Moxie Pest Control (Utah) v. Nielsen

  Appellate Case: 24-4076    Document: 53-1   Date Filed: 01/21/2026    Page: 1
                                                                           FILED
                                                               United States Court of Appeals
                                    PUBLISH                            Tenth Circuit

                    UNITED STATES COURT OF APPEALS                     January 21, 2026

                                                                   Christopher M. Wolpert
                          FOR THE TENTH CIRCUIT                        Clerk of Court
                      _________________________________

MOXIE PEST CONTROL (UTAH), LLC,
a Utah limited liability company; MOXIE
PEST CONTROL (MARYLAND), LLC, a
Maryland limited liability company;
MOXIE PEST CONTROL (COLUMBUS)
LLC, an Ohio limited liability company;
MOXIE PEST SERVICES - DALLAS,
LLC, a Texas limited liability company;
MOXIE PEST CONTROL (VIRGINIA),                          No. 24-4076
LLC, a Virginia limited liability company;
MOXIE PEST CONTROL - DENVER,
LLC, a Colorado limited liability company;
MOXIE PEST CONTROL (LAS VEGAS),
LLC, a Nevada limited liability company;
MOXIE PEST CONTROL (ATLANTA),
LLC, a Georgia limited liability company;
MOXIE SERVICE LLC, a Kansas limited
liability company; MOXIE SERVICES
(CHICAGO), LLC, an Illinois limited
liability company; MOXIE SERVICES
MINNESOTA, LLC, Minnesota limited
liability company; MOXIE PEST
CONTROL (ARIZONA), LLC, an Arizona
limited liability company; MOXIE PEST
CONTROL (PHILADELPHIA), LLC, a
Pennsylvania limited liability company;
MOXIE PEST CONTROL
(TENNESSEE), LLC, a Tennessee limited
liability company; MOXIE PEST
CONTROL (RALEIGH), LLC, a North
Carolina limited liability company;
MOXIE PEST CONTROL (ORANGE
COUNTY), L.P., a California limited
partnership; MOXIE PEST CONTROL
(OKLAHOMA), LLC, an Oklahoma
limited liability company; MISSION PEST
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 CONTROL, L.P., a California limited
 partnership; MOXIE PEST CONTROL
 (TUSCON), LLC, an Arizona limited
 liability company; JOSHUA'S PEST
 CONTROL, L.P., a California limited
 partnership; MOXIE PEST CONTROL
 (CINCINNATI), LLC, an Ohio limited
 liability company; MOXIE SERVICES ST
 LOUIS LLC, a Missouri limited liability
 company,

         Plaintiffs - Appellants,

 v.

 KYLE NIELSEN, an individual; CONNER
 RUGGIO, an individual; RYAN SMITH,
 an individual; DONALD MOSER, II, an
 individual; APTIVE ENVIRONMENTAL,
 LLC, a Utah limited liability company;
 DOES 1-10,

         Defendants - Appellees.
                        _________________________________

                       Appeal from the United States District Court
                                 for the District of Utah
                            (D.C. No. 2:21-CV-00240-DAK)
                         _________________________________

Brent O. Hatch (Adam M. Pace with him on the briefs), of Hatch Law Group PC, Salt
Lake City, Utah, for Plaintiffs-Appellants.

Matthew A. Steward, of Clyde Snow & Sessions, P.C., Salt Lake City, Utah, (Nathaniel
E. Broadhurst of Clyde Snow & Sessions, P.C., Salt Lake City, Utah; Freyja Johnson,
Rachel Phillips Ainscough of The Appellate Group, Bountiful, Utah, with him on the
brief), for Defendants-Appellees.
                        _________________________________

Before HARTZ, MORITZ, and ROSSMAN, Circuit Judges.
                  _________________________________

MORITZ, Circuit Judge.

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                       _________________________________

      In 2019 and 2020, employees of Aptive Environmental, LLC, bribed members

of a rival pest-control outfit—Moxie Pest Control (UTAH), LLC, and over a dozen

other affiliates (collectively, Moxie)—to turn over Moxie’s confidential sales data.

That data allegedly became the secret venom in the race to recruit sales

representatives for the lucrative summer sales season.

      When Moxie discovered the breach, it sued Aptive and several of its

employees (collectively, Aptive) for this misuse of its data. It brought claims under

the Computer Fraud and Abuse Act (CFAA), 

18 U.S.C. § 1030

, the Racketeer

Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961–1968, the

federal Defend Trade Secrets Act (DTSA), 18 U.S.C. §§ 1831–33, 1835–36, 1838–

39, 1961, and Utah’s Uniform Trade Secrets Act (UTSA), 

Utah Code Ann. §§ 13-24-1

 to -9. The district court found each of those claims wanting. It

(1) dismissed the CFAA claim as inadequately pleaded, (2) denied Moxie’s motions

to compel broad discovery into damages, and (3) granted Aptive summary judgment

on Moxie’s RICO, DTSA, and UTSA claims on causation grounds.

      We take up each of these issues in Moxie’s appeal. First, we reverse the

dismissal of Moxie’s CFAA claim. Contrary to the district court’s conclusion, the

CFAA does not require plaintiffs to plead loss from a technological harm, so Moxie’s

failure to do so was not fatal under Federal Rule of Civil Procedure 12(b)(6).

      Second, we affirm the denial of Moxie’s motions to compel. Moxie’s

discovery requests were very broad. And limiting the scope of Aptive’s initial

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disclosures was not an abuse of discretion because the district court left the door

open for Moxie to seek further discovery as to damages.

      Third, we affirm in part and reverse in part the district court’s summary-

judgment decision in favor of Aptive. We agree that Moxie’s lack of evidence of

causation is fatal to Moxie’s RICO claim. The same cannot be said for Moxie’s

DTSA and UTSA claims, however. Although the lack of causation evidence

precludes Moxie from recovering unjust-enrichment damages under those statutes,

Moxie also pursued other remedies: reasonable royalties and injunctive relief.

Consequently, the district court should have examined the viability of Moxie’s DTSA

and UTSA claims in light of those remedies before granting Aptive summary

judgment.

      We thus remand for further proceedings on Moxie’s CFAA, DTSA, and UTSA

claims.

                                     Background 1

      Moxie and Aptive are competitors in the pest-control business. They hawk

their services each summer using door-to-door sales representatives, typically college

students, who work on commission. Each sales representative brings in tens of

thousands of dollars in annual revenue. This is a volume business, so Moxie and

Aptive compete to hire the most representatives for each summer sales season.


      1
         We draw these facts from the complaint and summary-judgment record,
viewing both in the light most favorable to Moxie. See KT & G Corp. v. Att’y Gen. of
Okla., 

535 F.3d 1114, 1136

 (10th Cir. 2008) (motion to dismiss); Birch v. Polaris
Indus., Inc., 

812 F.3d 1238, 1251

 (10th Cir. 2015) (summary judgment).
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      Because both companies pay commission, sales data is an important

recruitment tool for predicting a representative’s potential earnings. As part of its

business strategy, Moxie closely guards its sales data. It uses password-protected

software, called SalesRoutes, to track individual sales and maintain “leaderboards” of

top sellers. And all Moxie employees who have access to SalesRoutes—including all

sales representatives—must sign confidentiality agreements covering the company’s

“business records and data.” 2 App. vol. 11, 2960.

      Aptive has gone to great lengths to pilfer that information. In 2019, Senior

Vice President of Sales Connor Ruggio put out a call for employees to “obtain[]

screenshots” of Moxie’s sales data. App. vol. 12, 3223. After Ruggio offered a $100

reward, one employee delivered. He persuaded a friend at Moxie to send screenshots

of the company’s performance data and then forwarded those screenshots to his

colleagues, who used the data to convince potential recruits they would make more

money working for Aptive.

      The next year, Ruggio upped the ante. He offered a $1,000 bounty to any

Aptive employee who could get their hands on Moxie’s 2020 sales data. Several

people tried, but it was Aptive’s Sales President, Kyle Nielsen, who managed to

worm his way into Moxie’s system. He gave a former Aptive employee $2,000 and a


      2
        We refer to sales representatives as Moxie employees for simplicity. In
practice, sales representatives sign independent-contractor agreements with third-
party companies, and those third-party companies then contract with Moxie affiliates.
Nevertheless, Moxie is a third-party beneficiary of the independent-contractor
agreements, and Aptive does not dispute that Moxie has the right to enforce the
confidentiality provisions.
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pair of Nike sneakers to join Moxie, get access to its SalesRoutes system, and turn

over his username and password to Nielsen. Nielsen used those credentials to

repeatedly copy confidential records from Moxie’s system. He then circulated those

records to his colleagues for use in recruitment.

       To demonstrate the harm of Aptive’s scheme, Moxie points to Zak Benson,

who fielded employment offers from both Aptive and Moxie for the 2021 sales

season. An Aptive employee met with Benson and showed him leaderboard

information from the two companies. The leaderboards persuaded Benson he could

earn more money working for Aptive, so he signed a contract with the company. He

resigned before the sales season began, however.

       After Moxie detected this breach, it filed an initial complaint asserting claims

against Aptive and several of its employees under the CFAA and the DTSA. 3 On

Aptive’s motion, the district court dismissed the CFAA claim “based on a failure to

plausibly allege the statutory loss requirement under the CFAA,” leaving only the

DTSA claim live. App. vol. 1, 177. Moxie then filed an amended complaint raising

additional claims under the UTSA and RICO.

       During discovery, Moxie served Aptive with requests relevant to unjust-

enrichment and reasonable-royalty damages. These requests sought, among other things,

information on “each Aptive sales representative hired, contracted[,] or retained for any



       3
        Moxie also brought a claim under the Utah Unfair Competition Act, 

Utah Code Ann. §§ 13

-5a-101 to -103, but that claim was dismissed after Moxie
voluntarily withdrew it.
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of Aptive’s 2016–2021 summer sales seasons.” App. vol. 2, 303. When Aptive refused to

respond, Moxie filed motions to compel. The district court denied Moxie’s motions but

ordered Aptive to disclose “the identity and contact information of any person who

entered into a sales[-]representative agreement with Aptive from 2019 to the present, and

who was listed on the 2019 and 2020 Moxie rosters acquired by Aptive.” 

Id. at 513

.

Moxie did not seek further court-ordered discovery on that point.

       The district court later granted summary judgment to Aptive on the remaining

claims. It concluded that Moxie failed to provide “sufficient evidence” showing “that the

alleged misappropriation of the SalesRoutes [l]eaderboards caused ill-gotten profits to

Aptive.” App. vol. 15, 4039. And because causation is required to recover damages under

the UTSA and DTSA—and to establish liability under RICO—the district court viewed

the dearth of causation evidence as fatal to Moxie’s claims.

       Moxie appeals.

                                        Analysis

       Moxie challenges the district court’s decisions (1) dismissing its CFAA claim

under Rule 12(b)(6), (2) denying its motions to compel discovery, and (3) granting

Aptive summary judgment on its RICO, DTSA, and UTSA claims. We address each

of these in turn.

I.     CFAA Dismissal

       Moxie first argues that the district court erred in granting Aptive’s Rule

12(b)(6) motion to dismiss Moxie’s CFAA claim for “fail[ing] to plausibly allege the

statutory loss requirement.” App. vol. 1, 177. Moxie’s complaint alleged over $5,000

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in costs stemming from an investigation of the Aptive breach. But the district court

ruled that those investigative costs didn’t satisfy the CFAA loss requirement after

Van Buren v. United States, 

593 U.S. 374

 (2021). We review that Rule 12(b)(6)

ruling “de novo, accepting as true all well-ple[ade]d factual allegations and viewing

them in the light most favorable to [the p]laintiff.” KT & G Corp., 

535 F.3d at 1136

(cleaned up). We begin our analysis with the statute, compare Moxie’s complaint

with the statute’s requirements, then explain the Van Buren complication.

      In broad terms, the CFAA bars unauthorized access to computers. See 

18 U.S.C. § 1030

(a). It provides a cause of action to “[a]ny person who suffers” a “loss”

of “at least $5,000” in a single year due to a § 1030 violation. Id.

§ 1030(c)(4)(A)(i)(I), (g). And the CFAA defines a loss as “any reasonable cost to

any victim, including the cost of responding to an offense, conducting a damage

assessment, and restoring the data, program, system, or information to its condition

prior to the offense, and any revenue lost, cost incurred, or other consequential

damages incurred because of interruption of service.” Id. § 1030(e)(11) (emphasis

added).

      Moxie’s complaint seemingly ticked all the CFAA boxes by alleging that

(1) Aptive violated § 1030(a) by accessing its systems without authorization; and

(2) referencing over $5,000 in “costs associated with an investigation undertaken to

determine the identity of and methods used by an offender and the extent of the

offender’s access.” App. vol. 1, 60. Importantly, at the motion-to-dismiss stage,

Aptive doesn’t dispute that Moxie has shown a violation of § 1030(a). And facially,

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the asserted investigative costs appear to easily come within the statute’s broad

definition of loss—“any reasonable cost to [the] victim.” § 1030(e)(11) (emphasis

added). More specifically, the loss appears to come within the explicit examples in

the statute—“cost[s] of responding to an offense” or “conducting a damage

assessment.” Id.

      Aptive nevertheless disputes this straightforward application, arguing that the

Supreme Court’s opinion in Van Buren, 

593 U.S. 374

, prohibits Moxie from

recovering any damages under the CFAA. Notably, in Van Buren, the Court

considered an issue not present here: whether the facts presented a criminal violation

of the Act. There, a police officer “ran a license-plate search in a law[-]enforcement

computer database in exchange for money.” 

Id. at 378

. The Court concluded that,

though the officer had violated department policy, he had not committed a criminal

violation of the CFAA. 

Id.

 The relevant CFAA violation, the Court explained,

“covers those who obtain information from particular areas in the computer . . . to

which their . . . access does not extend.” 

Id.

 But the police officer used his own

credentials, and the CFAA does not cover “those who, like [the police officer], have

improper motives for obtaining information that is otherwise available to them.” 

Id.

(emphasis added).

      Here, as we’ve discussed, we need not decide whether the conduct Moxie

alleged violates the CFAA—it does. As mentioned, Nielsen used a pilfered username

and password to access Moxie’s confidential sales data without authorization. Thus,

unlike the police officer in Van Buren, Aptive violated § 1030(a). See

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§ 1030(a)(2)(C) (prohibiting “intentionally access[ing and obtaining information

from] a [protected] computer without authorization”). Indeed, Aptive doesn’t dispute

as much; it challenges only whether Moxie sustained any recoverable damages.

      To do so, Aptive points out that in Van Buren, the Court bolstered its

conclusion (that no violation had occurred) with dicta about the CFAA’s loss

definition. The Court noted that “[t]he term ‘loss’ . . . relates to costs caused by harm

to computer data, programs, systems, or information services.” 

593 U.S. at 391

. In

other words, the Court said, “[t]he statutory definitions of ‘damage’ and ‘loss’ thus

focus on technological harms—such as the corruption of files—of the type

unauthorized users cause to computer systems and data.” 

Id.

 at 391–92 (emphasis

added). And that is so because the CFAA seeks to “prevent[] the typical

consequences of hacking.” 

Id.

 (quoting Royal Truck & Trailer Sales & Serv., Inc. v.

Kraft, 

974 F.3d 756, 760

 (6th Cir. 2020)).

      Taking off from this dicta, the district court appeared to interpret Van Buren to

restrict CFAA losses to technological harms, and it thus granted Aptive’s motion to

dismiss the CFAA claim. Under the district court’s view, Moxie’s alleged “costs

associated with an investigation” do not qualify as CFAA losses because the

investigation identified no harm to Moxie’s data, programs, systems, or services. 4

App. vol. 1, 60.


      4
         The district court is not entirely alone in that assessment. See, e.g., hiQ Labs,
Inc. v. LinkedIn Corp., 

31 F.4th 1180

, 1195 n.12 (9th Cir. 2022) (interpreting Van
Buren to require CFAA plaintiffs to show technological harm); X Corp. v. Ctr. for
Countering Digit. Hate, Inc., 

724 F. Supp. 3d 948

, 983 (N.D. Cal. 2024) (explaining
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      We do not agree with the district court that Van Buren’s dicta excludes

Moxie’s investigative costs from CFAA losses. Van Buren simply reasoned that

§ 1030(e)(11)’s focus on compensating plaintiffs for technological harms suggests

that certain conduct—like misusing systems one is authorized to access—does not

violate the CFAA. 593 U.S. at 391–92. The Court didn’t say, in dicta or otherwise,

that the damages available when an individual does violate the CFAA are limited to

technological harms. Indeed, Van Buren recognized that losses include costs

“relate[d] to . . . harm to computer data, programs, systems, or information services,”

which reasonably encompasses investigative costs. Id. at 391 (emphasis added).

      Considering at least some investigative costs as losses is likewise consistent

with the CFAA statutory scheme. Under the CFAA, “loss” includes “any reasonable

cost to any victim, including the cost of responding to an offense[ or] conducting a

damage assessment.” § 1030(e)(11) (emphasis added). And of the dozen or so ways

to violate the CFAA, only a few require actual damage to a computer. See

§ 1030(a)(3), (a)(5)(A)–(C), (a)(7)(C). The remainder hinge on unauthorized access,

unauthorized disclosure, fraud, threats, trafficking, conspiracy, or attempt. See id.

§ 1030(a)(1), (a)(2)(A)–(C), (a)(4), (a)(6)(A)–(B), (a)(7)(A)–(B), (b). So it’s

unsurprising that three circuits have interpreted the term “loss” to cover “costs

incurred as part of the response to a CFAA violation, including the investigation of


that “losses [incurred] in connection with attempting to conduct internal
investigations in efforts to ascertain the nature and scope of [the defendant’s]
unauthorized access to the [plaintiff’s] data, are not technological in nature” and thus
do not satisfy § 1030(e)(11)’s definition of loss (cleaned up)).
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an offense.” A.V. ex rel. Vanderhye v. iParadigms, LLC, 

562 F.3d 630, 646

 (4th Cir.

2009); see also Brown Jordan Int’l, Inc. v. Carmicle, 

846 F.3d 1167

, 1174–75 (11th

Cir. 2017) (classifying costs of “an extensive forensic and physical review” of

breached system as CFAA “losses”); Yoder & Frey Auctioneers, Inc. v.

EquipmentFacts, LLC, 

774 F.3d 1065, 1074

 (6th Cir. 2014) (same for costs of

“investigat[ing] the offense and conduct[ing] a damage assessment”). 5 We choose to

do the same.

      Of course, that does not mean all investigative costs fall under § 1030(e)(11).

Costs “reasonably necessary to respond to [a CFAA] offense, for example by

identifying the perpetrator or the method by which the offender accessed the

protected information,” would qualify. Ryanair DAC, 

2024 WL 3732498

, at *14

(emphasis added) (quoting United States v. Nosal, No. 08-0237, 

2014 WL 121519

, at

*5 (N.D. Cal. Jan. 13, 2014) (unpublished)). But expenses related to business harms,

“such as the costs of investigating how a competitor used protected information

obtained as a result of the CFAA violation,” would not qualify. 

Id.

      5
         Although these cases predate Van Buren, courts have continued to take this
position in its aftermath. See, e.g., Vox Mktg. Grp. v. Prodigy Promos, 

556 F. Supp. 3d 1280

, 1288–89 (D. Utah 2021) (concluding that evidence that plaintiff “audit[ed]
its computers to determine how [d]efendants obtained access to them and whether
they were compromised in any[ ]way” was sufficient to survive summary judgment,
even though record indicated defendants accessed plaintiff’s systems via loophole
without causing damage); Ryanair DAC v. Booking Holdings, Inc., No. 20-1101,

2024 WL 3732498

, at *13 (D. Del. June 17, 2024) (unpublished) (“[T]he term ‘loss’
is best understood to include the cost of an investigation following a CFAA violation,
even in instances in which the violation has not resulted in actual impairment of the
protected computer or loss of data.”).
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         Moxie’s pleadings survive these tests. Its complaint alleges that its

investigation of Aptive’s breach focused on “the identity of and methods used by an

offender and the extent of the offender’s access.” App. vol. 1, 60. That puts its losses

squarely within the definition of “cost[s] of responding to an offense,” and, contrary

to Aptive’s cursory argument, provides sufficient detail to clear the Rule 12(b)(6)

hurdle. § 1030(e)(11). No more is necessary.

II.      Discovery

         Next, Moxie argues that the district court abused its discretion when it

declined to compel production of evidence relevant to damages. See Norton v. City of

Marietta, 

432 F.3d 1145, 1156

 (10th Cir. 2005) (reviewing motion to compel for

abuse of discretion). The discovery requests at issue sought Aptive’s policies,

strategies, communications, and data, including information on “each Aptive sales

representative hired, contracted[,] or retained for any of Aptive’s 2016–2021 summer

sales seasons.” App. vol. 2, 303. We agree that some of that information may have

shed light on Moxie’s damages.

         As Aptive points out, however, the district court did not foreclose further

discovery on these topics. It simply declined to force Aptive to comply with Moxie’s

broad initial discovery requests. Instead, the district court ordered more tailored

disclosures focused on former Moxie representatives recruited to work for Aptive.

And it indicated openness to further applications once those initial disclosures were

complete. Moxie was thus free to renew or revise its requests in the remaining



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months before the close of discovery. Any error in failing to do so cannot be

attributed to the district court.

       Because its ruling did not prevent Moxie from pursuing relevant discovery, the

district court did not abuse its discretion when it compelled production of a narrower

category of information and denied Moxie’s motions to compel. Cf. United States v.

Wright, 

826 F.2d 938, 943

 (10th Cir. 1987) (declining to reverse for abuse of

discretion where appellant showed no prejudice).

III.   Summary Judgment

       Finally, we consider Moxie’s challenge to the district court’s order granting

Aptive summary judgment. “We review a grant of summary judgment de novo,

drawing all reasonable inferences and resolving all factual disputes in favor of the

non[]moving party.” Birch, 

812 F.3d at 1251

 (quoting Yousuf v. Cohlmia, 

741 F.3d 31, 37

 (10th Cir. 2014)). We affirm summary judgment if “there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” 

Id.

 (quoting Fed. R. Civ. P. 56(a)).

       The district court rested its summary-judgment analysis on causation. It

concluded that the material uncontroverted facts failed to show that Aptive’s alleged

trade misappropriation caused the damages Moxie sought. And without a causal link,

the district court concluded Moxie could not prevail on its RICO, DTSA, and UTSA

claims. Moxie contests both the district court’s assessment of the record evidence on

causation and how that assessment impacts the viability of its claims.



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      A.     Evidence of Causation

      Moxie says it provided ample evidence that Aptive’s misconduct caused unjust

enrichment. In particular, it points to undisputed evidence that:

      •      Aptive pursued Moxie’s data in consecutive years;

      •      Aptive used that information in recruitment meetings;

      •      a side-by-side comparison of the two companies’ sales data could
             sway some recruits to sign with Aptive; and

      •      Aptive’s sales force and revenue increased during the espionage.

Moxie acknowledges that the district court considered these facts but protests that the

decision below analyzed them “in isolation” and not “in the light most favorable to

Moxie.” Rep. Br. 3.

      But as Aptive correctly notes, none of this evidence connects any Aptive

revenue to Moxie’s pilfered data. We can’t infer, looking at Aptive’s efforts to secure

Moxie’s data in back-to-back years, that Moxie’s data translated to increased profits.

The same is true of Aptive’s choice to use that data in recruitment. Moxie did not

link Aptive’s use of side-by-side sales comparisons in recruitment meetings to

Aptive’s financial success. Granted, Moxie adduced survey results showing that some

survey-takers would be more interested in a job with a sales company if a recruiter

indicated that the company had a better track record of sales and compensation than a

competitor. But we can’t infer from those generic results that Aptive’s side-by-side-

comparison tactic was determinative for actual recruits, much less that it resulted in

increased revenue. Indeed, the one recruit Moxie points to as the paradigmatic


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example of Aptive’s scheme, Zak Benson, promptly resigned before making any

sales. And Moxie points to no other recruits who chose Aptive over Moxie because

of the sales data. 6

       At best, viewing the record in the light most favorable to Moxie, the evidence

shows that Aptive’s sales force and revenue increased while it was pilfering Moxie’s

data for its recruitment pitches. 7 That’s a simple temporal correlation—one factor

that can support a causal link. But as any statistics student knows, correlation alone

can’t prove causation.

       Without evidence of a causal relationship, Moxie can only “theoriz[e]” that its

sales data—rather than other typical drivers of growth—led to Aptive’s increased

revenue. GeoMetWatch Corp. v. Behunin, 

38 F.4th 1183

, 1204–05 (10th Cir. 2022)

(quoting Heslop v. Bear River Mut. Ins. Co., 

390 P.3d 314, 321

 (Utah 2017)). And

“mere speculation” is not enough to create a genuine issue of material fact. 

Id.

 at

1200–01 (quoting Hasan v. AIG Prop. Cas. Co., 

935 F.3d 1092, 1098

 (10th Cir.

2019)). We thus agree with the district court that Moxie failed to provide evidence of

causation.



       6
         Relatedly, as we discussed, Moxie was free to seek additional discovery on
causation but didn’t.
       7
         In the sales years before (2019), during (2020–2021), and after (2022) this
corporate espionage, Aptive’s revenue did grow. But it increased by less each year,
even as its sales force grew and then shrank. For example, in 2020, Aptive had about
2,600 sales representatives, and its revenue increased about $37 million; in 2021, it
had about 3,300 sales representatives, and its revenue increased about $31 million;
and in 2022, it had fewer sales representatives and a smaller increase in revenue than
in either of the two preceding years.
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       B.     Impact of Lack of Causation Evidence

       That brings us to the question of the viability of Moxie’s RICO, DTSA, and

UTSA claims. Moxie doesn’t dispute that a lack of causation precludes RICO

liability. So we affirm summary judgment in Aptive’s favor on its RICO claims. The

DTSA and UTSA claims are a different story, however. Moxie argues that these

claims survive summary judgment because lack of causation undercuts only its

pursuit of unjust-enrichment damages, not the other relief it sought. Aptive disagrees,

asserting that causation is fundamental to all forms of relief available under both

statutory regimes.

       To untangle this issue, we look to the DTSA and UTSA remedies provisions.

Both statutes permit plaintiffs to seek (1) injunctions “to prevent . . .

misappropriation” and (2) damages “caused by . . . misappropriation.” 

18 U.S.C. § 1836

(b)(3); accord 

Utah Code Ann. §§ 13-24-3

(1), -4(1). Qualifying damages, in

turn, may include “actual loss” and “unjust enrichment.” 

18 U.S.C. § 1836

(b)(3)(B)(i); accord 

Utah Code Ann. § 13-24-4

(1). Or “in lieu of” these more

traditional ways of measuring harm “caused by . . . misappropriation,” plaintiffs can

use “reasonable royalt[ies]” as a proxy. 

18 U.S.C. § 1836

(b)(3)(B)(ii); accord 

Utah Code Ann. § 13-24-4

(1).

       This framework asks courts to consider causation on a remedy-by-remedy

basis. Yes, a plaintiff seeking actual-loss or unjust-enrichment damages must

establish a causal link. But injunctive relief cannot demand the same proof; it focuses

on harms yet to be caused. The same goes for reasonable royalties, which serve as a

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fallback option when other damages are difficult to calculate. See § 1836(b)(3)(B)(ii).

In that situation—say, if a trade secret was disclosed but not used—courts perform a

thought experiment. They imagine “‘the price that would be set by a willing buyer

and a willing seller’ for a license in the trade secret” and award the plaintiff that

amount as reasonable royalties. Storagecraft Tech. Corp. v. Kirby, 

744 F.3d 1183, 1185

 (10th Cir. 2014) (quoting Restatement (Third) of Unfair Competition § 45

cmt. g (A.L.I. 1995)). Because this form of damages is inherently hypothetical, it

does not depend on showing a causal relationship between the misappropriation and

some realized harm. So we reject Aptive’s assertion that either reasonable royalties

or injunctive relief require the same proof of causation as unjust enrichment under

the DTSA and UTSA. Because these remedies don’t turn on causation in the way

unjust enrichment does, Moxie’s failure to prove causation is not fatal to its DTSA

and UTSA claims.

       Not so fast, says Aptive—the DTSA and UTSA claims only survive if Moxie

can pursue those remedies. And according to Aptive, Moxie can’t do so because the

district court excluded Moxie’s reasonable-royalties damages and Moxie cannot show

irreparable harm needed for injunctive relief.

       It’s true that Moxie’s reasonable-royalties theory was the subject of much

debate below. After Moxie noticed a $19 million royalty calculation, Aptive moved

to exclude royalty damages altogether. The district court issued an unclear order

granting in part and denying in part that motion. It purported to explain that “there

are language problems with the use of the term ‘royalty,’” and “in the traditional

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sense, the use of ‘royalty’ in this instance is inappropriate.” Supp. App. vol. 1, 193

(cleaned up). That said, the district court clarified that “nothing says we can’t talk

about licenses or damages or value or running off with something that doesn’t belong

to you.” Id. at 194.

       Aptive construes the district court’s ruling as putting an end to any quest for

royalty damages. But like Moxie, we interpret it to permit such damages under a

different name, “licenses.” Id. That decision, which Aptive does not challenge, also

operated to reject Aptive’s argument that Moxie’s disclosures were inadequate. And

because the district court did not conclude that reasonable royalties were unavailable,

Moxie’s request for them remained live at summary judgment.

       Moxie then vigorously pursued these damages at summary judgment. When

Aptive asserted that the prior ruling took reasonable royalties off the table, Moxie

disputed that interpretation in its briefing and at oral argument. The district court

could have used its summary-judgment order to clarify that its prior ruling barred

Moxie from pursuing reasonable royalties. Yet given a second chance to swat away

this damages theory, the district court said nothing about it. If nothing else, then,

reasonable-royalty damages were available under the UTSA and DTSA, and

summary judgment on those claims was inappropriate.

       Moxie’s injunctive-relief theory survives for similar reasons. The district court

likewise overlooked the availability of an injunction when it granted Aptive summary

judgment. Aptive acknowledges as much when it urges us to reach alternative

arguments for affirmance. But we decline to do so. See Lowe v. Town of Fairland,

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143 F.3d 1378, 1381

 (10th Cir. 1998) (“As a general rule an appellate court does not

consider an issue not passed upon below.”). And to correct this oversight, Moxie’s

DTSA and UTSA claims must return to the district court to consider the company’s

reasonable-royalty and injunctive-relief remedies in the first instance. See United

States v. Suggs, 

998 F.3d 1125, 1141

 (10th Cir. 2021) (noting that “we are ‘a court of

review, not of first view’” (quoting Cutter v. Wilkinson, 

544 U.S. 709

, 718 n.7

(2005))).

                                     Conclusion

      We reverse the dismissal of Moxie’s CFAA claim; affirm the district court’s

discovery order; affirm its summary-judgment decision in favor of Aptive on the

RICO claims; affirm in part and reverse in part the summary-judgment decision on

the DTSA and UTSA claims; and remand for further proceedings consistent with this

opinion.




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