NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PROOFPOINT, INC.; CLOUDMARK, LLC, 

Plaintiffs-Appellants, 

 v. 

VADE USA, INC.; et al., 

Defendants-Appellees.

No. 23-16085 

D.C. No. 3:19-cv-04238-MMC 

MEMORANDUM*

PROOFPOINT, INC.; CLOUDMARK, LLC, 

Plaintiffs-Appellants, 

 v. 

VADE USA, INC.; VADE FRANCE, SAS, 

Defendants-Appellees, 

and 

OLIVIER LEMARIÉ, 

Defendant.

No. 23-16175 

D.C. No. 3:19-cv-04238-MMC 

Appeal from the United States District Court

for the Northern District of California

Maxine M. Chesney, District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

AUG 30 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Argued and Submitted August 12, 2024

San Francisco, California

Before: GRABER, CALLAHAN, and KOH, Circuit Judges.

Plaintiffs Proofpoint, Inc. and Cloudmark LLC, which are affiliated 

cybersecurity companies, brought this action under the Defend Trade Secrets Act, 

18 U.S.C. § 1836 et seq., against Vade, a rival company, and Vade’s former Chief 

Technology Officer, Oliver Lemarié. A jury found that Vade and Lemarié had 

misappropriated Plaintiffs’ trade secrets and that Vade’s misappropriation was 

willful and malicious. The jury awarded Plaintiffs approximately $13.5 million in 

damages for unjust enrichment but zero dollars for actual loss. In these timely 

appeals, Plaintiffs challenge the district court’s denials of their requests for a jury 

trial on exemplary damages, an adverse-inference instruction, injunctive relief, and 

attorney’s fees. We affirm.

1. The district court recognized that 18 U.S.C. § 1836(b)(3) is ambiguous 

because it begins by stating that “a court may” grant a list of remedies, some of 

which (such as an award of attorney’s fees) are clearly for the court alone and some 

of which (such as damages for actual loss) are for the jury. The court then ruled as 

a matter of law that, for purposes of § 1836(b)(3)(C), which allows an award for 

exemplary damages, “court” means only the judge and not the jury. The court 

decided to award no exemplary damages.
3 

Plaintiffs argue that “court” means only the jury in that paragraph or, if the 

statute is ambiguous, that the Seventh Amendment requires a jury trial for 

exemplary damages. We need not resolve the questions whether such damages are 

always for the judge or the jury under the statute or, if so, whether the statute 

would be constitutionally infirm. Assuming, without deciding, that the Seventh 

Amendment always requires a jury trial for exemplary damages that enhance an 

award for actual loss, the jury in this case found no actual loss. Where, as here, an 

award for unjust enrichment rests on disgorgement of the defendant’s profits, it is 

an equitable remedy. See Liu v. SEC, 591 U.S. 71, 80 (2020) (“Decisions from 

this Court confirm that a remedy tethered to a wrongdoer’s net unlawful profits, 

whatever the name, has been a mainstay of equity courts.”). As the Supreme Court 

recently noted, the Seventh Amendment embraces all suits that are not in equity or 

admiralty jurisdiction. SEC v. Jarkesy, 144 S. Ct. 2117, 2128 (2024). Thus the 

Seventh Amendment extends to a statutory claim only if that particular claim is 

legal in nature, id., which disgorgement is not. Accordingly, any error by the 

district court is harmless.

2. Because we do not remand the case for a jury trial on exemplary 

damages, we need not reach Plaintiffs’ argument regarding an adverse-inference 

instruction.
4 

3. The district court did not abuse its discretion in denying Plaintiffs’ motion 

for a permanent injunction. See Theme Promotions, Inc. v. News Am. Mktg. FSI, 

546 F.3d 991, 1000 (9th Cir. 2008) (stating standard of review). The court 

reasonably concluded that Plaintiffs failed to demonstrate an irreparable injury.

4. The district court did not abuse its discretion in denying Plaintiffs’ motion 

for attorney’s fees. See Jones v. Riot Hosp. Grp. LLC, 95 F.4th 730, 738 (9th Cir. 

2024) (stating standard of review). The court permissibly concluded that Vade’s 

misappropriation of trade secrets, though willful and malicious, was insufficient to 

require an award of fees.

AFFIRMED.