R.D.

15, 32 (D.D.C. 2007) (noting the complaint controls “in the absence of an express and

explicit indication that the plaintiff intended to leave one or more of [its] claims by the

wayside”). To determine whether acts constitute clear and unambiguous abandonment,

we weigh several commonsense factors: whether the party failed to advance the claim on

                                               10
appeal, failed to argue that the district court erred in not addressing it, or otherwise

represented that it did not intend to pursue the claim. See, e.g., Duberry v. Postmaster

Gen., 652 F. App’x 770, 772 n.2 (11th Cir. 2016) (per curiam) (holding a party

abandoned a claim when it failed to advance it on appeal or argue the district court erred

in dismissing it); NAACP v. City of Kyle, Tex., 626 F.3d 233, 236 & n.2 (5th Cir. 2010)

(holding a party abandoned a case theory when it agreed its case would “rise or fall” on

another theory and did not correct opposing counsel’s characterization that the first

theory was waived); Harrington, 1999 WL 92419, at *2 (holding a party did not abandon

a claim it had briefed in its proposed Conclusions of Law in the trial court, argued was

still in play on appeal, and “disclaim[ed] any intention” to abandon).

       AirFacts’ consistent representations preclude a finding of abandonment. First, the

Paragraph 4.2 claim was clearly pled in Count One of the Complaint, specifically in

Paragraph 40. Second, AirFacts briefed and pursued the Paragraph 4.2 claim in the trial

court, including by outlining the Paragraph 4.2 contentions in a joint pretrial order and

expressly stating it was “not abandon[ing] any issue set forth in its pleadings.” No. 8:15-

cv-01489-DKC, ECF No. 49 at 4–8, 21; see Harrington, 1999 WL 92419, at *2.

       Third, in its factual summary at closing, AirFacts reviewed the document retention

evidence that supports the Paragraph 4.2 claim. Though it did not expressly tie that

evidence to the Paragraph 4.2 claim, AirFacts explained that evidence in relation to the

MUTSA claims, both of which depend on the alleged trade secret documents that Mr. de

Amezaga retained (contrary to his duties under Paragraph 4.2) after he left AirFacts.

Compare J.A. 958–59 (factual summary) with J.A. 994–95 (MUTSA claims argument).

                                            11
       Fourth, while AirFacts did not specifically argue the Paragraph 4.2 claim at

closing, neither did it expressly abandon the claim. In arguing AirFacts abandoned the

claim, Mr. de Amezaga relies on AirFacts’ failure to include a specific Paragraph 4.2

reference in response to the court’s request for a summary of Count One. Indeed, neither

Party mentioned the Paragraph 4.2 claim at closing. And when Mr. de Amezaga in his

closing characterized AirFacts’ argument as “just talking about section—[P]aragraph 8 of

the contract,” J.A. 1029, AirFacts did not refute that characterization. However, Mr. de

Amezaga never specifically argued to the district court that AirFacts abandoned the

Paragraph 4.2 claim.

       These facts do not constitute abandonment because AirFacts’ failure to address

Paragraph 4.2 was at most ambiguous, not a clear and express abandonment of the claim.

See Santos, 725 F.3d at 463 (“[A]n ambiguous statement made during oral argument

[does not] waive[ ] an argument clearly raised in a brief.”). And on appeal, AirFacts has

directly challenged the district court’s ruling on the Paragraph 4.2 claim and briefed the

claim on its merits. Contra Duberry, 652 F. App’x at 772 n.2 (“Because [the plaintiff]

makes no argument that she did not abandon her contract claim or that the district court

otherwise erred in implicitly disposing of it, any breach-of-contract argument has been

abandoned on appeal.”).

       We liken these facts to those in Ellis, an age discrimination case, in which the

plaintiffs at summary judgment stressed their disparate impact claim over their disparate

treatment claim and stated that success on the latter in light of recent case law “might be

difficult.” 73 F.3d at 1004. Though the plaintiffs expressly declined to abandon their

                                            12
disparate treatment claim, the district court relied on the summary judgment statements to

hold it was abandoned. Id. at 1003–04. On appeal, the Tenth Circuit weighed the

plaintiffs’ concession of difficulty against their “articulat[ion of] the legal and factual

basis for their disparate treatment claim” in their briefs and concluded the concession did

not constitute abandonment. Id. at 1004. Similarly, in Hunt v. City of Los Angeles, the

Ninth Circuit remanded a statutory claim the plaintiffs had not abandoned despite their

assertion that their case “center[ed]” on two other statutory provisions they were

“primarily challenging.” 638 F.3d 703, 718–19 (9th Cir. 2011). Because the plaintiffs

“asserted only that they were primarily challenging the other two ordinances, not that

they were dropping their claims regarding [the third],” the Ninth Circuit held that the

district court incorrectly deemed the claim abandoned. Id. at 719.

       Just as those lower courts could not fairly construe the plaintiffs’ oral argument

statements as abandonment, the district court could not do so here. While AirFacts’

failure to address the Paragraph 4.2 contentions in closing may have been sloppy

advocacy, that failure did not rise to a clear and unambiguous abandonment of a claim it

had consistently pursued throughout the case. Consequently, applying our commonsense

standards for claim abandonment, we hold the district court clearly erred in holding

AirFacts abandoned its Paragraph 4.2 contentions. We thus vacate the district court’s

judgment on the Paragraph 4.2 claim and remand for consideration on the merits. 6


       6
         AirFacts broadly alleged Count One of the Complaint as “Breach of Contract,”
incorporating by reference citations to Paragraphs 2, 4.2, 7.2, and 8.1 of the Agreement.
J.A. 16. On appeal, AirFacts challenges the district court’s conclusion that all claims but
(Continued)
                                            13
                                           B.

      Turning to AirFacts’ breach of contract claim for violation of the Paragraph 8.1(d)

non-compete clause, the Agreement prohibits Mr. de Amezaga from performing any

services for an AirFacts “customer” which are “in competition with, or similar to, either

(i) the services or products provided by the employer during the term of the employee’s

employment or (ii) anticipated services or products of the employer of which the

employee has material knowledge.” J.A. 1213. It is undisputed that American was an

AirFacts customer while Mr. de Amezaga worked at AirFacts. 7

                                           1.

      For one year after his departure from AirFacts, Mr. de Amezaga was prohibited

from providing services to a new employer “in competition with, or similar to” the

services “provided by [AirFacts]” during his employment with AirFacts. J.A. 1213.

According to the plain language of Paragraph 8.1(d)(i), in this inquiry we must compare

Mr. de Amezaga’s work at American to the services AirFacts provided to any customer

during his employment at AirFacts. We accept the trial court’s credibility assessments


the Paragraph 8.1 claim were abandoned, but it mentions only Paragraphs 2 and 4.2.
Thus, AirFacts has waived any Paragraph 7.2 claim. See Fed. R. App. P. 28(a)(8)(A). The
Parties mainly analyze the Paragraph 4.2 claim on appeal, but to the extent the district
court’s erroneous abandonment conclusion affected Paragraph 2, that claim is also live.
On remand, the district court should address the merits of both the Paragraph 2 and 4.2
claims.
        7
          Paragraph 8.2 of the Agreement defines “customer” as a “customer who within
the twelve months prior to the date of employee’s termination has been a customer of the
employer.” J.A. 1213. Because American began using TicketGuard in late 2014 and Mr.
de Amezaga resigned in February 2015, American was an AirFacts “customer” during
the relevant time period. See 2017 WL 3592440, at *2 n.4, *3.

                                           14
and address only the legal question of whether Mr. de Amezaga’s work at American and

AirFacts’ services are competing or similar.

       As a manager in American’s Refunds department, Mr. de Amezaga’s main

responsibilities are processing refunds, managing processing employees, and advising

other departments how to optimize procedures. To process passenger refunds, Mr. de

Amezaga uses American’s proprietary software, but he does not use TicketGuard because

he does not audit tickets. Only American’s Travel Agency Audit department uses

TicketGuard. Even when Mr. de Amezaga assisted that department with a ticket backlog,

it was to process refunds, not to conduct audits.

       AirFacts, on the other hand, conducts its contract audits using TicketGuard or

licenses TicketGuard to an airline to audit its own tickets. The record reflects that

AirFacts does not process refunds, offer managerial services, or advise its customers

about optimizing their internal processes. And even though AirFacts does use

TicketGuard to audit ticket refunds, AirFacts presented no evidence that Mr. de Amezaga

or American “processes refunds in a way that is at all similar to the TicketGuard process

for auditing refunds.” 2017 WL 3592440, at *5 (emphases added).

       AirFacts argues that because ticket audits and ticket refunds both compare a

ticket’s price to industry rates and rules, the processes are similar. In AirFacts’ view,

when Mr. de Amezaga processes refunds at American, he is mimicking his audit work at

AirFacts, despite the differences in his new title and department. Nonetheless, AirFacts

concedes that the audit and refund functions have distinct purposes and end recipients:

the ticket seller under an audit versus the passenger in a refund claim. These distinctions

                                             15
are significant and confirm that Mr. de Amezaga’s work at American is not “in

competition with” or “similar to” AirFacts’ services. Consequently, he has not breached

Paragraph 8.1(d)(i).

                                           2.

       We likewise conclude that Mr. de Amezaga did not breach Paragraph 8.1(d)(ii) by

working at American despite his knowledge of AirFacts’ anticipated proration product.

The Agreement prohibits Mr. de Amezaga from providing services “in competition with,

or similar to” the “anticipated services or products of the employer of which the

employee has material knowledge.” J.A. 1213. Again, we must compare Mr. de

Amezaga’s work at American to the services AirFacts anticipated providing through its

proration product during the time of his employment.

       Mr. de Amezaga had material knowledge of AirFacts’ proration product because

he assisted in marketing it to American and Alaska on AirFacts’ behalf. In his final

months at AirFacts, he spent half of his time developing Alaska’s customized proration

software.

       However, Mr. de Amezaga offers no proration services at American, and

American informed his coworkers that he was prohibited from doing so. Mr. de Amezaga

does no work for the Proration department and offers no proration services at American

because proration is outside his Refunds department job duties. AirFacts’ evidence of any

tasks even tangential to proration is scant: Mr. de Amezaga attends staff meetings that

sometimes include Proration department employees, reads company emails sent to him

and Proration employees, and once coordinated an accounting project between the

                                           16
Revenue and Proration departments. The district court properly considered that work at

American insufficiently similar to or in competition with AirFacts’ proration software

and thus correctly held Mr. de Amezaga did not breach Paragraph 8.1(d)(ii).

       Consequently, we affirm the district court’s judgment on Count One as to the

Paragraph 8.1 claim.



                                             IV.

       We now turn to AirFacts’ Maryland trade secrets claims. “To prove

misappropriation of a trade secret [under the MUTSA], a plaintiff must show (1) that it

possessed a valid trade secret, (2) that the defendant acquired its trade secret, and (3) that

the defendant knew or should have known that the trade secret was acquired by improper

means.” Trandes Corp. v. Guy F. Atkinson Co., 996 F.2d 655, 660 (4th Cir. 1993) (citing

Md. Code Com. Law § 11-1201(c)(1)).

       Under the MUTSA, a “trade secret” is

       information, including a formula, pattern, compilation, program, device,
       method, technique, or process, that:
       (1)   Derives independent economic value, actual or potential, from not
             being generally known to, and not being readily ascertainable by
             proper means by, other persons who can obtain economic value from
             its disclosure or use; and
       (2)   Is the subject of efforts that are reasonable under the circumstances
             to maintain its secrecy.

Md. Code Com. Law § 11-1201(e). Before the MUTSA was codified, Maryland applied

the Restatement’s factor-based definition of “trade secret,” which remains useful in a




                                             17
MUTSA analysis. Trandes, 996 F.2d at 661. Under the Restatement, a trade secret can be

identified by:

       (1) the extent to which the information is known outside of his business; (2)
       the extent to which it is known by employees and others involved in his
       business; (3) the extent of measures taken by him to guard the secrecy of
       the information; (4) the value of the information to him and to his
       competitors; (5) the amount or effort or money expended by him in
       developing the information; (6) the ease or difficulty with which the
       information could be properly acquired or duplicated by others.

Restatement (First) of Torts § 757 cmt. b.

       After demonstrating an item is a trade secret, a plaintiff must show that the

defendant has misappropriated it. Trandes, 996 F.2d at 660. “Misappropriation” under the

MUTSA is, in relevant part, “(1) Acquisition of a trade secret of another by a person who

knows or has reason to know that the trade secret was acquired by improper means; or (2)

Disclosure or use of a trade secret of another without express or implied consent by a

person who” improperly acquired it or knew another person improperly or mistakenly

acquired it. Md. Code Com. Law § 11-1201(c).

       AirFacts contends Mr. de Amezaga misappropriated its trade secrets by taking the

Flowcharts and Proration Documents.

                                             A.

       Addressing the first element of the MUTSA claim, the district court concluded

that the Flowcharts are not trade secrets because they are simply an “overview” of

publicly available ATPCO information that AirFacts did not own. 2017 WL 3592440, at

*10. As a consequence, the district court held there was no MUTSA claim regarding the

retained Flowcharts. We disagree.

                                             18
       A trade secret both derives independent economic value from being secret—at

least not readily ascertainable by third parties—and enjoys reasonable efforts to maintain

its secrecy. Md. Code Com. Law § 11-1201(e); see EndoSurg Med., Inc. v. EndoMaster

Med., Inc., 71 F. Supp. 3d 525, 545 (D. Md. 2014). The evidence at trial demonstrated the

Flowcharts are independently valuable and AirFacts preserved them as such.

       First, the Flowcharts are valuable because they contain information not readily

ascertainable to outsiders. Though anyone with a subscription can access the ATPCO

data, Mr. de Amezaga spent months compiling it in particular groupings and applying his

ATPCO expertise to display that compiled information in a useful format. Courts have

long recognized that “a trade secret can exist in a combination of characteristics and

components, each of which, by itself, is in the public domain, but the unified process,

design and operation of which, in unique combination, affords a competitive advantage

and is a protectable secret.” Imperial Chem. Indus. v. Nat’l Distillers & Chem. Corp., 342

F.2d 737, 742 (2d Cir. 1965) (collecting cases); see also Comprehensive Techs. Int’l, Inc.

v. Software Artisans, Inc., 3 F.3d 730, 736 (4th Cir. 1993) (“[A]lthough a trade secret

cannot subsist in information in the public domain, it can subsist in a combination of such

information, as long as the combination is itself secret.”), vacated pursuant to settlement.

       Mr. de Amezaga’s painstaking, expert arrangement of the ATPCO data made the

Flowcharts inherently valuable separately and apart from the publicly available contents.

It is the value Mr. de Amezaga added by incorporating “things from [his] head” that

establishes the Flowcharts as unique items of economic value in AirFacts’ field of

endeavor. J.A. 827; see Motor City Bagels, L.L.C. v. Am. Bagel Co., 50 F. Supp. 2d 460,

                                             19
473–79 (D. Md. 1999) (noting the trade secrets at issue “include[d] personal insights and

analysis brought to bear through diligent research and by marshaling a large volume of

information” and “an attempt to independently duplicate the plaintiffs’ efforts . . . would

be an onerous task”); Mettler–Toledo, Inc. v. Acker, 908 F. Supp. 240, 247 (M.D. Pa.

1995) (“The fact that individual pieces of information claimed to be confidential are

available to the general public does not defeat a claim of confidentiality if the value of the

information stems from its compilation or collection in a single place or in a particular

form which is of value.”); ISC-Bunker Ramo Corp. v. Altech, Inc., 765 F. Supp. 1310,

1322 (N.D. Ill. 1990) (“[T]he effort of compiling useful information is, of itself, entitled

to protection even if information is otherwise generally known.”); Space Aero Prods. Co.

v. R. E. Darling Co., 208 A.2d 74, 79 (Md. 1965) (“The subject-matter capable of

protection may be an industrial secret like a machine, process, or formula, or it may be

industrial know-how [or] information of any sort [or] the product of work, or expenditure

of money, or of trial and error, or the expenditure of time.”); Restatement (First) of Torts

§ 757 cmt. b (5)–(6) (noting value can be imputed by effort and time expended and

difficulty of replication). The Flowcharts fit these descriptions as trade secrets.

       Second, the Flowcharts are valuable because they would improve AirFacts’

efficiency in the performance of its contractual obligations. AirFacts’ CEO testified that

auditors using the Flowcharts would be able to analyze Fare by Rule tickets faster than

they could unaided. That the Flowcharts “did not contain information or processes unique

to [AirFacts],” 2017 WL 3592440, at *10, confirms that the Flowcharts would be useful

to any AirFacts competitor conducting Fare by Rule audits because they succinctly

                                              20
display the vast amounts of ATPCO data required for that type of audit. See Motor City

Bagels, 50 F. Supp. 2d at 479 (holding documents were valuable because of the effort

expended to compile publicly available information). Contra Diamond v. T. Rowe Price

Assocs., 852 F. Supp. 372, 412 (D. Md. 1994) (“While these documents may have some

utility to T. Rowe Price, there is no evidence that they have any independent economic

value for anyone else.”). For these two reasons, the Flowcharts have independent

economic value.

      Finally, AirFacts took reasonable steps to maintain the Flowcharts’ secrecy. Even

if widespread use within the company was their “intended purpose,” we find no evidence

in the record for the district court’s conclusion that “the flowcharts themselves appear to

have been widely known to Plaintiff’s employees.” 2017 WL 3592440, at *10. 8 On the

contrary, AirFacts required all employees to sign confidentiality agreements, installed

monitoring software on every computer to track employees’ actions, and specifically

protected the Flowcharts by giving only “a few” employees access to AirFacts’


       8
         Even if the Flowcharts were widely known within the company and used by
AirFacts’ auditing employees, that factor alone would not necessarily thwart trade secret
status. What use is a trade secret if its owner cannot use it to its advantage in the
marketplace? And to do so, the owner’s employees must be able to use the advantageous
tool or information to serve customers better than their competitors. This principle
comports with weighing employee knowledge against the finding of a trade secret when
those employees do not need the knowledge to do their jobs. See Restatement (First) of
Torts § 757 cmt. b (including as a factor in trade secret status “the extent to which
[information] is known by employees”). If AirFacts published the Flowcharts to their
auditing employees but not to the cleaning staff, the Flowcharts’ secrecy would not
decrease. What matters is the efforts AirFacts took to preserve the Flowcharts’
confidential status outside of the normal scope of their restricted use within AirFacts’
business.

                                            21
Lucidchart accounts. J.A. 830. We agree with the reasoning of the District of Maryland in

Albert S. Smyth Co. v. Motes, in which it recently found that a company’s imposing a

confidentiality policy and restricting access to electronic documents contributed to

finding the documents at issue were trade secrets. No. CCB-17-677, 2018 WL 3635024,

at *3 (D. Md. July 31, 2018) (noting the company prohibited employees from disclosing

company information, instructed employees how to keep information safe, and stored

records on encrypted servers to which few employees had access); see also Restatement

(First) of Torts § 757 cmt. b (2)–(3). Therefore, we conclude the district court erred in

holding the Flowcharts are not trade secrets and vacate and remand this claim for the

district court to address in the first instance whether Mr. de Amezaga misappropriated

these trade secrets.

                                           B.

       Finally, we address AirFacts’ trade secrets claim relating to the Proration

Documents. Mr. de Amezaga emailed the Proration Documents to his personal email

account on his last day of employment at AirFacts. The framework and database model,

which he had developed for AirFacts, condensed information from airline proration

agreements into a more concise format that AirFacts could use in developing its proration

product. AirFacts intended to use the Proration Documents to demonstrate to Alaska how

its custom proration product would work. The district court held that these documents are

trade secrets because they were part of AirFacts’ “proration engine under development,”

but that Mr. de Amezaga did not misappropriate the Proration Documents because he



                                           22
accessed them in the scope of his employment and emailed them to himself only to

answer questions from AirFacts after he resigned. 2017 WL 3592440, at *11.

       AirFacts appeals the district court’s misappropriation ruling. Because we follow

the district court’s credibility determination that Mr. de Amezaga accessed the Proration

Documents with authorization and did not intend to access, use, or send them to anyone

(but his AirFacts supervisors) after his last day at AirFacts, we affirm.

       Even if an employee does not disclose trade secrets to a third party, he can

misappropriate those trade secrets if he knows or has reason to know he acquired them

“by improper means.” Md. Code Com. Law § 11-1201(c)(1); see LeJeune v. Coin

Acceptors, Inc., 849 A.2d 451, 465–66 (Md. 2004). Consequently, we must consider the

facts surrounding Mr. de Amezaga’s acquisition of the Proration Documents: he helped

to create them and worked on them through his final day at AirFacts; AirFacts employees

occasionally worked remotely and used their personal email accounts to send and save

company documents; Mr. de Amezaga’s superiors asked him to be available to answer

questions after he resigned; the AirFacts employees who contacted Mr. de Amezaga after

he resigned did not ask questions about the proration project; and Mr. de Amezaga never

accessed the Proration Documents in his personal email account after he resigned.

       Relying on these facts, the district court found credible Mr. de Amezaga’s

testimony that he emailed the Proration Documents to himself so he could answer

AirFacts employees’ questions about the proration project. Even though AirFacts’

computer monitoring software revealed that Mr. de Amezaga deleted the email he sent to

himself from his company computer, the district court concluded that “this is not

                                             23
convincing evidence that Defendant knew his actions were improper and intended to hide

those actions.” 2017 WL 3592440, at *12. In addition, the district court likened these

facts to those in Diamond, in which a former employee retained company documents at

her home that her employer had regularly sent to her during her employment because she

was authorized to work from home. 852 F. Supp. at 412 & n.193. Taking the facts as the

district court found them, we perceive no legal error in the district court’s conclusion that

Mr. de Amezaga did not misappropriate the Proration Documents in emailing them to

himself for continued AirFacts business. Accordingly, we affirm.



                                             V.

       For the foregoing reasons, we vacate the district court’s judgment on Count One as

to the Paragraph 4.2 breach of contract claim and on Count Two as to the Flowcharts

MUTSA claim and remand these claims for further proceedings consistent with this

opinion. We affirm the remainder of the district court’s judgment.

                                              AFFIRMED IN PART, VACATED IN PART,
                                                                 AND REMANDED




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