14-976-cv 

Big Vision Private Limited v. E.I. Du Pont Nemours and Co. 

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT 

SUMMARY ORDER 

 

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or 

after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and 

this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a 

party must cite either the Federal Appendix or an electronic database (with the notation “summary 

order”). A party citing a summary order must serve a copy of it on any party not represented by 

counsel.

1 At a stated term of the United States Court of Appeals for the Second Circuit, held at 

2 the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 

on the 21st 3 day of May, two thousand fifteen. 

4 

5 PRESENT: 

6 ROBERT D. SACK, 

7 BARRINGTON D. PARKER, 

8 SUSAN L. CARNEY, 

9 Circuit Judges.

10 _________________________________________ 

11 

12 BIG VISION PRIVATE LIMITED, 13 

14 Plaintiff-Appellant, 

15 

16 v. 14-976-cv 

17 

18 E.I. DU PONT DE NEMOURS AND COMPANY, 

19 

20 Defendant-Appellee. 

21 __________________________________________

22 

23 FOR PLAINTIFF-APPELLANT: JEFFREY A. LAMKEN (Michael G. Pattillo, 

24 Jr., on the brief), MoloLamken LLP, 

25 Washington, D.C. 

26 

27 FOR DEFENDANT-APPELLEE: ADAM H. CHARNES (Thurston H. Webb, 

28 on the brief), Kilpatrick Townsend & 

29 Stockton LLP, Winston-Salem, NC; 

30 (Michael J. Berchou and Anna R. 

31 Mercado, on the brief), Phillips Lytle LLP, 

32 Buffalo, NY. 
 

2 

1 

2 Appeal from a judgment of the United States District Court for the Southern District 

3 of New York (Failla, J.). 

4 UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 

5 ADJUDGED, AND DECREED that the judgment entered on March 4, 2014 is 

6 AFFIRMED. 

7 Plaintiff Big Vision Private Limited (“Big Vision”), a digital printing company 

8 incorporated in India, appeals the District Court’s award of summary judgment in favor of 

9 defendant E.I. du Pont de Nemours and Company (“DuPont”), a Delaware corporation. 

10 The case arises from Big Vision’s efforts to develop a new recyclable banner material to use 

11 for its own printing and to sell to others. In pursuit of that goal, Big Vision conducted joint 

12 laboratory trials with Davis-Standard, an equipment manufacturer. With Big Vision’s 

13 consent, DuPont was invited to participate in those trials because of its technical expertise 

14 and because Big Vision was interested in testing a particular recyclable resin, known as 

15 Entira, developed by DuPont. 

16 Three laboratory trials were held at Davis-Standard in 2008 and 2009. Thereafter, Big 

17 Vison’s relations with DuPont and Davis-Standard soured, and in late 2009 Big Vision 

18 terminated both relationships. In November 2011, Big Vision filed the instant action against 

19 DuPont, claiming (1) breach of contract, (2) misappropriation of trade secrets, and (3) unfair 

20 competition. In essence, Big Vision asserted that, having learned Big Vision’s technical 

21 know-how and confidential business information during the laboratory trials, one division of 

22 DuPont shared Big Vision’s information with another division of DuPont, which then 

23 improperly used it to compete with Big Vision. 

24 DuPont moved for summary judgment. In a careful and detailed opinion, the 

25 District Court granted summary judgment to DuPont on all three claims. Big Vision timely 

26 appealed the grant of summary judgment on its unfair competition claim only. We assume 

27 the parties’ familiarity with the underlying facts and procedural history of the case, to which 

28 we refer only as necessary to explain our decision to affirm. 
 

3 

1 We review a grant of summary judgment de novo, and we will affirm only if there is no 

2 genuine issue of material fact and the moving party is entitled to judgment as a matter of law. 

3 See Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 44 (2d Cir. 2015). In conducting our 

4 review, we view the record in the light most favorable to the non-moving party, Big Vision, 

5 and draw all reasonable inferences in its favor. See id. 

6 Under New York law (which the parties agree governs here), the tort of unfair 

7 competition is a “broad and flexible doctrine” that has been described as “encompassing any 

8 form of commercial immorality, or simply as endeavoring to reap where one has not sown; it 

9 is taking the skill, expenditures and labors of a competitor, and misappropriating for the 

10 commercial advantage of one person a benefit or property right belonging to another.” Roy 

11 Export Co. Establishment of Vaduz, Liechtenstein v. Columbia Broad. Sys., Inc., 672 F.2d 1095, 1105 

12 (2d Cir. 1982) (internal alterations, citations, and quotation marks omitted). The essence of 

13 the tort “is that the defendant misappropriated the fruit of plaintiff’s labors and expenditures 

14 by obtaining access to plaintiff’s business idea either through fraud or deception, or an abuse 

15 of a fiduciary or confidential relationship.” Telecom Int’l Am., Ltd. v. AT & T Corp., 280 F.3d 

16 175, 197 (2d Cir. 2001). A claim will fail where a plaintiff cannot demonstrate “the bad faith 

17 misappropriation of a commercial advantage which belonged exclusively to him.” LoPresti v. 

18 Mass. Mut. Life Ins. Co., 820 N.Y.S.2d 275, 277 (App. Div. 2d Dep’t 2006). 

19 Big Vision argues primarily that the District Court erred in concluding that “sharing 

20 information about Big Vision between divisions at DuPont did not constitute a breach of 

21 contract or misappropriation of a trade secret, and on that basis, cannot constitute bad 

22 faith.” Big Vision Private Ltd. v. E.I. DuPont De Nemours & Co., 1 F. Supp. 3d 224, 276 

23 (S.D.N.Y. 2014). Big Vision notes, correctly, that a claim of unfair competition requires 

24 neither a finding of breach of contract nor the misappropriation of a trade secret. It 

25 contends that the District Court mistakenly believed otherwise and wrongly dismissed its 

26 claim on that basis. 

27 Read in context, the District Court’s statements on this count do not imply a 

28 misperception that a claim of unfair competition always requires a breach of contract or 

29 misappropriation of trade secrets or that resolution of Big Vision’s unfair competition claim 
 

4 

1 turned exclusively on the court’s resolution of Big Vision’s other tort and contract claims. 

2 Rather, reviewing the actions of DuPont that Big Vision alleges support its unfair 

3 competition claim, the court first found that in this case there was neither a breach of contract 

4 nor misappropriation of a trade secret—reasoning that it therefore could not ground the 

5 necessary finding of bad faith on such a breach or misappropriation. The court then 

6 properly proceeded to consider other candidate acts, such as DuPont’s “sharing information 

7 within [the] company,” as possibly supporting Big Vision’s allegations of bad faith. Id. 

8 Understandably, the District Court focused on the question whether DuPont demonstrated 

9 bad faith by breaching a contract or misappropriating trade secrets, because that was an 

10 approach presented by Big Vision in its pleadings and throughout the litigation. See J.A. 36-

11 37, ¶¶ 71-73. 

12 Even if Big Vision did not rest its unfair competition claim on the success of its other 

13 claims, DuPont would be entitled to summary judgment on this count, for a simple reason: 

14 Big Vision failed to adduce evidence sufficient to raise a genuine issue of material fact as to 

15 whether DuPont actually “misappropriated the fruit of [Big Vision’s] labors and 

16 expenditures.” Telecom, 280 F.3d at 197. New York law is clear that, “[w]hatever the breadth 

17 and flexibility” of New York’s unfair competition tort, “it depends upon the allegation of 

18 facts that, if true, would constitute misuse of plaintiffs’ property.” Dow Jones & Co. v. Int’l 

19 Sec. Exch., Inc., 451 F.3d 295, 302 n.8 (2d Cir. 2006). Although a plaintiff need not establish 

20 misappropriation of a trade secret, then, to state a claim for unfair competition, it must 

21 establish that a defendant misappropriated or misused the plaintiff’s property or the fruit of 

22 its labors and expenditures. Big Vision asserts that DuPont misused confidential 

23 information that fell into two broad categories: technical and business. But Big Vision has 

24 failed to adduce evidence that DuPont actually utilized any of Big Vision’s confidential 

25 information at all. Thus, even if Big Vision’s internal sharing of information could be 

26 deemed to have been undertaken in bad faith, Big Vision’s claim would nonetheless fail 

27 because there is no evidence that the fruit of Big Vision’s labors or expenditures was 

28 misappropriated or misused. 
 

5 

1 First, despite its protestations to the contrary, Big Vision has not adduced evidence 

2 demonstrating that DuPont used any confidential technical information revealed by Big 

3 Vision. In its opinion, the District Court demonstrates that none of the products that 

4 DuPont sells utilizes Big Vision’s confidential information or technical know-how; and even 

5 if internal product testing conducted by DuPont can give rise to a claim of unfair 

6 competition—an uncertain premise—the record contains no evidence that DuPont actually 

7 conducted internal testing using any confidential information gleaned from Big Vision. 

8 Indeed, the record shows that the technical “innovations” claimed by Big Vision in its suit 

9 against DuPont were in fact publicly known. DuPont therefore could not be said to have 

10 misused or misappropriated those purported innovations. 

11 Second, Big Vision contends that DuPont “misappropriated its business information, 

12 including its business model, its recycling loop, the global banner market, and pricing 

13 strategies for banner sales.” Appellant’s Reply Br. at 24 (internal quotation marks omitted). 

14 But in this category, too, Big Vision has not proffered evidence of any such 

15 misappropriation. The evidence reflects that DuPont does not use a “recycling loop.” See 

16 Big Vision, 1 F. Supp. 3d at 245 n.24. Big Vision adduces no evidence that the pricing of 

17 DuPont’s banners was affected by Big Vision’s pricing strategies. And while there is 

18 evidence that Big Vision may have caused DuPont to realize that the “global banner market” 

19 was “much larger than [DuPont] expected,” J.A. 1634-35, Big Vision has failed to adduce 

20 evidence that DuPont acted on this insight in any way. Accordingly, Big Vision has failed to 

21 raise a genuine issue of fact as to whether DuPont “misappropriated the fruit of [Big 

22 Vision’s] labors and expenditures,” Telecom, 280 F.3d at 197, and its claim for unfair 

23 competition must fail. 

24 We have considered Big Vision’s remaining arguments and find them to be without 

25 merit. For the reasons set out above, the judgment of the District Court is AFFIRMED. 

26 FOR THE COURT: 

27 Catherine O’Hagan Wolfe, Clerk of Court