Snyder v. Beam Technologies, Inc

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 20-cv-03255-NYW
JOHN SNYDER,
Plaintiff,
v.
BEAM TECHNOLOGIES, INC.,
Defendant.
ORDER ON MOTION TO DISMISS
Magistrate Judge Nina Y. Wang
This matter comes before the court on Beam Technologies, Inc.’s Partial Motion to Dismiss
Claims I – V (the “Motion to Dismiss” or “Motion”) [#30, filed February 23, 2021]. 	The
undersigned considers the Motion pursuant to 28 U.S.C. § 636(c) and the Order of Reference for
all purposes dated January 21, 2021 [#19]. Upon review of the Motion and the related briefing,
the applicable case law, and the entire docket, and being fully advised in the premises, I
respectfully GRANT IN PART and DENY IN PART the Motion to Dismiss.
BACKGROUND
The court draws the following facts from the First Amended Complaint and Jury Demand
(the “Amended Complaint”) [#23, filed February 9, 2021] and presumes they are true for purposes
of the instant Motion. This case arises out of Plaintiff John Snyder’s (“Mr. Snyder” or “Plaintiff”)
employment with Defendant Beam Technologies, Inc. (“Beam” or “Defendant”). See generally
[#23]. 	Mr. Snyder has extensive experience working in the employee-benefit insurance sales
industry. See, e.g., [id. at ¶¶ 9-19]. In addition, Mr. Snyder owns seven different spreadsheets (the
“Spreadsheets”) which contain “detailed and valuable market information about health insurance
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brokers throughout the United States” and which Mr. Snyder asserts are trade secrets. [Id. at ¶ 20].
Beam is a dental start-up that began selling dental insurance that measures risk via brushing
data from its Bluetooth-connected toothbrushes in 2015. [Id. at ¶ 2]. On July 14, 2018, Beam’s
Chief Executive Officer, Alex Frommeyer (“Mr. Frommeyer”) initiated contact with Mr. Snyder
via LinkedIn, which led to a telephone call between Messrs. Frommeyer and Snyder. [Id. at ¶¶ 63-
65]. Mr. Frommeyer told Mr. Snyder that Beam was looking to hire someone with experience in
the insurance industry. [Id. at ¶ 66]. The two spoke about Mr. Snyder’s experience in the insurance
industry and his connections with insurance brokers throughout the country, as well as a sales
strategy for Beam’s products. [Id. at ¶¶ 67-70, 73]. Also during the telephone call, Mr. Snyder
provided Mr. Frommeyer a general description of the Spreadsheets, such as that the Spreadsheets
included an organized list of insurance brokers in “every major market in the United States,” but
did not provide Mr. Frommeyer with access to the Spreadsheets. 	[Id. at ¶¶ 74-75, 80]. 	Mr.
Frommeyer asked Mr. Snyder specific questions about the Spreadsheets, including questions
related to their format and whether they could be uploaded to Salesforce.1 [Id. at ¶¶ 77-78]. Mr.
Frommeyer told Mr. Snyder that Beam would compensate Mr. Snyder for the Spreadsheets. [Id.
at ¶ 79].
The two spoke again on July 17, 2018, at which time Mr. Frommeyer reiterated that Beam
would pay Mr. Snyder for the Spreadsheets. [Id. at ¶ 85]. Mr. Snyder then spoke on the telephone
with Beam’s Chief Revenue Officer, Chris Prochak (“Mr. Prochak”) on July 19, 2018, during
which they discussed the Spreadsheets and during which Mssrs. Prochak and Snyder “discussed a
role for Mr. Snyder that would include Mr. Snyder overseeing a regional sales team, and
1 Based on the allegations in the Amended Complaint, it appears that Salesforce is a database that
stores company materials, including Beam’s business contacts. See, e.g., [#23 at ¶ 163].
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eventually, a national sales team.” [Id. at ¶¶ 87-91].
On July 25, 2018, Mr. Snyder flew to Columbus, Ohio to meet with Beam’s executive
team. 	[Id. at ¶¶ 95-97]. 	During these meetings, Mr. Frommeyer discussed compensating Mr.
Snyder for the Spreadsheets. [Id. at ¶ 101]. On August 1, 2018, Mr. Frommeyer emailed a formal
offer of employment (the “offer letter”) to Mr. Snyder to join Beam as a Regional Director of
Broker Success for the Mountain West Region. [Id. at ¶ 110]. Mr. Snyder accepted the offer the
next day. 	[Id. at ¶ 118].2 	After Mr. Snyder accepted the offer, Mr. Frommeyer reiterated that
Beam would compensate Mr. Snyder for the Spreadsheets, but stated that Beam would keep the
compensation “off the books.” [Id.]. Indeed, the offer letter contained certain terms relating to
Mr. Snyder’s compensation, see [id. at ¶ 110], but did not include any compensation terms related
to the Spreadsheets. 	[Id. at ¶ 114]. 	Nevertheless, Mr. Snyder relied on Beam’s promise to
compensate him for the Spreadsheets in accepting Beam’s offer and asserts that he would not have
accepted the job offer absent that promise. [Id. at ¶¶ 115, 119]. In addition, Beam also promised
Mr. Snyder that it would employ him in a management capacity and that it would roll out a new
product line after January 1, 2019. [Id. at ¶ 115]. Mr. Snyder relied on each of these promises in
accepting Beam’s offer of employment and would not have accepted the offer absent these
promises. [Id. at ¶¶ 121-22].
Mr. Snyder began his training with Beam on or around August 6, 2018. [Id. at ¶ 125]. He
saved the Spreadsheets to his company computer in a private file for his own use, and Beam did
not inform Mr. Snyder that it could access files on Mr. Snyder’s computer. [Id. at ¶¶ 133-35, 193].
In September 2018, Mr. Snyder relocated his family from Arizona to Colorado, relying on the
2 The Amended Complaint also implies that Mr. Snyder accepted the job offer on August 1, 2018.
See [#23 at ¶ 113]. The date of Mr. Snyder’s acceptance is not material to this court’s analysis of
the Motion to Dismiss.
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promises made by Beam in deciding to do so. [Id. at ¶ 140].
Mr. Snyder then began using the Spreadsheets during his work with Beam. Specifically,
he copied information from his Spreadsheet Number 4 to create a Houston-specific Spreadsheet,
which he emailed to a sales representative in Houston, Texas, who replied: “John – This is a legit
gold mine – thank you SO much. 	What is the source of this gem??” 	[Id. at ¶ 152]. 	He then
emailed a Utah-based spreadsheet to a Beam sales representative for Utah, and a Colorado-specific
spreadsheet to Beam’s Lead Generation Manager, Ely Tavera (“Mr. Tavera”), who was helping
organize Beam’s Colorado sales efforts. [Id. at ¶¶ 148, 154-56]. Both of these new Spreadsheets
were created from Spreadsheet Number 4. 	[Id. at ¶¶ 153, 155]. 	Mr. Snyder took measures to
protect the remaining data for the 47 other states included in Spreadsheet Number 4. [Id. at ¶ 157].
Mr. Prochak informed Mr. Snyder that he was “going to do for this company in weeks what [Beam]
[has not] been able to do in years.” [Id. at ¶ 161]. Mr. Snyder then learned that Beam was in the
process of uploading the contents of the Spreadsheets to Salesforce; after this upload, Beam’s
contacts in Salesforce “increased by tens of thousands.” [Id. at ¶¶ 162-63]. Beam began using the
Spreadsheets to send emails to “thousands of brokers,” receiving “hundreds of positive responses”
indicating that they were interested in engaging in business with Beam after January 1, 2019. [Id.
at ¶¶ 170-71].
Beam did not obtain Mr. Snyder’s permission to access the Spreadsheets or upload the
Spreadsheets to Salesforce, and Beam was aware of this lack of permission. [Id. at ¶¶ 165-66].
Upon learning of the upload, Mr. Snyder contacted Mr. Frommeyer and requested compensation
for the content of the Spreadsheets. [Id. at ¶ 168]. In addition, Mr. Snyder asked Mr. Tavera how
Mr. Tavera was able to access all of the data in his Spreadsheets, but Mr. Tavera was “unable to
explain how Beam obtained access to all the data contained in the Spreadsheets.” [Id. at ¶ 164].
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In early October 2018, Mr. Prochak informed Mr. Snyder that Beam had established new
sales goals for Mr. Snyder; specifically, Mr. Snyder was now expected to obtain 25 to 30 proposals
per week and to earn at least $1,250,000 in annual premiums before the end of 2018. [Id. at ¶¶ 175-
76]. These goals, which had not previously been discussed, contradicted the prior promised plan
for a post-January 1, 2019 roll-out of Beam’s new product line. [Id. at ¶¶ 177-78]. Mr. Snyder
questioned Mr. Prochak about these new goals because he had been hired to set and drive sales
goals for the sales team “that he was supposed to manage as a Regional Director.” [Id. at ¶ 177].
On November 16, 2018, Mr. Snyder was terminated by Beam because he was “not meeting
his sales goals.” [Id. at ¶ 181]. Immediately after this conversation, Mr. Snyder attempted to log
into his company computer, but no longer had access. [Id. at ¶ 182]. However, after Mr. Snyder’s
termination, Beam continued to use the Spreadsheets to generate sales throughout the United States
and continued to profit from its use of the Spreadsheets. 	[Id. at ¶¶ 183-84]. 	Beam did not
compensate Mr. Snyder for the Spreadsheets, nor did it fully compensate or provide the benefits
promised to Mr. Snyder in the offer letter. [Id. at ¶¶ 185-87].
Mr. Snyder initiated this action on October 30, 2020. [#1]. After Beam filed a motion to
dismiss, see [#17], Mr. Snyder filed the Amended Complaint, raising claims of (1) trade secret
misappropriation under the federal Defend Trade Secrets Act (“DTSA”), 18 U.S.C. §§ 1836, et
seq. (“Claim One”); trade secret misappropriation under the Colorado Uniform Trade Secrets Act
(“CUTSA”), Colo. Rev. Stat. §§ 7-74-101, et seq. (“Claim Two”); (3) obtaining workmen by
misrepresentation under Colo. Rev. Stat. § 8-2-104 (“Claim Three”); (4) common law fraudulent
misrepresentation (“Claim Four”); (5) common law negligent misrepresentation (“Claim Five”);
and (6) promissory estoppel (“Claim Six”). See generally [#23 at 24-31].
Beam filed the Motion to Dismiss on February 23, 2021, seeking to dismiss Plaintiff’s
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Claims One through Five for failure to state a claim under Rule 12(b)(6). 	[#30]. 	Mr. Snyder
responded on March 16, 2021, see [#36], to which Beam replied on March 30, 2021. [#37]. Then,
on April 8, 2021, Mr. Snyder moved to strike portions of Beam’s Reply, or in the alternative, to
file a sur-reply, on the basis that Beam had advanced new legal arguments and presented new
evidence in its Reply. See [#39]. On April 12, 2021, the court granted Mr. Snyder’s motion and
permitted him to file a sur-reply, reserving the issue of whether the sur-reply would be considered
in ruling on the Motion to Dismiss. 	[#40]. 	Plaintiff’s Sur-Reply was filed on April 26, 2021.
[#43].3 Because the Motion is ripe for consideration, I consider the Parties’ arguments below.
LEGAL STANDARD
Under Rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon
which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In deciding a motion under Rule 12(b)(6),
the court must “accept as true all well-pleaded factual allegations . . . and view these allegations
in the light most favorable to the plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir.
2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). A plaintiff may not
rely on mere labels or conclusions, “and a formulaic recitation of the elements of a cause of action
will not do.” 	Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 	Rather, “a complaint
must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible
on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Robbins v. Oklahoma, 519 F.3d
1242, 1247 (10th Cir. 2008) (explaining that plausibility refers “to the scope of the allegations in
3 Upon review of the briefing, the court concludes that certain new arguments or factual
characterizations were raised in Defendant’s Reply, as explained infra. 	The court declines to
consider these new arguments or facts in ruling on the Motion to Dismiss, see Beaudry v. Corr.
Corp. of Am., 331 F.3d 1164, 1166 (10th Cir. 2003) (the court “generally does not review issues
raised for the first time in a reply brief”), and therefore also does not consider the Sur-Reply in its
analysis.
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a complaint,” and that the allegations must be sufficient to nudge a plaintiff’s claim(s) “across the
line from conceivable to plausible.”). The court must ultimately “determine whether the complaint
sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief
under the legal theory proposed.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir.
2007).
ANALYSIS
Beam moves to dismiss Mr. Snyder’s first five claims for relief on the basis that they fail
to state a claim under Rule 12(b)(6). Beam asserts that “[t]he Amended Complaint’s deficiencies
fall into four general categories”: (1) Mr. Snyder fails to adequately allege that the Spreadsheets
constitute trade secrets, [#30 at 1-2]; Mr. Snyder fails to allege that Beam improperly accessed the
Spreadsheets, [id. at 2-3]; (3) Mr. Snyder has failed to sufficiently allege the existence of actionable
promises made by Beam, [id. at 3]; and (4) Mr. Snyder fails to establish the Spreadsheets’ value
or describe how he was damaged by Beam’s actions. [Id.]. The court will address these arguments
in turn.
I. 	The Existence of Trade Secrets
First, Beam argues that Mr. Snyder has failed to allege sufficient facts to demonstrate that
the Spreadsheets are trade secrets, and thus Plaintiff’s Claims One and Two must be dismissed.
[Id. at 6]. 	In support, Beam asserts that (1) Mr. Snyder affirmatively stated in a confidentiality
agreement (the “Confidentiality Agreement”) that he did not possess any trade secrets; and (2) Mr.
Snyder failed to take reasonable precautions to protect the trade secrets. [Id. at 7-8]. Mr. Snyder
disagrees; he asserts that he did, in fact, take reasonable steps to protect his trade secrets, [#36 at
6], and that Beam’s argument concerning the Confidentiality Agreement must fail because that
Agreement cannot be considered at the motion-to-dismiss stage. [Id. at 5].
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Documents Considered. First, Beam asserts that Plaintiff has not sufficiently alleged the
existence of trade secrets because, in the Confidentiality Agreement, he placed a check mark next
to a box indicating that he had no personal property or trade secrets that he desired to protect. [#30
at 7]; see also [#30-1]. Beam also argues that “Plaintiff . . . claimed that this information was not
his to begin with,” citing to an email communication in which Mr. Snyder purportedly stated that
the Spreadsheets came from a national list he worked on while he was with a former employer.
[#30 at 8]; see also [#30-3].
Mr. Snyder asserts that these documents should not be considered by the court in ruling on
Beam’s Motion to Dismiss. 	[#36 at 5]. 	“Ordinarily, consideration of material attached to a
defendant’s answer or motion to dismiss requires the court to convert the motion into one for
summary judgment and afford the parties notice and an opportunity to present relevant evidence.”
Tal v. Hogan, 453 F.3d 1244, 1265 n.24 (10th Cir. 2006). 	However, the court may consider
materials outside of the complaint without converting a motion to dismiss into a motion for
summary judgment it the documents are central to the plaintiff’s claims, referenced in the
complaint, and if the parties do not dispute the documents’ authenticity. Cty. of Santa Fe, N.M. v.
Public Serv. Co. of N.M., 311 F.3d 1031, 1035 (10th Cir. 2002).
Neither the Confidentiality Agreement nor the email are referenced 	in Plaintiff’s
Complaint, see [#23],4 and Beam makes no substantive argument that these documents are central
4 Beam asserts that the email is “repeatedly referenced in the Amended Complaint,” citing [#23 at
¶¶ 20-35, 151-171]. See [#30 at 2 n.3]. The court has reviewed the paragraphs cited by Beam and
respectfully disagrees with this assertion. Although Plaintiff references the email from the sales
representative expressing that the Spreadsheet was a “gem,” see [#23 at ¶ 152], he does not
reference his purported response to the sales representative allegedly concerning the source of the
list, which is the specific email Beam now asks this court to consider in ruling on the Motion to
Dismiss. See [#30 at 8; #30-3].
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to Plaintiff’s claims.5 See [#30 at 7-8; #37 at 2-3]. Therefore, the court declines to consider the
Confidentiality Agreement [#30-1] or email communication (that allegedly demonstrates that any
trade secret information originated from a third party) [#30-3] in ruling on Beam’s Motion to
Dismiss. Tal, 453 F.3d at 1265 n.24. Thus, insofar as Beam seeks dismissal of Mr. Snyder’s trade-
secret-misappropriation claims based on Mr. Snyder’s alleged failure to list his trade secrets in the
Confidentiality Agreement or based on an email not properly before the court, the Motion to
Dismiss is DENIED.
Failure to Protect. 	Next, Beam argues that Mr. Snyder failed to take reasonable
precautions to protect the Spreadsheets, as required for the Spreadsheets to be legally considered
trade secrets. [#30 at 8]. Plaintiff raises claims of trade secret misappropriation under both DTSA
and CUTSA. See [#23 at 24-25]. CUTSA defines a “trade secret” as “[t]he whole or any portion
or phase of any scientific or technical information, design, process, procedure, formula,
improvement, confidential business or financial information, listing of names, addresses, or
telephone numbers, or other information relating to any business or profession which is secret and
of value.” Colo. Rev. Stat. § 7-74-102(4). CUTSA imposes an obligation on the owner of a trade
secret to “take[] measures to prevent the secret from becoming available to persons other than
those selected by the owner to have access thereto for limited purposes” in order for the property
to be deemed a trade secret. Id. Similarly, under DTSA, a “trade secret” is defined to include “all
forms and types of financial, business, scientific, technical, economic, or engineering information”
5 Beam asserts that the email is “central to Plaintiff’s allegations of what information he provided
to Beam.” [#30 at 2 n.3]. However, Beam offers no explanation as to why this email, which is
not referenced in the Amended Complaint and is not relied upon by Mr. Snyder in asserting his
claims, is central to Plaintiff’s claims. 	In addition, the applicability of the Confidentiality
Agreement may implicate other determinations of fact that cannot be adequately considered at this
stage of the action.
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so long as “the owner thereof has taken reasonable measures to keep such information secret” and
“the information derives independent economic value, actual or potential, from not being generally
known to,” or ascertainable by, another person. 18 U.S.C. § 1839(3). Thus, both federal and state
law require that the owner of the trade secrets take measures to protect the secrecy of those trade
secrets. “Due to the similarities in the pleading requirements under DTSA and CUTSA, the Court
will address [the claims] together.” 	zvelo, Inc. v. Akamai Techs., Inc., No. 19-cv-00097-PAB-
SKC, 2019 WL 4751809, at *2 (D. Colo. Sept. 30, 2019).
When it comes to taking measures to protect the secrecy of trade secrets, “[e]xtreme and
unduly expensive measures need not be taken.” Colo. Supply Co. v. Stewart, 797 P.2d 1303, 1306
(Colo. App. 1990). Under Colorado law, “[r]easonable efforts have been held to include advising
employees of the existence of a trade secret, limiting access to a trade secret on a ‘need to know
basis,’ and controlling plant access.” Id. Moreover, courts have found that firewalls, passwords,
and physical safeguards, as well as keeping the information away from the public, are sufficient to
plead the existence of reasonable protective measures. MSC Safety Sols., LLC v. Trivent Safety
Consulting, LLC, No. 19-cv-00938-MEH, 2019 WL 5189004, at *7 (D. Colo. Oct. 15, 2019).
According to Beam, because the Amended Complaint demonstrates that Mr. Snyder
voluntarily sent his Spreadsheets to Beam, he failed to protect the secrecy of the Spreadsheets and
therefore the Spreadsheets cannot constitute trade secrets. [#30 at 8-9]. In addition, Beam asserts
that “[t]he Amended Complaint does not allege a single measure that Plaintiff took to prevent the
Spreadsheets from becoming available to persons other than those selected by him, as required by
law.” [Id. at 8]. In the Amended Complaint, Mr. Snyder states that he “took reasonable measures
to keep the Spreadsheets secret by saving the Spreadsheets on his personal computer, on a USB
drive hidden in his home in a dresser, in a private file on his work computer, and by restricting
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Beam’s access to the entirety of Spreadsheets 1, 2, 3, 5, 6, and 7.” [#23 at ¶ 193]. In addition, he
asserts that he “took reasonable measures to restrict Beam’s access to Spreadsheet Number 4 by
creating Spreadsheets 8, 9, and 10”—i.e., the state- or city-specific Spreadsheets. [Id. at ¶ 194].
Standing alone, some of the protective measures taken by Mr. Snyder—specifically, his
saving of the Spreadsheets on his personal computer or hiding the USB containing the
Spreadsheets in a dresser drawer—might not sufficiently plead measures taken to protect the
Spreadsheets. Indeed, putting the USB drive containing the Spreadsheets into a drawer does little
to demonstrate Mr. Snyder’s efforts to protect the Spreadsheets in the context of his employment
with Beam. 	However, the court finds that Mr. Snyder’s remaining allegations are sufficient to
allege that he took reasonable measures to protect the secrecy of the Spreadsheets while employed
at Beam. 	For example, while saving purported secrets on a work computer might cut against a
finding of reasonable protective measures, see L-3 Commc'ns Corp. v. Jaxon Eng’g & Maint., Inc.,
No. 10-cv-02868-MSK-KMT, 2013 WL 1231875, at *8 (D. Colo. Mar. 27, 2013) (“[T]he decision
by Mr. Rettig to place Jaxon’s trade secrets on a computer that belonged to L3 would not amount
to ‘reasonable efforts’ to maintain the secrecy of such information”), Mr. Snyder alleges that he
stored the Spreadsheets in a “private file” on his work computer. [#23 at ¶ 193]. Although the
Amended Complaint does not indicate the level of access, if any, other Beam employees had to
the “private file,” construing these allegations in the light most favorable to Plaintiff, as the court
must, see W. Watersheds Project v. Michael, 869 F.3d 1189, 1193 (10th Cir. 2017), the court
concludes that this allegation is sufficient at this juncture to avoid dismissal.
Moreover, while the court acknowledges Beam’s argument that Mr. Snyder voluntarily
sent the Spreadsheets to other Beam employees, thereby negating any reasonable efforts to protect
the secrets, see [#30 at 9-10], the court cannot conclude that disclosure to a limited number of
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persons, for purposes of carrying out their job responsibilities, necessarily negates any reasonable
protective efforts undertaken by Mr. Snyder. See [#23 at ¶¶ 149-56 (alleging that Mr. Snyder was
hired “to oversee the sales teams in the Rocky Mountain Region and the western states” and
alleging that he sent new, state- or city-specific Spreadsheets to sales representatives in Houston,
Utah, and Colorado). A number of courts have held that limiting disclosure of trade secrets to a
select number of people, and where disclosure is only made for the purpose of performing their
job responsibilities, is consistent with taking reasonable protective measures to ensure the secrecy
of trade secrets. 	See MSC Safety Sols., 2019 WL 5189004, at *7 (finding that the plaintiff had
adequately alleged protective measures where the plaintiff “provide[d] the customer and vender
lists only to its current employees, a total of six people, ‘for the purpose of carrying out their job
responsibilities’” (brackets omitted)); zvelo, 2019 WL 4751809, at *3 (where an employer
restricted access to an entire database to fewer than five employees and only permitted limited
access to other employees “in the course of performing their required job functions,” finding that
“[t]his limited access . . . demonstrates precautions taken by plaintiff to guard the secrecy of the
information”); cf. Walshe v. Zabors, 178 F. Supp. 3d 1071, 1093 (D. Colo. 2016) (finding that a
reasonable fact finder could conclude that a trade secret exists where the owner “‘took measures
to prevent the [document] from becoming available to persons other than those selected to have
access’ to the document” (alteration marks in original)). Finally, Mr. Snyder took efforts to limit
the level of disclosure of the amount of information contained in the Spreadsheets, creating new
state- or city-specific Spreadsheets to send to his colleagues rather than sending the entirety of the
Spreadsheets.6 	See, e.g., [#23 at ¶¶ 150, 153, 155]. 	The court thus finds that Mr. Snyder has
6 Defendant appears to suggest that the court need not take these allegations as true because they
are contradicted by other record evidence. See [#30 at 2-3, 10]. For the reasons set forth in Section
II, infra, the court elects to construe these allegations as true.
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adequately alleged that he took reasonable measures to protect the secrecy of the Spreadsheets.
Finally, the court recognizes that the reasonableness of the protective measures taken to
secure the secrecy of trade secrets is a question best reserved for a jury. 	See Swan Glob. Invs.,
LLC v. Young, No. 18-cv-03124-CMA-NRN, 2019 WL 5095729, at *11 (D. Colo. Aug. 20, 2019),
report and recommendation adopted, 2020 WL 897654 (D. Colo. Feb. 25, 2020) (recommending
denial of a motion to dismiss where the plaintiff had “allege[d] that it has taken reasonable
measures to protect the confidentiality of [its trade secrets]” and finding that arguments as to the
reasonableness of the owner’s measures “are more appropriate for summary judgment after
additional factual development, or trial, not the motion to dismiss stage”); L-3 Commc’ns Corp.,
2013 WL 5437775, at *2 (citing Saturn Sys., Inc. v. Militare, 252 P.3d 516, 521-22 (Colo. App.
2011) (“Whether a secret’s owner has sufficiently attempted to protect the secrecy of that
information is typically a question of fact to be resolved by the factfinder.”); see also Hertz v.
Luzenac Grp., 576 F.3d 1103, 1113 (10th Cir. 2009) (applying Colorado law and stating that
whether the precautions taken to protect secrecy of trade secrets were reasonable “will have to be
decided by a jury”). For these reasons, to the extent that Beam seeks dismissal of Plaintiff’s Claims
One and Two on the basis that he failed to allege that he took reasonable measures to protect his
trade secrets, the Motion to Dismiss is DENIED.
II. 	Improper Acquisition of Trade Secrets
In the alternative, Beam argues that Claims One and Two must be dismissed because
“Plaintiff’s allegations demonstrate that Beam did not misappropriate nor improperly acquire the
Spreadsheets.” [#30 at 10]. 	To state a claim of trade secret misappropriation under CUTSA, a
plaintiff must demonstrate (1) that he or she possessed a valid trade secret; (2) the trade secret was
used or disclosed without the plaintiff’s consent; and (3) the defendant knew or should have known
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that the trade secret was acquired by improper means. Gates Rubber Co. v. Bando Chem. Indus.,
Ltd., 9 F.3d 823, 847 (10th Cir. 1993). 	Similarly, under DTSA, a plaintiff must allege (1) the
existence of a trade secret “that relates to a product or service used in, or intended for use in,
interstate or foreign commerce”; (2) the acquisition, use, or disclosure of the trade secret without
consent; and (3) the defendant knew or had reason to know that the trade secret was acquired by
improper means. 	zvelo, 2019 WL 4751809, at *2. 	Beam asserts that Mr. Snyder voluntarily
“emailed the Spreadsheets on his own volition to multiple Beam employees” and for this reason,
Beam did not acquire the Spreadsheets through “improper means.” [#30 at 10-11].
Documents Considered. 	In making its argument that Plaintiff cannot establish the
improper-acquisition prong of a misappropriation claim, Beam relies on another document outside
of the pleadings: a copy of an email Mr. Snyder sent to Beam employees purportedly containing
the Colorado-specific Spreadsheet (“Exhibit 2”). See [#30 at 10-11; #30-2 (public document); #31
(filed under seal)]. Unlike the contents of the other extraneous documents submitted by Defendant,
this email is referenced in the Amended Complaint. See [#23 at ¶ 156 (“On or around September
18, 2018, Mr. Snyder sent Spreadsheet Number 10, which contained information for Colorado
only, to Mr. Tavera, who was helping organize sales efforts in Colorado for Beam.”)]; see also
[#31 at 1-2 (Exhibit 2 containing an email from Mr. Snyder to Mr. Tavera dated September 18,
2018, concerning the “Colorado Broker list”)]. 	Mr. Snyder argues that Exhibit 2 should not be
considered because “[he] disputes the accuracy and authenticity of the foregoing exhibit[].” [#36
at 6]. In support, Plaintiff states the following:
Defendant produced a different version of the same email identified in Exhibit [2]7
in its F.R.C.P. 26(a) Initial Disclosures. The email produced by Defendant in its
7 In making this statement, Mr. Snyder references Defendant’s “Exhibit 3.” 	See [#36 at 6 n.2].
However, the court believes Mr. Snyder is actually referencing what Defendant has labeled as
“Exhibit 2,” as it contains the Colorado-specific email and Spreadsheet. See [#31].
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Initial Disclosures includes the title of the spreadsheet referenced in Exhibit [2].
The title indicates that the attachment is the “Colorado Broker List 2.19.2015.xlsx.”
However, the file name for Spreadsheet [Number] 4 included the term National
Broker List.” This is a factual dispute.
[Id. at n.2].
Simply stating that the authenticity of a document is in dispute does not make it so. Mr.
Snyder does not clearly explain the basis for his authenticity arguments, nor does he include a copy
of this allegedly different email or clearly explain why an alleged difference gives rise to a dispute
as to Exhibit 2’s authenticity. Indeed, Mr. Snyder focuses on the document allegedly produced by
Defendant in its initial disclosures, and an inconsistency in a spreadsheet title purportedly attached
to that document, rather than the document submitted to the court by Defendant. See [id.]. 	The
court is unable to conclude that the authenticity of Exhibit 2 is in dispute based solely on Mr.
Snyder’s bare assertion stating such.
However, the court nevertheless declines to exercise its discretion to consider Exhibit 2 in
ruling on Defendant’s Motion to Dismiss. See Prager v. LaFaver, 180 F.3d 1185, 1189 (10th Cir.
1999) (a trial court has discretion in deciding whether to consider materials attached to a motion
to dismiss). Simply put, the court finds that Exhibit 2 – without more – does not demonstrate what
Defendant says it does. 	More specifically, Exhibit 2 does not prove that the email sent by Mr.
Snyder to Mr. Tavera actually contained Spreadsheet Number 4 or the entirety of Plaintiff’s
business contacts, as Beam asserts, rather than just the Colorado-specific Spreadsheet, as Plaintiff
alleges in his Amended Complaint. Exhibit 2 consists of an email from Mr. Snyder to Mr. Tavera
and one other Beam employee concerning a “Colorado Broker list,” [#31 at 2], as well as over 600
pages of Microsoft Excel spreadsheets containing names and contact information of unknown
individuals; Defendant asserts that this document demonstrates that Mr. Snyder sent the entirety
of his contacts in Spreadsheet Number 4 to Beam. 	[#30 at 10]. 	But nothing in Exhibit 2
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demonstrates to the court that the 600 pages of Microsoft Excel spreadsheets indeed constitutes
Spreadsheet Number 4, or includes “all of the contacts referenced in the Amended Complaint,” as
Defendant suggests. See [#30; #31]. Indeed, the email in Exhibit 2 does not include the document
name of any purported email attachment, nor do the spreadsheets included in Exhibit 2 bear any
document title or any description of their contents such that the court could conclude that the
spreadsheets included in Exhibit 2 constitute Spreadsheet Number 4.8 See [#31 at 2-3].
Beam attempts to remedy this missing piece by attaching to its Reply two affidavits
purportedly authenticating Exhibit 2—one from Mr. Tavera and one from defense counsel. See
[#37-1; #37-2]. However, both affidavits go beyond mere authentication of Exhibit 2 and instead
attempt to attribute additional characteristics to Exhibit 2 that are not evident on the face of that
document. See, e.g., [#37-1 at ¶ 4 (Mr. Tavera asserting: “This email [in Exhibit 2] contained an
attached 	Excel 	Spreadsheet 	titled 	‘Colorado 	Broker 	List 	2.19.2015.xlsx.’ 	This 	attached
spreadsheet contained two separate tabs. The first tab contains broker contacts from 50 states and
Washington D.C. The second tab contains broker contacts only from Colorado.”); at ¶ 5 (“Neither
of the attached spreadsheet’s tabs were locked or in any other way restricted.”)]; see also [#37-2
at ¶ 6 (defense counsel asserting: “This email contained an attached Excel Spreadsheet titled
‘Colorado Broker List 2.19.2015.xlsx.’ This spreadsheet contained two separate tabs. The first
tab contains broker contacts from 50 states and Washington D.C., totaling 58,458 entries. 	The
second tab contains broker contacts who appear to be only from Colorado.”)].
None of these assertions are supported by the face of Exhibit 2. Exhibit 2 does not contain
8 It is not incumbent upon the court to sift through this 600-page document in conjunction with the
record to determine if there is any evidence that this list comprises Spreadsheet Number 4. See
S.E.C. v. Thomas, 965 F.2d 825, 827 (10th Cir. 1992) (a court is not obligated to sift through record
to find support for a party’s position).
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the file name of the Microsoft Excel spreadsheet(s) purportedly attached to the email, does not
show the file name assigned to the document containing the spreadsheets, does not demonstrate
that there are “two separate tabs” in the spreadsheets, and does not establish whether any allegedly
attached spreadsheets were “locked” or unlocked. See [#31 at 2-3]. Thus, any attempt by Beam
to use its affidavits to assert additional facts in support of its arguments in the Motion to Dismiss
is, in essence, an attempt to litigate a factual dispute at the motion-to-dismiss stage, which is
improper. Hogan v. Okla. Dep’t of Corr., 24 F. App’x 984, 985 (10th Cir. 2002) (unpublished) (a
court does not resolve factual disputes at the motion-to-dismiss stage). The court thus declines to
consider the affidavits insofar as they make additional factual assertions about Exhibit 2 that are
not evident from a visual review of Exhibit 2. 	See also supra n.3 (declining to address new
arguments raised in Defendant’s Reply).
Because Exhibit 2 does not plainly support Defendant’s argument, the court declines to
consider Exhibit 2 in ruling on the Motion to Dismiss. See Geras v. Int’l Bus. Machines Corp.,
638 F.3d 1311, 1315 (10th Cir. 2011) (trial court has discretion to consider materials outside of
the pleadings “even [if] documents . . . are referred to in the complaint and central to the plaintiff’s
claims”); Rustgi v. Reams, No. 20-cv-00945-WJM-STV, 2021 WL 1698142, at *4 (D. Colo. Apr.
29, 2021) (declining to consider extraneous evidence where the defendants “appear[ed] to be
attempting to steer the discussion and analysis in the Motion to one which focuses on the disputed
evidence standard under Rule 56, as opposed to the plausibility pleading standard under Rule 8
and assessed on a Rule 12 motion to dismiss.”). The court therefore will continue to construe Mr.
Snyder’s allegations in the Amended Complaint as true. See Corrigan v. Bd. of Trustees of Metro.
State Univ. of Denver, No. 19-cv-02475-CMA-NYW, 2020 WL 3567049, at *4 (D. Colo. July 1,
2020) (a court may decline to take factual allegations as true if they are contradicted by a properly
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considered document).9
Improper Acquisition. 	The court thus proceeds on the facts asserted in the Amended
Complaint, which allege that Mr. Snyder sent only a limited portion of the Spreadsheets to Beam,
but that Beam proceeded to use all of the Spreadsheets in conducting its business. See, e.g., [#23
at ¶ 157 (“By creating Spreadsheets 8, 9, and 10, and only sending the information from
Spreadsheets 8, 9, and 10 to Beam’s sales employees, Mr. Snyder took measures to protect the
remaining data for the other forty-seven (47) states contained in Spreadsheet Number 4.”); ¶ 170
(“Beam utilized the content from the Spreadsheets to begin sending out a series of email blasts to
thousands of brokers”); ¶¶ 183-84 (“After Mr. Snyder was terminated, Beam continued to utilize
the Spreadsheets to generate sales throughout the United States” and “continued to profit from its
9 Even if the court did consider Exhibit 2, its analysis would not change. The assertion that Mr.
Snyder may have sent his Spreadsheets to two Beam employees, see [#31 at 2], does not
necessarily contradict Mr. Snyder’s allegations that Beam nevertheless “improperly acquired the
Spreadsheets from Mr. Snyder’s computer or through other improper means.” See, e.g., [#23 at
¶ 198]. Indeed, Mr. Snyder alleges that, when he confronted Mr. Tavera about how he was able
to access all of the Spreadsheets, “Mr. Tavera was unable to explain how Beam obtained access to
all the data contained in the Spreadsheets,” [id. at ¶ 164], despite purportedly being a recipient of
Mr. Snyder’s email that Defendant contends contained the Spreadsheets. 	See [#31 at 2].
Moreover, 	CUTSA 	and 	DTSA 	each 	provide 	that 	trade 	secret 	misappropriation 	may 	be
demonstrated by showing that the acquirer of the trade secrets knew, or had reason to know, that
its knowledge of the trade secret had been acquired by accident or mistake. 	See 18 U.S.C.
§ 1839(5)(B)(iii); Colo. Rev. Stat. § 7-74-102(2). 	Here, Exhibit 2 contains an email from Mr.
Snyder with the subject line “Colorado Broker List for Email blast,” and in the body, Mr. Snyder
stated, “Here is the Colorado Broker list. . . .” [#31 at 2]. Thus, there is no indication in the email
provided by Defendant that, if Mr. Snyder did send Spreadsheet Number 4 in that email to Beam,
he did so intentionally. Given Mr. Snyder’s allegations, see, e.g., [#23 at ¶ 20 (Mr. Snyder owns
the Spreadsheets); ¶ 39 (Beam did not have the data contained in Spreadsheets); ¶ 164 (Mr. Tavera
was unable to explain how Beam had access to the Spreadsheets); ¶ 165 (Beam did not have Mr.
Snyder’s permission to access the entirety of the Spreadsheets and upload them to Salesforce);
¶ 166 (Beam knew it did not have Mr. Snyder’s permission to access the entirety of the
Spreadsheets)], the court finds that a reasonable inference may be drawn that Beam knew Mr.
Snyder owned the Spreadsheets, that they constituted trade secrets, and that it knew that any
acquisition of the Spreadsheets was by accident or mistake.
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use of the Spreadsheets”); ¶ 198 (“Beam improperly acquired the Spreadsheets from Mr. Snyder’s
computer or through other improper means”)].
The court finds that Mr. Snyder has sufficiently alleged improper acquisition here. CUTSA
and DTSA both define “improper means” to include “theft, bribery, misrepresentation, breach or
inducement of a breach of a duty to maintain secrecy.” Colo. Rev. Stat. § 7-74-102(1); 18 U.S.C.
§ 1839(6). 	According to Mr. Snyder, he only sent a limited amount of information from the
Spreadsheets to other Beam employees, but Beam took the entirety of the Spreadsheets from his
computer without his consent, knowing that it did not have his consent, and then used the
Spreadsheets without his consent. See, e.g., [#23 at ¶¶ 197-99]. This is sufficient to state a claim
for trade secret misappropriation. See Sparkasse Bregenz Bank v. JC-Biomethane, LLC, No. 6:16-
cv-01199-AA, 2016 WL 6908101, at *3 (D. Or. Nov. 21, 2016) (plaintiff plausibly alleged that
access to trade secrets was effectuated through improper means where the plaintiff alleged that the
defendant accessed trade secret without plaintiff’s permission); Seneca Cos., Inc. v. Becker, 134
F. Supp. 3d 1148, 1154 (S.D. Iowa 2015) (allegation that defendant “took [plaintiff’s] confidential
information without permission and sent it to [a third party]” was “sufficient on its own to allege
that [the third party] acquired [the] trade secrets via improper means”); cf. TFOR LLC v.
Virtustream, Inc., No. 2:16-cv-602, 2017 WL 11505355, at *10 (E.D. Va. June 22, 2017) (in
Virginia Uniform Trade Secrets Act case, finding that owner’s voluntary disclosure of trade secrets
did not preclude a finding of “improper means” where the owner alleged that the defendant induced
such disclosure with misrepresentations).
For all of these reasons, insofar as Beam seeks to dismiss Plaintiff’s trade secret
misappropriation claims for failure to allege improper acquisition, the Motion to Dismiss is
DENIED.
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III. 	Misrepresentation Claims
Next, Beam argues that Plaintiff’s misrepresentation claims (Claims Three, Four, and Five)
must be dismissed for failure to state a claim. 	More specifically, Beam asserts that Plaintiff’s
fraudulent misrepresentation claim, Claim Four, must be dismissed because Plaintiff has failed to
allege the existence of actionable fraudulent misrepresentations. [#30 at 11]. Next, Beam contents
that Mr. Snyder’s negligent misrepresentation claim, Claim Five, must be dismissed because
“Plaintiff did not allege a representation of an existing or past fact.” [Id. at 14]. Finally, Beam
seeks dismissal of Claim Three, which arises under Colo. Rev. Stat. § 8-2-104 (the “statutory
fraud” claim) on the grounds that Mr. Snyder has failed to allege the “type of misrepresentation
contemplated” by this statute. [Id. at 15]. The court addresses each of these arguments in turn.
A. 	Fraudulent Misrepresentation
“A claim for fraudulent misrepresentation has four elements: ‘a knowing misrepresentation
of material fact, reliance on the material misrepresentation, the right or justification in relying on
the misrepresentation, and reliance resulting in damages.’” Clark v. Green Tree Servicing LLC,
69 F. Supp. 3d 1203, 1223 (D. Colo. 2014) (quoting Williams v. Boyle, 72 P.3d 392, 399 (Colo.
App. 2003)). A “knowing misrepresentation is one made with knowledge that it is false or ‘with
a reckless disregard of and indifference to [its] truth or falsity.’” Id. (quoting Hawkinson v. A.H.
Robins Co., Inc., 595 F. Supp. 1290, 1312 (D. Colo. 1984) (brackets in original)). Beam argues
that Mr. Snyder has failed to state a claim for fraudulent misrepresentation because he “does not
plead actionable misrepresentations.” [#30 at 11]. Specifically, Beam asserts that the following
representations 	are 	insufficient 	bases 	fraudulent 	misrepresentation 	claim: 	(1) 	the 	alleged
misrepresentation 	to 	compensate 	Plaintiff 	pursuant 	to 	the 	offer 	letter; 	(2) 	the 	alleged
misrepresentation to compensate Plaintiff for the Spreadsheets; (3) the alleged misrepresentation
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concerning Beam’s post-January 1, 2019 product line; and (4) the alleged misrepresentation that
Beam would employ Plaintiff in a management capacity. [Id. at 11-12].
Misrepresentation Concerning Offer Letter Compensation. 	Beam’s first argument is
somewhat difficult to parse. 	Beam asserts that the first alleged misrepresentation—that Beam
misrepresented that it would compensate Mr. Snyder pursuant to the terms of the offer letter—is
“particularly troubling” because Mr. Snyder “initially alleged [in his original complaint] that Beam
allowed Plaintiff to ‘stay on his health benefits through the end of the year,’” [id. at 12 (quoting
[#1 at ¶ 145])], but now “takes the polar opposite stance and claims that Beam never provided
Plaintiff with health benefits in the first place.” [Id. (citing [#23 at ¶ 187])].10 As a result, Beam
asserts that this court should “ignore[]” Mr. Snyder’s allegation that Beam failed to compensate
him as set forth in the offer letter. [Id. (quoting Colliton v. Cravath, Swaine & Moore LLP, No.
08 CIV 0400 (NRB), 2008 WL 4386764, at *6 (S.D.N.Y. Sept. 24, 2008), aff’d, 356 F. App’x 535
(2d Cir. 2009) (unpublished))].
The court respectfully disagrees with Beam. First, Mr. Snyder’s assertion that Beam failed
to compensate him pursuant to the terms of the offer letter does not appear to be based solely on
an alleged failure to provide promised healthcare benefits. See, e.g., [#23 at ¶¶ 185, 187 (alleging
that “Beam did not compensate Mr. Snyder pursuant to the terms of the August 1, 2021 Offer” and
that “Mr. Snyder never received any compensation in the form of stock options”); at ¶ 110
(alleging that the offer letter included initial stock options for 500 shares]. 	Second, the court
disagrees that Mr. Snyder’s present allegations contradict his past ones. The original complaint
10 The court believes that Beam intended to cite [#23 at ¶ 186] here, which alleges that “Mr. Snyder
did not receive the health benefits as referenced in the Offer when he was employed.” 	[#23 at
¶ 186].
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alleged11 that Beam “indicated to Mr. Snyder” that he “would be allowed” to stay on Beam’s health
insurance after his termination through the remainder of 2018. [#1 at ¶ 145]. However, the original
complaint does not allege that Mr. Snyder actually received these benefits or actually stayed on
Beam’s health insurance after his termination. 	See generally [id.]. 	Thus, Mr. Snyder’s present
allegations that “Mr. Snyder did not receive the health benefits as referenced in the Offer when he
was employed,” [#23 at ¶ 186], does not “blatantly contradict” his original allegation, which
related to an alleged severance offer, not the benefits Mr. Snyder actually received while employed
at Beam. 	Moreover, the original complaint also contains allegations that Mr. Snyder was not
compensated pursuant to the terms of the offer letter. 	See [#1 at ¶ 175]. 	Thus, the court is not
persuaded by Beam’s argument that the original complaint contradicts Mr. Snyder’s current
allegations, and the court declines to ignore these facts as requested by Beam or find that Plaintiff
cannot state a fraudulent misrepresentation claim based on this alleged false representation.
Misrepresentation Concerning Compensation for the Spreadsheets. Next, Beam argues
that allegations as to any misrepresentations concerning compensation for the Spreadsheets are too
vague and conclusory to state a claim. [#30 at 12]. Specifically, Beam argues that Mr. Snyder
alleges in the Amended Complaint only that the Parties discussed the Spreadsheets “in general”
and “[t]hus, any type of promised compensation would depend on the contents of the Spreadsheets
once Beam had an opportunity to learn of their specifics.” [Id.]. However, this contention amounts
11 Typically, the court would not address allegations made in the original complaint, as an amended
complaint supersedes original complaint and renders the original complaint “of no legal effect.”
Scott v. Buckner Co., 388 F. Supp. 3d 1320, 1323-24 (D. Colo. 2019) (quotation omitted); see also
Brumfiel v. U.S. Bank, No. 12-cv-02716-WJM, 2013 WL 12246738, at *1 (D. Colo. May 16, 2013)
(“Because the original complaint has been superseded and nullified, there is no longer a live
dispute about the propriety or merit of the claims asserted therein.”) (quotation omitted). However,
because Beam asserts that certain allegations in the Amended Complaint should not be taken as
true (or otherwise should be ignored) because they contradict allegations set forth in the original
complaint, see [#30 at 12], the court will briefly address the original allegations.
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to an argument as to how to construe the facts alleged in the Amended Complaint. At the motion-
to-dismiss stage, the court must take all factual allegations as true and draw all reasonable
inferences in favor of the plaintiff. 	W. Watersheds, 869 F.3d at 1193. 	Thus, Beam’s argument
concerning the veracity of Mr. Snyder’s facts, as pled, is not appropriate for consideration on a
motion to dismiss. 	And insofar as Beam asserts that Mr. Snyder’s allegations are vague or
conclusory, the court disagrees. 	Here, Mr. Snyder raises specific allegations concerning when,
where, and by whom he was told that Beam would compensation him for the Spreadsheets. See
[#23 at ¶¶ 85, 101, 113, 160]. He also alleges that Beam did not intend to compensate him for the
Spreadsheets when it made its promise, see, e.g., [id. at ¶ 116], that Beam did not compensate him
for the Spreadsheets as promised, [id. at ¶ 185], and that he relied on the promise of compensation
in accepting the offer of employment from Beam. [Id. at ¶ 120]. The court finds these allegations
sufficient to state a fraudulent misrepresentation claim. 	See U.S. ex rel Schwartz v. Coastal
Healthcare Grp., Inc., 2000 WL 1595976, at *3 (10th Cir. Oct. 26, 2000) (unpublished) (to state
a fraud claim, the plaintiff must set forth the “who, what, when, where, and how of the alleged
fraud”). 	Beam offers no argument or authority demonstrating that these allegations are
insufficient.12
12 At the conclusion of Beam’s argument, it cites Frank v. Wells Fargo Bank N.A., No. 15-cv-
02646-RBJ, 2016 WL 6212524 (D. Colo. Oct. 11, 2016). See [#30 at 12]. However, Beam makes
no argument pursuant to Frank or explain why Frank supports its position. [Id.]. The court has
reviewed the Frank case, which does not change the court’s analysis of Plaintiff’s fraudulent
misrepresentation claim. In Frank, the court dismissed a fraudulent misrepresentation claim based
on the defendant’s alleged misrepresentation that it would conduct an “appraisal” of the plaintiffs’
property and then defendant conducted an exterior-only appraisal, where there were no facts in the
complaint demonstrating that the defendant represented the type of appraisal it would undertake
or otherwise show why the defendant’s representation was false. 2016 WL 6212524, at *7. By
contrast, here, Mr. Snyder has sufficiently alleged in his Amended Complaint why the alleged
misrepresentation was false by alleging that Beam repeatedly told Mr. Snyder that he would be
compensated for the Spreadsheets, see [#23 at ¶¶ 85, 101, 113, 123], and then Beam failed to
provide such compensation. See [id. at ¶ 188].
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Misrepresentation Concerning Beam’s New Product Line. Next, Beam asserts that, with
respect to the alleged misrepresentation that Beam would roll out a new product line after January
1, 2019, “Plaintiff does not allege that this alleged promise was actually false.” 	[#30 at 12].
However, the Amended Complaint asserts that “Beam falsely represented to Mr. Snyder that it
would roll out its new product line after January 1, 2019.” 	[#23 at ¶ 229]. 	Construing this
allegation as true, as it must, the court finds that this allegation sufficiently alleges that the
representation was false.
In the alternative, Beam asserts that, because Mr. Snyder was terminated before the alleged
promise was due, Mr. Snyder “cannot claim any harm from this alleged promise,” [#30 at 12-13],
but does not cite any authority in support of this proposition. See [id. at 13]. The court disagrees
with Beam’s argument. Mr. Snyder alleges that Beam falsely represented that it would establish
a new product line after January 1, 2019, [#23 at ¶ 229], that Mr. Snyder relied on this
representation to accept employment with Beam, [id. at ¶ 231], and that he eventually moved his
family from Arizona to Colorado in conjunction with accepting employment from Beam. [Id. at
¶¶ 140-41]. He asserts that he would not have accepted the job or relocated his family if Beam
had not falsely promised to initiate the product line in 2019, [id. at ¶¶ 121, 144] and that he was
damaged by the misrepresentation. [Id. at ¶ 235]. This is sufficient to allege that Mr. Snyder was
harmed by the alleged misrepresentation by relying on the misrepresentation to his detriment. Cf
Wood v. Houghton Mifflin Harcourt Pub. Co., 569 F. Supp. 2d 1135, 1141 (D. Colo. 2008) (where
the complaint alleged that the plaintiff “relied to his detriment” on the truthfulness of defendant’s
representations in establishing amount of fees to charge defendant, finding that this was “a
sufficient allegation of damages” and that “it would be premature to dismiss the complaint on this
basis at this time”); see also Janes v. LeaderOne Fin. Corp., No. 11-2458-EFM, 2011 WL
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6000838, at *1 (D. Kan. Nov. 30, 2011) (stating that complaint “need not ‘make a case’ against a
defendant or ‘forecast evidence sufficient to prove an element’ of the claim” but “need only ‘allege
facts sufficient to state elements’ of the claim”) (quoting Chao v. Rivendell Woods, Inc., 415 F.3d
342, 347 (4th Cir. 2005) (emphasis in original)).
Misrepresentation Concerning Employment in a Managerial Capacity. 	Finally, Beam
argues that Mr. Snyder cannot state a claim based on an alleged misrepresentation that Beam would
employ Mr. Snyder in a management capacity because “Mr. Snyder’s “own allegations . . .
establish[] that Plaintiff was employed in a managerial capacity.” 	[#30 at 13 (quoting portions
from the Amended Complaint stating that Plaintiff was employed as a Regional Director of Broker
Success, was responsible for helping set sales goals for the sales team, and was responsible for
overseeing a sales team)]. 	In response, Mr. Snyder argues that he has alleged that “rather than
working with Plaintiff to develop a regional and national sales strategy, Defendant assigned
Plaintiff a sales quota, sales goals, and treated him as a sales associate.” [#36 at 14 (citing [#23 at
¶¶ 171-79])].13
In his Amended Complaint, Mr. Snyder asserts that Beam promised to employ Mr. Snyder
in a “management capacity where he would oversee a regional sales team, and eventually, a
national sales team” and that Mr. Snyder relied on that promise in accepting the job offer, [#23 at
¶ 115], that he was hired as a Regional Director, [id. at ¶ 149], that he was eventually given
additional sales goals, which he questioned because he “was hired to, among other responsibilities,
13 The court notes that Mr. Snyder’s characterization of these factual allegations is not patently
obvious from the Amended Complaint. 	The Amended Complaint states that “Mr. Snyder
questioned Mr. Prochak about the new [sales] goals because they had never been discussed before,
and because Mr. Snyder was hired to, among other responsibilities, help drive and set sales goals
for the sales team that he was supposed to manage as a Regional Director.” 	[#23 at ¶ 177].
However, the Amended Complaint does not expressly allege that Beam failed to work with Mr.
Snyder as a Regional Director and instead treated him as a sales associate. See generally [id.].
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help drive and set sales goals for the sales team that he was supposed to manage as a Regional
Director,” [id. at ¶ 177-78], and finally, that Beam’s assurance to Mr. Snyder that it would hire
him in a management capacity was a “false[] represent[ation].” [Id. at ¶ 230]. Whether or not Mr.
Snyder’s eventual role at Beam fit within a “managerial capacity” is a factual dispute between the
Parties that cannot be resolved on a motion to dismiss. 	Hogan, 24 F. App’x at 985. 	Here, the
court must draw all reasonable inferences in favor of Mr. Snyder, W. Watersheds, 869 F.3d at
1193, and based on the allegations set forth above, the court finds that Mr. Snyder has adequately
alleged that, while he was informed he would be employed in a management capacity, his actual
role did not fit that bill. 	Thus, to the extent Beam seeks to dismiss Plaintiff’s fraudulent
misrepresentation claim on the basis that any of the above alleged misrepresentations are not
“actionable misrepresentations,” the Motion to Dismiss is DENIED.
The Particularity Requirements of Rule 9(b). 	In the alternative, Beam asserts that Mr.
Snyder’s allegations fail to meet the particularity requirements of Rule 9(b). 	[#30 at 13].
Specifically, Beam argues that “the Amended Complaint fails to plead the identity of the individual
who allegedly made these representations: (a) Beam would provide health insurance to Plaintiff,
(b) Beam would roll out a new product line [after] January 1, 2019, and (c) Beam would employ
Plaintiff in a management capacity.” [Id.]. In addition, Beam asserts that “Plaintiff also fails to
plead the specific contents of Beam’s alleged misrepresentation with regard to compensation for
the Spreadsheets.” [Id.].
With respect to Beam’s assertion that Plaintiff fails to sufficiently plead a fraudulent
misrepresentation claim based on a failure to identify who represented that “Beam would provide
health insurance to Plaintiff,” the court notes that Mr. Snyder’s fraudulent misrepresentation claim
does not appear to be based on any alleged representation concerning health benefits. See [#23 at
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¶¶ 226-36 (fraudulent misrepresentation claim based only on false representations that Mr. Snyder
would be compensated pursuant to the terms of the offer letter and for the Spreadsheets, that Beam
would create a new product line after January 1, 2019, and that Beam would employ Mr. Snyder
in a management capacity)]. 	Regardless, the court finds that Plaintiff sufficiently alleges the
individual who made this representation to Plaintiff. Indeed, the Amended Complaint alleges that,
on August 1, 2018, Mr. Frommeyer emailed an offer letter to Plaintiff which provided that Mr.
Snyder would receive “One Hundred percent (100%) premiums for employees and dependents,
which was valued at approximately fifteen thousand dollars ($15,000).” [#23 at ¶ 110]. Thus, the
court respectfully disagrees with Defendant’s assertion that “the Amended Complaint fails to plead
the identity of the individual” who allegedly made this representation. See [#30 at 13].
Next, Beam argues that Mr. Snyder has failed to identify the individual(s) who represented
to him that Beam would roll out a new product line after January 1, 2019 and that Beam would
employ Mr. Snyder in a managerial capacity. [Id.]. With respect to the product line, Mr. Snyder
again alleges that he “discussed” new products to be introduced or pushed after January 1, 2019
with certain Beam representatives. 	[Id. at ¶¶ 73, 99, 104, 106]. 	Coupled with Mr. Snyder’s
allegation that Mr. Frommeyer stated that Beam needed an individual to help it bring a new product
line to market [id. at ¶ 83], construing these allegations in the light most favorable to Mr. Snyder,
this court find that Plaintiff satisfies Rule 9(b) at this juncture as to allegations that Beam through
Mr. Frommeyer misrepresented that it would roll out a new product line after January 1, 2019.
[#23 at ¶¶ 73, 83].
With respect to Plaintiff’s management-level role, Mr. Snyder alleges in the Amended
Complaint that Beam was hiring for its Broker Success Manager role, [#23 at ¶ 81], that he
“discussed” a management role with Mr. Frommeyer, [#23 at ¶ 71], and Mr. Prochak, [id. at ¶ 91],
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and that Beam’s “representatives” contacted Mr. Snyder’s reference, Bob Bartlett, and that the
“representative and Mr. Bartlett discussed Mr. Snyder’s qualifications” for a management role.
[Id. at ¶¶ 105-07]. Construing Mr. Snyder’s allegations in the light most favorable to him at this
juncture, this court concludes that Mr. Snyder’s allegations that Mr. Frommeyer “emailed a formal
offer [for Mr. Snyder to] join the company as a Regional Director,” [id. at ¶ 109], and his
discussion with Mr. Prochak that he would oversee a regional sales team and eventually a national
sales team [id. at ¶ 91], are sufficient to identify the identity of individuals who fraudulently
misrepresented to him that Beam would employ him in a management role. 	This is sufficient
pleading to satisfy Rule 9(b).
Finally, Beam argues that Plaintiff fails to “plead the specific contents of Beam’s alleged
misrepresentation with regard to compensation for the Spreadsheets” and thus, dismissal of Claim
Four as to the misrepresentation about Spreadsheets compensation is warranted under Rule 9(b).
[#30 at 13-14]. 	The court disagrees. 	The Amended Complaint consistently alleges that Beam
falsely represented that it would compensate Mr. Snyder for the Spreadsheets—i.e., the contents
of the misrepresentation. See, e.g., [#23 at ¶¶ 79, 85, 113, 123, 160]. Insofar as Beam implies that
Mr. Snyder must allege that a specific dollar amount was offered, see [#30 at 12 (“any type of
promised compensation would depend on the contents of the Spreadsheets once Beam had an
opportunity to learn of their specifics”); at 13-14 (“At the time of the alleged misrepresentation,
Mr. Snyder had not shared any of the specific contents of the Spreadsheets with Beam”) (quotation
omitted)], the court does not find this fatal to Plaintiff’s claim. Although the Amended Complaint
contains 	few 	specific 	details 	with 	respect 	to 	the 	alleged 	misrepresentation 	concerning
compensation for the Spreadsheets, this could very well be due to the fact that Beam’s
misrepresentation contained little details itself, rather than a failure on Mr. Snyder’s part to
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adequately plead all of the details of the misrepresentation. Indeed, accepting Beam’s argument
would preclude any individual from bringing a fraudulent misrepresentation claim unless the
defendant made a concrete, specific-dollar-amount offer, but would shield the defendant from
liability if the defendant simply offered general compensation, even if the plaintiff relied on that
offer. The court declines to read the requirements of Rule 9(b) so strictly, particularly where Beam
has cited no authority requiring otherwise. See [#30 at 13-14].14 Accordingly, insofar as Beam
seeks to dismiss Plaintiff’s Claim Four, the fraudulent misrepresentation claim, on the failure of
pleading, the Motion to Dismiss is DENIED.
B. 	Negligent Misrepresentation
To state a claim of negligent misrepresentation under Colorado law, the plaintiff must
allege that:
(1) one in the course of his or her business, profession or employment; (2) ma[de]
a misrepresentation of a material fact, without reasonable care; (3) for the guidance
of others in their business transactions; (4) with knowledge that his or her
representations will be relied upon by the injured party; and (5) the injured party
justifiably relied on the misrepresentation to his or her detriment.
Allen v. Steele, 252 P.3d 476, 482 (Colo. 2011) (citing Mehaffy, Rider, Windholz & Wilson v. Cent.
14 Beam cites Koch v. Koch Industries, Inc., 203 F.3d at 1202, 1236 (10th Cir. 2000) for the
proposition that “[a] general promise to compensate for an unknown commodity does not satisfy
the particularity requirements of Rule 9(b).” [#30 at 13-14]. Again, if a defendant fraudulently
makes only a general promise of compensation but fails to follow through on that promise, a
plaintiff should not be precluded from bringing a fraudulent misrepresentation claim due to the
defendant’s failure to provide a more specific offer of compensation. Moreover, Koch does not
stand for such a proposition. In Koch, the Tenth Circuit affirmed the grant of summary judgment
in favor of the defendants on the plaintiffs’ fraud claim where the plaintiffs had “specif[ied]
nothing about the content of the alleged misrepresentations,” but had also failed to identify the
time or place of the misrepresentations or identify who made the alleged misrepresentations. 203
F.3d at 1237. Moreover, the alleged misrepresentation in Koch was not the “general promise to
compensate for an unknown commodity”—rather, the plaintiffs had alleged that the defendants
had “fail[ed] to disclose the existence, location, ownership, condition, and true value” of
defendants’ assets, but had not specified what that alleged misrepresentation or concealment
entailed. Id. at 1236-37. The court finds that Koch does not support Defendant’s argument.
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Bank of Denver, N.A., 892 P.2d 230, 236-38 (Colo. 1995)). 	However, Colorado courts have
indicated 	that 	“a 	claim 	of 	negligent 	misrepresentation 	cannot 	be 	based 	solely 	on 	the
nonperformance of a promise to do something at a future time.” High Country Movin’, Inc. v. U.S.
W. Direct Co., 839 P.2d 469, 471 (Colo. App. 1992).
Beam argues that Plaintiff fails to allege a representation to ‘an existing or past fact,’” as
required to state a negligent misrepresentation claim. [#30 at 14]. Mr. Snyder responds that Beam
“fails to fully examine the controlling case law regarding negligent misrepresentation,” arguing
that High Country Movin’ “left open the possibility” that a negligent misrepresentation claim could
be based on the failure to perform a future promise and citing to a recent case out of this District
finding that a negligent misrepresentation claim could be based on failure to uphold a promise to
perform a future obligation. [#36 at 15-16 (citing Schmetter & Assoc., LLC v. Bernzott Capital
Advisors Corp., No. 15-cv-00449-JLK, 2019 WL 4640801, at *10 (D. Colo. 2019))].
In High Country Movin’, the court rejected the plaintiff’s argument that a defendant “may
be held liable for negligently failing to perform as promised.” 839 P.2d at 471. But, the court also
stated that, “[t]o the extent that [the] plaintiff assert[ed] a claim based on deceit,” the claim failed
“because there were no assertions or evidence that at the time the plaintiff was given the assurances
the defendant had no intent to comply with those representations.” Id. (emphasis added) (citing
Restatement (Second) of Torts § 530, Misrepresentation of Intention (1977)). 	In the years since
High Country Movin’, many state and federal courts have paired the legal principle that a negligent
misrepresentation claim can only be based on the misrepresentation of some present or past fact
with the statement that “[a] promise relating to future events without a present intent not to fulfill
the promise is not actionable.” See, e.g., Mehaffy, 892 P.2d at 237; Van Leeuwan v. Nuzzi, 810 F.
Supp. 1120, 1124 (D. Colo. 1993); Pappas v. Frank Azar & Assocs., P.C., No. 06-cv-01024-MSK-
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BNB, 2007 WL 2683549, at *7 (D. Colo. Sept. 7, 2007); Lariviere, Grubman & Payne, LLP v.
Phillips, No. 07-cv-01723-WYD-CBS, 2011 WL 650001, at *17 (D. Colo. Feb. 11, 2011); Byrum
v. Wells Fargo Bank, N.A., No. 14-cv-00227-RBJ, 2015 WL 4575084, at *5 (D. Colo. July 30,
2015); Duffield v. MPC Pipelines Inc., No. 17-cv-00115-MSK-STV, 2017 WL 7311884, at *4 (D.
Colo. Apr. 28, 2017).
Based on this court’s review of the case law, the court believes that the pairing of these
legal principles can be traced back to Kinsey v. Preeson, 746 P.2d 542 (Colo. 1987), where the
Colorado Supreme Court rejected the argument that “misrepresentations about the future are not
actionable,” finding that “[a] promise concerning a future act, when coupled with a present
intention not to fulfill the promise, can be a misrepresentation which is actionable as fraud.” 746
P.2d at 551 (quoting Stalos v. Booras, 528 P.2d 254, 256 (1974) (emphasis added)); see also Stalos,
528 P.2d at 256 (finding that the plaintiff’s allegations concerning representations related to future
promises were “sufficient to form the basis of a cause of action for fraud”) (emphasis added)).
Indeed, Colorado courts setting forth the rule that a future promise, coupled with a present intent
not to perform, can serve as the basis for a misrepresentation claim have only expressly held that
such 	rule 	exists 	in 	the 	context 	of 	fraudulent 	misrepresentation 	claims, 	not 	negligent
misrepresentation claims.
With this in mind, the court compares the elements necessary to state both a fraudulent and
a negligent misrepresentation claim. With respect to fraudulent misrepresentation, a plaintiff must
plead the existence of “a knowing misrepresentation of material fact, reliance on the material
misrepresentation, the right or justification in relying on the misrepresentation, and reliance
resulting in damages.” 	Clark, 69 F. Supp. 3d at 1223. 	Similarly, to state a claim for negligent
misrepresentation, the claimant must allege that a person, in the course of his or her profession,
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made a misrepresentation of material fact without reasonable care, for the guidance of another in
a business transactions, with the knowledge that the other party would rely upon the representation,
and the other party’s justifiable reliance and damages. Allen, 252 P.3d at 482. Thus, setting aside
the business-related elements of a negligent misrepresentation claim, the key distinction between
the two claims is the state of mind with which the representation is mind: a fraudulent
misrepresentation is made knowingly, while a negligent misrepresentation is made without
reasonable care. Clark, 69 F. Supp. 3d at 1223; Allen, 252 P.3d at 482.
The Tenth Circuit has discussed this same distinction. 	See Alpine Bank v. Hubbell, 555
F.3d 1097, 1107 (10th Cir. 2009) (applying Colorado law). In Hubbell, the Tenth Circuit noted
that a negligent misrepresentation claim cannot be based on the non-performance of a promise to
do something at a future time, stating: “This is not some obscure technical rule. 	It is a natural
consequence of the meanings of the terms negligent and misrepresentation.” 	Id. (emphasis in
original). 	As the Tenth Circuit emphasized, “[i]f the promissor intends not to perform, . . . the
misrepresentation (that the promissor intends to perform) is not negligent; it is, rather, knowing
and intentional.” 	Id. 	The Tenth Circuit found that the defendant’s promise to oversee a
construction project “[could not] serve as the predicate for a negligent-misrepresentation claim,”
as it was an unfulfilled promise to do something at a future time. Id. 	However, the Tenth Circuit
also concluded that, if the plaintiffs were asserting that the defendant’s promise was intentionally
false, such an allegation could form the basis for a fraudulent misrepresentation claim. See id. at
1107-08 (construing negligent misrepresentation claim as a fraudulent misrepresentation claim).
Accordingly, the court finds that a claim based upon the misrepresentation of a future
promised, coupled with the present intent to not fulfill that promise, necessarily must be a
fraudulent misrepresentation claim, rather than a negligent misrepresentation claim. Indeed, Mr.
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Snyder does not explain in his Response how a knowing or intentional misrepresentation could be
negligent, rather than fraudulent. See generally [#36]. And the court finds that, in this specific
case, a negligent misrepresentation claim cannot be pled in the alternative to a fraudulent
misrepresentation claim. 	Indeed, if a jury were to find that Beam intentionally made a
misrepresentation—for example, if Beam intentionally misrepresented that it would compensate
Mr. Snyder for the Spreadsheets—such a finding would amount to a conclusion that Beam acted
knowingly, and thus, fraudulently. But if the jury found that Beam had not acted intentionally, a
negligent misrepresentation claim based on that same promise could not succeed, because the
requisite element for a misrepresentation claim based on a future promise—the present intent not
to perform—would not exist. See Hubbell, 555 F.3d at 1107-08; High Country Movin’, 839 P.2d
at 471.
Mr. Snyder does not argue in his Response that his negligent misrepresentation claim is
based on a misrepresentation of a present or past fact, see [#36 at 16-17], and the allegations in the
Amended Complaint do not suggest that the claim is based on anything other than unfulfilled
promises to perform at a future time. See [#23 at ¶¶ 238-40 (alleging that Beam represented that
“it would” compensate Mr. Snyder for the Spreadsheets, compensate him pursuant to the offer
letter, and employ him in a management capacity)]. For these reasons, and based on a full review
of the case law, the court finds that a negligent misrepresentation claim cannot be based on a failure
to perform a future promise. Accordingly, the court will GRANT Defendant’s Motion to Dismiss
as to Plaintiff’s Claim Five and DISMISS Claim Five without prejudice.
C. 	Statutory Fraud
Finally, Beam asserts that Mr. Snyder’s “obtaining workmen by misrepresentation” claim,
or statutory fraud claim—Claim Three, should be dismissed because the Amended Complaint
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“does not allege the type of misrepresentation contemplated by the relevant statute.” [#30 at 15].
Colo. Rev. Stat. § 8-2-104 “makes it unlawful to induce, influence, or persuade an employee15 to
change from one place of employment to another by means of false or deceptive representations.”
Pownell v. Credo Petroleum Corp., No. 09-cv-01540-WYD-KLM, 2011 WL 2580765, at *4 (D.
Colo. June 29, 2011) (footnote added). To state a claim under this statute, a plaintiff must allege
the existence of “false or deceptive representations made by [the] defendant.” Schur v. Storage
Tech. Corp., 878 P.2d 51, 56 (Colo. App. 1994). Beam argues that Mr. Snyder has failed to do so.
[#30 at 16].
First, Beam challenges Mr. Snyder’s allegation that “Beam falsely represented to Mr.
Snyder that Beam would compensate Mr. Snyder pursuant to the terms of Beam’s Offer as
described in Paragraph 110” in the Amended Complaint. [#23 at ¶ 21]; see also [#30 at 16-17].
According to Beam, Mr. Snyder “previously alleged that Beam compensated Plaintiff in excess of
the terms of the Offer,” citing to allegations made in Mr. Snyder’s original complaint alleging that
Beam told Mr. Snyder that he “would be allowed to stay on his health benefits through the end of
the year, and that Mr. Snyder would get one week of severance pay.” [Id. at 17 (quoting [#1 at
¶ 145])]. Beam asserts that these constitute “multiple admissions that Beam exceeded its financial
obligations to Plaintiff,” and because Mr. Snyder now contradicts these facts in his Amended
Complaint, the court should accept Mr. Snyder’s original allegations as true. 	[Id.]. 	The court
respectfully disagrees with Beam. The court has already addressed similar arguments raised by
15 The statute applies to “workmen.” See Colo. Rev. Stat. § 8-2-104. In its Reply, Beam argues
that Mr. Snyder does not qualify as a “workman” under Colo. Rev. Stat. § 8-2-104. See [#37 at
10]. However, Beam does not raise this argument in its Motion to Dismiss. See [#30]. The court
has already decided to not consider new arguments raised in the Reply or Plaintiff’s Sur-Reply,
see supra n.3, so the court does not consider this argument here. See United States v. Leffler, 942
F.3d 1192, 1197 (10th Cir. 2019); Kerber v. Qwest Grp. Life Ins. Plan, 727 F. Supp. 2d 1076, 1079
(D. Colo. 2010).
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Beam that the allegations in the Amended Complaint contradict those in the original complaint,
see supra Section III, and remains unpersuaded by this argument. 	Indeed, even if Beam were
correct that “Beam exceeded its financial obligations to Plaintiff,” this does not necessarily
contradict Mr. Snyder’s assertions that Beam failed to compensate him as promised in the offer
letter. The court declines to dismiss Plaintiff’s Claim Three on this basis.16
Next, Beam asserts that Plaintiff’s allegation that “Beam falsely represented to Mr. Snyder
that it would employ him in a management capacity,” see [#23 at ¶ 219], does not constitute a
misrepresentation because “Plaintiff was actually employed in a management capacity” and
“pleads facts that prove [the representation concerning management-capacity employment] was
true.” [#30 at 17]. In support, Beam cites to paragraphs in the Amended Complaint alleging that
“Mr. Snyder was responsible for overseeing a sales team and working with Beam’s upper
management and individual sales representatives to introduce Beam to new markets.” [Id. (citing
[#23 at ¶ 174])]. The court disagrees with Beam, which is attempting to insert factual disputes not
properly considered at the motion-to-dismiss stage. Insofar as there is a factual dispute concerning
whether or not Mr. Snyder’s role at Beam can be deemed to be in the “management capacity,” the
court cannot decide this question in ruling on Defendant’s Motion to Dismiss. Hogan, 24 F. App’x
16 Beam also appears to assert that Plaintiff’s allegation that “Beam falsely represented to Mr.
Snyder that Beam would compensate Mr. Snyder for the Spreadsheets,” see [#23 at ¶ 217], is
insufficient to state an actionable misrepresentation. See generally [#30 at 16]. However, Beam
does not offer any substantive argument concerning why this alleged promise is insufficient to
state a claim under § 8-2-104. See [id. at 16-18]. Instead, Beam focuses on the misrepresentations
concerning compensation in the offer letter, the management role, and the product roll-out. See
[id.]. “Underdeveloped arguments raised in a perfunctory manner” are generally deemed waived.
Fed. Trade Comm’n v. A.S. Rsch., LLC, No. 19-cv-03423-PAB-KMT, 2020 WL 4193507, at *2
(D. Colo. July 21, 2020). 	Because Beam raises no substantive argument explaining why this
alleged misrepresentation is “insufficient” or “wander[s] further from an actionable claim for
relief,” see [#30 at 16-18], the court declines to address Plaintiff’s statutory fraud claim for failure
to state a claim on this basis.
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at 985. 	Moreover, Mr. Snyder alleges in his Amended Complaint that sales goals given to Mr.
Snyder were inconsistent with the fact that “Mr. Snyder was hired to, among other responsibilities,
help drive and set sales goals for the sales team that he was supposed to manage as a Regional
Director.” 	[#23 at ¶ 177 (emphasis added)]. 	Construing these facts as true and drawing all
inferences in Mr. Snyder’s favor, the court finds this allegation sufficient to imply Mr. Snyder was
not actually employed in a management role.
Beam next argues that the allegation that “Beam falsely represented to Mr. Snyder that it
would roll out its new product line after January 1, 2019” is insufficient to state a claim because
promises related to future obligations to perform are not actionable under § 8-2-104, citing Nelson
v. Gas Research Inst., 121 P.3d 340, 344-45 (Colo. App. 2005). [#30 at 18]. Mr. Snyder responds
that this statement is a misrepresentation of the case law and asserts instead that, under Nelson, a
future promise can be actionable under § 8-2-104 if it is accompanied with a present intention not
to fulfill the promise. 	[#36 at 12-13]. 	Beam counters that Plaintiff’s argument misinterprets
Nelson, arguing that Nelson “precludes recovery for ‘predictions of future events under C.R.S. § 8-
2-104.” [#37 at 9-10].
The court finds that neither Party’s interpretation of Nelson is precisely on point. In that
case, the Colorado Court of Appeals considered whether a plaintiff was required to demonstrate
fraud in order to succeed on a claim under § 8-2-104, or whether there was a lower standard of
“false pretenses” that the plaintiff could use to demonstrate the requisite misrepresentation, as the
plaintiff argued. 121 P.3d at 343. First, the court finds that the Nelson court did not, as Plaintiff
suggests, hold that future representations are actionable under § 8-2-104. 	Instead, the court, in
setting forth the legal standard for common law fraud, stated that “[f]raud requires more than the
. . . failure to fulfill an agreement to do something at a future time[,] . . . [u]nless the speaker
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making the representations deliberately falsified his or her intention to induce reliance.” Id. But,
the Nelson court never expressly held that future unfulfilled promises could be the basis of a § 8-
2-104 claim, as Plaintiff suggests. See [#36 at 12].
Defendant’s characterization of Nelson fares no better. 	The Nelson court affirmed
summary judgment in favor of the defendants on the plaintiff’s § 8-2-104 claim on the basis that
the 	plaintiff 	had 	failed 	to 	establish 	justifiable 	reliance 	on 	the 	defendant’s 	alleged
misrepresentations that, inter alia, if the plaintiff moved to Colorado, he would become a principal
employee of the defendant company and become eligible for stock. 121 P.3d at 345. In so finding,
the court relied on the plaintiff’s representations that he “knew at the time the statements were
made they were not commitments or facts but simply predictions of future events,” that “[t]here
was no offer of a job . . . on the table,” there were “questions in [the plaintiff’s] mind as to whether
[the deal was] going to happen,” and that there were “significant barriers” to the plaintiff’s
relocation to Colorado. Id. at 344. Based on these statements, the court concluded that no genuine
issue of material fact existed with respect to whether the plaintiff justifiably relied on the
defendant’s alleged misrepresentations. Id. at 345. But contrary to Defendant’s assertion, see [#37
at 9-10], the Nelson court did not hold that promises based on future acts are not cognizable in a
§ 8-2-104 claim.
No Colorado state court has expressly addressed whether a claim based on the failure to
fulfill a future promise can be the basis of a § 8-2-104 claim. 	Absent clear guidance from the
Colorado Supreme Court, a federal court exercising diversity jurisdiction must make a prediction
as to how that court would rule. See Pehle v. Farm Bureau Life Ins. Co., 397 F.3d 897, 901 (10th
Cir. 2005) (“Because Wyoming has not directly addressed this issue, this court must make an Erie-
guess as to how the Wyoming Supreme Court would rule.”). “This rule also applies when a federal
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court exercises supplemental jurisdiction over state law claims in a federal question lawsuit.”
BancOklahoma Mortg. Corp. v. Cap. Title Co., 194 F.3d 1089, 1103 (10th Cir. 1999). In making
an Erie-guess, “courts look to decisions of the state court of appeals as strongly persuasive, if not
governing, authority as to how the state supreme court would rule. Koch v. Koch Indus., Inc., 203
F.3d 1202, 1230 (10th Cir. 2000) (“Furthermore, this court must follow any intermediate state
court decision unless other authority convinces us that the state supreme court would decide
otherwise.” (formatting altered) (quoting Daitom, Inc. v. Pennwalt Corp., 741 F.2d 1569, 1574
(10th Cir. 1984)); see also, e.g., U.S. ex rel. Sun Constr. Co. v. Torix Gen. Contractors, LLC, No.
07-cv-01355-LTB-MJW, 2011 WL 841277, at *1 (D. Colo. 2011).
In predicting how the Colorado Supreme Court would decide this issue, this court finds the
plain language of the statute instructive:
It is unlawful for any person, company, corporation, society, association, or
organization of any kind doing business in this state, by itself or its agents or
attorneys, to induce, influence, persuade, or engage workmen to change from one
place of employment to another in this state, or to bring workmen of any class or
calling into this state to work in any of the departments of labor in this state, through
or by means of false or deceptive representations, false advertising, or false
pretenses concerning the kind and character of the work to be done, or amount and
character of the compensation to be paid for such work. . . .
Colo. Rev. Stat. § 8-2-104 (emphasis added). 	Indeed, the statute expressly prohibits the
inducement of relocation into the state for employment purposes based on false representations
including, inter alia, work “to be done” or compensation “to be paid.” Id. A promise concerning
the work to be done or compensation to be paid is necessarily a promise related to future
circumstances. 	The court finds that, based on this language, the Colorado General Assembly
intended this statute to permit claims based on promises to fulfill future obligations. See Vigil v.
Franklin, 103 P.3d 322, 327 (Colo. 2004) (stating that the court’s “primary duty in construing
statutes is to give effect to the intent of the General Assembly, looking first to the statute’s plain
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language,” and if “a statute is clear and unambiguous on its face, then [the court] need not look
beyond the plain language.”). 	Moreover, this court “look[s] to decisions of the state court of
appeals as strongly persuasive, if not governing, authority” in predicting how the Colorado
Supreme Court would rule here. 	Koch, 203 F.3d at 1230. 	The Nelson court, in reviewing the
plaintiff’s claim, noted that that “the record contain[ed] no evidence that the statements [the
plaintiff allegedly relied on] were false when made or were made with the intent not to perform.”
121 P.3d at 344. This statement, as Plaintiff asserts, appears to suggest that such a claim could be
cognizable under § 8-2-104, if there is evidence in the record that the defendant had no intention
to rely on its future promise when it made that promise. Cf. id. (“The elements a plaintiff must
establish to sustain an action under § 8-2-104 are the same as those for common law fraud.”).
Based on the plain language of the statute and this precedent, the court finds that the Colorado
Supreme Court would hold that a § 8-2-104 claim based on a future promise is cognizable.
Moreover, courts in this District have recognized that a claim may be brought under § 8-2-
104 based on the alleged misrepresentations of future promises. See, e.g., Roberts v. Conoco, Inc.,
717 F. Supp. 724, 726 (D. Colo. 1989) (stating that “[a] promise to perform a future act creates
liability if the defendant had the intention, at the time the statement was made, not to fulfill the
promise” in discussion of § 8-2-104 claim); Young v. Kiewit Corp., No. 17-cv-01251-WYD-MEH,
2018 WL 3382928, at *3 (D. Colo. Jan. 25, 2018) (denying motion to dismiss claim under § 8-2-
104 arising out of “promises about future events regarding such things as permanent employment
and the amount of stock options Plaintiff would receive” where the plaintiff had “specifically
allege[d] that [the defendant] had no intention at the time of the representations of following
through on their many and various false promises”); Boeser v. Sharp, No. 03-cv-00031-WDM-
MEH, 2006 WL 898126, at *4 (D. Colo. Mar. 31, 2006) (rejecting argument that there was no
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false or deceptive representation for § 8-2-104 claim because the alleged misrepresentations were
predictions of future events where there were issues of fact as to whether the defendant intended
at the time of the misrepresentation to not fulfill its promise). Absent any state-court authority to
the contrary, the court elects to follow this precedent and the plain language of the statute and finds
that a claim under § 8-2-104 may be based on the failure to fulfill a future promise, so long as the
defendant had no intention of fulfilling that promise at the time of the misrepresentation. Roberts,
717 F. Supp. at 726; Nelson, 121 P.3d at 343. 	Accordingly, the court declines to dismiss Mr.
Snyder’s statutory fraud claim insofar as it is based on an alleged misrepresentation or promise to
perform a future act.
In the alternative, Beam argues that Plaintiff could not have been harmed by this
misrepresentation because he was fired on November 16, 2018, “well before the January 1, 2019
target date that Beam intended to roll out its new product line.” [#30 at 18]. According to Beam,
“[i]t is therefore impossible for Plaintiff to be harmed in any way by this representation.” [Id.].
Defendant has cited no authority directly in support of this assertion. [Id.].17
The court respectfully disagrees with Beam’s argument. The Amended Complaint alleges
that Beam falsely represented to Mr. Snyder that it would start a new product line after January 1,
2019, [#23 at ¶ 218]; that Mr. Snyder relied on that promise when accepting employment with
Beam, [id. at ¶ 252]; which included moving his family from Arizona to Colorado, [id. at ¶ 142];
17 Insofar as Beam cites Nelson for the proposition that Plaintiff “fails to establish any damage
flowing from Plaintiff’s alleged reliance, see [#30 at 18 n.4], Nelson was a summary-judgment
case in which the court found that Plaintiff had not demonstrated a disputed issue of fact as to
whether he justifiably relied on the alleged assurances. 121 P.3d at 344. In contrast, Plaintiff need
not present evidence or establish a genuine issue of fact in defending against a motion to dismiss,
and all factual disputes are construed in favor of Mr. Snyder. 	See AKH Co. v. Universal
Underwriters Ins. Co., No. CIV.A. 13-2003-JAR, 2015 WL 4572778, at *2 (D. Kan. July 28,
2015); W. Watersheds, 869 F.3d at 1193.
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and that he would not have accepted the offer or moved his family absent that promise. 	[Id. at
¶¶ 121, 144]. 	Mr. Snyder also alleges that, due to Beam’s misrepresentations, he suffered
damages. [Id. at ¶ 189]. The court finds these allegations sufficient to allege that Mr. Snyder was
damaged by Beam’s alleged misrepresentation concerning its product line and declines to dismiss
this claim.18
Finally, insofar as Beam generally asserts that Mr. Snyder fails to state a claim under § 8-
2-104 because he “does not plead in his Amended Complaint how the alleged misrepresentations
were actually false,” see [#30 at 16], this court disagrees. Mr. Snyder sufficiently alleges how the
alleged misrepresentations were false by alleging that Beam failed to fulfill its promises. 	For
example, Mr. Snyder alleges in his Amended Complaint that Beam violated § 8-2-104 when it
“falsely represented” that it would compensate Mr. Snyder pursuant to the terms of the offer letter,
that it would compensate Mr. Snyder for the Spreadsheets, that it would roll out its product line
after January 1, 2019, and that it would employ Mr. Snyder in a management capacity. [#23 at
¶¶ 216-19]. Mr. Snyder then alleges how these representations were false. For example, he alleges
that he did not receive compensation in the form of stock options or receive health benefits, both
of which were provided in the offer letter, [id. at ¶¶ 185-86], and that he never received
compensation for the spreadsheets. 	[Id. at ¶ 187]. 	By alleging he was promised certain
compensation and subsequently alleging he never received that compensation, Mr. Snyder has
18 Beam also asserts that “Plaintiff does not allege that Beam failed to meet this goal [of rolling
out its product line after January 1, 2019].” [#30 at 18]. “Underdeveloped arguments raised in a
perfunctory manner” are generally deemed waived. Fed. Trade Comm’n v. A.S. Rsch., LLC, No.
19-cv-03423-PAB-KMT, 2020 WL 4193507, at *2 (D. Colo. July 21, 2020). 	Moreover, Mr.
Snyder 	alleges 	that 	the 	representation 	concerning 	Beam’s 	product 	line 	was 	a 	“false[]
represent[ation]” and a “false[] promise[]” and states that, at the time it made this representation,
Beam did not intent to fulfill it. [#23 at ¶¶ 115-16, 218, 247]. These allegations are sufficient to
categorize this representation as an alleged misrepresentation.
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sufficiently alleged how those representations were false. Moreover, Mr. Snyder alleges that the
new sales goals he was given in October 2018 were inconsistent with both the planned product
line roll-out and his promised role as a manager. [Id. at ¶¶ 176-78]. Such allegations are sufficient
to create a reasonable inference that Beam did not employ Mr. Snyder in a management capacity
as promised, and that it falsely represented a plan to roll out a new product line after January 1,
2019. 	W. Watersheds, 869 F.3d at 1193. For all of these reasons, to the extent that Beam seeks
dismissal of Claim Three, the Motion to Dismiss is DENIED.
IV. 	Value and Damages
Finally, Defendant argues that Mr. Snyder has failed to properly allege damages or that the
Spreadsheets have any economic value and for this reason, Plaintiff’s Claims One, Two, and Four
must be dismissed.19 [#30 at 18-20]. The court addresses these arguments in turn.
Damages. With respect to damages, Beam argues that a claimant’s showing of damages
is a necessary element of trade secret misappropriation. 	[Id. at 18 (citing 18 U.S.C. § 1836
(b)(3)(B)(I) and Colo. Rev. Stat. § 7-74-104)]. However, neither of the statutes cited by Defendant
supports this statement. Indeed, CUTSA states that “a complainant is entitled to recover damages
for misappropriation,” including “both the actual loss caused by misappropriation and the unjust
enrichment caused by misappropriation that is not taken into account in computing actual loss.”
Colo. Rev. Stat. § 7-74-104(1) (emphasis added). And with respect to DTSA, the statute provides
that, in a civil action for trade secret misappropriation, “a court may . . . award . . . damages for
actual loss caused by the misappropriation of the trade secret; and . . . damages for any unjust
enrichment caused by the misappropriation of the trade secret that is not addressed in computing
19 Beam also asserts this argument with respect to Plaintiff’s Claim Five. See [#30 at 20]. Because
this court has already determined that Claim Five should be dismissed, the court does not address
this argument with respect to Claim Five.
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damages for actual loss. . . .” 18 U.S.C. § 1836(b)(3)(B)(i) (emphasis added). Thus, a successful
plaintiff in a trade secret misappropriation case under either DTSA or CUTSA may obtain damages
for actual harm, but may also be awarded damages for the defendant’s unjust enrichment. 	See
Cypress Advisors, Inc. v. Davis, No. 17-cv-01219-MSK-KLM, 2019 WL 7290948, at *4 (D. Colo.
Aug. 28, 2019) (“[E]ven if the Defendants are correct that Cypress cannot show that it was actually
injured by the misappropriation – and the Court makes no findings on that point – Cypress may
still be able to demonstrate the extent to which C2 benefitted from the use of Cypress’ trade secrets
and recover that amount.”). Beam’s assertion otherwise is incorrect.
Without passing on the merits of Mr. Snyder’s claims, “this Court is satisfied that the law
would permit [Mr. Snyder] a recovery even if [Beam] were correct that [Mr. Snyder] had not
suffered any injury of [his] own.” Id.; see also API Americas Inc. v. Miller, 380 F. Supp. 3d 1141,
1154 	(D. 	Kan. 	2019) 	(rejecting 	argument 	that 	defendant 	was 	entitled 	to 	judgment 	on
misappropriation claim for plaintiff’s failure to plead monetary damages because the plaintiff was
entitled to seek injunctive relief under DTSA); Wolf Auto Ctr. Sterling, LLC v. Schadegg, No. 15-
cv-01035-MSK-KLM, 2016 WL 10570867, at *3 (D. Colo. Oct. 31, 2016) (“CUTSA provides a
broad remedy for ‘misappropriations’ of trade secrets; . . . the owner of the trade secret may recover
for ‘the actual loss caused by [the use of the secret]’ as well as any unjust enrichment that the
defendant obtained as a result of that use.”); Johns Manville Corp. v. Knauf Insulation, LLC, No.
15-cv-00531-RBJ-KLM, 2017 WL 4222621, at *11 (D. Colo. Sept. 22, 2017) (“Colorado courts
applying the CUTSA allow plaintiffs to recover “for both compensatory damages and the
defendant’s profits from the misappropriation.”) (quotation omitted).
Even so, the court is satisfied that Mr. Snyder has adequately pleaded the existence of harm
or damages in the Amended Complaint, including for his claim of fraudulent misrepresentation.
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A complaint “must give just enough factual detail to provide fair notice of what the . . . claim is
and the grounds upon which it rests,” Warnick v. Cooley, 895 F.3d 746, 751 (10th Cir. 2018), and
the court finds that the Amended Complaint meets this standard. Mr. Snyder asserts that he relied
on Beam’s representations in accepting his position and moving his family from Arizona to
Colorado, that Beam’s representations were false, and that Beam’s misrepresentations thus caused
him to suffer damages. See [#23 at ¶¶ 142-43, 145, 231, 235]. These allegations are sufficient to
put Beam on notice of the basis of Plaintiff’s claims. Janes, 2011 WL 6000838, at *1.
Value of the Spreadsheets. As to the value of the Spreadsheets, Beam contends that they
“do not have any economic value whatsoever” and thus Plaintiff could not have been harmed by
Beam’s alleged usage of the Spreadsheets. 	[#30 at 19]. 	According to Beam, even if Beam
benefitted from the Spreadsheets, Mr. Snyder was not deprived of any value and thus suffered no
harm. [Id. at 19-20]. For reasons similar to those set forth immediately above, the court is similarly
not persuaded by Beam’s argument. As previously stated, Mr. Snyder can recover damages on his
claims even if he did not himself suffer damages, including if the Spreadsheets did not diminish in
value. Mr. Snyder alleges in his Amended Complaint that Beam has “continued to profit from its
use of the Spreadsheets,” see [#23 at ¶¶ 184, 200, 212], and if proven at trial, Mr. Snyder may be
entitled to recover those profits. Cypress Advisors, 2019 WL 7290948, at *4.
For these reasons, the Motion to Dismiss is DENIED insofar as it seeks to dismiss Claims
One, Two, Four, and Five based on a failure to allege damages or the value of the Spreadsheets.
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CONCLUSION
For the reasons stated herein, IT IS ORDERED that:
(1) 	Beam Technologies, Inc.’s Partial Motion to Dismiss Claims I – V [#30] is
GRANTED IN PART as to Plaintiff’s Claim V and DENIED IN PART as to the
remainder; and
(2) 	Plaintiff’s Claim Five is DISMISSED without prejudice.
DATED: August 16, 2021 	BY THE COURT:
_________________________
Nina Y. Wang
United States Magistrate Judge
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