Integrated Direct Marketing, LLC v. May (129 F. Supp. 3d 336, 2015)

United States District Court for the Eastern District of Virginia 2015-09-08

Citations

Full opinion text

MEMORANDUM OPINION

LEONIE M. BRINKEMA, District Judge.

Before the Court are multiple motions, including Defendant Merkle, Inc.’s. Motion for Summary Judgment (“Merkle’s Motion for Summary Judgment”);- Defendant Drew May’s Motion for Summary Judgment (“May’s Motion for Summary Judgment”), and Defendant Drew May’s Motion to Strike Declarations and Other Material (“Motion to Strike”), For the reasons that follow, Merkle’s Motion for Summary Judgment will be granted, May’s Motion for Summary Judgment will be granted in part, and denied in part, and May’s Motion to Strike will be denied. Also pending before the Court are plaintiff IDM’s Motion to Compel Merkle, Inc. to Respond to Plaintiffs Discovery Requests (“Motion to Compel”), Plaintiff Integrated Direct Marketing, L.L.C.’s Motion in Limine for an Adverse Inference for Defendants’ Spoliation of Evidence - and Other - Relief (“Spoliation Motion”), and Plaintiff, [sic] Integrated Direct Marketing, ' L.L.C.’s Motion for Sanctions for Defendants! Failure to Produce Documents, Submission of a False Affidavit, and Refusal to Answer Questions at Deposition (“Motion for Sanctions”). For the reasons that follow, plaintiffs Motion to Compel and Spoliation Motion will be denied, and plaintiffs Motion for Sanctions will be granted in part and denied in part.

I. BACKGROUND

A. Procedural History

Plaintiff Integrated Direct Marketing, LLC (“plaintiff’ or-“IDM”) instituted this action against former employee Drew May (“May”) for .allegedly misappropriating IDM’s confidential and proprietary; information, including its trade secrets, and using that information to benefit himself and his new employer, Merkle, Inc. (“Merkle”), Almost six months after filing the initial Complaint, IDM filed an amended complaint, titled “Integrated Direct Marketing, LLC’s First Amended Complaint Against Drew Many and Merkle, Inc., for Injunctive Relief. Damages, and Other Relief’ (“Amended Complaint”),, adding Merkle as a defendant. The Amended Complaint'alleges seven causes of action. The first four, consisting of breach of contract (Count I), breach of fiduciary duty (Count II), conversion (Count III), and violation of the Arkansas and Virginia trade secrets acts (Count IV), were filed solely against May.. Count V, which also alleges a violation of the Arkansas and North Carolina trade secrets acts, was filed solely against Merkle, and the last two counts of intentional interference with business expectancies (Count VI); and unjust enrichment (Count VII) were filed against both defendants.

In terms of relief, IDM seeks an injunction barring May and Merkle from engaging in any use of IDM’s trade secrets and the confidential information May learned while employed with IDM; directing May and Merkle to return any documents or electronic files containing .those trade secrets or confidential information; and enjoining May and Merkle “from engaging in future activities that would result in misappropriation of IDM’s trade secrets and confidential proprietary information, including refraining from work on all accounts on behalf of Merkle that are in competition with IDM, including on data integration, campaign analytics, data sourcing, data pricing, and any other activities in which May and Merkle have retained, used, and. may use, IDM’s trade secrets and confidential and proprietary information.” IDM also seeks compensatory and punitive damages, Merkle’s disgorgement of any unlawfully obtained profits, and reasonable royalties for misappropriating IDM’s information.

This action has been heavily litigated from the beginning due to the parties’ failure to follow the Local Civil Rules and numerous discovery-related disputes which required endless motions hearings resulting in an almost three-month extension of discovery. Still pending is IDM’s Motion to Compel, which seeks further discovery of Merkle’s financial information in relation to IDM’s unjust enrichment claim and damages theory. That motion has been held in abeyance pending the outcome of summary judgment. In addition, upon the defendants’ motions, IDM’s two damages experts were stricken from this case because they were not timely disclosed. See Order of April 13, 2015 [Dkt. No. 113] (magistrate judge’s order); Order of May 1, 2015 [Dkt. No. 162] (Order affirming the magistrate judge’s ruling). Accordingly, IDM has no expert to testify at trial about its damages. Also still pending are plaintiffs Spoliation Motion, which accuses May and Merkle of spoliating evidence, and plaintiffs Motion for Sanctions, which was filed against both defendants on multiple grounds. After hearing argument on both motions, including live testimony from May on the spoliation issue, the Court declined to rule on those motions. .

Following the close of discovery and after hearing oral argument on plaintiffs Spoliation Motion and Motion for Sanctions, each defendant filed a motion for summary judgment. Subsequently, May moved to strike certain exhibits attached to IDM’s brief in opposition to his summary judgment motion. All three motions were fully briefed and a hearing was held on August 21, 2015. During that hearing, the Court granted summary judgment in favor of May on the breach of contract claim (Count I), which alleged that May breached Paragraph 2 of his Confidentiality Agreement with IDM. Paragraph 2 indefinitely prohibited May from disclosing any of IDM’s confidential information to any third party. “Confidential information” was defined as “any and all information furnished by” IDM that is not publicly known, As May argued, the breadth of that definition made that, clause unenforceable. For example, it would prevent May from ever disclosing information such as the identity of IDM’s janitor services vendor. Accordingly, the Court ruled that the confidentiality provision was not narrowly tailored to protect IDM’s legitimate business interests, thereby rendering it unenforceable under Virginia law. See Assurance Data, Inc. v. Malyevac, 286 Va. 137, 747 S.E.2d 804, 808 (2013) (reiterating the principle that an agreement that restrains competition or trade must be “no greater than necessary to protect a legitimate business interest,” “not unduly harsh or oppressive-in curtailing an employee’s ability to earn a livelihood,” and “reasonable in light of sound public policy”); Lasership Inc. v. Watson, 2009 WL 7388870, at *8, 79 Va. Cir. 205 (Aug. 12, 2009) (finding á confidentiality agreement overbroad because it precluded the disclosure of any information concerning the business to any person' in perpetuity, including information not ‘‘worthy of confidence”); see also BB & T Ins. Servs., Inc. v. Thomas Rutherfoord, Inc., 2010 WL 7373709, at *5, 80 Va. Cir. 174 (Va.Cir. Feb. 9, 2010) (confidentiality clause unenforceable because its duration was “for perpetuity”). Moreover, even if Paragraph 2 were enforceable, IDM failed to produce any evidence of actual damages resulting from May’s alleged breach, which is an essential element of a breach of contract claim. See Sunrise Continuing Care, LLC v. Wright, 277 Va. 148, 671 S.E.2d 132, 135 (2009).

The remainder of the issues raised in the parties’ summary judgment motions, as well as during the August 21 hearing, are addressed in this Opinion.

B. Factual Background

Both IDM and Merkle are engaged in the data-driven marketing business.. IDM provides data solutions, analytics, and strategies to technology and retail companies for their business:to-business (“B2B”) and business-to-consumer (“B2C”) marketing needs. See Deck Slater Supp. Pl.’s Opp’n to Merkle’s Mot. Summ. J. (“Slater Deck Opp’n MSJ”) ¶3. IDM’s principal place of business is in Reston, Virginia. Its focus is to help its clients achieve their customer acquisition and retention goals, as well as their sales goals. Id. Two key areas of IDM’s business are data sourcing and customer data integration (“CDI”). Id. ¶4. “Data sourcing involves selecting and acquiring the best data for each [data] solution, including drawing from large data providers to hundreds of niche sources in order to build the greatest depth and accuracy at the best value.” Id. “CDI involves matching various data sources using special processes to provide a dataset that has no errors or duplications.” Id. ¶ 5; see also Deck Brian Wiedower (“Wiedower Decl.”) ¶ 5 " (explaining that CDI Ms the process of consolidating and managing customer information from multiple data sources). CDI is an element of customer relationship management (“CRM”) for companies and enables a company to maximize the success of a marketing campaign using customer data. Id.

Merkle’s principal place of business is in Columbia. Maryland. It provides data solutions, analytics, and strategies to businesses in support of their B2B and B2C marketing. Both IDM’s and Merkle’s businesses involve procuring custom data for clients from external data sources and combining it with client internal data to produce custom data-based CRM programs. Both companies compete to provide their data-integrated CRM services to high-tech businesses.

May, a resident o'f Arkansas, was hired by IDM in January 2012, J. Slip. [Dkt. No. 188] ¶5, to open IDM’s Little Rock, Arkansas office, see Slater Decl. Opp’n MSJ ¶6. May had known Chad Slater (“Slater”), IDM’s President and CEO. since 1997 or 1998 through their mutual employment at Acxiom. See IDM Dep. 39, 281. While he was at IDM, May served as the Executive Vice President for Data Integration. On March 11, 2014; IDM terminated May’s employment. J. Stip. ¶ 5. Although May signed a Confidentiality Agreement with IDM early on in his employment, he declined to execute the Confidential Separation and Non-Disclosure Agreement- that IDM presented to him upon his termination. Id. ¶¶ 7-8. May was clearly unhappy about his separation from IDM, as evidenced by inflammatory ’text messages he sent after he was terminated, which included statements that he was “[w]aiting on a few job offers to decide to take job [sic] or just steal all of IDM’s clients and hire .the team in LR [Little Rock] just to f them” and that he could “absof — inglutely” “poach IDM’ers.” Decl. Darin D. Thomas Supp. Renewed Mol. Compel Merkle and May (“Thomas Decl.”).

On April 29,2014, May accepted employment with Merkle and began working at Merkle on May 5, 2015. J. Slip. ¶¶ 9, 11. May was hired as a Vice President and Client Partner in the “High Technology/B2B Vertical Markets Group.” Id. ¶ 12. Upon learning of May’s new employment, IDM’s counsel sent letters on May 7, 2014, to both May’s attorney at the time (John Coulter) and Merkle’s CEO (David Williams) stating that “IDM is closely monitoring this situation in light of the fact that Mr. May is now employed by Merkle, a competitor of IDM, and IDM will aggressively pursue legal action against Mr, May and Merkle in the event IDM becomes aware of a breach of the [Confidentiality] Agreement.”

Almost two months later, IDM’s counsel reached out to Merkle’s general counsel, Beverly Rubin, to express its concern over May working on Merkle’s account with Dell, a large client of both IDM and Merkle. In .mid-July 2014, Rubin discussed IDM’s concerns with May. See Rubin Aff. ¶¶ 12-19 [Dkt. No. 256-1]. During this conversation, May informed Rubin that he had backed up information from his IDM computer onto a personal external hard drive from lime to lime but “that he did not think he had any IDM information on his personal hard drive, yet he was unsure.” Id. ¶ 15. May asked what he should do if he did still have IDM information on his hard drive, and Rubin “made it clear to him that [she] did not want any IDM information here at Merkle. [She] further indicated that he needed to continue to comply with his confidentiality obligations to IDM.” Id. ¶ 16.

As it turned out, May had in fact retained a large amount of IDM flies on his personal external hard drive following his departure from IDM. See Report on Digital Forensic Examination (“Ball Rep.”) 3-9 (Apr. 8, 2015). Based on an examination of the hard drive by IDM’s forensic computer expert, Craig Ball (“Ball”), it was determined that May retained possession of many IDM files long after he was fired from IDM and that he later attempted to delete those flies from his external hard drive on four separate occasions: July 16, September 7, September 19, and September 22, 2014. See id.- The latter two deletions occurred after the original Complaint was' filed on September 8, 2014. Based on this evidence, May violated Paragraph 9 of his Confidentiality Agreement, which required that a terminated employee return any and all IDM property -or destroy it upon IDM’s direction. Despite the deletions, it appears from Ball’s report that much of the information has been recovered, as Ball was able to list file names and access dates. See id.

In opposing summary judgment, IDM cites numerous examples of what it claims are instances of May and Merkle misappropriating IDM’s confidential and proprietary information, including its trade secrets, particularly in light of the IDM files May retained on his external hard drive. The core argument in defendants’ summary judgment motions is that there is insufficient evidence that either of them used or benefitted from any IDM information May retained and that none of the information specified by IDM qualifies as a trade secret. They also attack the lack of any evidence of IDM being actually damaged by either defendant’s conduct.

II. MOTIONS FOR SUMMARY JUDGMENT

A. Standard of Review

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material'fact and the movant is entitled to judgment as a-matter of law.” Fed.R.Civ.P. 56(a). The movant has the initial-burden of showing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the movant filés for summary judgment and provides evidentiary Support for the motion in accordance with' Fed. R.Civ.P. 56(c), “the nonmoving'party must come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (internal quotation marks omitted) (emphasis-in original). A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “[W]hen considering a motion for summary judgment, the district court must draw any permissible inference from the underlying facts in the light most favorable to the party opposing the motion;” however, “those, inferences must, in every case, fall within the range of reasonable probability and not be so tenuous as to amount to speculation or conjecture.” Thompson Everett, Inc. v. Nat’l Cable Adver., L.P., 57 F.3d 1317, 1323 (4th Cir.1995) (internal quotation marks and citation omitted).

“While it is axiomatic that Rule 56 must be used carefully so as not improperly to foreclose trial on genuinely disputed, material facts, the mere existence of some disputed facts does not require that a ease go to trial.” Id.; see also Anderson, 477 U.S. at 252, 106 S.Ct. 2505 (“The mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient. ...”). Accordingly, to survive a motion for summary judgment, “[t]he disputed facts must be material to an issue necessary for the proper resolution of the case, and the quality and quantity of the evidence offered to create a-question of fact must be adequate to support a jury verdict.” Id.; see also Poole v. Pass, 351 F.Supp.2d 473, 478 (E.D.Va.2005). “Thus, if the evidence is ‘merely colorable’ or ‘not significantly probative,’ it may not be adequate to oppose, entry of summary judgment.” Id. (quoting Anderson, 477 U.S. at 249-250, 106 S.Ct. 2505).

B. Local Civil Rule 56

As an initial matter. IDM does not specifically contest the lists of numbered undisputed - material facts in each. defendant’s memorandum in support of summary judgment. Instead, IDM states in a footnote in- its opposition briefs that it “disputes all of May’s [and Merkle’s] ‘Undisputed’ Material Facts (save for the stipulated facts filed with the Court). The facts the [sic] May [and Merkle] has recited are not in the light most favorable to IDM and are disputed for' the reasons set forth herein.” Pl.’s Opp’n to May’s Mot. Summ. J (“PL’s Opp’n May’s MSJ”) 1 n. 1; PL’s Opp’n to Merkle’s Mot. Summ. J. (“PL’s Opp’n Merkle’s MSJ’.’) 3 n. 2. IDM then presents its own version of the facts in narrative format, including citations to its exhibits, rather than in list format, and does not identify which facts, if any, are in dispute.

Defendants argue that IDM’s opposition briefs do not comply with Local Civil Rule 56(13), which states: “A brief in response to such a motion [for summary judgment] shall include a specifically captioned section listing all material facts as to which it is contended that there exists a genuine issue necessary to be litigated and citing the parts of. the record relied on to support the facts alleged to be-in dispute.” Local Civ. R. 56(B). Defendants further argue that the Court should accept their lists of undisputed facts as admitted due to IDM’s failure to comply with the local rule. See Local Civ. R. 56 (“In determining a motion for summary judgment, the Court may assume that facts identified by the moving party in its listing of material facts are admitted, unless such a fact is controverted in the statement of genuine facts in opposition to the motion.”);

In support, defendants cite Lake Wright Hospitality, LLC v. Holiday Hospitality Franchising, Inc., No. 2:07-cv-530, 2009 WL 2606254 (E.D.Va. Aug. 20, 2009), and JDS Uniphase Corp. v. Jennings, 473 F.Supp.2d 705 (E.D.Va.2007), among other eases, in which courts in this district have adopted the moving-party’s list of undisputed facts because the nonmoving party failed to comply with- Local Civ. R. 56(B). In Lake Wright, rather than listing all material facts contended to be in dispute, the plaintiff “set forth its own counter-statement in the 40-page body of its opposition, and then included ... a separate ‘summary of disputed facts’ indexed to the numbered paragraphs of defendants’ list of undisputed facts as Exhibit 1 to its opposition.” Id. at *3. In addition, the “plaintiffs counterstatement contained] literally dozens of paragraphs that are (A) argument, which has no place in the facts section of an opposition, (B) factual contentions unsupported by citations to record evidence, in violation of this court’s Local Civil Rule 56(B), (C) misleading statements, and (D) outright misrepresentations.” Id.

Similarly, in JDS Uniphase, the court found that the party moving for summary judgment, the counterclaim-defendant, “submitted a properly captioned statement of undisputed facts with appropriate record citations” but the counterclaim-plaintiff “responded with a narrative that did not identify with any specificity which facts, if any, were disputed.” JDS Uniphase, 473 F.Supp.2d at 707. The court concluded, “In these circumstances Local Rule 56(b) dictates that the Court may ‘assume that facts identified by the moving party in its listing of material facts are admitted.’ Accordingly, [the counterclaim-defendant’s] statement of material facts is properly deemed to' be undisputed.” Id.

As in Lake Wright and JDS Uniphase, IDM’s narrative version of its own interpretation of the facts fails to comply with Local Civil Rule 56(B); largely contains argument, and makes it difficult to determine exactly which material facts are disputed. Moreover, because of the way IDM responded to defendants’ uncontested facts, it effectively denied many obviously uncontestable facts listed by May, such as:

IDM procures data from third-party vendors, reformatting the data to suit the needs of IDM’s clients, and then selling the reformatted data to its clients. Defs May’s Mot. Summ. J. (“May’s MSJ”) 2 (undisputed material fact (“UMF”) #1).'

May has over 25 years of experience in the marketing services industry, starting at Acxiom Corporation (“Acxiom”), a company that sources, manipulates and maintains information on potential consumers and provides strategic marketing advice to its clients. Id. at 3 (UMF #3).

During his employment with IDM, May worked with a total of six clients: Dell, Google, JC Penney, Home Depot; Stage Stores, and Northern Tool & Equipment. Id. (UMF # 6).

May possessed an external hard drive contained [sic] over a million fries at the time it was forensically copied on September 25, 2014. Id. at 4 (UMF # 9).

The same is true for at least some of Merkle’s listed uncontested facts:

Merkle was formed in 1983, and acquired by David Williams, the present CEO, in 1988. Def. Merkle’s Mot. Summ. J, (“Merkle’s MSJ”) 1 (UMF #6).

Dell has been a client of Merkle since 2000. Id. (UMF # 7)

Google has been a client of Merkle since 2012. Id. at 2 (UMF # 8).

It is IDM’s allegation that Mr. May thereafter disclosed to Merkle information belonging to IDM. In answer Merkle’s First Interrogatories, IDM identified certain documents in support of this allegation. Id. (UMF # 10) (citing IDM’s Responses to Merkle’s First Interrogatories).

Accordingly, IDM’s opposition briefs do not demonstrate a good faith effort to specifically identify which material facts are genuinely in dispute, Therefore, all uncontested facts listed in defendants’ opening briefs but not contested by IDM in its argument sections are deemed admitted. Moreover, any new facts included in IDM’s narrative fact sections but not specifically discussed within the context of its arguments will not be considered as establishing anything.

C. Preemption Under the Arkansas Trade Secrets Act

Defendants argue that the Arkansas Trade Secrets Act (“ATSA”), and specifically Ark.Code Ann. § 4-75-602 (West), preempts IDM’s non-contract claims regarding any of its confidential and proprietary information, even if that information does not qualify as a trade secret. That statutory provision states:

(a) This subchapter displaces conflicting tort, restitutionary, and other law of this state pertaining to civil liability for misappropriation of a trade secret,

(b) This subchapter does not affect:

(1) Contractual or other civil liability or relief that is not based upon misappropriation of a trade secret; or

(2) Criminal liability for misappropriation of a trade secret.

Ark.Code Ann. § 4-75-602 (West). IDM responds that a jury must first decide whether any of the information at issue constitutes a trade secret before the preemption issue can be decided. IDM also argues that the ATSA does not preempt tort claims arising under the law of other states, and further argues that all of its tort claims in fact arise under other states’ laws.

After reviewing the cases cited by the parties, the Court is not persuaded by defendants’ arguments that the determination of whether the ATSA preempts IDM’s tort claims should be made at this time. Although the cases upon which the defendants rely demonstrate that the preemption issue may be decided before trial and that the ATSA may preempt tort claims even if the information underlying those claims is ultimately found not to qualify as a trade secret, each of those cases relies upon a single case from the Arkansas Supreme Court which does not appear to stand for as broad a proposition as defendants assert.

In that case, the Arkansas Supreme Court interpreted the preemption provision for the first time and found that, “[a]s a general rule, courts examine whether the claim is based upon the misappropriation of a trade secret. If so, the displaced claim must be dismissed.” R.K. Enter., LLC v. Pro-Comp Mgmt., Inc., 356 Ark. 565, 158 S.W.3d 685, 689-90 (2004). The court then concluded that the ATSA “displaces or preempts the award of damages based upon tort claims for conversion of trade secrets, as well as other tort claims such as conspiracy, that may arise under a claim for misappropriation of trade secrets.” Id. at 690. In reaching that conclusion, the court favorably quoted the following from a prior federal district court case interpreting the ATSA’s preemption provision:

[W]ere the Court to determine that the information [the plaintiff] seeks to protect as a trade secret qualified as such, and that the Defendants misappropriated those trade secrets, then [the plaintiffs] exclusive remedy for improper use of that information would be pursuant to the Arkansas Trade Secrets Act. In that situation, [the plaintiff] would not be able to rely on the acts constituting misappropriation of a trade secret to support its other causes of action. That situation does not arise here, however, because the Court concludes that the information that [the plaintiff] seeks to protect as a trade secret is not entitled to protection as such under the Arkansas Trade Secrets Act.

Id. at 689 (emphasis added) (quoting with approval Vigoro Indus., Inc. v. Cleveland Chem. Co. of Ark., 866 F.Supp. 1150, 1161 (E.D.Ark.1994), aff'd in part, rev’d in part on other grounds sub nom., Vigoro Indus., Inc. v. Crisp, 82 F.3d 785 (8th Cir.1996)). Under this analysis, IDM’s tort claims would not be preempted to the extent that they may relate to information that does not qualify as a trade secret, Because the preemption issue need not be decided until a determination is made that there are in fact trade secrets involved ,in this action, the question of whether the ATSA preempts claims arising under other states’ law’s need not be addressed at this junction.

D. trade Secrets Claims

In Counts IV and V, IDM raises claims against both defendants for violating the Arkansas Trade Secrets Act, Under the ATSA, a plaintiff may recover damages for any actual loss it suffers caused by misappropriation and for the defendant’s unjust enrichment derived from the misappropriation “that is not taken into account in computing damages for actual loss.” Ark. Code Ann. § 4-75-606 (West). In addition, “[a]ctual or threatened misappropriation may be enjoined.” Ark. Code Ann. § 4-75-604 (West), “Misappropriation” is defined as:

(A) Acquisition of a trade secret of another by á person who knows or has reason to know that the trade secret was acquired by improper means; or

(B) Disclosure or use of a trade secret of another without express or implied consent by a person who:

(i) Used improper means to acquire knowledge of the trade secret; or

(ii) At the time of disclosure or use. knew or had reason to know that his knowledge of the trade secret was:

(a) Derived from or through a person who had utilized improper means to acquire it;

(b) Acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or

(c) Derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or

(iii) Before a material change of his position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake;

Ark.CodeAnn. § 4-75-601(2) (West). '

“Trade secret” is defined as “information, including a formula, pattern, compilar tion, program, device, method, technique, or process,” that:

(A) Derives .independent economic, value, actual or potential, from not being generally known to, and not being, readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; .and

(B) Is the subject of efforts that are reasonable under the .circumstances to maintain its secrecy.

Ark.Code, Ann. § 4-75-601(4) (West). Lastly, “improper use” is defined as “theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means.” Ark.Code Ann. § 4-75-601(1) (West).

“In addition to the statute, [the Arkansas] supreme court has endorsed a six-factor analysis in detérmining Whether information qualifies as a trade secret: (1) the extent to which the information is known outside the business; (2) the extent to which the information is known by employees and others involved in the -business; (3) the extent of measures taken by the company to guard the secrecy of the information; (4) the value of the information to the company and to its competitors; (5) the amount of effort or money expended by the appellee in developing the information; and (6) the ease or difficulty with which the information could be- properly acquired or duplicated by others.” LaPointe v. New Tech., Inc., 2014 Ark. App. 346, 437 S.W.3d 126, 130 (2014) (citing Saforo & Assocs., Inc. v. Porocel Corp., 337 Ark. 553, 991 S.W.2d 117 (1999)).

“Information must meet both the ATSA definition and all of the six Saforo factors in order to qualify as a trade secret.” Wal-Mart Stores, Inc. v. P.O. Mkt., Inc., 347 Ark. 651, 66 S.W.3d 620, 630 (2002). Furthermore, “the [Arkansas] supreme court .[has] made it clear that a company must make reasonable efforts to restrict postemployment disclosure of confidential information for that information to be a trade secret.” Id. (citations omitted).

To survive summary judgment on its trade secret claims, IDM must come forward with evidence from which a reasonable jury, drawing all reasonable and not merely speculative inferences in IDM’s favor, could return a verdict for IDM. See Matsushita, 475 U.S. at 587, 106 S.Ct. 1348: Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Thompson Everett, 57 F.3d at 1323. Moreover, summary judgment is appropriate for any claim for whiehTDM has failed to proffer evidence supporting each element of that claim, provided defendants have moved for summary judgment on that basis. See Celotex, 477 U.S. at 323-24, 106 S.Ct. 2548 (“One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses.... ”). IDM has identified the following as the trade secrets misappropriated by May and Merkle.

1. Google Brazil Pñcing '

IDM claims May disclosed to Merkle IDM’s pricing information in connection with a proposal Merkle was preparing for Google work in Brazil, which both Merkle and IDM were competing to win. IDM’s theory is that Merkle employees got May to disclose IDM’s trade secret pricing information which enabled Merkle to underbid IDM, causing Google to select Merkle for the Google Brazil project before IDM could submit its final, proposal to Google. To support this claim, IDM relies ,on an email chain among a handful of Merkle employees that took place during May’s first week with Merkle. See May 11, 2014 Revised Numbers E-mail. The e-mail circulated Merkle’s draft costs for its forthcoming proposal to Google. May’s sole statement in this e-mail chain was: “Not that I have a ton to add here, but will the client have an issue on the $148 a lead number?” Id Michael Donovan, a Merkle employee, responded:

• Drew — anything you can tell us about what worked well/not well in IDM’s pricing approach? Are there things we should add in that-we might-now [sic] be considering?

• I agree with Drew’s comments about $148, but at the same time, Inti data costs (and results) are WAY more expensive than in the US.

Id. There is no evidence of any further response from May to this e-mail. Instead, the original sender, Karen Caulfield, asks Chandos Quill a couple days later to review and finalize the pricing, to which Quill responds. “Hi Karen I have reviewed and updated the lead pricing. It came down some,” Id. Merkle’s final price per lead was $140.50.

Based on this e-mail exchange, IDM argues that “May had IDM’s Google pricing scheme and latest contract status;” “he told the Google team their price per lead was too high;” Donovan “asked May to divulge IDM’s pricing strategy for its Google work;” “[tjhere were.a series of communications over the weekend regarding Merkle’s pricing strategy to Google;” and “by the end of the weekend ‘the price came down some,’ not coincidentally to just $1.50 per lead lower than IDM’s pricing for. Google.” Pl.’s Opp’n May’s MSJ 21. IDM purports that its “price for Google work is $142 per lead in North America,” Pi’s Opp’n Merkle’s MSJ 12 (citing Slater Deck Opp’n MSJ ¶ 17), although that figure was never revealed by IDM during discovery.

At some point after Merkle submitted its bid for the Google Brazil work, Google stopped communicating with IDM about the project. IDM Dep. 53-54, 65. As a result, IDM never finalized and submitted its own proposal for the Google Brazil work. See id. IDM’s damages theory relating to the alleged misappropriation of its pricing information .is that May revealed IDM’s price for Google North America, enabling Merkle to underbid IDM on Google Brazil, leading to Merkle winning the Google Brazil work and thereby being unjustly enriched by that win.

Although the parties seem to agree that Donovan should not have asked May about IDM’s pricing approach, defendants argue that there is no evidence, in the record that May ever responded to Donovan’s inquiry and, accordingly, no evidence that Merkle used any such information in formulating its final proposal for the Google Brazil work. In his deposition, May testified that later the next week, he spoke with Donovan over the telephone and said something to the effect of “probably shouldn’t have done that.” May Dep. 355-56. May elaborated that he said this because Donovan’s inquiry would have required- May to disclose confidential and proprietary pricing information of IDM. Id. at 357-58.

Donovan was also deposed, during which he stated that May never responded to his inquiry and never gave him any information regarding Merkle’s pricing proposal for the Google Brazil work. Donovan Dep. 130-31. In addition, Quill stated in her deposition, “I was responsible for pricing and I didn’t use it.” ' Quill Dep. 31. The parties have not attached the previous page-'of- Quill’s deposition containing the particular quéstion posed, but Merkle states in its reply brief that the above-quoted response-from Quill was in reference to Merkle’s proposed Google Brazil pricing and whether she used any information from May. See Merkle’s Reply Supp. MSJ 8. Therefore, there is' no direct evidence that May disclosed any IDM pricing information to anyone at Merkle in connection with Merkle’s Google Brazil bid.

Although there is no direct evidence of such a pricing disclosure, if IDM can point to reliable evidence in the record that Merkle in fact dropped the price in its Google Brazil bid to just below a known-IDM price, following Donovan’s. inquiry, that might be sufficient circumstantial evidence to create an issue of fact precluding summary judgment, given that a jury would be entitled to find that pricing information in this context could constitute a trade secret. IDM, however, has produced no such- evidence. Instead, IDM has proffered, in a very problematic declaration by Slater submitted for the first time in opposing summary judgment, that its price for Google work in North America is $142 per lead and that May knew that price based on his work for Google while employed by IDM. See Slater Deck Opp’n MS J ¶ 7. There is no further explanation in Slater’s declaration or in IDM’s summary judgment opposition briefs of where this $142 figure comes from or why it was not specifically revealed during discovery, despite Slater being deposed for two full days in both his individual capacity and as the corporate designee for IDM.

Indeed, when Slater testified as IDM’s corporate designee, he repeated numerous times that IDM did not use a price per lead pricing system and that he could not give defendants’ attorneys any estimated price per lead for work IDM had done for Google. For example:

Q: I’m talking about internally you floated a price per lead of $148 price per lead?

IDM: I don’t know how I can be more clear to you that we do not talk about programs on a price per lead basis, and we did not submit a proposal for Google Brazil.

IDM Dep. '65. IDM was then asked whether it had ever performed work in Brazil for Google:

IDM: We’ve done tests, and we’ve done proof of concepts, and we’ve looked at data for them in Brazil, yes.

Q: Okay. Do you remember what the price per lead was for the proof of concepts that you did, that IDM did. for Google Brazil?

A: I guess were going to be here all day. You keep asking me price per lead. I’ll answer it'again, which we do not price anything to Google on a price per lead basis.

Q: You’ve heard your counsel talk about $148 price per lead per that email we just were talking about. You’re saying that has nothing to do with the way IDM does business; correct?

A: No, You’re speaking very broadly. Using something very specific and going broadly with it; right?

Q: Okay. Well, tell me how you can or cannot answer that question.

A: Can you read the question back or restate it?

(Whereupon, the reporter read the record as requested.)

A: So that’s why I can’t. It has nothing to do with the way that we do business.

IDM Dep. 68-69.

Contrary to Slater’s deposition testimony. IDM now insists that it has used a price per lead of $142 for Google work and that Merkle reduced its bid to $140.50 to undercut IDM. In his declaration, Slater backtracks on his deposition testimony by explaining that “the price per lead generated is always inherently incorporated into such proposals, and price per lead can be readily calculated from a total cost of the bid by simple mathematics.” Slater Deck Opp’n MSJ $ 16. Slater then states, ‘TDM’s price for Google work, is [$142] per lead in North America. May knew by virtue of his work with IDM, including his work on Google for .IDM, that IDM’s price for Google work is [$142] per lead.” Id. ¶ 17 .(emphasis added). IDM does not explain why Slater was able to identify the $142 price per lead in his declaration filed in opposition of summary judgment when he could not give even an estimated price per lead ' during his depositions. Moreover, the $142 figure is stated in connection with Google North America. Most confusing was that during IDM’s deposition, Slater “conceded that if [its] unsubmitted proposal for work in Brazil had been sent to Google, the price per lead would have been calculated at $11,20.” Merkle’s Reply Supp. MSJ 9 (citing IDM Dep. 74-75). At the August 21 hearing, IDM’s counsel explained that the- $11.20 price per lead was-not-a comparable figure because it was a discounted price that IDM charged Google for a test performed in Brazil in an attempt to win the larger Google Brazil contract. See Tr. Aug. 21 Hr’g 20-21. Therefore, no evidence has been presented as to what, pricing IDM was considering using in its never-finalized proposal for the Google Brazil project.

At the August 21, 2015, hearing, IDM explained for the first time that the $142 figure is derived from Statements of Work (“SOWs”) between IDM and Google for work in Nprth America which were purportedly produced by IDM in discovery but have not been presented to the Court. IDM’s counsel claimed, without citing to record evidence, that May retained possession of those SOWs .after he began working for Merkle and could have calculated the $142 price per lead from them and thereby disclosed that figure to Merkle, See Tr. Aug. 21 Hr’g 20. Despite having enlisted a forensic computer expert to examine May’s external hard drive, who then reported on the files retained on May’s hard drive after his termination date, IDM has not cited to any evidence from that expert showing that May in fact retained the SOWs at issue, nor has IDM' submitted those SOWs to the Court as evidence of its claim that it used a $142 price per lead for its Google North America work, Without such evidence, Slater’s eleventh hour declaration,, devoid of any explanation of the basis for that figure, does not provide adequate evidence from which a reasonable jury could find in favor of IDM’s price-undercutting theory. Accordingly, summary judgment will be granted for the defendants to the extent this claim is raised under the ATSA.

In addition to TDM’s claim under the ATSA' against' both defendants, IDM' argues that it also has a elaihi against Merkle under the North Carolina Trade Secrets Protection Act (“NCTSPA”) based on the same price-undercutting allegations because Donovan was working at Merkle’s location in North Carolina when he sent the e-mail asking May about pricing. Seé PL’s Opp’n Merkle’s MSJ 22 n. 17. Assuming IDM can bring a claim under the NCTSPA, the same conclusion results because the substantive state law. does, not change the summary judgment standard in Fed.R.Civ.P. 56, as applied by federal courts. Merkle has put forth substantial evidence that it did not receive or use any IDM pricing information in preparing its Google Brazil bid. The sole evidence IDM has put forth is Slater’s “own, self-serving and conclusory affidavit.” without any corroborating evidence, which “is insufficient as a matter of law to counter [Merkle’s] substantial evidence ... and to stave off summary judgment.” Malghan v. Evans, 118 Fed.Appx. 731, 733 (4th Cir.2004). Therefore, this claim fails.

2. IDM’s Fuzzy Matching CDI

IDM’s next trade secret misappropriation claim focuses on a telephone conversation between Brian Wiedower (“Wiedower”), who was then IDM’s Director of Data Integration, and Joseph Tobey (“Tobey”), who is Merkle’s Director of D'ataSolutions Operations. Specifically, IDM alleges that during May’s second week at Merkle, he set up a conference call for May 15, 2014, between Wiedower and Tobey, during which Wiedower disclosed IDM trade secret information to Tobey. It is undisputed that this telephone conference occurred and that the participants discussed Alteryx, a commercially available software package that anyone may purchase. Alteryx can be used to perform data hygiene and data analytics, see Decl. Joseph Tobey (“First Tobey Decl.”) ¶ 3 (June 14, 2015), and can be utilized for customer data integration, see Wiedower Decl. ¶4. Alteryx comes with built-in features, including its Fuzzy Matching Tool which can be used to identity similar records from multiple data sources. See First' Tobey Decl. ¶ 6. Alteryx can also be customized for a user’s needs through programming. See Wiedower Decl. ¶ 4.

The only evidence IDM provides as to its claim that trade secret information was revealed in this conversation are a declaration from Wiedower and a May 13, 2015, email from Merkle employee Scott Cone (“Cone”) to Tobey. In that May 13 email, Cone asked Tobey the following: “Joe — do we have a copy of Alteryx in house? Maybe that can help the company name matching problem that Thomas and Steven are working on for góogle.” MERKLE-000054. Apparently on the same day, May set up a conference call for May 15 between Wiedower and Tobey. See Wiedower Decl, ¶ 10. May also sent Wiedower an e-mail inyitation to the conference call on the morning of May 15. See id. Ex. A. According to Wiedower’s declaration:

While I was employed at IDM, Drew May, who had since become an employee of Merkle, called me on or about May 13, 2014. Drew May'told me that Merkle needed help with its problem' of performing string matching or fuzzy matching in the Alteryx tool. Drew May asked me to talk to a Merkle employee and help Merkle solve this problem, via conference call, two days later, on May 15, 2014. Wiedower Decl. ¶ 10.

On the conference call, I helped resolve Merkle’s string matching configuration problem, using Alteryx. Id. ¶ 11.

I understand that the disclosure of information regarding ... fuzzy matching techniques on the Alteryx platform was a disclosure of IDM confidential and proprietary information. Id. ¶ 13.

Defendants provide two declarations from Tobey. In his first declaration, To-bey avers that Wiedower only explained “the basic functionality of Alteryx and its Fuzzy Matching Tool” and that the information Wiedower provided was “general in nature and was very similar to the information provided on Alteryx’s public website or by using the templates provided in the software package.” First Tobey Decl. ¶ 9. Tobey further avers that' “at no time during this call do I recall ever discussing any customer data integration (‘CDI’) rules or ever discussing with Mr. Wiedower how IDM utilizes Altery[x].” Id. ¶ 13.

Assuming that Merkle’s “company name matching problem” was a topic of conversation during the conference calk which Tobey denies, defendants argue that IDM’s failure to specifically identify what Wiedower disclosed is fatal to its claim. Specifically, defendants contend that merely stating the generic descriptor “fuzzy matching techniques” fails to identify any alleged confidential information or trade secret and therefore is not sufficient to create a triable issue of fact. See, e.g., May’s Reply Supp. MSJ 18 (“Alteryx is a publicly-available data program and like any program such as Microsoft Word, PowerPoint or other programs, different users can have greater familiarity with a program’s functionality. Thus, Mr. Wiedower’s declaration that he helped solve an Alteryx problem provides no insight.”).

Given that Wiedower is IDM’s witness, and IDM chose to obtain a declaration from him, there is no reason why IDM could not have had Wiedower articulate in his'declaration what proprietary IDM information regarding “fuzzy matching techniques” he disclosed to Tobey. Merely stating “information regarding ... fuzzy matching techniques” does not provide enough evidence from which a reasonable jury could determine whether the disclosed information satisfies the ATSA definition of a trade secret and the Saforo factors, particularly because that term would seemingly cover the built-in functions of Alteryx’s Fuzzy Matching Tool, which are publicly available to all who purchase that software.

finally, May argues, “IDM does not show how Mr. May is liable for Mr. Wiedower’s decision to reveal any confidential information during a call or how Mr. May could distinguish between what information resid[ed] in Mr. Wiedower’s head that IDM considered confidential or not.” Id. IDM has not cited any authority for its position that because May set up the telephone conference and was present during the calk he.should be liable for anything improper Wiedower may have said. Therefore, IDM’s trade secret misappropriation claim based'on the telephone call between Wiedower and Tobey does not survive summary judgment.

3. IDM’s CPI for Blanking the Middle Name

IDM’s next alleged trade secret relates to work that IDM and Merkle collaborate on for' Dell, their mutual client. It is undisputed that Merkle houses Dell’s Global Marketing Database (“GMDB”) and IDM provides data to be entered into that database, See Pl.’s Opp’n Merkle’s MSJ 6. In June 2014, Merkle discovered a problem with the way data contacts were being displayed in print-out form from the database for a particular marketing campaign. As a result of this discovery, an e-mail discussion ensued between Chris Treacy (“Treacy”), a Dell employee; various Merkle employees, including Carla Haller (“Hatler”); and Janice Grayson (“Gray-son”), an IDM employee. See MERKLE_0000159 (“Blank the Middle Name E-Mail”). The following are the relevant portions of that e-mail exchange:

Merkle’s Hatler to Dell’s Treacy, IDM’s Grayson, and other Merkle employees (June 12,2014): Chris,

We discovered an issue with the data that was being printed on the July MMM — first name was being duplicated on the piece (e.g. Chris Chris Treacy). We made a judgment call and have asked RRD to stop printing and correct the issue, plus agreed to pay the $1,000 required to do so as we had to act very quickly, We are still investigating the root cause and will keep you posted. I will also provide details on how many pieces this impacted.

IDM’s Grayson to Merkle’s Hatler, Dell’s Treacy, and other Merkle employees (June 12, 2014): Thanks for the update Carla. (And thank Jaimie for moving so quickly on this!)

Merkle’s Hatler to IDM’s Grayson, Dell’s Treacy, and other Merkle employees (June 12, 2014): Quick update:

In home dates will not be impacted Still waiting for:

1. Root cause analysis (is this an issue with the way the data comes to us from Dell or is this a database processing issue and how do we fix?)

2. How many DM pieces were impacted (RRD to provide)

Jaimie is working directly with RRD & Brad Matheny on # 2 above.

From Dell’s Treacy (June 12, 2014): Who is working on # 1?

Merkle’s . .Hatler to Dell’s Treacy, IDM’s Grayson, and other Merkle employees (June 12, 2014): Sara Roberts is leading as Anant [Veeravalli] is out today (sick, day).

Later that same day, Merkle’s Hatler provided an update to Dell’s Treacy. IDM’s Grayson was not part of the continued email exchange:

Merkle’s Hatler to Dell’s Treacy and other Merkle employees (June 12, 2014): Chris,

Below is a recap of what we have found & suggested remédies....

Issue: Source data comes in with first name populated and last name populated with first and last name....

Source data: We don’t have percentages yet, but our research indicates sources are predominantly IDM and .Member.

Remedy:

1. We can alter the CDI code to blank out the middle name in KL if it is equal to the first name. Thomas [Russel] has already given the team approval to make this change.

2. In the meantime, we can set up all campaigns so' that middle name is not populated in the mail file, only first and last name. Please confirm-you would like us to implement this change.

From Dell’s Treacy (June 12, 2014): ... I agree with changing KL as that seems like a normal thing KL would do.

I would like an assessment by morning of how many and what the exact list is (not just idm).

I agree that we should never use middle name as that is not a standard output in direct mail. And fix the KL process to check for dupes [duplicates] like this.

Merkle’s Hatler to Dell’s Treaty and other Merkle employees (June 18, 2014): Chris, ... Items we are investigating:

1. Confirm feeds where this occurs (we have confirmed this is an issue with latest IDM file)....

From Dell’s Treacy (June 13, 2014): ,,, [W]e will need to know the list code if it’s a specific list code." Have you engaged IDM to ask how that might be?

Merkle’s Hatler to Dell’s Treacy and other Merkle employees (June 13, 2014): ... If we have not engaged with IDM. yet, we will and will include those details in our summary....

Dell’s Treacy to Merkle’s Hatler (June 13, 2014): BTW — checking my emails, but Dennis and I worked on this exact issue when we were building the GMDB. This came up with address standardization. So hence why I thought "it odd yesterday. You guys make [sic] want to ask Dennis.

At- this point, it appears that Dell’s Treacy forwarded the entire above e-mail exchange to May and then asked him the following: “Hey,-bro. do you remember this from way back when? They are getting first .name and dell feeds full name (with first). I remember long ago when we were dealing-with address std we ran into this. Just so long ago, you were just starting.” May responded to Treacy:

Yes, I do remember this with Arlene. My recollection was that a fix was put into place to blank the middle name in the occurrence that it matched the first name exactly. There WERE some instances where it didn’t match exactly and those were not blanked, but exact matches had the middle name blanked. I can try and find the Jira ticket for the team if that would be helpful.

Blank the Middle Name E-Mail.

IDM contends that May’s response constituted a disclosure of a confidential CDI rule of IDM’s that amounted to a trade secret. Defendants, argue that May’s four-sentence, high-level e-mail cannot constitute disclosure of a trade secret or confidential information because it does not rise to the requisite degree of sophistication and because the information he conveyed was not a secret.' Specifically, Merkle argues that May’s e-mail does not satisfy the two Saforo factors that take into consideration “the extent to which the information is known outside the business” and “the extent of measures taken by [plaintiff] to guard the secrecy of the information.” Wal-Mart, 66 S.W.3d at 630 (quoting Saforo, 991 S.W.2d at 120-21).

The information May conveyed to Dell’s Treaty was clearly not a secret and was known by those outside of IDM, Before Treacy had forwarded the above email exchange to May, Merkle employee Hatler had already' suggested to Treacy the remedy of blanking out the middle names. See Blank the Middle Name EMail (“We can alter the' CDI code to blank out the middle name in-KL if it is equal to the first name. Thomas has already given the team approval to make this.change.”). Furthermore, in his deposition, Merkle employee Adam Mincham explained that “blanking a name is very common in CDI processing.” See Mincham Dep. 85, 87. In addition, Slater, IDM’s CEO, admitted in deposition that the “Jira ticket” May-referenced was not anything recorded, in an IDM system, see Slater Dep. 84-85; rather, a Jira ticket is an electronic record in Merkle’s project-tracking software. See Mincham Dep. 75. Therefore, it is clear that May was not referring to any of IDM’s proprietary information or trade secrets in.this e-mail,-

Defendants further argue that even if the “blanking the middle name” fix constituted confidential or trade secret information, it would belong .to Dell under the SOW between Dell and IDM. In contrast, IDM contends that this particular CDI solution belongs to IDM. The parties rely on the language of the SOW, which states in relevant part:

During the course of this SOW, IDM may prepare or provide certain deliverables for Dell (either independently or in concert with Dell or third parties) consisting of such things as reports, documents, templates, studies, software programs, (source code or object code), specifications, documentation, abstracts, and summaries thereof, and other work product and materials collectively referred to as “the Deliverables.” IDM agrees that the Deliverables prepared for or provided to Dell under this Agreement shall constitute the work product of Dell (the “Dell Work Product”) and are complete and full property of Dell. All pre-existing methodologies and processes that IDM owns prior to working with Dell remain the property of IDM. IDM licenses such relevant methodologies and processes used to perform services within this SOW to Dell and allow Dell to use, create and use derivatives of such, both globally and in perpetuity.

IDM000825.

Defendants argue that. the blank-the-middle-name fix constitutes a “deliverable” belonging to Dell. In support, they cite IDM’s deposition, in which Slater admitted that the fix was a deliverable. See IDM Dep. 200. IDM argues that the fix constitutes a pre-existing methodology or process owned by IDM and the deliverable referenced by Slater was the dataset that resulted from the fix. IDM acknowledges, however, that any of its pre-existing methodologies and processes used in the context of that SOW were licensed to Dell “in perpetuity,” See PL’s Opp’n Merkle’s MSJ 16 (“[The SOW] specifies that all pre-existing methodologies and processes of IDM remain IDM’s property, with Dell being granted a license on such information.”). Therefore, even if, as IDM argues, the blank-the-middle-name fix was a solution owned by IDM rather than a deliverable, Dell was licensed to use that solution and May did not inform Dell (through Treacy) of any information to which Dell was not already privy. Accordingly, IDM has not proffered sufficient evidence, in light of defendants’ substantial evidence on this point, from which a reasonable jury could find in .its favor, and summary judgment will be granted for defendants.

4. List of Potential Vendors for Samsung

IDM claims that May disclosed IDM trade secret information by providing to Merkle employees the names of four IDM data vendors and an estimate of what those vendors might charge in connection with a proposal Merkle was preparing to obtain work from Sámsung. The evidence related to this allegation is the following mid-May 2014 e-mail exchange between May and Merkle employees, including Mark Engelke (“Engelke”) and Cathy MacDonald (“Macdonald”):

May to Engelke: Have you leveraged any of the smartphone data sources or contract expiration sources with Samsung? ?

Engelke to May: Hi Drew — Yes, we áre in discussions around this with Samsung. Do you have any sources you recommend. I’ve added Harold, Amie and Cathy [to this e-mail] as they have been managing this work.

May to Engelke: I’m sure you’re already engaged with these sources, but want to make sure.

BMI Elite

One Source

Take 5

TNS Global Contract data

MacDonald to May: Hi Drew, We are definitely familiar with these vendors, but we are not currently using-any for Samsung’s campaigns. Do you have.experience using these sources for email specifically? I know we have looked at several of these in the past and they were cost-prohibitive based on Sam-Sung’s usual price requirements, however if you have seen- successful email campaigns using, these we can take another look at these partners, (Emphasis added.)

May to MacDonald: I know there is a lot of e-mail quantity available and you could probably get pretty selective on segments Samsung is particularly interested in targeting. I’ve only had experience with these sources on a limited basis, however, I was áivare they had universe available. What are Samsung’s usual-pricing requirements? My bet is you could get the wholesale price to be $30-35/CPM.

Two weeks later, Harold Schambach. another Merkle employee, asked MacDonald if she had looked into May’s suggested sources yet. She responded:

We have not specifically explored them for recent campaigns, but we can reach out and see what they might, have available. I can say though that Take 5 specifically we would probably not recommend, as we have recently had concerns about the quality of the data. But we can explore the others and see if they can meet Samsung’s needs from a data and pricing standpoint, and we will include them in future recommendations if they are a fit.

May 16, 2014 Samsung Smartphone Email.

IDM argues that May’s statements in the above e-mail exchange constitute a disclosure of IDM trade secret information because IDM expends considerable resources vetting potential data vendors, testing the quality of their data, and developing pricing models based off of the vendors’ costs. Defendants argue that the data vendors listed by May are publicly known companies and simply naming those companies cannot constitute disclosure of confidential information or a trade secret.

Citing to one unpublished case, IDM broadly argues that “[v]endor information ... qualifies as a trade secret.” Pl.’s Opp’n May’s MSJ 22 (citing Illumination Station, Inc. v. Cook, No. Civ. 07-3007, 2007 WL 1624458 (W.D.Ark. June 4, 2007)). Before the court in Illumination was a motion to dismiss the tort claims in the plaintiffs complaint as preempted by the ATSA. The court stated:

The types of information allegedly misappropriated by the [defendants] can be grouped into several general -categories, i.e., vendor information, product information, pricing information, manufacturer contact information, customer contact information, and “spreadsheets” whose content is unspecified. To the extent that Illumination Station ;[the plaintiff] made reasonable efforts to maintain the secrecy of such information, the Court believes that it qualifies-as trade secrets under the ATSA. It is information that derives value from the fact that only Illumination Station and its agents know it and can use it to further the business objectives of Illumination Station.

Illumination, 2007 WL 1624458 at. *3. IDM’s reliance on Illumination ignores that court’s specific finding that the vendor information at issue, which was not specified, “derive[d] value from the fact that only