Welcome to WilmerHale’s bulletin on recent trade secret case law and relevant news items.  We’ve affectionately nicknamed it “Readily Ascertainable” because, unlike a trade secret, it should be easy to figure out.  If you have any questions about these cases or the legal issues they implicate, our trade secret experts would be delighted to answer them.

This was a busy month for appellate decisions. Our cases this month include a Third Circuit opinion holding that a spreadsheet of passwords to corporate systems is not a trade secret, a Ninth Circuit opinion upholding an Oregon law permitting regulators to sometimes disclose trade secrets, a Tenth Circuit opinion exploring the distinction between the federal requirement for a plaintiff to prove “ownership” of an alleged trade secret, and the distinct requirement under some states’ Uniform Trade Secret Act (UTSA) statutes requiring only possession, and an Eleventh Circuit opinion addressing the mens rea requirement for misappropriation liability in the context of salvaging a sixteenth century shipwreck. We also highlight several notable trial court decisions, including a district court order bifurcating proceedings on the plaintiff’s trade secret ownership and the defendant’s liability, and a pair of trial court decisions addressing the limits of the reasonable royalty remedy.

NRA Group, LLC v. Durenleau, 2025 WL 2449054, --F.4th-- (3d Cir. Aug. 26, 2025)

Third Circuit holds that passwords are not trade secrets.

This case arose from claims of sexual harassment and retaliation by the plaintiff company’s CEO against the defendants, who were former employees. Following the defendants’ resignation, the company asserted inter alia a federal Computer Fraud and Abuse Act claim and federal and Pennsylvania trade secret misappropriation claims related to an instance in which one defendant emailed the other a spreadsheet containing passwords for dozens of proprietary systems. The Third Circuit affirmed the district court’s grant of summary judgment for the former employees, holding that the spreadsheet was not itself a protectable trade secret because none of the passwords themselves, nor the combination of passwords together, had independent economic value by virtue of their secrecy. As the Court explained, “it is what the passwords protect, not the passwords, that is valuable.” And “while the leak of actual trade secrets with independent economic value can endanger a business, [the plaintiff] immediately remedied the problem by simply changing the passwords. (Query whether Coca-Cola could remedy the leak of its recipe, a quintessential trade secret, merely by changing the ingredients in Coke.)” 

Pharmaceutical Research and Manufacturers of America v. Stolfi, 2025 WL 2448851, --F.4th-- (9th Cir. Aug. 26, 2025)   

Ninth Circuit reverses Takings Clause challenge to Oregon’s law that permits public disclosure of trade secret cost, revenue, and pricing information if release of such information is deemed to serve the public interest.

This case involves a constitutional challenge to an Oregon law that inter alia requires prescription drug manufacturers to report to a state regulator certain information concerning the costs, revenues, and prices of certain prescription drugs. While this information is generally subject to public disclosure, there is an exception for information deemed to be a trade secret so long as the public interest does not require disclosure. A trade association successfully sued, arguing that the law’s contemplated disclosure of trade secrets amounts to an uncompensated taking of property. The Ninth Circuit reversed, holding that the public interest exception to the non-disclosure of trade secrets does not in every instance upset reasonable investment-backed expectations of trade secrecy. Specifically, the Court concluded that the pharmaceutical industry’s long history of government regulation put manufacturers on notice of the heightened possibility of state-law disclosure regimes. The Court also placed weight on the Oregon UTSA’s exception precluding trade secret misappropriation liability for public disclosures of trade secrets in circumstances where “the public interest requires disclosure.” And the Court determined that the trade association could not establish that all disclosure of pricing information would destroy the economic value of the claimed trade secrets, because the agency might determine that the public interest only requires partial disclosure, which would not destroy the trade secrecy of a combination trade secret, in which the constituent elements may be generally known.

Snyder v. Beam Technologies, Inc., 2025 WL 2217123, --F.4th-- (10th Cir. Aug. 5, 2025) 

Tenth Circuit emphasizes the distinction between a plaintiff’s “ownership” and “possession” of an alleged trade secret.  

This action involves inter alia federal Defend Trade Secret Act (“DTSA”) and Colorado UTSA claims brought by an employee against his former employer, which alleged that the employer misappropriated a list of tens of thousands of insurance brokers’ names he brought with him. The district court granted summary judgment for the defendant on both the state and federal claims, holding that the employee had not proven that he “owned” the list of broker names. The Tenth Circuit affirmed on the DTSA claim, because the DTSA restricts claims to those brought by “an owner of a trade secret,” but the Court found that it was erroneous to apply an ownership requirement to the state-law claim, since Colorado’s UTSA statute requires only possession of a trade secret.  The Court, however, ultimately affirmed the grant of summary judgment on the UTSA claim on other grounds (lack of reasonable efforts to maintain secrecy).

Hoffman v. Goli Nutrition, Inc., 2025 WL 2459081 (C.D. Cal. Aug. 25, 2025) 

District court orders bifurcated discovery and trial to first address a plaintiff’s ownership of alleged trade secrets before resolving any other issue

In this DTSA case, it is contested whether a plaintiff owns the alleged trade secrets. The district court recognized that the ownership issue would be dispositive of that plaintiff’s statutory standing to maintain a DTSA claim, since the DTSA cause of action is available only to the “owner of a trade secret.”  Accordingly, the Court granted the request of certain defendants to bifurcate discovery to first address the ownership issue, which will then be tried in a limited-scope trial.  The district court concluded that inter alia bifurcation would more efficiently establish whether the plaintiff owned the trade secrets at issue, which would “minimiz[e] judicial oversight over discovery” and “reduce costs” to the parties, because it could allow the parties to avoid “costly and protracted discovery” on the merits of the misappropriation claim.

Global Marine Exploration, Inc. v. Republic of France, 2025 WL 2394694, --F.4th-- (11th Cir. Aug. 19, 2025) 

Eleventh Circuit reinforces the requirement that a defendant must have known or should have known about the alleged improper means used to acquire a trade secret.  

This case involves a ship, la Trinité, that sunk several hundred years ago while it was en route to resupply a French fort.  The plaintiff, an underwater exploration company, filed several required notifications with the Florida government that included location coordinates for five shipwrecks, including what a Florida district court ultimately determined to be the remains of la Trinité.  The exploration company then sued France to stop the country from moving forward with its recovery efforts on the grounds that inter alia France had misappropriated its alleged trade secrets—e.g., the coordinates of the la Trinité wreck—from the regulatory filings that the plaintiff was required to file with Florida’s Department of State.  While the plaintiff alleged that Florida induced it to disclose the wreck’s precise location through “coercion and deception,” the Eleventh Circuit held that there was no evidence that France knew anything about these alleged improper means, notwithstanding that France and Florida later entered a joint venture to recover the ship.

Motorola Solutions, Inc. v. Hytera Communications Corporation Ltd., 2025 WL 2496014 (N.D. Ill. Aug. 29, 2025) 

District court holds defendants failed to adequately redesign their product and orders $70 million remedy.

In the latest chapter of a long-running district court proceeding previously covered here and here, the Court held defendant Hytera in contempt for having violated a 2020 order that found liability for trade secret misappropriation and awarded plaintiff Motorola an additional $70 million. Specifically, following a week-long hearing, the Court concluded that Hytera’s claimed redesign of its two-way digital mobile radio products was built on the same basic foundation as the products covered in the 2020 royalty order.  Because the claimed redesign was “in truth substantially the same product,” Hytera “continues to unfairly benefit from the work Motorola did” to generate the trade secrets misappropriated during a multi-year campaign of corporate espionage.  

Sorrento Therapeutics, Inc. v. Mack, 2025 WL 2172268 (Del. Ch. July 31, 2025)

Delaware Court of Chancery holds that a reasonable royalty is unavailable in a California UTSA case where the plaintiff presented theories of actual damages and unjust enrichment.

In this case concerning inter alia a California UTSA claim, the plaintiffs presented expert testimony asserting that the plaintiffs were entitled to three forms of monetary relief: lost profits, unjust enrichment, and a reasonable royalty. After the plaintiffs abandoned their lost profits and unjust enrichment claims and won a liability judgment, they sought a reasonable royalty award of up to nearly $7 million.  
The Delaware Court of Chancery held that a reasonable royalty remedy was foreclosed by the statute, which expressly provides that a royalty is only available if neither actual loss damages nor unjust enrichment “caused by misappropriation are provable.” Specifically, the Court held that the plaintiffs had made no argument that both actual loss damages and unjust enrichment were unprovable, and the mere fact that plaintiffs had abandoned their prior damages positions did not suffice under the statute.