Behavior Analyst Certification Board, Inc. v. Pelaez Elvirez
1:21-cv-22833
| S.D. Fla. | Feb 7, 2023Background
- BACB develops and copyrights RBT certification exams, uses SMEs and pilot testing, and protects items as confidential trade secrets; exams incorporate candidate-specific Dynamic Indicator Items (DIIs).
- Defendant Marta Pelaez Elvirez took two remote-proctored RBT exams (AB-rev on Apr 23, 2020; AC-rev on May 1, 2020), failing the first and passing the second; response-time patterns and a subsequent informant tip raised suspicion.
- An informant provided a study guide containing 164 items from the two exam forms; the guide included Elvirez’s unique DII, which BACB concluded was conclusive proof she copied and distributed exam items (or allowed others to do so).
- BACB revoked Elvirez’s RBT credential, retired the compromised 164 items, and estimated $144,810 in costs to replace those items (SME development and piloting); Pearson administered the exams under OnVUE terms.
- Elvirez defaulted by failing to retain counsel or appear at trial; the Court entered default, held a non-jury damages trial in absentia, found liability on all counts, and awarded BACB $144,810 plus post-judgment interest and entitlement to attorneys’ fees under the Copyright Act (fees reserved).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Copyright infringement | BACB owns registered copyrights and Elvirez copied/distributed exam content (DII in study guide) | No contest / default; no defense presented | Liability found; copyright infringement established |
| DTSA misappropriation | Exam items are trade secrets; BACB took reasonable measures; Elvirez acquired and disclosed them improperly | No contest / default | Liability found under DTSA |
| Florida UTSA misappropriation | Same facts show trade-secret status and misappropriation under Florida law | No contest / default | Liability found under Fla. Stat. § 688.002 |
| Conversion | Elvirez exercised dominion over BACB’s exam content and failed to return it | No contest / default | Liability found for conversion |
| Breach of contract (BACB) | Elvirez agreed to BACB Handbook/terms forbidding disclosure and breached by copying/disseminating items | No contest / default | Liability found; damages proven |
| Breach of contract (Pearson) | Elvirez agreed to OnVUE/Terms of Service and breached by copying/disseminating Pearson-administered content | No contest / default | Liability found; Pearson did not seek damages at trial |
| Tortious interference (prospective economic advantage) | Elvirez undermined BACB’s credential integrity, harming BACB’s relationships and economic prospects | No contest / default | Liability found for tortious interference |
| Damages / Remedy | BACB seeks single recovery for the single injury: $144,810 to replace items; attorneys' fees under Copyright Act (and DTSA) | — | Court awarded $144,810 plus post-judgment interest; entitlement to attorneys’ fees granted (amount reserved); Pearson awarded no damages |
Key Cases Cited
- Nishimatsu Const. Co. v. Houston Nat. Bank, 515 F.2d 1200 (5th Cir. 1975) (default-admission rule and need for adequate pleading basis for judgment)
- Anheuser-Busch, Inc. v. Philpot, 317 F.3d 1264 (11th Cir. 2003) (court must ensure legitimate basis for damages award)
- Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991) (elements of copyright infringement: ownership and copying)
- Latimer v. Roaring Toyz, Inc., 601 F.3d 1224 (11th Cir. 2010) (copying and substantial similarity analysis)
- Compulife Software Inc. v. Newman, 959 F.3d 1288 (11th Cir. 2020) (definition and elements of trade-secret misappropriation)
- St. Luke’s Cataract & Laser Inst., P.A. v. Sanderson, 573 F.3d 1186 (11th Cir. 2009) (single recovery rule for same injury across claims)
- Vega v. T-Mobile USA, Inc., 564 F.3d 1256 (11th Cir. 2009) (elements required for breach of contract under Florida law)
- Joe Hand Promotions, Inc. v. Creative Entm’t, LLC, 978 F. Supp. 2d 1236 (M.D. Fla. 2013) (elements of conversion under Florida law)
- Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc) (binding precedent adoption note)