Can You Keep a Secret?: Dispute Remains Over Secrecy of Marketing Information in Trade Secret Case

An interesting case decided on April 3 in Florida confirms the axiom that information that is not secret cannot be a trade secret. In Godwin Pumps of America, Inc. v. Ramer, Godwin sued its former employee, Ramer, for, among other things, trade secret misappropriation under Florida’s Uniform Trade Secret Act (see here for more on the Act). Godwin argued that there was nothing in dispute for a jury to hear on Ramer’s liability and moved for the judge to enter summary judgment against Ramer. The judge denied the motion on the trade secret claim because there was a dispute over whether the information Ramer acquired—including information on Godwin’s customers, pricing, products, and services—was actually secret. Ramer argued that information on Godwin’s products and pricing is available on the Internet, that the state government publishes information that can be used to identify Godwin’s potential or current customers, and information like that at issue in the case is routinely acquired and collected by competitors from external sources, such as customers. The court was convinced to let the case go to trial. Similar arguments have held up in Massachusetts courts. See, e.g., Campbell Soup Co. v. Giles, 47 F.3d 467, 469-70, 472 (1st Cir. 1995) (affirming denial of preliminary injunction by Massachusetts district court in trade secret case determined in part because “most of the marketing information was no longer confidential in light of its public disclosure” to customers and in published sales materials and syndicated data sources).      

The lesson here is that employers should think about the confidential information a departed employee may possess before filing a trade secret claim. Former employees frequently will argue that information is not secret to defend against such claims, and sometimes those arguments are hard to overcome.

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