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A Connecticut entrepreneur’s epic battle with General Motors over his futuristic engine-cooling design rests on a 190-year-old English court decision and whether it establishes a right to a jury trial in Connecticut trade secret disputes. For John Evans, CEO of Sharon, Conn.-based Evans Cooling Systems Inc., such a right would clear the way for a new trial seeking $125 million in design royalties and interest that he claims he lost when GM allegedly stole his sleek design for cooling its high-performance cars. After 11 years of battling in federal and state courts, Evans and GM argued before the Connecticut Supreme Court Oct. 25 to determine whether Evans is constitutionally entitled to a jury trial for a trade secrets case. GM’s attorney, Jonathan Putnam of New York’s Kirkland & Ellis, argued that Evans had waived that right and that to give him a jury trial now would be an unfair “second bite at the apple.” But Frank P. Porcelli, of Boston’s Fish & Richardson, countered that Evans’ claim for damages from trade secret theft is entitled to a jury trial under Connecticut’s 1818 Constitution, which created a jury trial right for cases at law, but not for equity matters. In 1989, Evans took a prototype of his engine-cooling design to a GM “hot tunnel” testing facility for two days, with an understanding the car would be safely locked away overnight and only be tested for performance. The GM designers had key codes, and Evans contends they snuck in, measured a critical port diameter and pirated his design in a matter of weeks. But when Evans filed a federal patent suit in 1994, U.S. District Judge Robert N. Chatigny ruled that he had acted too late to preserve his patent rights. The disputed technology first came to market in September 1991 in the 1992 Corvette. Evans thought he had one year from then to file his patent claim. Unbeknownst to him, however, a lone Michigan dealer had ordered a 1992 Corvette in June 1991, and that became the critical date when the technology was first marketed. Evans’s patent claims were ruled worthless, despite multiple appeals. THEFT CLAIMS ‘CIRCUMSTANTIAL’ Undaunted, in 1994, Evans filed a theft of trade secrets complaint in state court. It was tried in Waterbury before Complex Litigation Docket Judge Robert F. McWeeny, who issued an order that the case would be tried to him, without a jury. McWeeny concluded in a 2003 ruling that Evans had signed away his trade secret rights when he gave GM a license and release for the testing. McWeeny called Evans’ evidence of theft “circumstantial.” The judge also cleared GM of any serious liability for an engineer’s admitted forgery of documents, which purported to show GM independently invented the cooling system before the 1989 testing. McWeeny found no evidence that GM executives were aware of the fraud and praised the company and its lawyers for candidly revealing the engineer’s shameful act. Evans’ best remaining chance to be paid for his invention depends on his Supreme Court appeal, in which he’s seeking a ruling that a jury trial is a person’s constitutional right in a trade secrets case. Both sides concede that there were no recorded trade secret cases, at law or in the equity courts, in 1818. That’s when Connecticut’s current constitution was passed, guaranteeing jury trials for actions seeking money damages in the law courts, but not for those seeking injunctive orders from courts of equity. In an amicus curiae brief filed by the Connecticut Trial Lawyers Association, New Haven appellate attorney William F. Gallagher argued that a trade secrets case was akin to a copyright infringement matter, which is constitutionally entitled to a jury trial. Evans’ attorney, Porcelli, praised Gallagher’s reasoning and argued that trade secrets are a form of property, albeit intangible. One key precedent both cited is the 1817 English chancery case of Newbery v. James, in which a chancery judge denied the equitable remedy of injunctive relief in a theft of trade secrets case and told the plaintiff to seek money damages in the law courts. Jeffrey R. Babbin and Jonathan M. Freiman, of New Haven-based Wiggin & Dana, countered for GM that Newbery only sent a breach of contract action to the law courts and isn’t proof that trade secret cases deserve a jury trial. Furthermore, they argued that copyright and trade secrets are not analogous. Copyright claims require no claim of fault, while trade secret claims require actual theft or breach of a confidential relationship, they noted.

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