Apprio, Inc . v. Neil Zaccari

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 6, 2023 Decided June 21, 2024
No. 22-7057
APPRIO, INC .,
APPELLEE
v.
NEIL ZACCARI,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:18-cv-02180)
Gregory W. Keenan, pro hac vice, argued the cause for
appellant. On the brief were Belinda D. Jones, Robert D.
Michaux, Andrew B. Grimm, and Kirk T. Schroder.
John R. Hutchins argued the cause for appellee. With him
on the brief were Christopher B. Roth and William Rauchholz.
Before: W ILKINS and WALKER , Circuit Judges, and
R ANDOLPH , Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge WILKINS .

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WILKINS , Circuit Judge: This case concerns the
enforceability of a contract that was digitally “acknowledged”
but not explicitly “agreed” to. Between 2015 and 2017,
Appellee Apprio, Inc. (“Apprio”), a government contractor in
the business of helping clients automate and streamline
operations, employed Appellant Neil Zaccari (“Zaccari”) as a
Senior Technical Manager responsible, in part, for technology
development. Prior to his employment with Apprio, Zaccari,
incidentally, had developed a regulatory compliance software
(the “Initial Software”). During his tenure, Zaccari realized
that his Initial Software might be helpful to Apprio, so he
updated the Initial Software to create a new version: the
Updated Software. Zaccari then brought the Updated Software
to work and demonstrated it to both his colleagues and one of
Apprio’s clients. Apparently impressed by the Updated
Software, Apprio asked Zaccari to hand it over. Zaccari
obliged.
The next month, Apprio sent Zaccari a document titled
“Proprietary Information and Assignment of Inventions
Agreement” (the “Agreement”). The Agreement included
provisions relevant to copyright assignment of the Updated
Software. Zaccari accessed the Agreement through Apprio’s
human resources portal and admits that he both saw the
document and had the opportunity to read it. Zaccari then
closed the document by clicking on the “only option” he says
he saw on the computer screen: a button that read
“Acknowledge.” J.A. 923.
Nearly a year later, Apprio fired Zaccari. Following his
termination, Apprio requested Zaccari furnish all copies of the
Updated Software in his possession. Zaccari refused to do so,
and he instead copyrighted the Updated Software and sued
Apprio for breaching the Agreement when Apprio allegedly
forced him to turn over a copy of the Updated Software to an

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Apprio client. In response, Apprio filed this case, countersuing
Zaccari for breaching the Agreement when he refused to assign
his rights in the Updated Software to Apprio (among other
attendant actions). The District Court combined the cases,
dismissed Zaccari’s case for failure to state a claim, and in
Apprio’s case, initially granted partial summary judgment for
Apprio with respect to contractual assignment of rights in the
Updated Software and later also granted full summary
judgment for Apprio on its breach of contract claim.
Zaccari now appeals, arguing that the Agreement is not an
enforceable contract and, in the alternative, that the Agreement
neither supports the assignment of his rights in the Updated
Software to Apprio nor a finding that he breached the
Agreement. We disagree on all fronts. We hold that Zaccari’s
“acknowledgment” of the Agreement created an enforceable
contract that requires Zaccari to assign his rights in the Updated
Software to Apprio. Accordingly, Zaccari breached the
binding Agreement by failing to assign those rights to Apprio
and disclosing the Updated Software’s underlying code to the
U.S. Copyright Office (“Copyright Office”) in order to obtain
the copyright. For these reasons, we affirm the District Court.
I.
A.
Zaccari was employed at Apprio as a Senior Technical
Manager between November 2015 and May 2017. While
Zaccari worked there, Apprio was under contract with the
Defense Contract Management Agency (“DCMA”) to help the
agency receive and review contracts more efficiently by
developing, testing, and implementing automation tools. As
relevant here, Zaccari was hired to work in a group specifically
“charged with making recommendations for improving, among

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other things, the DCMA’s contract receipt and review process.”
Id. at 922.
In 2008, prior to his employment at Apprio, Zaccari
independently developed the Initial Software. The Initial
Software is a regulatory compliance program that automates
the generation of Microsoft Excel reports on key search terms.
It works by allowing users to “set out regulatory compliance
provisions,” which the computer then uses to “search an
uploaded document for key terms related to that provision,”
and then “create[] a report that list[s] the key terms . . . [with]
the page, line number, and associated regulatory provision for
each mention of the key terms.” Id. at 921.
In 2016, upon realizing that his software could be useful
to Apprio for “efficiently implement[ing] contract review” and
“automat[ing] contract receipt and review processes[,]”
Zaccari updated the Initial Software on his own time and
equipment. Id. at 570–71. To accomplish this update, Zaccari
made what he calls “superficial or very simple” changes, like
“updat[ing] the code to allow a user to directly upload a [.]pdf
file, rather than only a Word document” and other changes to
“make the program compatible with newer versions of
Microsoft Excel.” Id. at 922. The “base code [that] contain[ed]
the keyword lookup and the keyword search engine,” however,
was left untouched. Id. at 922.
These changes resulted in the Updated Software—a new
version of the program. The Updated Software had “10
additional functions” and was realized from changing “[m]ore
than half of the [underlying] code” from the Initial Software.
J.A. 1754. After finishing the update, Zaccari brought the
Updated Software to work to “show . . . [his] colleagues and a
senior level government employee at DCMA.” Id. at 923. He
additionally “informed Apprio that he could use the existing

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capabilities of [the software he had developed] to automate the
DCMA’s manual contract receipt and review process.” Id. at
699.
While some of the facts concerning what came next are
disputed, the parties agree that, shortly after Zaccari’s
demonstration at work, Apprio asked Zaccari for the Updated
Software and Zaccari provided it. Apprio then turned the
Updated Software over to DCMA, which in turn deployed it to
its own employees for use.
About a month after Zaccari’s demonstration, in June
2016, Apprio sent Zaccari the Agreement through the
company’s human resources portal. Zaccari logged into the
portal, “clicked a link and proceeded to the [Agreement]
document.” Id. at 923. The document included three
provisions relevant here:
2.2 Prior Inventions[:] Inventions . . . which I
made prior to the commencement of My
Service are excluded from the scope of this
Agreement and all inventions which I made
prior to the commencement of My Service will
be governed by assignment agreements I
executed prior to the date hereof. To preclude
any possible uncertainty, I have set forth on a
Previous Inventions Disclosure Form . . . a
complete list of all Inventions that I have, alone
or jointly with others, conceived, developed or
reduced to practice or caused to be conceived,
developed or reduced to practice prior to the
commencement of My Service, and that I both
(a) may use in connection with My Service and
(b) consider to be my property . . . and that I
wish to have excluded from the scope of this

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Agreement . . . . [Additionally,] Prior
Inventions shall not include inventions that I
have developed or reduced to practice or
caused to be conceived, developed or reduced
to practice prior to the commencement of My
Service if I do not use such inventions in
connection with My Service . . . . If no such
disclosure is made, I represent that there are no
Prior Inventions. If, in the course of My
Service, I incorporate a Prior Invention into a
Company product, process or machine, the
Company is hereby granted and shall have a
nonexclusive, royalty-free, irrevocable,
perpetual, worldwide license (with rights to
sublicense through multiple tiers of
sublicensees) to make, have made, modify, use
and sell such Prior Invention. Notwithstanding
the foregoing, I agree that I will not
incorporate, or permit to be incorporated, Prior
Inventions in any Company Inventions without
the prior written consent of an authorized
officer of the Company.
2.3 Assignment of Inventions[:] Subject to
Section[] 2.4 . . . I hereby assign and agree to
assign in the future . . . to the Company all my
right, title and interest in and to any and all
Inventions (and all Proprietary Rights with
respect thereto) whether or not patentable or
registrable under copyright or similar statutes,
made or conceived or reduced to practice or
learned by me . . . during the period of My
Service[] . . . .

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2.4 Unassigned Inventions[:] I recognize that
this Agreement will not be deemed to require
assignment of any invention that was
developed entirely on my own time without the
Company’s equipment, supplies, facilities, or
trade secrets and neither related to the
Company’s actual or anticipated business,
research or development, nor resulted from
work performed by me for the Company.
Id. at 130–31. The Agreement also included a preamble that
read “I hereby agree as set forth herein,” id. at 130, and a
conclusion that stated, in relevant part, “I acknowledge and
agree that the language herein shall be deemed to be approved
by all parties hereto . . . and that I have had an opportunity to
consult with an attorney regarding the terms herein prior to
signing this Agreement,” id. at 133.
Zaccari admits to opening this document, to having had
the opportunity to read it, and to then clicking the
“Acknowledge” button, which he says was the “only option on
the computer screen” available for closing the window. Id. at
923. Zaccari did not subsequently submit any Previous
Inventions Disclosure Forms as directed by the Prior
Inventions provision of the Agreement, but also claims he both
“was . . . never told that ‘agreeing’ to the document was a
condition of [his] employment” and “didn’t understand
[him]self to be signing a contract that would bind [him].” Id.
In May 2017—nearly a year after Zaccari received the
Agreement—Apprio terminated Zaccari. Thereafter, Zaccari
refused Apprio’s requests to furnish all copies of the Updated
Software in his possession. Instead, Zaccari copyrighted the
Updated Software in 2018 using a “One Work by One Author”
application, wherein he disclosed the entirety of the source

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code for the software and asserted that the software was
completed in 2016 (during his employment at Apprio), before
suing Apprio.
B.
Zaccari’s central claim in his suit was that Apprio
breached the Agreement by forcing him to turn over a copy of
the Updated Software. See Zaccari v. Apprio, Inc. (Zaccari I),
No. 18-cv-1560 (D.D.C. Jun. 29, 2018). In that case, Zaccari
admitted that he had “entered into the . . . Agreement,” J.A.
594, and had “agreed to assign any rights in or to his work
product to Apprio ‘during [his] employment or engagement as
an independent contractor by [Apprio],’” id. at 588 (quoting the
Agreement).
While Zaccari I was pending, Apprio filed this case. The
company alleged Zaccari breached the Agreement when he
failed to “assign any rights he [claims]” in the Updated
Software. Id. at 31. The District Court consolidated Zaccari I
with the instant case and then stayed this case before addressing
Zaccari I first.
The District Court then dismissed Zaccari I on the grounds
that Zaccari had failed to state a breach of contract claim.
Zaccari v. Apprio Inc., 390 F. Supp. 3d 103, 110 (D.D.C.
2019). The District Court then proceeded with this case, ruling
in Apprio’s favor in two judgments. See Apprio, Inc. v. Zaccari
(Apprio I), 2021 WL 2209404 (D.D.C. Jun. 1, 2021); Apprio
Inc. v. Zaccari (Apprio II), 2022 WL 971001 (D.D.C. Mar. 31,
2022). Applying District of Columbia law as specified in the
Agreement, the District Court first granted Apprio partial
summary judgment as to the contractual assignment of rights
on the grounds that the Agreement was binding and required
Zaccari to assign his rights in the Updated Software to Apprio.
Apprio I, 2021 WL 2209404, at *4–*6, *12. Second, after

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dismissing Zaccari’s intervening motions for reconsideration
and for an order directing entry of final judgment under Rule
54(b), the District Court granted Apprio summary judgment on
its breach of contract claim. Apprio II, 2022 WL 971001, at
*1.
Zaccari now appeals the District Court’s partial summary
judgment, summary judgment, and reconsideration rulings.
We have jurisdiction over each under 28 U.S.C. § 1291. We
review the grant of partial and full summary judgment de novo,
Valancourt Books, LLC v. Garland, 82 F.4th 1222, 1231 (D.C.
Cir. 2023); Klayman v. Judicial Watch, Inc., 6 F.4th 1301, 1314
(D.C. Cir. 2021), and the denial of the motion for
reconsideration for abuse of discretion, CostCommand, LLC v.
WH Administrators, Inc., 820 F.3d 19, 23 (D.C. Cir. 2016).
II.
As relevant here, the District Court made two holdings. It
first held in its partial summary judgment decision that
Zaccari’s “acknowledgment” of the Agreement created a
binding contract that required Zaccari to assign all of his rights
in the Updated Software to Apprio. Apprio I, 2021 WL
2209404, at *6. Second, after denying Zaccari’s motion for
reconsideration of the partial summary judgment decision, the
District Court held on summary judgment that Zaccari had
breached three provisions of the Agreement. For one, it held
that Zaccari breached Section 1.1, which restricts disclosing,
using, or publishing Apprio’s proprietary information, by
submitting a copyright application for the Updated Software
that included proprietary information on the program without
Apprio’s authorization. Apprio II, 2022 WL 971001, at *10–
*11. For another, the District Court held that in refusing
Apprio’s request that Zaccari execute a confirmatory
assignment to Apprio for the Updated Software, Zaccari

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breached Section 2.8 of the Agreement, which requires the
signer to “assist [Apprio] in every proper way to obtain,
and . . . enforce, United States and foreign Proprietary Rights
relating to Company Inventions” and “execute, verify and
deliver such documents and perform such other acts” as Apprio
“reasonably requests” to “obtain[]” or “perfect[]” the
assignment of rights over Apprio’s inventions. Id. at *12. And
finally, it held Zaccari breached Section 7, which required
Zaccari to “deliver to [Apprio] . . . any other material
containing or disclosing any Company Inventions . . . or
Proprietary Information of [Apprio]” at the end of his
employment, by retaining copies of the Updated Software after
his termination. Id. We agree.
A.
1.
“For an enforceable contract to exist, the court must not
only determine that there was an agreement to all material
terms, but also that the parties intended to be bound.” Duffy v.
Duffy, 881 A.2d 630, 636–37 (D.C. 2005). District of
Columbia law “adheres to an ‘objective’ law of contracts,”
which means that “the written language embodying the terms
of an agreement will govern the rights and liabilities of the
parties [regardless] of the intent of the parties at the time they
entered into the contract,”—that is, “unless the written
language is not susceptible of a clear and definite undertaking
or unless there is fraud, duress, or mutual mistake.” Dyer v.
Bilaal, 983 A.2d 349, 354–55 (D.C. 2009) (quoting DSP
Venture Grp., Inc. v. Allen, 830 A.2d 850, 852 (D.C. 2003)).
In practice, intent to be bound, “[m]utual assent,” or “meeting
of the minds,” as to a contract, is “most clearly evidenced by
the terms of a signed agreement,” but the “absence of one
party’s signature on the written agreement will not defeat or
invalidate the contract” if assent may otherwise be shown “by

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the conduct of the parties.” Davis v. Winfield, 664 A.2d 836,
838 (D.C. 1995). Indeed, since the “ultimate issue” when it
comes to mutual assent is whether the parties “objectively
manifested” their intent “to be bound contractually,” Dyer, 983
A.2d at 357 (quoting 1836 S. St. Tenants Ass’n v. Estate of B.
Battle, 965 A.2d 832, 837 (D.C. 2009)), “[t]he intentions of
parties to a contract can be found from written materials, oral
expressions and the actions of the parties” as well, if needed
beyond the written language of the contract, Duffy, 881 A.2d at
637.
Since Zaccari does not challenge the enforceability of the
Agreement for lack of an “agreement to all material terms,” id.
at 636, the only relevant question for determining whether
Zaccari’s “acknowledgment” of the Agreement formed a
contract is whether the parties intended to be bound—and for
two reasons, the answer is yes. First, Zaccari’s
“acknowledgment” is a signature for contractual purposes. The
Electronic Signatures in Global and National Commerce Act
(“E-Sign Act”) provides that in “any transaction in or affecting
interstate or foreign commerce,” a “signature, contract, or other
record relating to such transaction may not be denied legal
effect . . . solely because an electronic signature or electronic
record was used in its formation.” 15 U.S.C. § 7001(a). As
relevant here, the E-Sign Act also defines an “electronic
signature” as “an electric sound, symbol, or process, attached
to or logically associated with a contract or other record and
executed or adopted by a person with the intent to sign the
record.” Id. § 7006(5). Here, when Zaccari clicked the
“Acknowledge” button, he engaged an “electric . . . process”
that was “attached to or logically associated with” the
Agreement and that falls within the expansive statutory
definition of a signature. See id. As the District Court

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concluded, Zaccari’s admission that he intended to click the
“Acknowledge” button is necessarily also an admission that he
intended to sign the Agreement, see Apprio II, 2022 WL
971001, at *8; his engagement in that “electric process” is an
“objective[] manifest[ation]” of his intent to be bound, Dyer,
983 A.2d at 357. Moreover, as a matter of common sense,
Zaccari’s “acknowledgment” is meaningful evidence of his
intent to be bound in this particular circumstance because
clicking a button in this manner is a common method of
contractual acceptance in the world of clickwrap software
contracts—the kind of contract Zaccari could reasonably be
expected to be familiar with given his substantial background
in computer programming.
Second, even if Zaccari had not signed the Agreement, his
conduct otherwise evinces assent. See Davis, 664 A.2d at 838.
Most notably, his decision to file Zaccari I to enforce the
Agreement demonstrates that he considered the Agreement to
be binding. Further, his admissions in the proceedings below
that the Agreement is a contract belie his position on appeal.
For example, Zaccari directly admitted in his amended answer
to Apprio’s complaint that “Apprio and Zaccari entered into the
Agreement” and that the Agreement is “a valid contract
supported by consideration.” J.A. 700; see id. at 30. Zaccari
also admitted that “he was bound to the Apprio Agreement” in
his objections and responses to Apprio’s First Requests for
Admissions. Id. at 565.
2.
Zaccari’s objections are summarily unavailing. As an
initial matter, his suggestion that the Agreement was a
company policy rather than a contract is upended by, among
other elements, the plain text of the opening and closing

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paragraphs of the Agreement. The preamble—which would
have been immediately visible to Zaccari upon opening the
document—clearly states, “I hereby agree as set forth herein.”
Id. at 130. The conclusion, which Zaccari concedes he had the
opportunity to read even if he chose not to, reiterates, “I
acknowledge and agree that the language herein shall be
deemed to be approved by all parties hereto.” Id. at 133.
Zaccari cites no authority to justify this alleged distinction
between company policy and contract, leaving the Court only
with these terms that typically indicate a contract.
Next, Zaccari’s attempt to invalidate his assent to the
Agreement through a manufactured distinction between his
“acknowledgment” and an agreement splits hairs. The law is
clear that the word “accept” is not necessary to the formation
of a contract, and Apprio presents numerous examples of
admissions and conduct that show Zaccari understood that he
was bound by the Agreement. And his contention that the
contract was not formed because “he did not read Section 11.9”
is patently absurd. As a general rule “one who signs a contract
has a duty to read it and is obligated according to its terms.”
Pyles v. HSBC Bank USA, N.A., 172 A.3d 903, 907 (D.C. 2017)
(quoting PersTravel, Inc. v. Canal Square Assocs., 804 A.2d
1108, 1110 (D.C. 2002)). Accordingly, “absent fraud or
mistake, one who signs a contract is bound by a contract which
he has an opportunity to read whether he does so or not.” Id.
(quoting PersTravel, Inc., 804 A.2d at 1110). Zaccari had the
opportunity to read the Agreement when it appeared on his
screen. He also does not allege that he “had no other choice
than to sign at that point,” Pyles, 172 A.3d at 907, only that the
only button available on the human resources portal read
“Acknowledge.” Zaccari reasonably should have known that
another option—closing the program—was available to him,

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but instead he clicked the “Acknowledge” button and
manifested an acceptance that he now clearly regrets.
Third, the statute of frauds defense Zaccari raises to assert
that his “acknowledgment” is an invalid signature is foreclosed
by Anchorage-Hynning & Co. v. Moringiello. 697 F.2d 356
(D.C. Cir. 1983). In that case, a prospective buyer in a real
estate transaction stopped responding to a seller at the eleventh
hour following extensive negotiations between the parties. Id.
at 358. As part of the parties’ negotiations, the seller drafted a
proposed contract that it presented to the prospective buyer,
who deemed it “completed and satisfactory.” Id. When it
became clear that the prospective buyer was not coming back
to close the deal, the seller filed suit. Id. at 359. The
prospective buyer raised a statute of frauds defense but also
admitted that he had met with the seller to negotiate a sale and
that he had been satisfied by the final contract draft. Id. In
light of these admissions, the seller filed a request for
admissions, seeking concessions that showed the parties had an
oral agreement, but received no response. Id. at 359–60. The
district court then ruled for the ever-vanishing prospective
buyer on summary judgment but this Court, applying District
of Columbia law, reversed on the grounds that “a defendant
waives the protection of the statute of frauds, and hence is
barred from asserting it defensively, by admitting during the
course of discovery either the making of the contract or facts
sufficient to establish its existence.” Id. at 362. So too here.
Zaccari’s admissions conceding his understanding that the
Agreement was binding mean that he cannot raise a statute of
frauds defense now that a determination that the Agreement is
valid is no longer in his interest.

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B.
We now turn to whether the Agreement bound Zaccari to
assign all rights in the Updated Software to Apprio.
1.
“Copyright first ‘subsists’ when an author ‘fix[es]’ a work
‘in any tangible medium of expression.’” Valancourt Books,
82 F.4th at 1232 (quoting 17 U.S.C. § 102(a)). The creation of
the work, then, is the operative moment for determining
whether copyright has been gained, as copyright protection is
“both instant and automatic,” in that it “vests as soon as a work
is captured in a tangible form, triggering a panoply of exclusive
rights that can last over a century.” Georgia v.
Public.Resource.Org, Inc., 590 U.S. 255, 275 (2020).
Thereafter, under the Copyright Act, “each version [of the
work] constitutes a separate work.” 17 U.S.C. § 101.
In light of this standard and the plain text of the
Agreement, the District Court correctly interpreted this
relatively straightforward Agreement. The Assignment of
Inventions provision plainly assigns to Apprio all “right, title
and interest in and to any and all Inventions” an employee
makes, conceives of or reduces to practice “during the period
of [their] Service” with Apprio. J.A. 131. Zaccari concedes
that he created the Updated Software during his time at Apprio.
The Updated Software, accordingly, is covered by this
provision as a subsequent version of the Initial Software that
plainly stands alone as “a separate work.” 17 U.S.C. § 101.
The District Court was also correct that none of the
exceptions in the Prior Inventions provision or the Unassigned
Inventions provision exempt Zaccari’s creations from the
Assignment of Inventions provision of the Agreement. The
Prior Inventions provision says that, in order to exclude an

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invention from the scope of the Agreement, the signatory is
required to
set forth on a Previous Inventions Disclosure
Form . . . a complete list of all Inventions that
[they] have . . . developed . . . prior to the
commencement of [their] Service, and that [they]
both (a) may use in connection with [their] Service
and (b) consider to be [their] property.
J.A. 130. Importantly, that provision also states that “[i]f no
such disclosure is made, [the signatory] represents that there
are no Prior Inventions.” Id. at 131. Accordingly, the only way
to exclude a prior invention from the scope of the Agreement
without a disclosure form is if the relevant invention developed
“prior to the commencement” of an employee’s service is “not
use[d] . . . in connection with [their] Service.” Id. at 130.
Zaccari did not disclose the Initial Software. By the terms of
the Agreement, his omission equates to a representation that
the Initial Software is not an exempted prior invention. Zaccari
also used the Initial Software in connection with his service
when he used it to create the Updated Software that he then
brought to work to share with his colleagues and DCMA—an
Apprio client Zaccari would not have had any relationship with
but for his position as an Apprio employee. For these reasons,
the Prior Inventions provision does not exclude the Initial
Software from the scope of the Agreement.
The Updated Software is similarly not exempted through
the Unassigned Inventions provision. That provision directs
that the Assignment of Inventions provision does not apply to
inventions “that [were] developed entirely on [the employee’s]
own time without using the Company’s equipment, supplies,
facilities, or trade secrets and neither related to the Company’s
actual or anticipated business, research or development, nor

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resulted from work performed by [the employee] for the
Company.” Id. at 131. Even though Zaccari created the
Updated Software on his own time and equipment, its purpose
and function show that it is unquestionably related to Apprio’s
actual “business, research [and] development” with DCMA.
Indeed, this alignment is what motivated Zaccari to bring the
Updated Software to his office for a demonstration before his
colleagues and a DCMA representative in the first place. To
conclude otherwise would require ignoring the basic facts in
the record.
2.
Zaccari protests this conclusion with an assertion that,
even if the Agreement is a binding contract, it did not
effectively assign his copyright in the Updated Software to
Apprio. In support, Zaccari posits that (1) the Assignment of
Inventions provision cannot apply to any portion of the
Updated Software that replicates any element of the Initial
Software; (2) the Prior Inventions provision cannot assign his
rights in the Updated Software because it is a license provision
rather than an assignment provision; and (3) the Unassigned
Inventions provision should be read to protect his rights in both
versions of the software because the four criteria in that
provision mirror the language of certain state labor statutes that
are designed to “limit[] employer claims to employee
intellectual property.” Appellant’s Br. 25 (emphasis in
original). In addition to these three main points, Zaccari also
contends that each provision should be construed in his favor
because they are, in one manner or another, ambiguous.
Despite Zaccari’s creative engagement with this issue, the
Court cannot entertain a number of his arguments because they
have been forfeited. “It is well settled that issues and legal
theories not asserted at the District Court level ordinarily will
not be heard on appeal.” Huron v. Cobert, 809 F.3d 1274, 1280

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(D.C. Cir. 2016) (quoting District of Columbia v. Air Florida,
Inc., 750 F.2d 1077, 1084 (D.C. Cir. 1984)). This applies
equally to issues and arguments; “absent exceptional
circumstances, a party forfeits an argument by failing to press
it in district court.” Gov’t of Manitoba v. Bernhardt, 923 F.3d
173, 179 (D.C. Cir. 2019). Moreover, “[a] party forfeits an
argument by mentioning it only ‘in the most skeletal way,
leaving the court to do counsel’s work, create the ossature for
the argument, and put flesh on its bones.’” Id. (quoting
Schneider v. Kissinger, 412 F.3d 190, 200 n.1 (D.C. Cir.
2005)); see also District of Columbia v. Straus, 590 F.3d 898,
903 (D.C. Cir. 2010).
Accordingly, Zaccari’s Assignment of Inventions
provision objections cannot be heard on appeal. Zaccari
specifically argues that the Assignment of Inventions provision
does not require that he turn over any portion of the Updated
Software that replicates any portion of code from the Initial
Software because the Updated Software is a derivative work,
which the Copyright Act defines as a “work based upon one or
more preexisting works,” 17 U.S.C. § 101, that only allows for
transfer of copyright in “the material contributed by the author
of [the derivative] work” and not “any exclusive right in the
preexisting material,” id. § 103. Put simply, Zaccari did not
develop the legal argument necessary to even gesture at the
possibility that the Updated Software could be classified as a
derivative work in the proceedings below. Even going so far
as to consider that he alleged that the Updated Software was
derivative of the Initial Software in Zaccari I, he appears to
have raised that point in a wholly different context—to assert
that Apprio had created derivative works of the Updated
Software without his permission. Seeing no “exceptional
circumstances” that warrant consideration of this argument, it
will not be considered because the District Court did not have

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an opportunity to pass on the issue with the benefit of the
factual record before it. Air Florida, Inc., 750 F.2d at 1084.
Zaccari’s contentions that he should have prevailed on
summary judgment because a number of contractual terms
were ambiguous meet the same fate. For the same reasons
described above, the Court cannot consider this argument.
There are zero references to “ambiguities” or “contra
proferentem”1 in the record before us. While Zaccari did cite
to caselaw in his opposition to partial summary judgment that
addresses how contractual ambiguities should be resolved, he
presented his attendant argument only in the “most skeletal
way,” Gov’t of Manitoba, 923 F.3d at 179 (quoting Schneider,
412 F.3d at 200 n.1)—he neither interpreted those cases to
support an argument about the resolution of ambiguities nor
raised the doctrine of contra proferentem.
Zaccari’s remaining contract interpretation arguments,
while not forfeited, are easily dispatched as inapposite or
unpersuasive. His contention that the Updated Software cannot
be assigned through the Prior Inventions provision is irrelevant
to any of the holdings in the District Court or the questions on
appeal—the Agreement effectively assigns Zaccari’s rights in
the Updated Software to Apprio through the Assignment of
Inventions Provision, not the Prior Inventions provision. To
the degree that Zaccari is arguing that Apprio is not entitled to
the assignment of rights in anything but the derivative material
in the Updated Software and that the Prior Inventions provision
fails to effectively license the original code from the Initial
Software to Apprio, that argument is foreclosed by Zaccari’s
own failure to reserve his rights in the Initial Software as a
1 Contra proferentem is “[t]he doctrine that, in the interpretation of
documents, ambiguities are to be construed unfavorably to the
drafter.” Contra Proferentem, BLACK’ S LAW DICTIONARY (11th ed.
2019).

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separate prior invention. Without such a designation, the
Updated Software is for all intents and purposes a complete
work that Zaccari must assign, in its totality, to Apprio.
His next argument—that the Updated Software meets the
requirements laid out in the Unassigned Inventions provision
for exemption from the Agreement—relies on a wild assertion
that the plain text of that provision should be informed by
outside sources completely unrelated to the contract. On
Zaccari’s read, the text of the provision should be contorted to
serve public policy interests in limiting employer claims to
employee intellectual property because the text is substantively
similar to certain provisions in state labor statutes in California,
Delaware, Illinois, Kansas, Minnesota, North Carolina, and
Washington. Separate and apart from the fact that the
Agreement is governed by District of Columbia law rather than
the law of any of these states, this is also just not how contract
interpretation works. As a general matter, “the court interprets
the unambiguous terms of a contract as a matter of law.”
Steuart Inv. Co. v. The Meyer Grp., Ltd., 61 A.3d 1227, 1239
(D.C. 2013). “[W]here a contract is ‘reasonably susceptible of
different constructions or interpretation,’” however, “‘the
meaning of the language must be evinced from extrinsic
evidence on the intent of the parties.’” Id. (quoting District of
Columbia v. D.C. Pub. Serv. Comm’n, 963 A.2d 1144, 1155–
56 (D.C. 2009)). Zaccari does not allege that the Unassigned
Inventions provision is ambiguous. We agree, so we must
interpret the terms of this provision of the Agreement by
themselves. Even if Zaccari had alleged the Unassigned
Inventions provision was ambiguous, the interpreting court
would be limited to considering “extrinsic evidence” like “the
conduct and prior dealings of the parties, the circumstances
surrounding the making of the contract, and industry
standards” that actually gets at the intent of the parties—not a
small smattering of state statutes with similar language that had

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no bearing on the parties’ intentions with respect to the
contract. Id.
Zaccari makes a final passing allegation that the District
Court erred in finding that the Agreement was retroactively
applicable, urging instead that the earliest effective date of the
Agreement would have been the date of his “acknowledgment”
if the facts are construed in the light most favorable to him.
The Agreement, however, renders this objection null, as it
unambiguously explains that the contract applies to inventions
created during “[Zaccari’s] Service,” which the Agreement
defines as “all times during [his] employment.” J.A. 130.
C.
Finally, Zaccari argues that he did not breach the
Agreement and that the District Court’s breach of contract
analysis was flawed. This argument, however, is also forfeited.
In his briefs, Zaccari challenges the District Court’s
holding as to each section he breached. He first contends that
he did not violate Section 1.1 of the Agreement, which
prohibits public disclosures of Apprio’s proprietary
information, by “[p]roviding a single deposit copy of an
unpublished work to the Copyright Office,” Appellant’s Br. 63,
because the restrictions in that section are most reasonably read
to prohibit “disclosures of a public nature or perhaps giving of
information to commercial competitors,” rather than
submitting information to the Copyright Office, id. at 65.
Zaccari next argues that his refusal to execute a “Confirmatory
Assignment of Copyright” agreement (“Confirmatory
Agreement”) is not a violation of Section 2.8 of the Agreement,
which requires the employee to “execute, verify and deliver
assignments of . . . Proprietary Rights to the Company,” id. at

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63, because the Confirmatory Agreement would take away his
“moral rights,” which he says are not governed by the
Agreement,2 id. at 67. Third, Zaccari objects that he did not
violate Section 7 of the Agreement, which governs the return
of company documents and property upon employee
termination, because he “retain[ed] documents and materials
already owned and possessed by [himself]” and did not “breach
any obligation to ‘[return]’ them” under the Agreement. Id. at
63.
As in the case of the forfeited arguments described in the
previous section, we need not consider Zaccari’s breach of
contract arguments at all because they were “not asserted at the
District Court level.” Huron, 809 F.3d at 1280 (quoting Air
Florida, Inc., 750 F.2d at 1084). He did not meaningfully
dispute that he had breached Sections 1.1, 2.8 and 7 of the
Agreement in any of his briefs. Instead, he dedicated his entire
opposition to summary judgment below to his statute of frauds
argument. His defense against the breach of contract
allegations is composed of one conclusory statement: “In the
absence of a binding contract . . . there can be . . . no[] breach
by” Zaccari. J.A. 1516. Because Zaccari failed to assert these
arguments in the District Court, they are forfeited.
2 Moral rights, in countries that recognize such rights, are distinguished
from copyrights and may include “a right of divulgation (that is, the right to
control the first public distribution)[;]” “a right of attribution (the right to
receive credit for the work)[;]” “a right of integrity (the right to object to
alterations in the work which will damage the author’s honor and
reputation)[;]” and “a right to withdraw the work from circulation.” MARY
L AFRANCE , COPYRIGHT L AW IN A N UTSHELL 195 (2d ed. 2011); see also
M ELVILLE B. N IMMER & DAVID N IMMER , 3 N IMMER ON COPYRIGHT
§§ 8D.01[A] (Matthew Bender rev. ed. 2023).

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* * * * *
For the foregoing reasons, we affirm the judgments of the
District Court.
So ordered.

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