NORTH CAROLINA LAW REVIEW Volume 77|Number 6 Article 4 9-1-1999 Is the North Carolina Trade Secrets Protection Act Itself a Secret and Is the Act Worth Protecting David P. Hathaway Follow this and additional works at:http://scholarship.law.unc.edu/nclr Part of theLaw Commons Recommended Citation David P. Hathaway,Is the North Carolina Trade Secrets Protection Act Itself a Secret and Is the Act Worth Protecting, 77N.C. L. Rev.2149 (1999). Available at:http://scholarship.law.unc.edu/nclr/vol77/iss6/4 This Comments is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Law Review by an authorized administrator of Carolina Law Scholarship Repository. For more information, please contact [email protected]. COMMENT Is the North Carolina Trade Secrets Protection Act Itself a Secret, and Is the Act Worth Protecting? I. INTRODUCTION In the late 1980s, the owner of several North Carolina travel agencies developed what he considered a novel business plan:' he envisioned'a scheme that combined the services of a travel agency with those of a bank.2 Under this scheme, a customer would plan a vacation and deposit a minimum of fifty dollars per month in an escrow account for a set period preceding departure3 When the account contained an amount equal to sixty percent of the anticipated vacation expenses, the remaining forty percent would be loaned to the vacationer The loan would be interest-free, with the repayment period equaling the amount of time it had taken the customer to save the initial sixty percent5 After implementing this strategy at his own agencies, Jack Amariglio-Dunn marketed his concept to other travel companies and approached local banks for additional financial resources.6 The banks were unreceptive.7 In 1991 he responded to an advertisement seeking candidates for a managerial position at Banc One Travel Corporation ("Banc One"), an Ohio travel agency. At that time, he also proposed a cooperative venture with Banc One.8 When a director of travel management for Banc One later contacted Mr. Amariglio-Dunn, he explained his idea to the executive and resubmitted its associated promotional materials.9 When he found out that the company turned 1. See Bank Travel Bank v. McCoy, 802 F. Supp. 1358, 1358 (E.D.N.C. 1992), aff'd sub nom. Amariglio-Dunn v. McCoy, 4 F.3d 984 (4th Cir. 1993). Although the plaintiff considered his idea to be unique, the court disagreed. "[lit seems plain that anyone with reasonable skill in the [banking] field could divine and copy the basic concept of the plan based on plaintiff's own promotional materials." Id at 1360. 2. See id. at 1358. 3. See id. 4. See id. 5. See id. 6. See id. 7. See id. 8. See id. at 1359. 9. See id. 2150 NORTH CAROLINA LAW REVIEW [Vol. 77 down his proposal, Mr. Amariglio-Dunn sued the company to prevent it from wrongfully using his scheme without compensating him.10 Although Mr. Amariglio-Dunn's claim did not succeed for several reasons," his attempt to recover under the North Carolina Trade Secrets Protection Act provides an interesting introduction to the law of trade secrets protection.2 Trade secrets law aims to restrict the dissemination of confidential and commercially useful information in order to protect the business interests of its rightful owner.'3 The Uniform Trade Secrets Act4 ("UTSA") of 1980 codified the various common law rules on trade secrets. Every state has adopted laws, usually civil statutes, protecting trade secrets.5 The 10. See id. The plaintiff did not present evidence that the agency used or intended to use the information. Evidently the lawsuit was a precautionary measure. See id. 11. See id. at 1360. The defendant succeeded on a summary judgment because, even when viewing the facts in favor of the plaintiff, the evidence indicated that the concept was not a trade secret, that it was freely divulged by the plaintiff, and that the requisite showing of imminent harm to enjoin the defendant was absent. See id. 12. Actually, the plaintiff's complaint, written pro se, demanded a "promissory note" secured by a bond and did not mention the North Carolina Trade Secrets Protection Act. However, the court treated the action as one for an injunction under the Act because the court declined to penalize the plaintiff for making an inadvertent procedural error. See id. at 1359-60. For trade secrets resources on the Internet, see <http://www.execpc.com/-mhallign/>. See HARLEY HAHN, HARLEY HAHN'S INTERNET & WEB YELLOW PAGES 451 (1999). 13. See, e.g., Joseph E. Root III & Guy M. Blynn, Abandonment of Common-Law Principles: The North Carolina Trade Secrets Protection Act, 18 WAKE FOREST L. REV. 823, 823 (1982) ("Trade secrets law seeks to protect a business person's interest in information that is confidential and commercially valuable."). 14. UNIF. TRADE SECRETS ACT §§ 1-12, 14 U.L.A. 433-67 (1990). For a section-by- section discussion of the UTSA and a summary of its concepts, see MICHAEL CRAIG BUDDEN, PROTECTING TRADE SECRETS UNDER THE UNIFORM TRADE SECRETS ACT: PRACTICAL ADVICE FOR EXECUTIVES 15-45 (1996). 15. This includes the District of Columbia. Seven states, Massachusetts, Michigan, New Jersey, Pennsylvania, Tennessee, Texas, and Wyoming, have only criminal statutes defining trade secrets. The other states address trade secrets in civil statutes. See ALA. CODE §§ 8-27-1 to -6 (1) (1998 Supp.); ALASKA STAT. § 45.50.910 to -.945 (1998); ARIZ. REV. STAT. ANN. §§ 44-401 to -407 (1994); ARK. CODE ANN. §§ 4-75-601 to -607 (1996); CAL. CIV. CODE §§ 3426-3246.11 (West 1997 & 1999 Supp.); COLO. REV. STAT. ANN. §§ 7-74-101 to -110 (West 1986); CONN. GEN. STAT. §§ 35-50 to -58 (West 1997 & 1999 Supp.); 6 DEL. CODE ANN. §§ 2001-2009(4) (1993 & 1998 Supp.); D.C. CODE ANN. §§ 48- 501 to -510 (Michie 1997); FLA. STAT. ANN. §§ 688.001-.009 (West 1990 & 1999 Supp.); GA. CODE ANN. §§ 10-1760 to -1767 (1994 & 1998 Supp.); HAW. REV. STAT. §§ 482B-1 to B-9 (1992); IDAHO CODE §§ 48-801 to -807 (1997); 765 ILL. COMP. STAT. 1065/1-1065/9 (1998 Supp.); IND. CODE §§ 24-2-3-1 to -3-8 (Michie 1996); IOWA CODE ANN. §§ 550.1-.8 (West 1997); KAN. STAT. ANN. §§ 60-3320 to -3330 (1994); KY. REV. STAT. ANN. §§ 365.880-.900 (Michie 1996); LA. REV. STAT. §§ 51:1431-:1439 (West 1987); ME. REV. STAT. ANN. tit. 10, §§ 1541-1548 (West 1997); MD. CODE ANN. §§ 11-1201 to -1209 (1990); MASS. GEN. L. ch. 266, § 30(4) (1992 & 1999 Supp.); MICH. COMP. LAWS ANN. § 752.772 (MICH. STAT. ANN. §§ 28.643(51)-(53) (1990)); MINN. STAT. §§ 325C.01-.08 (1995); Miss. CODE ANN. §§ 75-26-1 to -19 (1991); Mo. ANN. STAT. §§ 417.450-.467 (West 1999); MONT. 1999] TRADE SECRETS 2151 North Carolina Trade Secrets Protection Act16 ("NCTSPA" or "the Act"), based largely on the UTSA, was enacted in July 1981 after three years of planning.7 Although the Patent, Trademark, and Copyright Committee of the North Carolina Bar Association initially sought to adopt the entirety of the Uniform Act as it appeared in 1978, it later decided that the definition sections were overly lengthy and complicated.8 Consequently, the Committee drafted a simplified bill that was introduced to the North Carolina General Assembly during the 1981 session.'9 Despite a debate regarding royalties20 that led to the defeat of one portion of the bill,21 the submitted draft was approved with only cosmetic changes.P Since its inception, the NCTSPA has been the subject of very few published decisions.23 This Comment will explore a number of CODE ANN. §§ 30-14-401 to -409 (1997); NEB. REV. STAT. §§ 87-501 to -507 (1994); NEV. REV. STAT. ANN. §§ 600A.010-.030 (Michie 1994); N.H. REV. STAT. ANN. § 350-B:1-:9 (Michie 1995); N.J. STAT. ANN. § 2C:20-1i (1995 & 1998 Supp.); N.M. STAT. ANN. §§ 57- 3A-1 to -3A-7 (Michie Supp. 1995); (New York's law is not articulated in any one statute.); N.C. GEN. STAT. §§ 66-152 to -157 (1992); N.D. CENT. CODE §§ 47-25.1-01 to -08 (1997 Supp.); OHO REv. CODE ANN. §§ 1333.61-.69 (Page 1998 Supp.); OKLA. STAT. ANN. tit. 78, §§ 85-95 (1987); OR. REV. STAT. §§ 646.461-.475 (1997); 18 PA. CONS. STAT. ANN. § 3930 (Purdon 1983 & 1998 Supp.); R.I. GEN. LAWS §§ 6-41-1 to -11 (1992); S.C. CODE STAT. §§ 39-8-10 to -130 (1998); S.D. CODIED LAWS §§ 37-29-1 to -29-11 (Michie 1994 Revision); TENN. CODE ANN. § 39-14-138 (1997); TEX. PENAL CODE ANN. § 31.05 (West 1994); UTAH CODE ANN. §§ 13-24-2 to -24-9 (Michie 1996); VA. CODE §§ 59.1-336 to -343 (Michie 1998); WASH. REV. CODE ANN. §§ 19.108.010-.940 (West 1989); W. VA. CODE ANN. §§ 47-22-1 to -10 (Michie 1998); WIS. STAT. ANN. § 134.90(1)(c) (West 1984); WYo. STAT. ANN. §§ 6-3-501 to -505 (1997). Some of these statutes are not based on the UTSA. 16. N.C. GEN STAT. §§ 66-152 to -157 (1992). For a discussion of why states have codified trade secrets law, see infra notes 401-13 and accompanying text. 17. See N.C. GEN. STAT. §§ 66-152 to -157 (Supp. 1981). The Act was to be effective October 1 of the same year. 18. See Root & Blynn, supra note 13, at 831. The original source of this information was the Committee's file, which included letters, drafts, and other papers, as well as telephone interviews in 1981 with the sponsor of the bill, Hon. Marvin D. Musslewhite, Jr. See id. 19. See id. 20. Royalties are compensation for the use of property, usually intellectual property or natural resources, expressed as a percentage of receipts from using the property or as an account per unit produced. See AMEDt E. TURNER, THE LAv OF TRADE SECRETS 428 (1962) (discussing royalties); see also BLACK'S LAW DICrIONARY 1330-31 (6th ed. 1990) (defining royalties). 21. In the end, the Senate removed the limitation that the House Judiciary Committee approved. See Root & Blynn, supra note 13, at 831. The debate addressed a scenario in which a person who, in good faith, uses information given to him by another without realizing that such information should have remained confidential as a trade secret. See id. 22. See id. 23. Of the published decisions mentioning the NCTSPA, only 10 have applied the Act to fact patterns. See Merck & Co. v. Lyon, 941 F. Supp. 1443, 1456-62 (M.D.N.C. 1996); Glaxo, Inc. v. Novopharm, Ltd., 931 F. Supp. 1280, 1298-1305 (E.D.N.C. 1996); FMC 2152 NORTH CAROLINA LAW REVIEW [Vol. 77 possible explanations for the scarcity of NCTSPA case law. For instance, the Act could be flawed in its structure, making attorneys hesitant to rely on it. Another possible reason for the limited number of judicial opinions involving the NCTSPA is that lawsuits based on trade secrets are often pursued as a breach of a covenant not to compete in the employment agreement. In addition to these reasons, attorneys who use .the NCTSPA have offered other ideas to explain its low visibility in the almost two decades since its effective date.24 First, perhaps the NCTSPA is used frequently, but there is little case law because most cases are unpublished trial court injunctions and temporary restraining orders that are rarely worth appealing. Alternatively, litigating such claims may simply be undesirable since customers are often called as witnesses at trial, and such cases are therefore predisposed to settlement to avoid straining customer relations. 5 Corp. v. Cyprus Foote Mineral Co., 899 F. Supp. 1477, 1481-83 (W.D.N.C. 1995); Quantum Health Resources v. Hemophilia Resources of America, Inc., 1995 U.S. Dist. LEXIS 16726, at *30-36 (M.D.N.C.); Bank Travel Bank v. McCoy, 802 F. Supp. 1358, 1359-60 (E.D.N.C. 1992); Moore v. American Barmag Corp., 710 F. Supp. 1050, 1058-61 (W.D.N.C. 1989); Mirafi, Inc. v. Murphy, 14 U.S.P.Q.2d 1337, 1385-87 (W.D.N.C. 1989); North Carolina Elec. Membership Corp. v. North Carolina Dep't of Econ. and Community Dev., 108 N.C. App. 711, 718-19, 425 S.E.2d 440, 444-45 (1993); Barr-Mullin, Inc. v. Browning, 108 N.C. App. 590, 594-99, 424 S.E.2d 226, 228-31 (1993); Drouillard v. Keister Williams Newspaper Servs, 108 N.C. App. 169, 171-74, 423 S.E.2d 324, 326-27 (1992). In fact, the NCTSPA has only been mentioned in four other opinions. See AG Systems, Inc. v. United Decorative Plastics Corp., 55 F.3d 970, 972-3 (4th Cir. 1995); Western Steer-Mom'N'Pop's, Inc. v. FMT Invs., Inc., 578 F. Supp. 260, 264 (W.D.N.C. 1984); Wilmington Star-News, Inc. v. New Hanover Reg'l Med. Ctr., Inc., 125 N.C. App. 174, 179, 480 S.E.2d 53, 55-57 (1997); Wallace Computer Servs., Inc. v. Waite, 95 N.C. App. 439, 439, 382 S.E.2d 846, 846 (1989). However, four North Carolina decisions that do not specifically cite the NCTSPA are helpful trade secrets cases nonetheless. See Consolidated Textiles, Inc. v. Sprague, 117 N.C. App. 132, 134,450 S.E.2d 348, 349 (1994) (forbidding a former employee from using his ex-employer's customer list); S.E.T.A. UNC-CH, Inc. v. Huffines, 107 N.C. App. 440, 446-47, 420 S.E.2d 674, 677-78 (1992) (refusing trade secret protection to information about using animals in research projects); United Labs., Inc. v. Kuykendall, 322 N.C. 643, 655-58, 370 S.E.2d 375, 383-85 (1988) (finding trade secrets in customer information taken from a former place of employment); Travenol Labs., Inc. v. Turner, 30 N.C. App. 686, 690-96, 228 S.E.2d 478, 482-86 (1976) (protecting a modified method of manufacturing as a trade secret). Also, one unpublished decision involves the NCTSPA. See In re Wilson, 165 F.3d 913, Nos. 97-1924, 97-1983, 97- 1315, 97-9183, 1998 WL 671658, at *2-5 (4th Cir. Sept. 23, 1998). 24. Several top trade secrets attorneys in North Carolina contributed to this Comment by offering experienced insight into why references to NCTSPA seldom appear in published opinions. See infra notes 465-84. 25. Research is especially difficult because the NCTSPA has received very little scholarly attention. With the exception of one law review article discussing the enactment of the NCTSPA, see Root & Blynn, supra note 13, any North Carolina piece covering a subject similar to trade secrets law does so in a context that completely neglects the 1999] TRADE SECRETS 2153 This Comment attempts to test these theories through legal NCTSPA. Although North Carolina scholars have addressed a wide range of topics associated with trade secrets laws, none has discussed the NCTSPA specifically. See Tom W. Bell, Fair Use vs. Fared Use: The Impact of Automated Rights Management on Copyright'sF airU se Doctrine,7 6 N.C. L. REV. 557,563 (1998); John M. Conley & Robert M. Bryan, A Unifying Theory for the Litigation of Computer Software Copyright Cases, 63 N.C. L. REV. 563, 573-77 (1985); Alan S. Gutterman, The North-South Debate Regarding the Protection of Intellectual Property Rights, 28 WAKE FoREsT L. REV. 89, 94-96, 102 (1993); Doris Estelle Long, The Impact of Foreign Investment on Indigenous Culture: An Intellectual Property Perspective, 23 N.C. J. INT'L L. & COM. REG. 229, 233-35 (1998); Maureen A. O'Rourke, Drawing the Boundary Between Copyright and Contract CopyrightP reemption of Software License Terms, 45 DUKE L.J. 479, 497 (1995); Hamideh Ramjerdi & Anthony D'Amato, The Intellectual Property Rights Laws of The People's Republic of China, 21 N.C. J. INT'L L. & COM. REG. 169, 178-79 (1995); Pamela Samuelson, Contu Revisited: The Case Against Copyright Protection for Computer Programs in Machine-Readable Form, 1984 DUKE L.. 663, 717-19; Kim Lane Scheppeie, "It's Just Not Right": The Ethics of Insider Trading,L AW & CONTEMP. PROBS., Summer 1993, at 145-58; Elinor P. Schroeder, Legislative and JudicialR esponses to the Inadequacy of Compensationf or Occupational Disease, LAW & CONTEMP. PROBS., Autumn 1986, at 164; David E. Shipley, Refusing to Rock the Boat. The Sears/Compco Preemption Doctrine Applied to Bonito Boats v. Thunder Craft, 25 WAKE FOREST L. REv. 385, 399 (1990); David E. Shipley & Jeffrey S. Hay, Protecting Research: Copyright, Common-Law Alternatives, and Federal Preemption, 63 N.C. L. REV. 125, 153 (1984); William K. Slate, II, InternationalA rbitration: Do Institutions Make a Difference?, 31 WAKE FOREST L. REV. 41, 51 (1996); Maury M. Tepper, III, CopyrightL aw: IntegratingS uccessive Filtering Into the Bifurcated Substantial Similarity Inquiry in Software Copyright Infringement Cases: A Standard for Determining the Scope of Copyright Protection for Non-Literal Elements of Computer Programs,1 4 CAMPBELL L. Rv. 1, 10-12 (1991); Roy E. Thoman, Book Review, Protecting Trade Secrets Under the Uniform Trade Secrets Act: Practical Advice for Executives, N.C. J. INT'L L. & COM. REG. 511, 551-52 (1996); Matias F. Travieso-Diaz & Alejandro Ferrate, Recommended Features of a ForeignI nvestment Code for Cuba's Free Market Transition,2 1 N.C. J. INT'L. L. & COMM. REG. 511,551-52 (1996); Vance Franklin Brown, Comment, The Incompatibility of Copyright and Computer Software: An Economic Evaluationa nd a Proposalf or a Marketplace Solution, 66 N.C. L. REV. 977, 1007-09 (1988); Christopher Grafflin Browning, Jr., Comment, Intellectual Property: The Souring of Sweet Acidophilus Milk. Speck v. North Carolina Dairy Foundation and the Rights of University Faculty to Their Inventive Ideas, 63 N.C. L. REV. 1248, 1251-52 & n.25 (1985); Stephen M. Dorvee, Note, Protecting Trade Secrets Through Copyright, 1981 DUKE L.I. 981, 982-86 (1981); Amy R. Edge, Comment, Preventing Software Piracy Through Regional Trade Agreements: The Mexican Example, 20 N.C. J. INT'L L. & COM. REG. 175, 182-84 (1994); Richard J. Ferris, Jr., Note, Aspiration and Reality in Taiwan, Hong Kong, South Korea, and Singapore: An Introduction to the Environmental Regulatory Systems of Asia's Four New Dragons, 4 DUKE J. COMP. & INT'L L. 125, 169 (1993); Lawrence J. Goode and Douglas R. Willams, Note, Developments Under the Freedom of Information Act-1985, 1986 DUKE L.J. 384, 394-95; Steven J. Lepper, Note, Developments Under the Freedom of Information Act-1982, 1983 DUKE L.I. 390, 391; Elizabeth Miller, Note, Antitrust Restrictions on Trade Secret Licensing: A Legal Review and Economic Analysis, LAW & CONTEMP. PROBS., Winter 1989, at 184-90; John Reid Parker, Jr., Note, Injunctive Russian Roulette and Employment Noncompetition Cases: A.E.P. Industries, Inc. v. McClure, 63 N.C. L. REv. 222, 228-30 (1984); John L. Spilsbury, Note, The HazardousC hemicals Right-to-Know Act: Letting the Public Know What's Next Door, 64 N.C. L. REV. 1330, 1337,1341-47 (1986). 2154 NORTH CAROLINA LAW REVIEW [Vol. 77 research and investigation.26 The logic of this Comment's investigation is simple. It begins with two observations: first, that the NCTSPA seldom appears in published judicial opinions; and second, that its statutory language departs from the language of the UTSA. In light of these two observations, the Comment first queries whether the NCTSPA is somehow flawed and therefore of little practical use to North Carolina businesses. To evaluate this possibility, this Comment uses a two-pronged test: First, Section II of this Comment contrasts the specific language of the NCTSPA with that of the UTSA and trade secrets acts of other states;z7 next, Section III compares North Carolina's trade secrets case law with case law in other states.' In the findings, Section II concludes that, despite two significant distinctions, the NCTSPA is not fundamentally different from other trade secrets acts,29 and Section III confirms that North Carolina's case law parallels the law of almost every other state.30 This strongly suggests that the NCTSPA is not flawed, assuming that trade secrets law in general is a sound construct. Satisfied that the NCTSPA appears well grounded, this Comment returns to the preliminary observation that the Act rarely appears in published opinions and asks whether most trade secrets cases are being framed as claims for breach of non-competition agreements rather than as violations of the NCTSPA. To test this notion, Section IV of the Comment explores the use of non- competition covenants in North Carolina as an alternative legal solution to litigating under the NCTSPA.31 In doing so, the Comment compares the principles of trade secret law with those of covenants not to compete and then explores case law on the covenants, concluding that the NCTSPA probably is overshadowed by cases on employment contracts.32 In search of additional support for this conclusion, Section V of this Comment reports the views of several experienced trade secrets attorneys in North Carolina, who supply valuable insight into the reasons for the NCTSPA's low visibility in published law. For the most part, the attorneys agreed that litigating non-competition covenants typically is preferred over suing under the 26. For an examination of whether the NCTSPA is flawed, see infra notes 35-398 and accompanying text. For an investigation of whether trade secrets claims are more likely to be couched as contract actions, see infra notes 399-464 and accompanying text. 27. See infra notes 35-120 and accompanying text. 2& See infra notes 121-398 and accompanying text. 29. See infra notes 35-120 and accompanying text. 30. See infra notes 121-398 and accompanying text. 31. See infra notes 399-464 and accompanying text. 32. See infra notes 399-464 and accompanying text. 1999] TRADE SECRETS 2155 Act.33 Section VI concludes that, despite the reluctance of practicing attorneys to litigate claims under the NCTSPA, it is effective legislation nonetheless.' II. THE NCTSPA CONTRASTED WITH THE UTSA AND TRADE SECRETS ACTS OF OTHER STATES In the North Carolina General Statutes, Article 24 of Chapter 66 on business commerce is the "Trade Secrets Protection Act. '35 It is comprised of six sections and reserves another five for future developments.36 The six sections individually address the definitions, the nature of the action, the remedies available, the applicable burden of proof, the appropriate court measures to preserve secrecy, and the statute of limitations.7 A close comparison of definitions may reveal a flaw in the NCTSPA because statutory definitions are critical to trade secrets cases. The term "misappropriation" appears first in the NCTSPA, and of the forty-two states that have trade secrets statutes in their general civil statutes, every state except North Carolina has adopted the UTSA definition of misappropriation, usually with slight semantic or stylistic alterations3 In the NCTSPA, "misappropriation" is defined as the acquisition, disclosure, or use of another's trade secret without express or implied authority or consent, unless the trade secret was obtained by independent development, reverse engineering, or from someone who had a right to disclose the trade secret.39 The UTSA definition is different because it focuses on improper motive.4 The definition explains misappropriation in two ways: (1) the acquisition of someone's trade secret by one who knew or had reason to know it was improperly acquired; and (2) disclosure by parties who have neither consent nor authority to make such 33. See infra notes 465-84 and accompanying text. 34. See infra notes 485-87 and accompanying text. 35. See N.C. GEN. STAT. §§ 66-152 to -157 (1992). 36. See §§ 66-158 to -162. 37. See §§ 66-152 to -157. 38. See supra note 15 (listing the civil trade secrets acts in the United States). The Patent, Trademark, and Copyright Committee of the North Carolina Bar Associations rejected the UTSA definitions written by the Commissioners on Uniform State Laws. See Root & Blynn, supra note 13, at 833. Regarding "misappropriation," the Committee felt that arguing to a jury against any violation of, for example, section 1(2)(ii)(B)(I) would be confusing. See id. 39. See N.C. GEN. STAT. § 66-152(1). 40. See UNIF. TRADE SECRETS ACr § 1(2), 14 U.L.A. 438 (1990). 2156 NORTH CAROLINA LAW REVIEW [Vol. 77 disclosure.4' No component of the North Carolina definition requires improper intent on the part of the misappropriator.42 Because the NCTSPA does not include improper motive in its definition of misappropriation, the UTSA's definition of "improper means" is absent in the NCTSPA as well.43 The UTSA defines "improper means" as including "theft, bribery, misrepresentation, breach or inducement of a breach of duty to maintain secrecy, or espionage through electronic or other means."44 The definition of improper means is significant in delineating what acts constitute the requisite fault upon which liability is based. North Carolina is the only state of the forty-two with a civil trade secrets statute that does not include this language,45 and, in rare circumstances, North Carolina's unique definition of "misappropriation" could make the outcome of a trade secrets case in North Carolina different from the outcome of a similar case in other states.46 To illustrate, suppose hypothetically that a physicist creates a self-watering flower pot and that a flower pot manufacturer knows the physicist has developed such technology. When the corporation 41. See § 1(2)(i), (ii). The second definition is slightly more complex in that it presents three alternative scenarios focusing on disclosure rather than acquisition of trade secrets. See § 1(2)(ii). The first scenario is the non-consensual disclosure or use of another's trade secret. See § 1(2)(ii)(A). The second misappropriation scenario is the non-consensual disclosure or use of another's trade secret by one who, at the time of disclosure or use, should have known: (1) that his knowledge of it was improperly acquired by someone else; (2) that he acquired the trade secret under circumstances triggering a duty to keep it a secret or limit its use; or (3) that he owed a duty of secrecy. See § 1(2)(ii)(B)(I), (IIM). The final misappropriation scenario is the non-consensual disclosure of another's trade secret by one who, before a material change in his position, knew or had reason to know that it was a trade secret and that he learned it either by accident or mistake. See § 1(2)(ii)(C). 42. However, intent is relevant for determining what remedies may be granted when a party receives misappropriated information in good faith. See N.C. GEN. STAT. § 66- 154(a)(2) (1992). 43. See id.at § 66-152. 44. § 1(1), 14 U.L.A. at 437. In contrast, Alabama accepts the UTSA's examples of theft, bribery, and misrepresentation, but then adds to this definition "inducement of a breach of confidence," "trespass," and "[o]ther deliberate acts taken for the specific purpose of gaining access to the information of another by means such as electronic, photographic, telescopic or other aids to enhance normal human perception, where the trade secret owner reasonably should be able to expect privacy." ALA. CODE § 8-27-2(2) (1993). 45. See supra note 15; ALA. CODE § 8-27-2(2) (1993). 46. See Root & Blynn, supra note 13, at 834-35. For a case in which North Carolina courts might have reached the opposite result, see Chicago Lock Co. v. Fanberg,6 76 F.2d 400, 405-06 (9th Cir. 1982), in which the circuit court reversed a trial court based on the absence of "improper means" in obtaining information. The hypothetical scenario that follows in the text is adapted from the Root & Blynn article. See Root & Blynn, supra note 13, at 835. 1999] TRADE SECRETS 2157 offers to purchase the physicist's idea, she refuses, saying that she intends to enhance her profits by keeping the self-watering innovation confidential. The physicist's former lab assistant, having a spare key to the physicist's laboratory, enters and copies all the secrets about how pots can water themselves. The assistant then approaches the flower pot corporation and convinces its executives that he has invented a self-watering pot through his own independent development. If the corporation pays for the information and uses it, it would not be liable for misappropriation under the UTSA because it lacked the knowledge or reason to know that the assistant used improper means to obtain the information.47 By contrast, under the NCTSPA the physicist would have prima facie evidence to establish a case against the corporation because the corporation knew the self- watering process was a trade secret and used it without consent.48 Since "improper means" is not an element of "misappropriation" in North Carolina, the corporation would be liable even if it proved in court that it obtained the trade secret in good faith.49 The corporation would lose the case because as a matter of law the former lab assistant had no right to disclose the secret. As the above example illustrates, a North Carolina trade secrets case could come out differently from an identical case in another state but only where such a rare fact pattern arises5.0 "Trade secret," the final term defined by the NCTSPA, is business or technical information including, but not limited to, formulae, patterns, programs, devices, compilations of information, methods, techniques, or processes.51 This information must derive its 47. See UNIF. TRADE SECRETS ACT § 1(2), 14 U.L.A. at 438. 48, See N.C. GEN. STAT. § 66-155 (1992). 49. See supra note 39 and accompanying text. 50. Common sense dictates that a party knowing it has another person's trade secret will also have exercised some type of improper motive in obtaining it. 51. See § 66-152(3). Because the definition requires that the information be "business or technical" and have "commercial value," one could argue that artistic or charitable concepts are not afforded protection. See ABA SECTION OF LABOR AND EMPLOYMENT LAW, TRADE SECRETS: A STATE-BY-STATE SURVEY 681 (1997) [hereinafter ABA SuRVEY]. The NCTSPA and UTSA also differ in their definition of "[p]erson." The NCTSPA defines "person" as "an individual, corporation, government, governmental subdivision or agency, business trust, estate, trust, partnership, association, or any other legal or commercial entity." See § 66-152(2). The UTSA definition is nearly identical except that it uses "natural person" rather than "individual" and lists the other entities in a different order. See UNiF. TRADE SECRETS ACT § 1(3), 14 U.L.A. 438 (1990). Of the forty-two states with a civil trade secrets protection act, Wisconsin is alone in opting not to define "person." See Wis. STAT. ANN. § 134.90 (1) (West 1989). However, section 990.01 (26) of the Wisconsin Statutes Annotated, titled "Construction and Effect of Acts and Statutes," defines "person" by terms that appear in the UTSA definition. See WIS. STAT.