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       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

ROBERT S. MOORE,                            )
                                            )       No. 66279-1-I
                      Appellant,            )
                                            )       DIVISION ONE
              v.                            )
                                            ) 
COMMERCIAL AIRCRAFT                         )
INTERIORS, LLC, and JERRY WELCH, )
INDIVIDUALLY AND AS PRESIDENT               )       PUBLISHED OPINION 
AND CHIEF EXECUTIVE OFFICER OF )
COMMERCIAL AIRCRAFT                         )       FILED:  May 29, 2012
INTERIORS, LLC,                             )
                                            )
                      Respondents.          )
________________________________)

       Becker, J.  --  Robert Moore appeals a grant of summary judgment in favor 

of his former employer, Commercial Aircraft Interiors LLC, and its owner, Jerry 

Welch.  Moore claimed they tortiously interfered with his expectation of 

employment and blacklisted him.  We affirm the order of dismissal.

                                        FACTS

       Jerry Welch founded International Aero Interiors LLC (IAI), located in 

Skagit County.  In 2003, Welch left IAI to form Commercial Aircraft Interiors LLC 

(CAI), also in Skagit County.  Appellant Robert Moore worked under Welch at IAI 

as vice president of sales and marketing.  In March 2004, Welch hired Moore to  

No. 66279-1-I/2

serve in the same role at CAI.  IAI is now known as Volant Aerospace Holdings 

LLC.  CAI and Volant are competitors in the aircraft interior refurbishment 

business.  

       In February 2005, CAI required Moore to sign a document acknowledging 

that he understood and agreed to abide by CAI's "policy of non-disclosure of any 

and all company policies, trade secrets, intellectual properties, and customer 

contacts to outside entities or persons." Moore was asked to sign a second 

nondisclosure agreement in August 2008.  Moore resigned from his position at 

CAI later in August or September 2008.

       In October 2008, Volant expressed interest in purchasing CAI.  Volant 

and CAI hired Moore to serve as an independent consultant to assist them in 

negotiating the acquisition.  Moore signed consulting contracts with both 

companies that prohibited him from divulging the companies' trade secrets, 

financial data, and other know-how to third parties.  

       The negotiation was unsuccessful.  In March 2009, Moore was rehired by 

CAI in his former role as vice president of sales and marketing.  Several months 

later, in August 2009, Moore was laid off in a general reduction of force.  

       Moore was not asked to sign a noncompete covenant or other 

postemployment restraint at any of the times he entered or left CAI's 

employment.  CAI explained in interrogatory answers that it did not seek such a 

covenant because "Moore had worked for CAI and with Jerry Welch for many 

years so a level of trust had been developed."

       After being laid off by CAI, Moore     2 

No. 66279-1-I/3

looked to Volant for employment.  Volant agreed to hire Moore.  Before finalizing 

the hire, however, Volant president Ian Rollo sent a letter to Welch.  Rollo 

related Volant's interest in hiring Moore and asked Welch to agree that CAI had 

no objection to Moore working for Volant.  Rollo's letter stated:

       Mr. Moore has requested that Volant extend an offer of 
       employment to him and Volant has agreed to do so, but only if said 
       offer of employment does not violate any non-compete or other 
       restrictive covenants existing between Mr. Moore and CAI.
              . . . I am requesting that you acknowledge and agree on 
       behalf of CAI that Volant's offer of employment to Mr. Moore is not 
       objectionable to CAI and will not violate any agreement to which 
       Mr. Moore may be a party in favor of CAI.  

       Through counsel, CAI objected.  CAI's letter explained that Volant's plan 

to employ Moore would necessarily result in Moore's disclosure of CAI's trade 

secrets and other confidential information to Volant:

              As you are aware, Mr. Moore has a long employment 
       relationship with CAI and is intimately familiar with all aspects of 
       the business of CAI, including its confidential information, 
       practices, finances, employees, customers, and trade secrets.  Mr. 
       Moore's consulting agreement with CAI . . . acknowledges that all 
       trade secrets and know-how of the Parties are confidential and the 
       sole Property of the Parties.   
              Employment of Mr. Moore by Volant in any capacity; as 
       consultant, employee, independent contractor or otherwise would 
       necessarily result in his breach of his common law duty not to 
       violate his position of trust and confidence with CAl inasmuch as 
       the companies are competitors and Mr. Moore could not avoid the 
       use of or disregard the infinite knowledge he possesses of CAl 
       confidential information and trade secrets.  Such employment 
       would constitute actionable unfair competition by Volant.  If Mr. 
       Moore is employed by Volant, CAl will institute legal action to 
       protect its confidential information and trade secrets and to prohibit 
       the unfair competition by Volant that would result from such 
       employment.

       Moore responded through counsel
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No. 66279-1-I/4

to CAI's letter.  Moore asserted that CAI held no covenant restricting Moore's 

ability to work for competitors, and moreover, CAI possessed no confidential 

information or trade secrets that it had not already shared with Volant by means 

of the recent negotiation and due diligence process.

       After receiving CAI's letter, Volant did not hire Moore.  In January 2010,

Volant wrote to Moore and expressed its continued interest in hiring him, subject 

to "CAI releasing both you and Volant of any potential liability related [to] your 

hiring."  

       On March 2, 2010, Moore sued CAI and Welch (collectively CAI) claiming 

that they had unlawfully interfered with his prospects of employment with Volant 

and had also violated RCW 49.44.010, a statute that imposes criminal penalties 

for "wilfully and maliciously" blacklisting a worker.  In answer, CAI joined Volant 

as a third party defendant and asserted counterclaims against Moore and 

Volant, including breach of contract, misappropriation of trade secrets, 

conversion, and negligent misrepresentation.

       CAI and Moore filed cross motions for summary judgment.  The court 

granted CAI's motion and dismissed Moore's suit.  The court found Moore had 

produced no evidence that CAI acted in bad faith or with malice, while CAI had 

produced evidence to show its letter was an assertion of "a legally protected 

interest in maintaining its trade secrets from disclosure."  This appeal followed.

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No. 66279-1-I/5

                            TORTIOUS INTERFERENCE

       This court reviews summary judgment orders de novo, engaging in the 

same inquiry as the trial court.  Cornish Coll. of the Arts v. 1000 Virginia Ltd. 

P'ship, 158 Wn. App. 203, 216, 242 P.3d 1 (2010), review denied, 171 Wn.2d 

1014 (2011).  Summary judgment is appropriate where there is no genuine issue 

of material fact and the moving party is entitled to judgment as a matter of law.  

CR 56(c).  If the plaintiff fails to make out a prima facie case on the essential 

elements of his claim, summary judgment for the defendant is appropriate 

because a complete failure of proof concerning an essential element of the 

nonmoving party's case necessarily renders all other facts immaterial.  Boguch 

v. Landover Corp., 153 Wn. App. 595, 609, 224 P.3d 795 (2009).  We construe 

the evidence and inferences from the evidence in favor of the nonmoving party.  

Cornish Coll., 158 Wn. App. at 216.  

Plaintiff's Case

       To prevail on a claim of tortious interference with a business expectancy, 

a plaintiff must prove five elements: 

       (1) the existence of a valid contractual relationship or business 
       expectancy; (2) that defendants had knowledge of that relationship; 
       (3) an intentional interference inducing or causing a breach or 
       termination of the relationship or expectancy; (4) that defendants 
       interfered for an improper purpose or used improper means; and 
       (5) resultant damage.

Leingang v. Pierce County Med. Bureau, Inc., 131 Wn.2d 133, 157, 930 P.2d 

288 (1997).  In this case, only the fourth element is in dispute.  

       The allocation of burdens on this 
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No. 66279-1-I/6

element was once unclear.  See Brief of Appellant at 15, citing Restatement 

(Second) of Torts ch. 37 introductory note (1979) (commenting that there existed 

"considerable disagreement on who has the burden of pleading and proving 

certain matters" in tortious interference cases).  But our Supreme Court 

definitively added the element of improper purpose or means to the plaintiff's 

prima facie burden in Pleas v. City of Seattle, 112 Wn.2d 794, 804, 774 P.2d 

1158 (1989).  Only after the plaintiff establishes the five elements of the tort 

does the burden shift to the defendant to show, as an affirmative defense, that 

its interference was either privileged or justified.  Pleas, 112 Wn.2d at 805; see

also Commodore v. Univ. Mech. Contractors, Inc., 120 Wn.2d 120, 137, 839 

P.2d 314 (1992).  

       Moore asserts that the very fact that CAI opposed his employment with 

Volant raises an inference that satisfies the fourth element.  Interference alone is 

not enough.  Threatened lawsuits may constitute an interference by improper 

means only where the interferor "has no belief in the merit of the litigation" or 

threatens litigation "only to harass the third parties and not to bring his claim to 

definitive adjudication."  Restatement (Second) of Torts § 767 cmt. c (1979); see

also 6A Washington Practice:  Washington Pattern Jury Instructions:  Civil

352.03, at 433 (5th ed. 2005).  Threatened lawsuits may constitute an 

interference for an improper purpose if, for example, the interferor is acting out 

of ill will, greed, retaliation, or hostility or is motivated by an intent to harm the 

plaintiff.  Restatement (Second) of Torts § 767, cmt. d (1979); see also Elcon

Const., Inc. v. E. Wash. Univ., __ Wn.2d  6 

No. 66279-1-I/7

___, 273 P.3d 965, 971 (2012); WPI 352.03 (5th ed. 2005).  

       Moore argues that CAI failed to prove that it threatened litigation in good 

faith.  That argument shifts the burden of proof in the prima facie case.  To 

survive the motion to dismiss, Moore had the burden to prove CAI acted in bad 

faith. None of the statements in Moore's two sworn declarations raise a

reasonable inference of bad faith, ill will, intent to harass, or other improper 

means or purposes on the part of CAI.  Nor does he provide any document or 

other evidence raising any such inference, either explicitly or implicitly.  Moore 

claims that certain allegations in CAI's counterclaim reveal that CAI was hostile 

to Moore.  Allegations in a counterclaim do not satisfy Moore's evidentiary 

burden on summary judgment.  Pleadings are not evidence.  Joseph v. 

Schwartz, 128 Wash. 634, 636, 224 P. 5 (1924).  

       To be improper, interference must be wrongful by some measure beyond 

the fact of the interference itself, such as a statute, regulation, recognized rule of 

common law, or an established standard of trade or profession.  Pleas, 112 

Wn.2d at 803-04.  Moore argues that the blacklisting statute, RCW 49.44.010, 

provides such a standard by making it unlawful to act deliberately to prevent 

someone from obtaining employment.  That statute prohibits employers from 

"wilfully and maliciously" seeking to influence a potential employer against hiring 

a worker.  RCW 49.44.010 (emphasis added).  To satisfy a showing based on 

this statute, Moore must provide evidence of malice, which he has not done.  

       The Supreme Court's recent decision in Elcon supports the trial court's 

decision here.  In Elcon, the defendant,      7 

No. 66279-1-I/8

Eastern Washington University, sent a letter to the plaintiff construction 

company's bond surety, informing the surety that it had issued the plaintiff a 

termination for cause letter and that it held a potential claim against the bond for 

the construction company's deficient work.  Elcon, 273 P.3d at 971-72.  The 

construction company sued Eastern for tortious interference, alleging that the 

letter to the bond surety had impaired the company's bonding capacity.  The 

court affirmed dismissal of the claim, concluding that Eastern's letter did not 

show an improper purpose: 

              More importantly, by itself, the letter does not show improper 
       purpose.  And Elcon, by merely labeling the letter as "intentional 
       and vindictive," has not met its burden of showing such a purpose. 
       If Eastern was motivated by greed, retaliation, or hostility in 
       sending a copy of the termination letter to Elcon's surety, Elcon has 
       failed to show such a motive.  Conclusory statements and 
       speculation will not preclude a grant of summary judgment.  Elcon 
       claimed to have suffered damage as a result of its surety having 
       knowledge of Eastern's attempted conversion, but absent a 
       showing that Eastern acted with an improper purpose, no genuine 
       issues of material fact exist.

Elcon, 273 P.3d at 971-72 (footnote and citations omitted).  Applying the same 

reasoning here, we conclude Moore has failed to provide evidence, beyond 

conclusory statements and speculation, that CAI wrote its letter for an improper 

purpose.  Because that showing was absent, the trial court properly dismissed 

the case on summary judgment. 

Affirmative Defense

       Dismissal was also properly granted on the alternative basis of CAI's 

affirmative defense.  Even if Moore had established all five elements of his prima 

facie case, CAI established the affirmative 8 

No. 66279-1-I/9

defense of a good faith belief that Moore's employment posed a genuine threat 

to its trade secrets.  Such a showing, where unrebutted, is dispositive under 

Brown v. Safeway Stores, Inc., 94 Wn.2d 359, 617 P.2d 704 (1980).  A person is 

not guilty of tortious interference when the person "'in good faith asserts a legally 

protected interest of his own, which he believes may be impaired by the 

performance of a proposed transaction.'"  Brown, 94 Wn.2d at 375, quoting 

Singer Credit Corp. v. Mercer Island Masonry, Inc., 13 Wn. App. 877, 884, 538 

P.2d 544 (1975).  Exercising in good faith one's legal interests is not improper 

interference.  Elcon, 273 P.3d at 971; Leingang, 131 Wn.2d at 157.

       CAI made out an affirmative showing of a legally protected interest that it 

believed might be impaired if Moore obtained employment with Volant.  CAI

submitted copies of three separate agreements previously signed by Moore in 

which he made binding promises not to use or disclose CAI's trade secrets.  

Welch's sworn declaration stated that CAI possessed trade secrets not shared 

with Volant during negotiations, of which Moore had knowledge during his 

employment, including detailed bidding formulae for CAI's machine and wire 

shops that CAI "spent three years developing and refining."  Although a 

noncompete covenant did not exist in this case, CAI was in possession of 

nondisclosure agreements from Moore and was entitled to threaten suit in good 

faith to protect the interests identified in those agreements.

       Moore contends that CAI's assertion of a legally protected interest was 

not made in good faith because it relied upon the "inevitable disclosure 

doctrine."  In some jurisdictions, a plaintiff 9 

No. 66279-1-I/10

in a trade secrets case may obtain an injunction preventing an employee from 

going to work for a competitor by demonstrating that the employee would 

inevitably disclose the former employer's confidential or trade secret information.  

PepsiCo, Inc. v. Redmond, 54 F.3d 1262 (7th Cir. 1995); see generally 36 A.L.R. 

6th 537, "Applicability of Inevitable Disclosure Doctrine Barring Employment of 

Competitor's Former Employee."  Some cases reject the inevitable disclosure

doctrine entirely, perceiving that it undermines public policy favoring employee 

mobility.  See Whyte v. Schlage Lock Co., 101 Cal. App. 4th 1443, 1461-64, 125 

Cal. Rptr. 2d 277 (2002) (criticizing inevitable disclosure doctrine because its 

application would transform a confidentiality agreement into an unbargained-for 

and uncompensated noncompete agreement).  Washington courts have neither 

adopted nor rejected the inevitable disclosure doctrine, and we make no 

decision whether it should be adopted or rejected.  This is a tortious interference 

case, not a trade secrets case or a suit for an injunction, so a ruling adopting or 

rejecting the doctrine is not required.  

       Moore contends that even if Washington law expressly permitted an 

employer to assert the inevitable disclosure doctrine, CAI could not obtain an 

injunction barring Moore's employment with Volant because there is no evidence 

of dishonesty or misconduct by Moore and hence no reason to believe he would 

violate his confidentiality agreement.  Without concrete evidence that the 

employee is likely to disclose trade secrets, Moore contends, an employer's 

petition for an injunction must necessarily be denied.  He cites PepsiCo, in which 

the employee's "lack of forthrightness"       10 

No. 66279-1-I/11

caused the trial court to conclude there was a genuine danger that he would 

disclose trade secrets.  PepsiCo, 54 F.3d at 1267.  The appellate court weighed 

the employee's lack of trustworthiness in deciding to affirm the injunction:

              Thus, when we couple the demonstrated inevitability that 
       Redmond would rely on [PepsiCo] trade secrets in his new job at 
       Quaker with the district court's reluctance to believe that Redmond 
       would refrain from disclosing these secrets in his new position (or 
       that Quaker would ensure Redmond did not disclose them), we 
       conclude that the district court correctly decided that PepsiCo 
       demonstrated a likelihood of success on its statutory claim of trade 
       secret misappropriation.

PepsiCo, 54 F.3d at 1271.  

       PepsiCo does not support Moore's claim that evidence of some 

affirmative misconduct by the employee must be shown before the inevitable 

disclosure doctrine can be employed.  Citing PepsiCo, another court granted a 

preliminary injunction based on the inevitable disclosure doctrine and said, "An 

employee, such as the defendant, working in the same field on the same 

product, even with the utmost good faith, cannot be expected to 

compartmentalize his knowledge so his decisions and disclosures are not 

tainted by information he is prohibited from using." Minn. Mining & Mfg. Co. v. 

Francavilla, 191 F. Supp. 2d 270, 278 (D. Conn. 2002) (emphasis added).  So it 

appears that where the inevitable disclosure doctrine is employed, the danger of 

unconscious disclosure of trade secrets may support an injunction even if there 

is no reason to suspect disclosure will be intentional.

       A party is entitled to assert in good faith "an arguable interpretation of 

existing law" without fear of becoming 
                                              11 

No. 66279-1-I/12

liable for tortious interference.  Leingang, 131 Wn.2d at 157.  As the trial court 

correctly reasoned, the inevitable disclosure theory was available to CAI as an 

arguable interpretation of existing law.  CAI was entitled to argue in good faith

that Moore could be enjoined from working for Volant on the basis of inevitable 

disclosure of CAI's trade secrets without proof that Moore was untrustworthy.  

       Moore claims that by threatening Volant with litigation if it hires him, CAI 

has obtained a remedy more extreme than it could have obtained from a court.  

See Sheppard v. Blackstock Lumber Co., Inc., 85 Wn.2d 929, 932-33, 540 P.2d 

1373 (1975) (covenant not to compete may be enforced if reasonable; duration 

is a significant consideration).  Moore contends the dismissal of his case 

unreasonably provides CAI with the equivalent of a permanent injunction 

preventing him from ever working for Volant.  

       No injunction has been sought or issued.  Whether or not to hire Moore is 

a decision that remains with Volant.  CAI's objection to Volant's desire to hire 

Moore does put Moore in a difficult position.  Nevertheless, his claim of tortious 

interference lacks an adequate evidentiary showing, and therefore may not 

proceed to trial.

       In summary, no evidence in the record shows that CAI threatened 

litigation without believing in the merits of its claim or based on a desire to 

harass or cause harm to Moore or Volant.  In addition, CAI presented unrebutted 

evidence supporting its affirmative defense of a legally protected interest 

asserted in good faith.  Summary judgment dismissing Moore's tortious 

                                              12 

No. 66279-1-I/13

interference claim was properly granted.

                                   BLACKLISTING

       Moore's second claim is that CAI's letter to Volant violated Washington's 

blacklisting statute, RCW 49.44.010.  The statute makes it a criminal offense to 

"wilfully and maliciously make or issue any statement or paper that will tend to 

influence or prejudice the mind of any employer against the person of such

person seeking employment." RCW 49.44.010.  The statute was enacted in 

1899 to prevent railroad unionbusting.  Phelps Dodge Corp. v. N.L.R.B., 313 

U.S. 177, 184 & n.2, 61 S. Ct. 845, 85 L. Ed. 1271 (1941) (citing predecessor 

statute).  The statute is relevant here, Moore argues, because CAI "wilfully and 

maliciously" wrote a letter that influenced Volant against hiring him.  

       Raising a threshold issue, CAI contends the statute does not provide 

Moore a civil cause of action.  We disagree.  Although the parties do not cite the 

case, the Supreme Court decades ago unambiguously found that an earlier 

version of the statute created a civil right of action: 

              We think it must be conceded that the violation of our 
       statute, Rem. & Bal. Code, § 6565 (P. C. 291 § 159), though 
       specifically punishable only by criminal prosecution, is a sufficient 
       basis for a civil action in favor of the person injured.  This is a 
       general rule as to the violation of criminal statutes resulting in 
       specific injury to particular persons.  

Dick v. N. Pac. Ry. Co., 86 Wash. 211, 221, 150 P. 8 (1915).  Dick remains good 

law, and it allows a civil cause of action for blacklisting.  

       Moore nevertheless fails to meet

                                              13 

No. 66279-1-I/14

his evidentiary burden.  He has failed to present any evidence of malice on the 

part of CAI.  On the contrary, he has declared that he shared a trusting 

relationship with CAI.  CAI rehired Moore into his position as vice president even 

after the acquisition negotiations failed.  CAI laid him off five months later as part 

of a general reduction of force.  The record presents no reasonable inference of 

malice on the part of CAI.  Summary judgment dismissing the blacklisting claim 

was properly granted.

       Affirmed.

WE CONCUR:

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