UNITED STATES DISTRICT COURT SOUTHERN ... - Nymag

Case 1:09-cv-21893-WMH Document 16 Entered on FLSD Docket 07/31/2009 Page 16 of 24
V. COUNT VII FOR MISAPPROPRIATION OF TRADE SECRETS IS BARRED BY
THE THREE YEAR STATUTE OF LIMITATIONS
An action for misappropriation of trade secrets under New York law 7 will be barred by
the statute of limitations unless the action is brought within three years after the misappropriation
is discovered or by the exercise of reasonable diligence should have been discovered. N.Y.
C.P.L.R. § 214(4) (2009); Demas v. Levitsky, 738 N.Y.S.2d 402 (N.Y. App. Div. 2002). The
statute of limitations begins to run either at the time of the misappropriation or when the
disclosure of the trade secret is made. M & T Chems., Inc. v. Int’l Bus. Machs. Corp., 403 F.
Supp. 1145 (S.D.N.Y. 1975), aff'd, 542 F.2d 1165 (2d Cir. 1976).
Here, Count VII is barred by the statute of limitations. Plaintiffs allege they discovered
Philippe misappropriating Plaintiffs’ trade secrets and promoting the same as early as 2005:
“Mr. Chow created twelve classic dishes that have become the signature dishes of the
MR CHOW Restaurants. . . . These unique dishes . . . are among the trade secrets and
intellectual property of Mr. Chow and the MR CHOW Restaurants.” (Compl. at 25.)
“In 2005, Defendant Morfogen conspired with Defendant Chau to steal the mark,
reputation, and trade secrets of the MR CHOW Restaurants. . .” (Compl. at 49.)
“In December 2005, Defendants Chau . . . and Morfogen opened a New York restaurant .
. . just a few blocks away from the MR CHOW restaurant. . .” (Compl. at 52) (emphasis
added).
“[Defendants’] menu contains the same signature dishes as MR CHOW. Defendants
promoted the menu as consisting of ‘Chef Chow’s’ dishes that Defendant Chau had been
preparing ‘for the last 27 years’ at MR CHOW.” (Compl. at 55.) (emphasis added).
Even though Plaintiffs discovered Philippe allegedly using their trade secrets in December 2005,
Plaintiffs failed to file suit until July 8, 2009 – over three and a half years later. Accordingly,
Count VII is barred by the three year statute of limitations period.
Furthermore, even if the statute of limitations has not expired (which it has), Plaintiffs’
trade secret claim is barred by the doctrine of laches for the same reasons discussed supra.
Philippe established and grew its business for nearly four years without any objection from
7 Philippe does not concede that Plaintiffs’ trade secret claim is governed by New York law. In
any event, a trade secret claim is subject to a three year statute of limitations under both New
York and Florida law. Thus, Count VII fails irrespective of which law applies.
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RICHMAN GREER, P.A.
Miami • West Palm Beach