throbber
FM."
`
`HO‘ 2;: 2020
`
`W .m.
`
`DOCKET NO.: XO7—HHD-CV-14—6049281-S
`
`DUR—A—FLEX, INC.
`
`v.
`
`SAMET DY
`
`:
`
`.
`:
`
`:
`
`SUPERIOR COURT
`
`JUDICIAL DISTRICT OF
`HARTFORD
`
`NOVEMBER 23, 2020
`
`Memorandum of Decision on Misappropriation
`
`1. Summary. Did Samet Dy and others steal Dur-A—Flex trade secrets?
`
`Yes. Samet Dy, working with his nephew and a friend, stole his former
`
`employer’s trade secrets and used them to make competing floor coatings.
`
`It is true that not every one of Dy’s products is a product of theft. And not every
`
`one of his alleged confederates did anything wrong. But Dy in particular— with respect
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`to Poly-Crete floor coating in particular— used the Dur—A—Flex trade secret formula and
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`research to create the competing product that ultimately became known as ProKrete.
`
`Complicit with him—and also formerly affiliated with Dur-A—Flex—were Dy’s nephew
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`Autodommn “Josh” Dy and Dy’s close friend and confidant, Steven Lipman.
`
`Not liable are some of the people who offered Dy help along the way: Merrifield
`
`Paint Co, Inc., Christopher Krone, and Engineered Coatings, Inc. Equally free from
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`blame is Indue Sales and Services, Inc., a company that hired Dy to make for it a
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`product very different from Poly-Crete. The court’s judgment favors them because none
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`of them knew or had reason to know that Dy was using trade secret information in his
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`

`

`dealings with them, and none of them used any trade secrets themselves with reason to
`
`know they were trade secrets.
`
`2. How do you know you’ve been robbed? The complications with
`chemistry.
`
`When someone grabs the money bags from your arms and runs off down the street
`
`you can see who robbed you, how you’ve been robbed, and what you have been robbed
`
`of.
`
`Things are bit more complex with chemistry. An earlier phase of this case defined
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`the money bags in contention here—the valuable floor-coating secrets of Dur—A—Flex,
`
`Inc. One of those money bags was the research and secret formula for its Poly-Crete
`
`cementitious urethane floor coating.
`
`But the trouble is trying to spot a theft given the camouflaging—character of
`
`chemistry. You can patch the elements in a given formula together differently, and the
`
`objects obtain different chemical characteristics and names. You might end up with a
`
`different piece of chemistry altogether. You might also find yourself with substantially
`
`the same thing made up of different parts and called by a different name. The trick is
`
`knowing which situation you face. If it’s the latter case, the camouflage is no protection
`
`for the trade secret thief.
`
`This difficulty is one of the keys to this case because the main party accused— Samet
`
`Dy —is a good chemist. He created for Dur-A—Flex, the Poly-Crete formula at issue here,
`
`and the evidence shows that after he left Dur-A-Flex he created a new product like Poly-
`
`Crete for a company he founded. The two products are indeed very much alike. They
`
`have some common ingredients and most of the ingredients have common origins with
`
`2
`
`

`

`Poly—Crete. Still, the ingredients in ProKrete aren’t identical to the ingredients in Poly-
`
`Crete. This may make theft harder to trace, but legally it doesn’t make it impossible to
`
`stop.
`
`It can be stopped under the Uniform Trade Secrets Act, General Statutes §35-51. The
`
`act defines “misappropriation” flexibly and includes the “use of a trade secret of another
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`without express or implied consent by a person who...l<new...the trade secret
`
`was...acquired under circumstances giving rise to a duty to maintain its secrecy or limit
`
`its use”.
`
`“Use” is not defined in the Act. It has to be determined from the totality of the
`
`circumstances. Under the facts of this case, the use of a couple of ingredients over an
`
`ordinary research interval in an otherwise different formula, developed in a different
`
`way, for a different purpose doesn’t sound much like “use”. But if you find a product
`
`with several common ingredients in a rapidly developed formula that was made in the
`
`same way for the same purpose, the circumstances point more likely to “use” of the
`
`trade secret as the basis for the product.
`
`In addition, as a federal judge for the District of Connecticut explained in 2003 in
`
`On-line Techs, Inc. v. Perkin-Elmer, Corp. “use” under the statute isn’t limited to
`
`creating a substantially identical formula, it can even be enough that a defendant was
`
`“relying on the trade secret to assist or accelerate research or development.
`
`’91
`
`While it’s not everything we can find here, acceleration is likely the easiest thing to
`
`detect. Regardless how close the final formulas are, Dur-A—Flex claims that Samet Dy
`
`1 253 F. Supp. 2d 313, 323—24.
`
`

`

`and his confederates created products—particularly ProKrete—using Dur-a—Flex trade
`
`secrets to speed up the process.
`
`From here we must examine some science, some testimony, and make some
`
`significant credibility judgments. The difficulty of the science makes the civil burden of
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`proof particularly important. That means, as our Supreme Court reminded us in 2012
`
`in Curran v. Kroll, the court’s job is to decide what most likely happened.2 For the
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`scientific judgments, that may be the best the court can do.
`
`3. Most likely, Samet and Josh Dy developed ProKrete using
`Dur-A-Flex Trade Secrets.
`
`Samet Dy developed the extremely lucrative Poly—Crete floor coating for Dur-A—
`
`Flex. Despite his attempts to make it appear that his college-student nephew invented
`
`its would-be rival, ProKrete, the evidence shows that Samet Dy was also the driving
`
`force behind that work too. At best, Josh assisted with it, and at worst he simply
`
`pantomimed development at his uncle’s behest.
`
`Most likely Samet Dy created ProKrete using Josh for cover and using the Poly-
`
`Crete formula and research trade secrets as his guide. Dy knew the Poly—Crete formula
`
`better than anyone. For ProKrete he used sometimes the same, most times similar
`
`ingredients to Poly—Crete. ProKrete turned out to be substantially the same product,
`
`made by substantially the same method, for substantially the same purpose. And it was
`
`created in far less time. What provided that substance and saved that time was the Dur—
`
`A-Flex trade secrets.
`
`2 303 Conn. 845, 856.
`
`

`

`a. Despite an elaborate facade, Samet Dy—creator of Dur-A-Flex Poly-
`Crete—was always the man behind the ProKrete chemistry.
`
`Beginning in 2004, Samet Dy worked at Dur-a-Flex developing the money—
`
`making Poly-Crete formula. It took eight years before it became the stable formula that
`
`it is today. For a small part of that time Josh Dy worked by his side as a Dur—a-Flex
`
`intern.
`
`Mostly though, Josh Dy spent his time laboring through a nine-year journey to
`
`earn a chemical engineering degree from the University of Connecticut. He was a C
`
`student and gained no recognition as a formulator during his years in school. While he
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`told a different story at trial, Josh admitted at deposition that his work as a Dur-A—Flex
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`intern was limited to getting the chemicals he was told to get and performing on them
`
`experiments he was told to perform.
`
`Still, Samet and Josh want us to believe that without any reference to the product
`
`his uncle created at Dur-A—Flex, Josh wizarded his way into creating a competing
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`product a short time after he finally graduated from school.
`
`Indeed, Samet—even while still working at Dur-A—Flex—set Josh up with all the
`
`trappings of a formulator. Josh had a lab—in Samet’s garage. He had chemicals—
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`picked by his uncle. He had product patents and brochures—selected by Samet. He had
`
`duplicate lab books—one courtroom—ready and one far-less polished.
`
`Samet Dy left Dur—A-Flex in February 2013. But before he left, he had conferred
`
`extensively with the defendant Steven Lipman about going into business and using Josh
`
`in the mix.
`
`

`

`Lipman lost his job as a Dur-A—Flex product manager in 2010. He made his way
`
`eventually to a floor—coating company called Guardian. He proposed to Guardian that
`
`Josh come to work there and asked Guardian to review Samet Dy’s Dur-A—Flex non-
`
`compete agreement—later invalidated by this court—to see if it was enforceable.
`
`Guardian refused both proposals, leaving Josh no place to go but Samet’s garage.
`
`Again, while still employed at Dur-A—Flex, Samet Dy took other steps to move his
`
`own floor-coating business forward, using his children’s initials to create a company
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`called A&E Procoat, LLC. In 2014, he transferred this company to Lipman who
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`ultimately called it ProRez but continued to pay Dy money from the company for
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`inadequately explained reasons like “generosity”.
`
`Soon—again still at Dur-A—Flex— Dy was boasting to a potential business partner
`
`that he was “working on the side” and that he and his associates had developed a
`
`complete line of products that would be up and running soon. He explained that he was
`
`using odd names for some of the product files he was sending around to “mask” their
`
`content. The record reveals Dy showing off the formula for one of those products even
`
`before Josh started his nominal work developing it.
`
`Finally, Dy left Dur—A—Flex in February 2013. He embarked on a new career as an
`
`entrepreneur with encouragement from other Dur-A—Flex expats like Jay Martin and
`
`Bill Greider, and above all from the man Dy proudly thinks of as a brother, Steven
`
`Lipman.
`
`With Samet Dy finally fully out of Dur-A—Flex, Josh kept up the pretense of
`
`formulating a cementitious urethane “all on his own”.
`
`

`

`At trial, Josh, Samet, and another Dy acolyte named Dane Hartman tried to hold
`
`up this facade by saying Dy always kept his distance, demanding that budding
`
`formulators learn techniques by working out problems on their own. But more
`
`consistent with the rest of the evidence was when Hartman said at his deposition that
`
`Dy’s technique typically involved giving him three chemicals, explaining their purpose,
`
`and asking him to find the best of the three—a process in an industry of thousands of
`
`chemicals like being given three chances to find a pea under one of three shells.
`
`The rest of the record supports that simile and more. Even after lining up the
`
`peas, Dy would intervene even more directly. He would change a mix ratio here. He
`
`would substitute an ingredient there. With respect to some work, Josh claims he started
`
`his work by referring to a list of ingredients in patents and in product brochures, but
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`none of these ingredients even showed up in his experiments while product lines Samet
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`Dy used at Dur—A—Flex did.
`
`Likewise, Josh’s notes reflect a decision to “continue” using a particular
`
`ingredient despite the ingredient having never shown up before—except at Dur-A-Flex.
`
`He claims to have tested many hardener products, but they also don’t show up in his
`
`experiments, leaving Samet Dy as the only source of what he actually chose—Samet Dy
`
`and his Dur-A—Flex work, not Josh Dy and his garage-bay floor show. More than once
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`ingredients appeared out of nowhere—suddenly, without explanation from the
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`experiments, a new ingredient shows up in Josh’s work.
`
`Whatever the cracks in Josh’s facade, Samet Dy couldn’t keep up the wall—of-
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`deceit very well either. He was simply too proud of himself. In describing the
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`development of what would become ProKrete he couldn’t resist talking about what he
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`

`

`did, what he wanted for the product, and what his work yielded: “1 built the system”...
`
`“We started working”. His emails show him in charge of a variety of floor-coating
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`products and issues. They included talk about, “Our product”, “our customers”, “our
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`product system design”. “We are the front face of the company not them.” He tells
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`another potential customer: “Cement based urethane is not that difficult for me to put
`
`together”.
`
`Yes, defense lawyers at trial could usually bump Dy back on track, talking about
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`Josh, but his formulator’s pride got the better of him often enough to reveal whose
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`products these were and who was in charge of making them.
`
`The other witnesses that Dy offered for support didn’t do much better. Merrifield
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`Paint in Rocky Hill manufactured product for the enterprise and Josh soon moved his
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`lab out of Samet’s garage and into the Merrifield factory. Its owner, Douglas Merrifield,
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`said at his deposition that he saw Josh “supposedly working”, “eating a lot of sushi”.
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`Merrifield said, “I see him on Facebook a lot”. He said: “Sometimes I wonder.”
`
`Merrifield did see him working some: “yea you do have to work once in a while” and
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`some of that work he saw Josh doing was directly with Samet. The most Merrifield
`
`could do to improve on this at trial was to say he didn’t know what Josh, Samet, or their
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`friend, Dur-A-Flex eX—customer Chris Krone, were doing at the Merrifield lab.
`
`Krone didn’t do much better trying to help Dy. Krone wrote emails about the
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`developing product to Samet, not Josh. He gave his testimony about Samet. Samet
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`asked him to evaluate epoxy products “he” developed. Samet offered him a discount on
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`product. Samet sent Krone a list of his product line, including a cementitious urethane.
`
`Krone gave Samet—not Josh—his product feedback and urged Samet’s enterprise on:
`
`

`

`“Let’s Do It!” Krone wrote to Samet about a trade—related outing. And Samet really did
`
`do it: almost all of it.
`
`Yes, at trial seven years later, Josh Dy could talk the formulator’s talk pretty well.
`
`He painstakingly reviewed his experiments during his testimony, but we don’t have to
`
`say that he didn’t do the experiments to agree with Dur-A-Flex that he did them using
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`Dur—A—Flex trade secrets provided to him by Samet Dy.
`
`What matters relative to the experiments is the hand that guided them and the
`
`mind that controlled them. Josh may have been—more or less— out front, working, but
`
`the man behind the chemistry was always Samet Dy. And among the most damning
`
`evidence of this may be the evidence that is no longer there.
`
`Samet Dy had several computers, multiple external devices and at least one drop
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`box in the Cloud. Experts at trial battled over forensic examinations of them. There was
`
`evidence that, two days before handing one computer over for forensic examination, Dy
`
`searched: “how to remove current account under Windows 10”. And there was evidence
`
`that his search succeeded, because, in mid—litigation, an entire user account and all of its
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`documents disappeared. His drop box account at sync.com also vanished.
`
`Dur-A-Flex expert Richard Hanel testified that while motions to compel
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`testimony about missing documents were pending Dy installed a file remover called
`
`“CCleaner” on his computer and used it. Hanel illustrated what it wiped out by showing
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`that a file about cementitious urethanes was scrubbed, leaving, other than the subject
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`title, only the computer—generated notation, “unallocated clusters.” Dy had also used
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`external devices some sixteen to eighteen times that could remove information from the
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`system. We don’t know what, if anything, was removed using them.
`
`9
`
`

`

`Dy got a bit of a support from his sometime trainee Hartman who said he had
`
`installed a cleaner on Dy’s computer to improve its performance at some point but
`
`couldn’t remember what product he installed. More important, Dy’s own expert
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`Christopher Smith said he thought CCleaner hadn’t been used since 2014 or maybe
`
`never run at all. He undercut some of the testimony about a remote “kill” message
`
`Hanel discussed, but Smith said nothing to explain what innocent reason caused Dy on
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`the eve of handing over his computer to search for information of how to remove current
`
`accounts. He didn’t explain the absence of entire user files. He didn’t explain why third
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`parties were found to have emails from accounts that on Dy’s end had simply vanished.
`
`At best Smith raised reasonable doubts about some of the evidence rather than shake
`
`the court’s clear impression that Dy was seeking ways to cover his tracks. Hanel was a
`
`credible witness, more experienced and educated than Smith, and there were simply too
`
`many abnormal things on the computer to believe they were all just misunderstandings.
`
`Consistent with this was the furious and profane resistance Dy flung at his
`
`deposition interlocutors when they tried to question him on the subject.
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`Dy must pay for this destruction of evidence—sometimes awkwardly called
`
`“spoliation”— and his obstruction of the deposition about it. When a party destroys
`
`evidence, the court has the power to punish them under Practice Book §13-14. One of
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`the most effective rebukes is for the court to infer that the missing evidence would have
`
`damaged the case of the party who destroyed it. It is effective because it helps
`
`discourage the destroyers and vindicate the victims.
`
`The court will use this approach here against Dy. Specifically, the court will infer
`
`that whatever Dy destroyed would have been evidence showing that he stole trade
`
`10
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`

`

`secrets belonging to Dur-A—Flex and that he used those trade secrets to compete with
`
`Dur-A-Flex. In short, this is now evidence. It is added to the Dur-A-Flex side of the
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`scales against Dy.
`
`But there is more. Under oath in court and at his deposition, Dy denied removing
`
`material even though the court is convinced he deliberately did remove it. Thus, he has
`
`perjured himself. Additionally, his repeatedly obscene and offensive behavior at his
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`deposition deserves sanction by itself. The court will leave the revolting details from the
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`deposition out of this opinion. They are recorded in the plaintiff’s motion at docket
`
`entry 507.00. They make it worth noting that depositions are legal proceedings
`
`conducted on the record under the authority of the court by officers of the court.
`
`Depositions are not private squabble—sessions between warring parties.
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`So, on top of any other sanction, for lying under oath and for disrupting the
`
`deposition, Dy will pay Dur—A—Flex what it paid its attorneys to prepare and to argue its
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`motion for sanctions regarding evidence destruction.
`
`The computer tampering and Dy’s lies about it buttresses what we already know
`
`about Dy’s use of his nephew as a shield. But Dy has said and done plenty of other things
`
`to undercut the court’s willingness to believe what he has said about Josh’s genius and
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`isolation.
`
`Dy’s testimony and demeanor leaves the dispassionate observer believing he
`
`plays fast and loose with the truth. He says he enjoys the perfectly legal process of
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`working around patents but left the court with the impression that he thought he could
`
`try something a little riskier here by disguising his efforts to reproduce Poly—Crete.
`
`11
`
`

`

`From his testimony and demeanor Dy gives the impression that he is a jolly,
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`crude, and careless adventurer. In court and out he has boasted of being a risk taker in
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`search of big rewards. Indeed, he said “the world is his oyster”. Unfortunately, he has
`
`appeared determined to pry it open heedless that the knife might slip and stab him
`
`instead.
`
`A particularly pointed piece of this lack of restraint happened at trial where he
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`flippantly disavowed remembering the Poly-Crete ingredients after he left Dur—A—Flex.
`
`On cross examination he was forced to eat those words ingredient by ingredient until it
`
`was clear that he knew then and has always known exactly what was in the formula he
`
`developed.
`
`Samet Dy, not Josh Dy developed the formulas at issue in this case. And, as we
`
`will see further, they were most likely developed from knowledge Dy took from Dur-A-
`
`Flex trade secrets.
`
`b. Dy’s development process and products show likely use of Dur-A-Flex
`secrets.
`
`Not only did Samet Dy remember the Poly—Crete secret formula, he physically
`
`stole it.
`
`He had no right to take it. But he took with him a physical copy when he left Dur-
`
`A—Flex. It was contained in a video. It took a long time before the video emerged in this
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`lawsuit, but there, on one of Dy’s USB drives, was a Poly-Crete mixing video with all the
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`ingredients explained. What was he still doing with it?
`
`12
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`

`

`The parties disputed over why he had the video and why it wasn’t promptly
`
`produced in discovery. But Dy has kindly and credible counsel. It would be hard to
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`disbelieve the representation from counsel that it was his two lawyers not realizing what
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`was on the drive that explained the delay in producing it. For the opposite reason, it
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`would be hard to believe Dy’s explanation that he never knew he had the disk and
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`snapped it shut the moment—years later—he realized he still had it.
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`Dy had the formula. Dy remembered the formula. When Dy stocked Josh’s
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`garage lab he was still working at Dur-A—Flex with full access to the formula. Indeed, he
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`chose to stock the lab with the chemicals in Poly-Crete. Additionally, he stocked it with
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`chemicals like the chemicals in Poly—Crete. He also stocked it with chemicals he worked
`
`with while developing Poly-Crete. He further stocked it with chemicals from Dur-A—Flex
`
`suppliers. There were thousands of options and dozens of suppliers. Still, Dy picked the
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`chemicals he knew Josh would need so that Josh could arrive at a winning formula
`
`while looking like he, not Samet Dy, was developing it.
`
`What kinds of chemicals were they? It’s no secret that cementitious urethane is
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`made by combining a resin, a hardener, and an aggregate that includes the cement.
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`This dispute isn’t about the aggregate. But is about the resin and hardener.
`
`Choosing a good hardener is important. There are many out there, but Dy chose
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`one in particular that is in the Poly-Crete formula, and it shows up in everything he did
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`after leaving Dur—A—Flex. We don’t have to give its name here. All the ingredients in
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`Poly—Crete and those that eventually made up ProKrete may be seen in sealed exhibit
`
`409 by those with the authority to View it.
`
`13
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`

`

`At the core of this dispute is the resin. The resin in a cementitious urethane is
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`complicated and critical. A good cementitious urethane resin has to make magic when
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`combined with the hardener and the aggregate. This is done from a kit containing the
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`three separate parts. They are blended together in a bucket before they are applied to a
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`surface, and they must harmonize and magnify.
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`The bucket must have a consistent amount of resin, aggregate, and hardener
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`throughout the bucket of mixed ingredients rather than ingredients that clump, sink, or
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`separate. The mix must be wet enough to pour but not so wet that it spreads too thinly
`
`or too quickly. The ingredients must assist in distributing moisture throughout the
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`aggregate quickly and evenly. The coating must harden uniformly across its substrate.
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`But it must not harden so quickly that there is no time to mix it and apply it before it
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`stiffens in the pot. It needs “a good working time”. But not too much—or it will never
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`dry. The result mustn’t be too brittle nor too soft.
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`It is also no industry secret that several kinds of ingredients help make all this
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`happen. The key is to pick the best combination of them. The way to do it is to endure
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`years of experience in and out of the lab. Engage in trial and error. Experiment and
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`observe. Scale it up and try it on floor after floor. On job after job.
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`Resin ingredients include some that make up a large percentage by volume and
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`then there are those that make up very little by volume but make up the magic or “foo
`
`foo dust” in the formula that makes it behave better than the competition.
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`The biggest resin ingredient is a polyol. Castor Oil is a natural polyol used in
`
`many cementitious urethane resins. There are others, and some formulas use more
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`than one.
`
`14
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`

`

`Many of the most valuable ingredients in a cementitious urethane are the small
`
`amounts of additives that influence the pouring, spreading, levelling, and curing of the
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`product.
`
`Surfactants for instance manipulate the surface tension of liquids. They help
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`liquids cling to each other and to solids—they are “wetting agents”. They stabilize
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`mixtures of liquids that might otherwise be unmixable. They prevent clumping.
`
`All surfactants are wetting agents, but not all wetting agents are surfactants.
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`There are other products that more narrowly focus on penetrating surface tension to
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`join liquids with other liquids and solids. They are called “wetting agents.”
`
`Plasticizers keep the mixture soft and flexible enough to apply without using so
`
`much water that the mixture ends up a thin and un-spreadable gruel. More water is
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`saved by superplasticizers which assist in making the concrete stronger. Both additives
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`aim to create workable, durable, concrete products.
`
`Defoamers are vital in cementitious urethanes. Mixing, pouring, and the
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`associated chemical reactions create foam. If the foam isn’t controlled, the floor coating
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`becomes full of bubbles that impede proper curing and leave a pitted appearance.
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`Fillers that don’t disrupt the other ingredients but take up space can be useful
`
`too. They might help balance ingredient ratios or might be used simply to increase the
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`volume of the product at a low price.
`
`Some products also have ingredients that reflect that microbes grow in liquids in
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`some temperatures and conditions and that in other temperatures and conditions a
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`product might freeze.
`
`15
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`

`

`The fact that these types of additives are used isn’t the secret. The magic comes
`
`from choosing specific additives that join hands with the other additives—that mesh
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`with the polyol, come to grips with the hardener, and suffuse into the aggregate to
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`produce a high performing, long—lasting floor coating. It was using the essence of this
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`magic to accelerate the development of ProKrete where Samet Dy ran afoul of the law.
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`The evidence showed that among the Poly-Crete ingredients Dy directly used in
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`formulating ProKrete are two of the Poly—Crete polyalls, its surfactant, its principal
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`defoamer, its filler, and its hardener. Also among the chemicals used in the process of
`
`formulating ProKrete are several specific products Dy used in researching the
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`development of Poly-Crete. They include two polyalls, three wetting agents, an anti—
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`microbial, a superplasticizer, and an anti-freeze. According to Dur—A—Flex expert Steven
`
`Peake, ProKrete was further developed using a wetting agent and a plasticizer
`
`substantially similar to the Dur—A—Flex ingredient that is part of the protected formula.
`
`One of the Dur-A—Flex defoamers is particularly good. Like the hardener, it shows
`
`up in all of Samet’s work. It was developed by a supplier especially for Dur-a-Flex during
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`the development of Poly-Crete. At the time ProKrete was being developed, that supplier
`
`was selling the defoamer but you couldn’t find it unless you already knew it existed. It
`
`wasn’t listed with the company’s other defoamers on the company website. You had to
`
`search for it by name.
`
`That defoamer is a good example of how Dy used his knowledge about the Dur-A—
`
`Flex formula to create ProKrete. Another is one of those instances were something
`
`shows up in Josh’s work without explanation. In this instance an ingredient indicated
`
`16
`
`

`

`for inclusion in the aggregate ends up —as Dur-A—Flex uses it—in the resin without being
`
`justified by any experiment.
`
`Josh began the cementitious urethane work on September 6, 2013 and had a
`
`formula by September 30th. He admits that matching or exceeding Poly-Crete was
`
`always the goal, and he achieved it in record time. He tested far fewer ingredients and
`
`took a fraction of the time Samet Dy took to test them at Dur-a-Flex. Rather than work
`
`on it for eight years, Josh claims he completed ProKrete from scratch in little over one—
`
`with the stable formula achieved by December 2014.
`
`As Dur-A—Flex expert Steven Peake reflected, it was like someone who has never
`
`run a marathon winning the race on his first try. Peake said that with 41 years of
`
`experience it would have taken him three to five years to do what Josh claims he did in
`
`one year. To him, what Josh claimed was simply beyond belief—unless the reason was
`
`that Dy gave him the keys to success courtesy of Dur-A—Flex.
`
`c. The defense falls for a fallacy.
`
`Naturally the defense denies all of this and sticks to its Josh—centered sequence of
`
`events.
`
`Beyond that it claims that all the information was public anyway, so no harm was
`
`done. But these arguments are based on the fallacy of composition. Persons suffering
`
`from it tend to focus on the parts while missing the whole. The idea is that if I can prove
`
`something is true of each part, the whole doesn’t matter. For instance: “Hydrogen is not
`
`wet. Oxygen is not wet. Therefore, water (H20) is not wet”.
`
`17
`
`

`

`The defense used witnesses like chemist Jay Martin and experts like Stephen
`
`Cantor to reargue this theme from the trial’s first phase: that you can easily find each of
`
`the ingredients in Poly-Crete in the public domain.
`
`There is of course some truth to this. Among the thousands of floor coating
`
`chemicals in the world you can find—some are easier to find than others—all of the Poly-
`
`Crete ingredients. The defendants say that if each of them theoretically could be found
`
`individually without stain of illegality then putting them all together should be no worse.
`
`But this reasoning forgets that the court has to look broadly at all of the
`
`circumstances, not at the individual ingredients in isolation. It’s one thing to locate the
`
`isolated ingredients. It is another to discover them and then put them together in a way,
`
`in an amount, at a pace, and for a purpose that doesn’t reflect use of foreknowledge of
`
`the total Dur-a-Flex formula and research. When things are seen this way—when they
`
`are seen as a whole— Dy’s actions are soaked with wrongdoing.
`
`The argument suffers from a further fallacy. It assumes because you could do
`
`something, you did do something. Too much of the defense testimony focused on the
`
`argument that Dy did nothing wrong because with a degree of effort he could have
`
`assembled all of what he did assemble without getting it from Dur-A—Flex.
`
`The problem with this argument is that it ignores the evidence that some of the
`
`ingredients and starting points pop up out of nowhere. There is no evidence that Josh
`
`ignored what Samet set up for him and set out on his own to find the ProKrete
`
`ingredients in the public domain, not to mention that he found them and formulated
`
`from them rather than from what Samet spoon fed him.
`
`18
`
`

`

`This leads to an argument that is partly valid but fatally flawed when taken to
`
`extremes: the tool-kit fallacy. At its extreme it works like this: because without violating
`
`the Trade Secrets Act you can take and use knowledge of some things after you leave a
`
`job you can take and use knowledge of all things after you leave a job. It’s a cousin of the
`
`composition fallacy.
`
`In its more restrained form, the tool kit concept is of some use. There certainly
`
`are things that it would be entirely unreasonable to ask chemists to unlearn when they
`
`move to a new job. The names of commonly known chemicals might be okay. Basic
`
`research practices such as the use of ladder studies and good lab book keeping would
`
`seem part of a basic Chemist’s tool kit. They even could include more sophisticated
`
`concepts such as the notion that “cementitious urethane formulas typically need
`
`defoamers, surfactants and plasticizers”. These things are too common to be trade
`
`secrets. Making them trade secrets would make many chemists unemployable.
`
`But it is different when a chemist leaves a job, sets up a rival company, and——
`
`using knowledge of the secret research and formula of his former employer—creates a
`
`new product substantially the same as the old product for substantially the same
`
`purpose. Allowing this to be done without consequence in this context would make the
`
`Trade Secrets Act almost useless.
`
`The defense appears to understand that a line needs to be drawn but seems to
`
`want it to bulge whenever it is needed to bring Dy’s activities within bounds. A tool kit
`
`might include a hammer, a wrench, or even a mass spectrometer, but it can’t have
`
`buried at the bottom of it a USB device containing a secret formula.
`
`(1. The proof of the pudding is in the eating.
`
`19
`
`

`

`You can’t taste cementitious urethanes, but you can look at them, watch them be
`
`mixed, see how they pour, observe how they level, inspect how they dry, and feel their
`
`surfaces when they are a finished product. The court thought doing these things was a
`
`good idea, so it agreed to a demonstration to compare the products in contention and
`
`make any possible judgments.
`
`The parties submitted the products to a demonstration at a West Hartford
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`warehouse. The products were assembled from their kits, mixed in their buckets,
`
`troweled onto a surface, and observed while drying and—on a return visit— when dry.
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`If the court had any remaining doubts about the likelihood that ProKrete was
`
`

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