Vention Medical Advanced Components, Inc. v. Pappas, 112916 NHSUP, 2014-CV-00604

Docket Nº:2014-CV-00604
Opinion Judge:Richard B. McNamara, Presiding Justice
Party Name:Vention Medical Advanced Components, Inc. d/b/a Advanced Polymers, a Vention Medical Company v. Nikolaos D. Pappas and Ascend Medical, Inc.
Case Date:November 29, 2016
Court:Superior Court of New Hampshire

Vention Medical Advanced Components, Inc. d/b/a Advanced Polymers, a Vention Medical Company


Nikolaos D. Pappas and Ascend Medical, Inc.

No. 2014-CV-00604

Superior Court of New Hampshire, Merrimack

November 29, 2016



Richard B. McNamara, Presiding Justice

Vention Medical Advanced Components, Inc. d/b/a Advanced Polymers, a Vention Medical Company ("Vention") brought an action against Nikolaos D. Pappas and Ascend Medical, Inc. ("collectively "Pappas") alleging violation of its trade secrets and seeking injunctive relief. By Order dated September 7, 2016, this Court granted Vention injunctive relief, but denied its request for attorney's fees. Vention moves to reconsider, and the parties have filed a number of post-verdict motions. For the reasons stated in this Order, the Court DENIES Vention's Motion to Reconsider the Court's Denial of its Request for Attorney's Fees; GRANTS Vention's Motion to Dissolve Bond; GRANTS IN PART AND DENIES IN PART Pappas Motion to Stay; GRANTS IN PART AND DENIES IN PART Vention's Motion for Taxation of Costs; and DENIES Vention's Motion to Attach.

1. Vention's Motion to Reconsider

Vention seeks to have the Court reconsider its denial of attorney's fees, arguing that in the Court's Order dated September 7, 2016, the Court found that Pappas "willfully and intentionally copied ________ that Vention created and was the linchpin to its _______ Order, September 7, 2016, at 38. Vention argues that the Uniform Trade Secret Act, RSA 350-B:.4 ("UTSA") provides that a court may award reasonable attorney's fees to the prevailing party when "willful and malicious misappropriation exists." It notes that although the statute does not define "willful and malicious" numerous courts have held, that intentional misappropriation is willful and malicious. See, e.g. Mangren Research & Dev. Corp. v. Nat'l Chem. Co., 87 F.3d 937, 946 (7th Cir. 1996) (holding that under the UTSA, willful and malicious "surely must include an intentional misappropriation"). However, it is important to note that the UTSA provides that the court may award attorney's fees, but does not state that the court shall award attorney's fees, where willful and malicious misappropriation exists. While the use of the word "shall" is generally regarded as a command, the use of the word "may" allows a court discretion. See generally McCarthy v. Wheeler, 152 N.H. 643, 645 (2005).

In Mangren, upon which Vention principally relies, the court considered the definition of willful and malicious misappropriation under the UTSA to be the equivalent to "the conscious disregard of the rights of another, " the standard used under Illinois law to impose punitive damages. Mangren Research and Development Corp. v. National Chemical Co.. 87 F.3d at 946-47- But other courts have held that that a fee award is not appropriate under the UTSA where an infringer should have known he was acquiring trade secret information because "doing something that one "should have known" not to do is not quite the same thing as doing something that one has been specifically told he cannot do." Chemetall GMBH v. ZR Energy, et al, 2002 WL 23826, at *4 (N.D.Ill., Jan. 8, 2002).

Here, Pappas consulted with an attorney before he proceeded. He, perhaps unreasonably, believed __________ was in the public domain. But most importantly, as pointed out in Pappas's Objection, it is quite likely that Pappas reason, he believed that Vention did not intend it to ______ and for that reason, he believed that it would be permissible for him to do so. Objection, p. 3 citing Saab testimony at 1704. Vention has raised no points of law or fact that the Court has misapprehended and its Motion to Reconsider must therefore be DENIED. N.H. Super. Ct. R. 12(e).

2. Vention's Motion to Dissolve Bond

After granting preliminary injunctive relief, the Court required Vention to post a bond in the amount of $350, 000 to protect Pappas from the consequences of a wrongful injunction. During the course of the litigation the bond was increased, ultimately to $850, 000 on April 5, 2016. Now that the Court has found that Pappas engaged in intentional misappropriation of Vention's intellectual property and ordered a perpetual injunction, Vention seeks to have the bond discharged.

Pappas has filed a limited objection, stating that even if the discharge were to be granted, then the order of discharge should be without prejudice to Defendant's right to pursue the bond in the event of reversal on appeal. Pappas cites no New Hampshire authority for this proposition, but instead relies upon...

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