The Oklahoma Bar Journal August 2025

can a plaintiff prove success on the merits of a misappropriation claim without definitive evidence of how the defendant is using the plain tiff’s information? In some jurisdictions, they don’t have to. Under the Inevitable Disclosure Doctrine, a plaintiff can show via circumstantial evi dence that the “defendant’s new employment will inevitably lead him to rely on the plaintiff’s trade secrets.” 24 Other states lower the plaintiff’s burden by requiring only prima facie evidence of success on the merits. 25 But these accommoda tions are unavailable in Oklahoma, where the first factor dominates the temporary injunction analysis. 26 Federal courts in the 10th Circuit also require likelihood of success on the merits before granting a preliminary injunction. 27 Then, to obtain a temporary injunction, a plaintiff may seek a lower evidentiary burden on the first factor. This is not unreason able. Before 2016, federal courts recognized a relaxed “sliding scale” standard: If the plaintiff succeeded decisively on the other factors, then the court would grant an injunction upon finding “questions going to the merits so serious, substantial, difficult and doubtful, as to make them fair ground for litigation.” 28 However, since Winter v. National Resources Defense Council , in which the Supreme Court held the irrepara ble harm factor (not likelihood of success on the merits) essential, the 10th Circuit requires all four preliminary injunction factors. 29 A return to the sliding scale, or its adoption by state courts, would bring injunctive relief back into view for trade secret plaintiffs. Alternatively, a lighter burden may be implicit under the UTSA.

UTSA §2(a) says, “Actual or threat ened misappropriation may be enjoined.” Misappropriation is an improper acquisition, disclosure or use of a trade secret. 30 But what distinguishes actual from threat ened? First , actual/threatened cannot be synonymous with past/ future. Past torts can’t be enjoined, and both actual and threatened misappropriations are enjoinable; therefore, both actual and threat ened misappropriations must be ongoing or future. Second , the UTSA offers no separate basis for a claim of “threatened” trade secret misappropriation as opposed to “actual” misappropriation. 31 They are not separate torts. Third , “actual” can mean “existing in real ity” or “occurring at the time,” but “threatened” means “to give signs or warning of” or “to hang over dangerously.” 32 In other words, a threatened misappropriation may cause alarm, but it needn’t mate rialize as a completed tort. Most likely, then, “threatened” mis appropriations risk violating the plaintiff’s rights without actually vio lating them – otherwise, they would be “actual.” Thus, arguably, UTSA §2(a) expands the courts’ authority to enjoin not only a misappropria tor but also one who stops short of completing a misappropriation – that is, someone against whom a plaintiff would not succeed on the merits. 33 Hence, the statute permits injunctions apart from the first common law factor. To succeed on a motion for a temporary injunction, a trade secret plaintiff may need an excep tion to the first injunction factor, likelihood of success on the merits, because evidence of the defen dant’s private use or disclosure CONCLUSION

tailor their injunctions, prevent ing unfairness to defendants. 18 Similarly, factor four weighs in the plaintiff’s favor because compli ance with the law is in the public interest. 19 The trouble, then, lies with the first factor: likelihood of success on the merits. 20 In a typical trade secret case, evidentiary support for likelihood of success on the merits falls short of the common law’s expectations. Under the common law, the court grants a temporary injunction “to prevent the defendant from doing an action that has not yet been proved to be a violation of the plaintiff’s legal rights.” 21 The action is known, but its legal significance is not. The Restatement of Torts lists examples of com mitting waste, passing off goods and undermining the support of land – all relatively conspicuous wrongs. In McGinnity v. Kirk , when a mortgagee motioned to enjoin a mortgagor for failing to care for a property, the overgrowth and dilapidated fence were plainly vis ible. 22 In Sharp v. 251st St. Landfill , when neighbors sought an injunc tion to prevent the construction of a landfill, the building site and construction specifications were publicly documented. 23 Not so for trade secret thefts. Self-respecting corporate spies misappropriate their employers’ confidential information covertly. The AFGD plaintiff knew a rival had hired its employees with confidential information, but it did not know their specific use of that information. The question was not whether the defendant’s known actions would violate the plain tiff’s rights, as presumed in the Restatement of Torts , but what the defendants were doing with the plaintiff’s secrets in private. How

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

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THE OKLAHOMA BAR JOURNAL