The Hurry Family Revocable Trust v. Christopher Frankel

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NOT FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-10365

____________________

THE HURRY FAMILY REVOCABLE TRUST,

SCOTTSDALE CAPITAL ADVISORS CORPORATION,

ALPINE SECURITIES CORPORATION,

Plaintiffs-Counter Defendants-Appellees

Cross Appellants,

versus

CHRISTOPHER FRANKEL,

Defendant-Counter Claimant-Appellant

Cross Appellee.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 8:18-cv-02869-CEH-CPT

____________________

Before JILL PRYOR, GRANT, and MARCUS, Circuit Judges.

GRANT, Circuit Judge:

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2 Opinion of the Court 23-10365

Christopher Frankel’s tenure as CEO of Alpine Securities

Corporation ended in July 2018, but he did not leave empty-

handed. On his way out the door, Frankel forwarded to his

personal email address a host of Alpine’s sensitive documents—and

then allegedly used them to negotiate with Alpine’s competitors.

Word travels fast, and it wasn’t long before Frankel found

himself embroiled in a lawsuit brought by Alpine and two related

entities, Scottsdale Capital Advisors Corporation and the Hurry

Family Revocable Trust. Years of motion practice, contentious

discovery, and trial delays ensued, but the case eventually

proceeded to trial in April 2021. The jury found that Frankel

breached his nondisclosure agreements, misappropriated Alpine’s

trade secrets, and unjustly enriched himself by over $900,000.

Frankel now appeals. He challenges the sufficiency of the evidence

supporting the jury’s unjust enrichment award, as well as the

district court’s decisions to exclude a defense witness and to allow

Alpine to argue that Frankel had been unjustly enriched. Alpine,

for its part, cross-appeals the district court’s denial of its request for

a permanent injunction. We affirm on all fronts.

I.

We begin by introducing the parties and describing the

events that culminated in this lawsuit. We then turn to the many

months the parties spent in pretrial proceedings. We close by

discussing the trial, the jury’s verdict, the parties’ posttrial motions,

and this appeal.

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A.

Alpine Securities and Scottsdale Capital are two companies

involved in the broker-dealer business. They specialize in the

buying and selling of over-the-counter stocks—stocks for smaller

companies that are not listed on a formal exchange. Although their

capabilities differ slightly, Alpine and Scottsdale were previously

indirectly controlled by a common owner: the Hurry Family

Revocable Trust.

Christopher Frankel joined Alpine as CEO in July 2015. As

relevant here, Frankel signed two nondisclosure agreements: one

during the negotiation process to become CEO, and one after those

negotiations bore fruit. The latter NDA required Frankel to

maintain trade secrets and other sensitive information “in the

strictest confidence.” Any documents that were related to Alpine’s

“business, projects, operations, activities or affairs,” were for his

eyes—and his eyes only. 1 He could not send that information to

outside email accounts or use it to benefit anyone but Alpine. Nor

could he take that information when the day came for him to leave

the company.

That day came three years later. Frankel served as CEO

until July 2018, but he stayed on as a consultant until October. He

1 The NDA also prohibited Frankel from disclosing Scottsdale’s confidential

information to outside sources. Because the relationship between Alpine,

Scottsdale, and the Hurry Family Revocable Trust does not matter for

purposes of this appeal, we follow the parties lead and refer to these entities

collectively as “Alpine” throughout.

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used that wind-down time to gather copies of certain documents

that belonged to Alpine and ensure his continued access to them

once he left. In his final days as CEO, for example, Frankel sent an

email to his personal account attaching a list of Alpine’s top 50

accounts with year-to-date commissions. That email was followed

by several more, which together included “hundreds of pages of

Alpine’s business documents.” And around that same time,

Frankel asked an Alpine employee for—and received—a “trade

blotter,” a detailed log that provides a snapshot of all the trades

Alpine handled over a two-day period.

Armed with that information, Frankel began negotiating to

buy his own broker-dealer. But word quickly reached Alpine that

he had been using its confidential information to do so. The

company sent Frankel a cease-and-desist letter, telling him that he

was in breach of his NDA and demanding an immediate return of

all documents that contained confidential information. Frankel

denied all wrongdoing, noting that he took “great exception” to

Alpine’s allegations. Rather than take him at his word, Alpine

moved the back-and-forth to a more formal setting—federal court.

Alpine, Scottsdale, and the Hurry Family Trust sued Frankel

on November 21, 2018, claiming that he “knowingly and willfully

used” Alpine’s confidential information to help him “make a bid”

to acquire his own broker-dealer and to solicit Alpine’s top-dollar

clients. The complaint alleges that Frankel was in breach of

contract (the NDAs) and that he misappropriated trade secrets in

violation of the federal Defend Trade Secrets Act and the Florida

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Uniform Trade Secrets Act. See 18 U.S.C. § 1836(b); Fla. Stat.

ch. 688. Alpine sought, among other things, actual damages and

an award for unjust enrichment. After the district court rejected

Frankel’s efforts to dismiss the case for failure to state a claim, the

parties proceeded to discovery.

B.

Discovery was adversarial—to put it mildly. When the

parties exchanged initial disclosures, Alpine listed certain

categories of damages that it intended to seek at trial—including

unjust enrichment—but it did not provide a computation of

damages or explain how it planned to establish them. It instead

noted that the damages were “unknown at this time” and would

“require expert analysis and testimony.” And Frankel’s initial

disclosures listed only two people who were likely to have

discoverable information: himself and his attorney.

The parties also exchanged initial interrogatory responses,

in which Frankel identified Alpine’s current or former clients that

he had been in contact with since August 2018. That list included

John Fife from Chicago Venture Partners. (Fife will prove

important later.) Frankel also produced over 2,000 pages of

documents, which he claimed covered “all documents that contain

information about” Alpine in his possession.

So far, so good. But as discovery continued, Alpine raised

concerns that Frankel was not fully complying with Alpine’s

requests for production. The parties engaged in a few court-

ordered meet-and-confers, but neither side left satisfied: Alpine felt

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6 Opinion of the Court 23-10365

that it was being slighted, while Frankel stressed that he had turned

everything over. Then, a few months into discovery, Alpine

learned that Frankel had accepted a job at a competitor broker-

dealer called Vision Financial Markets, LLC.

That prompted Alpine to send Frankel a second set of

requests for production, this time seeking documents that showed

his sources of income since he left Alpine (but noting that he could

redact documents “for account numbers, social security numbers,

and monetary amounts”). It also filed a notice of intent to serve

subpoenas on several third parties, including Vision. Frankel

responded with a copy of his contract with Vision, which redacted

his monthly compensation, his monthly profit share from the

group he headed (the Corporate Services Group), and the formula

used to determine that profit share.

The discovery deadline came and went in August 2019, but

Alpine was still not happy. Four months later, it filed a motion to

compel and request for sanctions against Frankel for intentionally

“stonewalling” its requests for relevant documents. According to

Alpine, third-party discovery revealed emails from Frankel that he

should have included in his initial disclosures. After a hearing, the

district court denied the motion to compel. Not only had Alpine

known about this discrepancy for months, the court said, but

Frankel had “persuasively argued” that his failure to produce those

emails was inadvertent.

As the February 2020 trial date approached, the parties

identified potential witnesses and the issues to be tried in a joint

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pretrial statement—but noted that they “failed to reach

agreement” on the statement and only filed it “to comply with the

Court’s order.” Alpine stated that it planned to show at trial that

Frankel breached his NDAs and misappropriated Alpine’s trade

secrets, and that he was unjustly enriched by doing so. Frankel

countered that Alpine could not proceed on that theory at trial

because it “did not adduce or disclose damages evidence” during

discovery. Additionally, Frankel identified over twenty persons

that he might call as witnesses, including Fife—despite having

identified only two witnesses (including himself) in his initial

disclosures. But before these details could get hammered out, the

district court continued the trial to March 2020.

Days before the new trial date, Alpine filed yet another

motion to compel—this time, not only seeking sanctions against

Frankel, but also asking the court to push the trial date and reopen

discovery. Alpine alleged that evidence had recently surfaced from

Vision’s third-party production suggesting that Frankel had

“actively tried to thwart” discovery and failed to produce relevant

documents in his possession. 2 The court, “troubled” by the

2 Alpine had been trying to obtain discovery from Vision since June 2019,

when it served the company a third-party subpoena. Frankel filed a motion to

quash, and in response, Alpine agreed to limit the scope of the subpoena. But

as the discovery deadline approached, Vision told Alpine that it “did not plan

on producing the requested documents.” So Alpine filed a motion to compel,

first in Connecticut (where Vision is headquartered) and then in New York,

before the parties had stipulated to transfer the matter back to Florida. Alpine

finally obtained an order compelling Vision to comply with its subpoena in

January 2020.

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allegations, agreed to reschedule the trial for May 2020 and to order

a limited reopening of discovery. It did not award sanctions.

Considering that this was spring of 2020, one may suspect

what happened next: the COVID pandemic pushed the trial even

further. That gave the parties more time to dispute what had

happened in discovery. The court held a (virtual) hearing on

Frankel’s motion in limine to preclude Alpine from presenting

evidence that it sustained damages, because it had disclosed no

evidence of damages in discovery. Alpine opposed on the ground

that it could not have provided a calculation earlier because

Frankel had been “stonewalling” Alpine’s efforts to obtain

“evidence of those damages.” The court determined that the

documents that had been produced could come in—but “anything

else with respect to damages” that had not been produced could

not.

Trial was set for April 2021. Before that date, the parties

endeavored to straighten two issues out: what witnesses they

planned to call and how Alpine could prove its damages. First,

Frankel asked Alpine for its “real witness list” about a week before

trial and offered them his. Only four people were on Frankel’s

Vision complied with that order, and its responses prompted Alpine to file this

motion to reopen discovery. Alpine alleged that Vision’s production revealed

more emails that Frankel “did not produce or disclose” during discovery.

Those emails, according to Alpine, showed that Frankel “actively tried to

thwart” discovery. For example, Frankel told Vision to tell Alpine to “buzz

off” and to “[m]ake them come to CT and get an order” to compel third-party

production.

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“real” list, himself and three others—not Fife. And the day before

trial, Frankel again pressed the damages issue, urging the court to

prohibit Alpine from presenting its damages theory because it had

not previously disclosed a calculation. He also argued that

allowing Alpine to question him about his compensation with

Vision during trial would give it a “back-door in[to] a new and

undisclosed damages computation.” The district court agreed that

Alpine “did not previously disclose a numerical computation of

damages,” so it could not “elaborate on a specific dollar amount”

at trial. But it also said that Alpine could question Frankel about

the “commissions and/or bonuses” he received “from former

clients of [Alpine] who switched to Vision.”

C.

That brings us to trial. Alpine presented evidence over

several days showing that Frankel forwarded confidential

information to his personal email address. The information

included a list of Alpine’s top 50 clients, a trade blotter, financial

statements, a draft employment agreement, and other sensitive

documents. The client list revealed that Fife owned three of

Alpine’s top clients—Chicago Venture Partners, Iliad Research,

and St. George Investments (the Fife Entities). It also told Frankel

how much money each of those clients brought in.

Frankel estimated that around thirteen of Alpine’s clients—

including all three Fife Entities—opened accounts with Vision after

he started working there. In one email exchange, Frankel told

Chicago Venture that Vision offered better rates than what it had

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been paying at Alpine, and noted that he was “well aware” that the

firm would be Vision’s “biggest and highest quality client.” He

emphasized to the Chicago Venture representatives that their

business was “important” to him because he wanted to “make a

good first impression with Vision.”

Frankel also testified that the Fife Entities were serviced by

Vision’s Corporate Services Group, which he headed. He

confirmed that the commissions from the Fife Entities went into

the Corporate Services “bucket,” from which he got “a share of the

profits.” While he did not know what percentage of that share

came from the Fife Entities, he testified—over an objection—that

the entities generated “at least” $100,000 per month in

commissions for Vision. He also recalled that, during the six-

month period after he started working for Vision, his profit share

amounted to approximately $264,000.

Alpine rested its case on the fourth day of trial. The court

expected Frankel to rest that day too, believing that he planned to

call only one witness—himself—to the stand. But after the midday

recess, Frankel asked the court if he could bring in Fife to testify the

next day. Alpine, surprised, vigorously objected, arguing that Fife’s

name had been absent on Frankel’s short list of “real” witnesses

that the parties had exchanged the week before. Frankel replied

that he left Fife off his witness list because he did not expect

Alpine’s damages theory to be centered around the Fife Entities.

The district court sustained Alpine’s objection and excluded Fife,

but allowed Frankel to proffer Fife’s testimony for the record.

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Fife’s declaration states that although his companies still

maintained accounts at Alpine, he was told that Alpine lacked the

capital to support all the trades that his companies would like to

clear. And he added that he was the one who sought Frankel out

to open accounts at Vision, not the other way around.

Ahead of closing arguments, Alpine asked the court to

clarify whether it would be allowed to “elaborate on the numbers

that Mr. Frankel testified to,” keeping in mind the court’s earlier

order barring it from presenting “any numerical computation of

damages” because it had not disclosed a damages computation.

The court had “no problem” with Alpine discussing Frankel’s

testimony, but said that Alpine would veer into new-damages-

computation territory if it said “that the plaintiffs’ damages are X

amount” in unjust enrichment and lost profits if that hadn’t “come

out in testimony.”

Alpine came to court for closing arguments the next day

with a demonstrative aid in hand. The demonstrative displayed

the categories of damages that Alpine sought and how the jury

might go about finding them. Frankel objected on the ground that

the demonstrative constituted an undisclosed damages

computation, but Alpine insisted that it was just “math based on

[Frankel’s] testimony.” The court allowed it, agreeing that it

simply allowed the jury to “follow the math.”

The jury retired for deliberations. A few hours in, the jury

asked the court for a copy of the “compensation chart” Alpine

showed during closing arguments. The court said no, explaining

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that the chart “was just a demonstrative aid.” Shortly after, the jury

returned its verdict: Frankel breached his nondisclosure

agreements and misappropriated trade secrets. And while it found

that Frankel was unjustly enriched by $932,000 from the

misappropriation, it also found that Alpine itself suffered no

monetary harm from Frankel’s actions, declining to award even

nominal damages.

The parties were not done just yet. After trial, Alpine sought

a permanent injunction against Frankel that, among other things,

would bar him from misappropriating Alpine’s trade secrets going

forward. And Frankel moved for judgment as a matter of law

based on insufficient evidence to support the unjust enrichment

award. He also sought a new trial so that he could present Fife’s

testimony to rebut Alpine’s “unpled, undisclosed, damage claims.”

The district court denied all three motions.

Both parties appealed. Frankel challenges the denial of his

posttrial motions for judgment as a matter of law and for a new

trial, and Alpine challenges the denial of a permanent injunction.

II.

We start with Frankel’s motion for a new trial, which we

review for abuse of discretion. McGinnis v. Am. Home Mortg.

Servicing, Inc., 817 F.3d 1241, 1255 (11th Cir. 2016). That deferential

standard is especially fitting where, as here, a new trial has been

denied and the jury’s verdict is left intact. See id.

Frankel argues that he is entitled to a new trial because the

district court abused its discretion in two ways—first, by preventing

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him from calling Fife as a defense witness, and second, by allowing

Alpine to present its theory that Frankel was unjustly enriched and

to use a demonstrative related to that theory. Neither argument

persuades us. 3

A.

“Given the caseload of most district courts and the fact that

cases can sometimes stretch out over years, district courts must

have discretion and authority to ensure that their cases move to a

reasonably timely and orderly conclusion.” Chrysler Int’l Corp. v.

Chemaly, 280 F.3d 1358, 1360 (11th Cir. 2002). District courts thus

have “broad discretion” to resolve pretrial discovery disputes and

scheduling matters, as well as to manage trials. Perez v. Miami-Dade

County, 297 F.3d 1255, 1263 (11th Cir. 2002); United States v. Hilliard,

752 F.2d 578, 582 (11th Cir. 1985). That’s not to say that district

courts’ discretion to make case-management decisions is

“unfettered”—but “it is and must be broad.” Chudasama v. Mazda

Motor Corp., 123 F.3d 1353, 1367 (11th Cir. 1997); Chrysler Int’l Corp.,

280 F.3d at 1360. We typically will not overturn a district court’s

exercise of this discretion unless it represents a “clear error of

judgment” or a “misapplication of law.” Henderson v. Ford Motor

Co., 72 F.4th 1237, 1243 (11th Cir. 2023).

3 Alpine argues that we should affirm because Frankel’s motion for a new trial

was facially insufficient. But because the district court went on to reach the

motion’s merits, which have now been extensively briefed on appeal, we need

not consider that argument.

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The district court’s decision to exclude Fife was a valid

exercise of this trial-management discretion. 4 The last time Alpine

(or the court) had heard that he may be called as a witness was

more than a year before—in 2020, when Frankel listed nearly two

dozen new witnesses in a pretrial statement for a trial that did not

happen (and that itself disclaimed any agreement between the

parties about the contents of the statement). Once the trial really

did happen, and was set to last for five days, Frankel did not float

the idea of calling Fife until after the jury was excused for its lunch

break on the fourth day. Why not earlier? He knew from the

pretrial discussions that Alpine had a green light to ask him about

the commissions he received from former Alpine clients. And

when Alpine called Frankel to the stand on day two, it questioned

him along those exact lines. It elicited testimony that the Fife

Entities were some of Alpine’s biggest clients, that they opened

accounts with Vision after Frankel started working there, and that

their commissions were funneled into his group’s profits. So he

had known since day two (at least) that the Fife Entities were

important to Alpine’s case—yet he waited two more days to bring

up Fife, suggesting he could testify the next morning (on day five).

4 Frankel advocates for de novo review, arguing that the district court’s

decision to exclude Fife rested on a misinterpretation of Federal Rule of Civil

Procedure 26. See Circuitronix, LLC v. Kinwong Elec. (Hong Kong) Co., Ltd., 993

F.3d 1299, 1303 (11th Cir. 2021). But as we see it, the district court’s ruling

primarily rested on an exercise of its “considerable discretion in determining

whether exclusion is proper,” so the abuse of discretion standard applies.

Henderson, 72 F.4th at 1243.

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But by then, trial was winding down. As noted, the court expected

the parties to wrap up on day four and kick off day five with closing

arguments. Frankel’s request simply came too late in the game.

What’s more, Fife was not disclosed on Frankel’s “real”

witness list before trial. The court asked for clarification about

whether the parties had “a, quote, unquote, gentlemen’s

agreement that [Frankel was] not going to call him, or he was not

on [Frankel’s] short list.” Alpine confirmed that he was not

included on Frankel’s “real” witness list. This colloquy followed:

The Court: Let me ask it this way. Was he disclosed

in the initial disclosures or supplemental

disclosures . . . ?

Alpine: No . . . .

The Court: Okay. So why did you not move to

exclude him as a witness when you

moved to exclude [another witness]?

Alpine: Because they didn’t tell me they

were going to call him. They gave me a

short list. It wasn’t a gentlemen’s

agreement . . . . [H]e told me here is

who I’m calling at trial, I told him here

is who I’m calling. Fife wasn’t on that

list. If he had been, I would have

brought it up then. This just happened.

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Frankel: And here is the problem, Your Honor.

You know, the case during trial

morphed into a damage calculation that

had never been provided to us based on

funds owned by Mr. Fife . . . . And

remember, I didn’t supplement any

disclosures, but I certainly put him on

the witness list . . . .

The Court: I don’t think he should be allowed to

testify . . . all right? He should be

excluded . . . . He’s going to be

excluded, that’s my ruling.

What does this discussion reveal? That the district court was

primarily concerned that Fife was not included on the short list

Frankel gave Alpine before trial, and even before that, Frankel had

never made it clear that he would call Fife. Frankel pointed out

that he had named Fife as a potential witness on a joint pretrial

statement the parties submitted before the trial was delayed. What

he did not emphasize is that he had also named more than twenty

others—none of whom had been identified as witnesses during

discovery, much less deposed. And in any event, the court pushed

the trial before the parties had a chance to pin down the witnesses

that Frankel could and would call. For its part, Alpine suggested

that the parties could use the trial delays to depose each other’s

witnesses. Frankel refused. To summarize: Frankel had put Fife

on a disputed witness list before a trial that never happened,

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refused to allow him to be deposed, failed to include him on the

witness list that he provided before the trial that did happen, failed

to call him after Alpine’s damages theory became clear, and then

tried to call him after the court understood that almost all of the

witness testimony had been completed. Cf. Com. Union Ins. Co. v.

M/V Bill Andrews, 624 F.2d 643, 648 (5th Cir. 1980) (holding that the

district court did not abuse its discretion in excluding a witness

based on the parties’ pretrial agreement that the witness would

neither be deposed nor called to testify). 5

At that point, the court entertained arguments from the

parties. After listening to Frankel’s argument on the one hand that

Alpine’s damages theory came as a surprise, and Alpine’s

contention on the other that it would suffer “[m]assive prejudice”

if Frankel were allowed to call Fife at such a late stage of the trial,

the court determined that Fife’s testimony could not come in.

Considered in context, that choice was a reasonable one. See

Fabrica Italiana Lavorazione Materie Organiche, S.A.S. v. Kaiser

Aluminum & Chem. Corp., 684 F.2d 776, 780–81 (11th Cir. 1982).

Frankel spills much ink arguing that he did not need to

supplement his Rule 26 disclosures to add Fife, but that’s largely

beside the point. To be sure, the district court alluded to Rule 26

when it was deciding to exclude Fife’s testimony. But the

discussion about whether to allow Fife to testify did not stop

5 This Court has adopted as binding precedent all decisions of the Fifth Circuit

issued before October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209

(11th Cir. 1981) (en banc).

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there—the court went on to ask Alpine why it had not moved to

exclude Fife earlier. (The answer: because Fife was not on

Frankel’s “real” witness list.) Setting Rule 26 aside, Frankel still had

not put Fife on his short list, and waited until the last minute to call

him. With this full context in mind—the district court’s familiarity

with this case due to the lengthy pretrial proceedings, the late stage

at which Frankel asked to call Fife, and Fife’s absence from

Frankel’s short list—we conclude that the district court did not

abuse its discretion in preventing Frankel from calling Fife to the

stand.

B.

Frankel next argues that the district court should not have

allowed Alpine to argue that Frankel was unjustly enriched. He

starts broadly, contending that Alpine ambushed him with its

unjust enrichment theory at trial rather than disclosing its damage

calculation and methodology sooner. But the record belies that

assertion: Alpine alleged that Frankel was unjustly enriched from

the very beginning, in both its complaint and its initial disclosures.

After Frankel joined Vision, Alpine pushed for discovery “relevant

to unjust enrichment damages”—namely, the commissions that he

received from the clients who followed him to Vision. Alpine

explained its theory this way: “He moved the clients. He broke the

law doing it, and we get the money he made off of it.” Alpine also

argued again and again during the pretrial proceedings that it could

not provide a damages calculation because Frankel was impeding

its efforts to obtain the relevant numbers. Contrary to what

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Frankel says, the record reveals many times when Alpine clearly

expressed its intent to pursue an unjust enrichment theory at trial.

Having no luck there, Frankel turns to a narrower argument:

that the district court should have barred Alpine from using its

demonstrative aid during closing arguments. This argument fails

too, as the district court reasonably found that the chart was solely

based on Frankel’s trial testimony and just helped the jury to

“follow the math.”

But wait, Frankel says: the district court’s own prior ruling

precluded Alpine from “elaborat[ing] on a specific dollar amount”

because it “did not previously disclose a numerical computation of

damages.” That’s true. But it’s also not the end of the story. The

court also said that Alpine could question Frankel about the

“commissions and/or bonuses” he received from former Alpine

clients who switched to Vision. And at trial, Frankel’s testimony

revealed that many of Alpine’s former clients had opened accounts

with Vision after Frankel started working there—and that he

received a cut of the profits. So when it came time for closing

arguments, Alpine asked the court if it could “elaborate on the

numbers that Mr. Frankel testified to” in closing. The court—

aware of its prior ruling—said that it had “no problem” with Alpine

discussing Frankel’s testimony. It would become an issue only if

Alpine told the jury “that the plaintiffs’ damages are X amount and

they include a certain amount in unjust enrichment damages,” as

that might “very well be a new damage computation that you

didn’t disclose, if that doesn’t come out in testimony.”

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The district court had a range of choices for how it could

have handled this situation—and its decision fell comfortably

within that range. Henderson, 72 F.4th at 1242. Alpine’s

demonstrative aid helped the jury calculate its damages based on

the numbers that came out in testimony. Though Frankel objected

that the chart constituted an undisclosed damages computation,

the court agreed with Alpine’s argument that the demonstrative aid

was grounded in Frankel’s testimony and merely allowed the jury

to “follow the math.” 6 Frankel is not entitled to a new trial.

III.

Frankel also appeals from the denial of his motion for

judgment as a matter of law, arguing that Alpine failed to present

sufficient evidence to support the jury’s unjust enrichment award.

We review that decision de novo, examining the trial evidence in

the light most favorable to Alpine as the non-moving party. Doe v.

Celebrity Cruises, Inc., 394 F.3d 891, 902 (11th Cir. 2004). Judgment

as a matter of law is warranted when “there is no legally sufficient

6 We think Rule 37 also lends support here, although the district court did not

explicitly base its ruling on it (or any other rule). Rule 26, which governs initial

disclosures, requires a party to include a “computation of each category of

damages claimed” and to supplement those disclosures if they are “incomplete

or incorrect.” Fed. R. Civ. P. 26(a)(1)(A)(iii), (e)(1)(A). If a party fails to provide

that information, Rule 37 allows for exclusion “unless the failure was

substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). Alpine’s failure

to supplement its initial disclosures was likely substantially justified because it

did not have numbers to calculate damages until Frankel testified at trial—

numbers that Frankel had in his possession all along but chose not to disclose

until he was on the stand.

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evidentiary basis for a reasonable jury” to return a verdict in the

non-moving party’s favor. Lipphardt v. Durango Steakhouse of

Brandon, Inc., 267 F.3d 1183, 1186 (11th Cir. 2001) (quotation

omitted); see Fed. R. Civ. P. 50(a)(1).

Both federal and state law allow plaintiffs to recover for

unjust enrichment, which measures “the value of the secret to the

defendant.” Univ. Computing Co. v. Lykes-Youngstown Corp., 504 F.2d

518, 536 (5th Cir. 1974); see Defend Trade Secrets Act, 18 U.S.C.

§ 1836(b)(3)(B)(i)(II); Uniform Trade Secrets Act, Fla. Stat.

§ 688.004(1). In other words, unjust enrichment damages strip

defendants of the “benefits, profits, or advantages” they gained “in

the use of the trade secret.” Univ. Computing Co., 504 F.2d at 536

(quotation omitted). The standard for calculating unjust

enrichment in misappropriation cases is “very flexible.” Id. at 535;

cf. Syntel Sterling Best Shores Mauritius Ltd. v. The TriZetto Grp., Inc.,

68 F.4th 792, 809 (2d Cir. 2023). All that’s typically needed is a

“reasonable basis from which the amount can be inferred or

approximated.” Premier Lab Supply, Inc. v. Chemplex Indus., Inc., 94

So. 3d 640, 644 (Fla. Dist. Ct. App. 2012) (quotation omitted).

Frankel asks us to set aside the jury’s $932,000 unjust

enrichment award, claiming that the record lacks proof that he

gained anything by using Alpine’s trade secrets. But here again, the

record tells a different story.

The jury returned a general verdict, which means that

Alpine need only show that Frankel misappropriated at least one

trade secret. Fin. Info. Techs., LLC v. iControl Sys., USA, LLC, 21 F.4th

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22 Opinion of the Court 23-10365

1267, 1272 (11th Cir. 2021). Frankel does not dispute that he took

Alpine’s customer list and revenue information when he left the

company—instead, he argues that the jury cannot be sure that he

subsequently gained an advantage from his use of those

documents. That’s not so.

Alpine presented evidence that Frankel touted his ability to

secure better rates for Chicago Venture (Alpine’s highest-paying

client) at Vision, comparing the proposed rates to what Chicago

Venture had been paying at Alpine. In that same email exchange,

Frankel acknowledged that Chicago Venture would become

Vision’s “biggest” client, and that securing its business would help

him “make a good first impression with Vision.” Chicago Venture

and the other Fife Entities then opened accounts with Vision,

bringing hundreds of thousands of dollars with them—a portion of

which went right into Frankel’s pocket. So while Frankel protests

that the award “did not reflect anything” he gained by using the

trade secret, there was enough evidence for the jury to conclude

otherwise. And at this stage, “all evidence and inferences must be

in the light most favorable to the prevailing party”—here, Alpine.

Crawford v. ITW Food Equip. Grp., LLC, 977 F.3d 1331, 1342 (11th

Cir. 2020).

The same is true for the amount. Measuring damages for

trade secret misappropriation is not a perfect science, and there are

at least two ways in which this jury could have reasonably landed

on its number. See Perdue Farms Inc. v. Hook, 777 So. 2d 1047, 1051

(Fla. Dist. Ct. App. 2001). First, Frankel testified that his profit

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share was approximately $264,000 in his first six months with

Vision. Applying that figure to the 22 months that elapsed between

July 2019 (his start with Vision) and April 2021 (the start of trial),

Frankel’s profit share would have exceeded the jury’s $932,000

unjust enrichment award. Alternatively, Frankel testified that the

Fife Entities generated “at least” $100,000 per month in

commissions for Vision. The jury could have reasonably taken

those numbers—multiplied by the margins Frankel testified to—to

find that Fife Entities would have generated almost exactly

$932,000 in net revenue. In other words, the amounts the Fife

Entities generated in commissions provided a reasonable basis

from which the jury could approximate the value of the

information Frankel took to his new employer.

Even if Alpine was not able “to prove specific injury” in the

form of actual damages, the jury was entitled “to measure the value

of the secret to the defendant” in calculating unjust enrichment.

Univ. Computing Co., 504 F.2d at 536. That’s especially true given

that “damages need not be calculated by mathematical precision.”

United States v. Killough, 848 F.2d 1523, 1531 (11th Cir. 1988).

Analyzing the full record—including the clients that joined Vision

and paid into the group from which Frankel earned his bonus—the

jury acted within its discretion when it arrived at the unjust

enrichment award.

IV.

That leaves Alpine’s request for a permanent injunction.

We review a district court’s decision to grant or deny injunctive

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24 Opinion of the Court 23-10365

relief for abuse of discretion, evaluating the factual findings for

clear error and any legal conclusions de novo. Common

Cause/Georgia v. Billups, 554 F.3d 1340, 1349 (11th Cir. 2009).

As the party seeking permanent injunctive relief, Alpine

must demonstrate that it has succeeded on the merits. KH Outdoor,

LLC v. City of Trussville, 458 F.3d 1261, 1268 (11th Cir. 2006). Once

it does so, the district court evaluates whether injunctive relief is

warranted by considering whether: (1) the movant has suffered an

irreparable injury; (2) the remedies at law are inadequate; (3) the

balance of the hardships favors an equitable remedy; and (4) a

permanent injunction would not disserve the public interest. eBay

Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). The district

court concluded that Alpine couldn’t get past the first two factors—

irreparable harm and inadequacy of the remedies at law—and thus

denied Alpine’s requested relief. 7

Alpine first takes issue with the district court’s irreparable-

harm analysis, arguing that Frankel’s continued possession and use

of its trade secrets will inflict irreversible damage on its business. It

rightly points out that we have found that the loss of customers

constitutes an irreparable injury. Ferrero v. Associated Materials Inc.,

923 F.2d 1441, 1449 (11th Cir. 1991). Even so, the district court was

7 Among the six claimed trade secrets that Alpine sought to protect, the district

court found that only one—its client list—met the requirements for a trade

secret. Alpine challenges that conclusion on appeal, arguing that the district

court clearly erred in finding that its trade blotter did not qualify as a trade

secret. We need not reach that argument because, in any event, the district

court did not abuse its discretion in declining to grant injunctive relief.

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not convinced by Alpine’s allegations that it would suffer

irreparable harm absent an injunction. Why not? Because Alpine

knew (or at least suspected) from the outset that Frankel had

misappropriated its trade secrets—yet did not move for injunctive

relief until more than a month after the jury returned its verdict.

As a party’s delay in seeking preliminary injunctive relief may

“undermine a permanent injunction,” the district court did not err

in weighing that delay against Alpine here. Y.Y.G.M. SA v.

Redbubble, Inc., 75 F.4th 995, 1006 (9th Cir. 2023).

Alpine responds that it did not fully “grasp” the “extent of

Frankel’s misconduct” until well after the window of opportunity

to seek preliminary relief closed. But the “very idea” of preliminary

relief is to “protect a plaintiff’s rights before a case can be resolved

on its merits.” Wreal, LLC v. Amazon.com, Inc., 840 F.3d 1244, 1248

(11th Cir. 2016). And we, like the district court, are hard pressed to

believe that Alpine—a well-resourced company with sophisticated

counsel—did not understand the need for injunctive relief in the

years the parties spent litigating this case. Alpine’s counsel accused

Frankel of taking and disclosing its confidential information before

it even filed its complaint. And Alpine’s owner testified that this

“lawsuit started because [Alpine] had evidence that he was using

confidential trade secret information to unfairly compete.” On top

of that, the asserted trade secrets were filed on the public docket

along with all the other trial exhibits—yet Alpine never moved to

seal them. Simply put, Alpine’s delays cut against its posttrial

allegations that it would suffer irreversible damage from Frankel’s

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26 Opinion of the Court 23-10365

continued use of its confidential information. See Redbubble, 75

F.4th at 1006.

This is not to say that preliminary injunctive relief is a

prerequisite for obtaining permanent injunctive relief—it’s not.

Here, though, the district court reasonably concluded that Alpine’s

failure to seek preliminary relief “militates against a finding of

irreparable harm.” Wreal, 840 F.3d at 1248.

There’s also the no-adequate-remedy-at-law factor, which

the district court weighed against Alpine, too. Alpine says it has

suffered harm from Frankel’s misconduct and that it needs

injunctive relief because “no amount of money” could make its

information confidential again. That may well be true. But the

district court declined to take the argument at face value—instead,

it looked to the verdict form, which told the jury that it could

award nominal damages if it determined that Frankel’s conduct

caused Alpine to suffer unquantifiable damages. But the jury did

not do so—in fact, it concluded that Alpine had suffered no

monetary harm at all. The district court credited that finding—

which makes sense, as “all findings necessarily made by the jury”

when resolving legal claims bind the trial court when it separately

resolves the equitable claims. Dybczak v. Tuskegee Inst., 737 F.2d

1524, 1527 (11th Cir. 1984) (quotation omitted); see also BUC Int’l

Corp. v. Int’l Yacht Council Ltd., 489 F.3d 1129, 1151 (11th Cir. 2007).

In response, Alpine argues that the district court overlooked

the jury’s unjust enrichment award, which could have “reasonably

[been] based on a finding that Alpine was harmed.” But that’s just

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not right—unjust enrichment addresses “not what plaintiff lost, but

rather the benefits” the defendant gained. Univ. Computing Co., 504

F.2d at 536 (quotation omitted). All this considered, the district

court rightly concluded that Alpine failed to show that it had no

adequate legal remedy.

Because Alpine could not satisfy its burden of showing that

it suffered an irreparable injury and that the remedies at law are

inadequate, we need not engage with the remaining two factors.

The district court did not abuse its discretion in declining Alpine’s

request to enter a permanent injunction in its favor. eBay Inc., 547

U.S. at 391.

* * *

Opposing parties in our adversarial system do not always

play nice—and this case is a prime example. When those

differences manifest as hotly contested discovery disputes and

evidentiary clashes, we give district courts wide latitude to resolve

the conflicts. They are the ones in the room.

The district court here did not abuse its discretion by

denying Frankel’s motion for a new trial or err in denying his

motion for judgment as a matter of law. Nor did it abuse its

discretion when it denied Alpine’s request for a permanent

injunction. For those reasons, we AFFIRM.