NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ELLIOT FRIEDMAN, 

Plaintiff-counterdefendant-Appellee, 

 v. 

EYELIGHT, INC.; MICHAEL S. BERLIN, 

Defendants-counter-claimthird-party-plaintiffsAppellants, 

 v. 

MLASE A.G.; JOHANES JUNGER; 

MARCUS ENDERS; AXEL WERBACH, 

Third-party-defendants.

No. 22-56076 

D.C. No. 

2:19-cv-05545-JAK-RAO 

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

John A. Kronstadt, District Judge, Presiding

Argued and Submitted December 8, 2023

Pasadena, California

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

DEC 27 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Before: WARDLAW and BUMATAY, Circuit Judges, and KENNELLY,**

District Judge.

Concurrence by Judge BUMATAY.

Michael S. Berlin and EyeLight, Inc. (collectively, “EyeLight”) appeal the 

district court’s order granting summary judgment to Elliot Friedman (“Friedman”) 

as to Count III of EyeLight’s First Amended Counterclaim for breach of a 

confidentiality agreement (the “Friedman NDA”). We have jurisdiction under 28 

U.S.C. § 1291, and we reverse and remand for further proceedings.

1. The district court erred in limiting the scope of the Friedman NDA to 

information EyeLight regards as proprietary. The Friedman NDA prohibits the 

unauthorized use of “Confidential Information” that one party (“Disclosing Party”) 

discloses to the other party (“Receiving Party”). The Friedman NDA defines 

“Confidential Information” as information “that Disclosing Party regards as 

confidential or proprietary.” Accordingly, information may fall within the scope of 

the agreement even if the Disclosing Party does not necessarily regard the 

information as “proprietary.”

1 Any interpretation to the contrary would render the 

** The Honorable Matthew F. Kennelly, United States District Judge for 

the Northern District of Illinois, sitting by designation.

1 We agree with the district court that information which EyeLight regarded 

as confidential and which was disclosed to Friedman as part of the 

EyeLight/MLase negotiations would fall within the scope of the Friedman NDA’s 

“Purpose” to the extent Friedman and EyeLight evaluated their continuing business 

relationship in any part based on the EyeLight/MLase negotiations.
3 

phrases “regards as confidential” and “regarded as confidential” in the NDA’s third 

paragraph superfluous and would require us to ignore the disjunctive use of “or” 

throughout the same. See Cal. Civ. Code § 1641; Yahoo Inc. v. Nat’l Union Fire 

Ins. Co., 14 Cal. 5th 58, 69 (2022) (California law “favor[s] an interpretation that 

gives meaning to each word in a contract over an interpretation that makes part of 

the writing redundant”). 

The Friedman NDA further provides that any disclosure of “Confidential 

Information” by “any unaffiliated third party at the request of Disclosing Party[] 

shall be deemed to be a disclosure made by Disclosing Party under th[e] 

Agreement.” Such information is not subject to the Friedman NDA’s obligations 

of confidentiality and non-use unless the unaffiliated third party is “under an 

obligation of confidentiality to the Disclosing Party with respect to said 

Confidential Information.” 

The record shows that Friedman’s personal outreach to MLase after 

departing EyeLight at a minimum disclosed the existence of commercial 

negotiations between EyeLight and MLase, and it used MLase’s April 24, 2018 

counter-proposal to initiate new negotiations between MLase and Friedman 

directly. The parties also do not dispute that EyeLight and MLase entered into a 

valid confidentiality agreement (the “MLase MCA”) in December 2017 that 

imposed mutual obligations of confidentiality between EyeLight and MLase,
4 

including with respect to “the fact that the parties have entered into discussions” 

regarding a potential “commercial relationship between the Company [EyeLight] 

and Recipient [MLase].”2 

In light of these facts and the interpretation of the Friedman NDA described 

above, the district court’s summary judgment order overlooked at least three 

genuine issues of material fact:

First, drawing all reasonable inferences in the record in favor of EyeLight, a 

triable issue exists as to whether EyeLight “requested” the negotiations with 

MLase generally or MLase’s April 24, 2018 counter-proposal specifically, within 

the meaning of the Friedman NDA. From November 2017 through January 2018, 

EyeLight, through its acting CEO Stan Miele, actively sought discussions with 

MLase regarding a potential business collaboration. After EyeLight and MLase 

executed the MLase MCA, Miele sent a proposed term sheet to MLase “for our 

discussion” and invited MLase to “mark [the document] via redline.” The parties 

2 We disagree with Friedman’s argument that we cannot look to the MLase 

MCA because EyeLight did not allege its existence in the pleadings. Courts 

generally will not consider at summary judgment claims that were not pleaded in 

the complaint. See, e.g., 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 

(9th Cir. 1999). But EyeLight relies on the MLase MCA as evidence that the 

information Friedman allegedly used after leaving EyeLight was confidential 

within the meaning of the Friedman NDA—not as the basis for “new or different 

grounds for asserted liability beyond those properly noticed in the complaint.” Fox 

v. Good Samaritan L.P., 801 F. Supp. 2d 883, 896 n.11 (N.D. Cal.), aff’d sub nom. 

Fox v. Good Samaritan Hosp. L.P., 467 F. App’x 731 (9th Cir. 2012).
5 

exchanged proposals and counter-proposals for a number of months until 

Friedman, on April 20, 2018, sent a proposal to MLase and requested “a telephone 

conference this upcoming week to discuss.” MLase responded on April 24, 2018 

with its counter-proposal. Although some evidence suggests that EyeLight did not 

specifically request the April 24, 2018, counter-proposal from MLase—namely, 

Berlin’s statement that Friedman’s April 20, 2018 offer was an “unauthorized 

correspondence”—Berlin himself noted that he “could live with [Friedman’s 

proposal]” and the record broadly supports a finding that EyeLight requested the 

negotiations with MLase generally. 

A second triable issue exists as to whether EyeLight, which would be 

deemed the “Disclosing Party” under the Friedman NDA if EyeLight requested the 

counter-proposal from MLase or the negotiations with MLase more broadly, 

regarded either the specific proposal or the negotiations at large to be confidential. 

Significant evidence suggests that it did, including communications from Berlin to 

Friedman describing materials related to MLase as confidential; the term sheet 

Friedman himself sent to MLase in March 2018 that included a confidentiality 

provision covering “the existence of any details of the negotiation” between 

EyeLight and MLase; and the MLase MCA, which covered “discussions” 

regarding the potential “commercial relationship” between the companies. 

Third, the district court improperly limited EyeLight’s claim of breach to 
6 

Friedman’s use of the April 24, 2018 counter-proposal. Even if EyeLight did not 

“request” the negotiations broadly or the counter-proposal specifically or did not

regard either as confidential, a genuine issue nonetheless exists as to whether 

Friedman used EyeLight’s own confidential or proprietary information in his 

personal outreach to MLase.3 

Circumstantial evidence suggests that Friedman “employed” or “availed 

himself” of EyeLight’s confidential or proprietary information when he told 

MLase that its April 24, 2018 counter-proposal was “within a reasonable range.” 

Batt v. City of San Francisco, 184 Cal. App. 4th 163, 172 (2010). Prior to his six 

months as the CEO of EyeLight, Friedman had never worked in any aspect of 

ophthalmology, had no professional experience with glaucoma-related devices or 

businesses, and had not worked in the ELT industry. EyeLight granted Friedman 

access to confidential and/or proprietary internal EyeLight analyses regarding 

ELT’s marketability, cost, potential profitability, effectiveness, and estimated 

3 We disagree with Friedman that California’s rejection of the “inevitable 

disclosure doctrine” forecloses EyeLight’s claim in this respect. The inevitable 

disclosure doctrine operates in the preliminary injunction context to “permit[] a 

trade secret owner to prevent a former employee from working for a competitor 

despite the owner’s failure to prove the employee has taken or threatens to use 

trade secrets . . . by demonstrating that the employee’s new job duties will 

inevitably cause the employee to rely upon knowledge of the former employer’s 

trade secrets.” Whyte v. Schlage Lock Co., 101 Cal. App. 4th 1443, 1446–47 

(2002). California’s rejection of the doctrine is both factually and procedurally 

inapposite here, where EyeLight has asserted actual use—not mere knowledge or 

“inevitable” use—and is seeking monetary, not injunctive relief. 
7 

timelines for FDA approval and commercialization; Berlin’s analyses whether to 

make or purchase ELT technology; and EyeLight’s assessments of the value of 

MLase’s technology, services, and other components. Given that Friedman likely 

could not have assessed the value of MLase’s counter-proposal without relying at 

least in part on information to which he was privy as CEO of EyeLight, a

reasonable factfinder could conclude that Friedman employed or availed himself of 

EyeLight’s confidential or proprietary information in his personal outreach to 

MLase.

2. We decline to affirm the district court’s grant of summary judgment on 

the alternative ground that EyeLight has not shown or is not entitled to damages. 

The Friedman NDA provides for the availability of equitable remedies 

notwithstanding the existence of relief at law, and California courts have 

recognized that unjust enrichment can satisfy the damages element of a breach of 

contract claim such that restitution or disgorgement is a proper remedy. E.g., 

Ajaxo Inc. v. E*Trade Group Inc., 135 Cal. App. 4th 21, 54–57 (2005).

4

 California 

law also provides for nominal damages in the event of breach without actual 

4 We decline to reach Friedman’s argument that disgorgement of $3.6 

million would amount to an improper windfall or an amount not within the 

reasonable contemplation of the parties. EyeLight seeks “[r]estitution in the 

amount of Friedman’s interests in ELT Sight, in whole or in part . . . .” (emphasis 

added). Because the $3.6 million is merely a ceiling figure, Friedman’s arguments 

are unripe absent an actual award of monetary relief.
8 

damage. Sweet v. Johnson, 169 Cal. App. 2d 630, 632–33 (1959) (“A plaintiff is 

entitled to recover nominal damages for the breach of a contract, despite inability 

to show that actual damage was inflicted upon him.” (citing Cal. Civ. Code § 

3360)). The evidence of EyeLight’s business shortcomings and its struggle to 

develop a working relationship with MLase, contrasted with the evidence showing 

that EyeLight and MLase may have been close to consummating a deal, together 

create a triable issue as to the monetary relief to which EyeLight would be entitled 

in the event of a breach.

REVERSED and REMANDED for further proceedings.
1

Elliot Friedman v. EyeLight, Inc., No. 22-56076

BUMATAY, Circuit Judge, concurring:

I concur with reversing the district court here. In my view, it was 

inappropriate to grant summary judgment to Elliot Friedman. The district court’s 

decision was based on the improper conclusion that Friedman’s use of the MLase 

counterproposal did not violate Friedman’s non-disclosure agreement with 

EyeLight, Inc. But Friedman’s NDA covers any “Confidential Information”

received by Friedman from “any unaffiliated third party at the request of” EyeLight. 

It’s uncontested that Friedman received MLase’s counterproposal in his capacity as 

EyeLight’s acting CEO during negotiations he knew to be confidential. Under these 

facts, there’s a genuine dispute of material fact whether Friedman violated the NDA 

during his negotiations with MLase after leaving EyeLight. For example, a jury may 

need to resolve whether EyeLight requested the counterproposal and whether 

EyeLight considered the counterproposal confidential. Even without the 

counterproposal, EyeLight contends that Friedman used confidential information in 

negotiations with MLase. It does seem that a jury would need to resolve whether 

Friedman acquired confidential information about the ophthalmology field, which 

he used to engage with MLase. 

I thus would reverse the summary judgment order and not reach any other 

issue. 

FILED

DEC 27 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS