1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JURRIAAN STROBOS , Plaintiff,

v. Civil Action No. 1 5
- 1994 (J E B) RXBIO, INC. , Defendant.

MEMORANDUM OPINION
You don’t need to be a venture capitalist to know that an early investment in the development of a new drug may never pay off

. Plaintiff Jurria a n Strobos , though , claims that he
was strick en with more than a bad bet when Defendant RxBio , Inc. , shortchanged him nearly $7 00,000 for his work on developing its flagship drug

. The Company , in turn , acknowledges
that it ca me down with a nasty cas e of the financial wo es in 2014 , but rejoin s that it was Strobos who violated his employment contract and disclosed certain of its trade secrets

. Both parties, hoping for a swift tonic to the se alleged ills , now cross - move for summ ary judgment on all counts

. As the Court concludes that factual findings are ne eded to put many of
their mala dies to rest , it will largely deny both Motions

. I. Background Because the Court is dealing with Cross

- Motions, it cannot set forth the facts in the light most favorable to the non

- moving party

. Instead, it will offer only the undisputed background to
this s quabble and then detail specific relevant facts wi thin the corresponding analysis subsections. It also provides a procedural history of the litigation here in a separate section.2 A. Employment and Resignation Defendant is a n early

- stage Tennessee company that is developing a drug

– Rx100

– to prevent and treat acute radiation syndrome. See ECF No. 38 (Rx Bio Statement of Issues) ( SOI) , ¶ 2. O n October 1, 2011, its President and CEO , W. Shannon McCool , verbally agreed to finalize the hiring of Plaintiff as its sole Vice President

. Id. , ¶ ¶ 4

- 5. A trained medical doctor and lawyer, Strobos brought with him particular expertise in navigating the regu latory gantlet required for the approval of n ew drugs

. Id

. , ¶ 1.
It was no coincidence , then , that he officially came on board just days after the Company
secured a n important three

- year deal to develop Rx100 with the financial assistance of the U.S. Biomedical Advanced Research Development Authority (BARDA)

. Id. , ¶¶ 19

- 21. In fact , RxBio ’s “ decision to hire [him] , as wel l as the amount of [his] salary , ” was directly tied to this deal , and the Company’s initial pitch to the federal agency “included prop osed labor costs for [him] at a rate of $385,000 per year

. ” ECF No. 47

- 1 (Strobos SOI) , ¶ 34

. By the contract ’s
terms , moreover, RxBio had to track the time that Strobos worked on the development of Rx100
and submit this log to BARDA for monthly reimbursement s . See RxBio SOI, ¶ 21 ; ECF 47

- 2 ( Deposition of W. Shannon McCool) at 16:1

- 12.
This arrangement worked well for more than two years. In January 2014, though, a government audit flagged concerns about RxBio

. See RxBio SOI , ¶ ¶ 3 5

- 3 7. BARDA immediately bega n withh olding its monthly checks in response

. Id. F orced to turn its microscopes inward, the Company soon realized that it had another potential problem with its
books

– namely, it did not have a current employment contract for Strobos ( or other top executives )

. Id. , ¶ 38. Plaintiff and Defendant quickly executed an agreement in mid

- 2014 with3 an effective date relating back to start of his tenure in October 2011

. See RxBio SOI , ¶ 38 ; ECF
No. 11

- 1 , Exh. B (2014 Employment Contract). Two months later, the government’s pause on the Rx100 project became more permanent when BARDA let its contract expire without exercisin g a lucrative option

. See RxBio SOI , ¶ ¶ 39

- 40. This decision left Defendant in a serious financial bind as the agency was still withholding its earlier reimbursements

. Id. , ¶ 40. CEO McCool and his brother , who served as RxBio’s Chief Information Officer, consequently decided to slash their annual salaries in order to keep the project moving forward over the course of 2014

. See Strobos SOI , ¶ ¶ 54

- 55. Unfortunately, m ore bad news was just around the bend . In mid

- 2014, a n independent study at the University of Maryland f ailed to show Rx100 eff ective for use in non

- human prim ates. See RxBio SOI, ¶¶ 51

- 52. With its flagship project now in serious peril , St robos, McCool, and other s at RxBio agreed to review the study for potential design defects

. Id. , ¶ 52 ; see also ECF No. 2 3

- 6 (Deposition of Gabor Tigyi) at 43:10

- 44:3. Strobos , in particular , discussed p ossible issues with the study’s rehydration of its test animals with two outside
clinicians: Dr. Nisha Chandra

- Strobos, his wi fe and a well

- regarded clinician in her own right , and Dr. William Greenough, an expert in diarrheal medicine. See RxBio SOI , ¶¶ 52

- 55. By the fall of 2014 , however, the Company was still in rather dire financial stra its. With no other options on the table, in September, Strobos and McCool resolved to make additional spending cuts

. See Strobos SOI , ¶ 59. More specifically , the men ag reed that RxBio w ould no longer pay Strobos

– its highest paid employee at the time at $385,000

– his full salary each
month

. See id. , ¶¶ 59

- 60; RxBio SOI , ¶¶ 43

- 4 4; ECF No. 41

- 1 (Declaration of W. Shannon McCool) , ¶ 53

. The C ompany began instead to pay him at a rate of $2 0,000 per month and

accrue d the unpaid portions of his original salary and any bonuses o n its book s . See RxBio SOI ,4 ¶ ¶ 43

- 44; ECF No. 11 (Amended Counterclaim), ¶ ¶ 2 4

- 2 5. Then, i n November, Strobos and McCool again agreed verbally to reduce t his monthly check further still, while they also
coordinated similar sacrifices from other RxBio employees

. See RxBio SOI , ¶¶ 13, 46

- 49 ; Strobos SOI , ¶ ¶ 64

- 68, 76.
As the months ticked by under the Company’s obvious financial strain, t he relationship between Strobos and McCool rapidly deteriorate d

. By early 2015 , t he two seem to have come to

a particularly contentious stalemate over the Company’s potential pursuit of animal

- model ing projects

. See Strobos SOI , ¶¶ 113

- 16. Animal modeling involves the design of studies that use animals as test subjects “ to demonstrate , among other things, the eff icacy of [ drugs ] in animals [as] satisfactorily predictive for use with humans.” Id. , ¶ 17. Strobos , for his part, felt that a separate entity should be formed to hand le this work, while McCool thought the endeavour properly housed within RxBio ’s existing research framework

. Id. , ¶¶ 113

- 16. On July 3, 2015, t his disagreement reached a boiling point when t he two men debated the issue over the phone

. Id. , ¶¶ 114

- 18. During this conversation, Strobos expressed that the
animal

- modeling en deavor would be much better off if he could solicit funding from BARDA directly in a new venture so as to avoid any residual RxBio “baggage” from the ill

- fated Rx100
deal. Id. This message was not well received by McCool , who began to question Strobos’ s loyalty to the Company

. See McCool Dep. at 139:25

- 140:9.
As a result of what Strobos then perceived to be actions taken by McCool to sidel ine his influence and authority , Plaintiff resigned from the Company just two weeks later on July 17 , 2015

. See Strobos SOI , ¶ 214 ; RxBio SOI , ¶ 71.5 B. Procedural History Four months thereafter , Strobos brought this suit seeking to recover nearly $700,000 in
expenses, salary, bonuses, and severance that he claimed RxBio unjustly refus ed to pay him

. See ECF No. 1 (Co mplaint), ¶¶ 31

- 36, 41

. In Count I for breach of contract, h e asked for several types of damages: the funds that Defendant had accrued on its books as his salary and bonuses , certain costs that he had fronted the Company during his tenure, and a large severance payment provided for in his 2 014 Employment Contract. Id. , ¶¶ 37

- 41. He further a lleged , in Count II, that RxBio’s failure to pay his full salary and bonuses on a t least a monthly schedule violated the D.C. Wage Payment and Collection Law. Id. , ¶¶ 42

- 47. Defendant , i n response, denied all his claims and pressed four counter claims of its own , alleging : (1) Strobos breached his contract “by failing to devote his full

- time attention to his employment with RxBio ” ; (2) h e breached his contract “by failing to return all RxBio records .

. . to RxBio on the date of his termination”; (3) a further breach occurred via his “ fail[ure] to keep RxBio promptly and fully informed of the identity and nature of any current or subs equent entity or individual ” for whom he later worked; and (4) Strobos violated his contract and the Tennessee Uniform Trade Secrets Act by delivering RxBio ’s “trade secrets to third parties without such third parties entering into non

- disclosure agreement s with RxBio

. ” A m. Counterclaim , ¶¶ 61, 65, 69, 75

. Before the current summary

- judgment briefing could be completed, BARDA released at
least some of the reimbursements that it had been withhold ing

. See RxBio SOI , ¶ 83. Strobos then moved for a preliminary injunction to freeze the portion of that mone y that he believed to be
his unpaid salary , and the Company counter

- mo ved to freeze his assets to pay potential damages on its counterclaims

. See ECF Nos. 25, 32

. After a hearing on Dec ember 16, 2016, t he Court6 denied r elief to both in a written Memorandum Opinion and Order

. S trobos v. RxBio, Inc. , 2016 WL 7442644 (D.D.C. Dec. 27, 2016).
Now , the parties have finished their briefs cross

- moving for summary judgment on all counts in both the Complaint and Counterclaim. In other words, they each seek an affirmative judgment on their own claims, as well as a rejection of their adversary’s counts. See ECF No. 23 (Motion); ECF No. 44 (Cross

- Motion). Those Motions are now rip e. II. Legal Standard Summary judgment may be granted if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247

- 48 (1986); Holcomb v.
Powell , 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the substantive outcome of the litigation. See Liberty Lobby , 477 U.S. at 248; Holcomb , 433 F.3d at 895. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris , 550 U.S. 372, 380 (2007); Liberty Lobby , 477 U.S. at 248; Holcomb , 433 F.3d at 895. When a motion for summary judgment is under consideration, “[t]he evidence of the non

movant is to be believed, and all justifiable inferences are to be drawn in [its] favor.” Liberty Lobby , 477 U.S. at 255; see also Mastro v. PEPCO , 447 F.3d 843, 850 (D.C. Cir. 2006); Aka v. Wash. Hosp. Ctr. , 156 F.3d 1284, 1288 (D.C. Cir. 1998) ( en banc ). On a motion for summary judgment, the Court must “eschew making credibility determinations or weighing the evidence.”
Czekalski v. Peters , 475 F.3d 360, 363 (D.C. Cir. 2007). The nonmoving party’s opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits, declarations, or other7 competent evidence, setting forth specific facts showing that there is a genuine issue for trial.
See Fed. R. Civ. P. 56 (e); Celotex Corp. v. Catrett , 477 U.S. 317, 324 (1986). “Evidence that is ‘merely colorable’ or ‘not significantly probative’ is insufficient.” Chambers v. Burwell , 824 F.3d 141, 145 (D.C. Cir. 2016) ( quoting Liberty Lobby, Inc. , 477 U.S. at 249

– 50). T he

nonmovant must instead provide evidence that would permit a reasonable jury to find in its favor. See Laningham v. Navy , 813 F.2d 1236, 1242 (D.C. Cir. 1987).
III. Analysis For a relatively confined contract ual dispute, the record here is extensive. This is not entirely surprising given that the parties vigorously (and often needlessly) contest every fathomable facet of the circumstances that led to their dispute, including issues seemingly
irrelevant to the ir causes of action

. To u ntangle thes e conflicting tales , the Court finds it best to start with th e pure breach

- of

contract claims pressed by RxBio , then moves on to its mixed contract/statutory count , and wraps up with the causes of action asserted by Strobos

. A. RxBio’s Breach

- of

- Contract Claims The Company asserts three causes of action that rely purely on a breach

- of

- contract theory (Counterclaims I

- III)

. According to RxBio, Strobos violated specific provisions in his employment contract when he failed: 1 ) “to return RxBio’s Property” to it immediat ely after his resignation; 2 ) “to promptly inform RxBi o of [his] subsequent employers ” ; and 3 ) “to devote his full time and at tention” to the Company during his employment. See Cross

- Mot. at 15

- 20. The
Court addresses the first two assertions together , as they share a common deficiency, and t hen proceeds to the third

.8 1. Return of Property & Noti fication (Counterclaim s II & III) To successfully press its first two breach

- of

- contract c laims, the Company must offer
some evi dence tha t Strobos’s alleged actions in violation of his employment agreement actually damaged it

. The precise nature of the factual allegations upon which it hopes to hang this showing is not entirely clear. As to the return

- of

- property count, it first points to a provision in the 2014 Employment Contract that required Strobos , upon his termination, to return all its
records and not retain the originals or copies of any such documents

. Id. at 18. It next cites to
statements Strobos ’ s counsel made durin g discovery in this litigation about how best to turn over
certain copies of emails that Strobos ha d retained to litigate this case. Id. a t 18

- 20 (identifying records turned over in March 2016 and general statements in SOI that Strobos “did return all
in formation to RxBio, and to the extent he retained electronic copies of such data, he was required to do so because of this pending action” ) (emphasis omitted)

. As to the count about his subsequent employers, RxBio likewise only vaguely and briefly asserts that Strobos has not disclosed any employers since his resignation and speculates that unidentified o nes might exist

. Id. at 20

- 21. Critical ly, with regard to both claims , RxBio never advances any clear theory of how it was damaged by these actions ; in fact, as Pla intiff demonstrates , none seems to exist.
Strobos thus secure s summary judgment on these counts. Reaching t his conclusion requires little explication

. The employment contract between
RxBio and Strobos contains a choice

- of

- law provision electing Tennessee law. See 2014 Employment Contract , a rt

. XVIII at 6

. Under that law, proof of damages is an essential element
of a breach

- of

- contract claim. Custom Built Homes v. G.S. Hinsen Co., Inc. , 1998 WL 96028 7 , at *3 (Tenn. Ct. App. Feb. 6 , 1998). A defending party is thus entitled to summary judgment on
such a claim if it can show that t he complainant has failed to adduce evidence that it i ncurred9 damages f rom any alleged breach. Union Planters Ba nk of Middle Tenn

. v. Choate , 2000 WL 1231383, at *3 (Tenn . Ct. App. Aug. 3 1 , 2000)

. Strobos does just that. As he points out, the Company never offers any evidence of an injury that it suffered as a result of either his alleged delay in return ing a computer or documents
to it until after discovery started or by his failure to n otify it of possible subsequent employers

. See Mot. at 22 (“RxBio has no actual monetary damages.”); id. at 28 ( RxBio “ has not suffered any damages or irreparable harm” from d elay in turning over property) ; see also FRCP 56(c)(1)(B)

. The Company, confronted with t his deficiency, directs the Court to nothing in the record to establish any such damages. RxBio instead merely “requests that the Court reserve the issue of its damages for trial.” Cross

- Mot. at 1; ECF No. 50 ( RxBio Reply ) at 15 (reiterating it s desire that the Court “reserv [e] the issue of damages for tria l ”). It has thus point ed
to no evidence at this stage in the litigation to support an essential element of these two clai ms. This is not particularly surprising given that it is unclear how the Company could have been harmed by the specific actions alleged here

– i.e. , retention of unspecifi ed emails turned over pursuant to discovery, a month ’s delay in returning a computer , the retention of an image of that computer’s hard drive , a related external hard

- drive , and certain emails for the purposes of this litigation , or the identification of s pec ulative clients that Strobos might have worked for since resigning

. See Cross

- Mot. at 18

- 21; RxBio Reply at 15

- 21. In particular, Strobos is plainly entitled to have access to the record for this case , and the Company is not damaged in any legally cognizable way as a result

. If it fears that he might share anything found in the record with a third party, moreover, it may seek a protective order to avoid any such action. To the extent that it believes d amages might exist , the Company , of course, bore the
burden of connecting them to these counts. It is not the role of the Court to drum up a10 hypothetical theory of damages by digging through the factual briefing or record on its own. See
SEC v. e

- Smart T echs., Inc. , 85 F. Supp. 3d 300, 308 (D.D.C. 2015) (“ [ J ] udges ‘are not like pigs, hunting for truffles buried in briefs’ or the record.”) (quoting Potter v. District of Columbia , 558 F.3d 542, 553 (D.C. Cir. 2009) (Williams, J., concurring)). According to Tennessee law,

moreover, “ [d]amages may never be based on mere conjecture or speculation.” Rye v. Women’s
Care Ctr. o f Memphis, MPLLC , 477 S.W.3d 235, 267 (Tenn. 2015) (quoting Overstreet v. Shoney’s Inc. , 4 S.W.3d 694, 703 (Tenn. Ct. App. 1999)).
As RxBio has not established the essential damages element of its claims , the Court must
conclude that Strobos is entitled t o summary judgment as to its first two breach

- of

- contract
counts

. 2. Full Time and Attention (Counterclaim I) The e vidence supporting the Company’s third breach

- of

- co ntract claim is considerably more robust than that relating to its first two . According to RxBio , at some point after it ceased paying St robos’s wages in full, he stopped devoting his full time and attention to its mission

. This, it contends, violated the term in his contract providing: [Strobos] shall devote [his] full time and attention to [his] employment with [RxBio] during [RxBio’s] normal business hours. That notwithstanding, [ he ] acknowledges that job performance an d/or unforeseen time demands may from time to time require [him] to work before and/or after normal business hours to accomplish project deadlines and/or respond to various other circumstances. [Strobos ] understands and agrees that [RxBio] has an expectati on and requirement that [he] will devote a minimum of 1880 hours per year in the performance of [his] duties as an employee of [RxBio] and that [he] will keep, maintain, and weekly submit time logs that accurately reflect time spent on the job

. 2014 Emplo yment Contract, a rt. II, § 1.2 at 1

. As a result, RxBio claims that it is entitled to the “difference between the wages paid to Dr. Strobos and the wages that should have been paid to11 Dr. Strobos based on his devotion of less than full

- time attention to his work for RxBio.” Am. Counterclaim , ¶ 62 ; see also McCool Decl. , ¶¶ 24

- 25.
To advance this breach

- of

- contract claim under Tennessee law, the Company must show

“ (1) the existence of an enforceable contract, (2) nonperformance amounting to a breach of the contract, and (3) damages caused by the breach of the contract.” Custom Built Homes , 1998 WL 960287 , at *3. Neither party disputes that the firs t element is satisfied here , nor that the 2014 Employment Contract is the pertinent agreement . The thi rd , as well, presents little trouble as the Company identifies the obvious source of its damages this time around

– i.e. , the difference
betw een what it paid and what it received

. All the action on this count thus revolves around the second element. The parties’ affidavits, not surprisingly, do not tell the same tale

. For its part, t he Company points to two declarations from Strobos’s colleagues , who say that he told them toward the end of his tenure
that he was n o longer able to devote his full attention to the Company ’s mission

. See Am. Counterclaim , Exh

. D (Declaration of Karim Emmons Thompson) & Exh. E (Declaration of Alyssa Boler). McCool likewise testified that he found Strobos to be unavailable at times in mid

- 2015, though he could not p inpoint any precise example of when this occurred

. See McCool Dep. at 18 0:5

- 9, 181:11

- 21. In rebuttal , however, Strobos insists that he devoted total effort to the job and never told anyone at the Company that he could not work full

- time

. See ECF No. 49, Exh. 1 (Supplemental Declaration of Jurrian Strobos), ¶ 3. He further points out that the Company acknowledged as much when it bi lled the federal government for his work

. See Mot. at 24

- 25 ; RxBio SOI , ¶¶ 80

- 82

. These sparring factual posit ions cannot be reso lved at summary judgment

. Czekalski , 475 F.3d at 363 (c ourts must “eschew making credibility determinations or weighing the12 evidence” at summary judgment). It is not the role of the Court to determine, bas ed on which side’s evidence se ems more credible , whether Strobos did or did not shirk some of his duties at the Company toward the end of his tenure

. I d. This is for the jury to decide at trial. As a result, both Motions must be denied as to this claim

. B. Contract / Statutory C laim (Counterclaim IV) Finally, t he Company alleges in one combined count that Strobos violated his contract
and the Tennessee Uniform Trade Secrets Act when he wrongfully disclosed RxBio’s trade
secrets to outsiders

. The relevant provi sion in his employm ent agreement specifically provides: [Strobos] agrees that except in the performance of his duties hereunder , or with the express written permission of the board of directors of [RxBio, he ] shall not

. . . , directly or indirectly, reveal, divulge or make known to any person or use for the benefit of any person other than [RxBio] , any non - p u b lic, proprietary or confidential information, intellectual property, k now - how, or trade secrets that he has learned , or may learn, as a result of his association with [ RxBio].

. . . 2014 Employment Contract , a rt. XI I, § 12.1 , at 3 (emphasis added)

. According to the Company, Strobos broke this promise when he spoke with two outside clinicians

– as a reminder, Dr. Chandra

- Strobos (his wife) and Dr. Greenough ( a diarrheal expert )

– about Rx100 and potential flaws in the design of the adverse Maryland study wit hout first securing nondisclosure agreements from them

. See Cross

- Mot. at 22

- 23

. RxBio further assert s that the same facts constitute a misappropriation of trade secrets under TUTSA

. Id. For ease of reference, the Court separately identifies the flaws in each of these claims.
1. Breach of Contract As should be plain , the provision cited by the Company does not universally prohibit Strobos from sharing confidential i nforma tion. Rather, it states that he may not do so “ except in the performance of his duties hereunder.” 2014 Employment Contract, a rt. XI I, § 12.1 , at 313 (emphasis added). T o show that he transgressed this commitment, t he Company must there fore adduce e vidence not only that Strobos passe d on this type of information, but also that he did so
outside of the confines of his RxBio obligations. This is a showing the Defendant does not make . Indeed, after quoting the relevant

contract provision, RxBio never explain s how Strobos’s actions breached the deal beyond a conclusory statement that he “repeatedly divulged information to Nisha Strobos, Dr. Greenough, and possibly others, t hereby breaching 2011 Agreement .” Cross

- Mot. at 22. Even more problematic , i n its Reply , RxBio only r efer s to a contract theory o f this count in passing on the first page of its brief , apparently abandoning this version of the claim altogethe r. See RxBio Reply at 21

- 22. T his omission alone is sufficient ground for the Court to gran t summary judgment for Strobos as to this iteration of the count

. See Baptis t Mem’ l Hosp.

- Golden Triangle v. Leavitt , 536 F. S upp. 2d 25, 40 (D.D.C. 2008) (“A p arty that fa ils to refute an opposing party’ s argument on Summary Judgment may be foun d to have conceded the point.”) , aff’d sub nom. Baptist Mem’ l Hosp.

- Golden Triangle v. Sebelius , 566 F.3d 226 (D.C. Cir. 2009).
The record on the other side of the ledger , moreover, is replete with evidence that S trobos held these discussions in furtherance of his RxBio duties

. CEO McCool , in fact, repeatedly
admitted that he knew that Strobos was seeking this external help on various issues related to the Company’s work

. See RxBio SOI , ¶ 53; see also McCool Dep. at 48:8

- 49:13 (conceding knowledge Strobos and Tigyi were “interacting with” Greenough “on occasion” about Maryland study); id. at 38:3

- 39:2 (knew Strobos consulted his wife for her expertise about Rx100 ).
The record confirms, too, that others involved in these interactions thought these consultation s were part of Strobos’s work on behalf of the Company

. In one email to higher

- ups at RxBio, including McCool, for example, Strobos plainly stated that “Nisha [Chandra

- Strobos]14 is reviewing [the attached detailed annual report on Rx100] as well

. ” ECF No. 23

- 9 , Exh. 24 (Email from Strobos on Oct

. 19, 2014)

. No one at RxBio, at least in the record, ever objected at the time to these revelations or raised any c ause for concern

. On the contrary, McCool himself affirmed in his testimony on behalf of the Company that he thought that it made good sense for
Strobos to consult his well

- regarded wife on issues within her expertise

. See McCool Dep. at 46:19

- 23. A s to Greenough, moreover, at least one other RxBio employee actively participated
in the consultations with him , offering up technical details abo ut Rx100 in the hopes of soliciting his expert advice

. See Tigyi Dep. at 58:2

- 20. These communications thus have all the hallmarks of a regular business consultation. In short, t he record speaks with one voice in demon strating that they all occurred within the confines of Strobos’s efforts to fulfill his duties as its Vice
President of Clinical Research.
T his claim, moreover , fails for yet a third reason. Here , again , t he Company has
identified no injury or damages that arose from Strobos’s actions

. See Cardiovascular Support Perfusion Reliance Network, LLC v. SpecialtyCare, Inc. , 629 F. App’ x 673, 678 (6th Cir. 2015) (affirming summary judgment where no evidence of damages from alleged breach of nondisclosure agree ment). Rather , t he record contains uncontroverted evidence that RxBio
benefited significant ly from these conversations as it sought to address the problematic findings of the Maryland study

. See Tiygi Dep . at 43

- 44, 55

- 58

. In particular, these conversat ions helped
the Co mpany critique the methodology used by the Maryland researchers, which led to a new study that got better results as to Rx100’s efficacy

. Id. This information was also successfully
used in a bid by the Company to secure additional funding from another government agency for the drug’s development

. See RxBio SOI , ¶ 56 (failing to point to evidence contradicting this15 fact). If anything, then, the record indicates that RxBio reaped significant adva ntages from these talks

. The Company , in response on this point, counters only that it could be damaged in the future, should Greeno ugh or Chandra

- Strobos share this information about the Company’s work
with others

. Id. , ¶ 91. But these future d amages are entirely speculative and , accordingly, insufficient to avoid summary judgment

. Rye , 477 S.W.3d at 266. The Company also conceded in its testimony that it has never sought any nondisclosure agreement from either outside clinician since, and that it has no reason to believe that at least one of them will ever share any proprietary information to its detriment

. See McCool Dep. at 49 :14

- 50 :13 (acknowledging he has no “reason at this point in time to believe that” Greenough “used any information he rec eived
from RxBio ot her than to assist RxBio ” in its efforts to address the implications of the Maryland study). No reasonable juror could conclude base d on the evidence in the record that the Company s ustained any damage s on this claim. For all th e se reasons, Strobos is entitled to summary judgment to the extent that this counterclaim seeks to rely on his alleged breach of the 2014 Employment Contract

. 2. TUTSA
All is not yet lost, however , as RxBio also advances a second theory of liability on this
count

– namely, under TUTS A . For such a misappropriation

- of

- trade

- secrets claim , it must
prove : “ (1) the existence of a trade secret; (2) misappropriation of the trade secret by [Strobos] ; and (3) resulting detriment to the [Company] .” PartyLite Gifts, Inc. v. Swiss Colony Occasions , 2006 WL 2370338 , at *3 (E.D. Tenn. Aug. 15, 2006) (collecting cases). Although the Company makes little effort to show that the information Strobos shared
was even a trade secret

– largely just listing off a series of emails and descriptions that he sent to16 Dr. Chandra

- Strobos at various time s during his employment and identifying nothing at all in relation to Dr. Greenough

– it most clearly fails on the second and third element s of its claim

. See Cross

- Mot. at 23

- 24

. Under TUTSA, a “misappropriation , ” as relevant to the circumstances here , is statutorily defined as the “disclosure . . . of a trade secret of another without express or implied consent . . . [where the discloser] knew or had reason to know that its knowledge of the trade secret was . . . acquired under circumstances giving rise to a duty to maintain its secrecy or
limit its use. ” Tenn. Code § 47

- 25

- 1702(2)(B) (emphasis added)

. Critica lly, t he party bringing this claim must prove that the misappropriation occurred without its consent to the disclosure.
See Trident Prod s . & Servs., LLC v. Canadian Soiless Wholesale, Ltd. , 859 F. Supp. 2d 771, 780 (E.D. Va. 201 2) , aff’ d , 505 F. App’ x 242 (4th Cir. 2013) ; see also Baxter Healthcare Corp. v. HQ Specialty Pharma Corp. , 157 F. Supp. 3d 407, 424 (D.N.J. 2016).
As explained above, however, the record shows that the Company , at the very least, implicitly consented to the sharing of information that it alleges Strobos disclosed

. See, e.g. , McCool Dep. at 48:8

- 49:13 (acknowledging he knew Strobos and Tigyi w ere consulting Greenough and conversations were intended to provide “ [ m ] eaningful input” on project); see also id. at 42:20

- 21, 45:3

- 24; E CF No. 23

- 9 (Email s on Oct. 29, 2014) ( multiple RxBio employees responding without objection to email from Strobos of detailed Rx100 report, the original of which declares , “[Chandra

- Strobos] is reviewing as well.”). Strobos asked Chandra

Strobos , in particu lar, to consult on a variety of technical issues related to Rx100 throughout his tenure because she is a “nationally recognized physician with tremendous academic and clinical expertise ” who serves as the chair of cardiology at John s Hopkins Bayview Hospit al. See RxBio SOI, ¶ 31. To the same end, CEO McCool testified that he knew Strobos planned to consult Greenough on how to interpret and deliver the results of the Maryland study to another17 government funder because Strobos “thought that he m ight be able to provide [m eaningful ] input ” in this regard. See McCool Dep. at 48:8

- 19. Strobos, as the Company’ s sole vice p resident, was given tremendous leeway to set such

a course for the Company as to these issues . In fact, McCool testified that Plaintiff was essentially in charge of the regulatory side of figuring out how to wrest approval from the government for Rx100’s use on humans , and he often entrusted Strobos to troubleshoot what needed to get done without paying much attention to the details o f ho w the sausage was being made. Id. at 28:22

- 29:17, 45:16

- 46:17. McC ool further explained that issues like those addressed by Strobos to Greenough were “not something [he ] spent much time with,” though he knew the outside clinician was being engaged by the Company to advance its interests in this regard

. Id. at 48:16

- 49:7. McCool likewise knew that Strobos and another high

- ranking RxBio employee held at least one teleconference with Greenough about Rx100 and that they otherwise
interacted with him “on occ asion.” Id. at 48:8

- 13. As McCool later explained, moreover, Strobos “guided this boat. [He had ] been the principle architect ” of the Company’s strategy on these matters

. Id. at 140:19

- 22. There is no evidence that RxBio ever sought to restrain Strobos’s unfettered discretion on charting such a course either.
In other words , all evidence point s to the fact that Strobos was driving this aspect of RxBio’s business, had permission to do so, and consulted these outside clinicians solely to this
end. There is certainly no indication, by contrast, that either Chandra

- Strobos or Greenough had any other interest in Rx100

– i.e. , they were not working for competitors or trying to develop a similar product. McCool, in fact, testified that he was not worri ed about these interactions at the time as he had no reason to believe that Greenough “used any information from RxBio other than18 to assist RxBio.” Id. at 49:10

- 19. The Com pany has , moreover, provided no evidence sinc e to indicate that things have now ch anged on this score

. Instead, it concedes that it knew Strobos was sharing this information, but “maintains [in its Reply] that its knowledge that Dr. Strobos was sharing proprietary trade secrets with persons
outside of RxBio is not tantamount to consent to do so without adequate confidentiality agreements or other mechanisms for protecting and preserving the information .” RxBio Reply at
21. It offers no further legal argument or cit ation to case law, though , to support the assertion that its documented acquiescence in numerous emails and conversations should somehow be
considered contingent on an assumption that Strobos would have already sought confidentiali ty agreements ; nor does it provide a reasonable factual basis for s uch an assumption. It certainly
never contends , for example, t hat it asked him to secure these agreements or that it had any written Company policy requiring him to do so

. A n implicit requirement would also stand in tension with the Company’s documented failure to even approach Greenough or Chandra

- Strobos subsequently to seek a nondisclosure agreement , see McCool Dep. at 49 :20

- 50 :13 , not to mention the delay it took in securing a written and binding contract with a nondisclosure provision from Strobos himself

. As a
refreshe r, the Company concedes that it did not sign a ny written employment contract with Strobos until 2014. It then backdate d that contract to 2011

. See, e.g. , id. at 13:22

- 14:6 (i n response to question about the terms Strobos worked un der prior to 2014, McCool testified that “he was working under sort of a verbal agreement, I guess, as much as anything else ” )

. As McCool testified, this oversight reflected that the Company simply “forgot” to sign the con tract with Strobos until he was several years into his work for it

. Id. at 19:6

- 8 (“What was the impetus for signing the 2011 Employment Agreement in 2014? We forgot to do it in 2011.”). It did not19 even realize this error, moreover, until BARDA asked fo r the agreements , leading it to d iscover that it did not have such contracts in place for CEO McCool, Vice President Strobos, or its Chief Operating Officer. Id. at 22:7

- 14. Given these omissions, whatever the industry best practice s , the record in this case gives
no ind ication that the Company prioritized the signing of such nondisclosure agreements before the acquisition of information about its Rx100 work

. These facts, taken together , would prevent
any reasonable juror from concluding here that RxBio did not at least impliedly consent to Strobos’s action s in consulting these outside clinicians on matters intended to help move Rx100
forward during his tenure

. RxBio , in short , has raised no more than an unsupported denial on this point

. Celotex , 477 U.S. at 324

. I n addition , this count suffers from the same d amages deficiency identified in regard to the breach

- of

- contract theory. I n other words, there is again no evidence that Strobos shared any informati on with either Greenough or Chandra

- Strobos to the Company’s detriment. PartyLite , 2006 WL 2370338 , at *3 ( specifying “detriment” as third element of TUTSA claim ). There is

no thing in the record to indicate that Greenough or Chandra

- Strobos used this information for
any pur pose other than to provide assistance to RxBio about its Rx100 project

. McCool, in
relation to at least one instance , in fact , testified that he knew Dr. Chandra

- Strobos had reviewed detailed slides that RxBio used to present its work to BARDA , as she might hold expertise th at would be helpful to the Comp any . Id. at 38:24

- 39:9. Likewise, he attested that he had no reason either then or now to believe Greenough might use the information for anything other than to help the Company, as already mentioned above. Id. at 49:10

- 19. No evidence suggests the contrary position that Greenough or Chandra

- Strobos would have any other use for this
information

. T here is most certainly no evidence to suggest that they have used it for any20 purpose or that th e referenced informa tion held any economic value for these clinicians

. N o basis appears , therefore, upon which RxBio could recover damages under TUTSA.
The Court will thus grant summary judgment to Strobos on this count

.

* * * For a final tally, then, the Co urt denies summary judgment to Defendant on all its counterclaims and grants summary judgment to Plaintiff on all of these c auses of action except Count I (full time and attention).
C. Strobos’s Claims
Shiftin g now to the original suit itself , Strobos seek s various pots of money that he believes the Company unjustly refused to pay him after he resigned. Although he separates these
between a breach

- of

- contract claim as to all of these sums (Count I) and a statutory claim as to the wages (Count II) , the Court breaks up its treatment based on the three types of payouts at
issue

– unpaid out

- of

- pocket expenses, accrued wages and bonuses , and severance pay.
1. Out

- of

- Pocket Expenses
The facts unde rlying this portion of Strobos’s breach

- of

- contract claim are not in dispute. Under Article VIII of the 2014 Employment Contract, RxBio committed to “reimburse [him] for all reasonable, ordinary, necessary, and documented out

- of

- pocket expenses properly incurred in the course of the performance of [his] duties and responsi bilities.” As the Company concedes , at the time that he resigned from RxBio, it had not yet reimbursed him $16,288.89 in such
expenses. See RxBio SOI , ¶ 76 ; see also ECF No. 11, Exh. C (Letter from McCool to Strobos on Sept. 14, 2015)

. It thus began repaying him at a rate of $1,000 per month until he filed this lawsuit. See RxBio SOI , ¶ ¶ 76

- 77

. A t that time, RxBio ceased mak ing these payments, contending that it had a right t o “offset” any amount he might eventually owe on its21 counterclaims against the $9,383.41 in expenses still owed to him

. Id. ; Strobos Reply at 3 n.3 &
Cross

- Mot. at 42 (agreeing as to remaining amount)

. The Company now maintain s that judgment should not be entered on this claim for the

same reason , and it appears to make no further affirmative case that judgment should be entered
in its favor

. See Cross

- Mot. at 42 (“RxBio does not dispute that, subject to the offset provision, Dr. Strobos would be entitled to reimbursement for certain expenses incurred in the course of his

e mployment. RxBio has never disputed this fact.”). But the contract provision upon which it claims this right to offset says nothing about any potential future liabilities

. Id. ( citing 2014 Employment Contract , a rt. VI ). Instead, it provides: “ At the ti me any amount would otherwise be due to [Strobos] pursuant to this Agreement, [RxBio] may offset any amounts that [Strobos]

owes to [RxBio].” 2014 Employment Contract , a rt. VI (emphasis added)

. As Strobos does not currently owe RxBio any money, at least none that it has identified or provided evidence to support, he is entitled to summary judgment on this count . If, as the Company hopes, he ends up owing it more t han it owes him , the final judgment in this case will
reflect as much. That question, howe ver, does not go to whether RxBio previously breached its obligation to reimburse him for expenses and thereby caused him damage

– i.e

. , the essential
elements of his claim. As to these material issues , in fact, it raises no objection. There is thus no genuine issue left to resolve at trial on this portion of his claim.
2. Wages and Bonuses Strobos next asserts that RxBio violated his contract and the D.C. Wage Payment and
Coll ection Law, D.C. Code § 32

- 1301 et seq. , when it failed to p ay his accrued wages and bonuses in a timely manner

. The parties agree that these accrued amount s eventually totaled $263,461.20 by the time of his departure. See, e.g. , ECF No. 11, Exh. C (Letter from McCool to22 Strobos on Sept. 14, 2015) at 1 (conceding the amounts accrued). The Court first takes up his
contract theory and then turns to his statutory one.

a. B reach of Contract
As a re minder , under Tennessee law, Strobos must prove three elements for this breach

of

- contr act claim: “ (1) the existence of an enforceable contract, (2) nonperformance amounting to a breach of the contract, and (3) damages caused by the breach of the contract.” Custom Built
Homes , 1998 WL 960287 , at *3. RxBio neither disputes that the 2014 Emp loyment Contract

s etting out his salary and bonuses is enforceable nor object s to the fact that he was damaged as a
result of their withholding. Defendant does , however, vigorously dispute whether it breached that agreement when it stopped paying the ful l amount of his salary and bonuses each month. While Strobos concedes that he worked out a verbal deal with McCool to accrue the unpaid portions of his salary on the Company’s books beginning in September 2014 , s ee RxBio SOI , ¶ 42, he believes that th is amendment failed to create a new binding contract under Tennessee law because it lacked a necessary term

– i.e. , “an objective, determinable date when payment of [his] withheld wages would occur.” Mot. at 13. Put another way , he contends that the par tie s never successfully agreed to defer payment of his salary , and the Company was thus in breach of the original 2014 Employment Contract the instant it stopped paying him at the rate of $385,000 a year. This argument does not pass muster . As an initial ma tter, most of the cases that Strobos cites are easily distinguished from the circumsta nces involved here . In Jamestowne on Signal, Inc. v. First Federal Savings & Loan Ass ociation , 807 S.W.2d 559 (Tenn. Ct. App. 1990), for example, the court held that an oral loan agreement was unenforceable because it lacked “any of the essential elements of such a loan, such as the amount to be loaned, the duration of the loan,23 how it was to be repaid, the rate of interest to be paid and when, [and] what security, if any , was to be given.” Id. at 56 4

- 6 5; see Peoples Bank of Elk Valley v. ConAgra Poultry Co. , 832 S.W.2d 550, 553 (Tenn. Ct. App. 1991) (holding no enforceable contract where parties failed to specify
any essential terms)

. In this case , by contras t, i f RxBio ’s version of the fact s are to be believed, the deal between Strobos and McCool was not so indefinite. McCool testified that they agreed at the
time that payment of his accrued salary would come due when (and if) the Company secured a significant outside funding source to replace the lost BARDA sums

. See Letter from McCool to Strobos on Sept. 14, 2015; McCool Decl., ¶ 58. This, RxBio asserts , has not yet happened as its settlement with BA RDA paid only a “portion of the monies withheld , ” and no other “sig nificant funding from another source” has yet to appear on the scene. See McCool Decl. , ¶ 59. Crediting this evidence as believable and drawing all reasonable reference s from it , as the Court must at this stage, t he revised wage agreement between McCool and Strobos thus lack ed a settled future date when payment would come due, but that date was not indiscernible or indefinite . Rather, it

was squarely fixed by a run - of

- the

- mill condition precedent that the Company first receive adequate re placement funding. In essence, then, this new deal specified both the amounts to be paid

– the total salary and bonuses logged on the books

– and set a n identifiable event linked to when that payment would have to occur. It was not, as Strobos contends , a n agreeme nt where
the essential terms o f the deal were left too indefinite to be pinpointed

. Cf. Four Eights, LLC v. Salem , 194 S.W.3d 484, 486 (Tenn. Ct. App. 2005) ( holding no enforceable agreement where no price was set and parties merely made an “agreement to agree” on one in future)

. This is especially so given that Tennessee law disfavors h olding agreements
unenforceable for lack of a definite term

. See, e.g. , German v. Ford , 300 S.W.3d 692, 70624 (Tenn. Ct. App. 2009) (“[A] finding that a contract is suffic iently definite is favored, so as to carry out the reasonable intentions of the parties.”). Courts instead “seek to avoid finding that an agreement is too uncertain to be enforceable by considering the surrounding circumstances and the conduct of the part ies.” Id. Here , as the undisputed facts make clear, Strobos went along for nearly a year with the plan to defer payment of a portion of his salary. It was not until he left RxBio that he began demanding immediate payment of these sums. The “surrounding circumstances and the conduct of the parties,” as a result, strongly cuts in favor of concluding that Strobos and McCool entered into some sort of binding d eal to defer payment of a portion of
his original salary beginning in September 2014. A critical remaining factual question remains, of course, as to whether, as Strobos contends, any such contingency is now satisfied. More specifically, he asserts that paym ent is now due on even RxBio’s version of the deal because the terms of th e condition precedent were satisfied once BARDA release d some of the withheld funds. RxBio, by contrast, claims the contingency hinged on securing a fully equivalent funding replacement instead , which, it asserts, did not encompass such a partial payment

. Resolving this issue will hinge on what the factfinder ultimately concludes was the precise parameter of their September oral agreement

. The Court, accordingly, denies summary judgment to either party on this claim. b. D.C. Wage Payment and Collec tion Law
Strobos next posits that his wages and bonuses are nevertheless due in full under the District of Columbia’s Wage Act because that law requires those employed in the District to receive all wages and bonuses due at least monthly. See Mot. at 11 ( citing D.C. Code §§ 32

- 1301, 32

- 1302); see also Pleitez v. Carney , 594 F. Supp. 2d 47, 48 (D.D.C. 2009) (explaining bonuses qualify as “wages” under former version of D.C. Code § 32

- 1301). Accord ing to him ,25 th

is requirement “may not be waived by private a g reement, ” Mot. at 11 (citing D.C. Code § 32

- 1305), and applies to his accrued salary and bonuses , as he contends that he predominantly
worked for RxBio f rom an office in the District. Id. (citing Am. Counterclaim, ¶ 6). In support, he also notes that the Company agreed to pay for his office space in the District under the 2014 Employment Contract. Id.
As a preliminary matter , the Company correctly points out that Strobos cannot rely on
this statute for around half of the wages that he seeks to collect in this action . This is because the Act expressly exempted executive and professional employees from its protections until the Wage Theft Prevention Amendment Act of 2014 amended its scope on February 26, 2015

. See Wage Theft Prevention Amendment Act of 2014, Law 20

- 157 (Act 20

- 426) (approved Sept. 19, 2014; effective Feb. 26, 2015). There is no question that Strobos was such an exempted executive , as he served throughout his tenure as the Company’s sole Vice President

. S ee , e.g. , RxBio SOI , ¶ 25 (conceding that he was such an employee). Indeed, the very basis for his claim to severance pay is that some of his supervisory responsibilities we re unfairly curtailed prior to his departure from the Company. H e therefore cannot i nvoke this law for at least the $127,233.37 in salary and bonuses that stemmed from his work in 2013 and 2014, as well as any pro rata portion of the $136,227.83 in 2015 that should have compensated him for his wor k prior to February 26, 2015. See Mot. at 9 (specifying amounts due).
To resist this s traightforward conclusion, Strobos argues only that the Wage Theft
P revention Amendment Act of 2014 require s that all of the wages that he had previously earned
came due once the law was broad ened to include employees like him

. See Strobos Reply at 10

- 11. Put another way , he essentially seems to contend that the revised statute ’s requirement that26 he be paid monthly for “all wages earned” should be interpreted to include the already accrued wages for work that he had done prior to its amendment. Id. Under D.C. law, however, no retroactive effect is given to a statute “unless the legislative purpose to do so plainly appears.” District of Columbia v. Gallagher , 734 A.2d 108 7, 1093 (D.C. 1999) (quoting Uni ted States v. Magnolia Petrol. Co. , 276 U.S. 160, 163 (1928)) ; see Landgraf v. USI Film Prod. , 511 U.S. 244, 270 (1994) (“Since the early days of this Court, we have declined to give retroactive effect to statutes burdening private rights unless Congress had made clear its intent.”). A s one district court in thi s Circuit has already concluded, the Wage
Theft Act contains no such indicia of retroactivity. See Escobar Iraheta v. M agic Meals, Inc. , 201 F. Supp. 3d 172 , 175 (D. D.C. 2016) , vacated on other grounds , 2017 WL 1086625 (D.D.C. Feb. 22, 2017) (due to settlement). Plaintiff, moreover, certainly points to no indicia here and this Court finds none

. As to the remainder of the 2015 salary that RxBio continued to accrue on its books for Strobos after F ebruary 26 , the Court concludes that summary judgment is inappropriate for either party based on the current record. In particular, the D.C. Wage Act only applies to “employers” who “employ[] any person in the District of Co lumbia.” D.C. Code § 32

- 1301(1B) . The parties hotly contest whether Strobos, by this time, was in fact so employed. As the Company points
out, while he may have chosen to work predominantly from his offices in the District on matters for the Company , by 2015 it was no longer paying for that work space . See McCool Dep. at 192:3

- 19 ; McCool Decl., ¶ 41. RxBio, moreover, was in Tennessee, and it maintains that Strobos held an office there throughout his tenure, as well as at his Maryland home. See McCool Decl., ¶¶ 43

- 44. The record is thus not clear as to when D.C. law would apply.27 Perha ps even more critically, the Act requires that an employer only pay the sums undisputedly “ due ” at the end of each month

. See D.C. Code § 32

- 1304 (provi ding for delay in payment where some amount is contested). But, as previously ex plained, the parties here seem to have agreed that some portion of Strobos’s salary would no longer be “ due ” until a condition precedent first obtained, and n either side explains whether these wages continued as a result to truly come “due” b y the terms of their September deal. Strobos and McCool certainly treated
them as though they did not for nearly a year. O ther employees , too , testified that Strobos knew that these accrued l iabilities might never be repaid and advised them to plan their own futures accordingly. See Thompson Decl. at 2; Boler Decl. at 2. Indeed, it appears from the record that Strobos did not began disputing whether his salary and bonuses were now immediatel y ripe for payment until he left the Company

. As a result of these sparring factual positions , the Court cannot conclude that either party has shown an entitlement to summary judgment on the remainder of this count.
3. Severance In his last claim, Strobos seeks to collect $427,950.0 1 in severance pursuant to Article XI of his 2014 Employment Contract. See Mot. at 17; Strobos Reply at 12. That provision, as relevant here, stat es: If [Strobos] is terminated by [RxBio ] without Cause or [Strobos] resigns for Good Reason, all as defined in Article XIX of this Agreement, [RxBio] shall pay [Strobos], as a single severance payment , the sum of one year’s base sal ary and prior year’s bonus. The Contract then defines “good reason” as including “a material change in [Strobos’s] reporting relations or a material reduction in duties without employee’s prior written consent.” Id. ,

a rt. XIX , § 19.6 , at 8

. According to Strobos, McCool satisfied this condition when he began unilaterally re assigning his supervisory duties to others on June 30, 2015

. See Mot. at 17

- 18

.28 These action s , by his telling, eventually forced his July 17 Resignation Notice to McCool , which McCool later accepted

. Id. The facts in the record, though, are again not so clear cut. On Strobos’s side of the

e quation , his Resignation Notice to McCool did reference specific examples of changes in his responsi bilities that he felt substantially altered his established role in the Company

– namely, by assigning communications w ith certain federal agencies to other RxBio employees

. See ECF
No. 41

- 28, Exh. BB (Resignation Notice) at 1 (“I no longer bear responsibility for communication with, document development for, or submission of reports to all federal agencies
and for direct ing and supervising employees responsible for assisting in those efforts.”). But RxBio, in rebuttal, provides its own evidence that Strobos’s duties were never so broad as his
email contends , but were i nste ad limited to interactions with only specific government agencies

. See McCool Decl, ¶ 149. McCool , furthermore, wrote back to Strobos , classifying his resignation as “voluntary” and notifying him that he did not believe severance would thus be due

. See ECF No. 41, Exh. CC (Letter fr om McCool to Str obos on July 17, 2015) at 2. Given these conflicting renditions of the events that led to Plaintiff ’s departure from the Company, the Court cannot at this juncture grant summary judgment to either side and will again deny both Motions on this count.

* * * In sum, the Court will deny both sides’ Motions as to Strobos’s causes of action with the exception of its partial grant of summary judgment to Plaintiff on Count I (out

- of

- pocket expenses).
D. Strobos’s Motion to Strike29 One last issue must be briefly resolved before this case marches off to trial . After RxBio docketed its Reply , Strobos filed a Motion to Strike it on the ground that the Company had attempted “to introduce new evidence” by attaching a supplemental declaration from McCool to it s brief

. See ECF No. 51. More specifically, Strobos objected to the novel justification presented in that new exhibit for RxBio’s failure to repay his expenses. Id. As the Court has

now rejected the Company’s argument on this score , it will now deny this Motion to Strike as

moot. IV. Conclusion For the reasons stated herein, the Court will largely deny both Motions for Summary Judgment . As to RxBio ’s Counterclaim II, III, and IV, as well as to Strobos’s contract claim for
expenses , however, it will grant Plaintiff’s Motion. Finally, it will deny as moot Strobos’s Motion to Strike. A contemporaneous O rder will so issue.
/s/ **James E. Boasberg** JAMES E. BOASBERG United States District Judge Date: May 9 , 2017