United States Court of Appeals

Fifth Circuit

FILED

September 17, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-21015

GENERAL UNIVERSAL SYSTEMS INC; WORLD TRADE SYSTEMS INC

Plaintiffs - Appellants

JOSE S LOPEZ

Plaintiff - Intervenor Defendant -

Appellant

ELI NASSAR

Third Party Defendant - Appellant

v.

HAL INC; ET AL

Defendants

HAL INC; JOE R HERRIN; ERNEST ALLEN PARKIN

Defendants - Third Party Plaintiffs 

Appellees

PANALPINA INC; FRITZ COMPANIES INC; GLOBAL SOUTHPORT

SERVICES INC; UNITED STATES CRATING INC; TRANSWORLD

LOGISTICS INC

Defendants - Appellees

LARRY MASON LEE; LARRY MASON LEE & ASSOCIATES

Intervenor Plaintiffs - Appellees
No. 05-21015

2

Appeal from the United States District Court 

for the Southern District of Texas

Before REAVLEY, GARZA, and DENNIS, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

General Universal Systems, Inc. (“GUS”) originally sued HAL, Inc.

(“HAL”), Joseph Herrin, and Ernest Allen Parkin (“HAL Defendants”) for

numerous state and federal claims for stealing proprietary software. GUS also

sued a number of companies (“Customer Defendants”) to which HAL licensed the

software program. We previously ruled on this case in General Universal

Systems v. Lee, 379 F.3d 131 (5th Cir. 2004) and determined that a remand to

the district court was appropriate to settle the sole remaining claim of trade

secret misappropriation under Texas law. 

On remand, the magistrate judge granted summary judgment to the HAL

Defendants, finding that the statute of limitations had expired prior to the

initiation of the lawsuit. Further, the magistrate judge granted summary

judgment to the Customer Defendants, finding that the claims against those

parties were not included in the scope of the remand from this court. 

We must now determine the accrual date of an alleged trade secret

misappropriation and whether the claims against the Customer Defendants

were within the scope of our remand.

I

The facts of this case were thoroughly recounted in General Universal

Systems, 379 F.3d at 137-40. Therefore, we will only address those facts and

procedural history relevant to the claim of trade secret misappropriation.

In 1979, GUS developed a software program called CHAMPION PACKER

for Jose Lopez. CHAMPION PACKER was written in BASIC 4 computer
No. 05-21015

3

programming language. Later, Lopez created a program based on CHAMPION

PACKER but written in COBOL computer programming language instead of

BASIC 4; Lopez called the new derivative program LOPEZ COBOL and began

selling and leasing the program to clients through his company World Trade

Systems, Inc. One of those clients was Superior Packing, Inc., a company owned

by Herrin. In 1988, Lopez leased a computer to Superior Packing and licenced

Superior Packing to use LOPEZ COBOL. At that time, Superior Packing also

had a license from GUS to use CHAMPION PACKER; the GUS license

originated in 1985. Both license agreements restricted the use and distribution

of the relevant computer programs.

In 1992 Herrin and Parkin agreed to work with Lopez to develop and

market a new software program to succeed LOPEZ COBOL. The three intended

to form a corporation, HAL, Inc., to develop and market the software and then

split the shares and profits amongst each other. The program was to be based

in large part on LOPEZ COBOL. They began working on the design of the

program, called MEPAW, in the summer of 1992. Beginning in December 1992,

Lopez spent seven months incarcerated in a Mexican prison. In a letter of March

22, 1993, Herrin notified Lopez that he and Parkin agreed to oust Lopez from

their agreement because Lopez’s incarceration prevented him from fulfilling his

duties. Through HAL, Herrin and Parkin continued the development of

MEPAW until August or September 1993, when they began marketing MEPAW

to potential clients. 

Just prior to the ousting of Lopez, in February 1993, Herrin sent Lopez a

letter stating that Superior Packing was terminating its license agreement with

World Trade Systems for the use of LOPEZ COBOL. In March 1993, Lopez’s son

went to Superior Packing to pick up World Trade Systems’s computer, which

contained the LOPEZ COBOL software, but was told that Superior Packing was

not finished with the program. Lopez claims that his son then entered an oral
No. 05-21015

1 These companies and Panalpina, Inc. are the defendants referred to as the “Customer

Defendants.” Global Southport Services, Inc. was originally also named as a Customer

Defendant, but it was dismissed from the case for failure to serve process. See Final Judgment

of District Court, Sep. 15, 2000 at *1-2. That dismissal was never challenged, and Global

Southport Services, Inc. was not named as a defendant - appellee in the prior appeal.

Therefore, Global Southport Services, Inc. is not subject to GUS’s claims in this case.

4

agreement to allow Superior Packing to use the computer and software until

July 1993, and he produced a receipt showing that Superior Packing paid a

license fee to World Trade Systems in July 1993.

Although HAL began demonstrating MEPAW in the fall of 1993, it did not

license the software to any customers until October 1994; the first licensee was

Panalpina, Inc. By then, Lopez and World Trade Systems assigned all their

rights in LOPEZ COBOL to GUS. In November 1994, GUS put Panalpina on

notice that MEPAW was improperly derived from its packing software. HAL

continued to licence MEPAW to other customers as well: Fritz Companies, Inc.;

United States Crating, Inc.; and Transworld Logistics, Inc.1 GUS asserts that

all of the Customer Defendants were on notice.

GUS filed suit againstthe HAL Defendants and the Customer Defendants

in May 1995. In that complaint, GUS raised numerous claims, both state and

federal, most of which lost on summary judgment; a contract claim wentto trial,

but the magistrate judge entered judgment as a matter of law for the

defendants. On appeal, we affirmed the magistrate judge’s ruling on all claims,

except the misappropriation of trade secrets claim, on which we reversed and

remanded. Following the remand, the magistrate judge granted summary

judgment to the defendants, finding the trade secrets misappropriation claim

against the HAL Defendants was barred by Texas’s two-year statute of

limitations and the related claim against the Customer Defendants was outside

the scope of our remand.
No. 05-21015

2

In 1997, Texas law was amended to extend the statute of limitations period to three

years. Tex. Civ. Prac. & Rem. Code § 16.010(a). This statute also added a discovery rule to

the claim, such that a claim for trade misappropriation did not accrue until the plaintiff knew

of or should have known of the violation. The Texas Supreme Court had previously ruled that

the discovery rule was not applicable to claims of trade secret misappropriation. Computer

Assocs. Int’l v. Altai, Inc., 918 S.W.2d 453, 457 (Tex. 1996).

5

II

“We review a grant of summary judgment de novo, applying the same

standards as the district court.” Triple Tee Golf, Inc. v. Nike, Inc., 485 F.3d 253,

261 (5th Cir. 2007) (footnote omitted). Summary judgment is appropriate if the

moving party can show “that there is no genuine issue as to any material fact

and that the moving party is entitled to a judgment as a matter of law.” Fed. R.

Civ. P. 56(c). We view the evidence in the light most favorable to the non-moving

party))in this case, GUS. Triple Tee Golf, 485 F.3d at 261.

A

We look first at the magistrate judge’s determination that GUS was time

barred from raising its trade secret misappropriation claim against the HAL

Defendants on May 23, 1995, the date GUS initially filed its complaint. All

parties agree that this claim was subject to a two-year statute of limitations.2

Therefore, our task is to determine whether all of GUS’s claims of trade secret

misappropriation accrued before May 23, 1993.

The Texas courts have held that “a cause of action accrues when a

wrongful act causes some legal injury, even if the fact of injury is not discovered

until later, and even if all resulting damages have not yet occurred.” S.V. v.

R.V., 933 S.W.2d 1, 4 (Tex. 1996). Under Texas law, there are three elements

needed to establish the injury of trade secret misappropriation: “(1) a trade

secret exists; (2) Defendants acquired the trade secret by breach of a confidential

relationship or other improper means; and (3) Defendants used the trade secret

without authorization.” Triple Tee Golf, 485 F.3d at 261 (citing Guy Carpenter
No. 05-21015

3 GUS is not seeking relief under the Texas Theft Liability Act. Tex. Civ. Prac. & Rem.

Code §§ 134.002(2), 134.003. Although, in various pleadings, GUS has made reference to

“trade secret theft,” the complaint alleges common-law trade secret misappropriation, and GUS

has not briefed the claim as being brought under the Texas Theft Liability Act.

6

& Co. v. Provenzale, 334 F.3d 459, 467 (5th Cir. 2003) (applying Texas common

law)).3

In our prior opinion in this case, only the first and second elements were

at issue, and we held that there was a genuine issue of material fact as to

each))namely, whether Lopez sufficiently protected his computer software

program and whether the agreement between Lopez, Herrin, and Parkin

constituted a confidential relationship for the purposes of establishing the

elements of the claim. General Universal Sys., 379 F.3d at 150. On remand, the

magistrate judge held thatit did not need to determine whether LOPEZ COBOL

was a trade secret and Lopez’s agreement with Herrin and Parkin was a

confidential relationship, because even if LOPEZ COBOL were a trade secret

and Lopez’s agreement were a confidential relationship, GUS’s claim accrued

before May 23, 1993 and was therefore time barred by the two-year statute of

limitations. GUS makes three challenges to this ruling. First, it claims that the

HAL Defendants breach of a confidential relationship happened after May 23,

1993. Second, the HAL Defendants did not improperly use LOPEZ COBOL until

after May 23, 1993. And third, trade secret misappropriation is a continuing tort

so the claim did not accrue until the HAL Defendants stopped using LOPEZ

COBOL, which was after May 23, 1993.

1

The magistrate judge applied the ousting of Lopez from HAL as the date

on which the relevant confidential relationship would have been dissolved;

therefore, the magistrate judge treated any “use” of LOPEZ COBOL after the

ousting as the date on which the action accrued. GUS argues that the

confidential relationship issue is more complicated, because aside from the
No. 05-21015

7

agreement between Lopez, Herrin, and Parkin to form HAL, there are two other

agreements relevant to our analysis))specifically, the license agreement

between GUS and Superior Packing, which allows Superior Packing to use

CHAMPION PACKER, and the license agreement between World Trade

Systems and Superior Packing, which allows Superior Packing to use LOPEZ

COBOL. GUS contends that the CHAMPION PACKER license agreement never

expired because Superior Packing never returned the computer and software,

and the LOPEZ COBOL license agreement expired at the end of July 1993. As

a result, GUS argues that Herrin and Parkin were authorized to use

CHAMPION PACKER and LOPEZ COBOL even after they ousted Lopez from

the HAL group.

Although during that time, Herrin was the president of Superior Packing

and a member of the HAL group, the licenses granted to Superior Packing did

not authorize Herrin to utilize the programs to develop a competing software

program for a third-party corporation, HAL, which is not a party to either license

agreement. It is undisputed that Herrin and Parkin relied on LOPEZ COBOL,

and therefore allegedly relied on CHAMPION PACKER, to develop MEPAW for

HAL. And GUS even stipulates that HAL, rather than Superior Packing, had

a commercially viable version of MEPAW based on LOPEZ COBOL in March

1993. Because these actions cannot be said to be within the scope of GUS’s and

World Trade System’s respective licensing agreements with Superior Packing,

these license agreements do not sanction the HAL Defendants’ development of

MEPAW.

Therefore, the magistrate judge properly focused on the agreement

between Lopez, Herrin, and Parkin as the only possible basis for a breached

confidential relationship supporting the claim of trade secret misappropriation.

Because Lopez was ousted from the HAL group in March 1993, any use of
No. 05-21015

4 The magistrate judge defined “use” as “‘[a]ny misappropriation of trade secrets,

followed by an exercise of control and dominion [sic], is considered a commercial use.’”

Memorandum and Order of Magistrate Judge, July 29, 2005 at *11 (quoting Garth v. Staktek

Corp., 876 S.W.2d 545, 548 (Tex. App. 1994)) (second modification added). This definition,

though, has never been employed or approved by the Texas Supreme Court and is not widely

used in Texas courts otherwise. Further, it unnecessarily confuses the standard used to define

conversion. Green Int’l v. Solis, 951 S.W.2d 384, 391 (Tex. 1997) (“Conversion is defined as the

wrongful exercise of dominion and control over another's property in denial of or inconsistent

with his rights.”) (citing Bandy v. First State Bank, 835 S.W.2d 609, 622 (Tex. 1992)).

8

LOPEZ COBOL by the HAL Defendants after March 1993 would mark the

accrual of Lopez’s claim of trade secret misappropriation.

2

GUS also challenges the magistrate judge’s definition of“use” with respect

to the third element oftrade secret misappropriation. The magistrate judge held

that the HAL Defendants “used” LOPEZ COBOL when they refused to return

World Trade Systems’s computer containing LOPEZ COBOL in March 1993.

The Texas Supreme Court has stated, “A cause of action for misappropriation of

trade secrets accrues when the trade secret is actually used.” Computer Assocs.

Int'l v. Altai, Inc., 918 S.W.2d 453, 455 (Tex. 1996) (emphasis added) (citing

Hyde Corp. v. Huffines, 314 S.W.2d 763, 769 (Tex. 1958)). Texas intermediate

courts have stated, “‘Use’ of a trade secret means commercial use, by which a

person seeks to profit from the use of the secret.” Trilogy Software, Inc. v.

Callidus Software, Inc., 143 S.W.3d 452, 464 (Tex. App. 2004) (citing Atlantic

Richfield Co. v. Misty Prods., Inc., 820 S.W.2d 414, 421 (Tex. App. 1991)).4 And

the Restatement Third of Unfair Competition helpfully expands on the definition

of “use”: 

As a general matter, any exploitation of the trade secret that is

likely to result in injury to the trade secret owner or enrichment to

the defendant is a “use” under this Section. Thus, marketing goods

that embody the trade secret, employing the trade secret in

manufacturing or production, relying on the trade secretto assist or

accelerate research or development, or soliciting customers through
No. 05-21015

5 Sections on unfair competition, including trade secret misappropriation, appeared in

Restatement First of Torts (1939), but were left out of Restatement Second of Torts (1957).

These sections now appear in Restatement Third of Unfair Competition. Although Texas

courts still often cite to the Restatement of Torts, the Texas Supreme Court has at times relied

on the Restatement 3d of Unfair Competition. See, e.g., In re Bass, 113 S.W.3d 735, 739-40

(Tex. 2003) (adopting the criteria for establishing a trade secret employed in Restatement

Third of Unfair Competition).

9

the use of information that is a trade secret (see § 42, Comment f)

all constitute “use.”

Restatement Third of Unfair Competition, § 40.5

Based on these definitions, it is clear the HAL Defendants “used” LOPEZ

COBOL, not by refusing to return World Trade System’s computer in March

1993, but by continuing to rely on LOPEZ COBOL, either directly or those

portions incorporated into MEPAW, to accelerate the development and

marketability of MEPAW, as GUS alleges. This continued use of LOPEZ

COBOL certainly represents an exploitation of LOPEZ COBOL that was likely

to result in injury to Lopez and enrichment to the HAL Defendants, and it

occurred both after the ousting of Lopez and before May 23, 1993, two years

prior to GUS filing the complaint.

3

GUS further argues that trade secret misappropriation is a continuing

tort. “In a continuing-tort case, the wrongful conduct continues to effect

additional injury to the plaintiff until that conduct stops.” Upjohn Co. v.

Freeman, 885 S.W.2d 538, 542 (Tex. App. 1994) (citing Arquette v. Hancock, 656

S.W.2d 627, 629 (Tex. App. 1983)). For continuing torts, “the cause of action is

not complete and does not accrue until the tortious acts have ceased.” Twyman

v. Twyman, 790 S.W.2d 819, 821 (Tex. App. 1990) (citing Adler v. Beverly Hills

Hosp., 594 S.W.2d 153, 156 (Tex. App. 1980)). Because HAL continued to use

LOPEZ COBOL after May 23, 1993, GUS argues that HAL’s wrongful conduct

continued into the period covered by the statute of limitations.
No. 05-21015

10

Although often used by Texas intermediate courts, “[t]he Texas Supreme

Court has not ‘endorsed nor addressed’ the concept of the continuing tort

doctrine.” Walston v. Stewart, 187 S.W.3d 126, 129 (Tex. App. 2006) (quoting

Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816 n.8 (Tex. 2005)). Further, the

Texas courts have never directly addressed the question of whether trade secret

misappropriation was a continuing tort prior to the 1997 legislation))legislation

that explicitly precludes treating trade secret misappropriation as a continuing

tort. Tex. Civ. Prac. & Rem. Code § 16.010(b). Other jurisdictions which have

addressed this question are split. Compare Underwater Storage, Inc. v. United

States Rubber Co., 371 F.2d 950, 953 (D.C. Cir. 1966) (finding that trade secret

misappropriation is a continuing tort); Anaconda Co. v. Metric Tool & Die Co.,

485 F. Supp. 410, 426 (E.D. Pa. 1980) (same) with AVCO Corp. v. Precision Air

Parts, Inc., 676 F.2d 494, 498 (11th Cir. 1982) (finding that trade secret

misappropriation is not a continuing tort); Monolith Portland Midwest Co. v.

Kaiser Aluminum & Chemical Corp., 407 F.2d 288, 292-93 (9th Cir. 1969)

(same).

A close examination of Texas cases,though, reveals thatTexas would have

unlikely treated trade secret misappropriation as a continuing tort prior to the

1997 legislation. In K & G Oil Tool & Service Co. v. G & G Fishing Tool Service,

314 S.W.2d 782 (Tex. 1958), the Texas Supreme Court stated, “The basis of the

trade secret case is a ‘breach of a contract or wrongful disregard of confidential

relationships.’” Id. at 787 (citation omitted). Jurisdictions that adopt the

“breach theory” of trade secret misappropriation, as opposed to the “property

theory,” generally do not treat trade secret misappropriation as a continuing

tort. See, e.g., Monolith, 407 F.2d at 293 (“California does not treat trade secrets

as if they were property. It is the relationship between the parties at the time

the secret is disclosed that is protected. . . . The fabric of the relationship once

rent is not torn anew with each added use or disclosure, although the damage
No. 05-21015

6 This case has a long and complicated procedural history, including an opinion from the

Texas Supreme Court, Computer Assocs. Int’l v. Altai, Inc., 918 S.W.2d 453 (Tex. 1996),

answering certified questions from the Second Circuit. Unfortunately, that opinion of the

Texas Supreme Court only addresses whether Texas recognizes a discovery rule for trade

secret misappropriation and does not discuss the concept of a continuing tort. The Second

Circuit opinion similarly does not address the concept of a continuing tort but, in that case, the

defendant used the trade secret from, at the latest, 1985 until August 1988, when the plaintiff

filed suit. Id. at 454-55. If the court had treated trade secret misappropriation as a continuing

tort, then it could not have been deemed time barred, since the trade secret was being used

until the date of suit was filed.

11

suffered may thereby be aggravated.”). Additionally, one intermediate Texas

court has stated, “[A]ppellants’ cause of action [for trade secret

misappropriation] is barred by the applicable statute of limitations, as suit was

not brought within two years of the occurrence of the first breach.” J.C. Kinley

Co. v. Haynie Wire Line Service, Inc., 705 S.W.2d 193, 198 (Tex. App. 1985)

(emphasis added). Such a statement is inconsistent with treating the claim as

a continuing tort. See also Tavana v. GTE Southwest, No. 05-97-00664-CV, 1999

Tex. App. LEXIS 5365, at *12 (Tex. App. 1999) (applying the pre-1997 cause of

action and treating the accrual date as the date of initial use). Other

jurisdictions applying Texas law have reached similar conclusions. See

Computer Assocs. Int’l v. Altai, Inc., 61 F.3d 6, 7-8 (2d Cir. 1995) (applying Texas

law and treating a claim as time barred using an accrual date based on the date

of initial breach rather than last date of continued use);6Intermedics, Inc. v.

Ventritex, Inc., 822 F. Supp. 634, 643-44 (N.D. Cal. 1993) (rejecting, after a

thorough analysis, the argument that Texas law would treat trade secret

misappropriation as a continuing tort).

Our caselaw similarly suggests thattrade secret misappropriation should

not be treated as a continuing tort under Texas law. In Daboub v. Gibbons, 42

F.3d 285 (5th Cir. 1995), although we did not address the specific claim of trade

secret misappropriation, we refused to treat claims of misappropriation and

unfair competition as a continuing tort under Texas common law. Id. at 291-92.
No. 05-21015

12

The claims stemmed from one band allegedly copying the song of another band.

We held that the defendant-band’s continued use of the song, through record

sales and live performances, demonstrates the “concept of continuing damages,

rather than a continuing tort.” Id. at 291; see also Skytop Brewster Co.v. Skytop

Int’l, No. H-93-0204, 1993 U.S. Dist. LEXIS 20472, at *8 (S.D. Tex. 1993)

(“Because Texas has not recognized the applicability of the continuing tort

doctrine to a trade secrets claim, Blue Tee's misappropriation of trade secrets

counterclaim is not thereby saved from operation of the two year statute of

limitations.”).

Based on the weight of caselaw, we decline to apply the concept of a

continuing tortto the Texas common law claim oftrade secret misappropriation,

as it was applied prior to 1997. As a result, the magistrate judge properly

treated GUS’s claim of trade secret misappropriation against the HAL

Defendants as time barred.

B

This leaves the question of whether GUS’s claims against the Customer

Defendants are within the scope ofthe remand. The magistrate judge ruled that

the claims were not within the scope of the remand and, therefore, applying the

mandate rule, the magistrate judge granted summary judgment to the Customer

Defendants.

“‘We review de novo a district court’s interpretation of our remand order,

including whether the law-of-the--case doctrine or mandate rule forecloses any

of the district court’s actions on remand.’” United States v. Elizondo, 475 F.3d

692, 695 (5th Cir. 2007) (quoting United States v. Pineiro, 470 F.3d 200, 204 (5th

Cir. 2006)). 

“The mandate rule requires a district court on remand to effect our

mandate and to do nothing else.” United States v. Castillo, 179 F.3d 321, 329

(5th Cir. 1999) (citing United States v. Becerra, 155 F.3d 740, 753 (5th Cir.
No. 05-21015

13

1998)). Further, on remand the district court “must implement both the letter

and the spirit of the appellate court’s mandate and may not disregard the

explicit directives of that court.” United States v. Matthews, 312 F.3d 652, 657

(5th Cir. 2002) (quoting United States v. Becerra, 155 F.3d 740, 753 (5th Cir.

1998)). “In implementing the mandate, the district court must ‘take into account

the appellate court’s opinion and the circumstances it embraces.’” United States

v. Lee, 358F.3d 315, 321 (5th Cir. 2004) (quoting Sobley v. Southern Natural Gas

Co., 302 F.3d 325, 333 (5th Cir. 2002)). Because the mandate rule is a corollary

of the law of the case doctrine, it “compels compliance on remand with the

dictates of a superior court and forecloses relitigation of issues expressly or

impliedly decided by the appellate court.” Castillo, 179 F.3d at 329 (citation

omitted).

Our prior opinion and the circumstances it embraces disposed of any

issues related to the Customer Defendants through waiver. By failing to brief

any arguments against the Customer Defendants, GUS waived any claims

against the Customer Defendants. While our prior opinion did not explicitly

address the Customer Defendants nor any claim by GUS brought against them,

this is not surprising based on the absence of any arguments against the

Customer Defendants in GUS’s brief in the original appeal. GUS’s brief dealt

only with arguments against the summary judgment granted to the HAL

Defendants. Mere mention of the Customer Defendants in the opening sections

of the brief does not suffice to preserve arguments against them on appeal. See,

Justiss Oil Co., Inc. v. Kerr-McGee Refining Corp., 75 F.3d 1057, 1067 (5th Cir.

1996) (finding that failure to advance arguments in the body of the appellant’s

brief, even when those issues were referenced in the Statement of Issues section,

resulted in waiver of those arguments).

The disposition of the Customer Defendants’ claims is also supported by

our treatment of the trade secret claim in our prior opinion. In discussing the
No. 05-21015

14

trade secret misappropriation issue, our prior opinion references reversal of the

summary judgment motion in favor of HAL and HAL alone. General Universal

Systems, 379 F.3d at 152 (reversing the “district court’s grant of summary

judgment in favor of HAL”). Further, the opinion’s concluding paragraph

references the seemingly more general Case Number 01-21114, but only refers

to a single trade secret claim. Id. at 159. Use of the singular claim would be

strange if the panel understood Case Number 01-21114 to include multiple

defendants facing varied theories of liability.

Because GUS failed to brief, and thus waived, any arguments against the

Customer Defendants on appeal, the district court’s judgment finally disposed

of any claims against those defendants. As a result, our remand in the prior

opinion did not include any claims against the Customer Defendants. 

Therefore, we affirm the magistrate judge’s grant of summary judgment to the

Customer Defendants.

III

We AFFIRM the magistrate judge’s grant of summary judgment to the

HAL Defendants and to the Customer Defendants.