Randall E. Kay

In a major step forward for post-COVID litigants operating in a connected world, Kay, the chair of Jones Day's global trade secrets practice, obtained a ruling in late August from a Southern District judge who held that virtual contacts meet the minimum contact standard for obtaining personal jurisdiction over foreign defendants.

Kay represents a San Diego health care company suing defendants in the United Arab Emirates and elsewhere in a trade secrets dispute over a terminated joint venture. The defendants contested "with indignation," he said, the notion that they were subject to the personal jurisdiction of a federal court in California.

"Some of the defendants in our case never set foot in the U.S., let alone in California," Kay said. "The contacts were all by phone, email, Skype and FedEx. MedImpact Healthcare Systems Inc. v. Iqvia Inc., 19-cv-01865 (S.D. Cal., filed Sept. 26, 2019).

An amended complaint alleges 10 causes of action for misappropriation of trade secrets under state and federal law and other claims, including conspiracy and civil violations of the Racketeer Influenced and Corrupt Organizations Act.

"In a post-COVID world we obtained favorable rulings; we survived their motion to dismiss," Kay said. "They did the theft from the UAE, and that was their defense. The law should provide now that virtual contacts constitute minimum contacts, and the judge demonstrated why virtual contacts are very real."

U.S. District Judge Gonzalo P. Curiel of San Diego let go forward conspiracy and breach of fiduciary claims under the Defend Trade Secrets Act, the California Uniform Trade Secrets Act and RICO. He pointed out that despite the defendants' assertion that none of their witnesses or documents are in California, the plaintiffs' pharmaceutical data is allegedly being sold by Iqvia to companies in California.

The judge added in an Aug. 27, 2020 order: "Moreover, any witnesses can be deposed on a virtual platform and electronic access to documents reduces the inefficiency of physical documents and in person depositions. The Court agrees that with today's modern technological advances, and also in light of COVID-19, where parties have been forced to litigate in a remote, virtual manner, it would not be inefficient to litigate the case in California."

In a separate case, Kay leads Belgium-based client Solvay's French and U.S. units against a Pennsylvania R&D outfit over fallout from a failed collaboration. Solar wafers for use within the territory of 10 Asian counties are at issue; a nine-figure damages claim is on the table. Kay's client has moved to compel arbitration of litigation in Pennsylvania. PPT Research Inc. v. Solvay USA Inc., 5:20-cv-02645 (E.D. Penn., filed June 5. 2020).

Kay pointed to the way that remote litigation figured prominently in both cases. "There are parallel international angles to both Solvay and MedImpact," he said in late August. "We had a Webex hearing in Solvay yesterday, and I'm very optimistic the judge will enforce the arbitration agreement."

-- John Roemer