United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendants' Valda Flowers
("Flowers"), Michael Remeika ("Remeika"),
and Creative Risk Underwriters, LLC ("CRU")
(collectively, the "Defendants") Motion for
Attorney's Fees and Expenses  ("Motion").
September 16, 2015, HCC Insurance Holdings, Inc.
("Plaintiff) initiated this action alleging that
Flowers, at the direction of Remeika, misappropriated
Plaintiffs trade secrets to establish CRU and compete with
Plaintiff. Plaintiff claimed Flowers engaged in a
variety of activities that indicated that she misappropriated
Plaintiff's trade secrets. On July 29, 2016, Defendants
moved for summary judgment , and on February 22, 2017,
the Court granted the motion and dismissed the action with
prejudice  ("Summary Judgment Order").
March 8, 2017, Defendants filed their Motion requesting the
Court find that Plaintiff HCC brought and maintained in bad
faith its claim for misappropriation of trade secrets
pursuant to the Georgia Trade Secrets Act, O.C.G.A. §
seek attorney's fees pursuant to the Georgia Trade
Secrets Act, which provides that "[i]f a claim of
misappropriation [of trade secrets] is made in bad faith ...
the court may award reasonable attorney's fees to the
prevailing party." See O.C.G.A. §
10-1-764. "Whether to grant attorney's fees is
firmly within the discretion of the [c]ourt."
Greenberg Farrow Architecture, Inc. v. Perkins Eastman
Architects, P.C., No. 1:12-cv-1435-ODE, 2014 WL
12694260, at *6 (N.D.Ga. July 1, 2014); see also
Brandenburg v. All-Fleet Refinishing, Inc., 252 Ga.App.
40, 43 (Ga.Ct.App. 2001) (finding "the court may award
reasonable attorney fees to the prevailing party"
pursuant to O.C.G.A. § 10-1-764).
statute, which is based on the Uniform Trade Secrets Act,
does not define "bad faith, " and Georgia authority
applying O.C.G.A. § 10-1-764 is almost nonexistent.
Greenberg, 2014 WL 12694260 at *6. The one decision
in this district considering the issue applied the authority
of other circuits interpreting the bad faith language used in
the Georgia trade secrets statute or other state laws
patterned after the Uniform Trade Secrets Act. Id.
authority dictates a two-prong approach to determine whether
(1) the plaintiffs claim was "objectively specious"
and (2) the plaintiff exhibited "subjective
misconduct" in bringing or maintaining the claim.
Rent Info. Tech., Inc. v. Home Depot U.S.A., Inc.,
268 Fed.Appx. 555, 560 (9th Cir. 2008) (interpreting the
"bad faith" requirement of O.C.G.A. §
10-1-764). "Objective speciousness exists where there is
a complete lack of evidence supporting plaintiff's
claim." Id. (citing Computer Econ., Inc. v.
Gartner Group, Inc., No. 98- cv-312 TW(CGA), 1999 WL
33178020, at *6 (S.D. Cal. Dec. 14, 1999). "Subjective
misconduct [or bad faith] exists where a plaintiff knows or
is reckless in not knowing that its claim for trade secret
misappropriation has no merit." Id.
argue that Plaintiff's trade secrets claim is
objectively specious "because there is a complete lack
of evidence as to every element of a misappropriation of
trade secrets claim." ([124.1] at 7). Defendants, to
support their argument, rely on Hill v. Best Medical
Intern, Inc., which found objective speciousness where
"[the defendant] failed entirely to come forth at
summary judgment with evidence to support any of its
misappropriation claims." 2011 WL 6749036, at *8 (W.D.
Pa. Dec. 22, 2011). The facts here reveal, however, that
Plaintiff did not "fail entirely" to provide
evidence to support its claim. Instead, Plaintiff provided
some evidence, albeit circumstantial, to support at least
some elements of its misappropriation claim. The Court
in the Summary Judgment Order noted that Plaintiff
"present[ed] circumstantial evidence that Flowers or Mr.
Flowers may have transferred documents to Flowers' home
computer." ( at 20). The Court also observed that
Plaintiff provided some circumstantial evidence that
Defendants may have used or disclosed its alleged trade
secrets to acquire customers from Plaintiff, including
1. CRU was formed from the ground up in approximately two
months, and "stole" its first account from HCC one
month after ...