USA Law and Practice Contributed by: Claudia Ray, Joseph Loy, Josh Berlowitz and Andrew (Keum Yong) Lee, Kirkland & Ellis LLP
1.3 Examples of Trade Secrets Examples of a trade secret under the DTSA and state trade secret laws modelled after the UTSA include: • marketing and advertising research ( Whyte v Schlage Lock Co , 101 Cal. App. 4th 1443, 1455–56 (2002)); • process and manufacturing technologies (see the foregoing reference); • formulas and methods (see the foregoing refer - ence); • cost- and pricing-related information ( Walker Mfg., Inc v Hoffmann , Inc, 261 F. Supp. 2d 1054, 1080 (N.D. Iowa 2003)); • business plans and information, sales strategies and financial information ( Avery Dennison Corp v Kitsonas , 118 F Supp 2d 848, 854 (S.D. Ohio 2000)); • source code ( Wellogix, Inc v Accenture , LLP, 716 F 3d 867, 875 (5th Cir. 2013)); • internal design and software architecture docu - ments ( TouchPoint Solutions, Inc v Eastman Kodak Co , 345 F Supp 2d 23, 28 (D. Mass. 2004)); • customer lists ( Fireworks Spectacular, Inc v Premier Pyrotechnics , Inc, 86 F Supp 2d 1102, 1106 (D. Kan. 2000)); and • a one-of-a-kind music album ( PleasrDAO v Shkreli , 2025 WL 2733345, at *7-11 (E.D.N.Y. Sept. 25, 2025)). Examples of a trade secret under the common law, which is still the applicable law in New York and con - tinues to be persuasive precedent in UTSA states, include pricing-related information, customer lists or source code (Restatement of Torts Section 757, Com - ment b; Laro Maint Corp v Culkin , 700 NYS 2d 490, 492 (1999); E Bus Sys, Inc v Specialty Bus Sols , LLC, 739 NYS 2d 177, 179 (2002); MSCI Inc v Jacob , 992 NYS 2d 224, 225 (2014)). 1.4 Elements of Trade Secret Protection To prevail on a claim of trade secret misappropriation under the DTSA and state trade secret laws, a claim - ant must prove the following three elements: • that the claimant owns a trade secret (see the discussion in the following on ownership of trade secrets);
• that the trade secret was misappropriated by the defendant; and • that the claimant was damaged by the defendant’s misappropriation. With respect to the first element, a claimant has to prove the existence of a trade secret by showing the following: • that the owner has taken reasonable measures to maintain the secrecy of the trade secret; and • that the trade secret derives actual or potential economic value from not being generally known or readily ascertainable through proper means to another who can obtain economic value from the information’s use or disclosure. Additionally, some state trade secret laws explicitly state that the requisite reasonable measures to main - tain secrecy may vary. For example, California’s ver - sion of the UTSA requires that the trade secret “[i]s the subject of efforts that are reasonable under the circumstances to maintain its secrecy” ( Alta Devices, Inc v LG Electronics Inc , 343 F Supp 3d 868, 877 (N.D. Cal. 2018) (quoting Cal. Civ. Code Section 3426.1 (d))). New York In New York, there are six factors that are generally considered when determining whether a trade secret exists ( Ashland Mgmt. Inc v Janien , 82 N.Y.2d 395, 407, 624 N.E.2d 1007, 1013 (1993)): • the extent to which the information is known out - side of an individual business; • the extent to which it is known by employees and others involved in their business; • the extent of measures taken to guard the secrecy of the information; • the value of the information to the holder and to their competitors; • the amount of effort or money expended in divulg - ing the information; and • the ease or difficulty with which the information could be properly acquired or duplicated by others. Some courts in UTSA states continue to consider these six common law factors in determining whether
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