On Tuesday, the CAV handed down its opinion in Pegasystems Inc. v. Appian Corporation, reversing the largest jury verdict in Virginia history. Pegasystems is a trade-secrets case. The jury tagged Pegas with a verdict of more than $2 billion. (Fun fact: This case was tried in Fairfax at the same time as the Johnny Depp/Amber Heard fiasco, so the media was completely distracted.) The CAV reverses, with Judge Friedman writing for a panel that includes Judges Beales and Callin. I don’t have anything intelligent to say about trade secrets or corporate espionage,* but the Court’s treatment of evidentiary issues–particularly the excluded software evidence in Part IV–seems pretty compelling.
Given the stakes this opinion won’t be the end of the line for this case. It will be interesting to see if Appian petitions for rehearing en banc or just goes straight to SCOVA for a writ. An en banc rehearing would give Appian a chance of getting a dissent, which in turn would improve their chances of having a writ granted. And judging by the lawyers involved, money appears to be no object. On the other hand, this is the largest verdict in Virginia history, so the parties already have SCOVA’s attention. And speed could be important. Under Code Section 8.01-676.1, a suspension bond cannot exceed $25 million irrespective of the size of the judgment. So if Appian has concerns about Pega’s continued financial health or ability to cut a check for $2,036,860,045, it may choose to press ahead.
Finally, nice to see an amicus brief from longtime friend of De Novo and all-around genius Willy Jay.
* Unintelligent comment: It is objectively funny that Appian hired Pega’s head of competitive intelligence, whose job apparently involved spying on Appian. (At Pega, he literally hired a consultant with access to Appian’s products who he described as a “spy.”) In a twist we all saw coming, that hire led to this lawsuit.