UNITED THERAPEUTICS CORP. v. LIQUIDIA TECHS., INC., 2024 NCBC 47

STATE OF NORTH CAROLINA
DURHAM COUNTY
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
21 CVS 4094
UNITED THERAPEUTICS
CORPORATION and LUNG
BIOTECHNOLOGY PBC,
Plaintiffs,
v.
LIQUIDIA TECHNOLOGIES, INC.
and ROBERT ROSCIGNO,
Defendants.
ORDER AND OPINION ON
DEFENDANT ROSCIGNO’S
MOTION FOR SUMMARY
JUDGMENT
[PUBLIC]1
1. 	THIS MATTER is before the Court on Defendant Dr. Robert Roscigno’s
Motion for Summary Judgment (the “Motion”) pursuant to Rule 56 of the North
Carolina Rules of Civil Procedure (the “Rule(s)”), (ECF No. 209).
2. 	Having considered the Motion, the related briefing, other relevant
matters of record, and the arguments of counsel at a hearing on the Motion held
16 May 2024, the Court hereby DENIES the Motion.
Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Eric M.
David, Jim W. Phillips, Jr., and Kasi W. Robinson; McDermott Will &
Emery, LLP, by Douglas H. Carsten, Arthur P. Dykhuis, Katherine
Pappas, Joshua Revilla, Courtney Seams, and Lillian J. Spetrino; and
Goodwin Proctor, LLP, by William C. Jackson, for Plaintiffs United
Therapeutics Corporation and Lung Biotechnology PBC.
Parker Poe Adams & Bernstein, LLP, by Stephen V. Carey, Corri A.
Hopkins, and Andrew P. Tabeling; and Cooley, LLP, by Daniel Knauss,
1 Because certain materials referenced in this Order and Opinion were filed under seal, the
Court’s ruling was provisionally filed under seal on 25 July 2024. The Court then permitted
counsel for the parties to confer and advise the Court whether they contend any matters
referenced herein should be sealed. Having afforded the parties this opportunity, the Court
now files its Order and Opinion on the public record.
United Therapeutics Corp. v. Liquidia Techs., Inc., 2024 NCBC 47.

Kyung Taeck Minn, Lauren Strosnick, Brittany N. Cazakoff, Jonathan
Davies, Adam Pivovar, Rachel L. Preston, and Sanya Sukduang, for
Defendant Liquidia Technologies, Inc.
McGuire Woods, LLP, by David E. Finkelson, Miles O. Indest, Mark E.
Anderson, Corinne S. Hockman, and Kyle S. Smith, for Defendant Robert
Roscigno.
Earp, Judge.
I. 	FACTUAL BACKGROUND
3. 	The Court does not make findings of fact on a motion for summary
judgment. 	Instead, 	the 	Court 	summarizes 	material 	facts 	it 	considers 	to 	be
uncontested. See, e.g., Vizant Techs., LLC v. YRC Worldwide, Inc., 373 N.C. 549, 551
(2020).
4. 	Plaintiff 	United 	Therapeutics 	Corporation 	(“UTC”) 	is 	a 	Delaware
corporation 	in 	the 	business 	of 	researching 	and 	developing 	treatments 	for
cardiovascular and pulmonary diseases, including pulmonary arterial hypertension
(“PAH”). (Mem. Opp. Def. Dr. Robert Roscigno’s Mot. for Summ. J. [“Pls.’ Br. Opp.”]
Ex. 34, ECF No. 256.3.)
5. 	Defendant Dr. Robert Roscigno (“Roscigno”) was employed by UTC from
March 1997 to June 2007.2 (Mem. Supp. Def. Dr. Robert Roscigno’s Mot. for Summ.
J. [“Def.’s Br. Supp.”] Ex. 6 [“Roscigno Aff.”] ¶¶ 3, 8, ECF No. 212.6 (under seal), ECF
No. 223 (public version); Def.’s Br Supp. Ex. 1 [“1997 Agreement”] § 1, ECF No. 212.1.)
2 Roscigno served as President of Lung Rx, Inc. a wholly owned subsidiary of UTC. Plaintiff
Lung Biotechnology PBC is the successor-in-interest to Lung Rx, Inc. (Second Am. Compl.
¶ 14, ECF No. 154 (under seal), ECF No. 155 (public version).) The Court refers to the entities
collectively as “UTC.”

When 	Roscigno 	began 	his 	employment, 	he 	signed 	an 	employment 	agreement
(the “1997 Agreement”) that included the following confidentiality provision:
[D]uring [Roscigno’s] employment with [UTC] and following termination
thereof for any reason, [Roscigno] shall not (except as authorized in
writing by the President or CEO), publish, disclose or use for [his] own
benefit or for the benefit of a business or entity other than [UTC], any
secret or confidential matter, or proprietary or other information not in
the 	public 	domain 	which 	was 	acquired 	by 	[Roscigno] 	during
employment, relating to [UTC’s] businesses, operations, customers,
suppliers, products, employees, financial affairs, trade or industrial
practices, trade secrets, technology, know-how or intellectual property.
(1997 Agreement § 4.)
6. 	After ten years of service and following an “excellent performance
review,” Roscigno was offered a new employment agreement with UTC (the “2007
Agreement”). 	(Def.’s Br. Supp. Ex. 2, ECF No. 212.2.) 	The 2007 Agreement, which
superseded the 1997 Agreement, also included a confidentiality provision, providing
in relevant part:
[Roscigno] agrees that [he] has a fiduciary duty to [UTC] and that [he]
shall hold in confidence and shall not, except in the course of performing
[his] employment obligations or pursuant to written authorization from
[UTC], at any time during or for three years after termination of [his]
relationship with [UTC] knowingly (a) directly or indirectly reveal,
report, publish, disclose or transfer the Confidential Information3 or any
3 The 2007 Agreement defines “Confidential Information” as:
(a) any information or material proprietary to [UTC] or designated as confidential
either orally or in writing by [UTC]; and (b) any information not generally known by
non-[UTC] personnel; and (c) any information which [Roscigno] should know [UTC]
would not care to have revealed to others or used in competition with [UTC]; and (d)
any information which [Roscigno] made or makes, conceived or conceives, developed
or develops or obtained or obtains knowledge or access through or as a result of
[Roscigno’s] relationship with [UTC] (including information received, originated,
discovered or developed in whole or in part by [Roscigno]) from the initial date of
[Roscigno’s] employment with [UTC].
(2007 Agreement § 10(b).)

part thereof to any person or entity; (b) use any of the Confidential
Information or any part thereof for any purpose other than for the
benefit of [UTC]; (c) assist any person or entity other than [UTC] to
secure any benefit from the Confidential Information or any part thereof
or (d) solicit (on [Roscigno’s] behalf or on behalf of any third party) any
employee of [UTC] for the purpose of providing services or products
which [Roscigno] is prohibited from providing hereunder.
(Def.’s Br. Supp. Ex. 3 [“2007 Agreement”] § 10(a), ECF No. 212.3 (emphasis added).)
7. 	In contrast to the confidentiality provision contained in the 1997
Agreement, which was unrestricted by time, the confidentiality obligation in the 2007
Agreement ended three years after Roscigno’s employment ended.
8. 	In addition to the confidentiality provision, section nine of the 2007
Agreement speaks to the ownership of intellectual property and provides:
[Roscigno] agrees that the entire right, title, and interest, in and to all
inventions, discoveries, materials, authorship, derivatives and results
and proceeds of [Roscigno’s] efforts in any form or media, including
without limitation, all domestic and foreign patents, trade secrets and
copyrights in and to all inventions, processes, written works, and other
forms of intellectual property (“Intellectual Property”), which [Roscigno]
makes, conceives, reduces to practice or develops, in whole or in part,
during the term of this Agreement in the furtherance of [UTC’s]
business (whether or not made during the hours of employment or with
the use of [UTC’s] materials, facilities or personnel, either solely or
jointly 	with 	others), 	or 	after 	termination 	of 	employment 	if 	such
Intellectual Property is based upon Confidential Information, shall be
solely and exclusively owned by [UTC], its successors, licensees and
assigns, and no other individual or entity shall have any interest therein
of any kind or nature.
(2007 Agreement § 9.)
9. 	The 2007 Agreement, however, was not the only method by which UTC
imposed confidentiality obligations on Roscigno. Section three of the 2007 Agreement
provides: “[Roscigno] agrees to abide by all employment guidelines and policies as

may be developed from time to time by [UTC] and applicable to all employees of
[UTC], 	including, 	without 	limitation, 	the 	[UTC] 	Company 	Manual[.]” 	(2007
Agreement § 3(c).) 	The UTC Employee Handbook states that “[i]t is the policy of
[UTC] to ensure that the operations, activities, and business affairs of [UTC] are kept
confidential.” (Pls.’ Br. Opp. Ex. 22 [“2004 Employee Handbook”] 8, ECF No. 255.22
(under seal), ECF No. 269.22 (public version).)4 If an employee acquires confidential
or proprietary information about UTC, company policy requires that the information
“must be kept in strict confidence and not be used or disclosed to any other person or
entity except as required in the performance of [UTC] duties or as otherwise expressly
authorized by [UTC].” 	(2004 Employee Handbook 8.) 	The Employee Handbook
further mandates that “[a]ll company property and equipment in the employee’s
possession or control must be returned prior to the employee’s last day.” 	(2004
Employee Handbook 7.)
10. 	Separately, UTC’s Technology Policy provides that all UTC media is
company property and forbids the use of electronic media for a purpose that is
contrary 	to 	UTC’s 	policies 	or 	business 	interests: 	“[A]ll 	employees . . . should
remember that electronic media and services provided by [UTC] are [UTC] property
and their purpose is to facilitate and support [UTC] business . . . . Electronic media
cannot 	be 	used 	for 	knowingly 	transmitting, 	retrieving, 	or 	storing 	any
communication . . . for any purpose that is illegal or contrary to [UTC’s] policies or
4 In 2004, Roscigno acknowledged that he received, understood, and was bound by the policies
and obligations in the Employee Handbook. (See Pls.’ Br. Opp. Ex. 23, ECF No. 255.23 (under
seal), ECF No. 269.23 (public version).)

business interests.”5 	(Pls.’ Br. Opp. Ex. 26 [“2002 Technology Policy”] §§ 1(B), 2.6,
ECF No. 255.26 (under seal), ECF No. 269.26 (public version).) 	There are no time
limitations on these policies.
11. 	Roscigno resigned from UTC on 18 June 2007, specifically referencing
the 2007 Agreement in his resignation letter. 	(Def.’s Br. Supp. Ex. 11, ECF No.
212.11 (under seal), ECF No. 228 (public version).) 	Following his resignation,
Roscigno joined GeNO, LLC, where he worked on nitric oxide products unrelated to
his work at UTC. 	(Roscigno Aff. ¶ 9.) 	In 2011, Roscigno began consulting for
Defendant 	Liquidia Technologies, 	Inc. 	(“Liquidia”). 	He 	joined Liquidia 	as 	an
employee in 2015. 	(Roscigno Aff. ¶ 10.) 	Liquidia competes with UTC in the
development of treatments for PAH. (Roscigno Aff. ¶ 10.)
12. 	After joining Liquidia, Roscigno “discovered that [he] had old, personal
thumb drives in [his] desk drawers that contained a mix of personal information and
UTC-related information.” (Roscigno Aff. ¶ 10.) Using a Liquidia computer, Roscigno
accessed the information on one of these flash drives “to refamiliarize [himself] with
the PAH field, [his] publications, and [his] prior work.” (Roscigno Aff. ¶ 10.)
II. 	PROCEDURAL BACKGROUND
13. 	On 10 December 2021 UTC initiated this action, complaining, among
other things, that Roscigno’s acquisition and use of UTC’s information while working
for Liquidia constitutes trade secret misappropriation. 	(Compl., ECF No. 3.) 	It
asserted claims under both state and federal law. 	After the matter was designated
5 In 2002, Roscigno acknowledged that he read, understood, and agreed to comply with the
UTC Technology Policy. (See 2002 Technology Policy § 10.)

to this Court, Roscigno removed the case to federal court. 	(Notice of Removal, ECF
No. 6.)
14. 	On 10 January 2022, UTC filed a First Amended Complaint consisting
solely of state law claims. 	(Am. Compl., ECF No. 15.) 	On 31 March 2022, the case
was remanded to this Court. See United Therapeutics Corp. v. Liquidia Corp., 2022
U.S. Dist. LEXIS 123346 (M.D.N.C. Mar. 31, 2022).
15. 	On 10 May 2022, Defendants filed a motion to dismiss the First
Amended Complaint, (ECF No. 22). 	UTC voluntarily dismissed its claim for
conversion on 27 May 2022, (ECF No. 31).
16. 	On 10 April 2023, UTC moved for leave to amend the First Amended
Complaint, (ECF No. 80). 	By order dated 20 July 2023, the Court granted in part
Plaintiff’s motion to add Lung Biotechnology PBC as a plaintiff and to amend its
allegations supporting its misappropriation of trade secrets claim. 	Plaintiffs filed a
Second Amended Complaint on 7 September 2023, (Second Am. Compl., ECF No. 154
(under seal), ECF No. 155 (public version)).
17. 	On 5 January 2024, Roscigno filed this Motion seeking summary
judgment on Plaintiffs’ state law claim for misappropriation of trade secrets, the only
claim alleged against him. After full briefing, the Court held a hearing on the Motion
on 16 May 2024, at which all parties were represented by counsel. (Not. of Hr’g., ECF
No. 275.)
18. 	The Motion is now ripe for disposition.

III. 	LEGAL STANDARD
19. 	“Summary 	judgment 	is 	appropriate 	‘if 	the 	pleadings, 	depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that any party is
entitled to a judgment as a matter of law.’ ” 	Da Silva v. WakeMed, 375 N.C. 1, 10
(2020) (quoting N.C. R. Civ. P. 56(c)). 	“A genuine issue of material fact ‘is one that
can be maintained by substantial evidence.’ ” 	Curlee v. Johnson, 377 N.C. 97, 101
(2021) (quoting Ussery v. Branch Banking & Tr. Co., 368 N.C. 325, 335 (2015)).
“Substantial evidence is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion and means more than a scintilla or a permissible
inference.” DeWitt v. Eveready Battery Co., 355 N.C. 672, 681 (2002) (cleaned up).
20. 	The 	party 	moving 	for 	summary 	judgment 	“bears 	the 	burden 	of
establishing that there is no triable issue of material fact[.]” 	Cummings v. Carroll,
379 N.C. 347, 358 (2021) (citation and quotation marks omitted). 	A movant may
satisfy its burden by proving that “an essential element of the opposing party’s claim
does not exist, cannot be proven at trial, or would be barred by an affirmative defense,
or by showing through discovery that the opposing party cannot produce evidence to
support an essential element of [the] claim[.]” 	Dobson v. Harris, 352 N.C. 77, 83
(2000) (citations omitted). 	“[T]he trial judge must view the presented evidence in a
light most favorable to the nonmoving party.” Belmont Ass’n v. Farwig, 381 N.C. 306,
310 (2022) (quoting Dalton v. Camp, 353 N.C. 647, 651 (2001)).

IV. 	ANALYSIS
21. 	Pursuant to the North Carolina Trade Secret Protection Act, N.C.G.S.
§§ 66-152 et seq., the owner of a trade secret must make “efforts that are reasonable
under 	the 	circumstances 	to 	maintain 	its 	secrecy.” 	N.C.G.S. 	§ 	66-152(3)(b).
Furthermore, a plaintiff asserting a claim for misappropriation must establish by
“substantial evidence” that the defendant used the trade secret “without the express
or implied consent or authority of the owner.” N.C.G.S. § 66-155(2).
22. 	Roscigno first argues that he is entitled to summary judgment with
respect to Plaintiffs’ misappropriation of trade secrets claim because no trade secrets
existed in the first place. 	By allowing his contractual confidentiality obligations to
expire three years post-employment, Roscigno contends that UTC failed to take
reasonable 	measures 	to 	protect 	the 	secrecy 	of 	its 	information, 	an 	essential
requirement for the existence of a trade secret. 	Accordingly, Roscigno argues that
“UTC’s self-imposed time limit of three years on the confidentiality, use, and
disclosure of its information destroys any claim that such information was a ‘secret’
over eight years later.” (Def.’s Br. Supp. 1-2, ECF No. 213 (under seal), ECF No. 217
(public version).)
23. 	Relatedly, Roscigno maintains that the plain language of the 2007
Agreement provides that his obligation to protect UTC’s Confidential Information—
including 	any 	trade 	secrets—ended 	on 	18 	June 	2010, 	three 	years 	after 	his
employment with UTC ended. 	Therefore, he contends, UTC implicitly consented to
disclosure of its Confidential Information, including its trade secrets, he was at

liberty to disclose the information, and he cannot be said to have misappropriated it
after he went to work for Liquidia more than three years later. (Def.’s Br. Supp. 2.)
24. 	First addressing whether UTC took reasonable steps to ensure the
secrecy of its purported trade secrets given that the language in the 2007 Agreement
required only that Roscigno maintain the confidentiality of certain information for
three 	years 	post-employment, 	UTC 	points 	to 	its 	other 	efforts 	to 	secure 	the
information. 	Among those efforts are the company policies in UTC’s Employee
Handbook and UTC’s Technology Policy. (See, e.g., Pls.’ Br. Opp. Ex. 7 [“Troy Dep.”]
326:11-14, ECF No. 255.7 (under seal), ECF No. 269.7 (public version) (UTC has
“policies, 	procedures, 	an 	employee 	handbook, 	[and] 	a 	technology 	policy 	that
articulates the importance of keeping information confidential.”); Pls.’ Br. Opp. Ex. 1
[“Friedrich Dep.”] 94:10-13, ECF No. 255.1 (under seal), ECF No. 269.1 (public
version) (explaining that in exit interviews with departing employees UTC discusses
its policy for the collection of UTC property).)6 Consequently, UTC contends, the 2007
Agreement was not the only effort UTC undertook to maintain the secrecy of its
information.
25. 	On this record, the Court cannot conclude as a matter of law that UTC’s
efforts to protect its trade secret information from disclosure were unreasonable.
Other courts have likewise denied summary judgment on similar showings. 	See
Medtronic MiniMed, Inc. v. Nova Biomedical Corp., 2009 U.S. Dist. LEXIS 142337,
at *20 (C.D. Cal. 2009) (“[E]xpiration of [a] Non-Disclosure Agreement is not
6 Roscigno contends that UTC did not conduct an exit interview with him after his
resignation, but he does not challenge the existence of the policy. (Roscigno Aff. ¶ 8.)

dispositive on the issue of reasonable efforts at secrecy.”); cf. On-Line Techs. v. Perkin
Elmer Corp., 141 F. Supp. 2d 246, 256 (D. Conn. 2001) (“[E]ven accepting that the
Non-Disclosure Agreement had expired, the Complaint alleges that [plaintiff] had
received 	other 	assurances 	regarding 	[defendants’] 	intentions 	to 	maintain
confidentiality. From these allegations, the Court can infer that the Non-Disclosure
Agreement was not the only effort on 	the part of [plaintiff] to maintain the
information’s secrecy.”). Indeed, an enforceable nondisclosure agreement is only one
tool among many that the owner of a trade secret may use to ensure secrecy, but such
an agreement is not required. Static Control Components, Inc. v. Darkprint Imaging,
Inc. 200 F. Supp. 2d 541, 546 (M.D.N.C. 2002).
26. 	Roscigno relies on the Wisconsin Court of Appeals’ decision ECT Int’l,
Inc. v. Zwerlein for the proposition that a plaintiff does not have a protectible trade
secret where an employee’s duty to maintain the confidentiality of the trade secret
expires after employment ends. 228 Wis. 2d. 343 (1999). There, the court held that
when 	a 	non-disclosure 	agreement 	contains 	a 	time 	limitation, 	such 	limitation
“manifest[s] an intent that after the expiration of that period a former employee is
under no restrictions.” Id. at 345. However, unlike the 2007 Agreement, the “Patent
and Confidential Information Agreement” in ECT specified that it applied to both
confidential information and trade secrets.7 See id. at 354. And, unlike here, there
7 Other cases cited by Roscigno are likewise inapposite. 	In DB Riley v. AB Eng’g Corp., a
time-limited confidentiality agreement was just one factor among several that the Court
considered when concluding that a plaintiff had not met its burden to prove that it took
reasonable steps to preserve the secrecy of its trade secrets. 977 F. Supp. 84, 91 (D. Mass.
1997). 	Structured Cap. Sols. v. Commerzbank AG, is a case involving disclosure of
information by a third party that had been bound only by a non-disclosure agreement that

was no indication in the opinion that the plaintiff presented other evidence of its
efforts to protect trade secrets.
27. 	The Court moves next to Roscigno’s argument that no misappropriation
has occurred because language in the 2007 Agreement establishes that he had
implied consent to share UTC’s trade secret information with Liquidia if he waited
three years after he left employment with UTC to do so. 	UTC does not agree with
Roscigno’s interpretation of the 2007 Agreement and asks the Court either to reject
it outright or to determine that the language is ambiguous and therefore subject to a
jury’s interpretation.
28. 	Interpreting a contract requires the court to examine the language of
the contract itself for indications of the parties’ intent at the moment of execution.
See Lane v. Scarborough, 284 N.C. 407, 409-10 (1973). 	“If the plain language of a
contract is clear, the intention of the parties is inferred from the words of the
contract.” 	Walton v. City of Raleigh, 342 N.C. 879, 881 (1996). 	However, “[a]n
ambiguity exists where the language of a contract is fairly and reasonably susceptible
to either of the constructions asserted by the parties. Stated differently, a contract is
ambiguous when the writing leaves it uncertain as to what the agreement was[.]”
Salvaggio v. New Breed Transfer Corp., 150 N.C. App. 688, 690 (2002) (citation and
internal quotation marks omitted).
had expired at the time of disclosure. 177 F. Supp. 3d 816, 835 (S.D.N.Y. 2016). The record
in the instant case includes company policies and practices intended to protect the
confidentiality of UTC information that are in addition to the 2007 Agreement.

29. 	While not dispositive, “[t]he fact that a dispute has arisen as to the
parties’ interpretation of the contract is some indication that the language of the
contract is, at best, ambiguous.” St. Paul Fire & Marine Ins. Co., v. Freeman-White
Assocs., Inc., 322 N.C. 77, 83 (1988). 	However, whether the contract is, in fact,
ambiguous is a question for the court to determine. Lynn v. Lynn, 202 N.C. App. 423,
432 (2010).
30. 	Extrinsic evidence may be consulted when the language of a contract is
ambiguous. See, e.g., Inland Am. Winston Hotels, Inc. v. Crockett, 212 N.C. App. 349,
354 (2011). 	“If the writing leaves it uncertain as to what the agreement was, parol
evidence is competent, not to contradict, but to show and make certain what was the
real agreement between the parties.” 	Int’l Paper Co. v. Corporex Constructors, Inc.,
96 N.C. App. 312, 317 (1989). In that event, however, interpretation of the contract
is a question of fact for the jury. Id.; see also Schenkel & Schultz, Inc. v. Hermon F.
Fox & Assocs., P.C., 362 N.C. 269, 273 (2008); Whirlpool Corp. v. Dailey Constr., Inc.,
110 N.C. App. 468, 471 (1993); Martin v. Ray Lackey Enters., Inc., 100 N.C. App. 349,
354 (1990) (“[I]ntent is a question of law [only] where the writing is free of any
ambiguity which would require resort to extrinsic evidence or the consideration of
disputed fact.”); Cleland v. Children’s Home, Inc., 64 N.C. App. 153, 157 (1983)
(“Ambiguities in contracts are to be resolved by the jury[.]”).
31. 	Here, the intent of the parties with respect to whether Roscigno was
required to continue to protect trade secret information even though his obligation to
protect “Confidential Information” as defined in the 2007 Agreement expired three

years after termination is unclear. 	Section ten, which requires that Roscigno
maintain confidentiality for three years post-employment, applies to Confidential
Information generally and neither references trade secrets as a category nor specifies
the subject matter of the information it purports to cover. On the other hand, section
nine of the 2007 Agreement, which requires that secrecy be maintained indefinitely,
specifically uses the term trade secrets. Consequently, the parties, at least at times,
treated trade secrets differently when it came to Roscigno’s confidentiality obligations
than they did other forms of Confidential Information. Thus, it is not clear that they
intended for his confidentiality obligation with respect to trade secret information to
expire three years after his employment ended.8
32. 	“When an agreement is ambiguous and the intention of the parties is
unclear . . . interpretation of the contract is for the jury.” 	Schenkel & Shultz, Inc.,
362 N.C. at 273. 	Accordingly, it will be up to a jury to decide whether the parties
intended for trade secret protection to expire three years after the termination of
Roscigno’s employment.
33. 	Finally, Roscigno argues that he is entitled to summary judgment with
respect to UTC’s misappropriation claim because, under the North Carolina Trade
Secrets Protection Act, a plaintiff may only recover actual damages that were caused
8 Roscigno’s position that the three-year limit on his confidentiality obligation in the 2007
Agreement was bestowed as a “special benefit” for his years of service, (Roscigno Aff. ¶ 6), is
challenged by the affidavit of Dr. Martine Rothblatt, UTC’s CEO. Dr. Rothblatt testified that
“[i]t was not the intent of the 2007 Employment Agreement to provide Roscigno with
permission to take UTC documents after he left the company and then use them later to
compete against UTC.” (Aff. of Martine Rothblatt, Ph.D, J.D., M.B.A ¶ 10, ECF No. 256.1.)
The parties’ intent is a material issue of fact to be determined by a jury.

by 	misappropriation. 	(Def.’s 	Br. 	Supp. 	19.) 	Given 	his 	contention 	that 	no
misappropriation occurred, Roscigno concludes that, as a matter of law, UTC could
not have sustained any damages as a result of misappropriation.
34. 	UTC contests Roscigno’s conclusion that the 2007 Agreement afforded
him the ability to take possession of its trade secrets when he left employment so that
three years later, he could share them with Liquidia. Among other things, it points
to a policy in the Employee Handbook, incorporated into the 2007 Agreement,
providing that “[a]ll company property and equipment in the employee’s possession
or control must be returned prior to the employee’s last day.” 	(2004 Employee
Handbook 7.) UTC maintains that the documents Roscigno took on a flash drive are
company property. 	(See Friedrich Dep. 153:20-154:1 (“Q: Now, you said that
employees have to return UTC documents; is that correct? A: I generally use the term
company property so that it’s all-inclusive.”); Pls.’ Br. Opp. Ex. 6 [“Bunce 30(b)(6)
Dep.”] 146:15-17, ECF No. 255.6 (under seal), ECF No. 269.6 (public version) (“[A]ny
document created by [UTC] or by an employee of [UTC] is considered property of
[UTC.]”).)
35. 	The Court again concludes that Roscigno is not entitled to summary
judgment on this basis. Even if the 2007 Agreement implicitly permitted Roscigno to
disclose UTC’s trade secrets three years after termination of his employment—which
itself is an issue for the jury—UTC has presented evidence to support its position that
he never should have taken the documents containing trade secrets in the first place.
By 	statute, 	trade 	secret 	misappropriation 	is 	defined 	to 	include 	the 	unlawful

acquisition of a trade secret, as well as its disclosure. 	N.C.G.S. § 66-152(1).
Therefore, a jury could conclude that misappropriation occurred, and UTC was
damaged as early as June 2007, when Roscigno left its employ with company
information stored on a flash drive in violation of its policy.
V. 	CONCLUSION
36. 	WHEREFORE, for the reasons stated herein, Defendant Dr. Robert
Roscigno’s Motion for Summary Judgment, (ECF No. 209), is DENIED.
IT IS SO ORDERED, this 31st day of July, 2024.
/s/ Julianna Theall Earp
Julianna Theall Earp
Special Superior Court Judge
for Complex Business Cases