CONVOYANT LLC v. DEEPTHINK LLC (2022)

¶ 1 In our system of divided government, federal courts have the power to apply state law but not to decide state law. See In re Elliott, 74 Wash.2d 600, 602, 446 P.2d 347 (1968) (plurality opinion); Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S. Ct. 817, 82 L. Ed. 1188 (1938). Most states and some territories, including Washington, allow federal judges to ask state or territorial supreme courts to answer open questions of state or territorial law when a resolution of that question is necessary to resolve a federal case. See RCW 2.60.020; McKown v. Simon Prop. Grp. Inc., 689 F.3d 1086, 1091 (9th Cir. 2012) (quoting Bylsma v. Burger King Corp., 676 F.3d 779, 783 (9th Cir. 2012)).

¶ 2 A federal district court has certified this question to the court:

When analyzing whether a claim is preempted by the Washington Uniform Trade Secrets Act, ch. 19.108 RCW, should courts apply the “fact-based” approach set forth in Thola v. Henschell [140 Wash.App. 70,] 164 P.3d 524 (2007), or the “elements-based” approach endorsed in SEIU Healthcare Northwest Training Partnership v. Evergreen Freedom Foundation [5 Wash.App.2d 496,] 427 P.3d 688 (2018)?

Order Certifying Question, Convoyant LLC v. DeepThink, LLC, No. C21-0310JLR at 6, 2022 WL 36726 (W.D. Wash. Jan. 3, 2022).

¶ 3 Once this court has accepted a certified question, the question is treated, in most ways, like a contested appellate case presented by genuinely adverse parties, each strongly advocating a different resolution to the legal question presented. See, e.g., Bain v. Metro. Mortg. Grp., Inc., 175 Wash.2d 83, 91, 285 P.3d 34 (2012) (citing Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 149 Wah.2d 660, 670, 72 P.3d 151 (2003)). This court has the discretion to decide whether and how to answer a certified question. Id. (citing Broad v. Mannesmann Anlagenbau, A.G., 141 Wash.2d 670, 676, 10 P.3d 371 (2000)).

¶ 4 The parties before us agree that a fact-based approach should be used in this case. Given their agreement, our resolution of the certified question is not necessary under RCW 2.60.020 or appropriate under the general rule that the court will not decide moot and abstract propositions. See State v. B.O.J., 194 Wash.2d 314, 320-21, 449 P.3d 1006 (2019) (quoting Sorenson v. City of Bellingham, 80 Wash.2d 547, 558, 496 P.2d 512 (1972)). There has also been no showing by the parties that this is the sort of question that is likely to avoid review, which might justify a decision on the legal question even if the issue was, as to the parties before the court, moot. See id. (quoting In re Det. of Swanson, 115 Wash.2d 21, 24-25, 793 P.2d 962 (1990)). Given these circumstances, and given the lack of genuinely adversarial briefing, we decline to answer the certified question.

GONZÁLEZ, C.J.

WE CONCUR: Johnson, J. Madsen, J. Owens, J. Stephens, J. Gordon McCloud, J. Yu, J. Whitener, J. Mann, J.Montoya-Lewis, J., did not participate