*1 committing aggravated murder whilé to was evidence [sic] conflict “there was considering burglary. Ty- all of committing aggravated Id. a when whether aggravating relating single to the evidence the Ohio explain has failed to how ler out pointed circumstance resolution of this issue Supreme Court’s mitigating have found .would State.. contrary to or an unreasonable was either imposi require sufficient evidence federal clearly established application than death.” rather prison a term tion of law. argument differs unclear how this It is argu insufficient evidence Tyler’s from III. phase, since regard guilt to the ment Tyler reasons, referred the evidence affirm foregoing we For the guilt presented evidence same denying habeas cor- district court’s order of re standard Regardless, “[t]he phase. pus relief. evidence claims insufficient view for
whether, viewing the facts after prosecution, most favorable
light found of fact could have
any rational trier beyond of the crime elements
the essential v. States doubt.” United
a reasonable (6th 292 F.3d 498-99
Sykes, argument evidence
Tyler’s
insufficient
involving witness
allegation
on an
rests
MID-MICHIGAN COMPUTER
province
credibility, which is
SYSTEMS, INC., Plaintiff-
Herrera
this court. See
jury and not
Appellee,
390, 401-02,
Collins,
113 S.Ct.
506 U.S.
v.
(1993)
that, in
(noting
853,
agreed with case. See Tyler’s appropriate
ty was The court N.E.2d at 596-97.
Tyler, 553 circum only mitigating that “[t]he
noted were his by appellant
stances argument his innocence and
claim of him, be, imprisonment
life consider think these as death. We
bad weight against to little
ations are entitled circumstance single aggravating convicted,” which stands appellant
which *2 Rundelli, Calfee,
Raymond Halter & Griswold, Cleveland, Ohio, Appellant. for Grace, Grace, K. Michael Grace & Los California, Angeles, Appellee. for Rundelli, Raymond Johnson, Brian D. Calfee, Griswold, Cleveland, Halter & Ohio, for Appellant. Grace, Grace,
Michael K. Grace & Los California, Angeles, Clay, Darrell A. Wal- Haverfield, Cleveland, Ohio, ter & Ap- for pellee. SILER, COLE, CLAY,
Before: Judges. Circuit CLAY, J., opinion delivered the of the court, SILER, J., joined. in which COLE, 513), (p. J. separate delivered a concurring opinion.
OPINION CLAY, Judge. Circuit appeal solely This relates to the amount awarded to Plaintiff Mid-Michigan Computer Systems, Inc. (“MMCS”) on claim that Defendant (“MGI”) Glassman, Inc., Marc misappro- priated certain of MMCS’s trade in violation of Ohio appeals law. MGI district court’s denial of its motion for remittitur. Specifically, MGI contends jury’s award of million in com- pensatory damages and puni- million in clearly tive excessive and grossly disproportionate to the loss suf- by MMCS, fered loss is reflected evidence at trial. We are persuaded by MGI’s contention that award is excessive and we therefore say cannot the district court abused its in denying discretion the motion for remittitur. Accordingly, we affirm the judgment of the district court. perform offered MMCS I. BACKGROUND job $330,000. offered do TPC soft- licensed Beginning $63,000. pay offer to Despite MGI’s pharmacies. use MGI’s MGI for ware $100,000, the latter declined main- software was purpose The to TPC assigned the conversion billing records prescription tain *3 February or March enabled The software customers. MGI’s bill cus- records and 13, 2000, those to search counsel for MGI On December addition, In' ease. insurers with Yaugher, tomers’ to Kevin sent a letter MMCS compa- between agreement part MGI, accusing MGI then-president of hardware various nies, sold to MGI MMCS copyrights to its soft- infringing MMCS’s soft- pharmacy its necessary implement secrets, ware, trade misappropriating However, protect sought MMCS ware. Agree- parties’ Source Code breaching being di- from source code software’s letter, MGI se- According ment. anyone else be- or either MGI vulged to from an MMCS software cretly copied material proprietary it contained cause from had withheld computer which MGI end, in 1997 To that by MMCS. owned The letter pretenses. under false MMCS Agree- a Code into Source parties entered the software stored used alleged MGI ment, that MMCS provided which to reconstruct MMCS’s computer on in escrow. code of the source place copy a engineer- through code “reverse source access MGI could Agreement, Under 1 $2,150,000in demanded The letter ing.” specified only in certain code for in the Source provided damages, management if e.g., emergencies, ($50,000 for each Agreement Code if MMCS or in a died MMCS disaster numbered which pharmacies, then MGI’s agreed MGI further bankruptcy. entered if 43). further warned The letter wrong- the source code if accessed it by 5:00 not received sought was amount un- i.e., in not authorized fully, a manner 15, 2000, MMCS on December PST p.m. MMCS would pay Agreement, der agreements its all of “will terminate $50,000 for each in the amount further breach without for material [MGI] using MGI was which JA 57. notice.” MMCS’s letter, had not time of the MGI At the MGI approached, 2000 year As process yet completed systems computer upgrade sought depended still pharmacies some its thus all of such that pharmacies 40 its inter- system. MGI computer MMCS’s on of a cen- part would be systems individual 13, as a 2000 letter the December preted a sights its on MGI set network. tralized might effect MMCS threat-to by the Con- network-ready offered system pharma- at the MGI systems its terminate But in called “TechRX.” Corporation dor Consequently, them. used still cies TechRX, had to implement MGI order to 2000, brought an December on sys- on stored MMCS’s convert the data injunctive relief MMCS against action TechRX. compatible with to a format tem court The District of Ohio. Northern this, bids MGI elicited accomplish To for a motion on MGI’s hearing held from, among oth- the conversion complete order, at which restraining Conversions, temporary ers, Two-Point MMCS and permit hearing (“TPC”), MGI. Inc., company owned Inc., Inc., Sys., Sys., v. Dharma from the worked backward means 1. This 1998) having (citing to do cases Cir. computer 652 to recon on the stored software engineering). with reverse Data Base See Micro its source code. struct using computer system continue its at the Peter Bruno testified that MGI deliberate- pharmacies system where the was still ac- ly concealed from MMCS its intention to tive. upgrade system to the TechRX meantime transferred an computer After first asserting counterclaims designed year reliability testing against companies, two on (the computer”), “Y2K which MMCS had complaint MMCS filed a against MGI, loaned to to TPC. MMCS loaned MGI and TPC the Northern District of MGI the Y2K computer, which MGI stored alia, complaint alleged, Ohio. The inter corporate headquarters, exclusively that MGI had breached the Source Code year purposes. readiness To sim- agreements and other between anticipated ulate year effects of the companies the two infringed *4 change, computer copyright equipped was its source code. MMCS brought claims of MMCS software and misappropriation of a set of expired trade secrets and unfair data. Bruno competition testified that against both spring MGI and TPC. ostensibly Jurisdiction after all Y2K 2000— premised diversity was on citizenship,2 readiness issues had been resolved—Joe 1332(a), § 28 U.S.C. and copyright Raso, MGI, superior his at instructed him claim, 1338(a). 28 U.S.C. ship to the Y2K computer to Al- TPC. though Raso did not why tell Bruno trial,
Prior the district court dis- necessary, Bruno testified that he missed various of MMCS’s claims3 and “knew why,” the reason it was “for the MMCS settled its remaining against claims purpose converting the files on it to a TPC.4 One of the claims dismissed system new was going [MGI] to- court was MMCS’s claim that MGI had wards.” JA 376. breached the Agreement. Source Code granting MGI’s motion for judgment on Bruno further testified that MGI was claim, the pleadings as to this the court aware that it purchased had rights explained that “MGI could breach the MMCS software for use at MGI’s Source Code only by obtaining pharmacies, that “we couldn’t give it to the actual copies of the materials that else,” someone and that “it was assumed” placed MMCS safety box, deposit the software was confidential. JA (or and not obtaining somehow reverse- 371-2. After TPC received computer, engineering) copies.” other JA 186. Raso instructed Bruno to assist TPC 8, 2003, booting the On MMCS Specifically, remaining against claims Raso phone transferred a MGI-misappropriation call from TPC’s secrets, fraud, president, Lisitza, trade Phil Bruno, and breach of soft- who then agreements supplied ware license Lisitza with password to trial. to the —went The evidence system at trial MMCS bears out running instructions on system. accusations MMCS’s counsel made in It was Bruno’s understanding his December 2000 letter purpose MGI’s TPC’s in accessing the president. trial, At former MGI employee system was to extract MMCS soft- TPC, Corporation, MGI is an Ohio part an Illi- 4.As of the settlement between MMCS MMCS, Corporation, nois Michigan TPC, agreed enjoined TPC to be from Corporation. using any of the partici- trade secrets it had pated in misappropriating. 3. The court dismissed MMCS's claims of con- version, copyright infringement, and unfair
competition. motion damages. MGI’s punitive On it to enable that would information ware remittitur, court refused the district such that program a conversion prepare system the MMCS remit the combined $7 data on customer MGI Finally, trade claim to TechRX. on the award returned be transferred could rep- $280,000 an MMCS that when awarded to remit the Bruno testified but headquarters li- arrived software resentative of certain for MGI’s breach Raso and computer, Y2K appeals in search the deni- agreements. cense direction) (at lied and said Bruno Raso’s to remit al of its motion the Y2K com- where know they “did not secrets claim. on the trade awarded JA 386-88. puter was.” II, OF REVIEW STANDARD testimo- Bruno’s controvert did not liability appeal concedes ny and on of motion the denial review We As trade secrets.
misappropriating of discretion for abuse for remittitur misappropriation, extent of the light most favorable facts in the view the un-rebutted tes- Lisa Lundahl’s President MMCS, trial. prevailed at since it as follows. Lundahl recounted timony was County, 220 F.3d Shelby Gregory code TPC she examined how (6th Cir.2000); Father Massillon for its had written Educ., Bd. of *5 in the features noticed certain Lundahl explained that “[a] We have that were either program TPC conversion remit its discretion in is within trial court of significantly or .reminiscent identical when, reviewing after only ting a verdict Lun- particular, In code. MMCS’s source light most favorable all evidence pro- conversion the that TPC dahl testified ver awardee, that the it is convinced the as the MMCS format used the same gram excessive, pas resulted from dict is health listing a customer’s software for sion, or is so prejudice; or excessive bias Further, testified Lundahl conditions. judicial con the inadequate as shock or comput- program that the TPC Gregory, 220 F.3d of the court.” science unique same according ed dates Bd. v. Massillon (citing Farber at 443 of by the MMCS method used Cir.1990)). Educ., F.2d the TPC con- that also testified Lundahl “al- employed the same program version III. DISCUSSION to calculate use[s] [MMCS] gorithm ground on the remittitur seeks 589. Lun- JA number.” prescription the misappropriation type of way TPC only the the extent explained dahl compensa- support the features of at trial cannot these proven have could discovered million, which reconstructing of award tory $2 code royalty Y2K com- a reasonable jury software on awarded as from the them that she misappropriated testified Finally, Lundahl right use puter. for the of TPC’s 80 instances it mis- total of concedes that discovered a trade secrets. in her review source code se- of MMCS’s trade use MMCS certain appropriated TPC conversion is com- misappropriation crets and is that the argument Its pensable. trial, court denied MGI’s During a sense it misappropriated secrets trader matter of law. judgment motion for a were under law compensable in favor a verdict jury The returned million. We to be worth proven MMCS’s trade claims. On on all because there reject contention claim, million jury awarded $2 parties jury that the before in evidence damages and $5 compensatory valued the misappropriated trade secrets imposition measured liability for a at million. reasonable equitable that is under considering circumstances the loss to
Our case in this leading unpub- area is complainant, the benefit to misap- case, lished. opinion our in that we both, propriator, or for a misappropria- said: tor’s unauthorized disclosure or use of a Damages in trade secrets cases are diffi- trade secret.” Ohio Rev.Code calculate, cult to because offending 1333.63(A). company profits has mixed the and sav- ings from quality increased quantity The district court instructed products, savings well as from a manner consistent with these principles, reduced production, research and with to wit: “In determining which method to profits.... own natural When use to calculate compensatory [MMCS’s] misappropriated trade secret is used to if damages, you determine that [MMCS’s] competing field products, the mea- best profits lost unjust and MGI’s enrichment sure of plaintiffs is the lost are inadequate to fully compensate profits or the gains. defendant’s illicit for the [MMCS] misappropriation of its However, where the misappropriated se- secrets, trade you then should calculate crets were not directly to field used compensatory damages upon based a rea- competing used, products, but were sonable royalty.” JA 523-24. As indicat- example, to save research and manufac- ed, selected royal- the reasonable resources, turing plaintiffs have used a ty approach; MGI not dispute does number of different methods calcula- approach selection of that so much as it tion to damages. determine disagrees jury’s with the conclusion that $2 Avery Corp. Dennison Four Pillars En- million was a royalty. *6 Co., terprise 479, (6th Fed.Appx. 45 485 Under long-standing case law in this Cir.2002) (unpublished). circuit, adopt “[t]o a royalty reasonable Here, MGI did not use the trade secrets the measure of damages is to adopt and it misappropriated from to field interpret, be, as well as may the fiction competing products, but instead used that a license was to granted be at the them “to save research and manufacturing time beginning of the infringement, and resources,” id., resources it have then to determine what the price license expended to develop the software that ul- effect, should have been. the court timately replaced pharmacy soft- assumes the of, existence ab initio ware. Consequently, the roy- reasonable equitable of, declares the terms a supposi- alty adopted measure by the is one license, tious tunc; does this pro nunc appropriate damages. measure of Id. at it applies creates and retrospectively a 487; Univ. Computing Co. v. Lykes- compulsory Egry license.” Register Co. v. Youngstown 518, Corp., 504 F.2d 536-38 Co., (5th Register Standard 23 F.2d 443 Indeed, under Ohio’s ver- (6th Cir.1928); see Corp. sion also Vitro Hall Act, Uniform Trade Secrets Co., Chem. 292 F.2d “[djamages may 682-83 include Cir. both the actual 1961). Following loss caused by misappropriation approach, “[t]he ac unjust tual enrichment value of what by caused has misappropri- appropriated been ation that is not always taken into in the ultimate in account appraisement.” Vi computing tro, actual loss. In lieu of damages supra, at 683. But pre because the by measured any methods, other the dam- cise value of a may trade secret be difficult ages- caused misappropriation may determine, be to “the proper measure is to
511 Code breaching Source liable would have parties what calculate here, at issue because is not licensing for- price a fair to agreed be that claim to court dismissed secret the district the trade put to defendant appeal the time not at MMCS did intended fore trial use the defendant whether, Com- place.” Univ. took question The sole misappropriation dismissal. 539; also Ver- Co., at see 504 F.2d most light puting viewing the evidence Inc., Autodesk, Inc., 88 Microsys., MMCS, liquidated mont dam to favorable Cir.1996) (“A (2d 142, 151 F.3d a formula constitutes provision’s ages hypo- a measure attempts to royalty award excessive,” at Gregory, 220 F.3d “clearly defen- what the value of thetically agreed have MGI would what estimation plain- from the obtained wrongfully dant rely on right to exchange for the paid tiff”). to protected contents code’s the source its software conversion develop million rea The basis for the $2 683; Vitro, Computing at Univ. F.2d 292 parties’ award was sonable 539; Microsys., Co., F.2d at Vermont in which Agreement, Code 1997 Source the deferential at Under 88 F.3d liquidated pay here, see controls of review that in standard $50,000 per the amount 443; Avery Denni at Gregory, F.3d accessed the wrongfully the event son, at we decline Fed.Appx. Since MGI escrow. stored source code figure time of used pharmacies hold that operated a com proposed estimation a excessive misappropriation, was million. damages award a paid for such pensatory MGI would have price be held Co., that it would arguendo Assuming Register Egry license.” “suppositious proposed misappropriation, liable at 443. upof damages award compensatory as, misappropriation law defines Ohio would have $330,000, the amount MMCS alia, of a trade or use “[disclosure inter per offer to accepted its earned had express or another without secret strange This was conversion. form the _ by a person other implied consent on the trade proposal improper ... means person [u]sed who perform MMCS’s offer claim since the trade secret knowledge of acquire perform merely offer an 1333.61(B)(2)(a). _” Rev. Code Ohio an MGI, any sense a service for *7 Further, "improper means" includes exploit to fea right offer sell "theft, bribery, misrepresentation, breach any In code. source tures of MMCS’s duty or inducement of a breach of a pro MMCS’s event, jury agreed secrecy, espionage through maintain or million. MGI it and awarded posal $2 electronic or other means." Id. damages provision liquidated contends 1333.61(A). disputed § MGI has never is not Code the 1997 Source qualifies that the MMCS source code as a parties of “what measure an accurate collection of trade secrets nor that MMCS licensing a fair to as would have protect took careful measures F.3d at Microsys., 88 price,” Vermont any- it misappro trade secrets source code from invasion MGI or specific for one else. It is further clear from Bruno's liquidated that posits
priated. MGI testimony contemplates, provision and MGI's own concession that misappropriation by, triggered only have been would occurred here. More- code, over, of the source conversion wholesale the evidence at trial-in particular, testimony pilfering that type piecemeal not the of MMCS Presi- whether MGI dent Lisa Lundahi-could lead a reason- says occurred. But jury able to conclude that agreement control, MGI used the and would to the exclu- software stored on the computer Y2K measures, sion of all other the determina- reconstruct protected MMCS’s source tion of the royalty reasonable award. See code. regard The evidence in this does Vitro, 681; F.2d at Computing Univ. necessarily not compel the conclusion MGI Co., 538; 504 F.2d at Computer Assocs. urges, namely, it used the recon- Fundware, Inc., Int’l v. American structed source code in a limited (D.Colo.1993) F.Supp. (citing sense, not necessary to the extent sup- Rosenhouse, Michael A. Annotation, Prop- port $2 er Measure Damages and Elements award. Damages Misappropriation Trade Lundahl’s account of the similarities be- Secrets, (1982)). § 11 A.L.R.4th 2 at 20 tween MMCS’s source code and MGI’s It is also that whether true MGI breached program code could reasonably agreement is not an issue in this case. support the inference exploita- that MGI’s But points these do two not detract from tion of MMCS’s source pervasive code was agreement’s value aas benchmark for than rather selective. Lundahl testified estimating parties “what would have directly had appropriated certain agreed to a fair licensing price,” Ver- proprietary algorithms, MMCS’s includ- mont Microsys., 88 F.3d at for unre- ing algorithms controlling computa- date stricted use of the tion, source code.5 This is listing of customers’ health condi- tions, true especially jury and the since the calculation and heard un- recording of prescription addition, numbers. Lun- rebutted testimony from Lundahl dahl testified to having discovered 80 in- agreement was the ideal benchmark for line-by-line stances of code copying. MGI such an estimation. Under circum- these did attempt not rebut this evidence at stances, the million compensatory $2 dam- trial and the reasonably could have ages award was neither excessive concluded from hearing it that MGI had nor conscience-shocking, so we must con- effectively misappropriated the source clude the district court did not abuse its code in entirety. And this is all the discretion in declining to it. remit See have would had to justify conclude to Gregory, 443; 220 F.3d at Avery Denni- a compensatory damages of mil- award son, 45 FedAppx. at 489. Because the lion, parties because the had a pre-existing compensatory damages award need not be agreement if MGI wrongfully ac- remitted, MGI’s challenge to punitive code, cessed be liable damages award of million, on the $50,000 the amount of ground that it is law, excessive under Ohio every pharmacy in which it running must also be dismissed. Ohio Rev.Code It is true 1333.63(B) (a punitive damages award is agreement, the 1997 Source Code Agreement, excessive unless it was not a exceeds three agreement; times licensing *8 were, if it liquidated the the provision of amount the compensatory damages would have award). the same effect a royalty suggestion
5. MGI's that the compensatory to the calculation of a damages award was the jury's result of the award on the trade secrets claim. MGI does mistaken belief that MGI had breached the not presumption the rebut that the district Source Code is without limiting merit. court’s any poten- instruction cured The district court dismissed the breach of jury’s tial part. confusion on the See Holmes jury contract claim and Massillon, instructed City the that the v. 1046-47 regarding agreement (6th evidence only Cir.1996). went CONCLUSION IY. McFARLAND, Parent and Next David abuse not did district court Because Stephen Daniel and Friend the motion denying its discretion Jeffrey Pitten McFarland; Ronald affirmed. is
remittitur, judgment of Bran Next Friend ger, Parent and Underwood, Anthony Pittenger; don CONCURRENCE Next Friend Parent Custodial Judge, COLE, Jr., Circuit R. GUY Plaintiffs, Aubrey, Max concurring. Meredith, Parent Crystal Custodial D. conclusion majority’s disagree with I Ryan Friend of Joshua Next reasonably con- jury could have that Plaintiff-Appellant, McDonald, misappro- effectively had cluded v. To entirety. in its code priated on evidence undisputed contrary, the PUBLIC COUNTY JEFFERSON only copied sides showed both Defendant, SCHOOLS, effect the necessary to code of the portions Education; County Board Jefferson Nonetheless, we are Daeschner, Superinten Stephen W. jury’s award to view required Defendants-Appellees. dent, awardee. most favorable light F.3d County, 220 Shelby Gregory No. 04-5897. very well be (6th It could Appeals, Court of States United that MGI jury believed that the the case Sixth Circuit. of the portions only valuable copied of the code, that the remainder 9, 2005. Argued: June no little to value. effectively had code Filed: Decided and is if this what toway no divine There the case fact or if it jury believed only were portions copied However, code. of the portions valuable award jury may remit we
because the maximum beyond it is “unless Louisville, Gordon, Kentucky, Teddy B. find be reasonably could Appellant. loss,” Jackson party’s for a compensatory & Mellen, Jr., Tarrant Wyatt, J. Francis Cookeville, F.3d City Appel- Louisville, Kentucky, for Combs, omitted), Cir.1994) (citations I would lees. reasonably deter- conclude Leet, Mellen, Jr., E. Byron J. code Francis portions limited that the mined Louisville, Combs, Ken- Tarrant & Wyatt, were misappropriated issue, Appellees. tucky, code portions valuable I on this conclusion. their award based Snyder, Sheryl Cubbage, G. D. Amy by the reached result thus concur Todd, Frost, & Brown Papalia, H. Bridget below. affirming the award majority, Ransdell, Louisville, Kentucky, Morgan G. Rights, Human Commission on
Kentucky Darling, Cit- Louisville, Kentucky, Chester *9 of Constitutional the Preservation izens Massachusetts, Michael Andover, Rights,