Infospan, Inc. v. Emirates Nbd Bank Pjsc

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
INFOSPAN, INC.,
Plaintiff-Appellant,
v.
EMIRATES NBD BANK PJSC,
Defendant-Appellee.
No. 17-55000
D.C. No.
8:11-cv-01062-JVS-AN
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Argued and Submitted July 11, 2018
Pasadena, California
Before: BERZON and N.R. SMITH, Circuit Judges, and CASTEL,** District
Judge.
InfoSpan, Inc. appeals from an adverse jury verdict on its trade secret
misappropriation, misrepresentation, and unfair competition claims against
Emirates NBD Bank PJSC (the Bank). On appeal, InfoSpan raises a series of
FILED
AUG 07 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable P. Kevin Castel, United States District Judge for the
Southern District of New York, sitting by designation.

-- 1 of 4 --

evidentiary rulings that it claims prejudiced its case at trial, and it claims that its
case was further prejudiced by an improper instruction on United Arab Emirates
(UAE) law that pertained to one of the claims at issue. Because we conclude that
InfoSpan was not prejudiced by the adverse evidentiary rulings and the jury was
properly instructed, we affirm.
1. Evidentiary Issues. “[J]udicial error alone does not mandate reversal.”
Obrey v. Johnson, 400 F.3d 691, 699 (9th Cir. 2005). Prejudice is also required.
See id. In response to InfoSpan’s claims of error on appeal, the Bank amply
established that any erroneous evidentiary rulings were “more probably than not
harmless.” See id. (quoting Haddad v. Lockheed Cal. Corp., 720 F.2d 1454, 1459
(9th Cir. 1983)). By way of example, the Bank identified voluminous record
evidence to establish the following:
• InfoSpan never developed a stored value card capable of doing what it
promised.
• InfoSpan misrepresented that it had a stored value card that had already been
deployed for commercial use.
• The Bank decided to terminate the agreement with InfoSpan because the
Bank discovered InfoSpan’s misrepresentations of its technology and
inability to deliver the product it promised.
• The Bank never received the servers that InfoSpan said contained the
allegedly misappropriated trade secretes.
2

-- 2 of 4 --

InfoSpan fails to grapple with any of this evidence. Moreover, the evidence
InfoSpan cited to establish its ownership of trade secrets and the Bank’s alleged
misappropriation of the same was vague, and portions of it tended to corroborate
the Bank’s theory rather than its own. For example, the evidence InfoSpan cited in
its reply brief includes references to the non-functioning “NOBOCARD.” It also
included manuals and documents relating to the stored value card that list dates of
creation post-dating InfoSpan’s agreement with the Bank by over a year.
In contrast to the voluminous evidence establishing the Bank’s defense, the
allegedly prejudicial evidence was thin and briefly touched upon in the course of a
ten-day trial.1 Accordingly, even assuming the trial court erred in its evidentiary
rulings, any errors were “more probably than not harmless.” Obrey, 400 F.3d at
699 (quoting Haddad, 720 F.2d at 1459).
2. UAE law instruction. We find no error in the trial court’s decision not to
include the “good faith” language InfoSpan requested in the jury instruction on
UAE law. As an initial matter, InfoSpan offered the instruction after the Bank
1 In particular, the testimony regarding the rape or sexual assault incident
(involving one of InfoSpan’s high level employees in Pakistan) was brought to the
jury’s attention in a relatively short exchange during the trial and the Bank
mentioned the incident only obliquely and in passing in its closing argument.
InfoSpan’s decision to highlight and belabor the incident in its own closing
argument does not establish prejudice.
3

-- 3 of 4 --

rested. But even if timing were no issue, we review “the particular formulation of
civil jury instructions for abuse of discretion.” White v. Ford Motor Co., 312 F.3d
998, 1020 (9th Cir. 2002), opinion amended on denial of reh’g, 335 F.3d 833 (9th
Cir. 2003). To establish prejudicial error in civil jury instructions, InfoSpan needed
to show that the instructions taken as a whole failed to correctly and fairly cover
the substance of the applicable law. Id. at 1021. Yet InfoSpan has not asserted that
the instruction given suggested that filing a criminal complaint in bad faith was
permissible under UAE law. The district court’s decision not to expressly add the
good faith qualifying language InfoSpan requested was not an abuse of
discretion—especially where the only support for the final-hour instruction was a
declaration of a previously undisclosed expert witness.
AFFIRMED.
4

-- 4 of 4 --