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St. Louis Missouri Labor & Employment Law Firm | Non-Compete Agreements | Trade Secrets
Call Us Now : (314) 645-4100
MISSOURI LABOR AND EMPLOYMENT LAW
Trade Secrets

What Are 'Trade Secrets'?

Non-compete agreements are enforceable only to protect against unfair competitive use of either customer contacts or trade secrets.

A 'trade secret' can be any formula, pattern, practice, process, design, instrument, device or compilation of information which is used in one's business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it. Some people refer to such information in the general sense as 'classified information'.

How Does A Court View Trade Secrets?

Some factors a court will consider in determining whether certain information is a trade secret are:

  1. the extent to which the information is known outside of the employer's business;
  2. the extent to which it is known by employees and others involved in the employer's business;
  3. the extent of measures taken by the employer to guard the secrecy of the information;
  4. the value of the information to the employer and to its competitors;
  5. the amount of effort or money expended by the employer in developing the information;
  6. the ease or difficulty with which the information could be properly acquired or duplicated by others.

Importantly, it is the employer who bears the burden of substantiating its asserted interest in its trade secrets. Evidence of purported trade secrets must be sufficiently specific to allow a court to make a determination.

Types Of Recognized Trade Secrets

  • Customer List - Customer lists are protectable only when they represent a selective accumulation of information based on past selling experience, or when considerable time and effort have gone into compiling it. The customer may consist of a customer's name, its location, its phone number, and a contact person.

  • Pricing, Surcharge and Rate Information - Pricing information can be a trade secret, as well as other pricing systems and procedures. However, whether a particular type of pricing information is considered a trade secret depends largely on a factual, case-by-case analysis.

Public Knowledge Is Not A Protected Trade Secret

Matters of public knowledge or information that is generally known within a given industry cannot be appropriated as a trade secret. In other words, the protection does not extend to knowledge that is the natural product of the employment or known throughout the industry.

Do You Know Whether Your Employer Has Protected Trade Secrets?

Determining whether your employer or former employer has a valid and enforceable non-competition agreement depends heavily on whether it has a protected interest in trade secrets.

Our Law Office can provide a variety of contract review, employment counseling, and litigation services to help you navigate this nuanced area of employment law. Please contact Attorney Jason M. Finkes at (314) 645-4100 or email at This e-mail address is being protected from spambots. You need JavaScript enabled to view it

BROWN v. ROLLET BROS. TRUCKING CO., 291 S.W.3d 766 (Mo.App.E.D. 2009)

 

A "trade secret" can be "`any formula, pattern, device or compilation of information which is used in one's business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it.'" Kessler-Heasley, 90 S.W.3d at 188 (quoting National Rejectors, Inc. v. Trieman, 409 S.W.2d 1, 18-19 (Mo. banc 1966)).[fn2] Some factors to be considered in determining whether certain information is a trade secret are: "(1) the extent to which the information is known outside of his business; (2) the extent to which it is known by employees and others involved in his business; (3) the extent of measures taken by him to guard the secrecy of the information; (4) the value of the information to him and to his competitors; (5) the amount of effort or money expended by him in developing the information; (6) the ease or difficulty with which the information could be properly acquired or duplicated by others."

Healthcare Services, 198 S.W.3d at 611 (quoting Continental Research, 595 S.W.2d at 400-01). See also National Rejectors, 409 S.W.2d at 18-19. The employer bears the burden to substantiate its asserted interest in its trade secrets. Healthcare Services, 198 S.W.3d at 611. Evidence of purported trade secrets must be sufficiently specific to allow a court to make a determination. Id. Matters of public knowledge or information that is generally known within a given industry cannot be appropriated as a trade secret. Kessler-Heasley, 90 S.W.3d at 188-89; AEE-EMF, Inc., 906 S.W.2d at 722. "The protection does not extend to knowledge that is the natural product of the employment or known throughout the industry. . . ." Victoria's Secret, 157 S.W.3d at 262.

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