Yerbae LLC v. Sweat et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Yerbaé, LLC,
Plaintiff,
v.
Carl Sweat, et al.,
Defendants.
No. CV-25-01686-PHX-KML
ORDER
After defendant Carl Sweat was terminated from his employment with plaintiff
Yerbaé, LLC, he allegedly used Yerbaé’s confidential and trade secret materials in
developing a competing product. Yerbaé filed this suit against Sweat and Elite NIL
Solutions LLC (“Elite”), a competing company Sweat founded shortly after his termination
from Yerbaé. Sweat and Elite seek dismissal of the complaint. Elite’s motion is granted
while Sweat’s is denied in large part.
I. Background
Arizona-based Yerbaé specializes in plant-based energy drinks. (Doc. 1 at 5.) In
2023, Yerbaé saw an opportunity to work with college athletes whom the National
Collegiate Athletic Association (“NCAA”) had recently permitted to monetize their “name,
image, and likeness” (“NIL”) rights through marketing and promotions. (Doc. 1 at 7.) To
serve the new and niche NIL market and promote its products through student athletes,
Yerbaé began developing “a novel business and marketing model” and “innovative product
designs” customizing its drinks and marketing strategies to appeal to certain colleges. (Doc.
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1 at 7.) It also began obtaining partnerships with NIL collectives, which act as “brokers”
facilitating athletes’ NIL opportunities. (Doc. 1 at 7.) To build and enhance the NIL
program, Yerbaé formed a new board of directors in February 2023 which included Carl
Sweat. (Doc. 1 at 10.) Yerbaé brought Sweat aboard to lead the NIL beverage program in
part because of his previous beverage-industry experience. (Doc. 1 at 10.)
During his employment with Yerbaé, Sweat served as board member, head of
Yerbaé’s audit committee, management consultant, and president. (Doc. 1 at 10.) On
February 8, 2023, Sweat entered into a Board of Directors Services Agreement (“BDSA”);
on December 9, 2023, he entered into an Employee Confidentiality and Post-Employment
Restrictions Agreement (“ECPRA”); and on December 21, 2023, he entered into a Yerbaé
Employment Agreement (“YEEA”).1 (Doc. 1 at 11.) Sweat agreed to certain confidentiality
restrictions in each contract. (Doc. 1 at 11-13.) He also agreed that for nine months after
leaving Yerbaé, he would not directly or indirectly compete, solicit, or interfere with
Yerbaé’s products, business, or partners. (Doc. 1 at 14-15.)
Yerbaé’s first college sports-themed product launched in the fall of 2023. (Doc. 1 at
9.) Over the course of this launch, Yerbaé claims it developed confidential and trade secret
intellectual property (“IP”) including business techniques, marketing materials, pre-launch
product designs, final can design, and beverage flavor selection. (Doc. 1 at 10.) In
December 2023, Sweat was elevated to serve as Yerbaé’s president, with the NIL program
as his “primary mission.” (Doc. 1 at 16.) Yerbaé then began a partnership with the
University of Georgia (“UGA”) and CCC, its NIL collective. (Doc. 1 at 16-17.) Sweat had
no prior relationship with CCC. (Doc. 1 at 16.) Yerbaé and CCC agreed Yerbaé would
design, develop, and distribute a UGA-themed Yerbaé beverage which CCC would
promote. (Doc. 1 at 17.) During the first quarter of 2024, Yerbaé and CCC developed
promotional and can design materials, ultimately branding the UGA beverage “Red &
1 The BDSA, ECPRA, and YEEA are attached as exhibits to the complaint and are
incorporated by reference into it. See Turner v. Nuance Commc’ns, Inc., 735 F. Supp. 3d
1169, 1179 (N.D. Cal. 2024) (incorporation by reference allows documents to be
considered as if they are part of the complaint and is appropriate when “the plaintiff refers
extensively to the document or the document forms the basis of the plaintiff’s claim”)
(simplified).
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Black” or “Red & Black Rush” and registering the domain name “redandblack.win.” (Doc.
1 at 17-18.) Sweat assisted Yerbaé in securing a deal with Kroger to sell Yerbaé products.
(Doc. 1 at 21.) And on April 6, 2024, Yerbaé launched an initial promotion of the UGA
beverage with one of its “R&B Designs” at a UGA gala. (Doc. 1 at 20-21.)
Around when the Georgia Project began, Yerbaé alleges “Sweat engaged a third
party website development and online company CTRL+ALT+Digital” (“CAD”) without
Yerbaé’s knowledge or authority under a “highly unfavorable” agreement with “vaguely
defined” terms. (Doc. 1 at 22.) Yerbaé states Sweat “actively concealed” why he made this
agreement considering Yerbaé already had its own website and online marketer, and
suggests he did so “for purposes of his own personal and/or business interests.” (Doc. 1 at
22.) Yerbaé promptly terminated the contract once it was discovered, after which CAD
filed a lawsuit against Yerbaé for breach of the agreement. (Doc. 1 at 22.)
Sweat was terminated on April 8, 2024. (Doc. 1 at 22.) Yerbaé alleges he conspired
with CCC shortly afterwards to “unlawfully exploit[ ] Yerbaé’s intellectual property
rights[ ]” by launching “Red & Black Raw Sportswater” to replace Yerbaé’s “Red & Black
Rush” product. (Doc. 1 at 23.) Sweat formed Elite on April 10. (Doc. 1 at 23.) That same
month, he launched a website called redandblack.win—the same domain name he had
registered for Yerbaé—which advertises the competing product. (Doc. 1 at 23.) Yerbaé
also alleges the competing product’s design “clearly reveals that Sweat, acting in concert
with Elite and CCC and without Yerbaé’s knowledge or approval, took images and designs
Sweat obtained during his employment at Yerbaé and used them to develop their ‘Raw
Sportswater’ drink[.]” (Doc. 1 at 24.)
Yerbaé also alleges Sweat “is exploiting the exact same marketing tactics and
distribution networks” from Yerbaé’s R&B program and its general program IP. (Doc. 1
at 24.) For instance, Sweat’s and Elite’s store locator page on redandblack.win displays
“substantially the same retailers that Yerbaé had identified and met with as its targets for
the R&B Design product,” information which was contained on a proprietary spreadsheet
which Sweat failed to confirm he deleted post-termination. (Doc. 1 at 24.) In total, Yerbaé
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alleges Sweat misappropriated seven distinct IP assets: (1) the R&B Design; (2) Yerbaé’s
“Design Brief” which contained “Georgia Project strategies, including its target customer
pool, potential branding themes, selections of creative UGA-specific slogans and plans for
exploiting them, key messaging for the target NIL market, and executional strategies”; (3)
Yerbaé’s “NIL Tracker” spreadsheet “which contained all the information Yerbaé had
selectively compiled for tracking its timelines and efforts with potential NIL collectives
and schools”; (4) Yerbaé’s “Supply University Can Workflow Timeline” spreadsheet that
“outlined the entire commercialization process and timeline for implementing the Yerbaé
Product and Program IP”; (5) Yerbaé’s “NIL Playbook” PowerPoint, which focused on
Yerbaé’s UGA-related IP as well as “all the necessary tools for the company to have a
successful partnership with a school’s NIL collective, serving as an instruction manual on
how to successfully implement the Yerbaé Program IP”; (6) information on the “R&B
Program,” i.e., Yerbaé’s plans regarding the UGA product; and (7) Yerbaé’s “Store List”
spreadsheet “that contained a list of all of Yerbaé’s customer stores and retail targets for
the Georgia Project.” (Doc. 1 at 18-20, 24.)
Based on these facts, Yerbaé brings eight claims against Sweat and Elite.2 It brings
two breach of contract claims against Sweat separately alleging violations of the ECPRA
and the YEEA; a tortious interference with contract claim against Sweat and Elite; a
tortious interference with business expectancy claim against both defendants;
misappropriation of trade secrets claims against both defendants under federal and Arizona
statutes; an unjust enrichment claim against both defendants; and an indemnity claim
against Sweat. (Doc. 1 at 25-32.)
II. Legal Standard
In opposing a defendant’s motion to dismiss for lack of personal jurisdiction, it is
the plaintiff’s burden to establish jurisdiction is proper. Mavrix Photo, Inc. v. Brand Techs.,
Inc., 647 F.3d 1218, 1223 (9th Cir. 2011). A plaintiff need only make a prima facie showing
2 Yerbaé originally named CCC as a defendant and alleged Count 3 solely against it, but in
November 2025, CCC settled and the claims against it were dismissed with prejudice.
(Doc. 44.)
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of jurisdictional facts where the motion is based on written materials and “uncontroverted
allegations in the complaint must be taken as true,” but a plaintiff cannot “simply rest on
the bare allegations of its complaint.” Schwarzenegger v. Fred Martin Motor Co., 374 F.3d
797, 800 (9th Cir. 2004) (internal citations omitted).
To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007) (internal citations omitted)). This is not a “probability
requirement,” but a requirement that the factual allegations show “more than a sheer
possibility that a defendant has acted unlawfully.” Id. A claim is facially plausible “when
the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. “Determining whether a
complaint states a plausible claim for relief will . . . be a context-specific task that requires
the reviewing court to draw on its judicial experience and common sense.” Id. at 679.
III. Analysis
A. Elite’s Motion to Dismiss
Yerbaé brings claims against Elite based on the theory that the company is Sweat’s
alter ego, making Sweat and Elite jointly and severally liable for the actions alleged. (Doc.
1 at 3.) Elite requests dismissal of all claims against it, arguing this court has no personal
jurisdiction over it and Yerbaé has not sufficiently pleaded the alter ego theory. (Doc. 18
at 6-10.) Elite is correct on both counts so it is dismissed as a defendant, but Yerbaé may
conduct limited jurisdictional discovery.
A defendant is subject to personal jurisdiction only when it has sufficient “minimum
contacts” with a forum state “such that the maintenance of the suit does not offend
traditional notions of fair play and substantial justice.” Int’l Shoe Co. v. Washington, 326
U.S. 310, 316 (1945) (citation omitted); see also In re Boon Glob. Ltd., 923 F.3d 643, 650-
51 (9th Cir. 2019) (each defendant’s contacts with forum state assessed individually).
Yerbaé only attempts to establish specific jurisdiction, which requires Elite have “sufficient
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contacts arising from or related to specific transactions or activities in the forum state.”
Morrill v. Scott Fin. Corp., 873 F.3d 1136, 1141 (9th Cir. 2017). In the Ninth Circuit,
assessing specific personal jurisdiction requires determining 1) whether a defendant
purposefully directed activities toward the forum state; 2) whether the claims arise out of
or relate to the defendant’s “forum-related activities”; and 3) whether exercising
jurisdiction is reasonable because it “comport[s] with fair play and substantial justice.”
Schwarzenegger, 374 F.3d at 802. The plaintiff bears the burden of satisfying the first two
prongs of the test. Id.
Yerbaé solely alleges tort claims against Elite. In the tort context, courts typically
evaluate the first prong of specific personal jurisdiction using the “purposeful direction
test,” which requires the defendant “(1) committed an intentional act, (2) expressly aimed
at the forum state, (3) causing harm that the defendant knows is likely to be suffered in the
forum state.” Morrill, 873 F.3d at 1142. An intentional act may satisfy this test when it
“individually target[s]” a forum resident, Schwarzenegger, 374 F.3d at 807, but “mere
injury to a forum resident” is not by itself a sufficient connection to the forum. Walden v.
Fiore, 571 U.S. 277, 285, 290 (2014) (“the plaintiff cannot be the only link between the
defendant and the forum”). “[S]omething more—conduct directly targeting the forum”—
is required to confer personal jurisdiction. Mavrix Photo, 647 F.3d at 1229 (citation
omitted).
Yerbaé alleges Elite committed intentional acts like contract interference (Doc. 31
at 9) which were expressly aimed at Arizona because, as Sweat knew, the trade secrets the
defendants misappropriated were located in Arizona and Yerbaé felt the effects here (Doc.
31 at 17; see also Doc. 1 at 3). But Elite is headquartered in Georgia, and Yerbaé does not
allege it has conducted any business in Arizona or targeted Arizona residents other than
Yerbaé. (Doc. 1 at 23.) Personal jurisdiction may be conferred where a defendant targets
forum residents and conducts business or advertises in a forum state. See Briskin v. Shopify,
Inc., 135 F.4th 739, 759 (9th Cir. 2025) (en banc). That is not what Yerbaé alleges: the
only engagement Elite had with Arizona was its alleged injury to a forum resident, which
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cannot provide the sole basis for personal jurisdiction. Walden, 571 U.S. at 285.
Yerbaé attempts to impute Sweat’s actions onto Elite by describing Sweat as Elite’s
principal, arguing that because Sweat agreed to personal jurisdiction in Arizona it is
reasonable to subject Elite to the same. (Doc. 31 at 12, 18.) But personal jurisdiction over
individual defendants does not automatically carry over to a related corporate defendant,
even where the individual defendant is the relevant corporation’s founder.3 See Artec Grp.,
Inc. v. Klimov, No. 15-CV-03449-RMW, 2015 WL 9304063, at *7 (N.D. Cal. Dec. 22,
2015). What matters for personal jurisdiction is not a defendant’s knowledge that another
party is connected to a state, but its own contacts with the forum, and the complaint lacks
any such allegations regarding Elite here. See Axiom Foods, Inc. v. Acerchem Int’l, Inc.,
874 F.3d 1064, 1069-70 (9th Cir. 2017).
This leaves only Yerbaé’s argument that Elite is subject to personal jurisdiction in
Arizona because it is Sweat’s alter ego. To pierce the corporate veil and establish that a
limited liability company may be treated the same as an individual for purposes of
jurisdiction, plaintiffs must show “(1) there is unity of control between parent and
subsidiary such that one is the ‘alter ego’ of the other, and (2) observing the corporate
form’s privileges and protections would be unjust.” Specialty Companies Grp., LLC v.
Meritage Homes of Arizona, Inc., 492 P.3d 308, 310 (Ariz. 2021); see Butler L. Firm, PLC
v. Higgins, 410 P.3d 1223, 1229 (Ariz. 2018) (recognizing “LLCs, like corporations, are
amenable to . . . the alter-ego doctrine”); see also Sandoval v. Ali, 34 F. Supp. 3d 1031,
1040 (N.D. Cal. 2014) (plaintiffs’ burden to sufficiently allege alter ego liability). Relevant
factors include “payment of salaries and expenses by the owner, an owners’ making of
interest-free loans to the corporation, commingling of personal and corporate funds,
diversion of corporate property for personal use, and the observance of formalities at
3 Yerbaé’s argument that “Sweat is Elite’s key (if not sole) principal,” mentioned once in
a response brief with no supporting facts or relevant case law (Doc. 31 at 18 (citing Deluca
v. McMahon, No. 1 CA-CV 09-0140, 2010 WL 682189 at *2, *4 (Ariz. Ct. App. Feb. 25,
2010)), does not provide a basis for the court to find Sweat is actually Elite’s principal,
even if such an allegation alone were sufficient for personal jurisdiction (which it is not).
See United States v. Graf, 610 F.3d 1148, 1166 (9th Cir. 2010) (“Arguments made in
passing and not supported by citations to the record or to case authority are generally
deemed waived.”).
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corporate meetings, among others.” Wolf Designs LLC v. Five 18 Designs LLC, 635 F.
Supp. 3d 787, 802 (D. Ariz. 2022) (simplified). Facts supporting an alter ego relationship
must be pleaded relatively specifically at the motion-to-dismiss stage. See Meister v. Fling
Enterprise Prevost LLC No. CV-24-02943-PHX-JJT, 2025 WL 896465, at *3-4 (D. Ariz.
Mar. 24, 2025) (holding it is not sufficient to allege individuals commingled personal and
corporate assets without offering factual allegations regarding how).
Yerbaé asserts “Elite NIL is an ‘alter ego’ of Sweat” and “Sweat controls and uses
Elite as a mere tool or instrumentality in carrying out Sweat’s own plans and purposes.”
(Doc. 1 at 3.) It offers no further factual allegations supporting those conclusions in its
complaint and can point to none in its briefing. (See Doc. 1 at 3; Doc. 31 at 11-13.) Those
facts are not nearly as specific as those in the cases Yerbaé cites (see Doc. 31 at 11) and
are too conclusory to adequately allege alter ego status. See id.
Yerbaé argues in the alternative that it should be permitted to conduct jurisdictional
discovery on Elite’s alter ego status. (Doc. 31 at 13-15.) “Discovery should ordinarily be
granted where ‘pertinent facts bearing on the question of jurisdiction are controverted or
where a more satisfactory showing of the facts is necessary.’” Butcher’s Union Loc. No.
498, United Food & Com. Workers v. SDC Inv., Inc., 788 F.2d 535, 540 (9th Cir. 1986)
(quoting Data Disc, Inc. v. Sys. Tech. Assocs., Inc., 557 F.2d 1280, 1285 n.1 (9th Cir.
1977)); Harris Rutsky & Co. Ins. Servs. v. Bell & Clements Ltd., 328 F.3d 1122, 1135 (9th
Cir. 2003) (district court abused discretion in denying jurisdictional discovery when
“[f]urther discovery on the issue might well demonstrate facts sufficient to constitute a
basis for jurisdiction[ ]”). Elite argues any jurisdictional discovery should be limited to just
its contacts with Arizona and not to Yerbaé’s alter ego theory. (Doc. 33 at 11.) But it does
not meaningfully argue why this should be the case or provide case law supporting such an
outcome. (See Doc. 33 at 11.)
As such, Elite is dismissed, but Yerbaé is permitted to conduct limited jurisdictional
discovery on Elite’s alter ego status and contacts with Arizona.
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B. Sweat’s Motion to Dismiss
1. Breach of Contract (ECPRA)
Yerbaé alleges Sweat violated various provisions of the ECPRA, including by
disclosing confidential information, failing to return confidential information, and
developing and marketing a competing beverage line within nine months of his
termination. (Doc. 1 at 25-26.) Sweat argues the ECPRA cannot support a breach of
contract claim because it was superseded by the YEEA. Sweat signed the YEEA twelve
days after signing the ECPRA, and the YEEA contains an integration clause. (Doc. 17 at
4-5; see Doc. 1-2 at 4 (citing YEEA provision stating the YEEA “supersedes any prior
agreements between [Sweat] and YERBAE”).)
The parties’ intent lies at the heart of determining whether one contract supersedes
another. Smith v. Neely, 380 P.2d 148, 150 (Ariz. 1963). Contracts that cover a different
scope are generally not intended to supersede each other. Dunn v. FastMed Urgent Care
PC, 424 P.3d 436, 440 (Ariz. Ct. App. 2018) (“[E]ven a completely integrated agreement
supersedes only prior agreements that are ‘within the scope’ of the new contract.”) (quoting
Restatement (Second) of Contracts § 213(2)). And all reasonable inferences must be drawn
in favor of the plaintiff when there is any lack of clarity in how contracts relate to each
other. Shields v. Credit One Bank, N.A., 32 F.4th 1218, 1220 (9th Cir. 2022).
That Sweat entered into the ECPRA on December 9, 2023 and the YEEA on
December 21, 2023 weighs strongly against finding the YEEA superseded the ECPRA.
(See Doc. 1 at 11.) It is unlikely the parties intended to supersede a contract just twelve
days after its signing without specifically referencing that supersession. See Trico Elec.
Coop., Inc. v. Sensus USA, Inc., No. CV 11-182 TUC-DCB, 2011 WL 13233552, at *4 (D.
Ariz. Nov. 8, 2011) (unlikely parties intended one contract to supersede another which they
had signed five months prior and which they did not “explicitly reference[]” as being
superseded). The contracts also have a different scope. (Doc. 29 at 9.) The ECPRA governs
confidentiality and post-employment use of Yerbaé information; it details confidentiality
definitions and requirements, post-employment competition requirements, and post-
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employment return of property. (Doc. 1-3.) Such terms are not included in the YEEA,
which is a general employment agreement primarily focused on the terms of the parties’
working relationship. (Doc. 1-2.) Although the YEEA does briefly and broadly touch on
confidentiality and post-employment return of property, it does not include nearly the same
comprehensive level of confidentiality-related and post-employment information (Docs. 1-
2, 1-3). See Dunn, 424 P.3d at 441 (holding contracts which broadly discussed same terms
nonetheless covered a different scope, one post-employment obligations and the other a
transaction). Ultimately, it is very unlikely the parties intended a broad integration clause
in a contract discussing general employment terms to supersede a very specific contract
discussing post-employment confidentiality requirements—particularly just twelve days
after the first contract’s signing.
Sweat presents no other basis for dismissing the breach of contract claim. (Doc. 17
at 4-5.) Because the present record does not establish the ECPRA was superseded, his
motion to dismiss this claim fails.
2. Breach of Contract (YEEA)
Yerbaé claims Sweat’s actions violated various provisions of the YEEA also, listing
seven pieces of confidential information which Sweat allegedly misused. (Doc. 1 at 26-
27.) Sweat argues these do not fall under the “confidential information” definition because
they are not “proprietary,” “private,” or “not generally known.” (Doc. 17 at 5-6 (quoting
Doc. 1-2 at 3).) He cites no legal authority supporting this argument and misstates the terms
of the YEEA in doing so. (Compare Doc. 17 at 4-6 with Doc. 1-2 at 3.)4 But more
fundamentally, as Yerbaé argues (Doc. 29 at 11), this is not a legal dispute but a factual
one as to whether the information Sweat allegedly stole falls within a reasonable
interpretation of material the contract covers. “A motion to dismiss is not an appropriate
mechanism for resolving factual disputes.” Tippitt v. Life Ins. Co. of N. Am., No. 17-CV-
00125-VC, 2017 WL 3189464, at *1 (N.D. Cal. May 30, 2017). At this stage, whether
4 Sweat’s attempt to create a legal dispute by raising new arguments for the first time in his
reply (Doc. 30 at 7-8) fail. In re Bard IVC Filters Prod. Liab. Litig., 81 F.4th 897, 908 n.13
(9th Cir. 2023) (“Arguments raised for the first time in a reply brief are waived.”).
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seven pieces of information qualify as “confidential” according to a contract’s definition is
a question of fact that must be resolved in the plaintiff’s favor. See Rosen v. Walters, 719
F.2d 1422, 1424 (9th Cir. 1983) (on motion to dismiss, courts generally construe facts in
plaintiffs’ favor).
Yerbaé has plausibly alleged Sweat misappropriated its confidential information in
breach of the YEEA. (See Doc. 1 at 18-20, 24, 26-27.) Because factual disputes cannot be
appropriately resolved now, Sweat’s motion to dismiss Yerbaé’s YEEA breach of contract
claim fails.
3. Misappropriation of Trade Secrets under the Defend Trade
Secrets Act (“DTSA”) & the Arizona Uniform Trade Secrets Act
(“AUTSA”)
Yerbaé brings claims against Sweat for misappropriation of trade secrets under the
federal DTSA and Arizona’s AUTSA. (Doc. 1 at 29-31.) Sweat argues one of those counts
must be dismissed because they duplicate each other. (Doc. 17 at 9.)
The DTSA requires allegations the plaintiff (1) owns a trade secret, (2) which the
defendant misappropriated, (3) which caused damage to the plaintiff. ReBath LLC v. HD
Sols. LLC, No. CV-19-04873-PHX-JJT, 2020 WL 7000071, at *2 (D. Ariz. Sept. 18, 2020).
Meanwhile, to state a claim under the AUTSA, a damages allegation is not required; a
plaintiff alleging a AUTSA claim “must allege that the defendant misappropriated a trade
secret through improper means.” HTS Inc. v. Boley, 954 F. Supp. 2d 927, 943 (D. Ariz.
2013). So contrary to Sweat’s argument, the claims are not legally duplicative. And despite
Sweat’s contention otherwise (Doc. 17 at 9), complaints commonly plead claims under
both statutes. See, e.g., Gordon Grado M.D., Inc. v. Phoenix Cancer & Blood Disorder
Treatment Inst. PLLC, 603 F. Supp. 3d 799, 809-12 (D. Ariz. 2022); ReBath, 2020 WL
7000071, at *2-3.
Although the claims are not duplicative, the elements of the two “are substantially
similar” such that Sweat’s remaining arguments under both statutes can be analyzed
together. Early Warning Servs., LLC v. Brandon O’Loughlin, P.A.Z.E. LLC, No. 24-7315,
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2025 WL 1895313, at *1 n.1 (9th Cir. July 9, 2025). Sweat alleges these claims fail because
Yerbaé does not allege the trade secrets with sufficient specificity. (Doc. 17 at 10-16.)
Under both the DTSA and AUTSA, a plaintiff must show the trade secrets exist and
identify them. Imax Corp. v. Cinema Techs., Inc., 152 F.3d 1161, 1164 (9th Cir. 1998). A
plaintiff “need not spell out the details of the trade secret,” but must “describe the subject
matter of the trade secret with sufficient particularity to separate it from matters of general
knowledge in the trade . . . and to permit the defendant to ascertain at least the boundaries
within which the secret lies.” Alta Devices, Inc. v. LG Elecs., Inc., 343 F. Supp. 3d 868,
881-82 (N.D. Cal. 2018) (citations omitted); see also InteliClear, LLC v. ETC Glob.
Holdings, Inc., 978 F.3d 653, 658 (9th Cir. 2020).
Yerbaé has identified seven IP assets it alleges contained trade secrets and were
misappropriated. (Doc. 1 at 18-20, 29-31.) The alleged trade secrets include an internal
instruction manual on implementing programming, brand communication, target
customers, product timelines, selling points, launch timing, internal designs, and lists of all
of Yerbaé’s customer stores and retail targets for its Georgia project. (Doc. 1 at 19-20, 24;
see Doc. 29 at 13.) In specifying these IP assets and what they contain, Yerbaé has
identified with sufficient particularity the trade secrets it believes Sweat misappropriated.
See Alta Devices, 343 F. Supp. 3d. at 881-882; see Cisco Sys., Inc. v. Chung, 462 F. Supp.
3d 1024, 1051 (N.D. Cal. 2020) (denying motion to dismiss trade secret allegations
including confidential product design specifications, source code, internal presentations,
product strategy, and the company’s marketing position). Further, Yerbaé specifically
alleges there was no similar IP elsewhere in the burgeoning NIL industry (Doc. 1 at 8). See
InteliClear, 978 F.3d at 658 (trade secret can be found where IP is “unique in the industry”).
Sweat also argues the content allegedly misappropriated cannot be trade secrets
because “the ideas described are publicly known or readily ascertainable.” (Doc. 17 at 11.)
For instance, according to Sweat, the R&B Design incorporates UGA’s public imagery and
colors, the Yerbaé Design Brief reflects the “routine work” of understanding an audience
and developing slogans, and the NIL Tracker and Workflow Timeline merely describe
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publicly-available contact information for marketing personnel. (Doc. 17 at 10-11.) But “a
trade secret may include a grouping in which the components are in the public domain but
there has been accomplished an effective, successful and valuable integration of those
public elements such that the owner derives a competitive advantage from it.” Enter.
Leasing Co. of Phoenix v. Ehmke, 3 P.3d 1064, 1069 (Ariz. Ct. App. 1999) (citing Rivendell
Forest Products, Ltd. v. Georgia-Pacific Corp., 28 F.3d 1042, 1046 (10th Cir. 1994)).
Yerbaé has made exactly such an allegation in stating it used public information to create
internal strategy and materials which were unique in the industry and gave it an “edge on
the competition.” (Doc. 1 at 8.) And Yerbaé also describes other information which does
not reference publicly-known ideas all. (See Doc. 29 at 19 (describing product timelines,
program workflows, and marketing plans).)
Finally, Sweat contends Yerbaé did not plausibly allege he used the trade secrets at
issue, arguing it is insufficient to generally allege Sweat’s new products are similar to
Yerbaé’s (Docs. 17 at 11, 30 at 5-6). See Alta, 343 F. Supp. 3d at 883 (plaintiff must allege
defendant actually used the trade secret information to which he had access); Pellerin v.
Honeywell Int’l, Inc., 877 F. Supp. 2d 983, 990 (S.D. Cal. 2012) (not sufficient that plaintiff
alleges defendant merely “took trade secrets and then performed the same work” for a
competitor). “[T]here is no requirement that [a plaintiff] plead exactly how Defendants
improperly obtained or used the alleged trade secret”: a reasonable inference of
misappropriation may arise when a plaintiff alleges access to trade secrets and substantial
similarities in a product the defendant later develops. Alta, 343 F. Supp. 3d at 883 (internal
quotations omitted). Yerbaé has made such an allegation here. (Doc. 1 at 23-25 (alleging
Sweat did not confirm he deleted confidential materials on separating from employment
and used “the exact same marketing tactics and distribution networks” as Yerbaé).) These
allegations raise a plausible inference Sweat “used” Yerbaé’s trade secrets. See id. (listing
similarities and taking into account that defendant did not return confidential information
to plaintiff on separating from employment); Joshua David Mellberg LLC v. Will, 96 F.
Supp. 3d 953, 979 (D. Ariz. 2015) (denying motion to dismiss where plaintiff alleged
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defendants who had access to trade secrets launched websites similar to plaintiff’s with
similar strategy). Sweat’s motion to dismiss Yerbaé’s DTSA and AUTSA claims therefore
fails.
4. Tortious Interference with Contract and Tortious Interference
with Business Expectancy
Yerbaé alleges Sweat interfered in its contract with CCC, UGA’s NIL collective, by
inducing CCC’s breach of contract and also interfered with business expectancy by using
Yerbaé’s confidential information to develop a competing product. (Doc. 1 at 28-29.)
Sweat argues these claims are categorically preempted by the AUTSA because they stem
from the same “factual nucleus.” (Doc. 17 at 6-7.)
The AUTSA explicitly preempts “conflicting tort, restitutionary and other laws of
this state providing civil remedies for misappropriation of a trade secret.” A.R.S.
§ 44-407(A) (emphasis added). But it does not cover misappropriation of confidential
information that is not a trade secret. Id. Accordingly, courts allow plaintiffs to use the
same facts to plead AUTSA claims alongside other claims covering information that may
later be found to fall outside the AUTSA’s definition of “trade secret.” See Orca
Communications Unlimited, LLC v. Noder, 337 P.3d 545, 550 (Ariz. 2014); Universal
Engraving, Inc. v. Metal Magic, Inc., 602 F. App’x 367, 369 (9th Cir. 2015) (AUTSA
displaces only claims regarding confidential information which has been found to fall
under AUTSA “trade secret” definition). This is true for tortious interference with contract
and tortious interference with business expectancy claims, which remedy injuries beyond
trade secret misappropriation and are therefore not preempted by the AUTSA at this stage.
A.R.S. § 44-407(A); Orca, 337 P.3d at 550 (whether confidential information fell within
AUTSA definition depended on “discovery and further litigation that has not yet
occurred”). And as alleged, neither claim here is “based solely upon the misappropriation
of trade secrets, but rather Sweat’s additional, improper acts of disrupting [Yerbaé’s]
contracts and business expectancies.” (Doc. 29 at 15; see also Doc. 1 at 28-29.)
Sweat also argues Yerbaé’s tortious interference with contract and tortious
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interference with business expectancy claims are preempted by Arizona’s economic loss
doctrine. (Doc. 17 at 7-8.) That doctrine precludes tort recovery and “limit[s] a contracting
party to contractual remedies” where the party only alleges economic damages. Miidas
Greenhouses, LLC v. Glob. Horticultural, Inc., 244 P.3d 579, 581-82 (Ariz. Ct. App. 2010)
(simplified); see also Ares Funding, L.L.C. v. MA Maricopa, L.L.C., 602 F. Supp. 2d 1144,
1150 (D. Ariz. 2009) (economic loss doctrine bars recovery “when the claim alleges only
economic damages resulting from an alleged breach of contract”) (simplified). Yerbaé’s
tortious interference claims allege only economic damage and are explicitly premised on
Sweat’s breach of contract. (Doc. 29 at 17 (conceding that “if Sweat had honored his
contractual obligations owed to Yerbaé . . . Sweat would not have interfered with Yerbaé’s
relationships.”).) Because the doctrine bars tortious interference claims unless they “grow
out of circumstances independent of [the parties’] contractual relationship,” Finepoint
Innovations, Inc., No. CV 04–1318–PHX–SMM, 2006 WL 3313688, at *3 (D. Ariz. Nov.
13, 2006), Yerbaé’s tort claims are dismissed with leave to amend.
5. Unjust Enrichment
Sweat argues Yerbaé’s unjust enrichment claim is precluded because a valid
contract exists and covers the dispute. (Doc. 17 at 16 (quoting Physicians Surgery Ctr. of
Chandler v. Cigna Healthcare Inc., 609 F. Supp. 3d 930, 939 (D. Ariz. 2022).) Yerbaé
argues the claim should survive because it is pleaded in the alternative to its breach of
contract claims. (Doc. 29 at 22-23; see Doc. 1 at 31 (pleading unjust enrichment “[t]o the
extent that [its] other claims against Defendants are deemed legally insufficient”).)
To successfully plead unjust enrichment, a complaint must include facts supporting
“the absence of a legal remedy.” Cheatham v. ADT Corp., 161 F. Supp. 3d 815, 833 (D.
Ariz. 2016) (simplified). Accordingly, where a party asserts an unjust enrichment claim
alongside a breach of contract claim in which the contract covers the scope of the dispute,
the possible contractual remedy may foreclose an unjust enrichment claim. Brooks v.
Valley Nat. Bank, 548 P.2d 1166, 1171 (Ariz. 1976); see also Physicians Surgery Ctr., 609
F. Supp. 3d at 939; Sutter Home Winery, Inc. v. Vintage Selections, Ltd., 971 F.2d 401, 408
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(9th Cir. 1992). But a party may bring an unjust enrichment claim in the alternative “where
her inability to enforce the contract leaves her without an adequate remedy at law,”
Cheatham, 161 F. Supp. 3d at 833, and where the party has not received the benefit of the
contractual bargain, Adelman v. Christy, 90 F. Supp. 2d 1034, 1045 (D. Ariz. 2000). See
also Lopez v. Musinorte Ent. Corp., 434 F. App’x 696, 699 (9th Cir. 2011) (“a plaintiff can
pursue an unjust enrichment claim as an alternative theory of recovery in conjunction with
a breach of contract claim, subject, however, to only one recovery”).
Yerbaé alleges Sweat breached two contracts which together govern the scope of
the unjust enrichment claim (Doc. 1 at 27-28), but specifically pleads unjust enrichment in
the alternative in case the other claims “are deemed legally insufficient” and thereby
foreclose a remedy provided by law. (Doc. 1 at 31). At this stage, it remains possible a
“jury could find that no contract exists” or that the contracts are invalid. Victory Ins. & Fin.
Servs. LLC v. Ben Oberg Enters. LLC, No. CV-23-08015-PCT-DJH, 2025 WL 661879, at
*4 (D. Ariz. Feb. 28, 2025) (allowing unjust enrichment claim to proceed in the
alternative). It also remains possible a jury could find Yerbaé did not receive the benefit of
the contractual bargain due to Sweat’s alleged failure to fulfill his end of the contract.
Adelman, 90 F. Supp. 2d at 1045. Accordingly, the motion to dismiss this claim is denied.
6. Indemnity
Yerbaé alleges it is “entitled to contribution and/or indemnity from Sweat in the
amount of attorneys’ fees and other expenses incurred by [Yerbaé]” as a result of the
lawsuit CAD filed against Yerbaé. (Doc. 1 at 32.) Yerbaé’s briefing makes clear it intended
to raise a common-law indemnity claim. (Doc. 29 at 23.)
To state a common-law indemnity claim, a plaintiff must show (1) “it has discharged
a legal obligation owed to a third party,” (2) “the indemnity defendant was also liable to
the third party,” and (3) “as between itself and the defendant, the obligation should have
been discharged by the defendant.” SRK Consulting, Inc. v. MMLA Psomas, Inc., No. CV-
09-0611-PHX-GMS, 2009 WL 2450490, at *3 (D. Ariz. Aug. 11, 2009) (quoting MT
Builders, L.L.C. v. Fisher Roofing, Inc., 197 P.3d 758, 764 (Ariz. Ct. App. 2008)). Though
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Sweat asserts otherwise (Doc. 17 at 17), a common-law indemnity claim does not require
a contract between the parties. San Luis Facility Dev. Corp. v. Cmty. Educ. Centers Inc.,
No. CV 14-02633-PHX-DMF, 2016 WL 11528604, at *4 (D. Ariz. June 9, 2016); see also
Evans Withycombe, Inc. v. W. Innovations, Inc., 159 P.3d 547, 552-53 (Ariz. Ct. App.
2006). But such a claim “does not accrue until the indemnitee has suffered actual loss.”
Levin v. Hindhaugh, 804 P.2d 839, 840 (Ariz. Ct. App. 1990)).
The complaint alleges Yerbaé “incurred expenses and impoverishment” in
defending against CAD’s lawsuit, including attorneys’ fees and expenses. (Doc. 1 at 32.)
Attorneys’ fees may qualify as an actual loss sufficient to state a claim for contractual
indemnity. See Symantec Corp. v. CD Micro, Inc., No. 02-406-KI, 2005 WL 6163440, at
*2-3 (D. Or. Feb. 24, 2005). But the same is not true in common-law indemnity cases until
a judgment or settlement has been reached, because “it is an indemnitee’s actual
wrongdoing or lack of it, rather than allegations of wrongdoing, which determine the
indemnitee’s rights.” INA Ins. Co. of N. Am. v. Valley Forge Ins. Co., 722 P.2d 975, 980
(Ariz. Ct. App. 1986); Payless Shoesource, Inc. v. Pac. Emps. Ins. Co., No. CV-08-2317-
PHX-DGC, 2009 WL 4439267, at *4 (D. Ariz. Nov. 24, 2009) (indemnity claim “accrues
only when liability is established or when an indemnitee actually pays a sum to discharge
potential liability”).
Yerbaé has since settled the case with CAD. (Doc. 29 at 23.) Settlements may give
rise to indemnity claims where those settlements reflect a discharge only of the liability at
issue. KnightBrook Ins. Co. v. Payless Car Rental Sys., Inc., 356 F. Supp. 3d 856, 860 (D.
Ariz. 2018); see also SRK Consulting, Inc., 2009 WL 2450490, at *4. But the court cannot
consider the settlement here because it was not alleged in the complaint and even if judicial
notice had been properly requested, the settlement documents Yerbaé provided do not
include details to allow the court to determine whether the settlement reflected a discharge
only of the liability at issue. (See Docs. 29-1, 29-2.) As such, the claim is dismissed with
leave to amend.
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IV. Conclusion
The claims against Elite are dismissed for lack of personal jurisdiction. Yerbaé is
given a short period in which to conduct jurisdictional discovery. All claims against Sweat
can proceed except the tortious interference with contract, tortious interference with
business expectancy, and indemnity claims, which are dismissed with leave to amend.
Because some claims are proceeding the parties must prepare and file their Rule 26(f) Joint
Case Management Report as set forth below. Preparing and filing that report does not
impact the deadline for filing of an amended complaint regarding the claims against Sweat
dismissed in this order. Nor does preparing and filing the report impact the deadline for
filing an amended complaint regarding claims against Elite.
Accordingly,
IT IS ORDERED Sweat’s motion to dismiss (Doc. 17) is GRANTED IN PART
WITH LEAVE TO AMEND. If plaintiff wishes to amend its claims against Sweat, it
shall file an amended complaint no later than January 20, 2026.
IT IS ORDERED Elite’s motion to dismiss (Doc. 18) is GRANTED. Plaintiff is
granted leave to conduct discovery regarding personal jurisdiction. That discovery shall be
completed within sixty days of this order and if plaintiff wishes to pursue claims against
Elite, it shall file an amended complaint within ten days of the close of discovery. Multiple
defendants represented by the same counsel may not file separate dispositive motions.
Defendants represented by the same counsel who wish to file a dispositive motion must
file a single joint motion that includes all arguments applicable to any defendant.
IT IS FURTHER ORDERED as follows:
The parties are directed to meet, confer, and develop a Rule 26(f) Joint Case
Management Report, which must be filed within 4 weeks of the date of this order. It is
the responsibility of plaintiff(s) to initiate the Rule 26(f) meeting and prepare the Joint Case
Management Report. Defendant(s) shall promptly and cooperatively participate in the Rule
26(f) meeting and assist in preparation of the Joint Case Management Report.
The Joint Case Management Report shall contain the following information in
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separately-numbered paragraphs.
1. The parties who attended the Rule 26(f) meeting and assisted in developing
the Joint Case Management Report;
2. A list of all parties in the case, including any parent corporations or entities
(for recusal purposes);
3. Any parties that have not been served and an explanation of why they have
not been served, and any parties that have been served but have not answered
or otherwise appeared;
4. A statement of whether any party expects to add additional parties to the case
or otherwise amend pleadings;
5. The names of any parties not subject to the court’s personal (or in rem)
jurisdiction;
6. A description of the basis for the court’s subject matter jurisdiction, citing
specific jurisdictional statutes. If jurisdiction is based on diversity of
citizenship, the report shall include a statement of the citizenship of every
party and a description of the amount in dispute. See 28 U.S.C. §1332;
7. A short statement of the nature of the case (no more than three pages),
including a description of each claim, defense, and affirmative defense;
8. A listing of contemplated motions and a statement of the issues to be decided
by those motions;
9. Whether the case is suitable for reassignment to a United States Magistrate
Judge for all purposes or suitable for referral to a United States Magistrate
Judge for a settlement conference;
10. The status of any related cases pending before this or other courts;
11. A discussion of any issues relating to preservation, disclosure, or discovery
of electronically stored information (“ESI”), including the parties’
preservation of ESI and the form or forms in which it will be produced;
12. A discussion of any issues relating to claims of privilege or work product;
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13. A discussion of necessary discovery, which should take into account the
December 1, 2015 amendments to Rule 26(b)(1) and should include:
a. The extent, nature, and location of discovery anticipated by the parties
and why it is proportional to the needs of the case;
b. Suggested changes, if any, to the discovery limitations imposed by the
Federal Rules of Civil Procedure;
c. The number of hours permitted for each deposition. The parties also
should consider whether a total number of deposition hours should be
set in the case, such as twenty total hours for plaintiffs and twenty
total hours for defendants. Such overall time limits have the advantage
of providing an incentive for each side to be as efficient as possible in
each deposition, while also allowing parties to allocate time among
witnesses depending on the importance and complexity of subjects to
be covered with the witnesses;
14. Proposed deadlines for each of the following events. In proposing deadlines,
the parties should keep in mind the Case Management Order will contain
deadlines to govern this case and once the dates have been set the court will
vary them only upon a showing of good cause. A request by counsel for
extension of discovery deadlines in any case that has been pending more than
two years must be accompanied by a certification stating the client is aware
of and approves of the requested extension. The court does not consider
settlement talks or the scheduling of mediations to constitute good cause for
an extension. The parties must propose the following:
a. A deadline for the completion of fact discovery, which will also be
the deadline for pretrial disclosures pursuant to Rule 26(a)(3). This
deadline is the date by which all fact discovery must be completed.
Discovery requests must be served and depositions noticed
sufficiently in advance of this date to ensure reasonable completion
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by the deadline, including time to resolve discovery disputes. Absent
extraordinary circumstances, the court will not entertain discovery
disputes after this deadline;
b. Dates for full and complete expert disclosures and rebuttal expert
disclosures, if any;
c. A deadline for completion of all expert depositions;
d. A date by which any Rule 35 physical or mental examination will be
noticed if such an examination is required by any issues in the case;
e. A deadline for filing dispositive motions;
f. Case-specific deadlines and dates, such as the deadline to file a motion
for class certification or a date on which the parties are available for a
Markman (patent claim construction) hearing;
g. A date by which the parties shall have engaged in face-to-face good
faith settlement talks;
h. Whether a jury trial has been requested and whether the request for a
jury trial is contested, setting forth the reasons if the request is
contested;
i. Any other matters that will aid the court and parties in resolving this
case in a just, speedy, and inexpensive manner as required by Federal
Rule of Civil Procedure 1;
15. A statement indicating whether the parties would prefer that the court hold a
case management conference before issuing a scheduling order—and, if so,
an explanation of why the conference would be helpful.
/
/
/
/
/
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IT IS FURTHER ORDERED the parties shall file a proposed Case Management
Order containing all the proposed dates at the same time they file the Rule 26(f) Case
Management Report. The proposed Case Management Order must also be emailed in Word
format to Lanham_Chambers@azd.uscourts.gov.
Dated this 5th day of January, 2026.
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