# The Hurry Family Revocable Trust v. Christopher Frankel

> Court of Appeals for the Eleventh Circuit · May 6, 2026

URL: https://www.frixlaw.com/law-library/cases/11321697

## Case

- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** May 6, 2026
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Nature of suit:** NEW
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11321697

## How later opinions describe it (automated extraction)

- 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

## Opinion text

USCA11 Case: 23-10365 Document: 85-1 Date Filed: 05/06/2026 Page: 1 of 27

NOT FOR PUBLICATION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:
USCA11 Case: 23-10365 Document: 85-1 Date Filed: 05/06/2026 Page: 2 of 27

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.
USCA11 Case: 23-10365 Document: 85-1 Date Filed: 05/06/2026 Page: 3 of 27

23-10365 Opinion of the Court 3

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.
USCA11 Case: 23-10365 Document: 85-1 Date Filed: 05/06/2026 Page: 4 of 27

4 Opinion of the Court 23-10365

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
USCA11 Case: 23-10365 Document: 85-1 Date Filed: 05/06/2026 Page: 5 of 27

23-10365 Opinion of the Court 5

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
USCA11 Case: 23-10365 Document: 85-1 Date Filed: 05/06/2026 Page: 6 of 27

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
USCA11 Case: 23-10365 Document: 85-1 Date Filed: 05/06/2026 Page: 7 of 27

23-10365 Opinion of the Court 7

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.
USCA11 Case: 23-10365 Document: 85-1 Date Filed: 05/06/2026 Page: 8 of 27

8 Opinion of the Court 23-10365

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.
USCA11 Case: 23-10365 Document: 85-1 Date Filed: 05/06/2026 Page: 9 of 27

23-10365 Opinion of the Court 9

“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
USCA11 Case: 23-10365 Document: 85-1 Date Filed: 05/06/2026 Page: 10 of 27

10 Opinion of the Court 23-10365

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.
USCA11 Case: 23-10365 Document: 85-1 Date Filed: 05/06/2026 Page: 11 of 27

23-10365 Opinion of the Court 11

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
USCA11 Case: 23-10365 Document: 85-1 Date Filed: 05/06/2026 Page: 12 of 27

12 Opinion of the Court 23-10365

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
USCA11 Case: 23-10365 Document: 85-1 Date Filed: 05/06/2026 Page: 13 of 27

23-10365 Opinion of the Court 13

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.
USCA11 Case: 23-10365 Document: 85-1 Date Filed: 05/06/2026 Page: 14 of 27

14 Opinion of the Court 23-10365

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.
USCA11 Case: 23-10365 Document: 85-1 Date Filed: 05/06/2026 Page: 15 of 27

23-10365 Opinion of the Court 15

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.
USCA11 Case: 23-10365 Document: 85-1 Date Filed: 05/06/2026 Page: 16 of 27

16 Opinion of the Court 23-10365

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,
USCA11 Case: 23-10365 Document: 85-1 Date Filed: 05/06/2026 Page: 17 of 27

23-10365 Opinion of the Court 17

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).
USCA11 Case: 23-10365 Document: 85-1 Date Filed: 05/06/2026 Page: 18 of 27

18 Opinion of the Court 23-10365

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
USCA11 Case: 23-10365 Document: 85-1 Date Filed: 05/06/2026 Page: 19 of 27

23-10365 Opinion of the Court 19

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.”
USCA11 Case: 23-10365 Document: 85-1 Date Filed: 05/06/2026 Page: 20 of 27

20 Opinion of the Court 23-10365

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.
USCA11 Case: 23-10365 Document: 85-1 Date Filed: 05/06/2026 Page: 21 of 27

23-10365 Opinion of the Court 21

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
USCA11 Case: 23-10365 Document: 85-1 Date Filed: 05/06/2026 Page: 22 of 27

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
USCA11 Case: 23-10365 Document: 85-1 Date Filed: 05/06/2026 Page: 23 of 27

23-10365 Opinion of the Court 23

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
USCA11 Case: 23-10365 Document: 85-1 Date Filed: 05/06/2026 Page: 24 of 27

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.
USCA11 Case: 23-10365 Document: 85-1 Date Filed: 05/06/2026 Page: 25 of 27

23-10365 Opinion of the Court 25

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
USCA11 Case: 23-10365 Document: 85-1 Date Filed: 05/06/2026 Page: 26 of 27

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
USCA11 Case: 23-10365 Document: 85-1 Date Filed: 05/06/2026 Page: 27 of 27

23-10365 Opinion of the Court 27

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11321697. Public record. Not legal advice.