With a factual background that resembles a bad Hollywood script, the most recent chapter in the ongoing dispute between former co-founder of Trilobio, Keoni Gandall (defendant), and Trilobio and his two former partners and co-founders Roya Amini-Naieni and Maximilian Schommer (plaintiffs) ended on October 17, 2024, with the court enjoining Gandall and his new company from using Trilobio’s trade secrets. While at first blush this case appears to be a run-of-the-mill trade secret misappropriation case, peeling back the layers even a little identifies a host of questions that seem to lack answers, and may have necessitated a different result.

First, there are questions regarding the timing of the suit, when Plaintiffs did or should have discovered Gandall’s alleged trade secret misappropriation, and if Plaintiffs, therefore, adequately protected their trade secrets.

To that end, Plaintiffs allege that Gandall was fired in February 2023, and allege that Gandall allegedly misappropriated Trilobio’s trade secrets immediately following and several months before his termination. And Plaintiffs also allege that they did not discover Gandall’s trade secret misappropriation until September 2024. Now, for most practitioners, discovering trade secret misappropriation 18 months after the employee departed can happen, but it is not a common occurrence.

Making this all the more odd, though, is that Gandall sued Plaintiffs for employment-related and breach of contract claims in December 2023. And Gandall further made demands of the Plaintiffs for stock he claimed was due him for months prior to that. Gandall also alleged, somewhat salaciously, that his termination was due to a secret affair gone awry between he and Amini-Naieni, all while Amini-Naieni was engaged to Schommer. In the same pleading, Gandall alleges that Amini-Naieni defamed him by claiming to third-parties, including Gandall’s family, that Gandall had sexually assaulted Amini-Naieni. Plaintiffs’ pleadings are virtually silent responding to these points.

Adding to the layers of confusion, no explanation is provided as to why, despite these allegations, Plaintiffs did nothing in the aftermath of Gandall’s termination to forensically image or investigate his behavior, particularly after they were sued.

And that conduct becomes all the more questionable when you start to examine other allegations that Plaintiffs make in their complaint and motion for TRO, including that Trilobio received an email meant for Gandall in April 2023, which suggested that Gandall was soliciting Trilobio’s investors within six weeks of his departure. Or that Gandall began doing business purportedly related to Trilobio’s business with another Trilobio investor in May 2023. Or that Gandall was allegedly posting what Trilobio claims is its trade secret source code on his personal webpage in May 2023. Or that, during that same month, Gandall hosted and posted to his YouTube channel a video in which he discussed his work around oligo pool technology, something Trilobio claims is its trade secret and that Gandall misappropriated. Despite all of these public activities that occurred within months of Gandall’s departure from Trilobio, Trilobio failed to discover any of this until September 2024.

Even more odd, in its moving papers, Trilobio—despite claiming its source code was a trade secret—published the code in an unsealed document, even after filing redacted versions of its pleadings publicly.

These are but a few of the examples that Plaintiffs offer in their papers, but the central theme behind almost all of this is that Gandall was exceptionally public about what he was doing post-termination and yet Plaintiffs, who were embroiled in a lawsuit with Gandall since December 2023, discovered none of it.

Any practitioner that has brought trade secret misappropriation claims knows that the hallmark of a trade secret is taking sufficient steps to protect the confidentiality of the information. But outside of identifying the use of a confidentiality agreement with Gandall, Trilobio’s papers are virtually silent as to the steps it took during Gandall’s employment to protect its information and absolutely silent as to the reasons why—despite Gandall’s very public “use” of those alleged trade secrets—they failed to discover the misappropriation until September 2024. The court’s decision granting the TRO did not address any of these questions or how the information continued to constitute a trade secret.

Next, there are questions about Gandall’s claims to have received permission to download certain information. This is particularly the case when one considers the curious circumstances behind how Gandall departed Trilobio, the evidence of which suggests a question of fact as to Gandall’s claims of having permission to download that which he did. In Gandall’s California state court case, he claims that Amini-Naieni and Schommer were involved in a romantic relationship predating his termination. He also alleges that, in January 2023, Gandall and Amini-Naieni began their own sexual relationship, while Amini-Naieni and Schommer continued to be engaged. When the relationship broke off in February 2023, Amini-Naieni allegedly offered Gandall $100,000 to depart Trilobio, but Gandall declined, because he was approximately two months away from 675,000 shares in Trilobio fully vesting. Interestingly, though, again, the court did not consider any of this.

Indeed, Gandall, who made his allegations in his state-court case (and attached those pleadings to his response in opposition to Plaintiffs’ motion for TRO) nearly a year before Trilobio brought the instant case, claims that Amini-Naieni approved him downloading certain documents, all before the alleged misappropriation occurred and long before he was terminated. Further, according to Gandall, he publicly uploaded the oligo pool files to his website as of November 3, 2022. (Dkt. 21-1 at ¶ 35.) While Plaintiffs do not expressly identify the date on which the review was provided to Gandall, the document does show that Gandall responded and provided comments to it on November 29, 2022, over three weeks after Gandall posted the oligo pool files on his personal webpage, allegedly with Amini-Naieni’s permission. (Dkt. 15-8.) In spite of that, though, the court found that: “It simply is not credible that Amini-Naieni would have given him permission to download the company’s confidential information that same month.” (Dkt. 31 at p. 5.) It is worth noting, however, that this is not what Gandall claimed. Instead, Gandall alleged: “Only after Trilobio ceased its exploration of oligo pool technology in early 2022 and the oligo pool files had been dormant for almost a year, did I request Ms. Amini-Naieni’s consent to upload the oligo pool files to my website. She gave her consent, and on November 3, 2022, I uploaded them to my website.” (Dkt. 21-1 at ¶ 35.) In other words, Gandall does not allege a date specific on which Amini-Naieni provided consent, but instead alleged a date specific on which Gandall uploaded the files to his website.

Rather than deal with these discrepancies, though, the court found that it would be incredible for the plaintiff to provide this sort of permission to Gandall at a time that he was also receiving a negative performance review. It made this finding despite Gandall providing the court with his allegations about his intimate relationship with Amini-Naieni. It also made this finding despite the text exchange that Plaintiffs attached to its complaint including the following exchange:

Amini-Naieni: It’s over. (February 21, 2024, 7:57 p.m.)

Gandall: Wait what?

Amini-Naieni: You’re fired. I’ll handle the paperwork tomorrow. (2/21/24, 8:00 p.m.)

Gandall: You won’t even talk to our investors about it? Or try to hear me out, non-emotionally, with an improvement plan?

Amini-Naieni: My decision is final.

(Trilobio, Inc. v. Gandall, Case No. 4:24-cv-06337-JST, Dkt. 15-4.) At a minimum, this text exchange seems to corroborate Gandall’s claim that he was involved in an intimate relationship with Amini-Naieni, and may also explain why, despite perceptions as Gandall’s performance from Schommer in November 2022, Amini-Naieni may have provided Gandall with permission to download certain information to Gandall’s personal website. From the documentation, it also appears that Amini-Naieni blocked Gandall from sending her messages thereafter. (Id.) The circumstances behind Gandall’s departure and the lead text from Amini-Naieni certainly suggested that some level of follow-up be conducted, especially for purposes of weighing credibility and explanations by the varying parties. None of this occurred, however.

Third, there are questions about whether the information at issue constitutes a trade secret. This was another issue that was not really addressed by the court, despite very different takes from the parties on whether the information (particularly the oligo pool documents) actually constituted a trade secret. Again, a trade secret must have economic value to the company in remaining a secret. However, here, Gandall presented a host of well-pled facts about how Trilobio had abandoned its commercial efforts around oligo pool technology; to which Plaintiffs’ public filing effectively responds, “did not.” (Obviously, it is impossible to know what precisely Trilobio provided under seal for the court’s consideration, but it is worth noting that Amini-Naieni’s Supplemental Declaration offers no evidence that Trilobio was considering this technology after November 17, 2022.) (Dkt. 26-1 ¶ 12.)

What even just this smattering of contradictions reveals is that this case is far more convoluted than a simple trade secret misappropriation case. But it also underscores how important the arguments that are made at the trial level are and how discussing and explaining the standard and where Plaintiffs have failed to meet that standard are essential. Of course, this case is now headed for expedited discovery. And the Plaintiffs will be required to answer questions as to when and how it became aware of certain facts, why it failed to take action sooner, despite Gandall’s public use of this information even during his Trilobio employment (cf. Dkt. 15-15 at ¶ 6 (Sun Decl., discussing his examination of publicly available files on Gandall’s webpage) with Dkt. 21-1 at ¶ 35 (Gandall Decl., identifying that he uploaded oligo pool information to his public website on November 3, 2022)), and whether it truly has treated the oligo pool technology as a trade secret. Moreover, because Plaintiffs brought this as a DTSA claim, they have also exposed themselves to fee shifting if the court later finds that they brought a bad faith trade secret misappropriation claim. This will certainly be an interesting case to follow as further facts develop.