say you've may be seated at this point before we start the timer on our st case there was an issue raised about trade secret information being just closed to the oral argument so i'm not aware of anything that's not in the briefing and the briefs are public i assume is there any reason that we would be disclosing anything that's not already in publicly available briefs your honor confidential information it is in part a trade secret case and the trade secret details were redacted kelso for the defendant mr wilkerson i were talking about this before we came into the courtroom and he agreed that his argument is not going to go into any of the particulars of the trade secret i'm on that i'm confident with that but he did raise the issue that he was concerned about the possibility that the court might ask him a core me a question so i don't stumble can i ask is it all right to reference temperature on baking time paul not using the numbers you're on or it is ok yes i mean i guess not deal world i'd rather not but we need to be able to go into some level of detail so i think if you meant i'm temperature or baking is ok as long as we don't get into the particulars of what the temperature is what the timing is i think it's an a same with one to three percent orders were here today because there are multiple issues in this case as we just discussed there is a trade secret issue there is a separate false advertising issue i would like to start with the trade secret issue the  alleged trade secret here was defined in such a fashion to essentially encompass the entire category of home style bread and the home sort of bread categories a sub section of the white bread category it is particularly mr ker i'm sorry you stopped can you see me i can ok you're the only person i can see now and i'm not sure what happened but the screen had a lot too many boxes on it for people who weren't in the skate park so it is you might be and y be right issue primarily there's also a trade dress issue with respect to the trade secrets i think it's important to look at what was claimed st by the plaintiffs the plaintiffs  what are the baker say they do and i've just we've described this in our bricks and then we compare that to what the experts said is the supposed secrets here and there's a complete mismatch the the what the what my client already and it's standard process we talked a little briefly before before the argument formally began about time and temperature if you look at time and temperature and you compare in the breeze what the evidence showed at trial the evidence wasn't just speed they're playing the temperature is different than our time in temperature the range of ingredients that you described earlier is the entire effective range of the ingredients so in those circumstances the idea that this compilation would have value st from being adequately described there's no specific particularity requirement that there must be a description of the secret in such a manner that you obtain bound from it and when in this case the expert describes it in the manner that occupies the entire field and does so in a way that departs from what the plaintiff is actually doing that can't be a trade secret and so are you saying that there may indeed be a trade secret somewhere in this case it's not before us because it's defined to broad it could be it could be there might be a secret in what thing in fact do and why the fall mr fall had that trade secret but it's not allege that you are making the same  that is certainly if you look at the evidence as to the process that the u s baker used to make the product at the time it was not doing the things that the in both bakeries was doing at the time their expert managed to you compare what he said to what in fact the the expert said there is a complete mismatch let me see if i understand what you're saying so for example if the trade secret is described as having ten to fifteen percent pertain to flow and you're saying bimbo as you see ten percent potato flour and us bakery was using fifteen ingredient can't be more than that particular number because federal regulations say so you couldn't call it a white bread if you if you had more than that a matched and so when they try not to apply the  fields they they describe it in a way that the evidence doesn't support their simply no evidence that we used the same amount of that ingredient there's no evidence that we cook it for the same time or at the same temperature and the other process steps without getting into too much detail not trying to be cognizant of that when you can do it i didn't just make up numbers to give us an idea of this of the nature of your issues well the nature of the issue is longer or more than what we get and it's and it's it's not even in the same ballpark and that's outlined directly in the breaks so if we're doing it for them much shorter if they're doing it for that much longer than we're doing it how is that it may be that what they're a waste of time is a secret but it's not what we're doing and it's not and it's not what we do anything different we every product the notion that this was somehow different is also belied by the undisputed evidence that every product that goes through that process is done at the same time in the same temperature by my client there is no difference so credence what i'm saying is if what they're claiming is that publicly disclosed ingredients and all of these elements you know if they're not whether they're true they have to be identical i don't know that they have to be identical but they have to be not i would be able to make the bread that is making now without having gotten a trade secret from mr fall and does that matter that's not the question i think the answer is we we  whether or not they learned anything from mr fall the question is what's the secret if they're not using what what being bill itself describes as their process then how is it they've been misappropriated a secret and the rest of it is just curious speculation based on brinkley some e mails the jury didn't like but if it's like if you if you plan to take something and it turns out what you took wasn't valuable wasn't useful there's no there's still no secret there you may have some other wrong some major but it's not a trade secret mileage it if you've allegedly taken something that isn't that it has doesn't have the value that's ascribed to you is there i think it's fair to say that mr hall said that mr sycamore taught him how to make bread and the record shows that mr full sharing recipe that is an exhibit that was talked about much at trial and that rizvi had some of this information but not all of this when that i think the fairest way to say it is that the number that mr fall provided was about fifteen or twenty percent fifteen or twenty percent higher then i think the number being the use if you think someone could possibly have thought that local meant baked in oregon when it's sold in salt lake local i don't i'm not saying that but it didn't say baked in oregon it said a local and i don't want to be clear local as a referent is not capable of a literal falsity it can't be objective lea proven as their own and their own survey evidence demonstrated local means different things to different people and if you look at the survey results it very much meant different things to different people how broadly was it in the survey results how far away some people said in the united states was local some people said their head with respect to bread they the way they phrased the question if you look at the answers is that it's made in the about where the bread was based but that was leading because it didn't say locally based it was a company tagline that said fresh local quality it didn't say locally baked it didn't say there was enough competition and even if it's not literally fa that it was misleading he disagrees with that well i do disagree with that because i don't think there's actually any competent evidence of that i think if you believe that it can't be literally false you then have to prove to competent evidence that it could be and there was no co evidence for all the reasons we described in our brief the the survey itself didn't properly character that in part because of the leading questions in part because of the failure to analyze in part  and every number higher meant you cared more can you say the middle range five to six means you're indifferent to whether it's nuclear be one of them to differ where it was totally unimportant to be totally left i would like to reserve the answer i'd like to reserve two minutes at possible and i want to introduce myself to the panel i'm shorty going to represent leland sycamore in this case and obviously i'll do my best to answer any questions the panel may have but i'd like to focus on three things if i may the st is the evidence as to the allocation of fault under the utah liability reform act and in this regard it's very important to remember that the this case in the st amended complaint of the plaintiffs was that mr sycamore misappropriated a trade secret in conjunction with wild grains and and thirty and that's the important point as a tour this claim is subject to the liability reform act and we have a right under the statute seventy eight  percent i attempt to marshal that evidence on page nine of our opening memorandum and what i come up with is certain u s b personnel saw mr sycamore at the wild  son worked and certain being the about person personnel saw mr sycamore there as well and that's it nobody told there's no evidence of mr sycamore brief about damages to be very important because i'm asking him monetary only how much damage did leland sycamore cause and i don't think i'm misreading his testimony to say you could run this exact same number of damages without reference to mr sycamore i think in a commercial case that's pretty strong evidence of causation the inference that if there's no monetary harm there may not be any  actual harm as well and that's why the plaintiff's reference in the district court reference to the allocation issue being a jury function is unhelpful the cases that we cite on paris v shopko which we cite on pages page sixteen the egbert versus nissan case we cite on one thousand dollars those cases are requiring evidence on the issue of causation the cause of  yes but it seems to me that's not what juries do when they apportion liability it doesn't have to be based on causation often it's  both defendants actions are but for clauses you may even throw in the plaintiff's actions it's a moral judgment who is more culpable not in terms of causation but in terms of how bad their act was and that is a jury question and the fact that the same damages would have would have been  assessed regardless is is is not the point well if i may challenge you are you saying that the only way to apportion is percentage of causation well i think that i thought i may challenge your honor i don't think it's a moral judgment i think it's an evidentiary judgment the what is the evidence that supports the allocation you're making you may be offended by what neil and sycamore was alleged to have done what i got to happen they had to that i think that i am because i think the allocation is unsupported by the evidence this is likely but but if you're focusing on the allocation you're starting with the assumption that he was somewhat at fault of course he's not if he's nowhere at fault then you're right zero brandon i'm starting with the assumption that the jury has found him at fault and now i'm challenging the evidence hearing basis and i think this bleeds into the other elements of where i wanted to go this morning which is if they're going to focus on the testimony of jeremy fault that mr sycamore disclosed the trade secret to him and the concession by the plaintiffs that that disclosure occurred in two thousand and eight i think that underscores or strengthens my argument that i should have been entitled to amend my answer to a sort of statute of limitations claim or defense because now we're not in two thousand and thirty we're back to two thousand and eight and as a result i have a right therefore to assert this claim this defense of statute of limitations or said you want a better right  amending to conform to the evidence that bilbo introduced at trial that it was in fact in two thousand and eight that the disclosure occurred and not in two thousand and thirteen as alleged so it's not untimely respectfully because under the under the th circuit rule or the the the case of the department of interior versus our new mexico versus the department of interior that we cite in page twenty two dollars the rule is under fifteen b that lea to a man to conform to the evidence should be freely granted unless there's prejudice and neither neither the plaintiffs nor the district court outlined the prejudice a little allowing the men legal nuna back in two thousand and eight there this i think that there's no there's no good response to the fact that except to the extent that leland thought that he hadn't done anything wrong but to the extent that your question is correct judge i i think not only did leland know in two thousand and eight the plaintiffs knew in two thousand and nine that leland had done this and yet chose to bring an action that did not include the trait secret had come up there was a chance to litigate it and it was not litigated and as a result it was barred i think if there's if the single claim theory that the district court if i'm charged as the defense to raise a d statue of limitations defense even though there's a claim that there's a new misappropriation based on paragraph twenty three dollars twenty four of the st amended complaint if i'm charged with raising that affirmative defense then i think that same single claim theory has to apply to the plaintiffs again that was to raise and i'm sorry because it may have been a good defense you did put it in her answer to the complaint but you didn't have it in the pretrial order which governs is that correct it was not in the pretrial law order i gree with that your honor but it doesn't agree that's that's pretty significant if you don't keep it in the pretrial order well my view of that is that this is a legal defense it's not a jury issue it doesn't necessarily require  litigation perceval and also i think the court has the authority independent of all of that to rule on it based on the facts i've got forty five seconds i'd like to reserve some  talk about the trade secret claim st i'll talk about false advertising nd if time allows i will address briefly the trade dress going which the district court improperly dismissed on summary judgment and then also i hope to be able to address a couple of mr sycamores issues on the trade secret misappropriation claim it's important to keep in mind the deferential standard of review that applies to that the challenge is simply to on the trade secret issue is simply basically did cut and paste his expert's opinion all of the arguments cities are particularly good today all of the arguments that are at stake articulated in u s bakeries brief are a repeat of exactly what is expert set and so all of those opinions and all of those facts are put in the argument and then all of the contrary evidence is ignore start talking about your trade secret do you contend that the recipe has the saying the making and the temperature times are that we think that the mixing is the same with your own  sycamores homemade bread is made in accordance with the trade secret that our expert dr hosny identified but that doesn't answer my question well if the question around this is why i asked for the clarification so let me answer this way because i believe this may be to question us bakery makes the argument in its brief that the way you make grandma emily's is very different than the way you make grandma sick for example they make a big deal about the fact that you mix the products differently there's different steps in the process that doesn't matter and that is totally irrelevant the question here is not are you making your product exactly like grandma sycamores the question is is the product made in accordance with those elements of the grandma dominance everybody is trying to knock that off it happens every few months somebody comes up with a new homemade bread product trying to knock it off and guess what no one ever before u him nobody could ever even come remotely close to reproducing grandma sycamores in fact your honor it's not just all those other competitors who couldn't recreate grandma sycamores because they didn't know the trade secret s bakery in two thousand and eleven tried to recreate grandma sick what was in fact on the documents that showed the effort that they made they called the product they were making grandma sycamores and the testimony was that that piece that loaf of bread was garbage it was a junk oakley loaf nobody would buy into that was just drama and always recreate it i'm sorry it did when they hired leland sycamore in his son's bakery in the middle of summer of two thousand when sycamore and they started making it themselves and guess what it was garbage nobody would buy it it was nothing like grandma sycamores until about six or eight weeks after the email from jeremy fall in november of two thousand and thirteen and generally fall gave him what they needed to know told him the ingredients told him the times told him the details and then and only then was u s bakery actually to actually produce grandma  argument my expert explained it to the contrary of that but how could it possibly occupy the field when nobody else has made a loaf of bread like this except my coins in except united states basically this trade secret is incredibly narrow it's herm's grade told the logic of how you make commercial breads no one has ever figured it out even though they had all the reasons and the reason is because it's such a them for appropriating a trade secret if you get that secret and then perhaps manipulate things a little bit maybe do things which you think they could even better but you don't reproduce the item that you have the secret for are there any traces along those lines because that seems to be what your argument is that yes they did not you seem to can see that they're recipe u s bakeries recipe is not the same as being both but they couldn't have come up with that without learning are the same as grandma in the ways it doesn't matter whether they mix them the same whether they have the same ingredients which you do under trade secret or if you look at what's the trade secret component of the process and that is the only thing that at trial and this is quoted in our appeal priest i asked the other side's expert i said does mixing have anything to do with the trade secret because the whole focus of u s b a trial was the mixing is different he said no the mixing has nothing to do with the trade secret it's irrelevant that you have other elements in production what happen is when we hire call hosni one of the top experts in the country and grain science we said coral why is this spread so incredibly unique special and successful and he studied it be analyzed it and he came up with these four things and said these two ingredients and these two processes within this range that is what makes this bread special it doesn't matter what the other ingredients are it doesn't matter how you mix it it doesn't matter what those other things are you just look at the trees doesn't matter and it doesn't matter whether you use the precise recipe the grammar sycamore used you'll get this result if you're within ten percent or something like that is that when you find it no because everything be on those four elements is irrelevant it doesn't matter how close percent emily's was fifteen percent but your experts said the important thing is that it's within this range of ten to fifteen percent and in my understanding it correctly yes your honor he had ranges not only on time and temperature and depending on how you modify war and it impacts the other so i can't say my trade secret is x minutes at x temperature modify the temperature slightly in the title changed slightly so what he did is he gave the ranges of times temperatures percentages of ingredients and he said if you are within this range and grandma sycamores is made this center in the middle of all these ranges he said if you're doing within that range that's what the trade secret if i'm not it makes some sense but i'm not sure it's the law so if you get there i don't know i don't have one but the reason is because from my perspective at least and i just do intellectual property litigation so i do this a lot it's foundational to the concept of a trade secret if you make a product it has ten steps but five of those steps everybody does that you have to do that now it's well known but you just got two or three steps that are unique the trade secret is in two or three unique steps you don't look at all those other steps everybody's doing those and those don't impact the what you're trying to accomplish it's those two or three parts in the middle  you don't have to be precise about those three to to get the a similar enough product well but you need to know you need to keep it within a range of that so can't you so it's a stated again because i don't think you responded precisely to my precise question can you violate a trade secret even though you don't do it the way the owner of the trade secret doesn't but you just nothe it would be a damage question i suppose if the owner of the trade secret is actually not practicing the trade secret i don't think you could get any damages so i'm not sure it would matter if there's a trade secret but here your honor i mean my client makes grandma sycamores exactly within the trade secret as described by dr post all the ingredient ranges the time ranges the temperature ranges grandma sycamores is all made will within those ranges and ranges is the only way the doctor has he could describe it because like i said it's not an exact number it has to vary it d varies depending on the elevation and all sorts of other factors one horrendous campaign of false advertising united states bakery sold one hundred and fifty three million dollars in britain advertised it all promoted it widely as fresh local quality bread and in fact there was nothing fresh about it that grid which shipped in some cases over two thousand miles to market average was it was shipped six hundred and seventy four miles to market and all of it that that is the central issue your honor and i appreciate the direction and i'll get right to it and i am going to answer that question but i want one observation beforehand and that is this counsel for us bakery is not capable of giving this court any truthful meaning of the term local their marketing company advised them to use this term local and they used it extensively but yet they don't know what it means why they put it on the pr and they don't want to be used and they can't give this court any truthful meaning to the term now your honor to your question what does it mean i think that in discovery because that was obviously an issue that confronted me early on in this case what does vocal mean obviously the definition of the term suggests that means something close by as as as i went through discovery and looked up looked at up there i found three different sort of concepts many sources many people many places in our survey course is up to the jury to decide on the definition but we're giving you one reasonable definition they could have followed that we followed which is that work will means that it's nearby at least within the same state run of let me tell you the evidence that we've had t bottom line forget the other evidence what i'm going to tell you right now is enough witnesses from united states bakery inquisitively agree that that is the correct me d the c f o testified that the company dropped the use well i'm sorry before they dropped the use us bakery was in the middle of this lawsuit they were trying to have the figure out how to deal with this and they came d up with a program where they decided where a period of time that they would only advertise a product as well if they had a bakery in the same state in other words united states bakery at least for a period of time was following this definition of that i'm suggesting which is that local means you have to have a bakery in that state that is producing the product you are the best analogy i can give you and i know that us they create makes the point that everybody there's different definitions of local and people have people who think within the same city if they think that it has to be within the same city to be local then it's going to be from out state it includes all of those people with in my definition in the definition that i have to do it is the most generous locally it means that it was produced nearby at least within the same state so would not in that state it was produced in any other state then that would not be local so that's not the most crowded definition that you're going to find where people think national products can be local state level there's this clear divide in from all that evidence that i listed for you that evidence shows that people were need some criteria for what l is and over and over stores and government agencies are doctoring the state line as long as it's within the state it's local walmart doesn't want to last but they didn't even that is pretty vague isn't it and market same newspaper market that sounds pretty local to me well your honor us bakery made a similar argument to that and i think they they chose an example two cities or even closer i think they chose in cooper washington portland oregon which are even closer together a couple responses that you're on to number one it doesn't matter because those aren't the sort of circumstances we're dealing with here and you killed six hundred and seventy four mile average that we didn't have a bunch of things here where it was close by as your honor has described this was stuff that was really being shipped substantial differences so if i'm just soldering your test the test that you just state and you're stating was used by us bakery had to mean something why would they use it if it didn't mean anything and if it doesn't mean you're on it what i have proposed what does it mean the mere fact that us bakery is incapable of offering a quarter truthful definition that in and of itself shows that it's false i'm simply giving you a reasonable rational standard that the jury could have followed the jury may have followed some other standard i don't know but i'm giving you a reasonable ashwood that i suggested what about one of the survey responses was a local man  every witness from us bakery disagreed with that concept that local means a local company i ask every person who came to the stand for united states bakery and this is cited in our grease and i just said when you said local you're referring to products aren't you recent go witness said yes so local does not mean that this is a local company and that is such a weak description that even the witnesses from u s b didn't agree with it i also wan hit briefly on the white question about my questions what difference it made the your expert on damages said that u justified by the record let's let's think of this meeting between the marketing people and us bakery and they say i think you should put local on your bread the day say otherwise you won't be able to sell any because that's essentially how the expert calculated that mogens as if us bakery could be made any profit  wouldn't sold any bread if it didn't have local and or did the marketing guy said i think we can increase sales five percent or no i don't know from your survey evidence we don't really know anything from that survey evidence that i can see  least not without speculation how you're going to measure how much additional profit us big freedia by putting local on that bread your honor i think all my expert witness did is to calculate the amount of u s bakeries profits on a crop it were sold through false advertising the law is what in titles me to those profits i don't have to prove causation in order to recover those profits and i don't know if that's brief because that wasn't an issue in the briefing but i know enough of intellectual property law to know that i don't have to prove causation to get those profits as long as i prove that they in gauged in false advertising with a jury found to be willful false advertising i am entitled to the profits that they got from that i don't have to prove it's not a lost profit claim i could have pursued a lost profit claim if i did then what your honour's talking about would be absolutely true i would have to put some level of causation but in order to recover their profits i don't have to i don't have to have cause issues again i think i came to thinking about that issue based on the challenges to the to the survey and mere progress of the survey and it seemed like that was missing from the survey but you're saying that's irrelevant to getting lost profits yes to getting lost profits for false advertising especially wil false advertising which the jury found here i don't have to prove but for proximate cause i would only have to prove that if i were pursuing my clients lost profits and its profits i don't have to do it that's why i saw frankly that's one of the reasons  honor i just wanted to make clear that even if i did not for any reason prove literal falsehood that why causative confusion is sufficient and i proved likelihood of confusion i didn't need a survey for a variety of reasons but even if i did i had a survey and disputes as to surveys as of the methodology s universe of respondents that goes to the weight of the survey is uniformly help you can't hold it in admis that's in effect what the court did in that were mitchell were they said that surveys not it admissible to prove confusion because you didn't use the right universe of can of consumers to respond and the jury heard that evidence the jury apparently didn't believe it decide the definition it's there has to be a definition of local against which the jury can measure it and there was no as the court has already pointed out there are multiple definitions thirty two of our principal opening three talks about the specific definitions that their survey respondents offered the court properly noted that if your cross the state line but nearby you're not local under their definition that's enough in terms of the survey the survey was of utah evidence outside of the border of utah as to whether there was a likelihood of confusion here and that is fatal so their damages call it doesn't matter what mr hoffman describes as the overall sales in those sales that might have crossed a lines or not  if there's no evidence of harm in those other states and there was zero evidence here you and mr burke's burden as the plaintiff's lawyer was to sound so i would ask you on the trade secret i just want to say quickly it's not that they're well within the middle of the range they're at the bottom of the range we're at the top of the range and dr jose described the secret in a manner that helps out through what we do but also captured what they get that's not a trade secret that's describing two different things what he described as not what they do i would urge you to compare what they had fasted to what he described into what my client already did and already done those things all it's not in the record and there's no evidence that he was hired to fix the reintroduced threat and the whole focus on the reintroduced brad goes back to the arguments that i was making counsel or excuse