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.
For this installment of Readily Ascertainable, we cover the Ninth Circuit’s reversal of a $57 million judgment for an incorrect jury instruction on the “not readily ascertainable” element, the Eighth Circuit’s standards for trade secret identification and misappropriation, the Fourth Circuit’s analysis of extraterritorial application of the DTSA, and a district court’s grant of summary judgment to the defendants where longstanding relationships rendered speculative the defendants’ actual use of retained customer files.
July 2026
Comet Techs. USA, Inc. v. XP Power, LLC, 181 F.4th 988 (9th Cir. 2026)
Ninth Circuit reverses $57 million judgment because jury instructions failed to require the plaintiff to prove that alleged trade secrets were not readily ascertainable.
Comet Technologies, a manufacturer of computer chip components, won a $40 million verdict, a permanent injunction, and over $17 million in attorneys’ fees against XP Power—a competitor that received thousands of confidential files from former Comet engineers that detailed Comet’s products, research and development strategy, and the underlying technologies. The Ninth Circuit reversed and remanded for a new trial, concluding that the district court erroneously instructed the jury on the “not readily ascertainable” element of Comet’s federal trade secret claim. Specifically, the district court told the jury that the defendant would not be liable if the defendant proved that Comet’s alleged trade secrets were readily ascertainable by proper means (i.e., the rule under California law, even though Comet dropped its claim under California law before the instructions were read ). The Ninth Circuit explained that this instruction was wrong because federal law “puts the burden of proof on the plaintiff to show that its alleged trade secrets were not readily ascertainable by proper means.”
The Ninth Circuit concluded that the instructional error was not harmless because XP Power presented expert testimony that significant aspects of the alleged trade secrets could have been reverse-engineered or derived from public patents, product bulletins, and industry knowledge, creating a genuine factual dispute for the jury. While Comet’s briefing emphasized the defendants’ bad acts in taking and using Comet’s trade secret documents, the Court made clear that “lack of ready ascertainability does not depend on what the defendants actually did,” but only “on an evaluation of what another expert in the field could have learned by proper means.”
Wilbur-Ellis Co. v. Gompert, 181 F.4th 816 (8th Cir. 2026)
Eighth Circuit affirms summary judgment for failure to adequately identify alleged trade secrets and failure to show misappropriation.
An agricultural products distributor unsuccessfully sued four former employees under federal and Nebraska trade secrets law after they left for a competitor and allegedly took files related to “business and market strategy” and “customers,” as well as proposals, pricing, and other data stored in its “SeedWare” database. The Eighth Circuit held that the district court properly granted the defendant employees’ motions for partial summary judgment on the trade secret claims, because the plaintiff distributor “painted with a broad brush, never clearly and adequately identifying the ‘trade secrets’ at issue, let alone how they were used or misused or the damages reasonably attributable to each defendant.” The plaintiff’s general references to “customer information, including particular needs and characteristics about the customer,” were too vague, the Eighth Circuit concluded, in part because the plaintiff never explained what aspects were secret, what documents were allegedly taken or how the information was misappropriated. While the plaintiff did identify a particular password-protected database that purportedly contained trade secrets, the Court concluded the plaintiff failed to present evidence regarding any specific information allegedly misappropriated from the database.
dmarcian, Inc. v. DMARC Advisor BV, 182 F.4th 289 (4th Cir. 2026)
Fourth Circuit affirms preliminary injunction based on DTSA’s extraterritorial application to domestic conduct.
This is the second appeal concerning preliminary injunctive relief that an American software company obtained, against a Dutch rival, on DTSA and trademark claims relating to software code, a customer database, and business accounts. In its first appeal, the Dutch corporate defendant argued that United States law did not apply because it is not an American company and the alleged trade secret theft occurred in the Netherlands. The Fourth Circuit rejected that argument, holding that the alleged misconduct had sufficient effects in the United States to fall within the reach of U.S. law.
In its second appeal, the foreign defendant argued that an intervening Supreme Court decision declining to apply the Lanham Act extraterritorially, Abitron Austria GmbH v. Hetronic International, Inc., 600 U.S. 412 (2023), likewise barred extraterritorial application of the DTSA and required that the preliminary injunction be overturned. The Fourth Circuit again rejected the Dutch company’s argument that it was not subject to U.S. law, holding that the DTSA “quite explicitly ‘applies to conduct occurring outside the United States,’ so long as the offender committed ‘an act in furtherance of the offense… in the United States.’” The Fourth Circuit went on to hold that the American plaintiff was likely to prevail on the merits of the extraterritoriality dispute, as the foreign defendant originally gained access to the alleged trade secrets on servers located in the United States under a contract between the parties and intentionally marketed its products containing the allegedly misappropriated trade secrets in the United States.
Logix Federal Credit Union v. Osaic Wealth, Inc., 2026 WL 2078204 (C.D. Cal. July 16, 2026)
Central District of California court grants summary judgment for defendants, even assuming they took customer information, because their longstanding relationships with the customers made actual use of the files mere speculation.
The district court granted summary judgment for defendants on federal and California trade secrets claims that a credit union brought against its former employees and their new employer, a wealth management firm. The defendant financial advisors printed customer information from the plaintiff’s systems before their departures, and more than 100 customers ultimately moved their investment accounts to follow the defendant advisors. However, because the advisors “worked directly with the customers for years and evidence indicates some customers reached out to them” after their departure from the credit union, the court concluded that it “is speculative at best” that the advisors actually used the customer information to induce the customers to move.
