Preliminary Injunctions and The Illinois Trade Secrets Act

Trade secrets cases provide fertile grounds for preliminary injunctions and temporary restraining orders.  Here are the black-letter basics:

– A preliminary injunction plaintiff must show: (1) irreparable harm, (2) likelihood of success on the merits, (3) the harm the plaintiff would suffer if the injunction is denied is greater than the harm inflicted on the defendants and (4) the injunction is in the public interest;

– To win a trade secrets case, the plaintiff must establish (1) that the information at issue is a trade secret, and (2) that the information was misappropriated and used in the defendant’s business;

– A trade secret is broadly defined as “information” that is (a) sufficiently secret to derive monetary value from not being generally known to others (who can obtain monetary value from its use); and (b) subject of efforts to maintain the information’s secrecy or confidentiality. See Illinois Trade Secrets Act, 760 ILCS 1065/2 (the ITSA);

– Six common-law trade secrets factors include

(1) extent to which the information is known outside of plaintiff’s business,

(2) extent to which the information is known by employees and others involved in plaintiff’s business;

(3) extent of measures taken by plaintiff to guard the information’s secrecy;

(4) value of the information to the plaintiff’s business and its competitors;

(5) the amount of time, effort and money expended by the plaintiff in developing the information; and

(6) the ease or difficulty with which the information could be properly acquired or duplicated by others;

– Misappropriation means acquisition or discovery by improper means or use of the secret;

– There is a presumption of irreparable harm in trade secrets misappropriation cases;

– Irreparable injury means harm that is difficult to quantify;

– The purpose of a preliminary injunction (in the trade secrets context) is not to punish; but to eliminate a litigant’s unfair advantage over another.