If the information our NDA protects is not a trade secret, is there anything left to sue on?
Yes, in Wisconsin. The Supreme Court of Wisconsin held in Burbank Grease that Wis. Stat. § 134.90(6)(a) does not preclude all other civil remedies based on the misappropriation of confidential information where the information does not meet the statutory definition of a trade secret under § 134.90(1)(c), and that § 134.90(6)(b)2 permits civil tort remedies based on the misappropriation of that other confidential information. The subsection the court construed says that, except as provided in par. (b), § 134.90 displaces conflicting tort law, restitutionary law and any other law of this state providing a civil remedy for misappropriation of a trade secret, while par. (b) preserves any contractual remedy whether or not based on misappropriation of a trade secret, any civil remedy not based on misappropriation of a trade secret, and any criminal remedy. Because the plaintiff's complaint stated other common-law claims and material facts relevant to them were disputed, dismissing the complaint was error; the court affirmed in part, reversed in part and remanded.
The trap
Wisconsin's reading is narrower than the displacement rule some courts have drawn from the Uniform Trade Secrets Act, but it is not an outlier: reviewing the out-of-state decisions urged against it, the court found that only a few of them supported displacing all claims over information outside the definition, and it identified a class of decisions holding that the Act does not abrogate such claims, the class it said this case would easily fit. Nor does the Act's own uniformity direction in § 134.90(7) change the answer, because on the court's reading that subsection reaches only the misappropriation of a statutorily defined trade secret. So a confidentiality clause drafted on the assumption that everything outside the statutory definition is unprotected understates what a Wisconsin plaintiff can plead, and a defendant who wins the trade-secret point has not won the case. Burbank Grease decided a second question the other way in the same opinion: Wis. Stat. § 943.70(2) does not apply when an individual lawfully obtains computer-stored confidential information and later misappropriates it, so the computer-crime route was properly dismissed. Section 134.90 is not in the Wisconsin statutes available for this research, but the definition is reachable through the law we hold: the Supreme Court of Wisconsin set § 134.90(1)(c) out in North Highland. A trade secret is information, including a formula, pattern, compilation, program, device, method, technique or process, that derives independent economic value, actual or potential, from not being generally known to and not readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use, and that is the subject of efforts to maintain its secrecy that are reasonable under the circumstances. The court set those words out while holding it need not decide whether the information in front of it qualified, so what counts as reasonable secrecy efforts on any given facts is not settled here.
9 authorities
The words that state the rule
We conclude that § 134.90(6)(a) does not preclude all other civil remedies based on the misappropriation of confidential information, if the information does not meet the statutory definition of a trade secret under § 134.90(l)(c). Accordingly, in the case before us, § 134.90(6)(b)2 permits civil tort remedies based on the misappropriation of confidential information.
The words that state the rule
However, we also conclude that § 943.70(2) does not apply when an individual lawfully obtains computer-stored confidential information, but later misappropriates it.
The words that state the rule
Therefore, because the plaintiffs complaint stated other common law claims and because material facts relevant to those claims are disputed, it was error to dismiss the complaint.
The words that state the rule
Accordingly, the plaintiffs § 943.70(2) claim was properly dismissed on summary judgment. Accordingly, we affirm in part; reverse in part and remand to the circuit court for further proceedings.
The words that state the rule
Wisconsin Stat. § 134.90(6) states: Effect on other laws, (a) Except as provided in par. (b), this section displaces conflicting tort law, restitu-tionary law and any other law of this state providing a civil remedy for misappropriation of a trade secret. (b) This section does not affect any of the following: 1. Any contractual remedy, whether or not based upon misappropriation of a trade secret.
The words that state the rule
The plain language of subsec. (7) relates only to the "misappropriation of trade secrets," which, according to our analysis of subd. (6)(b)2 and the plain meaning of subsec. (7) , requires a statutorily-defined trade secret as a prerequisite. Our construction in this regard is in accord with the promotion of uniformity by subsec. (7), because the statutory definition of a trade secret is made uniform throughout the states enacting a version of the Uniform Trade Secrets Act (UTSA), and our application of that definition has been in accord with other UTSA jurisdictions.
The words that state the rule
We recognize that Wis. Stat. ,§ 134.90 is derived from the UTSA; that 44 states have adopted some version of the UTSA; and that those states' interpretations of similar statutes may serve as useful extrinsic sources to assist in statutory construction, if required. However, as explained above, we conclude that the legislative history of Wisconsin's enactment of *295 the UTSA is more persuasive because it affirms the plain meaning of § 134.90(6)(b)2. ¶ 32. Furthermore, even if we were to employ cases from other jurisdictions as extrinsic sources for the interpretation of Wis. Stat. § 134.90 , we conclude that they do not support the conclusion that all of Burbank's tort claims based on the misappropriation of confidential information have been abrogated. 8 Our review of the cited cases shows that only a few of them support the conclusion of the court of appeals.
The words that state the rule
But rather, after a review of all of those cited decisions, we determine that three categories of cases emerge: (1) when the claims are based only on the misuse of confidential information that fits the statutory definition of a trade secret, a claim under the UTSA is the only tort claim available; 10 (2) when the claims are *296 based on the misuse of confidential information that does not meet the statutory definition of a trade secret, the UTSA does not abrogate those claims; 11 and (3) when the claims are based on misuse of confidential information, some of which meet the statutory definition of a trade secret and some of which do not, the UTSA abrogates claims only to the extent that they are based on a trade secret; separate claims based on other factual allegations survive. 12 These classes of cases are *297 helpful and Burbank could easily fit within those cases comprising the second class.
- case2017 WI 75North Highland Inc. v. Jefferson Machine & Tool Inc.Wis.decided 2017read it at the source ↗
The words that state the rule
Pursuant to Wis. Stat. § 134.90 (l)(c), a trade secret is defined as a specific type of information: "Trade secret" means information, including a formula, pattern, compilation, program, device, method, technique or process to which all of the following apply: 1. The information derives independent economic value, actual or potential, from not being *514 generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use. 2. The information is the subject of efforts to maintain its secrecy that are reasonable under the circumstances.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.