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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF TEXAS
`GALVESTON DIVISION
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`NEW YORK PIZZERIA, INC.,
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` Plaintiff,
`VS.
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`RAVINDER SYAL, et al,
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` Defendants.
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` CIVIL ACTION NO. 3:13-CV-335
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`§§§§§§§§
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`MEMORANDUM AND ORDER
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`Intellectual property plays a prominent and growing role in our Information
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`Age economy. High-stakes litigation over software patents, for example, is
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`increasingly common in federal dockets. In this case, though, the plaintiff seeks
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`intellectual property protection for something quite traditional: the meal one might
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`order at a neighborhood pizzeria. New York Pizzeria, Inc. contends that the flavor
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`of its Italian food and the way in which it plates its baked ziti and chicken and
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`eggplant parmesan dishes are entitled to protection under the trademark laws.
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`These are some of the key issues to be resolved in the pending Rule 12(b)(6)
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`motion that seeks dismissal of four claims in full and one in part.
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`I.
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`BACKGROUND
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`New York Pizzeria, Inc. (NYPI) is a franchisor of restaurants founded and
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`solely owned by Gerardo Anthony Russo. Adrian Hembree, a former vice
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`president of NYPI and former owner of an NYPI-franchised restaurant, was
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`terminated in March 2011. After a state court lawsuit brought by Hembree
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`alleging that NYPI breached his termination agreement, NYPI brought this suit
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`against Hembree and alleged coconspirators contending they engaged in a scheme
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`to create a knockoff restaurant chain called Gina’s Italian Kitchen using NYPI’s
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`recipes, suppliers, and internal documents and manuals. According to NYPI,
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`Hembree “began disclosing NYPI’s proprietary information to Ravinder Syal,” a
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`restaurateur and alleged coconspirator, “sometime in 2010,” while Hembree still
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`worked for NYPI. Docket Entry No. 20 ¶ 39. It is further alleged that after
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`Hembree left NYPI, some of the defendants obtained the username and password
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`of an existing NYPI franchisee, and used it to log on to NYPI’s FranConnect
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`account, a service that allows franchisors to communicate with franchisees. NYPI
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`alleges that Syal, or someone acting on his behalf or on behalf of one of his
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`businesses, downloaded NYPI’s trade secrets, including recipes, from that account.
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`Syal also hired former NYPI employees to work at Gina’s locations, who are
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`claimed to have violated their confidentiality obligations by disclosing NYPI’s
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`trade secrets.
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`The extent of the alleged misappropriation and infringement came to light
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`when NYPI’s “internal auditor” (who apparently obtained a job at a Gina’s
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`restaurant in order to investigate the violations, see Docket Entry No. 1 ¶ 45
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`(original complaint)) observed Defendants using NYPI’s recipes and copying its
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`supply orders, and taped conversations with Gina’s employees who admitted to the
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`use of NYPI’s recipes and manuals. Docket Entry No. 20 ¶¶ 53–58.
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`NYPI’s amended complaint (Docket Entry No. 20) asserts fifteen counts
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`against various defendants. In a previous order, this court dismissed Adrian
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`Hembree from the suit because of a liability waiver he signed as part of his
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`termination from NYPI (Docket Entry No. 36). Five of the counts are at issue in
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`the remaining Defendants’ current motion to dismiss (Docket Entry No. 24):
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` Count 1: Violation of the Computer Fraud and Abuse Act (CFAA),
`18 U.S.C. § 1030(a)(2)(C), for improperly accessing a computer
`system to obtain NYPI’s proprietary information;
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` Count 2: Violation of the Stored Communications Act, 18 U.S.C.
`§ 2701, for improperly accessing a computer system to obtain NYPI’s
`proprietary information;
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` Count 3: Trademark infringement under the Lanham Act for copying
`NYPI’s distinctive flavors;
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` Count 4: Trade dress infringement under the Lanham Act for copying
`NYPI’s distinctive plating methods; and
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` Count 14: Aiding and abetting the commission of various torts.
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`II. ANALYSIS
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`Rule 12(b)(6) provides for dismissal of an action for “failure to state a claim
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`upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a motion
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`to dismiss, a complaint must contain sufficient factual matter, accepted as true, to
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`‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.
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`662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
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`(2007)); In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007). A
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`claim is considered “plausible” if the complaint contains “factual content that
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`allows the court to draw the reasonable inference that the defendant is liable for the
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`misconduct alleged.” Iqbal, 556 U.S. at 678. However, a claim is not considered
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`plausible where it is based on nothing more than “formulaic recitation of the
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`elements of a cause of action” or it merely consists of “naked assertions devoid of
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`further factual enhancement.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at
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`557). In considering a Rule 12(b)(6) motion to dismiss, a court must accept all
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`well-pleaded facts as true and view those facts in the light most favorable to the
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`plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); In re Katrina, 495 F.3d at
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`The Court takes up each contested count in turn.
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`205.
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`A. Count 1: Computer Fraud and Abuse Act
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`To state a civil CFAA claim, a plaintiff must allege that one of the first five
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`factors listed in 18 U.S.C. § 1030(c)(4)(A)(i) is present. See 18 U.S.C. § 1030(g).
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`Here, NYPI alleges the first factor, a “loss” during a one-year period of at least
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`$5,000 in value. See § 1030(c)(4)(A)(i)(I); Docket Entry No. 20 ¶ 69 (“NYPI
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`spent in excess of $5,000 determining the source of the intrusion and extent of the
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`damage.”). “Loss” is defined under the CFAA as
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`any reasonable cost to any victim, including the cost of responding to
`an offense, conducting a damage assessment, and restoring the data,
`program, system, or information to its condition prior to the offense,
`and any revenue lost, cost incurred, or other consequential damages
`incurred because of interruption of service.
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`18 U.S.C. § 1030(e)(11).
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`Defendants do not dispute that the cost to NYPI of “determining the source
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`of the intrusion and extent of the damage” meets the $5,000 threshold and
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`constitutes an actionable “loss” under the CFAA; they thus do not seek full
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`dismissal of NYPI’s CFAA claim. Instead, they argue that the Court should
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`eliminate NYPI’s claim for additional compensatory damages resulting from the
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`misappropriation of its trade secrets as a result of the computer intrusion. Docket
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`Entry No. 24 ¶ 3. They assert that compensation for trade secrets misappropriated
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`through a computer intrusion is not contemplated by the CFAA, citing cases stating
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`that such an injury does not constitute “damage” or “loss” under the statute.
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`Although a number of courts have taken this position, see, e.g., L-3
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`Comm’ns Westwood Corp. v. Robicharux, 2007 WL 756528, at *4 (E.D. La. Mar.
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`8, 2007), others have held that lost trade secrets can constitute “damage.” See, e.g.,
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`Shurgard Storage Ctrs., Inc. v. Safeguard Self Storage, Inc., 119 F. Supp. 2d 1121,
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`1126–29 (W.D. Wash. 2000). And still others—including in a case cited in
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`Defendants’ motion—have held that even though misappropriation of trade secrets
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`is not “damage” or “loss” under the CFAA, those defined terms are not limits on
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`the amount of damages recoverable under the statute. Instead, a “loss” of $5,000 is
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`only a threshold inquiry that once met opens up the door to a broader category of
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`compensatory damages. See Frees, Inc. v. McMillian, 2007 WL 2264457, at *4–6
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`(W.D. La. Aug. 6, 2007). Defendants’ motion to dismiss does not address the
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`latter argument.
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`The Court declines to decide the scope of damages recoverable under the
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`CFAA at this stage. Defendants’ request to limit the scope of NYPI’s claimed
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`remedy is an unusual posture for a Rule 12(b)(6) motion, but one that seems to be
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`increasingly common as defendants seek to eliminate claims for punitive damages
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`or attorneys’ fees at the pleading stage even when they do not seek dismissal of the
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`cause of action itself. See, e.g., W & T Offshore, Inc. v. Apache Corp., 918 F.
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`Supp. 2d 601, 604 (S.D. Tex. 2013) (ruling on a motion to dismiss claims, among
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`others, for attorneys’ fees and exemplary damages). It is not clear to the Court that
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`a Rule 12(b)(6) motion is the appropriate vehicle for limiting the scope of a
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`remedy sought. It addresses a “failure to state a claim,” which typically means an
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`inability to meet one of the elements of a cause of action. The result of a
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`successful motion is dismissal of the cause of action. To be sure, an injury or
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`damages is an element of most claims, so a failure to allege any damages may
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`warrant dismissal of a claim at the Rule 12 stage. See, e.g., Jameel v. Flagstar
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`Bank, FSB, 2012 WL 5384177, at *8–9 (S.D. Tex. Nov. 2, 2012) (dismissing a
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`claim under the Truth in Lending Act without prejudice for failure to allege actual
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`damages).
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`But the motion here does not challenge NYPI’s ability at the pleading stage
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`to satisfy the CFAA’s damages element nor does it seek dismissal of the claim. It
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`only seeks a ruling that NYPI may not obtain damages under the CFAA for any
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`trade secret misappropriation that resulted from the alleged computer intrusion.
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`For the reasons stated above, the Court has doubts that Rule 12(b)(6) affords this
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`type of relief. See W & T Offshore, 918 F. Supp. 2d at 604 (“The motion to
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`dismiss is . . . denied as to estoppel, attorney’s fees, and exemplary damages
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`because they are remedies rather than separate claims for relief.”); City of New
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`York v. A-1 Jewelry & Pawn, Inc., 247 F.R.D. 296, 353 (E.D.N.Y. 2007) (“[A]
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`motion for failure to state a claim properly addresses the cause of action alleged,
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`not the remedy sought.”). On the other hand, the 12(b)(6) standard could be
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`construed more broadly to apply to failures to state a claim for a particular type of
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`damages. See, e.g., Doe I v. Holy See, 2013 WL 1768494, at *4–5 (E.D. La. Apr.
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`24, 2013) (granting motion to dismiss punitive damages because Louisiana law
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`only allows punitive damages when they are expressly authorized by statute). That
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`view may also promote efficiency in certain cases by cabining discovery to
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`damages that are legally available.
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`Those efficiency gains are absent from the motion to limit the scope of
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`damages at the Rule 12 stage in this case, however. NYPI has asserted a state law
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`claim for misappropriation of trade secrets that is unchallenged at the pleading
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`stage. Discovery on misappropriation damages will thus proceed whether or not
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`the CFAA allows them. It may prove unnecessary to ever decide the difficult
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`question whether the CFAA allows misappropriation damages because either 1)
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`NYPI may prevail on its state law misappropriation claim, or 2) NYPI may not be
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`able to prove liability on the CFAA claim.
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`The Court therefore concludes that both its concern about the propriety of
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`this request in the Rule 12(b)(6) context and the interest in not deciding what may
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`end up being a moot issue warrant not deciding at this time the difficult question
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`concerning the availability of misappropriation damages under the CFAA.
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`B.
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` Count 2: Stored Communications Act
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`Defendants do seek full dismissal of NYPI’s Stored Communications Act
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`claim, challenging its specificity because the complaint “fails to identify the
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`franchisee” whose username and password were used or that the unidentified
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`franchisee’s information was used unlawfully. Docket Entry No. 24 ¶ 5–6. The
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`Court finds that NYPI has sufficiently pleaded its Stored Communications Act
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`claim. NYPI’s amended complaint states that Syal, one of the businesses he is
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`involved with, or someone acting on their behalf “obtained an existing franchisee’s
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`user name and password to FranConnect” without the franchisee’s or NYPI’s
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`consent, and used that information to access the account and “download[] or
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`otherwise cop[y] NYPI’s proprietary information, including recipes.” Docket
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`Entry No. 20 ¶ 73. Taking the facts pleaded as true, the Court can “draw the
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`reasonable inference that the defendant is liable for the misconduct alleged.”
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`Iqbal, 556 U.S. at 663. NYPI will have the chance to develop the details of its
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`claim further through discovery.
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`C. Counts 3 and 4: Lanham Act
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`NYPI argues that Defendants have infringed on its trademarks and trade
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`dress, and brings two distinct claims under the Lanham Act, 15 U.S.C. § 1125(a).
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`One is related to the flavor of its food; the other is related to the presentation, or
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`“plating,” of its dishes.
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`1.
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`Flavor
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`NYPI argues that its “specially sourced branded ingredients and innovative
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`preparation and preservation techniques contribute to the distinctive flavor” of
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`NYPI’s products. Docket Entry No. 20 ¶ 76. By using those ingredients and
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`processes, NYPI claims, Defendants “have infringed and/or diluted NYPI’s
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`protected trademark interest in the distinctive trademark flavor of its products.” Id.
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`¶ 77.
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`The Lanham Act supplies a federal cause of action against any person who,
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`in connection with any goods or services, or any
`container for goods, uses in commerce any word, term,
`name, symbol, or device, or any combination thereof, . . .
`which is likely to cause confusion, or to cause mistake, or
`to deceive as to the affiliation, connection, or association
`of such person with another person, or as to the origin,
`sponsorship, or approval of his or her goods, services, or
`commercial activities by another person.
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`15 U.S.C. § 1125(a)(1)(A).
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`NYPI is correct that there is “no special legal rule” that prevents flavor from
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`serving as a trademark. Cf. Qualitex Co. v. Jacobson Prods. Co., Inc., 514 U.S.
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`159, 161 (1995). “It is the source-distinguishing ability of a mark—not its
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`ontological status as color, shape, fragrance, word, or sign—that permits it to serve
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`[trademark] purposes.” Id. at 164. In principle, the Lanham Act encompasses
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`“almost anything at all that is capable of carrying meaning.” Id. at 162.
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`The Court does not doubt that flavor can “carry meaning,” but that meaning
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`entitles a mark to trademark protection only if it distinguishes the source of a
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`product. See Sunbeam Prods., Inc. v. W. Bend Co., 123 F.3d 246, 252 (5th Cir.
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`1997) (“[T]he essence of a protected mark is its capacity to distinguish a product
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`and identify its source.”). Some marks, typically words or designs created out of
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`whole cloth that are considered “arbitrary” or “fanciful,” are inherently distinctive.
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`See Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205, 210 (2000);
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`Qualitex, 514 U.S. at 162–63 (citing Abercrombie & Fitch Co. v. Hunting World,
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`Inc., 537 F.2d 4, 9–10 (2d Cir. 1976)). Rather than describing the product to which
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`they are attached, inherently distinctive marks identify the source of that product.
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`Colors, on the other hand, cannot be inherently distinctive, because consumers are
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`not predisposed to assume they are indicators of a product’s source. See Wal-Mart
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`Stores, 529 U.S. at 211–13.
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`As with colors, it is unlikely that flavors can ever be inherently distinctive,
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`because they do not “automatically” suggest a product’s source. See In re N.V.
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`Organon, 79 U.S.P.Q.2d 1639, at *15 (T.T.A.B. June 14, 2006) (“Because flavor is
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`generally seen as a characteristic of the goods, rather than as a trademark, a flavor,
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`just as in the cases of color and scent, can never be inherently distinctive.”). It is
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`therefore only when a flavor has acquired distinctiveness, or “secondary
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`meaning”—that is, when customers have learned to associate the flavor with its
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`source—that it has any chance of serving as a valid trademark. See Wal-Mart
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`Stores, 529 U.S. at 211 (“[A] mark has acquired distinctiveness, even if it is not
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`inherently distinctive, if it has developed secondary meaning, which occurs when,
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`‘in the minds of the public, the primary significance of a [mark] is to identify the
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`source of the product rather than the product itself.’”).
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`But even then, there is another hurdle to achieving trade dress status:
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`functional product features are not protectable. Qualitex, 514 U.S. at 165. A
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`product feature is functional “‘if it is essential to the use or purpose of the article or
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`if it affects the cost or quality of the article,’ that is, if exclusive use of the feature
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`would put competitors at a significant non-reputation-related disadvantage.” Id.
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`(citing Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 850 n.10 (1982)). To
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`afford functional features protection under trademark law, which is focused on
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`“promot[ing] competition by protecting a firm’s reputation,” would intrude on
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`other areas of intellectual property law that allow producers to prevent competitors
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`from incorporating a “useful product feature.” Id. at 164–65.
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`The functionality doctrine is a significant hurdle for any party seeking to
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`protect a flavor as a trademark. In In re N.V. Organon, for example, the
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`Trademark Trial and Appeal Board (TTAB) denied a pharmaceutical company a
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`trademark in the orange flavor of its pills on functionality grounds. 79 U.S.P.Q.2d
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`1639, at *6–13. Because medicine generally has “a disagreeable taste,” flavoring
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`“performs a utilitarian function that cannot be monopolized without hindering
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`competition in the pharmaceutical trade.” Id. at *13.1
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`If the hurdle is high for trademarks when it comes to the flavor of medicine,
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`it is far higher—and possibly insurmountable—in the case of food. People eat, of
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`course, to prevent hunger. But the other main attribute of food is its flavor,
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`especially restaurant food for which customers are paying a premium beyond what
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`it would take to simply satisfy their basic hunger needs. The flavor of food
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`undoubtedly affects its quality, and is therefore a functional element of the product.
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`See Qualitex, 514 U.S. at 165.
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` Contrast this with In re Clarke, 17 U.S.P.Q.2d 1238 (T.T.A.B. Sept. 19, 1990), in which the
`TTAB took up the question whether a floral fragrance used in sewing thread and embroidery
`yarn may be trademarked. The Board held that a scent that serves no functional role and “is not
`an inherent attribute or natural characteristic” of the goods may be registered. Id. at *2.
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`Not surprisingly given this functionality bar, NYPI is unable to cite any case
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`recognizing a trademark in the flavor of food. NYPI does not allege that its
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`supposedly unique flavoring is merely an identifier, and any such allegation would
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`be implausible given that the flavor of pasta and pizza has a functional purpose.
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`The trademark claim is therefore dismissed.
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`2.
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`Plating
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`While the flavor infringement claim is plainly half-baked, NYPI’s plating
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`infringement claim deserves closer consideration. NYPI states that its
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`plating methods present NYPI’s products to customers in a distinctive
`visual manner. NYPI claims a protected trade dress interest in the
`distinctive visual presentation of the product to customers. Such trade
`dress includes, but is not limited to, the presentation of baked ziti,
`eggplant parmesan, and chicken parmesan.
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`Docket Entry No. 20 ¶ 80. Although NYPI cites ample authority demonstrating
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`that “non-traditional” marks are entitled to protection, it cites no authority
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`specifically addressing plating. See Docket Entry No. ¶ 35 22–24. This Court
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`recognizes, however, that there may be some rare circumstances in which the
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`plating of food can be given trade dress protection. When plating is either
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`inherently distinctive or has acquired a secondary meaning, when it serves no
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`functional purpose, and when there is a likelihood of consumer confusion, it may
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`be possible to prove an infringement claim. It is conceivable that certain well-
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`known “signature dishes” could meet this very high standard. See Naomi Straus,
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`Comment, Trade Dress Protection for Cuisine: Monetizing Creativity in a Low-IP
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`Industry, 60 UCLA L. REV. 182, 218–47 (2012).
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`NYPI, however, cannot show any of this because it has not alleged which
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`plating methods it has a protected trade dress interest in (it only states that its claim
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`“includes, but is not limited to” its baked ziti, eggplant parmesan, and chicken
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`parmesan dishes), what makes them distinctive and nonfunctional, and what
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`infringes them.
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`Under the pleading standards laid out by the Supreme Court in Twombly and
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`Iqbal, the plaintiff must plead “factual content that allows the court to draw the
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`reasonable inference that the defendant is liable for the misconduct alleged.”
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`Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). In the trade dress
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`context, a plaintiff must articulate the elements that comprise its protected trade
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`dress in order for the court to evaluate the plausibility of its claim and so the
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`defendant has fair notice of the grounds of the claim. See Alpha Kappa Alpha
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`Sorority Inc. v. Converse Inc., 175 F. App’x 672, 677–81 (5th Cir. 2006) (holding
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`that a complaint in which the plaintiffs identified the elements comprising their
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`claimed marks was sufficient to survive a motion to dismiss).
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`That notice is lacking here because Defendants have no idea what it is about
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`the plating of ziti and chicken or eggplant parmesan that is distinctive. See Myung
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`Ga, Inc. v. Myung Ga of MD, Inc., 2011 WL 3476828, at *5 (D. Md. Aug. 8, 2011)
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`(dismissing trademark claim in which the plaintiff failed to allege “similarities
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`between its trademark and Defendants’ trade name, signage, and advertising,” “any
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`actual confusion,” “how Defendants use the marks and how such use might create
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`a similar impression to Plaintiff's mark,” any “comparative qualities of the two
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`marks,” or “the sophistication of the consuming public” (emphasis in original)).
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`Furthermore, “determining whether a complaint states a plausible claim is context-
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`specific, requiring the reviewing court to draw on its experience and common
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`sense.” Iqbal, 556 U.S. at 663–64. Less detail in pleadings may be justified in
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`certain circumstances, such as when certain facts might not be available to the
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`plaintiff prior to discovery. See, e.g., U.S. ex rel. McDonough v. Symphony
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`Diagnostic Servs., Inc., 2012 WL 628515, at *6 (S.D. Ohio Feb. 27, 2012) (“At the
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`pleading stage, prior to discovery, the plaintiff cannot be expected to provide
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`complete details of the necessary sensitive corporate statistics to support his
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`allegations on issues of costs and pricing. It is sufficient that the [plaintiff] . . .
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`provides some factual details which, at least on their face, support those
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`allegations.”). But that is not the case here. Unlike the details of which franchisee
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`account was used in NYPI’s Stored Communications Act claim, NYPI knows how
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`it plates its food, and it could have easily identified what is distinctive about the
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`plating that might warrant trade dress protection. NYPI’s claim for infringement
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`of its trade dress is therefore dismissed.
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`D. Count 14: Aiding and abetting
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`NYPI also asserts a claim for aiding and abetting against Robert Salcedo,
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`Hembree’s business partner in his former NYPI franchise. The complaint asserts
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`that Salcedo “aided and abetted” a number of the other defendants in the
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`commission of “one or more torts, including misappropriation of trade secrets, civil
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`theft, unfair competition by misappropriation, and tortious interference with
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`contract.” Docket Entry No. 20 ¶ 123. It claims that “despite his knowledge of the
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`prior lawsuit between Hembree and NYPI, and the prior business relationship
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`between them,” Salcedo “nonetheless continued to assist [a number of defendants]
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`to continue using NYPI’s Trade Secrets and Restaurant Franchise Product,” and
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`“to assist operating the Gina’s business and accepting a share of the franchise
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`royalties.” Id.
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` Defendants contend this count fails because there is no cause of action
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`under Texas law for aiding and abetting, unless the “party being sued aided and
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`abetted another person’s breach of a fiduciary duty.” Docket Entry No. 24 ¶ 15
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`(emphasis in original). NYPI does not cite any cases establishing that Texas law
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`17 / 19
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`
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`Case 3:13-cv-00335 Document 37 Filed in TXSD on 10/20/14 Page 18 of 19
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`recognizes this cause of action, but rather argues that it is “an open question.”
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`Docket Entry No. 35 ¶ 31. While the Supreme Court of Texas has engaged in an
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`analysis of “concert of action” liability under the Restatement (Second) of Torts
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`§ 876, see, e.g., Juhl v. Airington, 936 S.W.2d 640, 643–44 (Tex. 1996); Gaulding
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`v. Celotex Corp., 772 S.W.2d 66, 69 (Tex. 1989), it has not actually applied that
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`theory of liability. Furthermore, that court has stated that “[t]he purpose of the
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`concert of action theory is to deter antisocial or dangerous behavior.” Juhl, 936
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`S.W.2d at 644. Even if Texas courts are open to recognizing aiding and abetting
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`liability, it is thus unlikely that they will extend it to claims for aiding and abetting
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`the competition-related torts at issue here. See W. Fork Advisors, LLC v. SunGard
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`Consulting Servs., LLC, 437 S.W.3d 917, 922 (Tex. App.—Dallas 2014, pet. filed)
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`(declining to adopt a theory of liability for aiding and abetting the misappropriation
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`of trade secrets). And in general, “[a] party who wants a court to adopt an
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`innovative rule of state law should litigate in state rather than federal court. . . .
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`Federal judges are disinclined to make departures in areas of law that we have no
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`responsibility for developing.” Hinojosa v. City of Terrell, Tex., 834 F.2d 1223,
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`1231 n.12 (5th Cir. 1988) (alterations in original) (quoting Afram Exp. Corp. v.
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`Metallurgiki Halyps, S.A., 772 F.2d 1358, 1370 (7th Cir. 1985), abrogated on
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`other grounds by Salve Regina Coll. v. Russell, 499 U.S. 225 (1991)).
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`18 / 19
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`Case 3:13-cv-00335 Document 37 Filed in TXSD on 10/20/14 Page 19 of 19
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`NYPI’s aiding and abetting claim is dismissed.
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`
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`III. CONCLUSION
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`For the reasons explained above, Defendants’ motion to dismiss (Docket
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`Entry No. 24) is:
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` DENIED with respect to NYPI’s claim for damages under the
`Computer Fraud and Abuse Act resulting from the misappropriation
`of its trade secrets without prejudice to raising that issue later in the
`case if necessary (Count 1);
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` DENIED with respect to NYPI’s Stored Communications Act claim
`(Count 2);
`
` GRANTED with respect
`to NYPI’s Lanham Act claim for
`infringement of its flavors (Count 3);
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` GRANTED with respect to its Lanham Act claim for infringement of
`its plating methods (Count 4); and
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` GRANTED with respect to NYPI’s aiding and abetting claim (Count
`14).
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`SIGNED this 20th day of October, 2014.
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`___________________________________
` Gregg Costa
` United States Circuit Judge*
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`
`
`
`
`
`
`
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` Sitting by designation.
`19 / 19
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`
` *