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Fischkoff v. Iovance Biotherapeutics Inc.

Conversion, CFAA Claims Not Stated in Action Over Former Executive's Copying of Files

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OPINION AND ORDER Steven Fischkoff brought this suit against Iovance Biotherapeutics, Inc. and Maria Fardis (collectively “Iovance”) alleging that Iovance breached a contractual employment agreement, failed to pay him wages, and retaliated against him. Iovance counterclaimed asserting that Fischkoff violated his employment agreements and that he misappropriated trade secrets. Iovance now moves to amend its answer to add counterclaims for conversion, trespass to chattels, violation of the Computer Fraud and Abuse Act, 18 U.S.C. §1030, and violation of New Jersey’s Theft and Related Offenses Act, N.J.S.A. §2C:20-7; 20-20.1 For the reasons stated below, Iovance’s motion is denied.I. BACKGROUNDA. Factual Allegations in the Proposed CounterclaimsBecause the resolution of Iovance’s motion turns on whether its proposed counterclaims state a claim for relief, we “accept[] all factual allegations [in its proposed counterclaims] as true and draw[] all reasonable inferences in favor of the [counterclaimant].” Empire Merchants, LLC v. Reliable Churchill LLLP, 902 F.3d 132, 139 (2d Cir. 2018) (citation and internal quotation marks omitted). We also consider all “documents attached to the [proposed amended answer] as exhibits, and documents incorporated by reference in the [proposed amended answer].” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). We thus ignore the lengthy counterrecitation of facts contained in Fischkoff’s opposition to the motion to amend. See P. Opp. at 2-5.The proposed counterclaims allege in pertinent part as follows:Iovance is a bio-pharmaceutical company with offices in California, Florida, and New York, that specializes in the development of drugs to treat cancer. Proposed Amended Answer and Counterclaims (annexed as Ex. A to Lunetta Decl.) (“PAA”),

12-13, 16. In February 2016, Fischkoff began working at Iovance as Chief Medical Officer and signed multiple documents and agreements reflecting the “importance of maintaining the confidentiality” of Iovance proprietary information. Id.

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