Retail Services WIS Corp. v. Crossmark, Inc., a preliminary-injunction case involving the alleged misuse of trade secrets, made these observations (among others):

  • Trade secret existence. The plaintiff adequately established the existence of a trade secret with testimony that “(1) Crossmark possesses information it considers confidential, including playbooks and digital transformation strategies, that would give a competitor ‘insight into what we’re working on’ and an opportunity ‘to cut corners and create a shortcut to allow them to be able to compete effectively and potentially even, you know, take it further faster than we are’; 2) Crossmark takes multiple steps to protect that information, including limiting access and requiring employees to sign confidentiality agreements; and (3) the digital demo display customers see in stores is ‘just the tip of the iceberg’ and does not constitute the entirety of Crossmark’s strategy.
  • Order specificity. While the Court said that “much of th[e] provision is conclusory” that described the harm justifying the injunction, it concluded: “[T]wo portions address ‘reasons why’ Crossmark will suffer irreparable injury: ‘because once CROSSMARK trade secrets are improperly used and disclosed, they are forever lost and such loss is cannot be calculated in money damages’ and ‘CROSSMARK’s customer and client goodwill, which has been developed over many years, will be harmed and such harm cannot be quantified in money damages.’”

The Court went on to identify a number of problems with the specificity of the enjoined acts, as well as the requirement that certain electronic storage devices be turned over, and the details of those holdings will be reviewed in a future post. No. 05-20-00937-CV (May 4, 2021) (mem. op.).

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