¶ 11. • During the search, Special Agent Ho relied on the contents of the Affidavit and the limitation on searching for evidence related to violations of 18 U.S.C. §§ 1831 and 1832. She provides examples in her declaration.

Attempted Economic Espionage and Trade Secret Theft Involving Trade Secret 1 – Counts 3 and 5 Counts Three and Five charge attempted economic espionage and attempted theft of trade secrets, in violation of specific provisions of the Economic Espionage Act that criminalize attempts. In Count Three, Walter Liew, Christina Liew, and USAPTI are charged with attempted economic espionage, in violation of 18 U.S.C. § 1831(a)(5). In Count Five, these same three defendants and Robert Maegerle are charged with attempted trade secret theft, in violation of 18 U.S.C. § 1832(a)(5).

The information was, in fact, a trade secret. 18 U.S.C. § 1831(a)(1). Section 1839(3) defines “trade secret” and “owner” as follows: (3) the term "trade secret" means all forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing if– (A) the owner thereof has taken reasonable measures to keep such information secret; and (B) the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, the public; and (4) the term "owner," with respect to a trade secret, means Case 8:08-cr-00024-CJC Document 57 Filed 03/30/09 Page 12 of 24 Page ID #:209 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 2

Economic espionage and trade secret theft are serious offenses. Congress enacted the Economic Espionage Act of 1996 (EEA), 18 U.S.C. § 1831 et seq., out of a recognition that the protection of our nation’s intellectual property and economic interests is directly related to the interests of national security. As the House Report explained: There can be no question that the development of proprietary economic information [trade secrets] is an integral part of America's well-being.

CR 11-0573-JSW (NC) 808289.02 commit economic espionage under 18 U.S.C. § 1831(a)(5) or (4)—the government was required to prove, amongst other things, that Mr. Liew and USAPTI intended or knew that the offense would benefit a foreign government, namely the Chinese government, or a foreign instrumentality. The government failed to introduce sufficient evidence: (1) that any of the real parties to Mr. Liew’s contracts were foreign instrumentalities; (2) that Pangang Group was a foreign instrumentality; or (3) that Mr. Liew and USAPTI intended or knew that their actions would “benefit” the government of China or any foreign instrumentality.

Aleynikov, 676 F.3d at 74; Appdx27. The following month, he was charged with violating the NSPA and the Economic Espionage Act, 18 U.S.C. § 1831 et seq. (“EEA”), by making those digital transfers.5 He was subsequently convicted of both charges and sentenced to 97 months in federal prison. Aleynikov, 676 F.3d at 75.

C. Plaintiff Alleges No Facts Relating To Copyright Infringement Or Trade Secret Violations. In her response brief, Plaintiff contends that she "alleged in her complaint that . . . JPM[C]'s purchase of WebSphere development tools and Web application products and services is criminal infringement of a copyright, 18 U.S.C. § 2319; economic espionage and theft of trade secrets, 18 U.S.C. §§ 1831 and 1832; and more." (D.I. 49 at 10.)

However, accusing Plaintiff of “disloyalty” and threatening legal action would be understood by anyone, including but not limited to the rank and file employees at hibu, as a slur that would lower Plaintiff in the estimation of the community and certainly deter others from wanting to deal with him in business and otherwise. Indeed, giving away company secrets, as the communication implies, can be deemed a crime under the U. S. Espionage Act of 1996, 18 U.S.C. § 1831, et. seq.

E. There is No Private Right of Action Under the Federal Economic Espionage Act of 1996 To the extent the Court construes Plaintiffs’ allegations as bringing a claim under the federal Economic Espionage Act of 1996, 18 U.S.C. §1831 et seq. (“the “EEA”), this claim should also be dismissed with prejudice. Plaintiffs allege at Paragraph 34 of the Complaint that Apple “knowingly committed corporate espionage when it conspired with Defendant Harshaw to obtain and use the trade secrets and corporate technology of Plaintiff’s SUPACELL cellphone.”

The gravamen of these charges is that defendants conspired to misappropriate trade secrets from DuPont related to the manufacture of titanium dioxide (“TiO2”) and sell technology based on those secrets to entities controlled by the government of the People’s Republic of China (“PRC”). The Indictment charges various different offenses under the EEA, including both economic espionage crimes (18 U.S.C. § 1831) against Walter Liew, Christina Liew, and USAPTI, and theft of trade secret crimes (18 U.S.C. § 1832) against all defendants. The Indictment alleges two overarching EEA conspiracies – one to commit economic espionage (Count One) and one to commit trade secret theft (Count Two).