berman’s answer, defenses and counterclaim …case 1:18-cv-03005-tcb document 32 filed 08/06/18...

SGR/18824389.4

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

VERITIV OPERATING COMPANY, ) )

Plaintiff, ) ) Civil Action No.

v. ) 1:18-cv-03005-TCB )

F. JASON BERMAN and ) JURY TRIAL DEMANDED MELISSA PAYNE, )

) Defendants. )

BERMAN’S ANSWER, DEFENSES AND COUNTERCLAIM

Defendant F. Jason Berman (“Berman”) answers the Complaint of Plaintiff

Veritiv Operating Company (“Veritiv”)’s as follows:

INTRODUCTION

1. Berman admits that this is an action by Veritiv for damages and

injunctive relief and that this lawsuit seeks to prevent Berman and Melissa Payne

(“Payne”) (jointly “Defendants”) from misappropriating Veritiv’s alleged

confidential and proprietary information, from unfairly competing against Veritiv,

from breaching alleged contractual obligations, and from engaging in alleged

violation of Defendants’ common law and/or contractual duties allegedly owed to

Veritiv. Except as thus admitted, the allegations of paragraph 1 are denied.

Berman expressly denies that Veritiv owns confidential information and/or trade

Case 1:18-cv-03005-TCB Document 32 Filed 08/06/18 of 33

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secrets, that he has misappropriated any alleged Veritiv confidential and

proprietary information and/or trade secrets, that he has competed unfairly with

Veritiv, that he has breached contractual obligations or engaged in other actions in

violation of common law and/or contractual duties owed to Veritiv.

2. Denied.

3. Berman is without knowledge or information sufficient to form a

belief as to the truth of the allegations of paragraph 3.

4. Berman admits that Veritiv seeks injunctive relief, damages, costs,

and attorney’s fees. Except as thus admitted, the allegations of paragraph 4 are

denied. Berman expressly denies that he has engaged in unlawful conduct, that he

has disrupted Veritiv’s workforce, that he has disseminated any confidential

information, that Veritiv has suffered actual damages, that Veritiv has been or will

be irreparably harmed, and that Veritiv is entitled to recover its attorneys’ fees.

5. Berman admits that Veritiv has its principal place of business located

at 1000 Abernethy Road N.E., Building 400, Suite 1700, Atlanta, Georgia, 30328.

Except as thus admitted, Berman is without knowledge or information sufficient to

form a belief as to the truth of the allegations of paragraph 5.

6. Admitted.

7. Berman admits that Payne is an individual and that she resides at 400


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West Peachtree Street N.W., Atlanta, GA 30308, and that a Noncompetition

Agreement dated October 31, 2006 allegedly between Payne and Veritiv is

attached as Exhibit B to the Compliant. Except as thus admitted, Berman is

without knowledge or information sufficient to form a belief as to the truth of the

allegations of paragraph 7.

JURISDICTION AND VENUE

8. Admitted. Further responding to the allegations of paragraph 8,

Berman expressly denies that he has violated the Defend Trade Secrets Act

(“DTSA”), 18 U.S.C. § 1836, et seq., or the Computer Fraud and Abuse Act, 18

U.S.C. § 1030, et seq.

9. Berman admits that the Court has supplemental jurisdiction over all

claims for which the Court lacks original jurisdiction. Berman is without

knowledge or information regarding Payne’s alleged improper and illegal actions.

Except as thus admitted or otherwise responded to, the allegations of paragraph 9

are denied. Berman expressly denies that he has engaged in any illegal actions

toward Veritiv.

10. Berman admits that he has worked for Veritiv since 2014, that he has

traveled to Georgia in connection with his job responsibilities for Veritiv, that he

has provided services to Georgia-based clients, that he has provided services to


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clients that were performed in Georgia, and that he has interacted by telephone and

essentially daily by email with Georgia-based employees of Veritiv. Berman is


allegations that Veritiv is a Georgia company. Except as thus admitted or

otherwise responded to, the allegations of paragraph 10 are denied. Berman

specifically denies that he has numerous contacts with or has inflicted harm in

Georgia, that Veritiv has confidential information and trade secrets located in

Georgia or elsewhere, that he has illegally conspired with Payne, that he has

engaged in any intentional, forum-related conduct, and that he has engaged in any

illegal activity, or has committed any intentional tort. Further responding to the

allegations of paragraph 10, Berman shows that he has relatives residing in

Georgia, that he has traveled to Georgia approximately 3 or 4 times annually to

visit his relatives, that on most such occasions he has visited the Atlanta office of

his customer Cox Communications and on some occasions he visited Veritiv

headquarters, and that he primarily services his customer Cox Communications at

its locations in Arizona, Kansas, Louisiana, and Virginia.



12. Berman admits that Payne is domiciled in this District and Division,


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and that Veritiv’s principal place of business is in this District and division.

Except as thus admitted, the allegations of paragraph 12 are denied.

FACTS

A. Veritiv’s Business, Trade Secrets, and Confidential Information

13. Berman admits that as set forth in Paragraph 1(a) of the Berman

Agreement (attached to Plaintiff’s Complaint as Exhibit A), Veritiv is in the

business of “(i) the distribution, manufacture or sale of paper and paper products;

facility supplies (including janitorial supplies); packaging equipment, products,

design services or supplies; graphics supplies; and related items, (ii) the provision

of wholesale and fulfillment services and (iii) the provision of supply chain

logistics services, including transportation and warehouse services.” Berman

further admits that Veritiv is engaged in such business throughout North America,

and that Veritiv’s distribution, manufacture or sale of packaging products and

design services is highly competitive. Berman is without knowledge or

information sufficient to form a belief as to the truth of the remaining allegations

of paragraph 13. Further responding to the allegations of paragraph 13, Berman

shows that Veritiv’s distribution, manufacture, or sale of packaging products and

design services business consists of two components, commodity packaging

products and design services (“Commodity Packaging Business”) and custom


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packaging products and design services (“Custom Packaging Business”), that he

was engaged only in marketing and selling packaging and design services in the

Custom Packaging Business to his customers, including, but not limited to, Cox

Communications, United Parcel Service (“UPS”), and Charter Communications

(successor of Time Warner) (“Berman Customers”).

14. Because the phrases “this highly competitive industry” and “market-

leading team” are vague, indefinite, and uncertain, Berman is without knowledge

or information sufficient to form a belief as to the truth of the allegations of

paragraph 14.

15. Berman admits that Veritiv’s Custom Packaging Business sales force

works closely with vendors and customers and provides product development and

operational support. Because the phrases “skilled salesforce,” “a network of

vendors and customers,” and “a market leader in the industry,” are vague,

indefinite, and uncertain, Berman is without knowledge or information sufficient to

form a belief as to the remaining allegations of the first sentence of paragraph 15.

Berman denies that he has received training or development services from Veritiv,

and is without knowledge or information sufficient to form a belief as to the truth

of the remaining allegations of the last sentence of paragraph 15.

16. Berman admits that Veritiv’s employee and client relationships are the


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lifeblood of its business. Except as thus admitted, Berman denies the allegations of

paragraph 16.

17. Berman denies Veritiv has supplied him with customer lists; detailed

information about the identities and requirements of current and prospective

customers; detailed information about supplier (and vendor) capabilities and

supplier (and vendor) prices; detailed information about the ordering histories of

current customers; customer pricing, pricing strategies, and sales and margin data;

and business methods, strategies, and plans, including prospective customers and

sales strategies and methods. Berman is without knowledge or information

sufficient to form a belief as to the truth of the remaining allegations of paragraph

17. Further responding to paragraph 17, Berman shows that he has spent

substantial time, effort, and expense in identifying the Berman Customers,

prospective customers, and the requirements of such customers; identifying

suppliers and vendors of packaging components and their capabilities; detailed

information about the ordering histories of current customers; and customer

pricing, pricing strategies, and sales and margin data. Any remaining allegations

of paragraph 17 are denied.

18. Berman admits that packaging designs, product costs, margins,

discounts, and pricing strategies, are stored on Veritiv’s computer system in


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password-protected files and in password-protected databases, that he has access to

Veritiv’s computer system only by using the VPN protocol that is password

protected, and that he has access only to information and data for Berman

Customers without obtaining management approval. Berman denies that such

packaging designs, product costs, margins, discounts, and pricing strategies for

Berman Customers are trade secrets or confidential and proprietary business

information of Veritiv, and denies that any information regarding Berman

Customers in Veritiv’s possession, custody, or control is a trade secret or

confidential and proprietary information of Veritiv. Berman is without knowledge

or information sufficient to form a belief as to the truth of the remaining

allegations of paragraph 18.

19. Denied.

20. Berman admits that Veritiv has sales representatives and support staff

who are the face of Veritiv to Veritiv customers, that the relationships that such

sales representatives and support staff have with their customers is highly

dependent on the individual attention and service that such sales representatives

and support staff give to such customers on an ongoing basis. Berman is without

knowledge or information sufficient to form a belief as to the truth of the

remaining allegations of paragraph 20. Further responding to paragraph 20,


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Berman shows that he has spent a significant amount of time cultivating

relationships with the Berman Customers, that he has spent a significant amount of

money cultivating relationships with the Berman Customers, that he receives from

Veritiv a monthly amount to partially reimburse him for the amount expended for

business promotion, and that Veritiv has periodically reduced the amount of such

monthly reimbursement from $1,500 per month, to $1,200 per month, and

subsequently to $800 per month during the course of Berman’s employment with

Veritiv.

21. Berman admits that Veritiv spends extensive time and substantial

money designing customer initiatives, that Veritiv’s sales representatives and

support staff work closely with customers, with suppliers, and with vendors to

develop customized products to meet the customer’s particular specifications, and

that by its sales representatives and support staff developing long-term

relationships with customers, Veritiv gains a marketing inroad with the customers,

and is able to develop and design customize packaging products. Berman is


remaining allegations of paragraph 21.

22. Denied.

23. Berman admits that Veritiv required him and Payne to enter into the


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Berman Agreement and the Payne Agreement which contain restrictive covenants

and require Berman and Payne to maintain the confidentiality of alleged

proprietary business and customer information, that Veritiv password protects its

computer systems, limits access to its physical facilities, and requires Berman to

utilize a VPN protocol to obtain remote access to the Company’s computer

systems. Except as thus admitted, Berman is without knowledge or information

sufficient to form a belief as to the remaining allegations of paragraph 23.

B. Berman’s Employment and Agreement

24. Denied.

25. Berman admits he was the central conduit between Veritiv and

Berman Customers, and that he was exposed to packaging designs as a

consequence of creating them jointly with the customers. Berman is without

knowledge or information sufficient to form a belief as to what constitutes

Veritiv’s “top talent information,” “talent reviews,” “organizational plans,” and

“special business and employment relationships.” Berman denies that he was

exposed to Veritiv’s valuable confidential and proprietary information, Veritiv’s

proprietary business system tools, Veritiv’s business plans and strategies, customer

pricing and product offerings, or other confidential business information, and

denies the second sentence of paragraph 25. Further responding to the allegations


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of paragraph 25, Berman shows that from May 1997-September 2005 he was

employed by Kent H. Landsburg as a sales account manager in the custom

packaging industry, from September 2005-July 2014 he was employed as a sales

representative by International Paper in the custom packaging industry, and, that as

a result of a merger, Veritiv was created in 2014, and he was employed by it in its

Custom Packaging Business. At the time he was first employed by Veritiv, Cox

Communications, UPS, and Time-Warner were Berman customers. Berman

further shows that based on his experience in the custom packaging industry and

his sales expertise, he developed business plans and strategies for Berman

Customers, he developed business relationships with Berman Customers, and he

established customer pricing and product offerings for Berman Customers.

26. Admitted.

27. Berman admits that paragraph 2 of the so-called Berman Agreement

includes in part the words quoted in paragraph 27 of the Complaint. Because the

phrase “in relevant part” is vague, indefinite, and uncertain, Berman is without

knowledge or information sufficient to form a belief as to the truth of the

remaining allegations of paragraph 27.

28. Berman admits that he agreed in part not to “use, disclose, or

otherwise distribute the Company’s Confidential Information and Trade Secrets,”


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as those terms were elsewhere defined in the Agreement, and in accordance with

the other provisions in the Agreement, including in accordance inter alia with the

provisions of paragraph 3, which Berman admits are quoted in paragraph 28 of the

Complaint. Berman denies the remaining allegations of paragraph 28, if any.

29. Denied. Further responding to the allegations of paragraph 29,

Berman shows that Paragraph 5(b) of the Berman Agreement provides that Berman

“agrees that the provisions and restrictions set forth herein are fair, and are

reasonably required to protect the legitimate business interest of the Company.”


Berman shows that Paragraph 4 provides that Berman agreed to return all Veritiv

property immediately upon the end of Berman’s employment (and any other time

requested by Veritiv) – which he has done – and that he agreed not to retain any

version or copies of the Company’s property – with which he has complied.

31. Berman denies that any Paragraph of the Berman Agreement other

than Paragraph 8 provides for injunctive relief, and, therefore, denies that

“Paragraph 8 of the Berman Agreement also provides for injunctive relief for any

breach of the Agreement.” Except as otherwise responded to, the allegations of

paragraph 31 are admitted.

C. Payne’s Employment and Agreement


13 SGR/18824389.4


belief as to the truth of the allegations of paragraph 32

33. Denied.

34. Admitted.

35. Berman denies that provisions of the Payne Agreement other than

Paragraph 2 provides that Payne shall not compete against Veritiv, and, therefore,

denies that “among other provisions, the Payne Agreement provides, in Paragraph

2, that Payne shall not compete against Veritiv.” Berman also denies that

Paragraph 2 provides in part “for a period of twelve (12) month.” Further

responding to the allegations of paragraph 35, Berman shows that Paragraph 2 of

the Payne Agreement provides in part “for a period of twelve (12) months.”

Except as otherwise responded to, the allegations of paragraph 35 are admitted.

36. Admitted.

37. Berman admits that the so-called Payne Agreement includes

provisions that Payne shall not “use, disclose, or otherwise distribute the

Company’s Confidential Information and Trade Secrets,” as those terms were

elsewhere defined in the Payne Agreement, and in accordance with the other

provisions in the Payne Agreement, including in accordance inter alia with the

provisions of paragraph 5, which Berman admits are quoted in paragraph 37 of the


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Complaint. Berman denies the remaining allegations of paragraph 37, if any.

38. Admitted.

39. Berman denies that the Payne Agreement provides for injunctive

relief other than in Paragraph 10. Therefore, Berman denies that the “Payne

Agreement also provides for injunctive relief in paragraph 10.” Berman also

denies that Paragraph 10 of the Payne Agreement provides in part “monetary

damages would be” and “at law or equity.” Further responding to the allegations

of paragraph 39, Berman shows that paragraph 10 provides in part “monetary

damages would not be” and “at law or in equity.” Except as otherwise responded

to, the allegations of paragraph 39 are admitted.

D. Berman’s and Payne’s Separation from Veritiv and Wrongful Conduct

40. Admitted. Further responding to the allegations of paragraph 40,

Berman states, on information and belief, that he was terminated by Veritiv so that

Veritiv could avoid having to pay commissions to Berman on Berman’s sales to

Berman Customers.

41. Denied.

42. Denied.

43. Denied.

44. Berman admits that he inquired whether Payne could conference him


15 SGR/18824389.4

into a telephone conference among Payne, other Veritiv employees, and a Berman

Customer. Except as thus admitted, Berman denies the allegations of paragraph

44.

45. Berman admits that he and Payne spoke by telephone on June 5.

Except as thus admitted, Berman denies the allegations of paragraph 45.

46. Denied.

47. Berman admits that he received a Veritiv internal e-mail from Payne.

Except as thus admitted, Berman denies the allegations of paragraph 47 and

expressly denies that the e-mail contained confidential proprietary information or a

trade secret.

48. Denied



50. Denied.

51. Denied.

FIRST CAUSE OF ACTION

Breach of Contract (Against Berman)

52. Berman incorporates as fully and as completely as if set forth

verbatim herein his responses to paragraphs 1 – 51 of Plaintiff’s Complaint.


16 SGR/18824389.4

53. Berman admits the first two sentences and denies the last sentence of

paragraph 53. Further responding to the allegations of paragraph 53, Berman

shows that paragraph 5(b) of the Berman Agreement provides that the restrictions

in the Berman Agreement “are reasonably required to protect legitimate business

interest of the Company.”



55. Denied.

56. Denied.

57. Denied.

SECOND CAUSE OF ACTION

Breach of Contract (Against Payne)







61. Denied.


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THIRD CAUSE OF ACTION

Breach of Fiduciary Duty/Duty of Loyalty (Against Payne)



66. Denied.

67. Denied.







FOURTH CAUSE OF ACTION


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Aiding and Abetting Breach of Fiduciary Duty/Duty of Loyalty (Against Berman)



72. Denied.

73. Denied.

74. Denied.

75. Denied.

76. Denied.

77. Denied.

FIFTH CAUSE OF ACTION

Defend Trade Secrets Act (18 U.S.C. § 1832) (Against all Defendants)




Berman shows that the DTSA amended the Economic Espionage Act (“Act”)

which is codified at 18 U.S.C. § 1831 et seq., and added to the Act in 18 U.S.C. §

1836 the right to bring private civil actions. The DTSA defines “trade secret” in

18 U.S.C. § 1839(3).


19 SGR/18824389.4

80. Denied.

81. Denied.

82. Denied.

83. Denied.

84. Denied.

85. Denied.

86. Denied.

87. Denied.

88. Denied.

89. Denied.

90. Denied.

91. Denied.

92. Berman admits that Veritiv seeks actual, incidental, compensatory,

punitive, and consequential damages, along with reasonable attorneys’ fees and

costs in an amount to be determined at trial, but, except as thus admitted the

allegations of paragraph 92 are denied. Berman specifically denies that Veritiv is

entitled to actual, incidental, compensatory, punitive, and consequential damages,

along with reasonable attorneys’ fees and costs.

93. Admitted.


20 SGR/18824389.4

94. Denied.

95. Denied.

SIXTH CAUSE OF ACTION

Georgia Trade Secrets Act (O.C.G.A. § 10-1-760) (Against all Defendants)



97. Denied. The Trade Secrets Act, O.C.G.A. § 10-1-760 et seq.

(“GTSA”) provides for injunctive relief upon a successful application to a Court

which injunctive relief may preclude actual or threatened misappropriation of trade

secrets by improper means, including theft, bribery, misrepresentation, breach or

inducement of a breach of a confidential relationship, or other duty to maintain

secrecy or limit use.

98. Admitted.

99. Denied.

100. Denied.

101. Denied.

102. Denied.

103. Denied.

SEVENTH CAUSE OF ACTION


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Tortious Interference with Contractual Relations (Against all Defendants)



105. Admitted.

106. Admitted.

107. Denied.

108. Denied.

109. Denied.

110. Denied.

111. Denied.

112. Denied.

EIGHTH CAUSE OF ACTION

Conspiracy and Violation of Computer Fraud and Abuse Act (Against all Defendants)



114. Admitted.

115. Denied.

116. Denied.


22 SGR/18824389.4

117. Denied.

118. Denied.

119. Berman denies each and every allegation of each and every paragraph

of Plaintiff’s Complaint to which a response has not been made hereinabove.

FIRST DEFENSE

Plaintiff’s Complaint and the individual Causes of Action thereof fail to state

a claim against Berman upon which relief can be granted.

SECOND DEFENSE

There is no legal or factual basis for awarding increased, exemplary, or

punitive damages or attorney’s fees against Berman. Any award of increased,

exemplary, or punitive damages would be a denial of substantive and procedural

due process as guaranteed by the United States Constitution.

THIRD DEFENSE

This Court lacks personal jurisdiction over Berman.

FOURTH DEFENSE

Venue is improper in this Court as to Berman.

FIFTH DEFENSE

If any information, data, or materials acquired, accessed, copied, used, or

disclosed by Berman during or after his employment by Veritiv constitute Veritiv


23 SGR/18824389.4

trade secrets or confidential proprietary information, which Berman denies,

Berman took such action with privilege and is immune from liability therefor.

SIXTH DEFENSE

Veritiv’s tort claims against Berman fail, in whole or in part, because they

are preempted by the Georgia Trade Secrets Act.

COUNTERCLAIM

For his counterclaim against Veritiv Operating Company, F. Jason Berman

alleges the following:

GENERAL ALLEGATION AND PARTIES

1. F. Jason Berman (“Berman”) is an individual residing in La Jolla, CA

92037.

2. Veritiv Operating Company (“Veritiv”) alleges in its Complaint that

Veritiv is a Delaware corporation with its principal place of business at 1000

Abernathy Road N.E., Building 400, Suite 1700, Atlanta, GA 30328.

3. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§

1331 and 1332.

4. Veritiv is subject to personal jurisdiction in this venue.

5. If and to the extent that venue is proper in this District for the claims

asserted in the Complaint, venue is also proper for this counterclaim.


24 SGR/18824389.4

FACTUAL ALLEGATIONS

6. Jason Berman worked for Veritiv solely in its custom packaging

segment, a segment of the packaging industry which is distinct from the sale of

commodity products, which are fungible and can be supplied by any number of

competitors.

7. The custom packaging segment involves the provision of customized

packaging that is premised on the particular requirements that the customer

discloses, and, as such, the provision of custom packaging does not encompass any

trade secrets or confidential business information that belongs to Veritiv.

8. In custom packaging, every solution starts not with Veritiv’s existing

products, but rather, with the customer’s existing products and its goals and

objectives for a new customized package.

9. When considering whether to retain Veritiv in connection with a new

custom package, a customer shares its goals and objectives with a salesperson such

as Mr. Berman, including the customer’s needs, requirements, likes, dislikes, the

cost of its current packaging, its anticipated needs, and its desired outcome.

10. Veritiv functions only as a middleman in this custom packaging arena

by developing a specialized packaging program, using the skill and knowledge of

its employees such as Mr. Berman, based on the customer’s stated needs and


25 SGR/18824389.4

selecting well-known high quality specialists, including manufacturers and

suppliers, to orchestrate the implementation of the design.

11. The customized packaging business is therefore far different from the

straight sale of commodity products such as standard boxes that a customer can

purchase from a catalog of existing products.

12. The salesperson such as Mr. Berman must identify the prospective

customers – which is easy because the major users of custom packaging materials

are well-known – i.e., such as Costco, Apple, Sony, Amazon. Indeed, any

company, large or small, that ships products is a potential customer in need of

customized packaging.

13. Once a prospective customer has been identified, a salesperson such

as Mr. Berman can use the readily available public information – e.g., the Internet,

trade publications, websites, and advertisements – to gather the necessary

information with respect to the type of specialized packaging that the prospective

customer is currently using. Salespersons such as Mr. Berman do not rely on any

trade secret information that purportedly derived from Veritiv, and indeed, no such

information possessed by Veritiv would qualify as a trade secret as it is all readily

available from public sources and from the customers themselves.

14. The salesperson needs to gain a point of entry to a prospective


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customer. These points of entry are well-known to experienced salespersons such

as Mr. Berman, and in any event, are easily determined from publicly available

sources, including the customer itself.

15. The salesperson must also select a suitable supplier and manufacturer

who will ultimately produce the customized product. Numerous such suppliers

and manufacturers exist from which to choose. Their identities and areas of

expertise are publicly available and well-known within the industry, and indeed,

these manufacturers and suppliers are working diligently through advertising,

marketing, and networking to insure that their identities are well-known.

16. The salesperson must work with a designer to provide ideas to make

the packaging more innovative, cost effective and likely to produce a spike in sales

for the customer. The success of the design depends not upon any trade secrets but

rather, upon the individual skill and experience of the designer, experience and

skill of the salesperson, and the collaboration between the designer and the

salesperson. Veritiv possesses no trade secrets that bear upon the success of a

design.

17. Because Veritiv is acting solely as a middleman, the salesperson must

understand the custom packaging market and accurately assess the manner in

which a potential customer’s use of custom specialized packaging can be expanded


27 SGR/18824389.4

to cover all of its specialized product requirements.

18. A salesperson such as Mr. Berman will work with suppliers and

designers to develop the customized packaging products and will then source the

manufacturers and suppliers who can satisfy the requirements at the lowest

possible cost and highest benefits (e.g., balancing of leadtime, quality, sales

support, and other factors). This function calls upon the skill, experience, and

knowledge of the salesperson and not any trade secrets of Veritiv.

19. After Veritiv is chosen as the supplier, samples are created for the

customer’s approval. Creation of samples does not involve any trade secrets of

Veritiv, and even if trade secrets existed, Mr. Berman would not have access to

them.

20. In conjunction with this process, and given Mr. Berman’s knowledge

of the typical request for competitive bids from Veritiv and Veritiv competitors,

Mr. Berman determines the price and terms to be charged.

21. None of the information detailed above is a trade secret or

confidential business information. In that connection, the customers wishing to

receive the best solutions will always provide all the relevant information to the

salesperson regarding its existing customized packaging products including,

without limitation, the pricing and payment terms, delivery schedules, product


28 SGR/18824389.4

preferences, particularized needs, likes, dislikes, goals and objectives in order to

obtain the best possible customized packaging product at the most competitive

price.

22. Similarly, whatever customized packaging products are ultimately

sold to the customer do not constitute a trade secret or confidential business

information because the products are available in the marketplace for anyone to

see.

23. There are no trade secrets that apply to salespersons like Jason

Berman who design, create and arrange for the manufacture and supply of

specialized packaging products for the express purpose of satisfying a customer’s

needs.

24. There is no technical or non-technical data which is involved other

than the manufacturing and supply process which is unknown to the salesperson.

25. There are no formulas, patterns and compilations that apply in this

situation.

26. The final result is a customized packaging product that is on display

everywhere.

27. Each customized product is devised for a customer to solve

particularized needs, with the product specially created to fulfill its specialized


29 SGR/18824389.4

needs and requirements.

28. Every program for a new customized product is necessarily different;

no methods or techniques are employed.

29. Any design drawings for the specialized packaging products would

have no value other than for the customer’s unique packaging product, and as

noted above the packaging product immediately becomes publicly available once it

is used by the customer.

30. The public availability of the packaging, once it is used by the

customer, provides Veritiv’s competitors with an immediate opportunity to try to

take away the business by attempting to identify weaknesses in the design or by

offering improvements or costs savings.

COUNTERCLAIM COUNT I

(VERITIV’S BAD FAITH ASSERTION UNDER THE GEORGIA TRADE SECRETS ACT)

31. Berman repeats and realleges the allegations of paragraphs 1 – 30 of

this Counterclaim as though fully set forth herein.

32. Veritiv’s complaint has alleged in bad faith that it has certain trade

secrets that do not and cannot qualify as trade secrets.

33. Veritiv’s complaint has alleged claims in bad faith under the Georgia

Trade Secret Act against Berman, including inter alia that Berman has allegedly


30 SGR/18824389.4

misappropriated certain alleged trade secrets that do not qualify as trade secrets,

and in any event, have not been misappropriated by Berman.

34. Under O.C.G.A. § 10-1-764, Berman is entitled to recover an award

of his reasonable attorneys fees against Veritiv.

COUNTERCLAIM COUNT II

(VERITIV’S BAD FAITH ASSERTION UNDER THE FEDERAL DEFEND TRADE SECRETS ACT)

35. Berman repeats and realleges the allegations of paragraphs 1 – 34 of

this Counterclaim as though fully set forth herein.

36. Veritiv’s complaint has alleged in bad faith that it has certain trade

secrets that do not and cannot qualify as trade secrets.

37. Veritiv’s complaint has alleged claims in bad faith under the Federal

Defend Trade Secrets Act against Berman, including inter alia that Berman has

allegedly misappropriated certain alleged trade secrets that do not qualify as trade

secrets, and in any event, have not been misappropriated by Berman.

38. Under 18 U.S.C. § 1836(b)(3)(D), Berman is entitled to recover an

award of his reasonable attorneys fees against Veritiv.

WHEREFORE, Berman respectfully prays that:

a) Plaintiff’s Complaint and the individual causes of action be dismissed;


31 SGR/18824389.4

b) Judgment be rendered for Berman and against Plaintiff on Plaintiff’s

Complaint;

c) Berman recover his attorney’s fees and all expenses of litigation in

defending this action;

d) All costs of this action be taxed against Plaintiff; and

Berman have such other and further relief as the Court deems just and equitable.

JURY TRIAL DEMANDED Berman demands a jury trial on all issues triable by law.

This 6th day of August, 2018.

/s/ William F. Long Matthew William Clarke [email protected] William F. Long [email protected] Sasha Nina Greenberg [email protected]

SMITH, GAMBRELL & RUSSELL, LLP Suite 3100, Promenade II 1230 Peachtree Street, N.E. Atlanta, Georgia 30309-3592 (404) 815-3500 (404) 685-7067 (Facsimile)

Attorneys for Defendant Berman


32 SGR/18824389.4

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

VERITIV OPERATING COMPANY, ) )

Plaintiff, ) ) Civil Action No.

v. ) 1:18-cv-03005-TCB )

F. JASON BERMAN and ) MELISSA PAYNE, )

) Defendants. )

CERTIFICATE OF SERVICE

I hereby certify that the foregoing Berman’s Answer, Defenses and

Counterclaim was served on the below counsel by sending the document to them

by electronic means as follows:

Robert Catron Stevens, Esq. [email protected] Eric F. Barton, Esq. [email protected] Alexander Charles Meier, Esq. [email protected] Ronald Thomas Coleman, Jr., Esq. [email protected] Anne McDonough Horn Baroody, Esq. [email protected] Jared C. Miller, Esq. [email protected]

[signature on following page]


33 SGR/18824389.4

This 6th day of August, 2018.

/s/ William F. Long Matthew William Clarke [email protected] William F. Long [email protected] Sasha Nina Greenberg [email protected]

SMITH, GAMBRELL & RUSSELL, LLP Suite 3100, Promenade II 1230 Peachtree Street, N.E. Atlanta, Georgia 30309-3592 (404) 815-3500 (404) 685-7067 (Facsimile)

Attorneys for Defendant Berman


berman’s answer, defenses and counterclaim …case 1:18-cv-03005-tcb document 32 filed 08/06/18...

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