THE OKLAHOMA BAR JOURNAL 44 | AUGUST 2025 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. ONCE UPON A TIME, A TRUSTED AGENT ABSCONDED with his principal’s trade secrets and confidential business information, leveraging them for pay, perks and prestige in a new position under a new principal, a direct competitor of his former master. The master, upon discovering the wreckage of deleted emails and scrubbed hard drives, initiated a “rapid, expedited, high-stakes confrontation” in the local court to stop the disloyal agent before the competitor learned her secrets or leveraged them in the marketplace.1 Foremost, she feared the loss of her secrets.2 Looking to the Uniform Trade Secrets Act (UTSA), she saw that courts could enjoin actual or threatened trade secret misappropriation to mitigate a thief’s unfair commercial advantage.3 Hopeful, the principal-turned-plaintiff heaved her forensic evidence onto the judge’s desk, announcing triumphantly, “There! He stole my secrets! Actual misappropriation! Please, stop him, or he’ll ruin me before we even litigate the case!” Shaking his head, the judge responded, “No, this purported misappropriation is in the past. You may sue for damages, but injunctions are for preventing future harms.”4 Undeterred, the master tried again, “Then, he is threatening misappropriation! He took my secrets and now serves my competitor! Please, stop him!”5 “Slow down,” replied the judge. “Before I go enjoining anyone, can you satisfy the elements for a temporary injunction: 1) likely success on the merits, 2) irreparable harm if the injunction is denied, 3) balancing of equities and 4) public interest?6 If you can, to a clear and convincing degree, I’ll grant your motion.” The master narrowed her focus to the first element. “What do I need for likelihood of success on the merits?” “You must show the trade secret’s existence, its misappropriation and its use by the defendant to your detriment.”7 “But I’m asking you to prevent my detriment! To my knowledge, he hasn’t used my secrets yet. That’s why I’m here, to stop him, to keep my secrets secret.” “No, you’re quite right. I can’t enjoin him after he uses the secrets,” answered the judge. “That would make the injunction past looking. You’ve got to show that the thief is poised to continue misappropriating in the future, or the injunction would do you no good.”8 “So before he uses my secrets, you won’t enjoin him because I can’t show misappropriation. After he uses my secrets, you won’t enjoin him because my secret will be out anyway?” the master asked, hanging her head. “Quite right!” responded the judge. “Motion for temporary injunction denied!” This story plays out in reality. In AFGD v. Tri-Star Glass, an employer lost six workers to a competitor, taking confidential price and Labor & Employment Catch-22: Temporary Injunctions Under the Uniform Trade Secrets Act By Christopher A. Shrock
RkJQdWJsaXNoZXIy OTk3MQ==