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IN THE CIRCUIT COURT OF THE STATE OF OREGON

FOR THE COUNTY OF MULTNOMAH

NIKE, INC., an Oregon corporation,


No. 14CV18876

Plaintiff,

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vs.

DEFENDANTS ANSWER AND


COUNTERCLAIMS

DENIS DEKOVIC, an individual; MARC


DOLCE, an individual; and MARK MINER,
an individual,

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Defendants.

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For its answer to the Complaint filed by Plaintiff Nike (Nike), Defendants Denis

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Dekovic, Marc Dolce, and Mark Miner (Defendants) admit, deny, and allege as follows:

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I.
Introduction

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1.

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Defendants deny the allegations in paragraph 1. Answering further, Denis Dekovic,

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Marc Dolce, and Mark Miner (collectively the Designers) were three of Nikes top
footwear designers, responsible for some of Nikes most successful footwear launches over
the last several years. The Designers independently decided that the Nike corporate culture
was stifling their creativity. And they, along with many of their design co-workers, were
alarmed about the culture of distrust and intimidation that permeates the relationships
between Nike executives and Nike Design creatives. The Designers decided that they
wanted to leave Nike to create an independent studio, to be hired by companies to provide
artistic direction across product lines. They discussed branching out to many product types,
including furniture, transportation, household items, fashion, apparel and sneakers. Nothing

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about their idea for an independent studio relies on any confidential information of Nikes.

Unlike Nikes design Kitchen, which is steeped in Nike corporate culture and politics, the

Designers design studio concept is focused on interaction with the consuming public,

without a stifling bureaucratic overlay. The Designers are not interested in and will not use

old Nike designs or old Nike ideas in their new venture. To the extent that any of the

Designers have old files or pictures that Nike contends are trade secrets, they do not want to

keep them and have agreed to permanently delete them. None of the Designers has ever

passed any trade secret information to adidas or any other competitor, and they will not ever

do so.

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2.

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Paragraph 2 appears to contain partial quotes taken out of context from a document

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that Nike did not identify or provide to the Designers. The document, if it exists, speaks for

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itself and until the Designers receive a copy of the quoted document, they neither admit nor

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deny this portion of the allegation. To the extent any document was obtained improperly or

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contains privileged communications, the Designers will move to strike. The Designers deny

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the remainder of the allegations in this paragraph. Answering further, and as explained more

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fully in the counterclaims, this lawsuit is based on Nikes breathtaking breach of the

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Designers personal privacy. Although Nike claims to permit non-business use of the

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electronic communications systems, Nike monitored, read, copied and distributed its

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employees personal communications with friends and family. Answering further, the

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Designers popularity on social media is not measured by numbers of followers, but by their

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followers participation and the vibrancy of their community. By that measure, the

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Designers are among the most popular designers on social media. Nike, on the other hand,

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recently had over a quarter-million fake followers removed from its Instagram account.

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http://64px.com/instagram/ When the Designers pitched their design studio idea to adidas,

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the parties found that their ideas were closely aligned, and agreed that the Designers could, if

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they decided to leave Nike, create a design studio within adidas that would free them and

other adidas designers to have influence over brand direction, without strict product-line

responsibility and with the ability to share ideas with consumers.

3.

With respect to paragraph 3, the Designers admit that they signed agreements that

Nike has identified as non-competition agreements with Nike, the terms of which speak for

themselves. Paragraph 3 also appears to contain partial quotes taken out of context from a

document that Nike did not identify or provide to the Designers. The document, if it exists,

speaks for itself and until the Designers receive a copy of the quoted document, the

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Designers neither admit nor deny this portion of the allegation. To the extent any document

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was obtained improperly or contains privileged communications, the Designers will move to

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strike. Except as expressly admitted, the Designers deny the remainder of the allegations in

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this paragraph.

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4.

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Paragraphs 4-5 appear to contain partial quotes taken out of context from a document

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that Nike did not identify or provide to the Designers. The document, if it exists, speaks for

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itself and until the Designers receive a copy of the quoted document, they neither admit nor

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deny this portion of the allegation. To the extent any document was obtained improperly or

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contains privileged communications, the Designers will move to strike. The Designers deny

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the remainder of the allegations in these paragraphs.

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5.

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With respect to paragraph 6, the Designers deny Nikes mischaracterizations of their

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actions. Defendant Dekovic admits that on or about September 16, 2014, while he was still

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employed by Nike, an Apple technician copied data from Dekovics Nike-issued laptop to an

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external hard drive because his laptop had been damaged for approximately two weeks, and

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Nike was unable to fix his laptop despite Dekovics request to Nike for help. Dekovic also

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has since returned his damaged Nike-issued laptop to Nike and has returned an external hard

drive containing Nike information from his damaged Nike-issued laptop to Nike. In

addition, Dekovic admits that he has submitted his other electronic devices to an independent

forensic examiner and intends to return or delete Nike information from those electronic

devices in accordance with the parties agreement.

Defendant Dolce admits that in September 2014, he deleted primarily his

confidential, personal, or financial information and photos from his Nike-issued MacBook

before returning it to Nike. Defendants Dolce and Miner admit that they restored their

iPhones to factory default settings before returning them to Nike. The Designers actions

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were not inconsistent with Nike policy or practice.

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Paragraph 6 also appears to contain a partial quote taken out of context from a

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document that Nike did not identify or provide to the Designers. The document, if it exists,

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speaks for itself and until the Designers receive a copy of the quoted document, they neither

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admit nor deny this portion of the allegation. To the extent any document was obtained

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improperly or contains privileged communications, the Designers will move to strike.

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Except as expressly admitted, the Designers deny the remainder of the allegations in this

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paragraph.

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6.

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With respect to paragraph 7, the Designers admit that they posted a message which

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said GRATEFUL for the past EXCITED for the future 3 brothers 3 dreamers 3 stripes

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#TeamAdidas 2015 with a picture of themselves. The Designers deny Nikes false

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characterization of this quote. Furthermore, Nike has taken another partial quote out of

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context from a document that Nike did not identify or provide to the Designers, so the

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Designers neither admit nor deny that portion of the allegation. To the extent any document

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was obtained improperly or contains privileged communications, the Designers will move to

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strike. Except as expressly admitted, the Designers deny the remainder of the allegations in

this paragraph.

7.

Paragraphs 8-9 appear to contain partial quotes taken out of context from a document

that Nike did not identify or provide to the Designers. The document, if it exists, speaks for

itself and until the Designers receive a copy of the quoted document, the Designers neither

admit nor deny this portion of the allegation. To the extent any document was obtained

improperly or contains privileged communications, the Designers will move to strike. The

Designers deny the remainder of the allegations in these paragraphs.

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8.

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Defendants deny the allegations in paragraphs 10 and 11.

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II.
Jurisdiction and Venue

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9.

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Paragraphs 12-13 contain legal conclusions to which no responsive pleading is

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required.

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III.
Parties

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10.

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Defendants admit paragraph 14.

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11.

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Defendant Dekovic denies paragraph 15.

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12.

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Defendant Dolce denies paragraph 16.

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13.

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Defendant Miner denies paragraph 17.

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DEFENDANTS ANSWER AND COUNTERCLAIMS

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IV.
Factual Background

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14.

Defendants lack sufficient knowledge or information to form a belief as to the

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allegations in paragraph 18-22, and therefore deny the same.


15.

Defendant Dekovic admits that he worked as a Senior Designer and as a Design

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Director and Senior Design Director for Nikes Global Football. Defendant Dekovic admits
that he had design and leadership responsibilities at Nike. Except as expressly admitted, the
Designers deny the remainder of the allegations in paragraph 23.
16.

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Defendant Dolce admits that he worked as a Senior Designer in Nikes Active Life

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Division, as Design Director of Nike Sportwear, as Design Collections Lead for Nike
Sportswear, and as a lead product designer. Defendant Dolce admits that he had design and
leadership responsibilities at Nike. Except as expressly admitted, the Designers deny the
remainder of the allegations in paragraph 24.
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Defendant Miner admits that he worked as a footwear designer in Nikes Global

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Womens Training and as a Senior Footwear Designer of Nike Running. Miner admits that
he had design responsibilities at Nike. Except as expressly admitted, the Designers deny the
remainder of the allegations in paragraph 25.
18.

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Defendants deny the allegations in paragraphs 26 and 27.

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19.

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With respect to paragraphs 28-30, the Designers admit that they entered into non-

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competition agreements with Nike, the terms of which speak for themselves. To the extent

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that paragraphs 28-30 require a responsive pleading, the Designers deny the allegations in

those paragraphs.

20.

With respect to paragraph 31, the Designers admit that they entered into an employee

invention and secrecy agreement with Nike, the terms of which speak for themselves. To the

extent that paragraph 31 requires a responsive pleading, the Designers deny the allegations in

that paragraph.

21.

Defendants deny the allegations in paragraphs 32-33.

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22.

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Paragraph 34 appears to refer to a statement taken out of context from a document

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that Nike did not identify or provide to the Designers. Until the Designers receive a copy of

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the document, the Designers neither admit nor deny this portion of the allegation. To the

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extent any document was obtained improperly or contains privileged communications, the

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Designers will move to strike. Defendants deny the remainder of the allegations in this

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paragraph.

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23.

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Paragraph 35 appears to contain partial quotes taken out of context from a document

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that Nike did not identify or provide to the Designers. The document, if it exists, speaks for

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itself and until the Designers receive a copy of the quoted document, the Designers neither

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admit nor deny this portion of the allegation. To the extent any document was obtained

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improperly or contains privileged communications, the Designers will move to strike.

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Defendants deny the remainder of the allegations in this paragraph.

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DEFENDANTS ANSWER AND COUNTERCLAIMS

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24.

Defendants deny the allegations in paragraphs 36-38.

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Paragraph 39 appears to contain partial quotes taken out of context from a document

that Nike did not identify or provide to the Designers. The document, if it exists, speaks for

itself and until the Designers receive a copy of the quoted document, the Designers neither

admit nor deny this portion of the allegation. To the extent any document was obtained

improperly or contains privileged communications, the Designers will move to strike.

Defendants deny the remainder of the allegations in this paragraph.

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Defendants deny the allegations in paragraph 40.

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26.

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Paragraphs 41-45 appear to contain partial quotes taken out of context from a

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document that Nike did not identify or provide to the Designers. The document, if it exists,

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speaks for itself and until the Designers receive a copy of the quoted document, the

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Designers neither admit nor deny this portion of the allegation. To the extent any document

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was obtained improperly or contains privileged communications, the Designers will move to

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strike. Defendants deny the remainder of the allegations in these paragraphs.

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27.

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Defendants deny the allegations in paragraph 46.

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28.

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Paragraphs 47-51 appear to contain partial quotes taken out of context from a

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document that Nike did not identify or provide to the Designers. The document, if it exists,

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speaks for itself and until the Designers receive a copy of the quoted document, the

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Designers neither admit nor deny this portion of the allegation. To the extent any document

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was obtained improperly or contains privileged communications, the Designers will move to

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strike. With respect to paragraph 49, defendant Dekovic admits that he met with his friend

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Brian Foresta many times over many years, including in June 2014. Except as expressly

admitted, the Designers deny the remainder of the allegations in these paragraphs.

29.

With respect to paragraph 52, the Designers admit that they consulted with legal

counsel. Defendants neither admit nor deny portions of the allegations protected by the

attorney-client privilege, specifically any information exchanged between the Designers and

legal counsel or between the Designers regarding the legal advice of counsel. Furthermore,

paragraph 52 appears to contain partial quotes taken out of context from a document that

Nike did not identify or provide to the Designers. The document, if it exists, speaks for itself

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and until the Designers receive a copy of the quoted document, the Designers neither admit

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nor deny this portion of the allegation. To the extent any document was obtained improperly

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or contains privileged communications, the Designers will move to strike. Defendants deny

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the remainder of the allegations in this paragraph.

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30.

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Paragraphs 53-55 appear to contain partial quotes taken out of context from a

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document that Nike did not identify or provide to the Designers. The document, if it exists,

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speaks for itself and until the Designers receive a copy of the quoted document, the

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Designers neither admit nor deny this portion of the allegation. To the extent any document

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was obtained improperly or contains privileged communications, the Designers will move to

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strike. Defendants admit that they met with Brian Foresta, Eric Liedtke, and Paul Gaudio.

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Except as expressly admitted, the Designers deny the remainder of the allegations in these

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paragraphs.

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31.

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Defendants deny the allegations in paragraph 56.

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32.

Paragraph 57 appears to contain partial quotes taken out of context from a document

that Nike did not identify or provide to the Designers. The document, if it exists, speaks for

itself and until the Designers receive a copy of the quoted document, the Designers neither

admit nor deny this portion of the allegation. To the extent any document was obtained

improperly or contains privileged communications, the Designers will move to strike.

Defendants deny the remainder of the allegations in this paragraph.

33.

Defendants deny the allegations in paragraph 58.

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34.

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Paragraph 59 appears to contain a partial quote taken out of context from a document

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that Nike did not identify or provide to the Designers. The document, if it exists, speaks for

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itself and until the Designers receive a copy of the quoted document, the Designers neither

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admit nor deny this portion of the allegation. To the extent any document was obtained

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improperly or contains privileged communications, the Designers will move to strike.

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Defendants deny the remainder of the allegations in this paragraph.

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35.

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Defendants deny the allegations in paragraph 60.

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36.

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Paragraphs 61-63 appear to contain partial quotes taken out of context from a

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document that Nike did not identify or provide to the Designers. The document, if it exists,

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speaks for itself and until the Designers receive a copy of the quoted document, the

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Designers neither admit nor deny this portion of the allegation. To the extent any document

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was obtained improperly or contains privileged communications, the Designers will move to

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strike. Defendants deny the remainder of the allegations in these paragraphs.

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37.

The allegations in paragraphs 64-65 contain some half-truths and distortions.

Defendant Dekovic admits that his Nike laptop was damage and that Nike was unwilling to

assist him to repair it or restore or retrieve the data. Dekovic further admits that a purported

copy was made, but denies the balance of paragraphs 64-65.

38.

Defendants deny the allegations in paragraphs 66-67.

39.

Paragraph 68 appears to contain partial quotes taken out of context from a document

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that Nike did not identify or provide to the Designers. The document, if it exists, speaks for

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itself and until the Designers receive a copy of the quoted document, the Designers neither

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admit nor deny this portion of the allegation. To the extent any document was obtained

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improperly or contains privileged communications, the Designers will move to strike.

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Defendants deny the remainder of the allegations in this paragraph.

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40.

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Defendants deny the allegations in paragraphs 69-70.

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41.

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Paragraphs 71-74 appear to contain partial quotes taken out of context from a

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document that Nike did not identify or provide to the Designers. The document, if it exists,

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speaks for itself and until the Designers receive a copy of the quoted document, the

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Designers neither admit nor deny this portion of the allegation. To the extent any document

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was obtained improperly or contains privileged communications, the Designers will move to

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strike. Defendants deny the remainder of the allegations in these paragraphs.

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42.

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With respect to paragraph 75, Defendants admit that they have posted a message
which said GRATEFUL for the past EXCITED for the future 3 brothers 3 dreamers 3

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stripes #TeamAdidas 2015 with a picture of themselves. Defendants deny the remainder of

the allegations in paragraph 75.

43.

Defendants deny the allegations in paragraphs 76-77.

44.

Paragraphs 78-79 appear to contain partial quotes taken out of context from a

document that Nike did not identify or provide to the Designers. The document, if it exists,

speaks for itself and until the Designers receive a copy of the quoted document, the

Designers neither admit nor deny this portion of the allegation. To the extent any document

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was obtained improperly or contains privileged communications, the Designers will move to

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strike. Defendants deny the remainder of the allegations in these paragraphs.

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45.

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Defendants deny the allegations in paragraph 80.

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46.

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Paragraphs 81-83 appear to contain partial quotes taken out of context from a

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document that Nike did not identify or provide to the Designers. The document, if it exists,

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speaks for itself and until the Designers receive a copy of the quoted document, the

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Designers neither admit nor deny this portion of the allegation. To the extent any document

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was obtained improperly or contains privileged communications, the Designers will move to

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strike. Defendants deny the remainder of the allegations in these paragraphs.

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47.

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Defendants deny the allegations in paragraph 84.

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CLAIMS FOR RELIEF

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FIRST CLAIM FOR RELIEF

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48.

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Defendants incorporate their answers to paragraphs 1 through 84.

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49.

With respect to paragraphs 86-117, the Designers admit that they signed

noncompetition agreements and employee invention and secrecy agreements with Nike, the

terms of which speak for themselves. Defendants also admit that Nike has paid them each 50

percent of their Nike salaries during the applicable non-compete period. Defendants deny

the remaining allegations in paragraphs 86-117.

SECOND CLAIM FOR RELIEF

50.

Defendants incorporate their answers to paragraphs 1 through 117.

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51.

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With respect to paragraph 119, the Designers admit that they signed noncompetition

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agreements and employee invention and secrecy agreements with Nike, the terms of which

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speak for themselves. To the extent this paragraph states a legal conclusion, no response is

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necessary. To the extent a response is necessary, the Designers deny the allegations in

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paragraph 119.

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52.

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Defendants deny the allegations in paragraphs 120-124.

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THIRD CLAIM FOR RELIEF

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53.

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Defendants incorporate their answers to paragraphs 1 through 124.

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54.

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To the extent that paragraph 126 states a legal conclusion, no response is necessary.

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To the extent a response is necessary, the Designers deny the allegations in paragraph 126.

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55.

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Defendants deny the allegations in paragraphs 127-131.


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FOURTH CLAIM FOR RELIEF

56.

Defendants incorporate their answers to paragraphs 1 through 131.

57.

To the extent that paragraphs 133 - 135 state legal conclusions, no response is

necessary. To the extent a response is necessary, the Designers deny the allegations in

paragraphs 133-135.

58.

Defendants deny the allegations in paragraphs 136-139.

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FIFTH CLAIM FOR RELIEF

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59.

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Defendants incorporate their answers to paragraphs 1 through 139.

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60.

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To the extent that paragraph 141 states a legal conclusion, no response is necessary.

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To the extent a response is necessary, the Designers deny the allegations in paragraph 141.

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61.

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Defendants deny the allegations in paragraphs 142-145.

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SIXTH CLAIM FOR RELIEF

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62.

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Defendant Dekovic incorporates his answers to paragraphs 1 through 145.

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63.

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Defendant Dekovic denies the allegations in paragraphs 147-150.

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SEVENTH CLAIM FOR RELIEF

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64.

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Defendants incorporate their answers to paragraphs 1 through 150.


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65.

To the extent that paragraph 150 states a legal conclusion, no response is necessary.

To the extent a response is necessary, the Designers deny the allegations in paragraph 150.

66.

Defendants deny the allegations in paragraphs 153-161.

EIGHTH CLAIM FOR RELIEF

67.

Defendants incorporate their answers to paragraphs 1 through 161.

68.

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Defendants deny the allegations in paragraphs 166-166.

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69.

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With respect to paragraph 167, the Designers deny that its claims meet the standards
required to plead punitive damages.

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70.

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Defendants deny each and every allegation in the Complaint except as specifically
alleged above.

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I.
Defenses

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By way of defense or avoidance, and as a precautionary matter and without assuming

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the burden or pleading or proof, which burden Defendants assert is on the Plaintiff,
Defendants allege as follows:
FIRST DEFENSE

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(Failure to State a Claim)

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71.

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As a separate and independent affirmative defense, Defendants allege that the

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Complaint and each and every cause of action within it fails to state ultimate facts sufficient

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to constitute a claim upon which relief may be granted.

SECOND DEFENSE

(Preemption by the Oregon Trade Secrets Act)

72.

As a separate and independent affirmative defense, Defendants allege that Plaintiffs

seventh claim for relief is preempted by the Oregon Trade Secrets Act, ORS 646.461-

646.475.

THIRD DEFENSE

(Contractual Invalidity)

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73.

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As a separate and independent affirmative defense, Defendants allege that each

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Covenant Not to Compete and Non-Disclosure Agreement and each Employee Invention and

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Secrecy Agreement relied on by Plaintiff constitutes an invalid and improper restraint on

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trade at common law and pursuant to ORS 653.295.

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FOURTH DEFENSE

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(Estoppel/Waiver/Permission/Ratification)

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74.

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Any alleged wrongful conduct by the Designers, if true, was legally permitted on the
grounds of estoppel, waiver, permission and/or ratification. In particular, Plaintiff:

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A.

contribution to the outside Moonwalker project;

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Knew, approved, did not object, and/or encouraged Defendant Dekovics

B.

Encouraged and/or directed Defendants to broadly publish their drawings and

designs;

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C.

Engaged in a pattern of aggressive recruitment of designers from competitors,

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encouraging and establishing a culture of disloyalty and mobility in the design community,

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including requiring Defendants to participate;

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DEFENDANTS ANSWER AND COUNTERCLAIMS

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D.

Failed to enforce, as it now seeks to enforce against Defendants, terms of its

noncompetition and confidentiality agreements against other departed or departing

employees;

E.

Failed to provide support and assistance to Defendants to identify and remove

from Defendants electronic devices that which plaintiff now claims to be protected

proprietary information and/or trade secrets; and

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F.

Released or leaked to the public information it now contends Defendants

unlawfully possess.

FIFTH DEFENSE

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(Unclean Hands / In Pari Delicto)

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75.

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Plaintiffs claims are barred in whole or in party by the doctrines of unclean hands

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and in pari delicto. In particular, and as alleged herein on information and belief, Plaintiffs

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claims rely on records it obtained unlawfully, and it cannot therefore obtain the equitable or

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legal relief it seeks.

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I.
Counterclaims

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FIRST COUNTERCLAIM

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(Violation of Stored Communications Act)

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76.

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The Stored Communications Act, 18 U.S.C. 2701, imposes liability upon any

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person who intentionally accesses without authorization a facility through which an


electronic communication service is provided; or intentionally exceeds an authorization to
access that facility; and there by obtains, alters, or prevents authorized access to a wire or
electronic communication while it is in electronic storage in such system. 18 U.S.C.
2701(a). 18 U.S.C. 2707 authorizes civil actions for violations of the Act.

17 -

DEFENDANTS ANSWER AND COUNTERCLAIMS

MARKOWITZ HERBOLD PC
SUITE 3000 PACWEST CENTER
1211 SW FIFTH AVENUE
PORTLAND, OREGON 97204-3730
(503) 295-3085
Fax: (503) 323-9105

77.

On information and belief, Plaintiff intentionally accessed one or more facilities,

through which an electronic communication service is provided in its efforts to obtain private

information formerly stored on Defendants laptops and smart phones. These facilities

include, but are not limited to, the facilities, servers, and networks used by iCloud,

WhatsApp, Twitter, Facebook, and Gmail.

78.

8
9
10

In doing so, Plaintiff obtained certain of Defendants electronic communications,


including but not limited to the numerous personal communications quoted and attached to
Plaintiffs complaint and motion for temporary restraining order.

11

79.

12
13

Plaintiffs access was obtained without Defendants authorization and in excess of the
scope of any authorization associated with Defendants employment by Plaintiff.

14

80.

15

As a direct and proximate result of Plaintiffs breach, the full extent of which is still

16

unknown, Defendants have suffered actual damages in an amount to be proven at trial, but

17

not less than the sum of $1,000, as provided by statute. 18 U.S.C. 2707.

18

81.

19

Plaintiffs manifestly unauthorized access involved substantial expense, time, and

20

diligence and was willful and intentional. Accordingly, Defendants are entitled to punitive

21

damages and intend to move pursuant to ORS 31.725 and 18 U.S.C. 2707(c) to add a claim

22

for punitive damages against Plaintiff for its willful and intentional violation of the Stored

23

Communications Act.

24

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25

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18 -

DEFENDANTS ANSWER AND COUNTERCLAIMS

MARKOWITZ HERBOLD PC
SUITE 3000 PACWEST CENTER
1211 SW FIFTH AVENUE
PORTLAND, OREGON 97204-3730
(503) 295-3085
Fax: (503) 323-9105

SECOND COUNTERCLAIM

(Violation of Social Media Privacy Act, ORS 659A.330)

82.

Oregon law makes it an unlawful employment practice for an employer to [r]equire

or request an employee * * * to disclose or to provide access through the employees * * *

user name and password, password or other means of authentication that provides access to a

personal social media account. ORS 659A.330(1)(a). An employer is not liable for access

to social media accounts received inadvertently, but the employer may not use the

information to access the personal social media account[s] of the employee.

10

ORS 659A.330(6).

11

83.

12

Plaintiffs Electronic Communications Policy, as quoted at footnote 2 of the

13

complaint, unlawfully requires employees to grant Plaintiff access to their social media

14

accounts, by reserving to Plaintiff the right to access the electronic communication systems

15

and monitor data and messages within them, and to read, reject or remove any message,

16

including attachments, composed, sent or received, at any time for any reason.

17

84.

18

The foregoing, if construed as pleaded by Plaintiff, would improperly permit Plaintiff

19

to access personal email and social media accounts, all of which satisfy the statutory

20

definition of social media account found at ORS 659A.330(7).

21

85.

22

On information and belief, Plaintiff accessed Defendants social media accounts by

23

using the account authentication data stored and/or programmed on Defendants electronic

24

devices, in spite of reasonable measures taken by Defendants to protect said personal social

25

media account data.

26

Page

19 -

DEFENDANTS ANSWER AND COUNTERCLAIMS

MARKOWITZ HERBOLD PC
SUITE 3000 PACWEST CENTER
1211 SW FIFTH AVENUE
PORTLAND, OREGON 97204-3730
(503) 295-3085
Fax: (503) 323-9105

86.

To the extent Plaintiff purports to have accessed the accounts by inadvertence, rather

than by compulsion, Plaintiff nevertheless violated its statutory obligation not to use the

personal social media account data accessed through Defendants devices by repeatedly

employing that material to support the allegations contained in Plaintiffs complaint.

87.

As a direct and proximate result of Plaintiffs compulsory, improper, and

unauthorized access to Defendants social media accounts, the full extent of which remains

undiscovered, Defendants have suffered damages in an amount to be proven at trial.

10

THIRD COUNTERCLAIM

11

(Invasion of Privacy - Intrusion upon Seclusion)

12

88.

13

Defendants social media accounts, including email applications, networking

14

platforms, and messaging applications, pertained to Defendants private affairs and concerns.

15

89.

16
17

Defendants protected their social media accounts with passwords and authentication
methods sufficient to establish a reasonable expectation of privacy in those accounts.

18

90.

19

By obtaining unauthorized and wide-ranging access to these accounts, Plaintiff

20

intentionally intruded upon Defendants private affairs.

21

91.

22

Plaintiffs intrusion would be highly offensive to a reasonable person.

23

92.

24

As a direct and proximate result of Plaintiffs intrusion upon Defendants private

25

affairs, Defendants have suffered offense and anguish, resulting in damages in an amount to

26

be proven at trial.

Page

20 -

DEFENDANTS ANSWER AND COUNTERCLAIMS

MARKOWITZ HERBOLD PC
SUITE 3000 PACWEST CENTER
1211 SW FIFTH AVENUE
PORTLAND, OREGON 97204-3730
(503) 295-3085
Fax: (503) 323-9105

FOURTH COUNTERCLAIM

(Bad Faith/Attorneys Fees, ORS 646.467(1) & ORS 20.105.)

93.

4
Plaintiffs trade secrets claims are meritless and have been made entirely without any

5
6
7
8
9

basis in fact or law. Plaintiff knows, or should reasonably know, that the Defendants have
not disclosed and do not intend to disclose or misappropriate any of Plaintiffs trade secrets.
The Complaint fails to allege a single instance of disclosure or misappropriation of a
protected trade secret or any expression of intent to do so.
94.

10

Plaintiffs trade secret claims also have an improper purpose. The Complaint was

11
12
13
14

filed as part of a publicity stunt, the purpose of which was to disrupt Defendants and their
future employer and to chill other Nike employees from considering leaving Nike, lest they
too be sued.
95.

15

Due to Plaintiffs bad faith in filing and maintaining trade secrets claims, Defendants

16
17
18

are entitled to reasonable attorney fees pursuant to either or both ORS 646.467(1) and ORS
20.105.
FIFTH COUNTERCLAIM

19
(Declaratory Relief ORS 28.020-28.030; ORS 28.080; ORS 653.295)

20

96.

21

Nikes Covenant Not to Compete agreements with the Designers are unenforceable

22
23

because they are overreaching and do not protect any legitimate interest of Nike.
97.

24

The Designers noncompetition agreements include Competition Restriction

25
26

Page

clauses which state: During EMPLOYEEs employment by NIKE, under the terms of any

21 -

DEFENDANTS ANSWER AND COUNTERCLAIMS

MARKOWITZ HERBOLD PC
SUITE 3000 PACWEST CENTER
1211 SW FIFTH AVENUE
PORTLAND, OREGON 97204-3730
(503) 295-3085
Fax: (503) 323-9105

employment contract or otherwise, and for 1 year thereafter, (the Restriction Period),

EMPLOYEE will not directly or indirectly, own, manage, control, or participate in the

ownership, management or control of, or be employed by, consult for, or be connected in any

manner with, any business engaged anywhere in the world in the athletic footwear, athletic

apparel or sports equipment, sport electronics/technology and sports accessories business, or

any other business which directly competes with NIKE * * * .

98.

8
9

The Designers signed additional employee invention and secrecy agreements, and
their noncompetition agreements contained clauses including Return of Protected

10

Information, Unauthorized Use, and Non-Solicitation/Non-Recruitment. These other

11

provisions provide more than adequate protection of any legitimate interests. The

12

Competition Restriction clauses in the noncompetition agreements serve no purpose, save

13

for unlawfully stifling fair competition and crippling the Designers ability to obtain

14

employment elsewhere.

15

99.

16
17

Neither thwarting competition nor hamstringing a former employees ability to work


or seek new employment is a legitimate interest of an employer.

18

100.

19

Nikes assertion that Competition Restriction clauses protect against the

20

misappropriation of trade secrets is not a legitimate interest or concern here. Design skills,

21

concepts, visions, and creative ability are not trade secrets. The more technical

22

confidential information alleged as trade secrets is actually already prevalent in the industry,

23

so it is not a trade secret and replication by a competitor would be unnecessary. Furthermore,

24

in the Designers industry, competitors do not benefit from the use of anothers alleged

25

trade secrets. The use of a competitors trade secrets in this industry would be the

26

antithesis of a designers creative mission to develop new, fresh, innovative concepts. The

Page

22 -

DEFENDANTS ANSWER AND COUNTERCLAIMS

MARKOWITZ HERBOLD PC
SUITE 3000 PACWEST CENTER
1211 SW FIFTH AVENUE
PORTLAND, OREGON 97204-3730
(503) 295-3085
Fax: (503) 323-9105

Designers and adidas would not benefit from copying Nikes product lines, product launches,

or related information. Nike cannot allege or prove that the Designers inevitably used or will

use Nikes trade secrets in their work.

101.

The overbroad scope and vagueness render the Competition Restriction clauses

unenforceable. In particular, the Competition Restriction clauses state that former

employees cannot be connected in any manner with, any business engaged anywhere in the

world in the athletic footwear, athletic apparel or sports equipment, sport

electronics/technology and sports accessories business. This provision far exceeds any

10

legitimate restrictive covenant permissible in Oregon and if enforced literally would produce

11

oppressive results, including making it virtually impossible for a Nike employee to seek

12

future employment with a competitor. This violates both the public interest and specifically

13

the Designers interest in earning a living.

14

102.

15

The practical effect of this clause is to handcuff employees to Nike, preventing them

16

from working in the athletic industry. Nike is seeking to apply it to the Designers to punish

17

them for seeking future employment from adidas, even beyond the noncompetition period.

18

103.

19

The Extension of Time clauses in the Covenants Not to Compete are also

20

unreasonable, void, and unenforceable. Extension of time restrictions in noncompetition

21

agreements are not authorized by Oregon law. And, any alleged trade secrets which Nike

22

claims the Designers maintain in their possession have short shelf life. These alleged trade

23

secrets will soon be disclosed or already have been disclosed by Nike. In the fast-moving,

24

trendy world of design, the information will be stale and outdated in a year; thus, a time

25

extension is not warranted.

26

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Page

23 -

DEFENDANTS ANSWER AND COUNTERCLAIMS

MARKOWITZ HERBOLD PC
SUITE 3000 PACWEST CENTER
1211 SW FIFTH AVENUE
PORTLAND, OREGON 97204-3730
(503) 295-3085
Fax: (503) 323-9105

104.

Pursuant to ORS 28.020-28.030; ORS 28.080; and ORS 653.295, the Designers

hereby seek a declaration from this Court that their Covenants Not to Compete are invalid

and unenforceable. The Court should deem void unreasonable agreements such as these

because it discourages employers like Nike from drafting overreaching noncompetition

agreements and then later relying on a court to strike the most offensive provisions.

105.

8
9

In the alternative, the Designers request that the Court modify the Covenants Not to
Compete to strike the Competition Restriction and Extension of Time provisions.

10

106.

11

Defendant Miners noncompetition agreement should be deemed void under ORS

12

653.295 because his promotion to Senior Footwear Designer did not constitute bona fide

13

advancement.

14

107.

15

There is a justiciable controversy between the parties that would result in specific

16

relief to the Designers through the binding decree of court granting the above requested

17

declaratory relief.

18

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24 -

DEFENDANTS ANSWER AND COUNTERCLAIMS

MARKOWITZ HERBOLD PC
SUITE 3000 PACWEST CENTER
1211 SW FIFTH AVENUE
PORTLAND, OREGON 97204-3730
(503) 295-3085
Fax: (503) 323-9105

WHEREFORE, Defendants pray that the Court enter judgment in their favor, award
2

Plaintiff nothing, and award Defendants their damages, attorney fees and costs of suit.

DATED this 17th day of March, 2015.

:ARK}WITZH

5
6

Mat ew A. Levin, OSB No. 003054


MattLevin@ MarkowitzHerbold.com
Jeffrey M . Edelson, OSB No. 880407
JeffEdelson@ MarkowitzBerbold.com
Steffan Alexander, OSB No. 130258
SteffanAlexander@ MarkowitzHerbold.com
Anna H. Makowski , OSB No. 135530
AnnaMakowski@ MarkowitzHerbold.com

7
8
9

10
11
12

426908

Of Attorneys for Defendants Denis Dekovic,


Marc Dolce, and Mark Miner

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23
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Page

25 -

DEFENDANTS' ANSWER AND COUNTERCLAIMS

MARKOWITZ HERBOLD

PC

SUITE 3000 PACWEST CENTER


1211 SW FIFTH AVENU E
PORTLA ND , OREG ON 97204-3730
(503) 295-3085
Fax: (50 3) 323-91OS

ATTORNEY CERTIFICATE OF SERVICE


I hereby certify that on March 17, 2015 , I have made service ofthe foregoing
DEFENDANTS' ANSWER AND COUNTERCLAIMS on the party listed below in the
manner indicated
~ U.S. Mail
Facsimile
Hand Delivery
~ Email
ajpedersen@stoel .com;
laura.rosenbaum@stoel.com;
ryan.gibson@stoel.com

Amy Joseph Pedersen, OSB No. 853958


Laura E. Rosenbaum, OSB No. 110061
RyanS . Gibson, OSB No. 073873
Stoel Rives LLP
900 SW Fifth A venue, Suite 2600
Portland, OR 97204

~U.S. Mail

Sean S. Twomey, Pro Hac Vice


Jeffrey H. Reeves, Pro Hac Vice
Jeffrey T. Thomas, Pro Hac Vice
Gibson, Dunn & Crutcher LLP
3161 Michelson Drive
Irvine, CA 92612-4412

Facsimile
Hand Delivery
[g) Email
stwomey@gibsondunn.com
jreeves@gibsondunn.com
jtthomas@gibsondunn.com

Attorneys for Plaintiff

DATED this 17th day of March, 2015 .

Matt ew A. evin, OSB No . 003054


Attorney for Defendants

CERTIFICATE OF SERVICE

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