PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-2351

RLM COMMUNICATIONS, INC.,

Plaintiff - Appellant,

v.

AMY E. TUSCHEN; ESCIENCE AND TECHNOLOGY SOLUTIONS, INC.,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. Louise W. Flanagan, 

District Judge. (5:14−cv−00250−FL)

Argued: March 24, 2016 Decided: July 28, 2016 

Before KING, DIAZ, and HARRIS, Circuit Judges.

Affirmed by published opinion. Judge Diaz wrote the opinion, in 

which Judge King and Judge Harris joined.

ARGUED: R. Jonathan Charleston, THE CHARLESTON GROUP, 

Fayetteville, North Carolina; Coy E. Brewer, Jr., COY E. BREWER, 

JR., ATTORNEY AT LAW, Fayetteville, North Carolina, for 

Appellant. Michael Coghlan Lord, WILLIAMS MULLEN, Raleigh, 

North Carolina, for Appellees. ON BRIEF: Jose A. Coker, Dharmi 

B. Tailor, THE CHARLESTON GROUP, Fayetteville, North Carolina, 

for Appellant.
2

DIAZ, Circuit Judge:

After working for six years at RLM Communications, Inc., 

Amy Tuschen resigned and joined a competitor, eScience and 

Technology Solutions, Inc. Although RLM and eScience had 

offices just a few miles from each other, RLM did not initially 

object to Tuschen’s move. Later, however, RLM discovered that

eScience was planning to bid against it on a government contract 

very similar to one that Tuschen had managed during her tenure 

at RLM. RLM also learned that Tuschen was soliciting her former

RLM colleagues to join eScience in the event her new employer 

won the contract.

RLM brought multiple claims against eScience and Tuschen, 

alleging principally that Tuschen breached a covenant not to 

compete and unlawfully took confidential information from RLM 

and shared it with eScience. After discovery, the district 

court granted summary judgment to eScience and Tuschen on all of 

RLM’s claims. Because the covenant not to compete was not 

enforceable and RLM failed to present sufficient evidence that 

Tuschen took or shared RLM’s confidential information, we 

affirm.
3

I.

A.

RLM is a government contractor specializing in services 

such as cyber security, information technology, information 

assurance (i.e., managing the various risks associated with an 

organization’s information and data systems), and management 

support. On June 5, 2007, Tuschen signed an offer letter from 

RLM, accepting a position as a Training and Development 

Representative. In this role, Tuschen was to provide 

instruction at the U.S. Army Leader College of Information 

Technology at Fort Gordon, Georgia. On her first day of work, 

Tuschen executed two more documents: a Confidentiality Agreement

and a Covenant Not to Compete (the “Noncompete”).1

Over the next six years, RLM promoted Tuschen several 

times, ultimately making her Director of Information Assurance. 

One of Tuschen’s responsibilities in this position was to manage

an information-assurance contract with the U.S. government (the 

“Contract”). The Contract was set to expire on June 30, 2014, 

at which time the government was to rebid the services as a new 

contract (the “Follow-on Contract”). About a year before the 

Contract expired, Tuschen gave RLM two weeks’ notice of her 

resignation. Prior to departing, she copied several files 

 1 We discuss these agreements in more detail below.
4

related to the Contract from her employer-issued laptop computer 

onto a CD, which she gave to her successor, Dennis Yelverton.

Before Tuschen’s departure, RLM learned that she planned to 

join eScience, a competing federal contractor with an office 

just down the street from RLM. Not only did RLM not object to 

Tuschen’s plan to work for eScience, but it gave her $1,000 in 

gift cards and a “giant bouquet of roses” as parting gifts.

J.A. 257.

Within days of resigning from RLM, Tuschen began working 

for eScience as its Director of Cyber and IT Solutions. At 

eScience, she was charged with helping the company develop a bid 

for the Follow-on Contract and with reaching out to former 

colleagues at RLM to secure their services should eScience win 

the Follow-on Contract. She contacted several RLM employees for 

this purpose. 

Meanwhile, the government issued its request for proposals

for the Follow-on Contract in May 2014. This led to some 

technical jockeying between RLM and eScience over how large a 

company would be permitted to serve as prime contractor. The 

original request for proposals assigned the Follow-on Contract a 

North American Industry Classification System (NAICS) code that 

had the effect of enabling eScience to bid as prime contractor

but disqualifying the larger RLM. But the day after the request

for proposals was released, the government amended it, assigning 
5

a different NAICS code that would allow RLM to bid as prime 

contractor.

Seeking to avoid competition from larger firms such as RLM, 

eScience appealed to the U.S. Small Business Administration, 

which reinstated the original NAICS code. It was a fleeting

victory: RLM, which could participate in a bid as a 

subcontractor rather than as prime contractor, was part of the 

team that won the Follow-on Contract.

B.

RLM filed suit in North Carolina state court against 

Tuschen and eScience, seeking a temporary restraining order 

(“TRO”) and asserting nine claims: (1) breach of contract 

(related to the Noncompete); (2) breach of contract (related to 

the Confidentiality Agreement); (3) unfair and deceptive trade 

practices; (4) tortious interference with contractual relations; 

(5) misappropriation of trade secrets; (6) unjust enrichment; 

(7) civil conspiracy; (8) preliminary and permanent injunction; 

and (9) conversion. The state court granted the TRO, and 

Tuschen and eScience removed to federal court, where they moved 

to dismiss all claims.

The district court converted their motion to dismiss into a 

motion for summary judgment to be supplemented after discovery. 

RLM quickly moved for a TRO and a preliminary injunction (as 

relevant here). The district court granted a TRO on the same 
6

terms set forth in state court, but soon after replaced it with 

a preliminary injunction based in part on the parties’ consent. 

It also converted the request for a preliminary injunction into 

a motion for a permanent injunction. 

In November 2014, the district court granted Tuschen and 

eScience’s motion for summary judgment on all claims and denied 

RLM’s motion for a permanent injunction. RLM Commc’ns, Inc. v. 

Tuschen, 66 F. Supp. 3d 681 (E.D.N.C. 2014).

This appeal followed.

II.

We review the district court’s grant of summary judgment de 

novo, viewing the facts in the light most favorable to RLM, the 

nonmovant. See Askew v. HRFC, LLC, 810 F.3d 263, 266 (4th Cir. 

2016). We may affirm “on any legal ground supported by the 

record and are not limited to the grounds relied on by the 

district court.” Jackson v. Kimel, 992 F.2d 1318, 1322 (4th 

Cir. 1993). Summary judgment is warranted where “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). Because we are sitting in diversity, addressing matters 

of North Carolina law, we apply governing North Carolina law or, 

if necessary, predict how the Supreme Court of North Carolina 

would rule on an unsettled issue. See Askew, 810 F.3d at 266.
7

On appeal, RLM has abandoned its unjust-enrichment claim. 

We address the remaining issues in the following order: breach 

of the Noncompete, breach of the Confidentiality Agreement,

misappropriation of trade secrets, conversion, tortious 

interference with contractual relations, unfair and deceptive 

trade practices, civil conspiracy, and permanent injunction.

III.

First, RLM faults the district court for granting summary 

judgment on its claim that Tuschen breached the terms of the 

Noncompete. The district concluded that the Noncompete was 

invalid for lack of consideration. Tuschen, 66 F. Supp. 3d at 

693. In RLM’s view, however, the Noncompete was part of the 

larger employment contract, and so employment itself was the

consideration. Moreover, RLM argues, even if the Noncompete was 

a separate contract requiring separate consideration, it recited 

adequate consideration, promising that RLM would give Tuschen 

access to “company private information.” Appellant’s Br. at 28. 

In Tuschen and eScience’s view, the Noncompete was not part of 

the employment contract, and the recited consideration was 

illusory because RLM never promised to provide Tuschen access to 

the company private information. In the alternative, they argue 

that the Noncompete is impermissibly broad.
8

Because we agree with Tuschen and eScience that the 

Noncompete is overbroad, we do not address the consideration 

issues.2

Covenants not to compete are disfavored in North Carolina. 

See Kadis v. Britt, 29 S.E.2d 543, 546 (N.C. 1944); VisionAIR, 

Inc. v. James, 606 S.E.2d 359, 362 (N.C. Ct. App. 2004). They 

are valid only if they are “(1) in writing; (2) made a part of 

the employment contract; (3) based on valuable consideration; 

(4) reasonable as to time and territory; and (5) designed to 

protect a legitimate business interest of the employer.” Farr 

Assocs., Inc. v. Baskin, 530 S.E.2d 878, 881 (N.C. Ct. App.

2000). The restrictions on an employee’s future employment 

“must be no wider in scope than is necessary to protect the 

business of the employer.” Manpower of Guilford Cty., Inc. v. 

Hedgecock, 257 S.E.2d 109, 114 (N.C. Ct. App. 1979).

More specifically, “restrictive covenants are unenforceable 

where they prohibit the employee from engaging in future work 

that is distinct from the duties actually performed by the 

employee.” Med. Staffing Network, Inc. v. Ridgway, 670 S.E.2d 

321, 327 (N.C. Ct. App. 2009); see also Copypro, Inc. v. 

 2 Similarly, we do not reach the issue of whether the 

Noncompete violates public policy as expressed by Executive 

Order Number 13495 (Jan. 30, 2009). See Appellees’ Br. at 45-

46.
9

Musgrove, 754 S.E.2d 188, 192 (N.C. Ct. App. 2014) (“[W]e have 

held on numerous occasions that covenants restricting an 

employee from working in a capacity unrelated to that in which 

he or she worked for the employer are generally overbroad and 

unenforceable.”).

The Noncompete, in relevant part, provides as follows:

While I, the Employee, am employed by Employer, and 

for 1 years/months afterward, I will not directly or 

indirectly participate in a business that is similar 

to a business now or later operated by Employer in the 

same geographical area. This includes participating 

in my own business or as a co-owner, director, 

officer, consultant, independent contractor, employee, 

or agent of another business. 

J.A. 37. 

The restriction on Tuschen’s future employment is largely 

unmoored from RLM’s legitimate business interests. Even 

ignoring for a moment the bar on indirect participation in 

similar businesses, the Noncompete is overly broad by preventing 

direct participation in similar businesses. Tuschen is not 

merely prohibited from working for RLM’s competitors in a 

position like the one she held at RLM. She may also not mow 

their lawns, cater their business lunches, and serve as their 

realtor. See Hartman v. W.H. Odell and Assocs., Inc., 450 

S.E.2d 912, 920 (N.C. Ct. App. 1994) (finding a covenant 

unenforceable where it “would appear to prevent plaintiff from 
10

working as a custodian for any ‘entity’ which provides 

‘actuarial services’” (quoting the record)).

And if RLM were to take up software development as a new 

line of business (i.e., “a business . . . later operated by 

Employer”), Tuschen would be barred from working as a sales 

representative for a nearby software developer. See VisionAIR, 

606 S.E.2d at 363 (striking down a restriction on selling 

software when sales work was “unrelated to that which [the 

employee] did for [the employer]”). The ban on indirect 

participation could have even more startling consequences: if 

Tuschen has retirement accounts invested in mutual funds, she 

may have to monitor their holdings to be sure she is not 

investing in companies similar to RLM. See id. 

Such a broad prohibition on future employment (let alone 

investment) cannot be justified by RLM’s legitimate business 

concerns. “With everything Tuschen knew . . . in her leadership 

positions,” RLM asserts, “she could singlehandedly affect RLM’s 

future in terms of its ability to bid on and secure upcoming 

contracts.” Appellant’s Br. at 34. Assuming this is true

(despite RLM’s beating out eScience for the Follow-on Contract), 

RLM’s legitimate business interests fall well short of 

justifying the Noncompete’s prohibitions.

Instead of focusing on employment that raises the risk that

Tuschen will use knowledge obtained from RLM to RLM’s detriment, 
11

the Noncompete targets the similarity of a new employer to RLM. 

That is not a sufficient limiting factor for a covenant not to 

compete. See Henley Paper Co. v. McAllister, 117 S.E.2d 431, 

434 (N.C. 1960) (holding that a covenant was overbroad where it 

barred a salesman of “fine” paper products from “‘either 

directly or indirectly’ engaging ‘in the manufacture, sale or 

distribution of paper or paper products’”); Kinesis Advert., 

Inc. v. Hill, 652 S.E.2d 284, 294 (N.C. Ct. App. 2007) (“We have 

previously held that a covenant-not-to-compete is ‘overly broad 

in that, rather than attempting to prevent [the former employee] 

from competing for [] business, it requires [the former 

employee] to have no association whatsoever with any business 

that provides [similar] services.’” (quoting Hartman, 450 S.E.2d 

at 920)). Simply put, the Noncompete is overly broad and cannot 

be enforced as written.3

RLM encourages us to take up North Carolina’s “blue-pencil” 

doctrine and strike the offending language. Appellant’s Br. at

35-36. Under this doctrine, a court “may choose not to enforce 

a distinctly separable part of a covenant in order to render the 

provision reasonable.” Hartman, 450 S.E.2d at 920. But North 

Carolina’s blue-pencil rule “severely limits what the court may 

do to alter” an overly broad covenant not to compete. Id. 

 3 We do not reach the question whether the Noncompete is 

reasonable as to time and territory.
12

“[W]hen an agreement not to compete is found to be 

unreasonable, . . . the court is powerless unilaterally to amend 

the terms of the contract.” Beverage Sys. of the Carolinas, LLC 

v. Associated Beverage Repair, LLC, 784 S.E.2d 457, 461 (N.C. 

2016). We therefore cannot rewrite the Noncompete to save it 

from its fatal flaws. Moreover, even if we assume bluepenciling were appropriate in this case, we do not see how it 

would help RLM. RLM suggests that we strike the term

“indirectly,” but we have already explained that a prohibition 

limited to direct participation in a similar business is 

overbroad.

Because the Noncompete is unenforceable and cannot be 

mended by blue-penciling, the district court properly dismissed 

the associated claim for breach of contract.

IV.

RLM’s second breach-of-contract claim alleges that Tuschen 

violated the terms of the Confidentiality Agreement. The 

district court granted summary judgment, finding the cited 

consideration illusory. We assume without deciding that the 

Confidentiality Agreement was valid and affirm on the 

alternative ground that RLM has failed to put forth sufficient

evidence of breach. 
13

In relevant part, the Confidentiality Agreement reads as 

follows: “While I am employed by Employer and afterward, I will 

not, except in performing my duties, remove or copy any 

confidential information or materials or assist anyone in doing 

so without Employer’s written permission.” J.A. 39. In the 

Verified Complaint, RLM alleges that the breach occurred when 

“Tuschen disclosed confidential information acquired during her 

employment with RLM.” J.A. 23. On appeal, RLM has pivoted to a 

new theory: Tuschen breached the Confidentiality Agreement 

merely by copying confidential information without permission

and not in performance of her duties.

Tuschen readily admits that before she left RLM, she copied 

confidential information regarding the Contract from her 

employer-issued laptop onto a CD without written permission. 

The question is whether she did so “in performing [her] duties.”

According to Tuschen, she made the CD to gather all of the 

files relevant to the Contract in “a single, one-stop source of 

information that [her successor, Dennis Yelverton,] would not 

otherwise have.” J.A. 258. Although Tuschen knew that RLM 

would retain the laptop and all of the information in it, she 

believed the CD would ease the transition for Yelverton. She 

also testified that she gave the only copy to Yelverton, and RLM 

has conceded it has no evidence to the contrary.
14

Tuschen has also presented evidence that (1) Yelverton 

lacked access to many of the files on the CD and her computer

was to be sent to a different office and would not be 

immediately available to Yelverton; (2) before she created the 

CD, RLM’s Vice President of IT Services and Solutions had 

similarly created a CD for his successor when he resigned, and 

there had been no “Corporate pushback,” J.A. 428; (3) no one at 

RLM objected upon learning that Tuschen had made the CD;

(4) “[t]he CD was used extensively to access the information on 

it to manage the Contract following Ms. Tuschen’s resignation,” 

J.A. 429; and (5) Yelverton, upon his own resignation, “passed 

the CD to the incoming Program Manager as well as providing a 

copy of the CD to the Senior Program Manager,” J.A. 434.

RLM provides no evidence to contradict Tuschen’s contention 

that she created the CD to ease the transition for Yelverton. 

Nonetheless, RLM asserts that nobody told Tuschen to create the 

CD, and doing so was not a common practice at RLM. In most 

workplaces, however, such an employee would be lauded for her 

initiative, rather than accused of wrongdoing. Something more 

is required to raise an inference that Tuschen, as RLM’s 

Director of Information Assurance and the person responsible for 

managing the Contract, was not performing her duties when she 

made the CD for her successor. 
15

Because RLM has not shown a genuine issue of fact that 

Tuschen breached the Confidentiality Agreement, we affirm the 

grant of summary judgment as to this claim.

V.

RLM’s misappropriation-of-trade-secrets claim is similar to

its claim for breach of the Confidentiality Agreement. Here, 

RLM alleges not only that Tuschen created the CD, but also that 

she kept a copy for herself and shared confidential information 

with eScience.

A.

In North Carolina, “‘[m]isappropriation’ means acquisition, 

disclosure, or use of a trade secret of another without express 

or implied authority or consent, unless such trade secret was 

arrived at by independent development, reverse engineering, or 

was obtained from another person with a right to disclose the 

trade secret.” N.C. Gen. Stat. § 66-152. The misappropriation 

statute also sets out a scheme for shifting the burden of 

production: 

Misappropriation of a trade secret is prima facie 

established by the introduction of substantial 

evidence that the person against whom relief is sought 

both:

(1) Knows or should have known of the trade 

secret; and

(2) Has had a specific opportunity to acquire it 

for disclosure or use or has acquired, disclosed, or 
16

used it without the express or implied consent or 

authority of the owner.

This prima facie evidence is rebutted by the 

introduction of substantial evidence that the person 

against whom relief is sought acquired the information 

comprising the trade secret by independent 

development, reverse engineering, or it was obtained 

from another person with a right to disclose the trade 

secret. This section shall not be construed to 

deprive the person against whom relief is sought of 

any other defenses provided under the law.

Id. § 66-155. 

The first prong of the prima facie case plainly requires 

that the defendant “[k]nows or should have known of the trade 

secret.” Id. The second prong provides two alternatives, 

requiring that the defendant “[1] has had a specific opportunity 

to acquire [the trade secret] for disclosure or use or [2] has 

acquired, disclosed, or used it without the express or implied 

consent or authority of the owner.” Id. (emphasis added). At 

first blush, this second prong appears to allow a plaintiff to 

show either that the defendant had an opportunity to acquire 

trade secrets or that the defendant in fact acquired them 

without permission. 

But there is a problem with this reading. To understand 

why, it is first important to note the effect of a trade-secrets 

prima facie case in the context of summary judgment. 

Interpreting the phrase “prima facie evidence” in another 

statute, the Supreme Court of North Carolina has explained that 

“prima facie evidence means, and means no more, than evidence 
17

sufficient to justify, but not to compel an inference” of the 

fact in question. Home Fin. Co. of Georgetown v. O’Daniel, 74 

S.E.2d 717, 721 (N.C. 1953) (citing N.C. Gen. Stat. § 44-38.1(a) 

(repealed 1967)). Prima facie evidence “furnishes evidence to 

be weighed, but not necessarily to be accepted, by the jury. It 

simply carries the case to the jury for determination, and no 

more.” Id. Therefore, a prima facie case of misappropriation 

permits a plaintiff to survive summary judgment. See Anderson 

v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986); Collingwood 

v. Gen. Elec. Real Estate Equities, Inc., 376 S.E.2d 425, 427 

(N.C. 1989).

In the employment context, if knowledge and opportunity 

suffice for a prima facie case of misappropriation, then an 

employer can state a prima facie case against its employee 

merely by showing that it gave the employee access to its trade 

secrets. The employer can therefore force such an employee to 

go to trial on a misappropriation claim—unless the employee can 

rebut the prima facie case. Unfortunately, the statute does not

clearly address rebuttal in a case such as this one, where the 

employee claims that she never acquired or used trade secrets at 

all. The statute provides three grounds for rebutting the prima 

facie evidence, but all grounds assume that the employee has in 

fact acquired the trade secrets: “prima facie evidence is 

rebutted by the introduction of substantial evidence that the 
18

person against whom relief is sought acquired the information 

comprising the trade secret by independent development, reverse 

engineering, or it was obtained from another person with a right 

to disclose the trade secret.” § 66-155. If these grounds were 

exclusive, an absurd result would follow: Every employee in 

North Carolina who had access to her employer’s trade secrets 

but did not acquire them would have to go to trial to fend off 

the employer’s claim of misappropriation.

B.

We do not think the Supreme Court of North Carolina, which 

has not had occasion to consider the meaning of the statute,

would adopt such an interpretation. See State v. Hunt, 591 

S.E.2d 502, 503 (N.C. 2003) (“[W]here a literal interpretation 

of the language of a statute will lead to absurd results, or 

contravene the manifest purpose of the Legislature, as otherwise 

expressed, the reason and purpose of the law shall control and 

the strict letter thereof shall be disregarded.” (quoting Mazda 

Motors of Am., Inc. v. Sw. Motors, Inc., 250 S.E.2d 250, 253 

(N.C. 1979))).

Nor do other North Carolina courts appear to have 

interpreted the statute this way. Instead, when determining 

whether a prima facie case exists, North Carolina courts 

generally look for proof of more than a mere opportunity to 

misappropriate; they require evidence that the defendant 
19

actually acquired or used trade secrets. See, e.g., Modular 

Techs., Inc. v. Modular Sols., Inc., 646 S.E.2d 864, at *4 (N.C. 

Ct. App. 2007) (unpublished) (“[E]ven assuming that at least 

some of the information to which [the employee] had access 

qualifies as trade secrets, plaintiff [employer] has not 

introduced substantial evidence that [the employee] acquired the 

information for disclosure or use, or disclosed or used the 

information.”); Static Control Components, Inc. v. Summix, Inc., 

No. 1:08CV928, 2012 WL 1379380, at *7 (M.D.N.C. Apr. 20, 2012) 

(granting summary judgment to a defendant–competitor where the 

employer could show that an employee had access to its trade 

secrets but could not make the further showing that the employee 

shared them with the competitor); Amerigas Propane, L.P. v. 

Coffey, No. 14 CVS 376, 2015 WL 6093207, at *13 (N.C. Super. Ct.

Oct. 15, 2015) (finding no prima facie case because the employer 

“has not offered evidence that [the employee] accessed or 

downloaded customer information from [the employer’s] computer 

database in connection with his departure from the company”);

cf. Sunbelt Rentals, Inc. v. Head & Engquist Equip., L.L.C., 620 

S.E.2d 222, 229 (N.C. Ct. App. 2005) (holding that a prima facie 

case of misappropriation was established where a competitor 

hired employees from an employer and immediately expanded into 

the employer’s territory, taking a large chunk of the employer’s 

business); Byrd’s Lawn & Landscaping, Inc. v. Smith, 542 S.E.2d 
20

689, 693 (N.C. Ct. App. 2001) (finding that a prima facie case 

was established where an employee who had access to his 

employer’s confidential cost-history information on customer 

contracts resigned and started a competing business that 

underbid the employer on several contracts). But see BarrMullin, Inc. v. Browning, 424 S.E.2d 226, 230 (N.C. Ct. App. 

1993) (“[A] prima facie case of misappropriation exists since 

defendant Browning helped to develop the COMPU–RIP software 

during his employ with plaintiff and Browning had access to 

copies of the COMPU–RIP source code prior to his resignation.”).

At least two potential interpretations of the statute would

produce results consistent with those of the North Carolina 

courts, and we think the Supreme Court of North Carolina would 

adopt one of them.

1.

First, a more sensible—if less grammatically obvious—

reading of the second prong of the prima facie case is 

available. As we have pointed out, the second prong of the 

prima facie case presents two alternate scenarios for a 

plaintiff to prove: Either the defendant “has had a specific 

opportunity to acquire [the trade secret] for disclosure or use 

or has acquired, disclosed, or used it without the express or 

implied consent or authority of the owner.” § 66-155. The 

final phrase—“without the express or implied consent or 
21

authority of the owner”—may be read to apply only to the second 

scenario; but one could also reasonably read it to apply to the 

first.

Thus, in the first scenario the plaintiff would have to 

show that the defendant “[h]as had a specific opportunity to 

acquire [the trade secret] for disclosure or use . . . without 

the express or implied consent or authority of the owner.” Read 

this way, the employer would have to prove not merely that its 

employee had access to trade secrets, but also that the employee 

abused such access—the employer would have to show knowledge and 

an unauthorized opportunity to acquire or use trade secrets. 

Cf. Ridgway, 670 S.E.2d at 329 (finding a prima facie case where 

an employer proved that its employee accessed confidential files 

“with unusual frequency” shortly before attending a meeting with 

a competitor). Although this is perhaps not the most natural 

reading of the statute, it would avoid the problem outlined 

above and produce results consistent with decisions of North 

Carolina courts.

2.

Alternatively, a second interpretation would accept our 

original reading of the prima facie case, permitting an employer 

to show mere knowledge and opportunity. As we have noted, the 

grounds set out in the statute for rebutting the prima facie 

case do not assist an employee who wishes to rebut by arguing
22

that she never acquired or used any trade secrets at all. But 

because the statute does not expressly limit a defendant to 

these grounds for rebuttal—indeed, section 66-155 states that 

“[t]his section shall not be construed to deprive the person 

against whom relief is sought of any other defenses provided 

under the law”—we may infer the existence of another ground for 

rebuttal that would avoid the absurd result outlined above. 

If a defendant’s opportunity to steal trade secrets may 

give rise to an inference of misappropriation, we think the 

defendant rebuts the inference by showing that the circumstances 

surrounding the opportunity were not suspicious. In the 

employment context, if an employee can show that the opportunity 

was provided with the consent of the employer—as will often be 

the case—then an inference of misappropriation is no longer 

justified. The burden of production then shifts back to the 

employer to show evidence sufficient to raise an inference of 

actual acquisition or use. The practical effect of this burden 

shifting, of course, is that an employer accusing an employee of 

misappropriation will often gain little benefit from making a 

prima facie case based on opportunity. Instead, the framework 

will collapse into the question whether the employer has 

sufficient evidence of misappropriation to raise an inference of 

actual acquisition or use of its trade secrets. Here again, 
23

this result is generally consistent with the practice of the 

North Carolina courts.

3.

To summarize: we conclude that the Supreme Court of North 

Carolina would adopt one of the two interpretations of section

66-155 we have discussed. Both produce a rule sufficient to 

resolve this case: When an employer brings a misappropriation 

claim against an employee, admitting that the employee had 

authorized access to its trade secrets at all relevant times, 

the employer must raise an inference of actual acquisition or 

use of trade secrets to survive summary judgment.

We note finally that this rule is consistent with the 

parties’ views of the law, and that neither raised the meaning 

of section 66-155 as an issue in their briefs. See, e.g., 

Appellant’s Br. at 17-18 (noting that Tuschen “had access to all 

of the documents and information,” but arguing that RLM should 

have survived summary judgment because it had raised “a 

compelling circumstantial inference that a copy of the CD was 

taken by Tuschen and used by her and eScience”); Appellees’ Br.

at 19 (arguing that summary judgment was warranted because RLM 

could not raise an inference that Tuschen made an extra copy of 

the CD for herself or took the information stored on it).
24

C.

The rule we have just stated applies straightforwardly to 

this case. RLM admits it gave Tuschen access to its trade 

secrets, and it does not claim she ever accessed them without 

authorization. On either of our interpretations, these facts 

would prevent an inference of misappropriation from Tuschen’s 

access alone: on the first, RLM fails to state a prima facie 

case, and on the second, though RLM states the prima facie case, 

Tuschen successfully rebuts it. RLM’s burden, then, is to raise 

an inference of misappropriation, relying on circumstantial 

evidence if necessary. GE Betz, Inc. v. Conrad, 752 S.E.2d 634, 

649 (N.C. Ct. App. 2013). 

RLM has admitted “[it] doesn’t have any” evidence “that Ms. 

Tuschen retained any of the information on the CD,” J.A. 169, 

and we have already explained (in affirming the dismissal of 

RLM’s claim that Tuschen breached the Confidentiality Agreement) 

why Tuschen’s creation of the CD cannot raise an inference that 

she retained trade secrets.4

 4 RLM’s reliance on Ridgway to urge a different result is

misplaced. There, the employer put forth evidence that the 

employee “accessed [the employer’s] ‘game plan’ and other 

confidential documents from [the employer’s] network with 

unusual frequency” just prior to a meeting with a competitor. 

670 S.E.2d at 329 (emphasis added). RLM has no comparable 

evidence that Tuschen’s creation of the CD was suspicious.
25

Nevertheless, RLM contends that after hiring Tuschen,

eScience underwent an “unexplained leap in technical capacity” 

that permits an inference of misappropriation. Appellant’s Br.

at 18. RLM cites Static Control Components, Inc. v. Darkprint 

Imaging, Inc., 200 F. Supp. 2d 541, 545-46 (M.D.N.C. 2002), 

which found “strong circumstantial evidence” of misappropriation

where an aftermarket-toner distributor alleged that a competitor 

developed new toner product lines unusually quickly after hiring 

five of its employees. But unlike in Darkprint, where the 

evidence was undisputed that the competitor developed new 

products similar to the distributor’s soon after hiring its 

employees, id., RLM’s evidence fails to raise a genuine issue of 

fact as to whether eScience made a “leap in technical capacity.” 

Its sole evidence is that eScience had never bid on the Contract 

before Tuschen joined, but afterward it was able to bid on the 

Follow-on Contract. We do not think submitting a bid, 

particularly an unsuccessful one, represents the same sort of 

“leap in technical capacity” described in Darkprint.5

 5 RLM also contends that, during discovery, Tuschen produced 

a document “virtually identical” to one on the CD. Appellant’s 

Br. at 20. (RLM does not contend the document itself contains

trade secrets.) But Tuschen testified she received the document 

from a third-party source and RLM has no evidence to suggest 

otherwise. While a fact finder could conclude that Tuschen 

acquired the document from RLM rather than the third-party, this 

would provide negligible evidence that she also acquired 

documents containing trade secrets.
26

D.

Because RLM has not produced sufficient evidence to permit

an inference of misappropriation, summary judgment was properly 

granted on the trade-secrets claim.

VI.

RLM’s conversion claim is easily dispatched based on the 

analysis above. In North Carolina, conversion is “an 

unauthorized assumption and exercise of the right of ownership 

over goods or personal chattels belonging to another, to the 

alteration of their condition or the exclusion of an owner’s 

rights.” Peed v. Burleson’s, Inc., 94 S.E.2d 351, 353 (N.C. 

1956) (quoting 89 C.J.S., Trover & Conversion § 1). For the 

reasons set forth above, RLM’s evidence does not make a genuine 

issue of its allegation that “Tuschen took RLM’s confidential 

and proprietary information on a CD.” Appellant’s Br. at 23. 

VII.

RLM next contests the district court’s grant of summary 

judgment on its claim against eScience for tortious interference 

with contractual relations. The tort has four elements:

First, that a valid contract existed between the 

plaintiff and a third person, conferring upon the 

plaintiff some contractual right against the third 

person. Second, that the outsider had knowledge of 

the plaintiff’s contract with the third person. 

Third, that the outsider intentionally induced the 
27

third person not to perform his contract with the 

plaintiff. Fourth, that in so doing the outsider 

acted without justification. Fifth, that the 

outsider’s act caused the plaintiff actual damages.

Peoples Sec. Life Ins. Co. v. Hooks, 367 S.E.2d 647, 649-50

(N.C. 1988) (quoting Childress v. Abeles, 84 S.E.2d 176, 181-82 

(N.C. 1954)). In explaining the fourth prong, the Supreme Court 

of North Carolina has stated that “competition in business 

constitutes justifiable interference in another’s business 

relations and is not actionable so long as it is carried on in 

furtherance of one’s own interests and by means that are 

lawful.” Id. at 650 (holding that a competitor is not liable 

for tortious interference for hiring employees away from an 

employer and placing them in competition with the employer, so 

long as the competitor was motivated by competition rather than 

malice).

The district court correctly relied on Hooks, explaining 

that “[t]here is no genuine issue of fact that plaintiff and 

defendant [eScience] are competitors in the same field, and that 

[eScience] hired Tuschen to work on government contracts similar 

to those that she worked on with plaintiff.” Tuschen, 66 F. 

Supp. 3d at 694. Because the record discloses no evidence that 

eScience was motivated by anything other than competition, its 

interference with Tuschen and RLM’s employment contract was 

justified and summary judgment was therefore appropriate.
28

VIII.

RLM’s remaining claims all rely in one way or another on 

claims we have already found meritless. First, RLM bases its 

claim for unfair and deceptive trade practices on its claims for 

misappropriation and tortious interference. See Appellant’s Br.

at 49-50. Because we have held that those claims lack merit, so 

does this one. Second, civil conspiracy requires “an underlying 

claim for unlawful conduct,” Sellers v. Morton, 661 S.E.2d 915, 

922 (N.C. Ct. App. 2008) (quoting Toomer v. Garrett, 574 S.E.2d 

76, 92 (N.C. Ct. App. 2002)), and none remains. Finally, RLM’s 

request for a permanent injunction is unwarranted because there 

is no basis on which to enjoin Tuschen or eScience.

IX.

For the foregoing reasons, we affirm the district court’s 

judgment.

AFFIRMED