Opinion

Behavior Analyst Certification Board, Inc. v. Pelaez Elvirez

Court
District Court, S.D. Florida
Filed
Feb 7, 2023
Cited by
0 cases
Authority
More cited than 20.2%

The opinion

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 21-cv-22833-BLOOM/Otazo-Reyes

BEHAVIOR ANALYST

CERTIFICATION BOARD, INC.,

NCS PEARSON, INC.

doing business as

PEARSON VUE,

Plaintiffs,

v.

MARTA PELAEZ ELVIREZ,

Defendant.

________________________________/

FINDINGS OF FACT AND CONCLUSIONS OF LAW

THIS CAUSE is before the Court following a non-jury trial held on January 18, 2023.

ECF No. [50]. Plaintiffs Behavior Analyst Certification Board, Inc. (“BACB”) and NCS Pearson,

Inc. (“Pearson”) (collectively, “Plaintiffs”) filed Proposed Findings of Fact and Conclusions of

Law, ECF No. [51] (“Plaintiffs’ Proposed Findings”). The Court has carefully considered the

evidence presented at trial, Plaintiffs’ Proposed Findings, the record as a whole, and the applicable

law. Set forth below are the Court’s relevant findings of fact and conclusions of law.

I. INTRODUCTION

This case arose after Marta Pelaez Elvirez (“Elvirez” or “Defendant”) took two

examinations created by BACB and administered by Pearson. See generally ECF No. [1]

(“Complaint”). BACB is a national nonprofit 501(c)(3) corporation established in 1998 to meet

the professional credentialing needs of behavior analysts, governments, insurers, and consumers

of behavior analysis services. Id. at ¶ 15. BACB offers three (3) certifications to qualified

candidates including the Registered Behavior Technician (RBT) certification, which requires,

among other things, successful passage of an examination offered by BACB. Id. at ¶ 17. To obtain

any of three certifications offered by BACB, candidates must take and pass a rigorous examination

developed by BACB. Id. at ¶ 18. BACB develops its examinations by having Subject Matter

Experts (“SME”) write and review new examination questions and then pilots those questions to

ensure statistical validity before scoring those questions on its examinations. Id. BACB offers its

examinations through a third-party vendor, Pearson. Id. at ¶ 19.

According to the Complaint, Elvirez took BACB’s RBT examination via remote proctored

administration by Pearson on April 23, 2020, and again on May 1, 2020. Id. at ¶¶ 27-28. The

Complaint alleges that Elvirez copied and distributed the questions from the examinations she took

on April 23, 2020, and May 1, 2020, in violation of express terms and conditions in BACB’s

Registered Behavior Technician Handbook, BACB’s testing conditions, Pearson’s terms of

service, and United States Copyright Law. Id. at ¶¶ 20-22, 24, 32-34, 50.

Elvirez, represented by counsel, appeared in this action and answered the Complaint. See

ECF No. [16]. On August 9, 2022, Elvirez’s counsel filed an unopposed motion to withdraw from

representation, indicating that he had lost all contact with Elvirez and all efforts to contact Elvirez

had been unsuccessful. ECF No. [32] at ¶ 7-8. On August 10, 2022, the Court granted Defendant’s

counsel’s motion to withdraw, and ordered that Defendant retain counsel or notify the Court of her

intention to proceed pro se. ECF No. [33]. The Court also stated that failure by the Defendant to

comply “will result in appropriate sanctions, including the entry of default.” Id. at ¶4. Defendant

did not retain new counsel, nor did she notify the Court of her intention to proceed pro se.

Elvirez did not appear at the Calendar Call held on January 10, 2023, at 1:45 pm. See ECF

No. [44]. Plaintiffs moved to strike Elvirez’s pleadings and for an entry of default which the Court

granted. See id. Plaintiffs waived their right to a jury trial and the Court scheduled a non-jury trial

on damages for the following week. The non-jury trial on damages was conducted on January 18,

2023, of which Defendant was notified but also failed to appear.

The Complaint alleges the following Counts against Elvirez: copyright infringement

pursuant to 17 U.S.C. § 101 et seq. (Count I), misappropriation of trade secrets in violation of

Defend Trade Secrets Act pursuant to 18 U.S.C. § 1836 et seq. (Count II), misappropriation of

trade secrets in violation of the Florida Uniform Trade Secrets Act pursuant to Fla. Stat. § 688.002

(Count III), conversion (Count IV), breach of contract pursuant to BACB’s contract with Elvirez

(Count V), breach of contract pursuant to Pearson’s contract with Elvirez (Count VI), and tortious

interference with prospective economic advantage (Count VII).

II. FINDINGS OF FACT

BACB is a credentialing organization that relies on its credibility with consumers and

licensing authorities to attract professionals to attain its certifications. BACB offers three

certifications, including the Registered Behavior Technician (“RBT”). To obtain RBT

certifications offered by BACB, candidates must take and pass a rigorous examination that reflects

certain competencies for the RBT. BACB develops its examinations by having Subject Matter

Experts (“SME”) write and review new examination questions which it then pilots to ensure

statistical validity before scoring those questions on its examinations. BACB incurs significant

expenses to develop each of its examinations. Questions are typically used on a rotating basis for

several years before being replaced.

BACB’s Registered Behavior Technician Handbook and online application contain the

express Terms and Conditions to which a candidate for any BACB certification must agree before

submitting an examination application. Relevant Terms and Conditions include:

You are prohibited from taking materials, documents, notes, or memoranda of any

sort from the examination area. YOU ARE PERMANENTLY PROHIBITED

FROM EVER DISCLOSING THE CONTENT OF BACB EXAMINATION

QUESTIONS. This prohibition includes verbal, written, and/or electronic (e.g.

email, chat room, social media) disclosure. The BACB examinations and individual

questions are copyright protected and highly confidential trade secrets. Any

disclosure or reconstruction of test questions and content shall be in violation of

BACB rules and subject to damages including, but not limited to, the cost of

replacing the compromised question(s) and reconstruction of the examination, if

advisable, at the discretion of the BACB.

Proctors are authorized to maintain a secure and proper examination administration.

You may not communicate with other examinees during the examination. The

BACB considers unauthorized sharing of examination content with others to be a

violation of the copyright and to constitute cheating. Cheating or permitting

cheating (such as letting someone copy your answers or providing information on

the content of examination questions to others), will be cause for automatic

disqualification and dismissal from the examination. Any irregular, disruptive,

inappropriate, or suspected cheating behavior by you may result in your relocation

or removal from the examination site and/or refusal to release your examination

scores. In such event, your examination fees will not be refunded or deferred.

See ECF No. [38-1] at 12.

BACB’s Registered Behavior Technician Handbook used by the Defendant to apply for

certification contains an Examination Security section, which provides, in pertinent part:

The BACB and Pearson VUE take examination security seriously, because the

value of your certification and our credibility depend on it. The RBT certification

examination content is confidential; it is never appropriate to share, discuss, post,

or upload exam content. In addition, candidates are required to adhere to the RBT

Ethics Code, including 1.03, which includes the following requirement: “RBTs are

truthful and honest and create an environment that promotes truthful and honest

behavior in others.”

Unauthorized possession, reproduction, publication, or disclosure of any BACB

examination materials—including storing or disclosing examination questions to

any person or entity by any means before, during, or after the examination—is

prohibited and can result in program disqualification or other appropriate censure.

Id. at 13.

The BACB offers its examinations through a third-party vendor, Pearson. A candidate

wishing to take an online live remote proctored examination must also agree to Pearson’s OnVUE

policies. The OnVUE policies agreed to by the Defendant indicate that a candidate “understands

and agrees” to Pearson’s Terms of Service, which provide, in relevant part:

Pearson VUE grants you a limited license to access and make personal use of this

site, subject to the Terms. This site and any portion hereof may not be reproduced,

duplicated, copied, downloaded (other than page caching), sold, resold, visited, or

otherwise exploited for any commercial purpose without the express written

consent of Pearson VUE. You may not frame or utilize framing techniques to

enclose any trademark, logo or other proprietary information (including images,

DocuSitext, page layout and form) of Pearson VUE and/or its affiliates without the

express written consent of Pearson VUE.

ECF No. [53-2] at 2; see also ECF No. [1] at ¶ 24. Defendant could only take the RBT examination

following her agreement to the BACB’s and Pearson’s terms and conditions and policies, including

those set forth above.

The RBT examination questions are considered by BACB to be secure trade secrets as they

are the subject of considerable efforts to maintain their confidentiality and BACB derives

independent economic value from such questions not being generally known to, and not being

readily ascertainable through, proper means by others who can obtain economic value from their

disclosure or use.

In addition to the measures taken by the BACB and Pearson to safeguard the content of the

RBT examination by having candidates agree to their terms, conditions, and policies before being

administered the examination, BACB has also copyrighted the RBT examination. See ECF No.

[53-4]; ECF No. [1] at ¶¶ 48-49. Specifically, BACB registered two copyrights with the United

States Copyright Office on August 28, 2020, for the following two RBT examination versions:

• SECURE TEST: Registered Behavior Technician RBT-AB-rev

• SECURE TEST: Registered Behavior Technician RBT-AC-rev

Additionally, the RBT certification examinations include a security feature known as a

Dynamic Indicator Item (“DII”). A unique DII is incorporated within each RBT examination to

covertly insert candidate-specific identifying information for security purposes (e.g., to prevent

individuals taking photos of or otherwise stealing examination questions). Each specific DII is a

series of numbers unique to the candidate taking the RBT examination. The series of numbers are

also unique to specific test characteristics (e.g., exam date, exam time, grade, score).

Elvirez took the live remote proctored RBT examination two times, on April 23, 2020, and

May 1, 2020. The RBT exam versions administered to Elvirez were AB-rev and AC-rev,

respectively. Elvirez failed the first examination with a score of 189. Eight days later, Elvirez took

a second live remote proctored RBT examination on May 1, 2020, and achieved a passing score

of 241.

Elvirez was initially flagged by BACB after her second examination because of her

response times. Specifically, Elvirez’s examination-attempt time analysis, which compares an

exam taker’s response times to each question with the median response times for all candidates,

revealed that she spent substantially more time than the median on most examination questions

during the April 23, 2020, test, but below the median time on most of the examination questions

during the May 1, 2020, test. In other words, not only did her score significantly improve from the

first time she took an online proctored examination to the second, but her time spent analyzing

most questions decreased significantly from the first to the second examination despite the

examinations being only seven days apart.

Additionally, on July 27, 2020, an informant emailed Pearson a copy of a study guide that

the informant claimed was being distributed to individuals preparing to take the BACB RBT

Certification examination. ECF Nos. [53-5], [53-6]. Pearson forwarded the study guide to BACB.

BACB confirmed that the study guide consisted of stolen examination questions. The study guide

included 164 examination items from the RBT examination forms AB-rev and AC-rev, both of

which were taken by Elvirez.

In addition to being identical versions to the tests Elvirez took, BACB identified Elvirez’s

DII in the study guide provided by the informant. The presence of Elvirez’s DII in the study guide

is conclusive proof that she copied and distributed examination questions from the RBT

Certification examinations that she took or that she allowed another person to copy and distribute

the question from the RBT Certification examinations that she took.

BACB initiated an internal investigation into the circumstances of Elvirez’s RBT

examinations and gave her an opportunity to respond. See ECF No. [53-7]. Through that internal

investigation, BACB determined that Elvirez had personally copied and distributed or allowed to

be copied and distributed the examination questions from the examinations she took; accordingly,

BACB revoked her RBT certification. Id. Elvirez did not appeal or otherwise contest that

revocation.

As a result of Elvirez’s actions, the BACB retired all 164 RBT examination questions and

prepared new questions at substantial cost to the BACB. To replace those 164 operational RBT

examination items, it would require approximately 255 pilot items to be developed by SMEs.

BACB estimates that a 9-month period to replace the 164 operational items that were stolen, cost

$144,810.001 in SME support dollars, which is the amount that the BACB is seeking. This amount

does not include any damage to the professional reputation and goodwill of the BACB and Pearson

because of Elvirez’s improper activities.

1 BACB arrived at this number by taking its 2020 budget item for SME costs, which was $386,160,

which includes all costs associated with supporting SMEs that write examination items for the BACB’s

three certification programs and dividing it in half because the RBT program uses half of this line item on

the budget due to the high volume of RBT program SMEs. Based on that calculation, the SME support cost

for the RBT program is approximately $193,080 per year. Because it took nine out of the twelve months to

replace the 164 examination items BACB requested 75% of the relevant annual figure.

III. CONCLUSIONS OF LAW

All well-pleaded allegations of fact are deemed admitted upon entry of default. Nishimatsu

Const. Co. v. Houston Nat. Bank, 515 F.2d 1200, 1206 (5th Cir. 1975).2 “The corollary of this rule,

however, is that a defendant's default does not in itself warrant the court in entering a default

judgment. There must be a sufficient basis in the pleadings for the judgment entered.” Id.

Moreover, “[a] court has an obligation to assure that there is a legitimate basis for any damage

award it enters[.]” Anheuser Busch, Inc. v. Philpot, 317 F.3d 1264, 1266 (11th Cir. 2003).

A. Liability

Plaintiffs assert seven counts for liability against Defendant: copyright infringement

pursuant to 17 U.S.C. § 101 et seq. (Count I), misappropriation of trade secrets in violation of

Defend Trade Secrets Act pursuant to 18 U.S.C. § 1836 et seq. (Count II), misappropriation of

trade secrets in violation of the Florida Uniform Trade Secrets Act pursuant to Fla. Stat. § 688.002

(Count III), conversion (Count IV), breach of contract pursuant to BACB’s contract with Elvirez

(Count V), breach of contract pursuant to Pearson’s contract with Elvirez (Count VI), and tortious

interference with prospective economic advantage (Count VII). For the reasons that follow, the

Court finds that Defendant is liable under each count.

i. Copyright Infringement

The Copyright Act provides in relevant part that “[a]nyone who violates any of the

exclusive rights of the copyright owner as provided by sections 106 through 122 [17 U.S.C.

§§ 106-122] or of the author as provided in section 106A(a) [17 U.S.C. § 106A(a)] . . . is an

infringer of the copyright or right of the author, as the case may be.” 17 U.S.C. § 501(a). Liability

2 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the United States

Court of Appeals for the Eleventh Circuit adopted as binding precedent all the decisions of the former

United States Court of Appeals for the Fifth Circuit handed down prior to the close of business on

September 30, 1981.

for copyright infringement arises when a plaintiff can prove (1) ownership of a copyright, and (2)

a defendant’s copying of the copyrighted work. See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499

U.S. 340, 361 (1991).

Plaintiff may satisfy the first prong by producing the certificates of registration, and once

produced, the burden shifts to Defendant to demonstrate why the claim of copyright is invalid. See

id. at 361; 17 U.S.C. § 410(c) (noting that a “certificate of a registration made before or within five

years after first publication of the work shall constitute prima facie evidence of the validity of the

copyright and the facts stated in the certificate”). The second prong, the copying element of an

infringement claim, has two components: (1) Plaintiff must demonstrate that Defendant copied

Plaintiff’s work as a factual matter; and (2) Plaintiff must establish “substantial similarity” between

the allegedly infringing work and the elements of the copyrighted work that are legally protected.

Latimer v. Roaring Toyz, Inc., 601 F.3d 1224, 1232-33 (11th Cir. 2010).

Plaintiffs alleged in the Complaint and established at trial by producing the certificates of

copyright registration, that the SECURE TEST: Registered Behavior Technician RBT-AB-rev and

SECURE TEST: Registered Behavior Technician RBT-AC-rev versions of the RBT examinations

are original works as defined by the Copyright Act, that BACB is the owner of all rights, including

copyrights, in and to those examinations and material contained therein. Plaintiffs similarly alleged

in the Complaint and established at trial that BACB’s internal investigation determined that

Defendant had personally copied and distributed or allowed to be copied and distributed the

examination questions from the copyrighted examinations she took SECURE TEST: Registered

Behavior Technician RBT-AB-rev and SECURE TEST: Registered Behavior Technician RBT-

AC-rev. Plaintiffs have therefore sufficiently alleged and demonstrated that Defendant is liable for

copyright infringement.

ii. Misappropriation of Trade Secrets in Violation of Defend Trade

Secrets Act

Under the Defend Trade Secrets Act, 18 U.S.C. § 1836 et seq, a trade secret is defined as

information for which: (1) “the owner thereof has taken reasonable measures to keep such

information secret”; and (2) “the information derives independent economic value, actual or

potential, from not being generally known to, and not being readily ascertainable through proper

means by, another person who can obtain economic value from the disclosure or use of the

information.” M.C. Dean, Inc. v. City of Miami Beach, Fla., 199 F. Supp. 3d 1349, 1353 (S.D. Fla.

2016) (quoting 18 U.S.C. § 1839(3)). Misappropriation is defined “as the ‘acquisition of a trade

secret of another by a person who knows or has reason to know that the trade secret was acquired

by improper means.’” U.S. Sec. Associates, Inc. v. Campos, 19-24290-CIV, 2020 WL 2494597, at

*2 (S.D. Fla. May 13, 2020) (quoting 18 U.S.C. § 1839(5)(A)).

Plaintiffs alleged in the Complaint and established at trial that BACB is the owner of

proprietary RBT examination questions which it takes reasonable means to safeguard and keep

secret. Plaintiffs further established that BACB derives independent economic value from the

examination items not being generally known to, and not being readily ascertainable through

proper means by, another person who can obtain economic value from the disclosure or use of

such items. Plaintiffs have therefore established that the examination contained trade secrets.

Plaintiffs further established that Defendant acquired BACB’s trade secrets knowing that they

were improperly acquired and under circumstances giving rise to a duty to maintain their secrecy.

Plaintiffs therefore sufficiently alleged and demonstrated that Defendant misappropriated or

allowed to be misappropriated the BACB’s trade secrets for her own advantage and for the

purported advantage of others. Plaintiffs also alleged that BACB’s trade secrets are related to

services used in interstate commerce as the BACB offers its examinations and awards certifications

to successful examinees throughout the United States and internationally. Plaintiffs have shown

that Defendant is liable for misappropriation of trade secrets in violation of the Defend Trade

Secrets Act.

iii. Misappropriation of Trade Secrets in Violation of Florida

Uniform Trade Secrets Act

To prevail on a claim of violation of the Florida Uniform Trade Secrets Act under Fla. Stat.

§ 688.002, a plaintiff “must demonstrate that (1) it possessed a trade secret and (2) the secret was

misappropriated.” Compulife Software Inc. v. Newman, 959 F.3d 1288, 1310 (11th Cir. 2020)

(quoting Yellowfin Yachts, Inc. v. Barker Boatworks, LLC, 898 F.3d 1279, 1297 (11th Cir. 2018)).

Under Florida law, a trade secret is information that:

(a) [d]erives independent economic value ... from not being generally known to, and not

being readily ascertainable by proper means by, other persons who can obtain economic

value from its disclosure or use; and (b) [i]s the subject of efforts that are reasonable

under the circumstances to maintain its secrecy.”

Id. at 1311 (quoting Fla. Stat. §688.002(4)). “One party can misappropriate another's trade secret

by either acquisition, disclosure, or use.” Id.

Plaintiffs alleged in the Complaint and demonstrated at trial that their proprietary RBT

examination questions are trade secrets, and that Defendant misappropriated such trade secrets

when she improperly acquired the trade secrets. Plaintiffs have shown that Defendant

misappropriated or allowed to be misappropriated the BACB’s trade secrets under the Florida

Uniform Trade Secrets Act.

iv. Conversion

The elements for a claim of conversion under Florida law are “(1) an act of dominion

wrongfully asserted; (2) over another's property; and (3) inconsistent with his ownership therein.”

Joe Hand Promotions, Inc. v. Creative Entm’t, LLC, 978 F. Supp. 2d 1236, 1241 (M.D. Fla. 2013).

Plaintiffs alleged in the Complaint and established at trial that at the time Defendant copied

the examination questions, BACB had possession of the examination and questions therein and

maintained a right to possess the examinations and questions therein. Plaintiffs also alleged and

established that Defendant did not return the copied examinations and has not disclosed any profits

she acquired from distributing the copied examination questions. Plaintiffs therefore successfully

established Defendant’s liability for conversion under Florida law.

v. Breach of Contract – between BACB and Elvirez

“For a breach of contract claim, Florida law requires the plaintiff to plead and establish:

(1) the existence of a contract; (2) a material breach of that contract; and (3) damages resulting

from the breach.” Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1272 (11th Cir. 2009).

Plaintiffs alleged in the Complaint and established at trial each of the three elements. First,

Plaintiffs alleged and established that BACB and Defendant entered into a valid and enforceable

contract associated with Defendant taking the RBT examination. The terms of that contract are

contained in the BACB Registered Behavior Technician Handbook and the Certification

Processing Agreement. Defendant breached the contract by copying and disseminating BACB

examination items. Plaintiffs also established that BACB suffered damages including costs

incurred replacing the disseminated examination questions as a result of Defendant’s breach of

contract. At trial, Plaintiffs established that BACB conservatively estimated that it incurred

$144,810.00 in costs associated with replacing the 164 operation questions included on the two

examinations that Defendant copied and disseminated. Plaintiffs therefore established Defendant’s

liability for breach of the contract between BACB and Elvirez.

vi. Breach of Contract between Pearson and Elvirez

Plaintiffs alleged in the Complaint and established at trial each of the three elements

necessary to establish Defendant’s liability for breach of the contract between her and Pearson.

Plaintiffs established that Pearson and Defendant entered into a valid and enforceable contract

associated with Defendant taking the RBT examination and that the terms of that contract are

included in the OnVUE Policies and Pearson Terms of Service. Plaintiffs further alleged and

established that Defendant breached the contract by copying and disseminating the BACB

examination items administered by Pearson and that Pearson suffered significant damages and

harm as a result. Plaintiffs have shown that Defendant is liable for breach of the contract between

Pearson and Elvirez.

vii. Tortious Interference with Prospective Economic Advantage

Under Florida law, a claim for tortious interference with prospective economic advantage

requires a plaintiff to show: “(1) the existence of a business relationship, not necessarily evidenced

by an enforceable contract; (2) knowledge of the relationship on the part of the defendant; (3) an

intentional and unjustified interference with the relationship by the defendant; and (4) damage to

the plaintiff as a result of the breach of the relationship.” GolTV, Inc. v. Fox Sports Latin Am., Ltd.,

16-24431-CIV, 2018 WL 1393790, at *21 (S.D. Fla. Jan. 26, 2018) (quoting Tamiami Trail Tours,

Inc. v. Cotton, 463 So. 2d 1126, 1127 (Fla. 1985)).

BACB alleged in the Complaint and established at trial that BACB has business

relationships with insurers, medical, educational, and consulting practices, and government

programs that place great weight on the merits of its credentialing services. The bona fide

utilization of BACB credentials by individuals for state licensing is a critical and essential part of

BACB’s business activities. BACB relies on its credibility with consumers and licensing

authorities to attract professionals to attain its certification. Defendant is generally aware of

BACB’s reputation as an industry-leader in the behavior analyst sector and BACB’s business

relationships and Defendant intentionally and unjustifiably interfered with BACB’s business

relationships by compromising the integrity and meaningfulness of a BACB certification. BACB

has suffered significant damages and harm as a result of Defendant’s improper actions and will

likely continue to suffer such damages and harm. Plaintiffs therefore established Defendant’s

liability for tortious interference with prospective economic advantage.

B. Damages

For the reasons described above, Plaintiffs have shown that Defendant is liable under

theories of copyright infringement, misappropriation of trade secrets in violation of the Defend

Trade Secrets Act, misappropriation of trade secrets in violation of the Florida Uniform Trade

Secrets Act, conversion, breach of contract with BACB, breach of contract with Pearson, and

tortious interference with prospective economic advantage.

Although BACB could recover damages under any of its well-pled claims, each of those

claims arise from a single injury, - i.e., Defendant’s wrongful use and dissemination of the RBT

examinations. BACB is therefore entitled to only a single award of damages, regardless of which

theory under which it is awarded, because “no duplicating recovery of damages for the same injury

may be had.” St. Lukes’s Cataract and Laser Institute, P.A. v. Sanderson, 573 F.3d 1186, 1204

(11th Cir. 2009). “When a plaintiff seeks recovery for the same damages under different legal

theories, only a single recover is allowed.” Id. (quoting Conway v. Icahn & Co., 16 F.3d 504, 511

(2d Cir. 1994)). Plaintiff BACB has shown that it suffered damages in the amount of $144,810.00.

Case No. 21-cv-22833-BLOOM/Otazo-Reyes

BACB is also entitled to attorneys’ fees under the U.S. Copyright Act, 17 U.S.C. § 505.

Under the facts and circumstances of this case, the Court exercises its discretion and grants

entitlement to BACB of the attorneys’ fees incurred by it in prosecuting this case under the

Copyright Act for the Defendant’s infringement of BACB’s works. The Court notes that an

entitlement to attorneys’ fees would also be appropriate under the federal Defend Trade Secrets

Act, 18 U.S.C. § 1836(b)(3)(D) as the prevailing party in this matter but that granting such

entitlement would be duplicative.

Pearson did not move for an award of damages or put on evidence of its separate damages

at trial in connection with Count VI for breach of contract. Therefore, the Court does not award

Pearson any damages in connection with that claim.

IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED as follows:

1. Final Judgment shall be entered in favor of Plaintiff Behavior Analyst Certification

Board, Inc. and against Defendant in the amount of $144,810.00, plus post-

judgment interest at the legal rate from the entry of judgment until paid pursuant to

28 U.S.C. § 1961;

2. The Court will enter Final Judgment separately;

3. The Court reserves jurisdiction to award Plaintiffs’ reasonable fees and costs.

DONE AND ORDERED in Chambers at Miami, Florida, on February 7, 2023.

UNITED STATES DISTRICT JUDGE

15

Copies to:

Counsel of Record

Marta Pelaez Elvirez

10310 SW 4th Street

Miami, FL 33174

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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