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Tort/Negligence — Misappropriation of Trade Secrets – Damages – Corporate Acquisition – Civil Practice – Standing


Next Advisor Continued, Inc. v. LendingTree, Inc. (Lawyers Weekly No. 020-058-17, 19 pp.) (Louis Bledsoe III, J.) 2017 NCBC 51

Holding: Plaintiff has conceded that it cannot prove compensatory damages for defendants’ alleged misappropriation of its trade secrets; nevertheless, plaintiff seeks damages for unjust enrichment. Even though defendants have taken in revenue from their paid credit card content marketing program (a program that plaintiff claims they developed from plaintiff’s trade secrets), since the undisputed evidence shows that defendants have not earned a profit in their paid credit card content marketing business, plaintiff’s evidence of defendants’ revenues is too speculative to show plaintiff’s damages to a reasonable certainty.

The court grants defendants’ motion for partial summary judgment.

In addition, plaintiff has not offered any evidence as to the value of the allegedly misappropriated trade secrets or the resulting increase in value of defendants’ paid credit care content marketing business from the alleged misappropriation, and discovery is now closed. Plaintiff has failed to show that it has suffered legally cognizable unjust enrichment damages on its misappropriation claim, so plaintiff is not entitled to recover compensatory damages on this claim.

Plaintiff’s assets have been bought by Bankrate, Inc. Over and above the upfront consideration of $79.25 million, the asset purchase agreement provides an opportunity for plaintiff to earn up to $145.7 million in additional compensation over an 18-month period if Bankrate were to achieve certain performance targets (the Earnout). The 18-month period (the Earnout Period) expires on Jan. 2, 2018.

Plaintiff held all rights, title, and interests in the confidential and trade secret information that is at issue in this litigation, but plaintiff transferred those rights, title, and interests to Bankrate on June 17, 2016, retaining only an interest in the confidential and trade secret information to the extent of the Earnout. Upon the Earnout Period’s expiration on Jan. 2, 2018, plaintiff will cease to have any interest or a stake of any kind in the alleged trade secrets.

As such, plaintiff does not have a legally protected interest to support injunctive relief after the Earnout Period expires on Jan. 2, 2018, and, hence, does not have an injury in fact resulting from any alleged misappropriation of trade secrets after that date. Plaintiff lacks standing to seek protection of the alleged trade secrets at issue under the Trade Secrets Protection Act after the expiration of the Earnout Period on Jan. 2, 2018.

Motion granted.


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