Kenset Corp v. Hratch Ilanjian

PSM4-045 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
Nos. 12-3742 & 14-3255
___________
KENSET CORPORATION
v.
HRATCH Z. ILANJIAN,
Appellant
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2:11-cv-02464)
District Judge: Honorable Legrome D. Davis
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 21, 2015
Before: FISHER, KRAUSE and VAN ANTWERPEN, Circuit Judges
(Opinion filed: January 28, 2015)
___________
OPINION*
___________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Operating out of an apartment in Secane, Pennsylvania, Hratch Ilanjian convinced
Vicken Setrakian, the president of Kenset Corporation (“Kenset”), that he was an
international businessman who could help Kenset turn around its party-supply business in
the Middle East. Over a course of months, Setrakian and Ilanjian exchanged e-mails
regarding Ilanjian’s credentials and about Kenset and its possible need for new business
strategies. On Ilanjian’s repeated requests, Setrakian provided Ilanjian with confidential
business information. Ultimately, Setrakian decided to retain Ilanjian’s services, and the
two men exchanged additional e-mails and communicated via Skype to work out the
details of their arrangement and to plan a meeting in Geneva, Switzerland.
The meeting never happened. Setrakian sent Ilanjian $20,000, after he requested it
to cover expenses and arrangements before the trip to Geneva, but Setrakian continued to
seek clarification of the fees (potentially 700,000 Swiss francs and $70,000 United States
dollars per year for three years) for Ilanjian’s global infrastructure expenses and business
turnaround services. Subseqently, Ilanjian insisted that an agreement had been reached1
while Setrakian expressed reservations about the arrangement and sought additional
1
Ilanjian subsequently relied on some of the e-mails the men had exchanged. Ilanjian
sent Setrakian what he termed a proposal, which he said would be final on Setrakian’s
signature. Setrakian responded that he agreed with all terms but the payment term (he
asked for additional discussion and understanding of the 700,000 Swiss francs). A
subsequent e-mail from Setrakian refers to a phone call and thanks Ilanjian for
understanding his inability to fund 700,000 Swiss francs in one payment and accepting
two payments. Setrakian then stated that he would start making arrangements the next
morning (although he also wrote that he looked forward to receiving confirmation of their
plans and mentioned their meeting in Geneva and a planned phone call).
2
information. Ultimately, Ilanjian asserted that he had been appointed Interim Chairman
and CEO of Kenset in charge of a corporate turnaround by virtue of an agreement with
Setrakian and that Setrakian had breached the agreement. He demanded full and
immediate payment under the terms of the agreement as he understood them, namely
$210,000 in United States currency and 2,100,000 Swiss francs, plus a payment of
1,700,000 Swiss francs for consulting services that he had previously stated would be
provided without charge. Ilanjian also threatened unspecified serious consequences for
non-payment and alleged that Setrakian was cheating one of its major business partners,
financial and other institutions, and the government of the United Arab Emirates.
Ilanjian later repeated his demand for immediate payment.
Kenset sued Ilanjian for fraud, misappropriation of trade secrets, conversion,
trespass to chattels, procuring information by improper means, replevin, and interference
with economic advantage. Kenset sought the immediate return of all its confidential
information; an injunction to prevent Ilanjian from disclosing or using any of its
confidential information; a declaration that no contract was formed; damages; and
attorney’s fees. With his answer (that included allegations that Setrakian was persecuting
him and wanted to silence and kill him), Ilanjian filed a counterclaim for breach of
contract.
3
During the course of the District Court proceedings, 2 Kenset sought discovery
from Ilanjian with little success. Subsequently, Kenset sought sanctions against Ilanjian
pursuant to Rule 37(b)(2)(A) of the Federal Rules of Civil Procedure. The requested
sanctions included dismissal of the counterclaim and the entry of a default judgment in its
favor. Kenset also sought summary judgment against Ilanjian.
The District Court denied in part and granted in part Kenset’s motion to impose
sanctions for discovery violations, ruling that that certain facts, which Ilanjian had
refused to address, would be deemed established. The District Court also granted
summary judgment as to Kenset’s claims of misappropriation of trade secrets and
procuring confidential business information. The District Court ordered Ilanjian to return
specified confidential documents that had been provided to him by Setrakian and
enjoined him from disclosing, using, or referring to those documents. In light of its
ruling, the District Court did not consider Kenset’s claims of trespass to chattel, replevin,
and conversion (and Kenset later withdrew those claims). The District Court also granted
Kenset’s motion for summary for judgment on Ilanjian’s counterclaim for breach of
contract, concluding that no contract had been formed (in the absence of sufficiently
definite terms), but, even if it had, the contract was the product of fraudulent inducement
and Ilanjian had not mitigated his damages.
2
As we write primarily for the parties, we will discuss the facts only insomuch as they
are relevant to our analysis.
4
Ilanjian filed a timely notice of appeal (opening C.A. No. 12-3742). Kenset filed a
motion to seal the record, which was provisionally granted, pending our review of it at
this stage (Kenset also submits a motion to continue the seal). Ilajian opposes the efforts
to maintain the seal and presents a motion to unseal the record. He has filed several other
motions during the pendency of his case, some of which we have already ruled on. One
of his motions evidenced an intention to appeal the District Court’s subsequent order
granting attorney’s fees to Kenset. We ruled that it should be considered as a notice of
appeal, and, ultimately, another appeal was opened (C.A. No. 14-3255). The two cases,
consolidated for disposition, are now fully briefed (although Kenset requests that
Ilanjian’s supplemental brief regarding C.A. No. 14-3255 be struck from the record
because it goes outside the scope of the briefing instructions). Also, Ilanjian has
submitted a motion for leave to file a supplemental appendix for C.A. 14-3255.
Additionally pending are his motion for reconsideration of the Clerk’s Order granting
Kenset leave to file a supplemental appendix in C.A. No. 12-3742 and his motion “to
impose severe sanctions, disbar permanently and imprison Kenset and Setrakian
lawyers.”
We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the imposition of
sanctions for a discovery violation for abuse of discretion. See Saldana v. Kmart Corp.,
260 F.3d 228, 236 (3d Cir. 2001). We exercise plenary review over the District Court’s
grant of summary judgment in favor of the defendants. Abramson v. William Patterson
5
Coll., 260 F.3d 265, 276 (3d Cir. 2001). While we also consider de novo the legal
question whether the District Court applied the proper standards in making a fee
determination, its related factual findings are reviewed only for clear error, and the
reasonableness of an award of attorney’s fees is reviewed for abuse of discretion. See
Loughner v. Univ. of Pittsburgh, 260 F.3d 173, 177 (3d Cir. 2001). We may affirm on
any basis supported by the record. See Erie Telecomms., Inc. v. City of Erie, 853 F.2d
1084, 1089 n.10 (3d Cir. 1988). Upon review, we will affirm the District Court’s
judgment.3
First, the District Court did not abuse its discretion in deeming some facts
admitted. Despite Kenset’s many efforts, it was unsuccessful in getting meaningful
discovery from Ilanjian. Ilanjian was generally uncooperative. For instance, he ignored
some requests and refused to answer others. Ilanjian also failed to voluntarily appear for
his deposition three times. Ultimately, when his deposition was held in the federal
courthouse under the supervision of the District Court, Ilanjian refused to answer many
questions about his experience as a consultant and turnaround specialist, his past and
present business activities, and the nature of the work he performed for Kenset. To
3
We construe Ilanjian’s pro se brief liberally, although his arguments at times stray from
matters relevant to the District Court’s rulings. We focus on what we perceive to be his
main challenges (and the orders he identifies), the ultimate judgment in favor of Kenset,
predicated in part on an adverse ruling in a discovery matter, and the fee award against
him. We also recognize that he maintains that the District Judge should have recused
himself, but we conclude that his claims of bias, collusion, conspiracy, a criminal
network behind Kenset’s allegations and the District Court’s rulings, and the like are
6
summarize the three-day deposition (continued at one point because Ilanjian stated that
he felt unwell), he refused to answer many questions on relevance grounds, and when the
District Court told him that he must answer the questions because they were relevant and
proper, he said that he would take the Fifth (and did so repeatedly). He made similar
objections to interrogatories despite instruction from the District Court about the scope of
the Fifth Amendment and relevance. At one point, when the District Court instructed
him to answer a question because it related to relevant information that was not protected
or privileged, Ilanjian countered, “that’s your opinion.”
In considering the matter, the District Court undertook a comprehensive review of
Ilanjian’s participation (and lack thereof) in the discovery process. The District Court
concluded that Ilanjian bore responsibility for an almost complete absence of meaningful
discovery, reviewed the prejudice to Kenset, and considered its previous efforts to win
compliance from Ilanjian and the potential effectiveness of other or lesser sanctions. At
the end of its analysis, the District Court carefully ruled that certain facts, which Ilanjian
had refused to address, would be deemed established. We see no abuse of discretion in
the District Court’s ruling.
We also conclude that the District Court did not err in granting summary judgment
in favor of Kenset. To win an injunction for a misappropriation of a trade secret under
the Pennsylvania Uniform Trade Secrets Act (“PUTSA”), Kenset had to show (1) the
unfounded.
7
existence of a trade secret; (2) the communication of the trade secret pursuant to a
confidential relationship; (3) the use or threatened use of the trade secret in violation of
that confidence; and (4) harm. See 12 Pa. Cons. Stat. § 5303(a); Moore v. Kulicke &
Soffa Indus., 318 F.3d 561, 566 (3d Cir. 2003); Den-Tal-Ez, Inc. v. Siemens Capital
Corp., 566 A.2d 1214, 1232 (Pa. Super. Ct. 1989) (explaining that, for granting injunctive
relief, the appropriately prospective inquiry asks “not whether defendant already has used
or disclosed, but whether there is sufficient likelihood, or substantial threat, of defendant
doing so in the future”).
For the reasons given by the District Court, Kenset showed that it was entitled to
the injunction it sought. To summarize (without repeating the District Court’s thorough
analysis), Kenset presented evidence (that Ilanjian did not controvert) to show that the
materials at issues were trade secrets, see Den-Tal-Ez, 566 A.2d at 1230; that they were
disclosed as part of a confidential relationship, see Smith v. Dravo Corp., 203 F.2d 369,
376 (7th Cir. 1953) (discussing Pennsylvania law); that Ilanjian procured the trade secrets
by misrepresentation and threatened (for instance, via e-mail) to use those trade secrets in
violation of the confidence between the parties; and that Kenset would suffer significant
harm from their disclosure. We agree that the permanent injunction was warranted under
the circumstances of this case.
We also agree with the District Court’s analysis of the claim that Ilanjian procured
information by improper means. Under Pennsylvania law, an action for such a
8
conversion of business information lies where another acquires confidential business
information (trade secrets or other non-public information) through misconduct, which
can include fraudulent misrepresentations. See Pierre & Carlo, Inc. v. Premier Salons,
Inc., 713 F. Supp. 2d 471, 481-82 (E.D. Pa. 2010). As the District Court concluded,
summary judgment was warranted given the evidence of the parties’ relationship, vis-à-
vis each other, see Sims v. Mack Truck Corp., 608 F.2d 87, 95 (3d Cir. 1979), and other
evidence in the record, including Ilanjian’s means of acquiring information from
Setrakian, and his subsequent emails, that threatened, inter alia, disclosure of the
information to a supplier with whom Kenset had a complicated business relationship.
Furthermore, the District Court properly granted summary judgment in favor of
Kenset on Ilanjian’s counterclaim for breach of contract. For the reasons given by the
District Court, a review of the evidence leads to the conclusion that no contract formed
because any agreement between Ilanjian and Setrakian was not sufficiently definite. See
Johnston the Florist, Inc. v. TEDCO Constr. Corp., 657 A.2d 511, 516 (Pa. Super. Ct.
1995) (en banc) (setting forth the elements of contract law in Pennsylvania and
explaining how the existence of a contract is proved); Am. Eagle Outfitters v. Lyle &
Scott Ltd., 584 F.3d 575, 582 (3d Cir. 2009) (describing how to determine parties’ intent
to be bound and distinguishing between preliminary negotiations that do not constitute a
contract from those negotiations that are binding even in the absence of a written
agreement).
9
Even if Ilanjian and Setrakian came to some sort of conclusion about the payment
term (or if there was a genuine issue of material fact about that), so many other terms of
the contract remained indefinite. As the District Court summed it up, it was unclear what
consideration Setrakian would be given for the compensation offered. The District Court
did not err in rejecting the possibility of partial performance in light of Setrakian’s
transmittal of $20,000 to Ilanjian. In light of the evidence, that money was separate from
the agreement and related to Ilanjian’s requests for money for expenses (including the
possible refurbishment of his “Geneva offices”) in advance of the planned meeting to
finalize their agreement in Switzerland.4
Furthermore, even if the parties had reached an agreement, Kenset could rescind
or avoid it because it had been fraudulently induced. See In re Allegheny Int’l, Inc., 954
F.2d 167, 178-79 (3d Cir. 1992) (providing an overview of fraudulent inducement under
Pennsylvania law). As the District Court determined, with the requisite knowledge and
intent, Ilanjian made many material misrepresentations, on which, under the
circumstances, Setrakian reasonably relied. Also, as the District Court concluded based
on evidence in the record, including the facts deemed admitted, Ilanjian had failed to
make any efforts to mitigate damages. See Prusky v. ReliaStar Life Ins. Co., 532 F.3d
252, 257-58 (3d Cir. 2008) (discussing the obligation to mitigate).
4
In light of the misrepresentations, we conclude, for the reasons given by the District
Court, that Kenset is entitled to a return of the $20,000.
10
For these reasons, and for the reasons provided by the District Court, the District
Court properly granted summary judgment in favor of Kenset. As we noted, Ilanjian also
challenges the award of attorney’s fees and nontaxable costs to Kenset. He presents
various general objections to the award now.5 However, he did not raise substantive
objections to the requested fee award in the District Court, despite being given repeated
opportunities to do so.6 We will not consider his arguments for the first time on appeal.
See Huck ex rel. Sea Air Shuttle Corp. v. Dawson, 106 F.3d 45, 51 (3d Cir. 1997). (We
also will not consider any new evidence Ilanjian seeks to present for the first time on
appeal. See In re Application of Adan, 437 F.3d 381, 389 (3d Cir. 2006).) In any event,
his general arguments, that, for instance, the underlying action was “not complicated,” or
his arguments relating to the merits of the case, are an insufficient basis for us to disturb
the fee award. We will affirm that order, too.
In addition to affirming the District Court’s order and judgment, we grant –
in light of the sensitive and confidential information (including trade secrets) in the
documents filed in this appeal – Kenset’s motion to seal the record on appeal, and to
5
In his brief, he also repeats argument that he made in his initial brief. Although he
seeks to raise issues that go beyond the fee matter, we do not strike the brief, as Kenset
requests. We do again reject, however, Ilanjian’s repeated claims of bias, fabrication,
conspiracy, and other misconduct by the District Judge, whom Ilanjian inappropriately
maligns.
6
He asserts that he did, indeed, challenge the request for a fee award in the District
Court. We are not saying that he filed nothing; his filings in the District Court and on
appeal have been voluminous. However, in his filings, we do not see anything equivalent
to a substantive challenge to the fee award.
11
continue the provisional seal imposed at the outset of this action. See generally Pansy v.
Borough of Stroudsburg, 23 F.3d 772 (3d Cir. 1994). We deny Ilanjian’s motion to
unseal. We grant his motion to file a supplemental appendix. Also, we deny Ilanjian’s
motion for reconsideration of the order permitting Kenset to file its supplemental
appendix, and we deny his motion for severe sanctions against, and disbarment and
imprisonment of, Kenset’s counsel.
12