Case 5:22-cv-02637-EJD Document 66 Filed 06/30/22 Page 1 of 20
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`QUINN EMANUEL URQUHART & SULLIVAN, LLP
` Stephen Swedlow (Admitted Pro hac vice)
` stephenswedlow@quinnemanuel.com
`191 N. Wacker Drive, Suite 2700
`Chicago, Illinois 60606
`Telephone:
`(312) 705-7400
`Facsimile: (312) 705-7401
`
` David Eiseman (Bar No. 114758)
` davideiseman@quinnemanuel.com
` Victoria B. Parker (Bar No. 290862)
` vickiparker@quinnemanuel.com
`50 California Street, 22nd Floor
`San Francisco, California 94111-4788
`(415) 875-6600
`Telephone:
`(415) 875-6700
`Facsimile:
`
`Attorneys for Defendants Rivos Inc. and Wen
`Shih-Chieh a/k/a Ricky Wen
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN JOSE DIVISION
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`Case No. 5:22-CV-2637-EJD
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`DEFENDANT WEN SHIH-CHIEH (a/k/a
`RICKY WEN)’S NOTICE OF MOTION
`AND MOTION TO DISMISS
`January 19, 2023
`Date:
`Time:
`9:00 a.m.
`Courtroom: 4
`Judge:
`The Hon. Edward J. Davila
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`Trial Date: None Set
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`APPLE INC.,
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`Plaintiff,
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`vs.
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`RIVOS INC., WEN SHIH-CHIEH a/k/a
`RICKY WEN and BHASI KAITHAMANA,
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`Defendants.
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`AND
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`Ca se No. 5:22-CV-2637-EJD
`WEN’S MOTION TO DISMISS
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`

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`Case 5:22-cv-02637-EJD Document 66 Filed 06/30/22 Page 2 of 20
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`NOTICE OF MOTION AND MOTION
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`TO ALL PARTIES AND THEIR COUNSEL OF RECORD:
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`PLEASE TAKE NOTICE that, on January 19, 2023, at 9:00 a.m., or as soon thereafter as
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`the matter may be heard in the above-entitled Court, the Honorable Edward J. Davila presiding,
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`located at the San Jose Courthouse, Courtroom 4, 5th Floor, 280 South 1st Street, San Jose, CA
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`95113, Defendant Ricky Wen will and hereby does move this Court for an order dismissing Plaintiff
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`Apple Inc.’s Complaint (Dkt. No. 1) pursuant to Federal Rule of Civil Procedure 12(b)(6). The
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`motion is made on the grounds that the Complaint fails to state a claim for which relief may be
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`granted.
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`This motion is based on this Notice of Motion and Motion, the accompanying Memorandum
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`of Points and Authorities, the other pleadings and filings on record in this action, as well as other
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`written or oral argument that Ricky Wen may present to the Court.
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`Respectfully submitted,
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`QUINN EMANUEL URQUHART & SULLIVAN,
`LLP
`
`By
`
`/s/ Stephen Swedlow
`STEPHEN SWEDLOW
`DAVID EISEMAN
`VICTORIA B. PARKER
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`Attorneys for Defendants Rivos, Inc. and Wen
`Shih-Chieh a/k/a Ricky Wen
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`DATED: June 30, 2022
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`-1-
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`Ca se No. 5:22-CV-2637-EJD
`WEN’S MOTION TO DISMISS
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`

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`Case 5:22-cv-02637-EJD Document 66 Filed 06/30/22 Page 3 of 20
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`TABLE OF CONTENTS
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`MEMORANDUM OF POINTS AND AUTHORITIES ...............................................................1
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`I.
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`INTRODUCTION...........................................................................................................1
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`II.
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`RELEVANT FACTS ALLEGED IN THE COMPLAINT ................................................2
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`III.
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`LEGAL STANDARD .....................................................................................................3
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`IV.
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`ARGUMENT..................................................................................................................3
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`A.
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`Apple’s Defense of Trade Secrets Act Claim Against Wen Fails to State a
`Claim For Which Relief Can Be Granted ..............................................................3
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`1.
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`Apple Has Not Identified the Trade Secrets Allegedly
`Misappropriated by Wen ...........................................................................3
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`2.
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`Apple Has Not Alleged Misappropriation ..................................................6
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`(a)
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`Apple Has Not Alleged Wrongful Acquisition ................................6
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`(b)
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`Apple Has Not Alleged Use or Disclosure ......................................7
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`3.
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`Apple Has Not Alleged Harm Caused By Any Misappropriation ................8
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`B.
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`Apple’s Breach of Contract Claim Against Wen Fails to State a Claim Upon
`Which Relief Can be Granted ...............................................................................9
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`1.
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`2.
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`Apple Has Not Alleged Breach of the IPA .................................................9
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`Apple Conflates the Requirements of the IPA With Non-Contractual
`Checklists and Policies............................................................................11
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`3.
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`Apple Has Not Alleged Harm From the Alleged Breach of the IPA ..........11
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`C.
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`Leave To Amend Should Not Be Granted ...........................................................12
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`CONCLUSION.............................................................................................................13
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`V.
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`-i-
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`Ca se No. 5:22-CV-2637-EJD
`WEN’S MOTION TO DISMISS
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`Case 5:22-cv-02637-EJD Document 66 Filed 06/30/22 Page 4 of 20
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`
`
`TABLE OF AUTHORITIES
`
`Cases
`
`Page
`
`Aguilera v. Pirelli Armstrong Tire Corp.,
` 223 F.3d 1010 (9th Cir. 2000) .......................................................................................... 12
`
`AlterG, Inc. v. Boost Treadmills LLC,
` 388 F. Supp. 3d 1133 (N.D. Cal. 2019) ............................................................................... 4
`
`Artec Grp., Inc. v. Klimov,
` No. 15-CV-03449-EMC, 2016 WL 8223346 (N.D. Cal. Dec. 22, 2016) ............................5, 9
`
`Ashcroft v. Iqbal,
` 556 U.S. 662 (2009)......................................................................................................3, 12
`
`AWP, Inc. v. Henry,
` No. 1:20-CV-01625-SDG, 2020 WL 6876299 (N.D. Ga. Oct. 28, 2020) .............................. 8
`
`Buttram v. Owens–Corning Fiberglas Corp.,
` 16 Cal.4th 520 (1997) ...................................................................................................... 12
`
`Carl Zeiss Meditec, Inc. v. Topcon Medical Sys., Inc.,
` No. 19-4162 SBA, 2019 WL 11499334 (N.D. Cal. Nov. 13, 2019) ...................................5, 8
`
`CleanFish, LLC v. Sims,
` No. 19-CV-03663-HSG, 2020 WL 4732192 (N.D. Cal. Aug. 14, 2020) ............................... 4
`
`Cooper Interconnect, Inc. v. Glenair, Inc,
` No. CV 14-08018-RGK(JCx) 2015 WL 13722129 (C.D. Cal. Feb. 3, 2015)......................... 9
`
`Cotiviti, Inc. v. Deagle,
` 501 F. Supp. 3d 243 (S.D.N.Y. 2020) ............................................................................... 13
`
`Delacruz v. State Bar of California,
` No. 16-CV-06858-BLF, 2017 WL 3129207 (N.D. Cal. July 24, 2017) ............................... 12
`
`Epicor Software Corp. v. Alternative Tech. Sols., Inc.,
` No. SACV1300448CJCRNBX, 2013 WL 12130024 (C.D. Cal. Dec. 2, 2013) ..................... 8
`
`Fayer v. Vaughn,
` 649 F.3d 1061 (9th Cir. 2011) ............................................................................................ 3
`
`Golden v. California Emergency Physicians Med. Grp.,
` 896 F.3d 1018 (9th Cir. 2018) ............................................................................................ 8
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`Ca se No. 5:22-CV-2637-EJD
`WEN’S MOTION TO DISMISS
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`Case 5:22-cv-02637-EJD Document 66 Filed 06/30/22 Page 5 of 20
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`Gutierrez v. State Farm Ins. Co.,
` No. 12-5846 PSG, 2013 WL 2403651 (N.D. Cal. May 31, 2013) ......................................... 9
`
`Kaplan v. California Pub. Employees’ Ret. Sys.,
` No. C 98-1246 CRB, 1998 WL 575095 (N.D. Cal. Sept. 3, 1998),
` aff’d, 221 F.3d 1348 (9th Cir. 2000) ............................................................................12, 13
`
`KapStone Container Corp. v. Boyd,
` No. 1:17-CV-01902-TWT, 2017 WL 4948074 (N.D. Ga. June 27, 2017) ............................. 8
`
`KLA-Tencor Corp. v. Murphy,
` 717 F. Supp. 2d 895 (N.D. Cal. 2010) ............................................................................... 12
`
`Lamont v. Conner,
` No. 5:18-CV-04327-EJD, 2019 WL 1369928 (N.D. Cal. Mar. 26, 2019) ..........................5, 6
`
`Langan v. United Servs. Auto. Ass’n,
` 69 F. Supp. 3d 965 (N.D. Cal. 2014)................................................................................. 11
`
`Navigation Holdings, LLC v. Molavi,
` 445 F. Supp. 3d 69 (N.D. Cal. 2020)................................................................................... 3
`
`Pellerin v. Honeywell Int’l, Inc.,
` 877 F. Supp. 2d 983 (S.D. Cal. 2012) ............................................................................7, 10
`
`Quintessential, LLC v. Quintessential Brands S.A.,
` No. 20-CV-01722-JD, 2022 WL 357502 (N.D. Cal. Feb. 7, 2022) ....................................... 7
`
`Soc. Apps, LLC v. Zynga, Inc.,
` No. 4:11-CV-04910 YGR, 2012 WL 2203063 (N.D. Cal. June 14, 2012) ............................ 4
`
`Soil Retention Prod., Inc. v. Brentwood Indus., Inc.,
` 521 F. Supp. 3d 929 (S.D. Cal. 2021) ............................................................................... 11
`
`Space Data Corp. v. X,
` No. 16-CV-03260-BLF, 2017 WL 5013363 (N.D. Cal. Feb. 16, 2017) ................... 4, 6, 7, 10
`
`Spice Jazz LLC v. Youngevity Int’l, Inc.,
` No. 19-CV-0583-BAS-DEB, 2020 WL 6484640 (S.D. Cal. Nov. 4, 2020) ........................... 7
`
`Teradata Corp. v. SAP SE,
` No. 18-CV-03670-WHO, 2018 WL 6528009 (N.D. Cal. Dec. 12, 2018) .............................. 6
`
`Tri Cnty. Tel. Association, Inc. v. Campbell,
` No. 17-CV-089-F, 2018 WL 10399165 (D. Wyo. Apr. 17, 2018) ...................................... 13
`
`Valenzuela v. City of Calexico,
` No. 14-CV-481-BAS-PCL, 2015 WL 2184304 (S.D. Cal. May 11, 2015) .......................... 13
`
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`-iii-
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`Ca se No. 5:22-CV-2637-EJD
`WEN’S MOTION TO DISMISS
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`Case 5:22-cv-02637-EJD Document 66 Filed 06/30/22 Page 6 of 20
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`Vendavo, Inc. v. Price f(x) AG,
` No. 17-CV-06930-RS, 2018 WL 1456697 (N.D. Cal. Mar. 23, 2018) ...............................5, 6
`
`Watkins v. MGA Ent., Inc.,
` No. 21-CV-00617-JCS, 2021 WL 5865529 (N.D. Cal. Dec. 10, 2021) ................................. 3
`
`Zurich Am. Life Ins. Co. v. Nagel,
` 538 F. Supp. 3d 396 (S.D.N.Y. 2021) ................................................................................. 6
`
`Statutory Authorities
`
`18 U.S.C. § 1836(b)(3)(A)(i)...................................................................................................... 8
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`18 U.S.C. § 1839(5)(A).............................................................................................................. 6
`
`18 U.S.C. § 1839(5)(B).............................................................................................................. 6
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`Rules and Regulations
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`Fed. R. Civ. P. 12(b)(6) ............................................................................................................. 3
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`Ca se No. 5:22-CV-2637-EJD
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`Case 5:22-cv-02637-EJD Document 66 Filed 06/30/22 Page 7 of 20
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`MEMORANDUM OF POINTS AND AUTHORITIES
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`I.
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`INTRODUCTION
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`Plaintiff Apple Inc. (“Apple”) has named its former employee, Defendant Ricky Wen
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`(“Wen”), as one of two individual defendants in its complaint for trade secret misappropriation and
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`breach of contract, along with Wen’s current employer, Defendant Rivos Inc. (“Rivos”). But cutting
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`through the rhetoric and the conclusory legal conclusions, Apple fails to allege the requisite elements
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`to assert either claim against Wen.
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`In its complaint, Apple alleges that Wen acquired Apple confidential documents and trade
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`secrets while he worked at Apple, and then retained those materials after resigning in violation of
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`an Intellectual Property Agreement (“IPA”). However, Apple does not allege anywhere that Wen
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`improperly acquired those documents, or that he actually used or disclosed Apple’s trade secrets—
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`in other words, Apple does not allege misappropriation. Instead, the Complaint alleges in
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`conclusory terms that “Apple believes that further discovery will likely show that Apple’s trade
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`secret information has been improperly disclosed to Rivos and used by Rivos and [Mr. Wen].”
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`(Compl. ¶ 80, emphasis added.)
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`Apple also suggests that dozens of its other former employees may be at risk of being drawn
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`into this lawsuit by virtue of their decision to leave Apple and work at Rivos. Compl. ¶ 3, 80. Apple
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`then asks the Court to assume that Wen, co-defendant Bhasi Kaithamana (“Kaithamana”),1 and the
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`other, unnamed Rivos employees are “likely to make use of [Apple’s trade secrets] in the course of
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`their employment at Rivos.” (Compl. ¶ 80, emphasis added.) But passive retention of a former
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`employer’s trade secrets is insufficient to state a claim, and Apple’s allegations of harm underlying
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`its DTSA claim require the Court to assume that Wen and the other former Apple employees will
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`“inevitably disclose” Apple trade secrets by virtue of working at a competitor. This legal theory has
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`been rejected by California courts as an illegal restraint on competition and employees’ ability to
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`select the employment of their choosing.
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`1 For reasons unrelated to the allegations in Apple’s complaint, Kaithamana is no longer an
`employee of Rivos.
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`-1-
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`Ca se No. 5:22-CV-2637-EJD
`WEN’S MOTION TO DISMISS
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`Case 5:22-cv-02637-EJD Document 66 Filed 06/30/22 Page 8 of 20
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`Nor does Apple adequately allege breach of contract. Not only is it unclear which document
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`Apple actually intends to sue on, but Apple nowhere distinguishes between the confidential
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`information and the trade secret information allegedly at issue, and it fails to demonstrate any
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`alleged harm. These failures—and others—doom Apple’s breach of contract claim.
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`Apple has failed to plead a viable claim for either trade secret misappropriation or breach of
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`contract against Wen and concedes that it would like to conduct additional discovery to find facts
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`to assert a misappropriation claim. This is impermissible. As a result, Apple’s complaint should be
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`dismissed with prejudice as to Wen.
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`II.
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`RELEVANT FACTS ALLEGED IN THE COMPLAINT2
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`Wen left his employment at Apple in August 2021 after working at Apple for nearly 14
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`years. Compl. ¶ 48. During that time, Wen worked as a CPU design engineer, and worked on some
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`aspects of Apple’s ARM-based SoCs. Id. In the weeks leading up to Wen’s resignation from Apple,
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`he transferred files off of his Apple-issued devices onto an external storage drive. Compl. ¶ 52.
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`Apple concedes that many of these files were personal, including “approximately 200 gigabytes of
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`photos and movies[.]” Id. Apple’s complaint also describes Wen’s attempts to remove Apple
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`confidential files from his personal cloud accounts, including that Wen “moved thousands of Apple
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`files from personal folders of his iCloud Drive to a work folder,” which would make the Apple files
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`inaccessible to him after leaving Apple. Id. ¶ 57. In spite of these efforts to back up personal data
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`and return Apple information, Apple alleges that Wen retained some “files relating to” Apple trade
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`secrets after resigning from his job at Apple. See id.
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`Critically, Apple does not allege that Wen has either disclosed or used this information since
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`leaving Apple. Apple’s complaint alleges only that “Apple believes that further discovery will likely
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`show that Apple’s trade secret information has been improperly disclosed to Rivos and used by
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`Rivos and [Wen].” Compl. ¶ 80. Nevertheless, Apple alleges that Wen’s suspected
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`misappropriation has caused Apple “to suffer monetary and non-monetary injury and harm” (Id. ¶
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`71), including “irreparable injury,” “losing its competitive advantage, trade secrets, and technology
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`2 The allegations in Apple’s complaint are accepted as true, solely for the purposes of this motion.
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`-2-
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`Ca se No. 5:22-CV-2637-EJD
`WEN’S MOTION TO DISMISS
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`

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`Case 5:22-cv-02637-EJD Document 66 Filed 06/30/22 Page 9 of 20
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`goodwill[.]” Id. ¶ 72; see also Id. ¶¶ 82-84. Apple, however, fails to provide any details about the
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`alleged injury and Apple’s own actions undermine the plausibility of its claimed injuries. For
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`example, in the face of this “imminent” and “irreparable” harm, Apple waited eight months after
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`Wen’s departure to file this suit.
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`III. LEGAL STANDARD
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`A complaint that fails to state a claim upon which relief can be granted must be dismissed.
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`See Fed. R. Civ. P. 12(b)(6). To avoid dismissal, “a complaint must contain sufficient factual matter,
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`accepted as true, to ‘state a claim to relief that is plausible on its face,’” but “[t]hreadbare recitals of
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`the elements of a cause of action, supported by mere conclusory statements, do not suffice.”
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`Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). “Although factual allegations are
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`taken as true, [courts] do not assume the truth of legal conclusions merely because they are cast in
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`the form of factual allegations.” Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (citation
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`and internal quotation marks omitted). “A pleading that offers ‘labels and conclusions’ or ‘a
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`formulaic recitation of the elements of a cause of action” does not suffice. Watkins v. MGA Ent.,
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`Inc., No. 21-CV-00617-JCS, 2021 WL 5865529, at *3 (N.D. Cal. Dec. 10, 2021) (citing Ashcroft,
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`556 U.S. at 678). The Court can dismiss a claim “based on a lack of a cognizable legal theory or on
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`the absence of facts that would support a valid theory.” Id. (citation omitted).
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`IV. ARGUMENT
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`A.
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`Apple’s Defense of Trade Secrets Act Claim Against Wen Fails to State a
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`Claim For Which Relief Can Be Granted
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`Apple asserts a claim against Wen for violation of the Defend Trade Secrets Act (18 U.S.C.
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`§ 1836 et seq.). Under the DTSA, the plaintiff must plead facts showing “(1) that it is the owner of
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`a trade secret; (2) that the defendant misappropriated the trade secret; and (3) that it was damaged
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`by the defendant’s actions.” Navigation Holdings, LLC v. Molavi, 445 F. Supp. 3d 69, 78 (N.D.
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`Cal. 2020) (citations omitted). Apple’s complaint fails to state facts to satisfy any of these elements.
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`1.
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`Apple Has Not Identified the Trade Secrets Allegedly Misappropriated by
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`Wen
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`Apple has not pled an identifiable trade secret as required by 18 U.S.C. § 1836, and its
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`-3-
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`Ca se No. 5:22-CV-2637-EJD
`WEN’S MOTION TO DISMISS
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`Case 5:22-cv-02637-EJD Document 66 Filed 06/30/22 Page 10 of 20
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`complaint fails to identify specifically what trade secrets were allegedly misappropriated. “To prove
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`that Plaintiff is the owner of a trade secret, it ‘need not spell out the details of the trade secret,’ but
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`must ‘describe the subject matter of the trade secret with sufficient particularity to separate it from
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`matters of general knowledge in the trade or of special persons who are skilled in the trade, and to
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`permit the defendant to ascertain at least the boundaries within which the secret lies.’” CleanFish,
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`LLC v. Sims, No. 19-CV-03663-HSG, 2020 WL 4732192, at *3 (N.D. Cal. Aug. 14, 2020) (citation
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`omitted). “On a motion to dismiss, the burden is on Plaintiff to identify protectable trade secrets
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`and ‘[show] that they exist.’” Id. (citation omitted).
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`Here, Apple’s complaint alleges generally that Wen transferred “confidential Apple
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`documents describing Apple trade secrets, including aspects of the microarchitecture for Apple’s
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`past, current, and unreleased SoCs” from his Apple-issued computer to an external hard drive while
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`he worked at Apple. Compl. ¶ 52. Apple also alleges that Wen transferred files to a Google Drive
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`account that include “architectural diagrams depicting Apple trade secret SoC designs,” folders, and
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`files associated with Apple SoC development. Id. ¶ 56. Such general descriptions of categories of
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`information are insufficient to state a claim under the DTSA. See, e.g., AlterG, Inc. v. Boost
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`Treadmills LLC, 388 F. Supp. 3d 1133, 1145 (N.D. Cal. 2019) (dismissing DTSA claim when
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`plaintiff alleged “categories of information” rather than specific descriptions of its trade secrets and
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`their relationship to plaintiff’s technologies); see also Soc. Apps, LLC v. Zynga, Inc., No. 4:11-CV-
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`04910 YGR, 2012 WL 2203063, at *4 (N.D. Cal. June 14, 2012) (“A description of [a] category, or
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`even of the subcategories of information within a category, does not comply with the requirement
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`to identify the actual matter that is claimed to be a trade secret.”). For example, in Space Data Corp.
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`v. X, the Court found that a “high-level overview of [ ] purported trade secrets, such as ‘data on the
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`environment in the stratosphere’ and ‘data on the propagation of radio signals from stratospheric
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`balloon-based transreceivers’” did not satisfy the Rule 8 pleading standards. No. 16-CV-03260-
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`BLF, 2017 WL 5013363, at *2 (N.D. Cal. Feb. 16, 2017). In this case, Apple has only provided
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`high-level descriptions of the trade secrets Wen allegedly acquired, such as “files associated with
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`Apple SoC development,” and “documents describing Apple trade secrets, including aspects of the
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`microarchitecture for Apple’s past, current, and unreleased SoCs.” Compl. ¶¶ 52, 56. These general
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`Ca se No. 5:22-CV-2637-EJD
`WEN’S MOTION TO DISMISS
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`Case 5:22-cv-02637-EJD Document 66 Filed 06/30/22 Page 11 of 20
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`descriptions are insufficient to identify a trade secret.
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`Apple also fails to plead whether the information Wen allegedly transferred during his time
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`working at Apple was a trade secret that the DTSA would protect, as opposed to merely confidential
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`information subject to contractual obligations. When a plaintiff alleges trade secret
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`misappropriation and breach of a nondisclosure agreement covering similar subject matter, the
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`complaint must plead facts sufficient to inform the defendant where to draw the line between the
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`confidential information and the trade secret information and to identify both types of information
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`with sufficient particularity. See, e.g., Carl Zeiss Meditec, Inc. v. Topcon Medical Sys., Inc., No.
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`19-4162 SBA, 2019 WL 11499334, at *7 (N.D. Cal. Nov. 13, 2019) (dismissing claims because
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`“the pleadings fail to allege facts identifying the trade secret or confidential information that
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`Defendants are alleged to have misappropriated”); Artec Grp., Inc. v. Klimov, No. 15-CV-03449-
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`EMC, 2016 WL 8223346, at *4 (N.D. Cal. Dec. 22, 2016) (dismissing claim for breach of a non-
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`disclosure agreement for failing to “identify with specificity what confidential information is at
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`issue”).
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`Compounding these issues, Apple has not pled facts showing which identifiable trade secrets
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`Wen, as opposed to Kaithamana or the unnamed individuals who also left Apple to work at Rivos,
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`allegedly misappropriated. Instead, Apple’s complaint alleges generally that Wen, Kaithamana,
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`“and other former employees now at Rivos” misappropriated “trade secret information includ[ing]
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`at least chip specifications and designs for Apple’s SoCs,” (Compl. ¶ 78), but does not specify which
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`trade secrets Wen allegedly misappropriated. A claim for trade secret misappropriation must
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`include specific facts to support a claim against each defendant. See Vendavo, Inc. v. Price f(x)
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`AG, No. 17-CV-06930-RS, 2018 WL 1456697, at *4 (N.D. Cal. Mar. 23, 2018) (dismissing DTSA
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`claim and emphasizing that plaintiff’s “lack of specificity” in describing its trade secrets “is
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`exacerbated by the fact that the complaint does not distinguish between [defendants].”). . As a result
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`of these shortcomings, Apple’s claim for trade secret misappropriation against Wen must be
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`dismissed. See Lamont v. Conner, No. 5:18-CV-04327-EJD, 2019 WL 1369928, at *7-8 (N.D. Cal.
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`Mar. 26, 2019) (dismissing a claim for trade secret misappropriation where the plaintiff’s “minimal
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`and broad description . . . fail to sufficiently identify his trade secret”); Vendavo, Inc. v. Price f(x)
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`Ca se No. 5:22-CV-2637-EJD
`WEN’S MOTION TO DISMISS
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`Case 5:22-cv-02637-EJD Document 66 Filed 06/30/22 Page 12 of 20
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`AG, 2018 WL 1456697, at *4 (same); Teradata Corp. v. SAP SE, No. 18-CV-03670-WHO, 2018
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`WL 6528009, at *4 (N.D. Cal. Dec. 12, 2018) (same); Space Data Corp. v. X, 2017 WL 5013363,
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`at *2 (same).
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`2.
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`Apple Has Not Alleged Misappropriation
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`To state a claim for misappropriation, the DTSA “requires a showing of one of two
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`categories: (1) wrongful acquisition, or (2) disclosure or use of the trade secret without consent.”
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`Lamont, 2019 WL 1369928, at *8 (citing 18 U.S.C. § 1839(5)(A) and (B)). Here, Apple has not
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`pled facts to show either that Wen wrongfully acquired trade secrets or that he disclosed or used the
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`trade secrets.
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`(a)
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`Apple Has Not Alleged Wrongful Acquisition
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`While it does not address when Wen actually acquired the alleged trade secrets, Apple’s
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`complaint makes clear that Wen accessed and transferred them while he was an employee at Apple.
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`For example, the complaint alleges that, on August 5, 2021, Wen “accessed numerous Apple
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`proprietary and trade secret SoC designs[.]” Compl. ¶ 55. The complaint further alleges that Wen
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`transferred files from his work laptop to his personal Google Drive account while he was an Apple
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`employee. Id. ¶ 56. The complaint states that Wen worked at Apple until August 6, 2021. Compl.
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`¶ 53. Accordingly, all of the allegations of Wen’s access and transfer of the alleged trade secrets
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`occurred during the time Wen was an Apple employee. Indeed, while Apple generally alleges that
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`all “Defendants misappropriated trade secrets at least by acquiring trade secrets by improper means”
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`(Compl. ¶ 77), nowhere does Apple allege any facts describing Wen’s acquisition of the purported
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`trade secrets in the first instance3 or even that Wen was not authorized to access and review SoC
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`design files and other Apple materials at any point during his employment at Apple. As a result, the
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`complaint does not allege what is required for misappropriation—the improper acquisition of a trade
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`secret. See Zurich Am. Life Ins. Co. v. Nagel, 538 F. Supp. 3d 396, 404–405 (S.D.N.Y. 2021)
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`(dismissing a DTSA claim where the employee accused of misappropriation “was authorized to
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`3 To the contrary, Apple states it “protects its most valuable SoC designs and specifications by
`limiting access to its Confluence and Perforce databases to only those projects that an employee is
`currently working on and authorized to view.” Compl. ¶ 31.
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`Ca se No. 5:22-CV-2637-EJD
`WEN’S MOTION TO DISMISS
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`Case 5:22-cv-02637-EJD Document 66 Filed 06/30/22 Page 13 of 20
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`acquire this information as part of his job, so he did not acquire it by improper means.”).4
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`(b)
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`Apple Has Not Alleged Use or Disclosure
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`Nor does Apple’s complaint allege facts to support its claim that Wen improperly “used or
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`disclosed” Apple trade secrets, including after he began working at Rivos. Instead, the complaint
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`includes only the bare allegation that “Apple believes that further discovery will likely show that
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`Apple’s trade secret information has been improperly disclosed to Rivos and used by Rivos and the
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`Individual Defendants.” Compl. ¶ 80. A statement of belief is insufficient to support a claim for
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`the use or disclosure of trade secrets. See Pellerin v. Honeywell Int’l, Inc., 877 F. Supp. 2d 983, 989
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`(S.D. Cal. 2012) (dismissing complaint where plaintiff did not “allege any facts” in support of its
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`claim that defendant’s trade secrets or confidential information had been “used and/or disclosed”);
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`see also Spice Jazz LLC v. Youngevity Int'l, Inc., No. 19-CV-0583-BAS-DEB, 2020 WL 6484640,
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`at *5 (S.D. Cal. Nov. 4, 2020) (general allegations of trade secret misappropriation pled on
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`“information and belief” were insufficient to survive a motion to dismiss); Space Data Corp., 2017
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`WL 5013363, at *2 (while plaintiff need not “be clairvoyant and allege exactly how [defendant] is
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`improperly using its trade secrets,” something more than an allegation that “Defendants have
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`engaged in other business activity based on [plaintiff’s] confidential trade secret information” was
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`needed to survive a motion to dismiss).
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`Apple’s complaint’s only other allegation that could support its claim of use or disclosure is
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`that Wen’s job title at Rivos “suggests he is performing a similar job function as he did at Apple[.]”
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`Compl. ¶ 50. But Wen, like every other employee in California, is free to pursue the employment
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`4 Indeed, far from alleging any improper acquisition, the allegations in the complaint suggest that
`Wen’s retention of any trade secret information was entirely inadvertent, given that they were
`intermingled with his personal materials. See, e.g., Compl. ¶ 57 (“although Mr. Wen moved
`thousands of Apple files from personal folders of his iCloud Drive to a work folder, investigation
`of his Apple-owned device reveals that he retained files relating to Apple trade secret SoC designs
`on his iCloud Drive”); id. ¶ 52 (in July 2021, “Mr. Wen transferred approximately 390 gigabytes
`from his Apple-issued computer to a personal external hard drive . . . . As of his termination, his
`Apple-issued computer . . . stored approximately 200 gigabytes of photos and movies that Apple
`presumes are personal in nature[.]”); cf. Quintessential, LLC v. Quintessential Brands S.A., No. 20-
`CV-01722-JD, 2022 WL 357502, at *1 (N.D. Cal. Feb. 7, 2022) (dismissing a DTSA claim and
`noting that “defendants’ access to plaintiff’s [ ] account may have been ‘inadve rtent,’ which is
`contrary to what the [DTSA] statute[ ] require[s].”).
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`Ca se No. 5:22-CV-2637-EJD
`WEN’S MOTION TO DISMISS
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`Case 5:22-cv-02637-EJD Document 66 Filed 06/30/22 Page 14 of 20
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`of his choice and even compete against his former employer. See Golden v. California Emergency
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`Physicians Med. Grp., 896 F.3d 1018, 1022 (9th Cir. 2018). The DTSA specifically excludes
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`remedies that conflict with state laws “prohibiting restraints on the practice of a lawful profession,
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`trade, or business[.]” See 18 U.S.C. § 1836(b)(3)(A)(i). Courts in this District and elsewhere have
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`consistently dismissed DTSA claims which rely on the theory that an employee will “inevitably
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`disclose” trade secrets from a prior job when he accepts a similar position at a competing company.
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`See, e.g., AWP, Inc. v. Henry, No. 1:20-CV-01625-SDG, 2020 WL 6876299, at *5 (N.D. Ga. Oct.
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`28, 2020) (emphasizing that the inevitable disclosure doctrine “would effectively bar employees
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`from accepting similar employment positions with competitive entities in perpetuity” and declining
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`to “make such a sweeping proclamation”); Epicor Software Corp. v. Alternative Tech. Sols., Inc.,
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`No. SACV1300448CJCRNBX, 2013 WL 12130024, at *3 (C.D. Cal. Dec. 2, 2013) (plaintiff’s
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`assertions that former e