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Farmers Edge Inc. v. Farmobile, LLC

United States District Court, D. Nebraska

April 25, 2018

FARMERS EDGE INC., FARMER EDGE U.S. INC., and FARMERS EDGE U.S. LLC, Plaintiffs/Counterclaim Defendants,
v.
FARMOBILE LLC, JASON G. TATGE, HEATH GARRET GERLOCK, and RANDALL THOMAS NUSS, Defendants/Counterclaim Plaintiffs. CLARKE GERLOCK, Third-Party Intervenor Plaintiff,
v.
FARMERS EDGE INC., FARMER EDGE U.S. INC., and FARMERS EDGE U.S. LLC, Third-Party Defendants.

          Counsel for Plaintiffs/Counterclaim Defendants And Third-Party Defendants: Patrick E. Brookhouser, Jr. #19245 Luke C. Holst #23834 Matthew G. Munro #26190 McGrath North Mullin & Kratz, PC LLO

          Counsel for Defendants/Counterclaim Plaintiffs And Third-Party Plaintiff: Marnie A. Jensen - #22380 Kamron T.M. Hasan - #25494 Ryann A. Glenn - #26160 HUSCH BLACKWELL LLP Joan Archer - MO #44070 Farmobile, LLC and Sierra Faler-MO #70050 HUSCH BLACKWELL LLP

          ORDER ON FINAL PRETRIAL CONFERENCE

          Susan M. Bazis, United States Magistrate Judge

         A final pretrial conference was held on the 25th day of April, 2018. Appearing for the parties as counsel were:

         For Plaintiffs/Counterclaim Defendants/Third-Party Defendants (hereinafter “Plaintiffs”), Pat Brookhouser, Luke Holst, and Matt Munro.

         For Defendants/Counterclaim Plaintiffs/and Third Party Plaintiffs (“Defendants” or “Farmobile”): Marnie A. Jensen, Joan K. Archer, and Sierra J. Faler.

         (A) Exhibits. The Parties exchanged exhibit lists on April 2, 2018. The Parties have agreed to exchange final exhibit lists, with objections, on May 2, 2018. The Court approved the Parties' agreement on exhibits by telephone on April 23, 2018. Farmobile is working on a revised Exhibit List but is not sure when that revised List will be done. Depending on when it is done, Plaintiffs may end up serving objections to the Original Exhibit List that was served by Defendants on April 2, 2018.

Caution: Upon express approval of the judge holding the pretrial conference for good cause shown, the parties may be authorized to defer listing of exhibits or objections until a later date to be specified by the judge holding the pretrial conference. The mere listing of an exhibit on an exhibit list by a party does not mean it can be offered into evidence by the adverse party without all necessary evidentiary prerequisites being met.

         (B) Uncontroverted Facts. The parties have agreed that the following may be accepted as established facts for purposes of this case only:

         [State in detail all uncontroverted facts, including those which are to be stipulated, in such form that the statement may be read to the jury.]

         Plaintiffs state uncontroverted facts that could be read to the jury as follows:

         1. Crop Ventures, Inc. was a Nebraska Corporation.

         2. Crop Ventures, Inc. was the predecessor in interest to Plaintiffs.

         3. Farmobile LLC is a Limited Liability Company.

         Plaintiffs object to the Defendants' proposal regarding uncontroverted facts because it mischaracterizes the Summary Judgment briefing (which speaks for itself and does not need to be repeated here) and the effect of that briefing.

         Farmobile states that there are no disputed issues of material fact, as set forth in Farmobile's Brief in Support of Motion for Summary Judgment (filing no. 278), Brief in Opposition to Plaintiffs' Motion for Summary Judgment (filing no. 290), and Reply Brief in Support of [Farmobile's] Motion for Summary Judgment (filing no. 305).

         Farmobile states that Plaintiffs have admitted the following statements of facts contained in filing no. 278, without any qualification. These facts are therefore uncontroverted and may be read to the jury in the form set forth in filing no. 278:

         1, 3, 4, 5, 6, 8, 9, 10, 34, 44, 45, 46, 58, 64, 65, 66, 104, 106, 108, 113, 114, 115, 116, 117, 118, 119, 120, 128, 129, 130, 131, 132, 134, 137, 144, 148, 149, 152, 154, 161, 165, 166, 167, 168, 173, 174, 177, 178, 179, 181, 182, 183, 184, 186, 187, 189, 190, 191, 192, 193, 195, 196, 200, 201, 203, 204, 206, 207, 209, 213, 214, 217, 222, 249, 250, 259, 260, 263, 266, 268, 271, 280, 281, 283, 285, 287, 288, 289, 290, 291, 296, 297, 299, 302, 305, 307, 308, 309, 310, 312, 313, 316, 320, 321, 323, 324, 325, 326, 342, 346, 347, 356, 358, 360, 361, 362, 363, 364, 365, 368, 369, 370, 371, 372, 373, 374, 375, 376, 379, 382, 387, 389, 390, 391, 392, 393, 397, 398, 399, 400, 402, 408, 409, 410, 411, 412, 413, 414, 415, 416, 418, 419, 422, 440, 443, 444, 445, 447, 449, 450, 451, 452, 453, 454, 455, 456, 457, 458, 459, 460, 461, 462, 463, 464, 465, 466, 467, 469, and 470. (See, Filing No. 305 at p. 2.)

         Farmobile states that Plaintiffs have also admitted the following statements of facts contained in filing no. 278, due to improper objections, or due to their failure to comply with the Court's local rules. These facts are therefore also uncontroverted and may be read to the jury in the form set forth in filing no. 278:

         22, 23, 24, 25, 26, 28, 32, 33, 36, 37, 38, 39, 40, 41, 42, 43, 47, 48, 49, 50, 51, 52, 53, 54, 55, 57, 60, 61, 63, 69, 70, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 105, 107, 109, 110, 111, 112, 123, 124, 133, 135, 136, 138, 139, 146, 147, 150, 151, 153, 158, 159, 162, 163, 164, 171, 172, 175, 185, 202, 212, 215, 218, 219, 220, 221, 223, 224, 225, 234, 235, 236, 237, 238, 239, 240, 241, 242, 243, 244, 245, 246, 251, 252, 253, 254, 255, 256, 257, 261, 264, 265, 269, 270, 272, 273, 274, 276, 278, 279, 284, 286, 292, 298, 306, 314, 315, 317, 318, 319, 327, 328, 329, 330, 331, 332, 333, 334, 335, 336, 337, 338, 339, 340, 341, 343, 344, 357, 359, 366, 381, 383, 388, 394, 395, 396, 401, 403, 405, 406, 407, 417, 420, 421, 423, 424, 425, 426, 427, 428, 429, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 441, 442, 442, and 446, and 448. (Id. at pp. 3-6).

         (C) Controverted and Unresolved Issues. The issues remaining to be determined and unresolved matters for the court's attention are:

         [List all legal issues remaining to be determined, setting out in detail each element of the claim or defense which is genuinely controverted (including issues on the merits and issues of jurisdiction, venue, joinder, validity of appointment of a representative of a party, class action, substitution of parties, attorney's fee and applicable law under which it is claimed, and prejudgment interest). Specify any special damages or permanent injuries claimed. In any negligence action, specify elements of negligence and contributory negligence, if any. Any other unresolved matters requiring the court's attention, such as possible consolidation for trial, bifurcated trials on specified issues, and pending motions, shall also be listed.]

         Controverted and Unresolved Issues. The issues remaining to be determined and unresolved matters for the Court's attention are:

         The Parties were not able to agree on the presentation of the issues remaining to be determined and unresolved matters for the Court's attention. Plaintiffs' proposed statement is followed by Defendants' proposed statement.

         Plaintiffs' Statement of the Issues.

         Plaintiffs' Statement: Plaintiffs' Claims.

         1. Whether Defendants are liable under the Nebraska Uniform Trade Secrets Act, (Neb. Rev. Stat. §§ 87-501 et seq.) for misappropriation of trade secrets.

         a. Whether the claimed trade secrets (as described more completely in the two reports from Aaron Ault) satisfy the statutory definition of trade secrets that covers information (including, but not limited to, a drawing, formula, pattern, compilation, program, device, method, technique, code, or process) that:

         (a) Derives independent economic value, actual or potential, from not being known to, and not being ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and

         (b) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy; b. If so, whether the Defendants' conduct satisfied the statutory definition of misappropriation, which covers:

         i. Acquisition of a trade secret of another by a person (as defined in the statute to include without limitation natural persons, corporations, limited liability companies, and any other legal or commercial entity) who knows or has reason to know that the trade secret was acquired by improper means (as defined by the statute to mean theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means); or

         ii. Disclosure or use of a trade secret of another without express or implied consent by a person who:

1. Used improper means to acquire knowledge of the trade secret;
2. At the time of the disclosure or use, knew or had reason to know that his or her knowledge of the trade secret was:
a. Derived from or through a person who had utilized improper means to acquire it;
b. Acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or
c. Derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or
d. Before a material change of his or her position, knew or had reason to know that the information was a trade secret and that knowledge of it had been acquired by accident or mistake;
c. Whether it is proper to enter an injunction under the Nebraska Uniform Trade Secrets Act to prevent future misappropriation;
d. Whether an injunction should condition future use upon payment of a reasonable royalty;
e. Whether damages in the form of a reasonable royalty in the amount of $1.25 to $2.5 million as set forth more fully in the expert report of Andrew Carter should be awarded.

         2. Whether the individual Defendants Tatge, Nuss and Heath Gerlock are liable for breach of express and implied contract.

         a. Whether they breached express written contractual provisions.

         b. Whether they breached implied contractual obligations including obligations to assign patent interests under the hired to invent doctrine or otherwise.

         c. If so, whether an injunction should be entered requiring Defendants to assign Defendants' entire right, title and interest in the Farmobile Canadian Patent No. CA 2888742C (the “Canadian Patent”) at issue and the allowed U.S. Non-Provisional Patent Application No. 14/434, 621 published as U.S. Patent Publication No. 2015/0234767A1 (the “allowed U.S. patent application”) that Farmobile abandoned that is at issue (and all parent patent applications thereof and all patent applications or issued patents claiming priority thereto including International Patent Application No. PCT/US2014/056818 (the “PCT Application”) at issue and the U.S. Provisional Patent Application Nos. 61/881, 320 and 61/881, 326 (the “Provisional Patent Applications”) filed by Farmobile in September 2013 to Plaintiffs.

         d. If the obligations were breached, whether an injunction should be entered prohibiting the Defendants from using confidential information that they took from Crop Ventures.

         3. Whether the individual Defendants breached duties of good faith and fair dealing.

         a. If they violated their duties of good faith and fair dealing, whether an injunction should be entered requiring Defendants to assign Defendants' entire right, title and interest in the Farmobile Canadian Patent No. CA 2888742C (the “Canadian Patent”) at issue and the allowed U.S. Non-Provisional Patent Application No. 14/434, 621 published as U.S. Patent Publication No. 2015/0234767A1 (the “allowed U.S. patent application”) that Farmobile abandoned that is at issue (and all parent patent applications thereof and all patent applications or issued patents claiming priority thereto including International Patent Application No. PCT/US2014/056818 (the “PCT Application”) at issue and the U.S. Provisional Patent Application Nos. 61/881, 320 and 61/881, 326 (the “Provisional Patent Applications”) filed by Farmobile in September 2013 to Plaintiffs.

         b. If the obligations were breached, whether an injunction should be entered prohibiting the Defendants from using confidential information that they took from Crop Ventures.

         4. Whether the individual Defendants Tatge, Nuss, and Heath Gerlock are liable for breach of fiduciary duty and duty of loyalty.

         a. Whether the Defendants used confidential information peculiar to Crop Ventures' business for their own purposes while employed by Crop Ventures.

         b. Whether the duty of loyalty extends after an employee quits a business.

         c. If so, whether the Defendants used confidential information for Defendants' purposes after leaving Crop Ventures.

         d. If so, whether they used that confidential information as part of the provisional patent applications filed in September 2013 to which the Canadian Patent at issue and the abandoned but allowed U.S. Patent Application at issue both claim priority.

         e. If so, whether an injunction should be entered requiring Defendants to assign Defendants' entire right, title and interest in the Farmobile Canadian Patent No. CA 2888742C (the “Canadian Patent”) at issue and the allowed U.S. Non-Provisional Patent Application No. 14/434, 621 published as U.S. Patent Publication No. 2015/0234767A1 (the “allowed U.S. patent application”) that Farmobile abandoned that is at issue (and all parent patent applications thereof and all patent applications or issued patents claiming priority thereto including International Patent Application No. PCT/US2014/056818 (the “PCT Application”) at issue and the U.S. Provisional Patent Application Nos. 61/881, 320 and 61/881, 326 (the “Provisional Patent Applications”) filed by Farmobile in September 2013 to Plaintiffs.

         f. If the obligations were breached, whether an injunction should be entered prohibiting the Defendants from using confidential information that they took from Crop Ventures.

         5. Whether the Defendants are liable for conversion.

         a. Whether Defendants exerted any wrongful act of dominion over the property of Plaintiffs which deprived the owner of its property permanently or for an indefinite period of time.

         b. Whether the applicable test is the modern approach followed in the Court's ruling on the motions to dismiss or the older approach advocated by Defendants.

         c. If Defendants committed conversion, whether an injunction should be entered requiring Defendants to assign Defendants' entire right, title and interest in the Farmobile Canadian Patent No. CA 2888742C (the “Canadian Patent”) at issue and the allowed U.S. Non-Provisional Patent Application No. 14/434, 621 published as U.S. Patent Publication No. 2015/0234767A1 (the “allowed U.S. patent application”) that Farmobile abandoned that is at issue (and all parent patent applications thereof and all patent applications or issued patents claiming priority thereto including International Patent Application No. PCT/US2014/056818 (the “PCT Application”) at issue and the U.S. Provisional Patent Application Nos. 61/881, 320 and 61/881, 326 (the “Provisional Patent Applications”) filed by Farmobile in September 2013 to Plaintiffs.

         d. If Defendants committed conversion, whether an injunction should be entered prohibiting the Defendants from using confidential information that they took from Crop Ventures.

         6. Whether the Defendants are liable for trespass to chattels.

         a. Whether Defendants dispossessed Plaintiffs of a chattel consisting of Plaintiffs' property rights in the Farmobile Canadian Patent No. CA 2888742C (the “Canadian Patent”) at issue and the allowed U.S. Non-Provisional Patent Application No. 14/434, 621 published as U.S. Patent Publication No. 2015/0234767A1 (the “allowed U.S. patent application”) that Farmobile abandoned that is at issue (and all parent patent applications thereof and all patent applications or issued patents claiming priority thereto including International Patent Application No. PCT/US2014/056818 (the “PCT Application”) at issue and the U.S. Provisional Patent Application Nos. 61/881, 320 and 61/881, 326 (the “Provisional Patent Applications”) filed by Farmobile in September 2013, as well as in confidential information from Crop Ventures;

         b. Whether the chattels' value to Plaintiffs was impaired as to its condition, quality, or value;

         c. Whether the Plaintiffs are deprived of the use of the chattel for a substantial time;

         d. Or harm is caused to some person or thing in which the possessor has a legally protected interest.

         e. Whether the applicable test is the modern approach followed in the Court's ruling on the motions to dismiss or the older approach advocated by Defendants.

         f. If Defendants committed trespass to chattels, whether an injunction should be entered requiring Defendants to assign Defendants' entire right, title and interest in the Farmobile Canadian Patent No. CA 2888742C (the “Canadian Patent”) at issue and the allowed U.S. Non-Provisional Patent Application No. 14/434, 621 published as U.S. Patent Publication No. 2015/0234767A1 (the “allowed U.S. patent application”) that Farmobile abandoned that is at issue (and all parent patent applications thereof and all patent applications or issued patents claiming priority thereto including International Patent Application No. PCT/US2014/056818 (the “PCT Application”) at issue and the U.S. Provisional Patent Application Nos. 61/881, 320 and 61/881, 326 (the “Provisional Patent Applications”) filed by Farmobile in September 2013 to Plaintiffs.

         g. If Defendants committed trespass to chattels, whether an injunction should be entered prohibiting the Defendants from using confidential information that they took from Crop Ventures.

         7. Whether the individual Defendants Tatge, Nuss, and Heath Gerlock are liable for civil conspiracy.

         a. Whether the Defendants combined to accomplish by concerted action an unlawful or oppressive object, or a lawful object by oppressive means.

         b. If Defendants conspired, whether an injunction should be entered requiring Defendants to assign Defendants' entire right, title and interest in the Farmobile Canadian Patent No. CA 2888742C (the “Canadian Patent”) at issue and the allowed U.S. Non-Provisional Patent Application No. 14/434, 621 published as U.S. Patent Publication No. 2015/0234767A1 (the “allowed U.S. patent application”) that Farmobile abandoned that is at issue (and all parent patent applications thereof and all patent applications or issued patents claiming priority thereto including International Patent Application No. PCT/US2014/056818 (the “PCT Application”) at issue and the U.S. Provisional Patent Application Nos. 61/881, 320 and 61/881, 326 (the “Provisional Patent Applications”) filed by Farmobile in September 2013 to Plaintiffs;

         c. If Defendants conspired, whether an injunction should be entered prohibiting the Defendants from using confidential information that they took from Crop Ventures;

         8. Whether Tatge, Gerlock, and Nuss are liable for promissory estoppel;

a. Whether they made promises upon which Crop Ventures reasonably relied;
b. If so, the damages caused by that reasonable reliance; and
c. Whether injustice can only be avoided by enforcing the promise.

         9. Whether the Defendants are liable for violation of the Junkin Act under Neb.Rev.Stat. §§59-801 et seq.

a. Whether Defendants are persons, corporations, joint stock companies, limited liabilities or associations engaged in business within Nebraska;
b. If so, whether Defendants gave any direction or authority to act with the sole purpose of driving Crop Ventures out of business;
c. If so, whether Crop Ventures was damaged in an amount of at least $70, 000;
d. If so, whether Plaintiffs are entitled to attorneys' fees;

         10. Whether the Defendants are liable for tortious interference with a business contract or expectancy.

a. Whether Defendants interfered with a contractual relationship between Crop Ventures and Ken Forster about which they knew by making untrue statements;
b. Whether Defendants engaged in unjustified interference with expectancies with Stephan Richter, DTN, CSS, and AGCO that they knew existed between Crop Ventures and others;
c. If a or b are true proof that the interference proximately caused harm in the form of damage to Plaintiffs.
d. If so, the amount of that damage, in an amount of at least $70, 000.

         11. Whether the Plaintiffs are entitled to a declaratory judgment of ownership and if so, whether an injunction should be entered requiring Defendants to assign Defendants' entire right, title and interest in the Farmobile Canadian Patent No. CA 2888742C (the “Canadian Patent”) at issue and the allowed U.S. Non-Provisional Patent Application No. 14/434, 621 published as U.S. Patent Publication No. 2015/0234767A1 (the “allowed U.S. patent application”) that Farmobile abandoned that is at issue (and all parent patent applications thereof and all patent applications or issued patents claiming priority thereto including International Patent Application No. PCT/US2014/056818 (the “PCT Application”) at issue and the U.S. Provisional Patent Application Nos. 61/881, 320 and 61/881, 326 (the “Provisional Patent Applications”) filed by Farmobile in September 2013 to Plaintiffs.

         12. Whether the Defendants are liable for misappropriation of trade secrets under the Defend Trade Secrets Act, 18 U.S.C. § 1831 et seq.

a. Whether the claimed trade secrets (as described more fully in the reports from Aaron Ault) related to a product or service used in or intended for use in interstate or foreign commerce;
b. Whether the claimed trade secrets fall within the statutory definition of trade secrets which covers all forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing if-
i. the owner thereof has taken reasonable measures to keep such information secret; and
ii. the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, another person who can obtain economic value from the disclosure or use of the information;
c. Whether after May 11, 2016, the Defendants engaged in acts that fall within the scope of the statutory definition of misappropriation that covers:

         i. acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or

         ii. disclosure or use of a trade secret of another without express or implied consent by a person who-

         1. used improper means to acquire knowledge of the trade secret;

         2. at the time of disclosure or use, knew or had reason to know that the knowledge of the trade secret was-

         a. derived from or through a person who had used improper means to acquire the trade secret;

         b. acquired under circumstances giving rise to a duty to maintain the secrecy of the trade secret or limit the use of the trade secret; or

         c. derived from or through a person who owed a duty to the person seeking relief to maintain the secrecy of the trade secret or limit the use of the trade secret; or

         d. before a material change of the position of the person, knew or had reason to know that-

         i. the trade secret was a trade secret; and ii. knowledge of the trade secret had been acquired by accident or mistake;

         3. with the the term “improper means”-

         a. including theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means; and b. not including reverse engineering, independent derivation, or any other lawful means of acquisition d. Whether it is proper for the Court to enter an injunction preventing future use of the claimed trade secrets;

         e. Whether it is proper to the Court to condition future use of the trade secret upon payment of a reasonable royalty for no longer than the period of time for which such use could have been prohibited;

         f. Whether it is proper for damages to be awarded in the amount of a reasonably royalty in the amount of $1.25 million to $2.50 million as set out more fully in the expert reports of Andy Carter;

         g. Whether the trade secrets were misappropriated willfully and maliciously, and if so, the amount of exemplary damages and attorneys' fees to be awarded under the statute;

         h. Whether an act in furtherance of misappropriation was done in the United States if there was misappropriation by Defendants outside the United States.

         13. Whether Plaintiffs are entitled to preliminary and permanent injunctive relief restraining and enjoining Defendants, and each of their officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with any of them and having notice of this action from acquiring, using, or disclosing Plaintiffs' trade secrets, or confidential information, now or in the future.

         14. Whether Plaintiffs are entitled to preliminary and permanent injunctive relief requiring Defendants and each of their officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with any of them and having notice of this action: to deliver to Plaintiffs or this Court all property, documents, materials, or other things in Defendants' possession which embody, contain, or reference Plaintiffs' trade secrets, or confidential information, including but not limited to any information generated by use or reference to Plaintiffs' trade secrets, or confidential information; and to cause to be assigned to Plaintiffs all patents and patent applications, and rights in the Inventions disclosed therein, derived from Plaintiffs' trade secrets or confidential information, and/or from Inventions conceived by Defendant individuals while an employee of Plaintiffs and their predecessors-in-interest, Crop Ventures and Salus Novus.

         15. Whether a constructive trust should be imposed in favor of Plaintiffs and against the Defendants' in the amount of the overall profits received by Defendants from their distribution or sale of products containing features based on or derived from Plaintiffs' trade secrets, confidential information or other intellectual property.

         16. Whether Plaintiffs are entitled to an order declaring at least the following: That Plaintiffs are the rightful owners of the entire right, title and interest in the Farmobile Canadian Patent No. CA 2888742C (the “Canadian Patent”) at issue and the allowed U.S. Non-Provisional Patent Application No. 14/434, 621 published as U.S. Patent Publication No. 2015/0234767A1 (the “allowed U.S. patent application”) that Farmobile abandoned that is at issue (and all parent patent applications thereof and all patent applications or issued patents claiming priority thereto including International Patent Application No. PCT/US2014/056818 (the “PCT Application”) at issue and the U.S. Provisional Patent Application Nos. 61/881, 320 and 61/881, 326 (the “Provisional Patent Applications”) filed by Farmobile in September 2013.

         Plaintiffs' Statement of Issues: Defendants' Affirmative Defenses

         1. Whether Plaintiffs are estopped from asserting their claims because of the equitable doctrines of laches, estoppel, unclean hands, and/or waiver.

         2. Whether Plaintiffs claims are barred by an alleged failure to mitigate damages, or whether Defendants are entitled to a setoff or credit based on alleged failure to mitigate that would otherwise allegedly result in unjust enrichment.

         3. Whether Plaintiffs acted in bad faith by bringing their claim under the Defend Trade Secrets Act of 2016, and if so, the effect of any such finding.

         4. Whether Plaintiffs' contract claims are barred by the doctrine of privity of contract.

         5. Whether the statute of frauds bars Plaintiffs' implied or express oral contract claims. The effect of Defendants' failure to specify any basis for the statute of frauds to apply.

         6. Whether Plaintiffs can prove recoverable injury or damages.

         7. Whether Plaintiffs' claims are barred by the doctrines of Justification, Consent, or Ratification.

         8. Whether Plaintiffs' contract claims are barred by an alleged failure or inadequacy of consideration, whether inadequacy of consideration is a recognizable defense, and whether Plaintiffs' contract claims are barred by an alleged failure to include essential contract terms.

         9. Whether Plaintiffs materially breached the terms of any enforceable agreement(s) with Defendants, and if so, the effect of that breach.

         10. Whether Plaintiffs made fraudulent misrepresentations or fraudulently concealed any facts that induced Individual Defendants to enter into any enforceable agreement, and if so, whether the facts were material and relied upon. If so, whether that is a legal defense to any of Plaintiffs' claims.

         11. Whether recovery on Plaintiffs' contract claims would contravene public policy and would constitute an unreasonable restraint of trade.

         12. Whether recovery on Plaintiffs' Junkin Act claim would violate Defendants' constitutional rights and the effect of Defendants' failure to specify the constitutional rights.

         13. Whether any of Plaintiffs' claims are barred by the applicable statute of limitations based on Plaintiffs' knowledge of Defendants' conduct and failure to file a claim within the applicable statute of limitations period. If so, the effect of Defendants' failure to specify the applicable statute of limitations.

         Plaintiffs Statement Of Issues: Defendants' Counterclaims.

         I. Breach of Contract (Jason Tatge)

a. Whether Crop Ventures, Inc., Plaintiffs' predecessor in interest, breached its contract with Tatge by allegedly failing to comply with the terms of the Letter Agreement;
b. Whether there was a meeting of the minds as to all terms upon which Defendant attempts to base recovery;
c. Whether Tatge complied with his obligations under the contract or breached them in a way that bars recovery;
d. Whether any claimed breach proximately caused damages to Individual Defendant Tatge;
e. If so, whether Defendant has admissible proof of the nature and extent of damages.
II. Unjust Enrichment (Jason Tatge)
a. Whether there is a claim for unjust enrichment for a subject matter that is not covered by an express contract and outside the scope of his employment;
b. If so, whether Plaintiffs have been unjustly enriched by their alleged receipt of a benefit from Individual Defendant Tatge when in justice and fairness Plaintiffs allegedly ought to pay Tatge for such benefit;
c. The extent to which Plaintiffs have been unjustly enriched.
III. Breach of Contract (Heath Gerlock)
a. Whether Individual Defendant Gerlock entered into an enforceable contract with Crop Ventures;
b. Whether there was a meeting of the minds on all necessary terms of the claimed contract;
c. If so, whether Heath Gerlock complied with all of his obligations under the claimed contract or committed a breach that bars recovery;
d. If so, whether there was a breach of contract by Crop Ventures;
e. If so, whether Gerlock has sufficient evidence of damages proximately caused by that breach;
f. If so, whether Gerlock has sufficient evidence of the nature and extent of the damage.
IV. Promissory Estoppel (Heath Gerlock)
a. Whether Gerlock was promised he would receive a ten percent (10%) ownership interest in Crop Ventures;
b. Whether Crop Ventures expected or reasonably should have expected the promise to induce ...

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