Case: 4:22-cv-00445-AGF Doc. #: 1 Filed: 04/18/22 Page: 1 of 30 PageID #: 1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF MISSOURI
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`AMSTED RAIL COMPANY, INC.,
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`Plaintiff,
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`v.
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`HUM INDUSTRIAL TECHNOLOGY, INC., and
`BRENT WILSON,
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`Defendant.
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`CIVIL ACTION NO.: ____________
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`JURY TRIAL DEMANDED
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`VERIFIED COMPLAINT
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`Plaintiff, Amsted Rail Company, Inc (“Plaintiff” or “Amsted”), by and through its
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`attorneys, Fox Rothschild LLP, hereby files the following complaint for misappropriation of trade
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`secrets, tortious interference with business relationships, breach of contract, and patent
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`infringement, and in support thereof, avers as follows:
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`INTRODUCTION
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`1.
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`This dispute arises out of Defendant Brent Wilson’s former employment with
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`Amsted and his appropriation of proprietary information upon his termination from employment.
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`During the course of Mr. Wilson’s employment at Amsted, he contributed to the development of
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`remote sensor technology used to monitor the GPS location and the conditions of rail cars and to
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`predict bearing and wheel failures before the occur. Mr. Wilson’s contributions resulted in his co-
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`inventorship of U.S. Patent No. 9,365,223 (the “’223 Patent”) (attached as Exhibit A) and U.S.
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`Patent No. 9,981,673 (the “’673 Patent”) (attached as Exhibit B). Some of Mr. Wilson’s co-
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`inventors also contributed to the development of additional remote sensing methods, including the
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`EX1011
`Petitioner Hum (223)
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`invention claimed in U.S. Patent No. 10,137,915 (the “’915 Patent”) (attached as Exhibit C). Mr.
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`Wilson was terminated on October 10, 2017 as a result of performance and behavioral issues.
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`2.
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`Mr. Wilson later founded Defendant Hum Industrial Technology, Inc. (“Hum”)
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`which utlized Amsted’s proprietary and patented technologies to impermissibly develop and
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`market a product in direct competition with Amsted. Mr. Wilson and Hum are collectively referred
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`to herein as “Defendants.”
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`PARTIES
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`3.
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`Amsted is a railcar component manufacturer and service company organized under
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`the laws of Delaware with a principal place of business at 311 S. Wacker Drive, Suite 5300
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`Chicago, Illinois 60606.
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`4.
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`Upon information and belief, Hum is a railcar service company incorporated under
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`the laws of Delaware with a principal place of business at 911 Washington Avenue, Suite 501, St.
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`Louis, Missouri 63101.
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`5.
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`Upon information and belief, Mr. Wilson is Chief Technology Officer of Hum and
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`has a last known address at 667 Notre Dame Ave, Edwardsville, Illinois 62025.
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`JURISDICTION
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`6.
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`This Court has subject matter jurisdiction over the trade secret misappropriation
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`claims presented in this action under 28 U.S.C. §1331 as this action arises under The Defend Trade
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`Secrets Act of 2016, 18 U.S.C. §1836. This Court has subject matter jurisdiction over the patent
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`infringement claims presented in this action pursuant to 28 U.S.C. §§1331 and 1338(a) because
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`the action arises under the patent laws of the United States. This Court has supplemental
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`jurisdiction over the controversy for all other claims asserted herein pursuant to 28 U.S.C. §1367.
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`7.
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`This Court has personal jurisdiction over Hum because it resides in the State of
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`Missouri and maintains a principal place of business here.
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`8.
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`On information and belief, the Court has personal jurisdiction over Mr. Wilson
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`under at least MO Rev Stat §506.500(1)-(3) (2021), because he works as CTO of Hum in the St.
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`Louis, Missouri. Specifically, Mr. Wilson has (1) transacted business within the State of Missouri
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`as a function of his employment; (2) made a contract within the State of Missouri as a function of
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`his employment; and (3) has committed tortious acts against Amsted within the State of Missouri
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`as a function of his employment.
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`9.
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`Venue is proper with regard to Hum in the Eastern District of Missouri pursuant to
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`28 U.S.C. §1400(b), because Hum resides in the District, as committed acts of infringement in this
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`district, and has a principle place of business here.
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`10.
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`Venue is proper with regard to Mr. Wilson in the District pursuant to 28 U.S.C.
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`§1400(b), because Mr. Wilson is an officer of Hum and therefore has committed acts of
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`infringement in this district and has a principle place of business here.
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`FACTUAL ALLEGATIONS
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`A. Mr. Wilson’s Employment at Amsted
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`11. Mr. Wilson was employed at Amsted for more than nine years. He began his
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`employment in June of 2008 as Director, Research and Development. He agreed to and signed an
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`employment agreement on June 2, 2008. The agreement is attached as Exhibit D (hereinafter the
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`“Employment Agreement”). Among other things, Mr. Wilson agreed to the following:
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`a. Any and all trade secrets and confidential information belonging to or in the
`possession of Amsted which I acquire, about which I learn, to which I have access
`or which I use during and through, or as a consequence of, my employment by
`Amsted, are, shall be and shall remain Amsted's valuable and proprietary trade
`secrets and confidential information. … During and after my employment by
`Amsted, I shall safeguard and not in any way use or misappropriate, copy,
`reproduce, expose, disclose, make accessible or available, reveal, disseminate,
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`publish, lecture on, discuss or distribute any such trade secret or confidential
`information, except in performance of my duties and responsibilities as an
`employee of Amsted and with, for or to an authorized Amsted employee or agent,
`unless otherwise consented to in writing by Amsted. (Exhibit D at 1).
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`b. I shall not copy, reproduce, expose, disclose, make accessible or available, reveal,
`disseminate or distribute any Amsted file or Amsted information stored on any
`computer or on my memory data storage device, including any Amsted issued or
`approved flash or jump drive or similar device, except in performance of my
`employee duties and responsibilities. (Exhibit D at 2).
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`c. Upon termination of my employment, or whenever requested by Amsted, I shall
`immediately return to Amsted my Amsted issued computer and my Amsted issued
`or approved memory data storage device and all documents, including, without
`limitation, all drawings, notes, notebooks and memoranda, and all copies and
`reproductions thereof, electronic or otherwise, which are in my possession or
`control and which contain, relate to or involve any trade secret or confidential
`information belonging to, or in the possession of Amsted. (Exhibit D at 2).
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`d. During and after my employment with Amsted, I shall not directly or indirectly
`impair, damage, disrupt or interfere with Amsted's actual, actively contemplated or
`demonstratively anticipated business, business interest(s), research, development
`or investigation by directly or indirectly impairing, damaging, disrupting,
`interfering with or inducing, contributing to, aiding in or assisting in a breach of
`Amsted’s contractual relations: (a) with its employees, customers, consultants,
`advisors, suppliers, vendors, subcontractors, agents or representatives and (b) that
`relate to or involve any trade secret or confidential information belonging to or in
`the possession of Amsted. (Exhibit D at 2)
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`12.
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`In the course of Mr. Wilson’s employment at Amsted, he was part of an inventive
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`team that developed the technology that underlies the ’223 Patent and the ’673 Patent. Mr. Wilson
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`also agreed to assign all intellectual property to Amsted, including his contributions to the ’223
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`and ’673 Patents. See Exhibit D at 1.
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`13. Mr. Wilson affirmativly executed an assignment of the ’223 Patent to Amsted on
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`March 10, 2016. This assingment was recorded with the United States Patent and Trademark
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`Office on March 28, 2016.
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`14. Mr. Wilson affirmatively executed an assignment of the ’673 Patent to Amsted on
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`March 10, 2016. This assignment was recorded with the United States Patent and Trademark
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`Office on March 31, 2016.
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`15. Mr. Wilson’s behavior throughout his employment fell below the standards Amsted
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`demands from its employees. This behavior culminated in an incident in the Amsted parking lot
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`that resulted in damage to company property and that of another employee. In the course of the
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`investigation of this incident, Amsted discovered that he had been downloading company files in
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`violation of the Employment Agreement.
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`16.
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`Combined with other behavioral and performance issues, this incident lead Amsted
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`and Mr. Wilson to enter into a “Last Chance Agreement” which Mr. Wilson signed on May 23,
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`2017. In the agreement, Mr. Wilson acknowledged his unacceptable behavior and agreed to not
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`download any material from Amsted. This agreement is in addition to the terms of the Employment
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`Agreement attached as Exhibit D.
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`17. Mr. Wilson’s employment at Amsted continued until his termination on October
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`10, 2017. On that date, Mr. Wilson accepted a severance package in exchange for a general release
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`of Amsted.
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`B.
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`Amsted’s Patented Technology
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`18.
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`Amsted owns numerous patents, in the United States and abroad, covering various
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`railcar and train consist monitoring and analysis technologies. One such technology is a railcar
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`monitoring system, developed in part with contributions from Mr. Wilson when he was an Amsted
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`employee, that can detect various operational parameters of a rail car wheelset, including but not
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`limited to temperature, vibration, acceleration, et cetera. This technology is described in the shared
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`specification of the ’223 and ’673 Patents and the specification of the ’915 Patent.
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`19.
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`The ’223 and ’673 Patents generally describe sensor units (referred to as “motes”
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`in the ’223/’673 Patents) that include a housing, a sensor, electronic circuitry, wireless
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`communications components, and a power source. See Exhibit A at 4:1-5:29, Figs. 1, 2. The sensor
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`units can be mounted to a rail car in various ways including as shown in Figures 3, 3A, and 4. The
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`’915 Patent refers to sensor units as wireless sensor nodes (“WSNs”) and incorporates the
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`specification of the ’223 patent. See Exhibit C at 4:47-63.
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`20.
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`Also described in the ’223 and ’673 Patents are communication management units
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`(“CMUs”), also mounted on the rail car, that collects data sent from the individual sensor units.
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`See Exhibit A at 6:65-8:4, Fig. 6. The CMU described in the ’223 and ’673 Patents is capable of
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`performing advanced data analysis and may apply any number or combination of heuristics to
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`analyze data received from the sensor units. See id. at 8:5-11:45, Fig. 6. A number of algorithms
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`performed by the CMU are also described. See id. at 11:46-15:17.
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`21.
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`The ’915 Patent describes multiple CMUs mounted on railcars each communicating
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`with sensor units mounted on the railcars (wireless sensor nodes or “WSNs”) and with a powered
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`wireless gateway (“PWG”) to form an onboard network. See Exhibit C at 3:22-4:63, Figs. 1, 2.
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`The ’915 Patent describes algorithms for analyzing sensor data to detect operational anomalies,
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`for example, wheel damage. See id. at 10:4-28, 38-54, Fig. 10.
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`22.
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`Amsted has properly virtually marked its products embodying the ’223, ’673, and
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`’915 Patents with the appropriate patent numbers.
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`C.
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`Hum’s Infringing Products
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`23.
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`On information and belief, Mr. Wilson founded Hum for the purpose of
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`manufacturing, marketing, and selling systems and devices that infringe Amsted’s patented
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`technology.
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`24. Mr. Wilson personally marketed the Hum Boomerang system at tradeshows, for
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`example at the 2021 meeting of the National Coal Transportation Association (“NCTA”) and the
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`2021 semi-annual meeting of the Southwest Association of Rail Shippers (“SWARS”). The
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`presentation slides used by Mr. Wilson at the NCTA meeting included images and graphs that are
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`identical to images and graphs used in documents prepared, by Mr. Wilson and others, for internal
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`Amsted use nearly a decade prior to 2021.
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`25.
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`Hum has produced and distributed marketing material that describes the functional
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`features of this system. A copy of one such marketing document is attached as Exhibit E. In Exhibit
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`E, Hum describes a “proprietary bearing condition algorithm … developed over 15 years of
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`research.” Exhibit E was distributed at least at the SWARS event in 2021.
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`26.
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`Hum advertises a Hum Boomerang, which it describes as a sensor device for use
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`on railcar wheelsets, and a Hum Gateway (the “Accused Products”). See Exhibit E at 2 (reproduced
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`below).
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`The Hum Boomerang
`Product Specifications
`• Vibration and temperature sensing for
`railcarwheels and bearings
`• First-of-its-kind Hum Algorithm identi(cid:173)
`fies wheel and bearing failure months
`to years in advance
`• High bearing temperature alerts
`• 7+ year battery life
`• Pairs with the Hum Gateway
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`27.
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`Among the features described in Hum’s marketing material, the Boomerang is
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`described as including a “first-of-its-kind Hum Algorithm [that] identifies wheel and bearing
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`failure months to years in advance.” Id. Hum states that this algorithm has been “developed over
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`15 years.” Id. at 1. Through the use of the Hum Bearing Health Index, the Boomerang system
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`generates “a single value that car owners can use to track the condition of their bearings over time.”
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`Id.
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`GPS+ Bearing Condition
`-
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`Ptcdh:tl~ D.i~rlng Omd1Uu11 by ,.:v~rlty
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`Hum's proprietary bearing condition
`algorithm was developed over 15 years
`of research to provide car owners with
`deep visibility into the maintenance
`needs of their fleet
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`Using advanced vibration and tern·
`perature monitoring, Hum can predict
`bearing failure months to years in ad·
`vance giving car owners ample time to
`plan and schedule their maintenance
`optimally.
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`.• ,.
`..
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`..
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`> 50.000 mies remofnlng
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`..
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`25,000 • 50,000miles
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`10.000 • 25,000 miles
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`< 10,000 miles remaining
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`The Hum Bearing Health Index (BHI) is a single value that car owners can use to track the
`condition of their bearings over time.
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`28.
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`Similar heuristics can be used to identify defects and degradation of railcar wheels.
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`See id.
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`GPS+ Wheel Condition
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`Hum's proprietary algorithm is also
`capable of identifying high wheel impacts
`independent of any WILD detectors. Just
`like the Hum BHI. wheels condition
`monitoring allows car owners to track the
`degradation of their wheels over time.
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`Car owners who have equipped the Hum
`Boomerang have identified ,and removed
`wheelsets at the time and place that
`allows them to minimize their costs.
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`29.
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`Similar heuristics can be used to identify defects and degradation of railcar wheels.
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`See id.; see also Running Away With Repairs: How Railroads Own the Biggest Piece of the
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`Maintenance PIe[sic], dated August 2, 2021 (available at https://www.humindustrial.com/post/
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`running-away-with-repairs) (last visited April 12, 2022) (attached hereto as Exhibit K).
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`30.
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`Amsted sent a demand letter to Hum on October 28, 2021 detailing Hum’s alleged
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`infringement of the ’223 patent. The letter is attached as Exhibit F (hereinafter the “October 28
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`Letter”). As a result of the inclusion in the letter and certain exhibits of Amsted confidential and
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`other information that Mr. Wilson misappropriated from Amsted in violation of his contract, the
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`letter is attached in redacted form. The letter provided Hum with notice of Amsted’s patent
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`infringement claims and October 28, 2021 is the latest date at which Hum had actual knowledge
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`of the claims of the ’223 patent and the acts that infringement said claims. Amsted’s October 28
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`Letter included a reservation of rights.
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`31.
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`Hum responded to the October 28 Letter with a general denial and did not include
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`any specific assertions that would mitigate or contradict Amsted’s allegations of infringement. In
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`that letter Hum failed to point to any particular or specific aspect of the Hum accused system, or
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`any element of the ’223 patent claim, that was missing from the Hum system. Hum also failed to
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`identify any specific prior art that could or would invalidate the ’223 patent claim. Hum merely
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`made a general denial without any specifics to support that general denial. Amsted responded by
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`letter on January 25, 2022. This letter is attached as Exhibit G (hereinafter the “January 25 Letter”).
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`The January 25 Letter requested confirmation of Hum’s ceasing of its infringing activities within
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`two weeks. As of the date of filing of this complaint, Amsted has not received the requested
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`confirmation from Hum that it ceased infringement in response to the January 25 letter.
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`32.
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`Hum also had knowledge and notice of the ’223 and the ’673 Patents through the
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`direct, actual knowledge of Mr. Wilson. Mr. Wilson is a co-inventor of the ’223 and ’673 Patents
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`and affirmatively assigned both to Amsted. Both applications that issued as the ’223 and ’673
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`Patents were filed during the term of Mr. Wilson’s employment at Amsted.
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`33.
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`On information and belief, Mr. Wilson had actual knowledge of the conception and
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`reduction to practice of the invention described and claimed in the ’915 Patent. Although Mr.
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`Wilson is not a co-inventor of the ’915 Patent, the inventorship of the ’223 and ’673 Patents
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`overlaps with the inventorship of the ’915 Patent. Specifically, Andrew Martin and William
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`LeFebvre are co-inventors of all three patents. The development of the underlying technology of
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`the ’915 Patent occurred during the term of Mr. Wilson’s employment at Amsted as Director,
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`Research and Development.
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`34.
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`During all times relevant to Amsted’s patent infringement claims, Mr. Wilson has
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`been the CTO of Hum. As an officer, and one of only two employees, of Hum, Mr. Wilson’s
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`knowledge of the ’223, ’673, and ’915 Patents is imputed to Hum for all purposes and for the
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`entirety of its existence.
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`D. Mr. Wilson’s Misappropriation of Protected Trade Secrets
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`35.
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`On information and belief, Mr. Wilson downloaded and/or otherwise obtained,
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`without authorization, sensitive and secret information and code associated with the onboard
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`monitoring sensor and gateway technology during his employment at Amsted as well as other
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`documents, data, and information that he had access to during his employment at Amsted.
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`36. Mr. Wilson admitted in the Last Chance agreement to downloading digital files
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`from Amsted equipment without authorization.
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`37.
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`The presentation slides that Mr. Wilson used to promote the Accused Products
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`included images and data that appears, in identical form, in documents created within Amsted as
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`much as a decade earlier.
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`38.
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`Hum promotional material describes its algorithm as being “developed over 15
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`years of research.” See Exhibit E at 1. Assuming that statement to be true, a substantial portion of
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`the development of Hum’s algorithm occurred when Mr. Wilson was employed by Amsted.
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`39.
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`On information and belief, Mr. Wilson accessed and acquired non-public,
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`proprietary and confidential data and code associated with the algorithm Amsted developed for
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`use in its railcar monitoring systems. This non-public, proprietary and confidential data and code
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`comprise the Amsted Trade Secrets.
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`40.
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`The Amsted Trade Secrets were stored on restricted access servers. Mr. Wilson, by
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`virtue of his position, had nominal access to these servers as a function of his employment at
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`Amsted. However, he was explicitly forbidden by the Employment Agreement and the Last
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`Chance Agreement from downloading or accessing any company data or code, including the
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`Amsted Trade Secrets without prior authorization.
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`41.
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`The Amsted Trade Secrets comprise highly valuable assets of Amsted and may be
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`summarized as including, but not necessarily limited to, the following techniques and data:
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`a. Research and development conducted for use in the development of Amsted’s
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`technology;
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`b. Algorithms and data relating temperature and vibration parameters with a predicted
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`bearing failure rate and probability;
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`c. Algorithms and data relating temperature and vibration parameters with a predicted
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`wheel failure rate and probability;
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`d. Algorithms and data using temperature and vibration parameters to determine the
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`severity of a detected condition.
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`42.
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`The above stated methods, processes, and techniques comprising the Amsted Trade
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`Secrets were in fact viewed, accessed, and sufficiently understood by Mr. Wilson during the course
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`of his employment. On information and belief, Mr. Wilson accessed, viewed, copied, and
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`downloaded the Amsted Trade Secrets, without authorization and then incorporated or directed the
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`incorporation of the Amsted Trade Secrets into the Hum algorithm, including the Hum Bearing
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`Index.
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`43.
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`The above stated methods, processes and techniques comprising the Amsted Trade
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`Secrets are based on underlying software algorithms which themselves also comprise Amsted
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`Trade Secrets. By accessing, viewing, copying, and downloading the Amsted Trade Secrets as
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`described above, Defendants were able to misappropriate the software algorithms, in whole or in
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`part and in various combinations thereof, by and through Mr. Wilson’s downloading, installation,
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`accessing, use, investigation, dissection, manipulation, reverse engineering, and disassembly of
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`the Amsted Trade Secrets, and then incorporating the Amsted Trade Secrets into the Accused
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`Products.
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`44.
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`Amsted is the sole owner and proprietor of all right, title, and interest in and to the
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`Amsted Trade Secrets. Mr. Wilson’s downloading, accessing, and use of the Amsted Trade Secrets
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`was unauthorized. Defendants, therefore, lacked authorization or permission to download, access,
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`and use the Amsted Trade Secrets in the Accused Products.
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`45.
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`Amsted undertook responsible steps to safeguard the Amsted Trade Secrets.
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`Amsted stored them in a secure location and restricted access only to individuals having a need to
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`know or otherwise legally obligated to maintain confidence, not disclose them, and not use them
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`other than for the purpose for which the disclosure is made, such as development in the course of
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`Mr. Wilson’s employment.
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`46.
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`Amsted implemented protective measures to prevent the Amsted Trade Secrets
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`from unauthorized use, so that others could not unjustifiably reap the benefits of Amsted’s
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`extensive investment in labor and innovation of the Amsted Trade Secrets.
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`47.
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`The Amsted Trade Secrets have independent economic value from not being
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`generally known to, and not readily ascertainable through proper means, by another person. The
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`Amsted Trade Secrets are crucial to business growth, efficiency, profit generation, increased
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`market share, increased customer interaction, goodwill creation and growth, increased
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`technological efficiencies, cost savings and other increased customer interaction and revenue.
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`COUNT I
`MISAPPROPRIATION OF TRADE SECRETS (18 U.S.C. §1836)
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`48.
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`Plaintiff incorporates, by reference, paragraphs 1 through 47 as though fully set
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`forth at length herein.
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`49.
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`Defendants’ conduct constitutes a violation of The Defend Trade Secrets Act, 18
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`U.S.C. §1836 (the “DTSA”).
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`50.
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`The DTSA specifically defines “trade secrets” as comprising:
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`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— (A) the owner thereof has taken
`reasonable measures to keep such information secret; and (B) 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.
`
`18 U.S.C. §1839(3).
`
`51.
`
`The Trade Secrets derive “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.” 18
`
`U.S.C. §1839(3).
`
`52.
`
`53.
`
`Plaintiff has taken reasonable measures to keep the Trade Secrets secret.
`
`Plaintiff only allowed access to and disclosure of the Trade Secrets subject to
`
`confidentiality, non-use, and nondisclosure restrictions in the Confidentiality Agreement.
`
`54. Mr. Wilson’s access to the Trade Secrets at the time of the misappropriation was
`
`unauthorized.
`
`55.
`
`Defendants misappropriated, as that term is defined in the DTSA at 18 U.S.C.
`
`§1839(5), the Trade Secrets by knowingly acquiring the Trade Secrets through improper means,
`
`namely, by making false statements and breaching contractual obligations to maintain the
`
`confidentiality of the Trade Secrets, not to use or disclose same, and/or fraudulently inducing
`
`Plaintiff to disclose the Trade Secrets in a manner inconsistent with Plaintiff’s reasonable measures
`
`to keep the Trade Secrets secret and maintain confidentiality and secrecy of same.
`
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`56.
`
`Defendants further misappropriated the Trade Secrets by using the Trade Secrets
`
`without Plaintiff’s express or implied consent.
`
`57.
`
`The Trade Secrets have substantial economic value and have conferred an unfair,
`
`wrongful competitive advantage to Defendants.
`
`58.
`
`Defendants have and will continue to recklessly and maliciously misappropriate
`
`and the Trade Secrets through their continued use of same.
`
`59.
`
`As a direct and proximate cause of Defendants’ current and continued
`
`misappropriation of the Trade Secrets, Plaintiff will suffer imminent and irreparable harm and,
`
`alternatively, has suffered substantial damages.
`
`60.
`
`Plaintiff has no adequate remedy at law. Unless enjoined by this Court, Defendants’
`
`acts of misappropriation will continue, and Plaintiff will continue to suffer irreparable harm.
`
`COUNT II
`MISSOURI UNIFORM TRADE SECRETS ACT, MO REV STAT § 417.450, ET SEQ.
`
`61.
`
`Plaintiff incorporates, by reference, paragraphs 1 through 60 as though fully set
`
`forth at length herein.
`
`62.
`
`Defendants’ misappropriation of Plaintiff’s Trade Secrets as described herein
`
`constitutes a violation of the Missouri Uniform Trade Secrets Act, MO Rev Stat §§ 417.450 to
`
`417.467 (the “MUTSA”)
`
`63.
`
`64.
`
`65.
`
`The Amsted Trade Secrets are protectable trade secrets under the MUTSA.
`
`Defendants have misappropriated the Amsted Trade Secrets.
`
`As a direct and proximate cause of Defendants’ current and continued willful and
`
`malicious misappropriation of the Trade Secrets under the MUTSA, Plaintiff will suffer imminent
`
`and irreparable harm and, alternatively, has suffered substantial damages.
`
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`
`
`66.
`
`Plaintiff has no adequate remedy at law. Unless enjoined by this Court, defendants’
`
`acts of misappropriation will continue and Plaintiff will continue to suffer irreparable harm.
`
`COUNT III
`BREACH OF CONTRACT BY MR. WILSON
`
`67.
`
`Plaintiff incorporates, by reference, paragraphs 1 through 66 as though fully set
`
`forth at length herein.
`
`68. Mr. Wilson’s Employment Agreement is expressly governed by Illinois law.
`
`69.
`
`Through the Employment Agreement attached as Exhibit D, Mr. Wilson and
`
`Amsted assented and formed a written contract on June 2, 2008, in exchange for his compensation
`
`paid by Amsted in connection with Mr. Wilson’s employment with Amsted, Mr. Wilson agreed to
`
`the following terms:
`
`e. assign all rights to Intellectual Property (as defined in section 1 of Exhibit D)
`conceived, made, developed, written, prepared, or acquired during his employment
`or within one (1) year after termination of such employment relating or involving:
`
`i. any work, responsibilities, duties, tasks, projects, or assignments in
`connection with this employment at Amsted;
`
`ii. any matter that is known to him to may be the subject of or part of Amsted’s
`actual, actively contemplated or demonstratively anticipated business,
`business
`interest,
`research, development,
`investigation, sales, or
`manufacturing; or
`
`iii. any Intellectual Property that is known to him to have been, be, or hereafter
`may be or are owned, researched, developed, investigated, tested, used, sold
`or manufactured by Amsted;
`
`f. safeguard and not in any way use or misappropriate, copy, reproduce, expose,
`disclose, make accessible or available, reveal, disseminate, publish, lecture on,
`discuss or distribute any trade secret or confidential information without
`authorization;
`
`g. refrain from unauthorized copying, reproducing, exposing, disclosing, making
`accessible or available, revealing, disseminating or distributing any Amsted file or
`Amsted information stored on any computer or on my memory data storage device;
`
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`
`
`h. upon termination, immediately return to Amsted any Amsted issued devices and all
`documents, including, without limitation, all drawings, notes, notebooks and
`memoranda, and all copies and reproductions thereof, electronic or otherwise,
`which are in my possession or control and which contain, relate to or involve any
`trade secret or confidential information belonging to, or in the possession of
`Amsted.
`
`70.
`
`At least as a result of the actions described in this complaint, Mr. Wilson breached
`
`one or more of the above terms and failed to comply with his obligations under the employment
`
`agreement.
`
`71. Mr. Wilson’s breach of the Employment Agreement was material and substantial
`
`because the terms breached were central to the interest Amsted sought to protect through its
`
`participation in the Employment Agreement, namely the protection, safeguarding, and
`
`enforcement of its Intellectual Property (as defined in the Employment Agreement) and any other
`
`trade secret or confidential information owned and protected by Amsted.
`
`72.
`
`73.
`
`Amsted has complied with all of its obligations under the employment agreement.
`
`As a direct and proximate cause of the foregoing, Amsted has suffered and
`
`continues to suffer and incur substantial damages.
`
`COUNT IV
`TORTIOUS INTERFERENCE
`
`74.
`
`Plaintiff incorporates, by reference, paragraphs 1 through 73 as though fully set
`
`forth at length herein.
`
`75.
`
`Amsted has a valid and enforceable contract with Mr. Wilson. Amsted also has
`
`contractual and/or business relationships with various customers.
`
`76.
`
`On information and belief, Hum, through Mr. Wilson, had knowledge of those
`
`contracts
`
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`
`
`77.
`
`On information and belief, Hum