Yury Kapgan

It’s an employee mobility dispute with trade secrets overtones. And in a deft litigation counterattack, Kapgan, the defendant’s lawyer, has compelled the plaintiff to advance his client’s legal fees and costs.

Kapgan, who has been at Quinn Emanuel since 2012, is a partner who focuses on trade secrets and other complex intellectual property matters. “I’ve been interested in tech since I was a kid growing up in L.A.,” he said. “With trade secrets, you have to have someone accused of stealing something—the cases tend to be more emotional and intensely litigated.”

In the employee mobility case, Kapgan represents the former chief operating officer of the cloud computing giant VMware Inc. who left the company to become the chief executive officer of a competitor. VMware alleged that Rajiv Ramaswami breached his duties by not informing it he was interviewing for a new position and downloaded thousands of VMware files to a personal hard drive. It alleged breach of the duty of loyalty, breach of contract and other torts. VMware Inc. v. Ramaswami, 21-CV375440 (S. Clara Co. Super. Ct., filed Dec. 19, 2020).

“Of course, it’s rare for an employee to disclose an interview like that to his employer,” Kapgan said. In preparing the defense, he learned his client had an existing indemnification agreement with VMware and was also entitled to indemnification under VMware’s corporate bylaws. Kapgan successfully sought to enforce those deals in Delaware Chancery Court, which in an expedited proceeding ordered VMware to advance all of Ramaswami’s legal fees and expenses—in effect requiring the plaintiff to pay the lawyers on both sides of the case.

“They were not expecting that,” Kapgan said. “Now we submit our invoices to VMware on a monthly basis. It’s an unusual situation. Our accounting folks were certainly surprised.”

Kapgan also represents a joint venture between The Boeing Co. and Kitty Hawk Corp. that is developing electric vertical takeoff and landing aircraft. It accuses a rival of recruiting a dozen of its engineers, one of whom took confidential files, and then announcing it would release an eVTOL aircraft that appeared strikingly similar to the craft developed by Kapgan’s client. The resulting suit alleges trade secrets misappropriation and patent infringement. Wisk Aero LLC v. Archer Aviation Inc., 3:21-cv-02450 (N.D. Cal., filed April 6, 2021).

“Here we have a vision of the future with Jetsons-like flying taxis,” Kapgan said. A parallel U.S. Department of Justice criminal investigation is underway, making the case somewhat parallel to the high-profile dispute between Waymo LLC and Uber Technologies Inc. “This mode of air transportation is just so cool, and this is what I love about this practice. I’m helping my client protect a huge investment.”

—John Roemer