O.C.G.A. § 10-1-760 (2019)

Annotations

Law reviews. For annual survey of law on business associations, see 62 Mercer L. Rev. 41 (2010). For article, “Executive Secrecy: Congress, the People, and the Courts,” see 72 Emory L.J. 1301 (2023).

JUDICIAL DECISIONS Elements. - Under the Georgia Trade Secrets Act, O.C.G.A. § 10-1-760 et seq., a claim for misappropriation of trade secrets requires a plaintiff to prove that: (1) the plaintiff had a trade secret; and (2) the opposing party misappropriated the trade secret. Penalty Kick Mgmt. v. Coca Cola Co., 318 F.3d 1284, 2003 U.S. App. LEXIS 1122 (11th Cir. 2003). Defendant is liable for the misappropriation of a trade secret only if the plaintiff can show that the defendant: (1) disclosed information that enabled a third party to learn the trade secret; or (2) used a “substantial portion” of the plaintiff’s trade secret to create an improvement or modification that is “substantially derived” from the plaintiff’s trade secret, but if the defendant independently created the allegedly misappropriated item with only “slight” contribution from the plaintiff’s trade secret, then the defendant is not liable for misappropriation. Penalty

Kick Mgmt. v. Coca Cola Co., 318 F.3d 1284, 2003 U.S. App. LEXIS 1122 (11th Cir. 2003). Superseding other tort, restitutionary laws. - Georgia Trade Secrets Act, O.C.G.A. § 10-1-760 et seq., generally supersedes conflicting tort, restitutionary, and other laws of Georgia providing civil remedies for misappropriation of a trade secret. Prof’l Energy Mgmt. v. Necaise, 300 Ga. App. 223, 684 S.E.2d 374, 2009 Ga. App. LEXIS 1135 (2009). Trial court manifestly abused the court’s discretion when the court granted equitable relief to a limited liability company (LLC) because there was no finding that the drawings a company used were trade secrets as defined by the Georgia Trade Secrets Act (GTSA), O.C.G.A. § 10-1-761, and by using O.C.G.A. § 9-5-1 to provide the LLC the same relief based on the same allegations it would have received had the drawings qualified as trade secrets, the trial court undermined

SELLING/OTHER TRADE PRACTICES

the exclusivity of the GTSA; the key inquiry was whether the same factual allegations of misappropriation were being used to obtain relief outside the GTSA, and since the trial court’s award of general equitable relief under O.C.G.A. § 9-5-1 was based on the same conduct as the GTSA claim, i.e, the misappropriation of the drawings, such relief was preempted by O.C.G.A. § 10-1-767(a). Robbins v. Supermarket Equip. Sales, LLC, 290 Ga. 462, 722 S.E.2d 55, 2012 Ga. LEXIS 133 (2012). Shareholder lacked standing to assert allegedly fraudulent transfers. - Unpublished decision: Shareholder of a corporation lacked standing to assert that allegedly fraudulent transfers of intellectual property constituted misappropriation of trade secrets since the property belonged to the corporation and the shareholder had no actionable interest in the property distinguishable from the interest of the corporation. Harris v. Orange S.A., 636 Fed. Appx. 476, 2015 U.S. App. LEXIS 22905 (11th Cir. 2015). Definition of trade secret satisfied. - Despite a corporation incorporator’s testimony that there was “probably nothing” the corporation had which derived its competitive value from not being generally known and not being readily ascertainable by proper means, sufficient evidence was presented from which a jury could find that the computer software the corporation’s president developed for the corporation satisfied the definition of a trade secret under the Georgia Trade Secrets Act of 1990, O.C.G.A. § 10-1-760 et seq., to withstand a motion for summary judgment. Insight Tech., Inc. v. FreightCheck, LLC, 280 Ga. App. 19, 633 S.E.2d 373, 2006 Ga. App. LEXIS 738 (2006), cert. denied, No. S06C1871, 2006 Ga. LEXIS 807 (Ga. Oct. 2, 2006). Patient list is not trade secret. - Because a doctor’s patient list was not a trade secret within the meaning of the Georgia Trade Secrets Act, O.C.G.A. § 10-1-761(4)(A), and because an attorney the doctor sued for misappropriation was not in the same industry as the doctor, the attorney’s possession of the list did not

reduce the doctor’s competitive advantage in the field, which was the main purpose of protecting a trade secret; thus, the attorney was entitled to summary judgment on the doctor’s claim of misappropriation. Vito v. Inman, 286 Ga. App. 646, 649 S.E.2d 753, 2007 Ga. App. LEXIS 736 (2007), cert. denied, No. S07C1859, 2007 Ga. LEXIS 770 (Ga. Oct. 9, 2007). Personal knowledge gained during employment. - In an action to have a noncompetition agreement declared invalid under Georgia law, O.C.G.A. § 9-2-46(a), which evidenced Georgia’s favoritism for the first-filed rule, the employer’s counterclaim for misappropriation of trade secrets, asserted under the Georgia Trade Secrets Act (TSA), O.C.G.A. § 10-1-760 et seq., and Ohio law, was properly dismissed rather than stayed pending the outcome of a later-filed suit in Ohio; the employee’s utilization of personal knowledge of customer and vendor information was not forbidden and did not state a claim under the TSA. Manuel v. Convergys Corp., 430 F.3d 1132, 2005 U.S. App. LEXIS 24549 (11th Cir. 2005). Because a nonsolicit/noncompete agreement was overly broad, and because the evidence was insufficient to create a genuine issue of fact as to whether a former employee or a competitor misappropriated a trade secret, or solicited the former employer’s employees or customers, the former employee and the competitor were entitled to summary judgment in the former employer’s action under O.C.G.A. § 10-1-760 et seq. Wachovia Ins. Servs. v. Fallon, 299 Ga. App. 440, 682 S.E.2d 657, 2009 Ga. App. LEXIS 835 (2009). Inevitable disclosure doctrine. - Inevitable disclosure doctrine is not an independent claim under which a trial court may enjoin an employee from working for an employer or disclosing trade secrets. Holton v. Physician Oncology Servs., LP, 292 Ga. 864, 742 S.E.2d 702, 2013 Ga. LEXIS 414 (2013). Claim against state university board. - Public relations firm’s claim against a state university board for misappropriation under the Trade Secrets Act, O.C.G.A. § 10-1-760 et seq., was

barred by sovereign immunity; however, because a violation of the Act constituted a tort and the state waived sovereign immunity for torts, the firm could bring suit pursuant to the Tort Claims Act, O.C.G.A. § 50-21-20 et seq. Bd. of Regents

of the Univ. Sys. of Ga. v. One Sixty Over Ninety, LLC, 351 Ga. App. 133, 830 S.E.2d 503, 2019 Ga. App. LEXIS 409 (2019), cert. denied, No. S19C1521, 2020 Ga. LEXIS 118 (Ga. Feb. 10, 2020).

RESEARCH REFERENCES ALR. What constitutes “trade secrets and commercial or financial information obtained from person and privileged or confidential”, exempt from disclosure under Freedom of Information Act (5 USCS § 552(b)(4)) (FOIA), 139 A.L.R. Fed 225.

Deliberative Process Exemption from Freedom of Information Act, 5 U.S.C.A. § 552(b) - Investigative and Research Documents and Reports, 77 A.L.R. Fed. 3d 1.