Readily Ascertainable—WilmerHale's Trade Secret Bulletin: September 2025

Welcome to WilmerHale's bulletin on recent trade secret case law and relevant news items. We've affectionately nicknamed it "Readily Ascertainable" because, unlike a trade secret, it should be easy to figure out. If you have any questions about these cases or the legal issues they implicate, our trade secret experts would be delighted to answer them.

This month's decisions include reminders from the Second Circuit and Sixth Circuit about the importance of describing trade secrets with sufficient particularity and being diligent in investigating suspected trade secret misappropriation, a loss for a well-known car maker in its attempt to overturn a long-fought trade secret loss, a dismissal in a case between two popular fast‑fashion companies on extraterritoriality grounds, and a New York federal court applying trade secrets law to a one-of-a-kind musical album.

Capricorn Mgmt. Sys. v. GEICO et al., 2025 WL 2778968 (2d Cir. Sept. 30, 2025)

Second Circuit affirms holding that vaguely-framed trade secrets based on software features do not survive readily ascertainable requirement.

Capricorn licensed its "Supercede" medical claims management software to GEICO for use in New York. GEICO developed its own software ("ATLAS") for use outside of New York but was dissatisfied with ATLAS's performance. Capricorn alleged that GEICO, wanting to improve ATLAS, "copied any advantages or customized features" from Supercede to ATLAS, misappropriating Capricorn's trade secrets embodied in the Supercede software code.

Capricorn sued in the Eastern District of New York for, inter alia, trade secret misappropriation under the Defend Trade Secrets Act ("DTSA") and the Maryland Uniform Trade Secrets Act. Capricorn lost at the summary judgment stage on the grounds that it failed to sufficiently identify any protectable alleged trade secret and failed to provide evidence that the alleged trade secrets were not readily ascertainable. On appeal, Capricorn argued it had sufficiently identified trade secrets in its Supercede program "as a whole" and "with respect to [Supercede's] underlying modules and methods." The Second Circuit affirmed, holding that Capricorn's "vague description fails to separate the trade secrets that Supercede purportedly contains from the other non-trade secret information that goes into Capricorn's software package." It also concluded that "[t]he Supercede functionalities that Capricorn describes, such as the ability to 'send information back and forth' or generate 'flags, reports, and forms' from GEICO's data, are common ... [and] Capricorn has not pointed [] to evidence that these isolated functions are not readily ascertainable within the insurance software industry."

Cincom Sys. v. LabWare, 2025 WL 2742573 (6th Cir. Sept. 26, 2025)

Sixth Circuit holds that suspicion of misappropriation can suffice to start limitations period.

ObjectShare developed a software development tool, VisualSmalltalk Enterprise ("VSE"). A critical component of VSE is a virtual machine. ObjectShare eventually sold VSE to third-party Seagull Software, and Seagull immediately licensed back to ObjectShare exclusive, perpetual rights to market and license VSE to third parties. Later, Plaintiff Cincom acquired ObjectShare, including its exclusive licensing rights to VSE.

In 2014, a Cincom engineer ("Valloud") switched employment to defendant LabWare, announcing his move on his personal blog. Valloud's manager at Cincom ("Fortman") considered him a disgruntled employee and her opinion, combined with Valloud's blogpost about his job move, raised concerns at Cincom about Valloud unlawfully disseminating Cincom's confidential information to LabWare. Cincom did not act on its suspicions in 2014. In 2019, Fortman witnessed a LabWare tradeshow presentation that made her suspect that LabWare was using unlawfully customized copies of VSE. After investigating, Cincom sued LabWare for trade secret misappropriation under Ohio law. LabWare subsequently successfully moved for summary judgment on the ground that Cincom's trade secret misappropriation claim was time-barred by Ohio's four-year limitations period.

The Sixth Circuit affirmed. It explained that "[g]iven that LabWare was potentially using VSE, that Valloud was a virtual-machine engineer, and (crucially) that there was no way for Valloud to do VSE virtual-machine work at LabWare without violating Cincom's license, these facts should have raised some suspicion that Valloud and LabWare were misappropriating Cincom's trade secret." The Sixth Circuit concluded that "trade-secret owners need only learn of possible misappropriation before they must begin to take affirmative steps to investigate and that "[e]ven rumors can sometimes suffice to trigger the discovery rule."

Ford Motor Co. v. InterMotive et al., 2025 WL 2797039 (E.D. Mich. Sept. 30, 2025)

Eastern District of Michigan denies car maker's attempt to overturn $13.2 million verdict finding it liable for trade secret misappropriation.

A Michigan federal court denied Ford Motor Co.'s renewed motion for judgment as a matter of law under Federal Rule of Civil Procedure 50(b). Ford's motion follows a 2023 trial during which a jury awarded plaintiff InterMotive over $13.2 million for Ford's alleged trade secret misappropriation related to a device that facilitates customizing pickup trucks for commercial use.

In its Rule 50(b) motion, Ford argued that (a) InterMotive failed to establish the secrecy of its alleged trade secret because "the use of programmable inputs in a device like [InterMotive's] Upfitter Interface Module was generally known," including in prior, publicly-available devices (and that any distinctions were minor or irrelevant); and (b) no trade secret protection exists because a "product idea" cannot derive independent economic value from secrecy because the act required to obtain the underlying economic value from the product idea—selling the product—destroys its secrecy.

As to the prior, publicly-available devices argument, the court conducted a patent-like prior art analysis, concluding that no prior device identified by Ford "individually practices [InterMotive's] trade secret." It also disagreed with Ford's argument that InterMotive's trade secret was generally known because Ford's collective prior art evidence "as a whole disclosed every element [of the trade secret]." The court determined that Ford's argument failed because no one piece of its evidence disclosed the combination of elements in a single embodiment. As to the "idea" argument, the court acknowledged that "it is beyond dispute that selling [the device] with programmable inputs would disclose the trade secret." The court, however, rejected Ford's argument because "it defies common sense to say that information encompassed by a working prototype [like InterMotive's device] cannot derive independent economic value from secrecy."

WhaleCo v. Shein Tech. LLC et al., 2025 WL 2801861 (D.D.C. Sept. 30, 2025)

District of Columbia court dismisses Temu's trade secret misappropriation claim on extraterritoriality grounds.

Plaintiff WhaleCo (better known as Temu) and defendant Shein are popular fast-fashion marketplaces. In December 2023, Temu sued Shein for, inter alia, trade secret misappropriation under the DTSA and the District of Columbia's Trade Secrets Act. Specifically, Temu alleged that Shein summoned Temu's suppliers to Shein's office in China and (1) searched the suppliers' phones for Temu's sales, commercial, and other financial information and (2) demanded their log-in credentials to their Temu accounts. Temu alleges that those actions allowed Shein to gain access to Temu's "commercial and financial trade secrets housed in Temu's seller portal."

The court dismissed Temu's DTSA claim on the basis that all the alleged conduct occurred outside the United States. The court held that "the [DTSA's] extraterritoriality provision limit[s] its application to foreign conduct: a plaintiff cannot sue for trade secret misappropriation occurring outside the United States unless (1) the defendant is a citizen of the United States or an entity organized under its laws, or (2) an act in furtherance of the offense was committed in the United States." Under this standard, the court found that "Temu does not meet the statute's first exception, as Shein is not an American corporation." The court also found that Temu did not fall under "the second exception, as the complaint contains no factual allegations to plausibly establish that any 'act in furtherance' of the alleged misappropriation took place in the United States. All the alleged conduct took place in China."

PleasrDAO v. Martin Shkreli, 2025 WL 2733345 (E.D.N.Y. Sept. 25, 2025)

Eastern District of New York court finds trade secret misappropriation claim based on exploitation of musical album survives motion to dismiss.

In 2015, Martin Shkreli purchased the only copy of Wu-Tang Clan's unreleased album Once Upon a Time in Shaolin ("Album"). Per the purchase agreement, Shkreli was restricted from duplicating the Album or otherwise using it except for private use, with minor exceptions. In 2017, Shkreli was convicted on federal securities fraud charges and was forced to sell the Album, among other assets. PleasrDAO, a group of finance leaders and digital artists, purchased the Album. After PleasrDAO's Album purchase, Shkreli shared the Album with his social media followers, including by playing it during his online livestreams.

PleasrDAO sued Shkreli in the Eastern District of New York, alleging he had, inter alia, violated the DTSA and New York law by misappropriating PleasrDAO's trade secret embodied in the Album. On September 25, the court denied Shkreli's motion to dismiss. The court noted that although analyzing whether a musical album constituted a trade secret is a "somewhat unusual application of the trade secret doctrine or statutes" and "uncharted territory," an analysis of the relevant factors under the Second Circuit's longstanding Integrated Cash v. Digital Transactions decision (i.e., the test that New York courts rely on to determine whether information constitutes a trade secret) favored allowing PleasrDAO's trade secret claim to proceed.

Notably, in finding that PleasrDAO and (in the past) Shkreli had taken reasonable measures to protect the secrecy of the Album, the court noted that only one Album copy was originally created, that when the single copy was transported it was moved via armed security and under continuous video surveillance, and that the Album's purchase had come with considerable use restrictions.