[I]nformation... that: (1) [d]erives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and (2) [i]s the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
Cal. Civ. Code § 3426.1(d). Polimaster failed to establish either element.
• Polimaster assumes that RAE was required to buy three times more than the minimum number of units the contract requires.
• Polimaster assumes that RAE was required to buy more costly components than the contract requires, units that RAE never actually purchased but that involve alleged profit margins for Polimaster substantially higher than the units that RAE actually purchased. Polimaster also manipulated its assumptions regarding RAE’s hypothetical purchases in order to use the highest price per unit permitted in the agreement, and assumed that RAE was obligated to purchase more expensive lots, rather than detector blocks, during a 17-month period in which RAE actually purchased detector blocks only. By adopting this assumption, not based on the facts, Polimaster was able to nearly double its alleged profit per unit.
• Polimaster initially failed to credit RAE for any of the substantial number of units it did purchase. When it purported to remedy this flaw, it did so by subtracting the lower profit per unit figure for RAE’s purchases from its inflated hypothetical profit per unit numbers, resulting in an insupportable comparison. In reality, RAE’s purchases satisfied any obligation it may have had, and thus give rise to no damages at all.
• Despite the plain language of the Buy/Sell Agreement, ¶9.3(b), Polimaster assumes that RAE remains obligated to purchase the minimum number of units. This assumption is incorrect since Polimaster suspended the agreement and informed RAE that it was going to stop delivery of the units. Indeed Polimaster’s so-called damages model assumes that RAE is still obligated to purchase more units than the contract requires, despite the fact that for years, Polimaster has refused to deliver units and taken the position that RAE has no legal right to do anything with them. Polimaster also ignored the liquidated damages provision of the Buy/Sell Agreement.
• Polimaster fails to account for its obligation to purchase units from RAE.
2. RAE has proven its counterclaim and is awarded damages in the amount $2,412,432, which sum Polimaster shall pay to RAE.
3. RAE is the prevailing party. Its application for attorney's fees is denied, but its application for costs is granted in part in the amount $46,213.15, which sum Polimaster shall pay to RAE.
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