thank you very much good morning honors in may it please the court my name is making with someone i represent the appellant james carr the unifying question amongst all of the issues presented on mr karr's appeal are the extent to which the district court properly dismissed mr karr's complaint on the pleadings based on terminations that are largely factual in nature and therefore in all that the most extreme cases typically reserved for the finder of fact and or a jury beginning with the question of mr karr's efforts to maintain the secrecy of his business plan the complaint adequately alleges that mr klein adequately alleges circumstances that drawing all inferences in mr karr's favor would indicate an expectation of confidentiality that the business plan was not to be used or disseminated without mr karr being compensated or otherwise involved and this is on this issue we are asking this court to go ahead and  answer the question in the manner that it indicated it was so inclined in the direct acknowledges case that that reasonable secrecy measures can be inferred by the circumstances in this case the transactional nature of mr karr's interactions with mr hayes and on a nation in which mr carr did not just disclose the business plan unsolicited she gave a general vague overview of the concept automation then returned his call contacted him asked for more information once a farce to send somebody to california to get more information then told him that they were not going to proceed and on mr karr's request return the business plan this was similar to what happened to mr karr in his dealings with late the other recipient of the business plan and line deed did not move forward or take any action on the business plan after return it to mr karr the next question beyond the reasonable effort to maintain mr karr adequately alleged that he did not know or have reason to know that automation and i'll take you had misappropriated his trade secrets until he learned of his existence mr highs in this connection to take you out of barbecue in two thousand and on it the reply brief our reply brief in this nice circuit appeal we address our nation's heavy reliance on that argument in their appellate response but it was not raised in the district court  by either party by either the defendants nor the court and did not form part of the court's ruling and therefore mr karr had no grounds to amend the complaint especially given that mr karr did at that time have additional facts to allege  sufficient circumstantial evidence to infer that not only obtain the subject matter of the business plan but drawing all inferences in favor of mr karr that they had reason to believe the district that the business plan was wrongfully the free flow of information people and money among the high single family that struck me i don't know quite fits into this whole story is that the original letter that mr carr wrote says quite specifically that his plan was not to use acquisitions and the actual operation immediately to forty four acquisitions so it seems like they were following the plan they weren't following the plan specifically but that is not and you know my trade secrets claim it's not uncommon when when a trade secret implemented for it to be improved upon or variations to be made to the original plan it's that the key to what's plan was not to do acquisitions and they deny positions it's just and i mean one of the frustrations here as i mean to be it from my point of view is that i think your argument about the confidentiality is bad but everything else about the case seems extremely dubious so beginning it to be clear to show that i'm responding to your honor's points to another war and i think the immediate question which is whether the district judge properly conclude is that on the complaint there was there was an insufficient kind of confidentiality is a fair question but then have something that doesn't look a whole lot like a trade secret to begin with and wasn't followed either and wasn't sued on for twenty years so versing is just going to perpetuate a case that's not going anywhere  not necessarily your honor the pleadings there are very early mr karr is not had the benefit of discovery he hasn't had an opportunity to develop most of these claims beginning with the question of whether or not it was a trade secret well in the st instance we would contend that that's not appropriately raised in this court because mr karr to not have the opportunity to amend his complaint on this issue that was not raised at the district court whether or not something is a trade secret is also a question of fact sitting here in two thousand and twenty we can say that this seems obvious most great business ideas do seem obvious what it looks like as a st year m b a paper about you know analyzing and history it's not exactly a genius right piece of paper but it number one it it sees the potential in an industry that nobody else had seen the  potential in before or at least not been able to implement a winning business strategy on that front and that's because even though these seem like small things in one thousand nine hundred and six they were not necessarily small things things that were the prevailing industry practice likely to save money in what was seen as a kind of low tech low brow industry for example hiring the cheapest labor that she could and just paying them salary not using computer systems again that seems like nd nature to  usually trade secrets or are protected and i mean i think the fact that this didn't happen twenty years later suggests that he didn't he wasn't your client was really invested in this he sort of made a pitch and then he moved on and went to other areas and didn't really pursue it at all and then twenty years later he finds out that somebody you know did something similar it's not unusual but it just seems a lot to be a lot of speculation going into it and i think that's the question is how far can we read your complete you're you're right it's a motion to dismiss it's on the complaint but did you properly what facts lead us to believe that this is something that should have been protected in the st place well for example you can see what an advantage it was to be the st person to be the st company to implement it but when you just make the trade secret i mean people can do innovative things that aren't secrets that don't get that i mean i always wonder for example why it took a thousand years for some bridge site to put some some wheels on suitcase i mean i don't think it's a secret if somebody had written a piece of paper saying i think i'll put some real secret suitcases and someone else got the piece of paper i doubt that that's a trade secret it's just for some reason nobody ever did maybe it's a trade secret maybe it is in your honor again many things seem obvious in hindsight mr karr he number one he talked about investing in more high quality salespeople nobody had thought of that in connect with this industry before based on the complaint he wanted to actually have interconnected systems using new technology again in one thousand nine hundred and six that was somewhat of come of a novel idea that leveraging emerging technologies to connect inventory nationwide could actually drive this industry that up until then had just basically been quite frankly junkyards understanding the environmental pitfalls that could do a company like this that makes rapid acquisitions mr carr he advised starting from scratch that you didn't have to deal with the environmental legacy of an acquired company but he didn't foreclose the possibility of acquisitions just that one would need to be cautious that he considered building new junkyards from scratch to be optimal that is not what i'll take you did but under the trade secrets law that does not doom mr karr's claim because acquires of trade secrets can make improvements changes alterations to those trade secrets nonetheless if the core concept was a trade secret that will not change its trade  in the record that says to mr karr at least explicitly or expressly said this plan is confidential you know you know i know he's saying you can for the circumstance is there anything where he told someone not a nation treat this confidentially this is you know along those lines now your honor our position is that it was inferred from the circumstances and his asking that the plan be returned that our nation could have access to the business plan for the time to considering a business relation a business acquisition a relationship with karr but at that point it was no longer to have access and i wanted to to revisit to comment about twenty years later somebody did something this was not somebody this was another affiliate this was automation started  suggest they were in general in the car business they were in a different business their car dealership q it's automobile wrecking automation didn't do this clearly otherwise why did they send somebody from florida to california to meet with a guy who happened to know about this auto wrecking industry it was outside of their wheel house otherwise they would have tossed mr cars letter in the trash and he never would have heard from them again mr hazing death who had this inner connected web of business to the media cited in the complain b s one registration statement which automation i believe had the court take traditional notice of in their opposition to the motion to dismiss it gives the biographies of all of the accused founders none of them had an automobile wrecking background they i believe made their  st acquisition and then brought some of those existing yard owners into the business but they made forty four acquisitions that st year they came out of the gate hot they were relying on those people that acquired they had a plan and they were following some sort of plan the question is where did they get that plant from we know they didn't have the institutional knowledge of automation we knew that the people who started out that you did not have this this information th good morning may it please the court petter be told and on behalf of the auto nation i would be sharing time with mr rice who separately represents l k q and i'm going to try to take the st nine of the fifteen minutes i'd like to start with judge lee's question about whether there's anything in the record that all suggests efforts on mr karr's part there certainly is stuff and the record that suggests efforts i mean st of all he wrote a letter but he didn't give the plan he said and then he including well i think it's quite possible that he was irritated he thought you know if you're not going to go into business and then just some of the playing back he was dealing exclusively in paper at this point so he may have one of the paper copy returned to him but the key point is that the context is king at this point in the process he and mr davis it had a series of communications a series of meetings they exchanged some paperwork and no point i'm sorry i thought then one meeting at one meeting and they had exchanged letters and there was a phone call and it would be better to be accurate i mean you began by saying there's nothing in the record or certainly something in the record and now you're saying they had several meetings but they had one meeting let's go on and i don't think that any of the engagements that they had up to the point when mr carr asked for the plan back could possibly have suggested to mr davis any intent on mr karr's part to maintain confidentiality none of the things that a reasonable person would do if he were seeking to protect the secrecy of the documents were taken there was no request for a non disclosure any person who was intending to convey the idea that requesting the plant back was an effort to maintain secrecy would have done other things that go hand in glove with that they would have said for example car would have said to davis you know if you made any other copies of this destroy them if you took notes thrown away if you talk to anybody about it he would tell them not to to disseminate that information there were all kinds of things that a reasonable person in this position would have done to alert mr davis that there was an effort to meeting secrecy i mean it seems to me that the closer end point is that you know telling somebody some things about how you might organize a business is nobody would think it was a business it was a trade secret because it doesn't sound like a trade secret but that's sort of a different problem well i certainly agree that it's not a trade secret and we issues that weren't briefed below and that's the applicable role but not the notion that you can just come up with anything because you're an appellate well your honor this court is certainly free to affirm on alternate grounds i think that proposition is well settled the argument that this is not even a trade secret which i think a number of the judges on the panel of asked about is an alternate ground for an affirmative if we don't have a trade secret obviously the claim doesn't get off the ground but the limitations  it's a factual issue and you're not really that you didn't even are hearing your brain's right your honor we raised the statue of limitations argument in the district court like this the court ruled against us so you don't argue here that they were wrong about it just a court was wrong about that we did that's the last argument in our brief that the court can affirm on that ground because the district court was erroneous in believing that the statute of limitations did not bar the claim of course here we have a twenty year period preceding the filing of the complaint as we included in our supplemental excerpts there were four or five newspaper articles that by the end of two thousand and two would have alerted mr karr to the existence of the ok q to industry here where there were lying on the discovery roll or equitable toll that does seem to be something that though would go to a factual development to make it helpful i mean i get to you brought in i think it is troubling that it to me it almost goes to whether was a trade secret if he had these meetings and then kind disappeared for fifteen years and never went anywhere then finds out that this is going on and it goes to the issue of how much of a trade secret it was but it does strike me that stretching limitations is something at least with the defense that they're raising would be better addressed on summary judgment your honor i take your point and i think you're right about the connection that can be drawn in terms of the delay in this really is a trade secret the case i would point you to though on the on the delay record right it relied on judicial notice of media reports which is the same thing that we have here in th how we do it and you can incorporate something that's in that a document that is referred to in the complaint but you can take something i mean even if it's traditionally noticed it's still i mean that it conclusion that karr did that take adequate efforts to keep his alleged secret secret if that's affirmed then obviously that runs in our favor as well i think we do have another layer on top of that which is that even if you felt there was some kind of a dispute here over whether karr had done enough to keep that business plan secret to these of the mr davis there is still the issue of how how is how does l k q a company that didn't exist and wasn't formed until three years later how does it have the mens rea the intent that california trade secret law requires you know when it was an affair ha do not have any in dishy here that the specifics of mr karr's business plan if you read that business plan and then counselor compares it to l k q's form s one filing i looked at it the court can use its common sense st of all many of the parallels she points to are ninety even parallels or they don't even line up and where they are parallel it's at such a high the no level of generality any national company announcing that it's going to you know go into business and and and consolidate in industries going to say the same things there's nothing in that for mass one filing that suggests that there was something specific about what mr carr put in that officer he's not listed in the hughes filing there's no indication of any connection between those interactions between mr davis and mr carr and l k q a company that didn't even exist at the time of those interactions and although i don't i think this is a pretty clear point clearly davis is conduct can't be imputed to l k q he was not ok q so agent is a wholly separate company didn't even exist at the time of these interactions with carr clearly a q is not an alter ego of auto nation as plaintiff suggests in her appellate brief she didn't even attempt to plead that in her complaint so those theories fall by the wayside and then i get back to what i said what i mean one questions and they really have corporation here the standard is that they would have to know that a trade secret was improperly just closed who has to know or tell me with an entity not a person well i mean l k q obviously like any company they act through the people that are their agents and officers q i agree that an entity has to act through its employees and officers but there's no indication they did there's no indication of any wrongdoing on the part of anyone at all k q and if someone had l k q came into possession of that business plan there's nothing on the face of that business plan that indicates that it was to be kept confidential there is no reference to a non disclosure agreement there's and if they came into possession of that letter that mr carr wrote to mr davis on january th of one thousand nine hundred and six he said well if you and your staff would like some more information about my ideas i'll be happy to share those too and he didn't say at the end of that sentence but only if you keep it super secret guy in california who is a junkyard i don't ation read the business plan and then sent somebody across the country to learn more so this was just that doesn't mean i had value that means i mean there's plans all the time that people want to look and then they  it means it raises the possible inference that the plan did have value to automation and again we're looking back twenty years and on the twenty year point mr carr again he had he's gone to he's done a lot of different things in his career started as an accountant he owned junkyards for about ten years he thought he could do something bigger that's what he wanted to do he pitched about twelve different people he got rejected mostly summarily by almost everybody other nation itself said we don't want this idea he moved on