UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ LS3 INC., a Maryland corporation, Plaintiff - Appellant,

v. CHEROKEE NATION STRATEGIC PROGRAMS, L.L.C. , an Oklahoma limited liability company; CHEROKEE FEDERAL SOLUTIONS, L.L.C., an Oklahoma limited liability company; CHEROKEE SERVICES GROUP, LLC, a Cherokee Nation limited liability company; KELLY CARPER; DONALD LOPEZ; GWYNETH ROBE; DANIEL CERMAN; STEVE CLARK; DEBRA DIX; LEVI FLINT; GREGORY FRISINA; SIRISHA GANTI; WAYNE HOPKINS; ERICA HOPPE; ALAN HUGGENBERGER; JAKEB HUGGENBERGER; RONALD JACOBSON; KARL LONG; WILLIAM MCKINNEY; ISAAC MIRELES; KEVIN MUIR; FREDERICK PETERS; CAROL SCHREINER; REX STEFFEN; NICHOLAS STEVENS, Defendants - Appellees. No. 21-1385 (D.C. No. 1:20-CV -03555-PAB-NYW) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________

* After examining the briefs and appella te record, this pa nel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This or der and judgment is not binding precedent, FILED United States Court of Appeals Tenth Circuit 

### August 17, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 21-1385 Document: 010110725724 Date Filed: 08/17/2022 Page: 12 Before MATHESON , BACHARACH , and MORITZ , Circuit Judges.

________________ _________________ LS3, Inc. sued Cherokee Nation Strateg ic Programs, L.L.C.; Cherokee Federal Solutions, L.L.C.; and Cherokee Services Group, LLC (collectively the “Cherokee Defendants”); and 22 former LS3 employe es (the “Individual Defendants”) for breach of contract, intenti onal interference with cont ract, civil conspiracy, and misappropriation of trade secrets. The di strict court dismissed these claims under Federal Rule of Civil Procedure 12(b)(6). Exercising jurisdiction under 28 U.S.C. § 1291, we reverse in part, affirm in part, and remand for further proceedings.
I. BACKGROUND 1 Factual History LS3 provided services to the U.S. gov ernment, primarily through a contract with the United States Depart ment of Agriculture (“USDA”). 2 The Cherokee Defendants are competitors of LS3. The Individual Defendants are former LS3 employees who now work for the Cherokee Defendants.

except under the doctrines of la w of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

1 Except where otherwise noted, thes e facts come from LS3’s Amended Complaint. We take as true the well-pl eaded allegations when considering a motion to dismiss. See Waller v. City & Cnty. of Denver , 932 F.3d 1277, 1282 (10th Cir. 2019).

2 The services related to a “cybersecur ity domain that allows agencies to securely access resou rces across existing systems and emerging platforms.” Identity, Credential, and Access Management (IC AM), Cybersecurity & Infrastructure Security Agency, https:// perma.cc/V8P9-69W6. Appellate Case: 21-1385 Document: 010110725724 Date Filed: 08/17/2022 Page: 23 LS3 lost its bid for a USDA contract to Easy Dynamics. One of LS3’s business partners protested the award. As the protest proceeded, the government eventually awarded a “bridge contract” to the Cherokee Defendants, a short-term contract to ensure continu ity of services while the gove rnment resolved the dispute over who would secure the longer-term contract. The Individual Defendants ha d each signed with LS3 e ither an “Intellectual Property, Non-Interference/Non-Solicitation and Non-Disclosure Agreement” (“IPNDA”) or an “Employment Agreement” (“EA ”). Both included “duty of loyalty” provisions, which prohibited the Individua l Defendants from interfering with LS3’s existing or prospective business relati onships. Under the IP-NDAs, Individual Defendants agreed not to “participate or otherwise be involved in competition with LS3 for the award of any cont ract . . . that Employee kn ows or should have known LS3 was competing or preparing to comp ete for.” Aplt. App. vol. 2 at 134. Individual Defendants who signed EAs agreed not to “directly or indirectly induce or attempt to induce any customer . . . of the Company to cease doi ng business with the Company.” Id. at 142. The IP-NDAs and EAs al so both contained nondisclosure provisions to protect confidential informati on. Aplt. App. at 135–36 (nondisclosure provisions of IP-NDA); id. at 141–42 (nondisclosure pr ovisions of EA). In August 2020, Linda Evans, a manage r for the Cherokee Defendants, sent an email to LS3’s employees who had been working in support of a previous USDA contract, including the Indivi dual Defendants (the “Evans email”). It read: Appellate Case: 21-1385 Document: 010110725724 Date Filed: 08/17/2022 Page: 34 Dear ICAM Team Member, You are undoubtedly aware of the protests resulting in a delay in award of the new contr act replacing LS3 Technologies as the prime contractor on the ICAM support contract. As a result, Cherokee Nation Strategic Programs (CNSP) has been notified we are being awarded a bridge (i nterim) contract for four to nine months while the long

‐ term contract award is completed. CNSP is teamed with two other stra tegic partners to deliver this work during the bridge period. CNSP and its partners will give employment preference to current team members who apply for employment on the bridge contract. We understand how difficult th is uncertainty is for incumbent personnel on a contract, a nd our desire is to make this a simple and uneventful transi tion, both transitioning into the CNSP contract, and transitioning out to the eventual winner of the long

‐ term contract. It is our practice, wh enever possible, to keep team members’ salaries intact – we want to ensure this is as painless as possible! To that end, please help us help you by doing the following: 1) Please complete the attached information form. . . . 2) Please obtain your most current pay stub digitally, or scan it, or take a photo of it. This should show your rate of pay, hours worked, and the date. 3) Please “reply all” to this email with both the in formation form and pay stub attached by NOON LOCAL TIME FRIDAY, AUGUST 14. . . . 4) Please tell your co

‐ workers who may not check their personal email often to check their ema il and respond as quickly as possible to this request. If they haven’t received this email, please give them my contact information, below, and ask them to reach out to us ASAP. We’re sorry to have to ask fo r such a rapid response, but we have been given an ex tremely short timeline by the Appellate Case: 21-1385 Document: 010110725724 Date Filed: 08/17/2022 Page: 45 Government for this transition, to ensure all employees are ready to work on the new contract by September 1.

. . . One last thing: I understand some of you have expressed concerns about non

‐ compete agreements you have signed with your current employer. Please no te that under Colorado law, it is unlawful to use force, threats, or other means of intimidation to prevent any person from engaging in any lawful occupation at any place he sees fit. . . . . . . Please know that CNSP and its partners will not ask you to provide, nor do we want you to provide, any proprietary information from your current employer. Please note that your salary is not proprietary information and you are free to disclo se the compensation you receive as you wish.

. . . After you have reviewed this information, I hope you will feel comfortable discussing your future employment with Team Cherokee and providing the re quested information. Id. at 105–07. Ms. Evans attached to th e email a one-page questionn aire listing 10 questions regarding job title, ongoing training/certifi cations, length of employment, hours worked, work equipment, secu rity clearance, salary, pa id time off, and benefits information. The Individual Defendants re sponded to the Evans email and answered the questionnaire. They left LS3 to wo rk for the Cherokee Defendants, either voluntarily or after LS3 fired them. Appellate Case: 21-1385 Document: 010110725724 Date Filed: 08/17/2022 Page: 56 Procedural History LS3’s amended complaint included claims for (1) breach of contract against the Individual Defendants; (2) intentional interference with c ontract against the Cherokee Defendants; (3) civil cons piracy against all defendants; and (4) misappropriation of trade secrets against all defendants in violation of Colorado’s Uniform Trade Secrets Act, Colo. Rev. St at. § 7-74-101–10, and the federal Defend Trade Secrets Act, 18 U.S.C. § 1836. The breach of contract claim was based on two theories—(1) breach of the duty of loyalty and (2) breach of confidentiality. The defendants filed motions to dismiss. The y attached several EAs and IP-NDAs, the Evans email, and th e questionnaire. The district court, exercising federal question and supplemental jurisdiction,

see 28 U.S.C. §§ 1331, 1367, 3 granted the motions. It dismissed (1) the breach of contract claim, finding th e Individual Defenda nts did not breach either the IP-NDAs or th e EAs because the Cherok ee Defendants had already won the bridge contract and because none of the information they provided in responding to the Evans email and questionnaire was confidential. (2) the intentional interference w ith contract claim because breach of the IP-NDAs or the EAs was a necessary element; (3) the statutory trade secrets claims b ecause the complaint did not allege misappropriation of any speci fic trade secrets and the in formation sought in the questionnaire was not a trade secret; and (4) the civil conspiracy claim because it wa s derivative of LS3’s other claims.

3 In its amended complaint, LS3 also asserted the existe nce of diversity jurisdiction. See 28 U.S.C. § 1332. Appellate Case: 21-1385 Document: 010110725724 Date Filed: 08/17/2022 Page: 67 II. DISCUSSION “We review de novo a district court’s decision on a Rule 12(b)(6) motion for dismissal for failure to state a claim.” Waller v. City & Cnty. of Denver , 932 F.3d 1277, 1282 (10th Cir. 2019) (italics, cita tion, and quotations om itted). We “apply[] the same standards as the district court” should have applied. Sutton v. Utah State Sch. for Deaf & Blind , 173 F.3d 1226, 1236 (10th Cir. 1999) “[W]e must accept all the well -pleaded allegations of th e complaint as true and must construe them in the light mo st favorable to the plaintiff. Waller , 932 F.3d at 1282. “Conclusory allegations a re not entitled to the assump tion of truth. In fact, we disregard conclusory statements and look to the rem aining factual allegations to see whether Plaintiff[] ha[s] stated a pl ausible claim.” Brooks v. Mentor Worldwide LLC , 985 F.3d 1272, 1281 (10th Cir.) (ci tation and quotations omitted), cert. denied , 142 S. Ct. 47 7 (2021). “A claim has facial plausib ility when the plaintiff pl eads factual content that allows the court to draw th e reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). “Where a complaint pleads facts th at are merely consistent with a defendant’s liability, it stops short of the line between possibility and pl ausibility of entitle ment to relief.” Id. (quotations omitted). Breach of Duty of Loyalty LS3, challenging dismissal of its breach of loyalty clai m, argues (1) the district court erred by considering the Evans email, (2) the email was hearsay, and (3) the Appellate Case: 21-1385 Document: 010110725724 Date Filed: 08/17/2022 Page: 78 court’s determination that LS3 had already lost the bridge contract when Ms. Evans sent the email was contrary to the ame nded complaint. The Cherokee Defendants argue LS3 forfeited these argum ents because LS3 did not ra ise them in its opposition to the motions to dismiss and waived them through its “failu re to argue for plain error and its application on appeal . . . [which] surely marks the end of the road for an argument for reversal not first pres ented to the district court.” Richison v. Ernest Grp., Inc. , 634 F.3d 1123, 1131 ( 10th Cir. 2011). We agree in part. LS3 did not preserve its argument that the district court’s considering the Evans email was improper, nor did it contend in dist rict court that the email was hearsay. But LS3 argued in opposition to th e motions to dismiss that, according to its amended co mplaint, the Evans email preceded the award of the bridge contract. See Aplt. App. vol. 2 at 182 (“As LS3 stated in the Amended Complaint, by communicating with and pr oviding information to CNSP about not only LS3’s business but also about the Em ployees’ intentions to jump ship, the Employees enabled and motivated the gover nment to make the switch from LS3 to [the] Cherokee Defendants.” (quotations omitted)). The district court, relying on the st atement in the Evans email that the Cherokee Defendants “ha[d] been notified” th at they “are being awarded” the bridge contract, id. at 105, found that the bridge contr act had been awarded. Looking at the specific prohibitions in the IP-NDAs and EAs, the court further c oncluded that “the plain language of these duty of loyalty pr ovisions only prevent a current employee from generally interfering with a current or active business opportunity. But because Appellate Case: 21-1385 Document: 010110725724 Date Filed: 08/17/2022 Page: 89 [LS3] had already lost the contracts, [t he] [I]ndividual [D]efenda nts could not have violated the duty of loyalty provisions.” Id. vol. 3 at 257. We agree that the duty of loyalty provi sions prohibited only interference with a current or active business opportunity. So if LS3 ha d already lost the bridge contract by the time of the Evans email, it s claim for breach of l oyalty would fail. But under standards of review applicable to a motion to dismiss, the district court should not have inferred from the Evans email that LS3 “had already lost the contracts.” Aplt. App. vol. 3 at 257. When reviewing a document referenced in a complaint, although a court “may look to the contents of a refere nced document itself rather than solely to what the complaint alleges the c ontents to be . . . such documents may properly be considered only fo r what they contain, not to prove the truth of their contents.” Emps.’ Ret. Sys. of R.I. v. Williams Cos. , 889 F.3d 1153, 1158 (10th Cir. 2018) (quotati ons omitted). Moreover, the email either did not say the bridge contract had been awarded or was ambiguous on that point. It said the contract was “being awarded. ” Taking the allegations in the amended complaint as true and construing them in the light most favorable to LS3, see Waller , 932 F.3d at 1282, we conclude the amended complain t plausibly alleged that LS3 was still competing for the bridge contract wh en Ms. Evans emailed the Individual Defendants. We therefore reverse the district court’ s dismissal of the portion of the breach of contract claim alleging a breach of the duty of loyalty in the Individual Defendants’ IP-NDAs and EAs. Appellate Case: 21-1385 Document: 010110725724 Date Filed: 08/17/2022 Page: 910 Breach of Confidentiality LS3’s remaining challenge to dismissal of the breach of cont ract claim fails. The district court concl uded that none of the info rmation that the Cherokee Defendants requested from the Individual Defendants in the Evans email or the questionnaire was confidential, so the court said there was no breach of the nondisclosure provisions. The email e xplicitly disclaimed any request for confidential information. And although LS 3 asserts it “does not concede that the information requested by the questionnaire wa s not confidential and/or did not seek or sweep up confidential information,” Aplt. Opening Br. at 22, it has waived that argument because it has failed to expl ain why any of the ten questions on the questionnaire solicited prot ected information. See Bronson v. Swensen , 500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e routinely have d eclined to consider arguments that are not raised, or are in adequately presented, in an appellant’s openi ng brief.”). LS3 argues the district court prem aturely dismissed its breach of confidentiality claim before allowing discovery on what information the Individual Defendants shared and whether that information was confid ential. LS3 points to its allegations that, “on information and belief,” the information the Individual Defendants shared “was not li mited to” what the questionnair e solicited. Aplt. App. vol. 2 at 17. LS3’s argument an d allegations fall short. First, LS3 did not advance this ar gument—that dismissal was premature without discovery—in its respo nses to the motions to dism iss in district court and therefore forfeited it. Appellate Case: 21-1385 Document: 010110725724 Date Filed: 08/17/2022 Page: 1011 Second, because the amended complaint fai led to allege what information the Individual Employees shared, the conclu sory factual allega tions “are merely consistent with,” and not indicative of, the Cherokee a nd Individual Defendants’ liability, and therefore “stop[] s hort of the line between possi bility and plausibility of entitlement to relief.” Iqbal , 556 U.S. at 678 (quot ations omitted). Third, LS3 cites no persuasive authority to support its contention that the court should have allowed discovery before decidi ng whether to dismiss its claim. And because LS3 did not adequately plead its b reach of confidentiality claim, it was not entitled to proceed to discovery. See Ghailani v. Sessions , 859 F.3d 1295, 1304 (10th Cir. 2017) (“[T]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements . . . no longer suffice to ‘unlock the doors of discovery’ . . . .” (quoting Iqbal , 556 U.S. at 678)). Intentional Interference with Co ntract and Civil Conspiracy Because the district cour t dismissed all aspects of LS3’s breach of contract claim, it also dismissed th e intentional interfe rence with contract a nd civil conspiracy claims. Both require LS3 to prove breach of the underlying employment contracts. See Mem’l Gardens, Inc. v. Olympi an Sales & Mgmt. Consultants, Inc. , 690 P.2d 207, 210 (Colo. 1984) (rec ognizing liability for intent ional interference requires “inducing or otherwise causi ng [a] third person not to perfo rm [a] contract” (quoting Restatement (Second) of Torts § 766 (1977)); More v. Johnson , 568 P.2d 437, 440 (Colo. 1977) (“In a civil conspiracy ac tion, the conspiracy is not actionable per se .”). Appellate Case: 21-1385 Document: 010110725724 Date Filed: 08/17/2022 Page: 1112 We reverse the dismissal of those claims to the extent they are derivative of LS3’s claim for breach of the duty of loyalty pr ovisions of the IP -NDAs and EAs. Misappropriation LS3’s challenge to the district court’s dismissal of its st atutory claims for misappropriation of trade secrets fails beca use the amended complaint did not identify any trade secrets that may have been misappropriated. Under Colorado’s Uniform Trade Secrets Act, “[ t]rade secret’ means the whole or any portion or phase of any . . . information relating to any bu siness or profession which is secret and of value.” Colo. Rev. Stat. § 7-74-102. Similarly, under the federal Defend Trade Secrets Act, information is prot ectible as a trade secret onl y if it “derives independent economic value, actual or potential, fr om not being generally known to, and not being readily ascertainable through proper means by, another person who can obtain economic value from the disclosure or us e of the information.” 18 U.S.C. § 1839(3)(B). The amended complaint lacked allega tions identifying the information the Cherokee Defendants acquired from the Indivi dual Defendants that may have been a protected trade secret. In fact, LS3 acknowledges that it “could not specifically say exactly what trade se crets were stolen,” but it argues that providing this information is “the function of the disc overy process under a notice pleading standard.” Aplt. Opening Br. at 27, an argument it failed to make in district court. And LS3 again Appellate Case: 21-1385 Document: 010110725724 Date Filed: 08/17/2022 Page: 1213 fails to cite convincing author ity for its discovery argument. 4 Under Iqbal , because LS3 failed to allege what trade secrets the Cherokee Defendants misappropriated, its allegations “stop[] short of the line between possibility and plau sibility of entitlement to relief.” Iqbal , 556 U.S. at 678 (quotations omitte d). LS3’s failure to state a plausible claim precluded it fro m proceeding to discovery. See Ghailani , 859 F.3d at 1304. We therefore affirm the district court’s dismissal of LS3’s claims for misappropriation of trade secrets.
III. CONCLUSION We reverse the district court’s dismis sal of the portion of LS3’s breach of contract claim alleging th e Individual Defendants breached the duty of loyalty provisions of the IP-NDAs and EAs. We re verse the dismissal of LS3’s claims for intentional interference with contract and ci vil conspiracy to the extent those claims are derivative of LS3’s claims for breach of the duty of loyalty. In all other respects, we affirm the judgment of the district c ourt. We remand for further proceedings consistent with this opinion.

Entered for the Court

Scott M. Matheson, Jr. Circuit Judge

4 In its reply brief, LS3 cites SGS Acquisition Co. Ltd. v. Linsley , 352 F. Supp. 3d 1109, 1122 (D. Colo. 2018 ), but the district court’s summary judgment order in that case did not address pleading standards to survive a motion to dismiss. Appellate Case: 21-1385 Document: 010110725724 Date Filed: 08/17/2022 Page: 13