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                           NOT FOR PUBLICATION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


                            FOR THE NINTH CIRCUIT


INFOSPAN, INC.,                                  No.   17-55000

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

EMIRATES NBD BANK PJSC,                          MEMORANDUM*

              Defendant-Appellee.


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

                        Argued and Submitted July 11, 2018
                               Pasadena, California

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

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

misappropriation, misrepresentation, and unfair competition claims against

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

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

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

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

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

properly instructed, we affirm.

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

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

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

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

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

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

evidence to establish the following:

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

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

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

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



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

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

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

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

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

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

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

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

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

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

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

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

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

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

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



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

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

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

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

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

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

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

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

good faith qualifying language InfoSpan requested was not an abuse of

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

declaration of a previously undisclosed expert witness.

      AFFIRMED.




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