In New York, injunctive relief will not be awarded unless the plaintiff sets forth specific non-monetary harm to Plaintiff in a trade secret case.
In Systems Management Planning, Inc., v. Gordon, 23 Misc.3d 1104(A), 2009 WL 901514 (N.Y.Sup.) (Sup. Ct., Monroe Co, April 3, 2009), the court, in determining a preliminary injunction, assumed that the trade secret status of the information and the fact of its misappropriation has indeed occurred and therefore focused on the issue of irreparable harm and the “related” doctrine of inevitable disclosure.
Plaintiff asserted that, in all cases, irreparable harm is presumed when trade secrets have been misappropriated. The Gordon court first noted that “no appellate case in New York has laid down such a hard and fast rule” and the subsequently declined to adopt such a rule citing the recent Second Circuit decision in Faiveley Transport Malmo AB v. Wabtec Corp., — F.3d at —, 2009 WL 636020 (2d Cir. Mar. 9, 2009) (such a presumption “might be warranted in cases where there is a danger that, unless enjoined, a misappropriator of trade secrets will disseminate those secrets to a wider audience or otherwise irreparably impair the value of those secrets.”)
The Gordon court, applying the principles of Faiveley Transport, concluded that plaintiff in that case had not adduced clear evidence of irreparable harm. Instead, the court found the plaintiff’s moving affidavit wholly lacking, because it merely stated in conclusory fashion that the defendants had used the confidential and proprietary information that they stole to unfairly divert business and solicit certain specified customers. The court held that these “conclusory assertions wholly fail to show how this worldwide $20 million business cannot readily ascertain its damages if successful in proving that the claimed diversion of six customers resulted from defendant’s misuse of wrongfully appropriated trade secret information, instead of what defendants insist was legitimate competition occurring in the absence of a confidentiality agreement or restrictive covenant.”