Appellate Case: 24-5089 Document: 43-1 Date Filed: 04/22/2025 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS April 22, 2025
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
DOUBLE EAGLE ALLOYS, INC.,
Plaintiff - Appellant,
v. No. 24-5089
MICHAEL HOOPER; ACE ALLOYS,
LLC,
Defendants - Appellees.
_________________________________
Appeal from the United States District Court
for the Northern District of Oklahoma
(D.C. No. 4:19-CV-00243-JDR-CDL)
_________________________________
Jason S. Taylor (Hayley N. Stephens and Kayla Finnegan, with him on the
briefs) of Conner & Winters, LLP, Tulsa, Oklahoma, for Plaintiff-Appellant.
Ryan A. Ray (David R. Ross, with him on the brief) of Norman Wohlgemuth,
LLP, Tulsa, Oklahoma, for Defendants-Appellees.
_________________________________
Before BACHARACH, SEYMOUR, and PHILLIPS, Circuit Judges.
_________________________________
PHILLIPS, Circuit Judge.
_________________________________
Double Eagle Alloys, Inc. appeals the district court’s order granting
summary judgment to Ace Alloys, LLC and Michael Hooper on all claims. This
litigation arises from Michael Hooper’s possession of digital files containing
Appellate Case: 24-5089 Document: 43-1 Date Filed: 04/22/2025 Page: 2
Double Eagle’s business information. After a decade-long career at Double
Eagle, Hooper jumped ship for competitor Ace Alloys. He also took 2,660 files
downloaded from his Double Eagle computer with him. Double Eagle later
discovered the download and sued both Hooper and Ace Alloys, alleging trade-
secret violations, misappropriation of confidential business information, and
civil conspiracy. After the parties conducted discovery, they cross-moved for
summary judgment. The district court granted summary judgment to Hooper
and Ace Alloys on all claims.
On appeal, Double Eagle challenges the district court’s rulings on three
fronts. First, Double Eagle asserts that it had identified the alleged trade secrets
with sufficient particularity to maintain its trade-secret claims. Second, Double
Eagle contends that its business information was confidential to sustain its
misappropriation claim. And third, Double Eagle argues that the trade-secret
and misappropriation claims qualify as underlying torts to support the civil-
conspiracy claim. We disagree and so, exercising our jurisdiction under 28
U.S.C. § 1291, we affirm.
BACKGROUND
I. Factual Background 1
1
“In reciting the facts of this case, we view the evidence in the light most
favorable to the non-moving party, as is appropriate when reviewing a grant of
summary judgment.” Deherrera v. Decker Truck Line, Inc., 820 F.3d 1147,
1151 n.1 (10th Cir. 2016) (internal quotation marks omitted).
2
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A. Hooper’s Job Change
Double Eagle and Ace Alloys are specialty-metals distributors. They buy
and resell alloys for companies in the oil-and-gas industry. 2 Double Eagle is the
established player, while Ace Alloys is the industry upstart. Ace Alloys directly
competes with Double Eagle. Michael Hooper is a former Double Eagle
employee who now works for Ace Alloys. His conduct during that job
transition is the subject of this litigation.
Hooper had worked as the Inside Sales Manager at Double Eagle for
nearly five years before resigning and joining Ace Alloys. 3 When he left for
Ace Alloys, he took his handwritten notes and 2,660 digital files, which he
downloaded from his Double Eagle computer to an external storage device. The
digital files contained Double Eagle’s important sales information. Double
Eagle later discovered the download and filed suit.
B. The Alleged Trade Secrets
Double Eagle contends that the financial, technical, and business
information contained in the downloaded files qualifies as trade secrets. On
appeal, Double Eagle categorizes the downloaded files into three types of trade
2
An alloy is a fused substance composed of two or more metals or a
metal and a nonmetal. Alloy, Merriam-Webster.com, https://www.merriam-webster.com/dictionary/alloy (last visited Apr. 21, 2025).
3
Before becoming the Inside Sales Manager, Hooper had worked as a
saw operator and in an inside-sales position for Double Eagle from 2007 to
2014.
3
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secrets: (1) pump-shaft-quality (PSQ) specifications, (2) pricing, and
(3) customer drawings. 4 We provide an overview of each trade-secret category.
1. PSQ Specifications
Within the specialty-metals industry is a sub-industry for supplying PSQ
material to the oil-and-gas industry. Companies that sell PSQ material often
develop specifications for PSQ alloys that they supply to their customers. These
specifications list the packaging requirements, chemical composition,
mechanical properties, bar condition, and other standards for the PSQ-alloy
product. PSQ specifications aggregate the preferences of various customers and
allow the distributor to purchase material suitable to multiple customers, as
opposed to a single customer.
Double Eagle is no exception. It has developed its own specifications for
various PSQ materials, including the 718 and K500 PSQ specifications. See
Sealed App. vol. III, at 503–06. According to Double Eagle, its PSQ
specifications qualify as trade secrets and disclosure of these specifications
would cause substantial competitive harm.
4
In the district court, Double Eagle identified its trade secrets as “PSQ
specifications, pricing, margins, costs, and customer drawings.” Double Eagle
Alloys, Inc. v. Hooper, No. 4:19-CV-00243-JDR-CDL, 2024 WL 3166921, at *2
(N.D. Okla. June 25, 2024) (internal quotation marks omitted). On appeal,
Double Eagle subsumed margins and costs into the pricing category.
4
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2. Pricing
The downloaded files also contain information on Double Eagle’s
pricing. Double Eagle sets prices based on the published surcharge, machining
costs, material costs, and customer-specific target margins. 5 Sealed App. vol.
VI, at 1117. The material costs and customer-specific target margins are,
according to Double Eagle, “highly confidential.” Id. Double Eagle maintains
detailed spreadsheets of its machining costs, material costs, inventory levels,
and customer purchasing history (actual and targeted margins). Sealed App.
vol. III, at 507–14, 522–24. Though Double Eagle shares its prices with
customers, it does not share its pricing model. Sealed App. vol. VI, at 1117.
Double Eagle claims its pricing model as a trade secret.
3. Customer Drawings
Finally, the downloaded files include customer drawings. As routine
business practice, customers prepare and share drawings of requested parts with
distributors. See Sealed App. vol. II, at 333 (example drawing). The
distributors, in turn, quote prices for the requested parts based on the drawings.
A specialty-metals distributor must have these customer drawings to quote
prices for various parts. Double Eagle contends that these customer drawings
are trade secrets.
5
“Margin” refers to a markup. Sealed App. vol. I, at 115.
5
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II. Procedural Background
After discovering the file download, Double Eagle sued Ace Alloys and
Hooper. The complaint made five claims for relief, four of which are relevant
to this appeal: violation of the Defend Trade Secrets Act (DTSA), 18 U.S.C.
§ 1836 et seq.; violation of the Oklahoma Uniform Trade Secrets Act
(OUTSA),
Okla. Stat. tit. 78, § 86; misappropriation of business information;
and civil conspiracy. 6
Double Eagle and Defendants cross-moved for summary judgment.
Double Eagle requested summary judgment on its trade-secret claims, reserving
the issue of damages for trial. Defendants responded that Double Eagle failed
to identify its trade secrets with the required specificity to permit summary
judgment. Defendants moved for summary judgment on all claims. They
acknowledged that Double Eagle had “identified the alleged trade secrets and
[confidential business information] at issue” but argued that Hooper did not use
any information from the downloaded files to compete with Double Eagle. App.
vol. II, at 236–37. Defendants also argued that Double Eagle’s prices and PSQ
specifications were not trade secrets, because Double Eagle had shared the
information with customers or online.
6
The district court dismissed the claim for fraud and related activity in
connection with computers, 18 U.S.C. § 1030. Double Eagle,
2024 WL
3166921, at *5. Double Eagle does not appeal this dismissal.
6
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On the summary-judgment motions, the district court ordered
supplemental briefing. App. vol. III, at 548–50. The district court notified the
parties that it intended to consider four other issues when deciding whether to
grant summary judgment to Defendants:
(1) whether Double Eagle has sufficiently identified the allegedly
misappropriated trade secrets and business information;
(2) whether Double Eagle has taken reasonable measures to maintain
the secrecy of the identified trade secrets;
(3) whether the identified trade secrets derive independent economic
value from not being generally known or ascertainable through
proper means; and
(4) whether the allegedly misappropriated business information is of
a secret or confidential character.
Id. at 549. The district court acknowledged that Defendants had not asserted
any of these grounds in their motion for summary judgment and therefore
provided notice through its supplemental briefing order.
Id. at 548–50. The
parties submitted briefs as requested.
Id. at 551, 577.
After briefing was complete, the district court granted summary judgment
to Defendants on all claims. Double Eagle Alloys, Inc. v. Hooper, No. 4:19-CV-
00243-JDR-CDL, 2024 WL 3166921, at *5 (N.D. Okla. June 25, 2024). Starting
with the trade-secret claims under the DTSA and OUTSA, the district court
held that “Double Eagle failed to identify its alleged trade secrets with
sufficient particularity and clarity to proceed to trial.”
Id. at *1. The district
court viewed Double Eagle as “ma[king] no effort to differentiate between the
components of the download that cannot qualify as trade secrets . . . and those
7
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that meet the requirements for protection under the DTSA and OUTSA.” Id.
According to the district court, Double Eagle’s identification of trade secrets as
“PSQ specifications, pricing, margins, costs, and customer drawings” did not
set forth facts sufficient for a trade secret.
Id. at *2 (internal quotation marks
omitted). Because “Double Eagle ha[d] done nothing to distinguish the wheat
from the chaff,” the district court granted summary judgment to Defendants on
the DTSA and OUTSA claims.
Id. at *4.
The district court granted summary judgment to Defendants on the
misappropriation claim as well. Id. It stated that Double Eagle failed to present
evidence of the information’s secrecy.
Id. The court noted that the same reasons
for dismissing the trade-secret claims applied to this claim.
Id.
Finally, the district court dismissed the civil-conspiracy claim. Id. at *5.
The court reasoned that the dismissal of all other claims deprived this claim of
any underlying tort, as required for civil conspiracy.
Id. Therefore, the district
court granted summary judgment to Ace Alloys and Hooper on all claims.
Id.
Double Eagle timely appealed the district court’s summary-judgment grant.
DISCUSSION
We review de novo a district court’s grant of summary judgment. Hertz v.
Luzenac Grp., 576 F.3d 1103, 1107 (10th Cir. 2009). “Summary judgment is
appropriate ‘if the pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.’”
Id. at 1108
8
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(quoting Fed. R. Civ. P. 56(c)). “In our review, we examine the evidence and
draw reasonable inferences therefrom in the light most favorable to the non-
moving party.” Harvey Barnett, Inc. v. Shidler, 338 F.3d 1125, 1129 (10th Cir.
2003). But “mere speculation, conjecture, or surmise” cannot defeat summary
judgment, because “[u]nsubstantiated allegations carry no probative weight in
summary judgment proceedings.” Bones v. Honeywell Int’l, Inc.,
366 F.3d 869,
875 (10th Cir. 2004).
Double Eagle appeals the district court’s order granting summary
judgment on the trade-secret claims, the misappropriation claim, and the civil-
conspiracy claim. First, for the trade-secret claims, Double Eagle argues that
the evidence created a genuine dispute of material fact on whether it identified
its trade secrets with sufficient particularity. Second, Double Eagle asserts that
the district court erred in dismissing the misappropriation claim, because a
reasonable jury could find that Double Eagle’s business information was
confidential. Double Eagle also claims that the district court erred by failing to
provide an opportunity for Double Eagle to supplement its evidence in support
of this claim. Third, Double Eagle argues that if we reverse the dismissal of any
other claim, we must also reverse the dismissal of the civil-conspiracy claim.
We take each argument in turn.
I. Trade-Secret Claims
To start, Double Eagle argues that the district court erred by dismissing
the two trade-secret claims under the DTSA and OUTSA. Double Eagle
9
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contends (1) that it sufficiently identified its trade secrets, and (2) that genuine
disputes of material fact preclude summary judgment on the trade-secret
claims. We first review the legal standard and then discuss Double Eagle’s
arguments.
A. Legal Standard
The DTSA permits “[a]n owner of a trade secret that is misappropriated”
to file suit “if the trade secret is related to a product or service used in, or
intended for use in, interstate or foreign commerce.” 18 U.S.C. § 1836(b)(1).
To establish a claim under the DTSA, the plaintiff must demonstrate “(1) the
existence of a trade secret, (2) the trade secret’s misappropriation, and (3) that
the trade secret implicates interstate or foreign commerce.” dmarcian, Inc. v.
dmarcian Eur. BV,
60 F.4th 119, 141 (4th Cir. 2023) (citing Oakwood Lab’ys
LLC v. Thanoo,
999 F.3d 892, 905 (3d Cir. 2021)); see, e.g., API Ams. Inc. v.
Miller,
380 F. Supp. 3d 1141, 1147–48 (D. Kan. 2019); Video Gaming Techs.,
Inc. v. Castle Hill Studios LLC, No. 4:17-CV-00454-GKF-JFJ,
2018 WL
3437083, at *4 (N.D. Okla. July 17, 2018).
For the first element, a “trade secret” may include “all forms and types of
financial, business, scientific, technical, economic, or engineering
information[.]” 18 U.S.C. § 1839(3). To qualify as a trade secret, (1) the owner
must have “taken reasonable measures to keep such information secret,” and
(2) the information must derive “independent economic value, actual or
potential, from not being generally known to, and not being readily
10
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ascertainable through proper means by, another person who can obtain
economic value from the disclosure or use of the information[.]” Id. The DTSA
lays out some examples of potential trade secrets:
patterns, plans, compilations, program devices, formulas, designs,
prototypes, methods, techniques, processes, procedures, programs,
or codes, whether tangible or intangible, and whether or how stored,
compiled, or memorialized physically, electronically, graphically,
photographically, or in writing[.]
Id.
The OUTSA similarly allows an individual to file suit for
misappropriation of trade secrets. Okla. Stat. tit. 78, §§ 86–88. “To prove
misappropriation of a trade secret, [a plaintiff] must show (i) the existence of a
trade secret, (ii) misappropriation of the secret by defendants, and (iii) use of
the secret to [a plaintiff’s] detriment.” MTG Guarnieri Mfg., Inc. v. Clouatre,
239 P.3d 202, 209 (Okla. Civ. App. 2010); see also Musket Corp. v. Star Fuel
of Okla., LLC,
606 F. App’x 439, 451 (10th Cir. 2015). The first two elements
align with the elements under the DTSA, but the third element creates a higher
burden than the DTSA to establish a trade-secret misappropriation claim. See
Blue Star Land Servs., LLC v. Coleman, No. 5:17-CV-00931-R,
2017 WL
6210901, at *7 (W.D. Okla. Dec. 8, 2017).
For the first element, the OUTSA defines “trade secret” as,
information, including a formula, pattern, compilation, program,
device, method, technique or process, that:
a. derives independent economic value, actual or
potential, from not being generally known to, and not
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being readily ascertainable by proper means by, other
persons who can obtain economic value from its
disclosure or use, and
b. is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.
Okla. Stat. tit. 78, § 86(4). The OUTSA’s definition of “trade secret” is nearly
identical to the definition in the DTSA. 7 Blue Star Land Servs.,
2017 WL
6210901, at *7. Under both the DTSA and OUTSA, whether certain information
qualifies as a trade secret is a question of fact. See Syntel Sterling Best Shores
Mauritius Ltd. v. The TriZetto Grp., Inc.,
68 F.4th 792, 801 (2d Cir. 2023);
Pre-Paid Legal Servs., Inc. v. Cahill,
171 F. Supp. 3d 1219, 1227 (E.D. Okla.
2016).
B. Double Eagle failed to define its trade secrets with sufficient
particularity.
On appeal, the parties focus on the first element of the DTSA and
OUTSA claims: the existence of a trade secret. 8 The district court dismissed
7
The definition of trade secret under the OUTSA is identical to the
definition of trade secret under the Uniform Trade Secrets Act (UTSA). Unif.
Trade Secrets Act § 1(4) (amended 1985). Nearly all states and U.S. territories
have adopted the UTSA. See 1 Roger M. Milgrim, Milgrim on Trade Secrets
§ 1.01 (2024). When interpreting a specific state’s trade-secret statute, courts
routinely look to caselaw discussing other states’ versions of the UTSA as
persuasive authority. See, e.g., TLS Mgmt. & Mktg. Servs., LLC v. Rodríguez-Toledo, 966 F.3d 46, 53 (1st Cir. 2020) (citing Wisconsin law and Illinois law
in interpreting Puerto Rico’s version of the UTSA).
8
The district court analyzed the DTSA and OUTSA claims together,
because the elements of both claims are substantially similar. Double Eagle,
2024 WL 3166921, at *1–4; see also Analog Techs., Inc. v. Analog Devices,
(footnote continued)
12
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these claims after concluding that Double Eagle identified no trade secrets
“with sufficient particularity.” Double Eagle, 2024 WL 3166921, at *1. Double
Eagle contends that a reasonable jury could find the existence of trade secrets.
Under the DTSA and OUTSA, a plaintiff “must identify the trade secrets
and carry the burden of showing they exist.” InteliClear, LLC v. ETC Glob.
Holdings, Inc., 978 F.3d 653, 658 (9th Cir. 2020) (internal quotation marks
omitted) (DTSA); see Sw. Stainless, LP v. Sappington,
582 F.3d 1176, 1190
(10th Cir. 2009) (OUTSA); see also LS3 Inc. v. Cherokee Nation Strategic
Programs, L.L.C., No. 21-1385,
2022 WL 3440692, at *5 (10th Cir. Aug. 17,
2022) (unpublished) (affirming the dismissals of the DTSA and Colorado
Uniform Trade Secrets Act claims for failing to allege “exactly what trade
secrets were stolen” (internal quotation marks omitted)). “The plaintiff should
describe the subject matter of the trade secret with sufficient particularity to
separate it from matters of general knowledge in the trade or of special
knowledge of those persons skilled in the trade.” InteliClear,
978 F.3d at 658
(cleaned up) (DTSA); see Tri-State Floors, Inc. v. Old Rule Servs., LLC, No.
4:19-CV-00707-JFH-JFJ,
2022 WL 4653717, at *7, *12 (N.D. Okla. Sept. 30,
2022) (applying the particularity requirement to a DTSA claim and then noting
Inc.,
105 F.4th 13, 17–18 (1st Cir. 2024); ATS Grp., LLC v. Legacy Tank &
Indus. Servs. LLC,
407 F. Supp. 3d 1186, 1200 (W.D. Okla. 2019). Neither
party challenges this joint analysis, nor do they make separate arguments for
the DTSA and OUTSA claims. So unless specified otherwise, we analyze the
claims together as well.
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that the OUTSA claim has overlapping elements). 9 This particularity
requirement ensures that defendants have “concrete identification to prepare a
rebuttal.” InteliClear, 978 F.3d at 658 (internal quotation marks omitted).
For particularity, the plaintiff “must clearly refer to tangible trade secret
material instead of referring to a system which potentially qualifies for trade
secret protection.” Id. (internal quotation marks omitted). “It is inadequate for
plaintiffs to cite and incorporate by reference hundreds of documents that
purportedly reference or reflect the trade secret information.”
Id. (internal
quotation marks omitted). “Long lists of general areas of information
containing unidentified trade secrets,” “catchall phrases,” and “categories of
trade secrets” that the plaintiff intends to pursue at trial fail to identify the
trade secret with sufficient particularity.
Id. (internal quotation marks omitted).
With these parameters in mind, we review the three categories of alleged trade
secrets: (1) PSQ specifications, (2) pricing, and (3) customer drawings.
9
Other circuits have also required trade-secret plaintiffs to identify the
trade secrets with sufficient particularity under both the DTSA and the state’s
version of the UTSA. See Syntel Sterling Best Shores Mauritius, 68 F.4th at
800 (“Under both the DTSA and New York law, a claimant bears the burden of
identifying a purported trade secret with sufficient specificity.”); Caudill Seed
& Warehouse Co. v. Jarrow Formulas, Inc.,
53 F.4th 368, 381 (6th Cir. 2022)
(“The trade secret must be defined with ‘reasonable particularity.’”); Oakwood
Lab’ys, 999 F.3d at 906–07 (concluding that the complaint alleged trade secrets
“with sufficient particularity” (internal quotation marks omitted)).
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1. PSQ Specifications
First, Double Eagle argues that its PSQ specifications qualify as trade
secrets. Double Eagle contends that it “described how the PSQ specifications
were derived and explained their purpose and usefulness.” Op. Br. at 26. It
cites the 718 and K500 specifications as examples. The district court rejected
this claim because “Double Eagle has not introduced any evidence that its . . .
specifications were subject to the general protections it identified, were known
only to a limited number of people, were not readily ascertainable, or were
valuable because they were not widely known.” Double Eagle, 2024 WL
3166921, at *3. We agree with this assessment.
For the PSQ specifications to qualify as trade secrets, Double Eagle must
show that the specifications were not “readily ascertainable” through proper
means. § 1839(3)(B); Okla. Stat. tit. 78, § 86(4)(a). This is a more exacting
standard than merely showing that the PSQ specifications were not publicly
known. See TLS Mgmt. & Mktg. Servs., LLC v. Rodríguez-Toledo,
966 F.3d 46,
55 (1st Cir. 2020) (“[The plaintiff] could not claim a trade secret protection
simply because its loan strategy was not publicly known.”). Instead, Double
Eagle must provide sufficient evidence that would allow a jury to find that the
PSQ specifications were “not readily ascertainable from public sources.”
Id.
Here, the undisputed evidence reveals that Double Eagle publicly posted
certain aspects of the 718 PSQ specification on its website, including a nearly
identical chemical composition. App. vol. II, at 398–401. Double Eagle’s
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customers also have similar 718 and K500 PSQ specifications. See Sealed App.
vol. II, at 310–14 (Baker Hughes’s 718 specification), 315–19 (Schlumberger’s
718 specification), 320–23 (Wood Group’s 718 specification), 324–27
(Summit’s 718 specification); Sealed App. vol. VII, at 1410–14 (Baker
Hughes’s K500 specification). For example, a comparison of the chemical
compositions for Double Eagle’s 718 PSQ specification and Baker Hughes’s
718 PSQ specification shows minimal differences in the weight percentage of
just three of the fifteen elements in the alloy. Compare Sealed App. vol. III, at
503 (Double Eagle’s 718 PSQ specification), with Sealed App. vol. II, at 311
(Baker Hughes’s 718 PSQ specification). And the chemical compositions for
Summit’s 718 PSQ specification and Double Eagle’s 718 PSQ specification are
identical, save for one additional element in Summit’s specification. Compare
Sealed App. vol. III, at 503 (Double Eagle’s 718 PSQ specification), with
Sealed App. vol. II, at 324 (Summit’s 718 PSQ specification).
The undisputed evidence also demonstrates that Ace Alloys developed its
own 718 and K500 specifications almost a year before Hooper even left Double
Eagle. Again, these specifications are nearly identical to Double Eagle’s
specifications. For example, the chemical compositions of the 718 PSQ
specifications contain only minor differences in the weight percentage for three
of fifteen elements. Compare Sealed App. vol. III, at 503 (Double Eagle’s 718
PSQ specification), with Sealed App. vol. II, at 345 (Ace Alloys’s 718 PSQ
16
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specification). The record reveals widespread use of near-identical PSQ
specifications among distributors and customers.
The undisputed evidence further shows that Double Eagle and other
distributors provided, as routine business practice, material test reports with
PSQ specifications for the ordered alloys to their customers. App. vol. II, at
311–12; Sealed App. vol. II, at 391–93. And the evidence demonstrates that
Double Eagle did not maintain any confidentiality agreement for these material
test reports. 10 Sealed App. vol. II, at 391–93 (Double Eagle employee stating
that no agreement limits customers’ dissemination of material test reports). In
fact, Ace Alloys even received two of Double Eagle’s material test reports from
Tulsa Centerless Bar Processing, Inc. App. vol. II, at 373–75 (email, dated
August 1, 2018, from Tulsa Centerless to Ace Alloys with Double Eagle’s
specifications for the K500 alloy product attached), 381–93 (same but dated
August 10, 2021, for the 718 alloy product). We acknowledge that the material
test reports deal only with the specific alloy product delivered to the
10
Double Eagle has a confidentiality agreement with Tulsa Centerless
Bar Processing, Inc., a machining company that Double Eagle uses to create its
customers’ requested parts. The agreement prohibits Tulsa Centerless from
disclosing Double Eagle’s proprietary information. But the record shows that
the mills produce the material test reports, not Double Eagle. See App. vol. II,
at 373–75 (material test report from Carpenter Technology Corporation), 381–
93 (same). Double Eagle also cites no evidence that Tulsa Centerless received
the material test reports from Double Eagle, rather than a third party. The
evidence fails to demonstrate that the material test reports fall within the
purview of Double Eagle’s confidentiality agreement with Tulsa Centerless.
17
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customer. 11 But alongside the other undisputed evidence, the material test
reports support the readily ascertainable nature of Double Eagle’s PSQ
specifications.
We have parsed some of the readily ascertainable information in the PSQ
specifications. And perhaps other portions of Double Eagle’s 718 and K500
PSQ specifications are also readily ascertainable. But Double Eagle merely
points to the specifications without distinguishing the trade-secret information
from the rest. “[A] plaintiff must do more than just identify a kind of
technology and then invite the court to hunt through the details in search of
items meeting the statutory definition.” IDX Sys. Corp. v. Epic Sys. Corp., 285
F.3d 581, 584 (7th Cir. 2002). And given the substantial overlap between
Double Eagle’s specifications and the specifications of both its customers and
Ace Alloys, we find it even more critical that Double Eagle cite evidence
explaining how these minor differences allow Double Eagle’s specifications to
11
The chemical compositions in Double Eagle’s PSQ specifications list
acceptable ranges for the weight percentages of each element that an alloy may
contain, while the chemical compositions in the material test reports list the
actual weight percentage of each element contained in the specific alloy
product delivered to the customer. Compare Sealed App. vol. III, at 503
(Double Eagle’s 718 PSQ specification), with App. vol. II, at 389 (material test
report for 718 alloy product). But the material test reports still reveal every
element in the alloy, as outlined in the PSQ specifications, and the weight
percentages fall within the specifications’ ranges.
18
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qualify as trade secrets. 12 But Double Eagle left us to hunt through thousands of
pages to determine which portions of the specifications might qualify as trade
secrets. For the portions of Double Eagle’s 718 and K500 PSQ specifications
that differ from their customers’ specifications, from Ace Alloys’s
specifications, or from the specifications in the material test reports, Double
Eagle has provided no information on how they qualify as trade secrets. 13
12
During a deposition, Crissup attempted to explain how the mechanical
properties and tensile strength make Double Eagle’s specifications different
from other publicly available specifications. Sealed App. vol. I, at 54–59. He
stated that the 718 PSQ specification and the publicly available 718
specification on Double Eagle’s website were “night and day” and claimed that
a metallurgist would label it as “nothing.” Id. at 55. But in the portion of the
deposition cited by Double Eagle, Crissup never gave any context for the
identified differences or explained their significance. Id. at 55–57. His
generalized and conclusory statements provide no value to our inquiry.
13
Double Eagle attempts to analogize this case to Broad-Ocean
Technologies, LLC v. Lei, 649 F. Supp. 3d 584 (E.D. Mich. 2023). In Broad-Ocean, an employer sued a former employee for taking over 600 downloaded
files.
Id. at 588–89. The district court held that the employer identified the
alleged trade secrets with sufficient particularity to survive summary judgment.
Id. at 595. In reaching this conclusion, the district court highlighted that the
alleged trade secrets—computer-aided design models of fuel-cell technology
components—“inherently are more secret than the business processes and
strategies, categories of information, or ‘low technology commodity products’
considered by other courts.”
Id. at 594. The district court also noted the
employee’s extraordinary efforts to cover his tracks by using his superior
technical knowledge to conceal the download.
Id. at 595. The circumstances in
Broad-Ocean differ from those here. Double Eagle’s alleged trade secrets—the
PSQ specifications, pricing, and customer drawings—fall in the latter bucket of
business strategy and low-technology products. The facts that supported the
inherent secrecy of the trade secrets in Broad-Ocean are not present here.
Double Eagle also fails to show any similar level of intentional concealment
from Hooper or Ace Alloys that the former Broad-Ocean employee exhibited
when taking the downloaded files. To the contrary, a forensic specialist
(footnote continued)
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Double Eagle’s arguments to the contrary suffer from a lack of evidence
as well. Double Eagle claims that its specifications as a whole qualify as trade
secrets, because Double Eagle derived these specifications by combining the
specifications of its customers. “A trade secret can exist in a combination of
characteristics and components each of which, by itself, is in the public
domain, but the unified process, design and operation of which, in unique
combination, affords a competitive advantage and is a protectable secret.”
Harvey Barnett, Inc., 338 F.3d at 1129 (cleaned up). But Double Eagle provides
no evidence or argument (1) that its customers’ specifications are not readily
ascertainable (and the evidence suggests otherwise), or (2) that its customers
are not readily ascertainable. See Fed. R. Civ. P. 56(e)(2). Double Eagle fails to
even support its assertion that it developed these specifications over several
years. At best, Double Eagle cites an affidavit from its president, Chad Crissup,
stating that the downloaded files contain information that “has been compiled
by Double Eagle over many years[.]” Sealed App. vol. III, at 524. None of the
cites specifically address Double Eagle’s PSQ specifications. Without any
evidence in the record, a reasonable jury could not find that Double Eagle’s
PSQ specifications are not readily ascertainable.
appeared to have quickly identified Hooper’s downloaded files. See Sealed
App. vol. III, at 522. So Double Eagle’s comparison of this case to Broad-Ocean holds little persuasive value.
20
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Double Eagle claims that, to create a specification like Double Eagle’s, a
company would need to have specifications from the same customers as Double
Eagle. This inference appears reasonable, but the citation to the record does not
support Double Eagle’s assertion. Double Eagle cites a deposition with Ace
Alloys’s co-founder, James Simmons, in which he describes how Ace Alloys
takes its customers’ standards and creates specifications that cover multiple
customers. Id. at 414. We imagine that Double Eagle likely does the same for
its specifications, but the record cites do not describe Double Eagle’s process.
Double Eagle also claims that the disclosure of its PSQ specifications would
cause substantial competitive harm. But again, Double Eagle cites an affidavit
from Ace Alloys’s other co-founder, Brandon Gerhart, that describes how
producing documents on Ace Alloys’s specifications “would result in
substantial competitive harm to Ace[.]” App. vol. I, at 105. Like Double
Eagle’s other claims, the record cite does not directly support its assertion and
instead relies on us to infer that statements about Ace Alloys somehow apply to
Double Eagle as well.
Double Eagle cites no evidence describing the significance of its
specifications, the time and effort required to create the specifications, the
competitive advantage that these specifications afford to Double Eagle, or the
uniqueness of Double Eagle’s specifications compared to other distributors.
The only evidence that Double Eagle points to is (1) testimony from Simmons
about how Ace Alloys creates its specifications, Sealed App. vol. III, at 414;
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(2) an affidavit from Crissup stating that “[a]ll of the Double Eagle information
downloaded by Hooper is protected, confidential, and not available to the
public or other persons who can obtain economic value from its disclosure or
use,” and that the specifications “could be used to gain a competitive advantage
over Double Eagle,” id. at 524; and (3) vague references about how Double
Eagle’s specifications would “speed[] things up” for Ace Alloys, id. at 470.
The cited evidence is either too generalized and conclusory or requires us to
infer that information about Ace Alloys’s specifications applies to Double
Eagle’s as well. For these reasons, Double Eagle fails to provide sufficient
evidence to create a triable issue on whether the PSQ specifications qualify as
trade secrets. See Fed. R. Civ. P. 56(e)(3); Bones, 366 F.3d at 875.
2. Pricing
Next, Double Eagle argues that its pricing information qualifies as trade
secrets. The district court correctly concluded that Double Eagle’s prices are
not trade secrets, because Double Eagle shares its prices with customers and
does not prevent its customers from sharing those prices. Double Eagle, 2024
WL 3166921, at *2; see § 1839(3) (defining trade secret as information that is
not readily ascertainable);
Okla. Stat. tit. 78, § 86(4) (same); see also Sw.
Stainless,
582 F.3d at 1190 (finding no trade secret where the plaintiff
disclosed the alleged trade secret—a quoted price—to the customer and the
customer could freely share the quoted price). On appeal, Double Eagle
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acknowledges sharing prices with customers but contends that its pricing model
qualifies as a trade secret.
“As a general matter, confidential data regarding operating and pricing
policies can qualify as trade secrets.” Sw. Stainless, 582 F.3d at 1189 (cleaned
up). But the plaintiff must provide evidence that the pricing structure conferred
some type of competitive advantage or economic value to the information’s
owner. See § 1839(3) (requiring that the information derive independent
economic value from not being generally known or readily ascertainable
through proper means to qualify as a trade secret); Tri-State Floors,
2022 WL
4653717, at *8 (concluding that evidence of a “unique pricing structure
memorialized in detailed spreadsheets” was sufficient for the trade-secret claim
to survive summary judgment); IVS Hydro, Inc. v. Robinson,
93 F. App’x 521,
528 (4th Cir. 2004) (per curiam) (concluding that the plaintiff’s pricing
information was not a trade secret because the “approach to pricing was not
unique and [the plaintiff] did not expend a great deal of money developing its
pricing techniques”); Garvey v. Face of Beauty LLC,
634 F. Supp. 3d 84, 97
(S.D.N.Y. 2022) (“[W]hile pricing information may constitute a trade secret
under certain circumstances, this is generally where a company uses some type
of proprietary formula that gives it a unique advantage, such as a complex
pricing or trading algorithm in a financial business.” (internal quotation marks
omitted)). Without more, courts typically treat standard pricing models as
insufficient to qualify as trade secrets. See Fred Hall Shows, Inc. v. Hall, No.
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8:21-CV-00417-JVS-KES, 2021 WL 3473562, at *9 (C.D. Cal. July 28, 2021)
(concluding that pricing information did not qualify as a trade secret because
the plaintiff failed to allege “anything unique or secret about its pricing
structure or its customers’ prices”).
Double Eagle describes its pricing as “a function of the published
surcharge, its machining costs, its material costs (which are highly confidential
and fixed) plus customer-specific target margins (which are highly confidential
and are based on confidential customer information including ordering
history).” Op. Br. at 27 (internal quotation marks omitted). With the right
evidence, we believe that Double Eagle’s pricing model could qualify as a trade
secret. See, e.g., EIS Ultimate Holding, LP v. Huset, No. 1:23-CV-02324-GPG-
MDB, 2024 WL 4472008, at *14–16 (D. Colo. Sept. 19, 2024) (concluding that
project set-up documents with pricing and margin information likely qualify as
trade secrets based on testimony that the documents are “the equivalent of an
industry-specific software program with extensive formulas and programming
throughout the spreadsheets” (cleaned up)); Cutera, Inc. v. Lutronic Aesthetics,
Inc.,
444 F. Supp. 3d 1198, 1206 (E.D. Cal. 2020) (concluding that the plaintiff
was likely to succeed on the merits for the trade-secret claims because the
plaintiff “has offered sufficient evidence to show it has spent significant time
and resources” developing customer and pricing information such that “the
information would give a competitor a substantial business advantage and the
information is not readily ascertainable”); Cool Runnings Int’l Inc. v. Gonzalez,
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No. 1:21-CV-00974-DAD-HBK, 2021 WL 5331453, at *7 (E.D. Cal. Nov. 16,
2021) (“Courts in California have routinely found price lists such as the Project
Materials Order Form to be trade secrets in that they are used to avoid the labor
expended in calculating bids on projects such as the refrigeration projects at
issue here.”).
But the problem here is that Double Eagle cites meager evidence to
support any claims about its pricing model. First, Double Eagle cites a single
sentence in an affidavit from its Sales Manager, Steven Lee Stoner. Sealed
App. vol. VI, at 1117 (“Double Eagle’s pricing is a function of the published
surcharge, its machining costs, its material costs (which are highly confidential
and fixed) plus customer-specific target margins (which are highly confidential
and are based on confidential customer information including ordering
history).”). The affidavit does not provide any detail about its pricing model
that would allow us to assess the importance of the model, the competitive
advantage it offers, the effort required to build the model, or how the cost and
pricing data are unique to Double Eagle. See Tri-State Floors, 2022 WL
4653717, at *2, *8 (concluding that the plaintiff provided sufficient evidence
that its “unique pricing structure” qualified as a trade secret in part because of
deposition testimony and an affidavit explaining how the plaintiff’s pricing
structure “provide[s] a competitive advantage”); Cool Runnings Int’l Inc.,
2021
WL 5331453, at *1, *7–8 (finding that the plaintiff was likely to succeed on the
merits for its trade-secret claim where the plaintiff presented evidence of the
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“extensive detail and precision” in the plaintiff’s master project materials list,
which forms a key component of the plaintiff’s “bid matrix algorithms,” that
the list would allow the defendant to precisely calculate and undercut the
plaintiff’s future bids, and that the plaintiff “expended significant resources in
developing its proprietary information”).
Second, Double Eagle cites an affidavit from Crissup that contains the
same deficiencies in detail about the pricing model. See Sealed App. vol. III, at
522–24. The affidavit references “substantial amounts of historical sales
information including bids, price lists, and margins,” but it provides no
information on the significance of that information in relation to its pricing
model. Id. at 524. Without more detailed evidence of the pricing model, the
generalized information contained in the cited affidavit fails to rise above mere
conclusory statements. See APC Filtration, Inc. v. Becker, No. 1:07-CV-01462,
2008 WL 3008032, at *9, *11 (N.D. Ill. Aug. 4, 2008) (granting summary
judgment to the plaintiff on an Illinois trade-secret claim where the undisputed
evidence shows that the plaintiff created price lists by obtaining and developing
pricing information for more than twelve years through salespeople,
competitors, research, and trade shows and created “deviated” price lists
tailored to specific customers based on their needs and relationships with the
plaintiff).
Third, Double Eagle cites spreadsheets containing costs for Tulsa
Centerless and Carpenter Technologies, as well as the prices for certain parts.
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Sealed App. vol. III, at 507–14. But again, Double Eagle provides no context
for these spreadsheets to allow us to gauge the significance of this information
in relation to Double Eagle’s pricing. The evidence contains no information
about the time, effort, or expense required to create the alleged pricing model,
or about the competitive advantage the pricing model offers. Without that
context, we also question the confidential nature of these prices given that
certain inputs come from Tulsa Centerless and Carpenter Technologies.
Fourth, the most detailed evidence about Double Eagle’s pricing model—
alerted to us by Defendants—still falls short. The cited evidence consists of
deposition testimonies from two Double Eagle employees. Sealed App. vol. I,
at 99–102, 113–16. The employees described how they quote prices for
requested products, including by looking at the available stock, history of past
sales, costs, and market conditions. Id. But again, the testimonies provide no
information about what sets Double Eagle’s pricing model apart from other
pricing models. Potential evidence that may have allowed Double Eagle’s
trade-secret claims to survive in relation to its pricing model includes
testimony about the significant pricing history that Double Eagle has compiled
compared to its competitors, testimony about a proprietary formula for
calculating prices, or testimony about the efficiencies that the pricing model
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offers. 14 Though pricing models can qualify as trade secrets, they are not per se
trade secrets. And we reject Double Eagle’s contention that the mere invocation
of “pricing” (or for that matter, “specifications” or “drawings”) suffices to
identify a trade secret with sufficient particularity at the summary-judgment
stage. 15 Without key evidence demonstrating the unique nature of its pricing
model, Double Eagle has not proffered sufficient evidence to create a triable
issue on whether its pricing qualifies as a trade secret. 16 See Fed. R. Civ. P.
56(e)(3).
14
Double Eagle—in an underdeveloped argument—references how its
exclusive purchasing agreement with Carpenter Technologies provides a
competitive advantage, because Carpenter Technologies is the only domestic
mill that procures PSQ material. Though this argument deals with a competitive
advantage that Double Eagle has over other distributors, it does not translate
into how the pricing model itself confers a competitive advantage. A lower
input cost creates a competitive advantage for any business in any industry.
That fact is not unique to Double Eagle.
Defendants also appear to operate under the misconception that a
“unique” pricing model requires some type of cutting-edge or complex
innovation. Not true. Even testimony about the effort expended to compile the
pricing data might suffice for showing how the pricing model conferred a
competitive advantage. See Tri-State Floors, 2022 WL 4653717, at *7.
15
For example, a gas station that prices its gas by matching the
advertised prices of the competitor-gas station across the street does not have a
legally protected trade secret.
16
Double Eagle relies on Olaplex, Inc. v. L’Oréal USA, Inc. to argue that
courts could “assume” that “business information” and “financials” contained
trade-secret information. 855 F. App’x 701, 708 (Fed. Cir. 2021) (internal
quotation marks omitted). But Double Eagle misreads Olaplex. In Olaplex, the
Federal Circuit assumed that “business information” and “financials” qualified
as trade secrets, because (1) the jury had found that the information contained
trade secrets, and (2) the argument on appeal focused on the misappropriation
(footnote continued)
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3. Customer Drawings
Finally, Double Eagle claims that the customer drawings qualify as trade
secrets. But the parties do not dispute that the customer drawings come from
the customers, not Double Eagle. And Double Eagle cites no evidence that
would allow a reasonable jury to find that Double Eagle owns the drawings
despite receiving them from its customers. See Allstate Ins. Co. v. Fougere, 79
F.4th 172, 193–94 (1st Cir. 2023) (concluding that the plaintiff provided
sufficient evidence of ownership because an agreement stated that any
confidential information acquired by the plaintiff’s employees is “wholly
owned by” the plaintiff). Without more, this fact alone dooms the DTSA claim,
which requires that the party filing suit own the trade secret. 17 § 1836(b)(1)
(“An owner of a trade secret that is misappropriated may bring a civil action
. . . . ” (emphasis added)); § 1839(4) (defining owner as “the person or entity in
prong of the trade-secret claims, not the existence-of-a-trade-secret prong. Id.
at 703, 708–09. These circumstances distinguish Olaplex from this case.
17
Unlike the DTSA, the OUTSA does not expressly limit trade-secret
claims to the owner of the trade secret, nor have Oklahoma courts imputed that
requirement onto the statute. See Okla. Stat. tit. 78, § 85 et seq.; MTG
Guarnieri Mfg., Inc.,
239 P.3d at 209 (stating that an OUTSA claim requires
showing the existence of a trade secret, misappropriation of the secret by the
defendants, and the use of that secret to the plaintiff’s detriment); Gaedeke
Holdings VII LTD v. Baker,
683 F. App’x 677, 683–84 (10th Cir. 2017)
(concluding that the OUTSA does not require ownership for a trade-secret
claim); but see Cent. Plastics Co. v. Goodson,
537 P.2d 330, 333 (Okla. 1975)
(stating, in a pre-OUTSA case, that the common-law tort of trade-secret
misappropriation requires that the secrets are “the particular secrets of the
[plaintiff] as distinguished from the general secrets of the trade”).
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whom or in which rightful legal or equitable title to, or license in, the trade
secret is reposed”).
As for the OUTSA claim, Double Eagle fails to present sufficient
evidence that these customer drawings were not readily ascertainable. Double
Eagle cites no evidence that customers do not share drawings of requested parts
with distributors like Double Eagle and Ace Alloys or that it would be difficult
to obtain the drawings from customers. App. vol. II, at 286; Sealed App. vol. II,
at 333 (example drawing). This lack of evidence prevents us from finding a
triable issue on whether the drawings are readily ascertainable by proper
means. Okla. Stat. tit. 78, § 86; MTG Guarnieri Mfg., 239 P.3d at 209–10
(citing six factors from the Restatement of Torts, § 757, Comment b (1939),
that help determine whether information is a trade secret); see also
§ 1839(3)(B). Therefore, Double Eagle cannot claim the customer drawings as
trade secrets under either the DTSA or OUTSA.
Double Eagle argues that customers share drawings with “an
understanding that they will be kept confidential.” Op. Br. at 8 (citing Sealed
App. vol. VII, at 1400). But the only cited evidence that supports this assertion
is (1) conclusory testimony from a Double Eagle employee that the customer
drawings are “classified” and that “a lot of the drawings have a listing on there
not to be shared other than who it’s sent to,” and (2) customer Alkhorayef
Petroleum Company’s (APC) confidentiality agreement with Double Eagle.
Sealed App. vol. II, at 277; Sealed App. vol. VII, at 1400. That same employee
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also testified that customers sent their drawings when they wanted a quote for a
particular part. Sealed App. vol. VII, at 1400–01. Indeed, Double Eagle even
acknowledges that customers “can share the drawings with anyone they
please[.]” Op. Br. at 38. And though Double Eagle signed an agreement that
potentially requires keeping APC’s drawings confidential, it cites no similar
agreement with any other customer. Evidence of restrictions with a single
customer does not create a genuine dispute of material fact as to whether the
drawings are readily ascertainable through proper means. Even if Double Eagle
could not share APC’s drawings with a third party, that does not mean the third
party could not readily obtain APC’s drawings directly from APC or elsewhere.
And in fact, the evidence shows that Ace Alloys did obtain APC’s drawings
elsewhere—from Tulsa Centerless. 18 Sealed App. vol. I, at 159–64; see also
Black, Sivalls & Bryson, Inc. v. Keystone Steel Fabrication, Inc., 584 F.2d 946,
951–52 (10th Cir. 1978) (recognizing that information that “had been published
18
Double Eagle briefly argues that the customer drawings are not readily
ascertainable, because Tulsa Centerless improperly provided the drawings to
Hooper in violation of its confidentiality obligations to Double Eagle. But as
discussed above, Double Eagle’s confidentiality agreement with Tulsa
Centerless limits Tulsa Centerless from disclosing Double Eagle’s proprietary
information. Here, the customer drawings come from the customers, not Double
Eagle. Double Eagle also puts forth no evidence that Tulsa Centerless received
the customer drawings from Double Eagle and not a third party. Though Double
Eagle claims that Hooper had sent the drawings to Tulsa Centerless while he
worked at Double Eagle, the cited evidence does not support Double Eagle’s
assertion. See Reply Br. at 22 (citing Sealed App. vol. III, at 451, 515). Double
Eagle fails to present sufficient evidence that the customer drawings fall within
the agreement’s purview, leaving us with only Double Eagle’s bare assertions
that the customer drawings are proprietary.
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or otherwise disseminated” could not qualify as trade secrets). Without
additional evidence, Double Eagle fails to present a triable issue on whether the
customer drawings qualify as trade secrets. See Fed. R. Civ. P. 56(e)(3).
For these reasons, the district court properly dismissed the trade-secret
claims under the DTSA and OUTSA. 19
19
Double Eagle attempts to distinguish a party sufficiently identifying a
trade secret from the ultimate question of whether such information constitutes
a trade secret. Though Double Eagle claims the district court went “beyond” the
standard applied by most courts, it cites no authority for this assertion. We see
no error in the district court’s review, which looked to the sufficiency of the
evidence and included no impermissible factfinding. More generally, Double
Eagle appears to divorce the identification of a trade secret with sufficient
particularity from the sufficiency of the evidence to survive summary
judgment. That analytical framework is wrong. At the summary-judgment
stage, a plaintiff identifies a trade secret by producing sufficient evidence that
could meet the definition of a trade secret under the DTSA and OUTSA. A
failure to produce sufficient evidence amounts to a failure to identify a trade
secret.
Double Eagle then claims that the district court erred by relying on Quest
Solution, Inc. v. RedLPR, LLC, because that case dealt with Utah law, not
Oklahoma law. No. 2:19-CV-00437-CW-DBP, 2021 WL 1688644, at *1 (D.
Utah Apr. 28, 2021). But as discussed, courts often look to other jurisdictions’
interpretations of similar statutes for guidance on interpreting a specific state’s
version of the UTSA. See, e.g., TLS Mgmt.,
966 F.3d at 53 (citing Wisconsin
law and Illinois law in interpreting Puerto Rico’s version of the UTSA).
Without a more compelling reason to disregard Quest Solution, we see no error
in the district court’s reliance on this case as persuasive authority.
Double Eagle also attacks the district court’s reliance on Southwest
Stainless, because that case dealt with an appeal of a bench verdict rather than
a summary-judgment grant. But the district court never relied on Southwest
Stainless to weigh the evidence at the summary-judgment stage, as a factfinder
would do at trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986). At the summary-judgment stage, the question is merely whether the
evidence is sufficient for a reasonable jury to find a trade secret. See
id.
(“[T]here is no issue for trial unless there is sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that party.”). And the district
(footnote continued)
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II. Misappropriation Claim
Double Eagle next argues that the district court erred by dismissing the
misappropriation claim. Double Eagle contends that (1) a reasonable jury could
find that the downloaded files were confidential, and (2) the district court failed
to provide Double Eagle with an opportunity to present all evidence in support
of this claim. We take each argument in turn.
A. The district court properly dismissed the misappropriation
claim.
First, Double Eagle asserts that the district court erred by dismissing its
claim for misappropriation of confidential business information. The district
court granted summary judgment on this claim, because Double Eagle “failed to
present evidence concerning the secrecy of the information that Mr. Hooper
allegedly misappropriated[.]” Double Eagle, 2024 WL 3166921, at *4. On
court did not deviate from that standard. See Double Eagle,
2024 WL 3166921,
at *2–4.
Last, Double Eagle argues that the district court erred by requiring
“absolute secrecy” to establish a trade secret. Op. Br. at 29–30. Though Double
Eagle correctly characterizes the law, it mischaracterizes the district court’s
opinion. The district court granted summary judgment on the trade-secret
claims because Double Eagle provided no evidence (1) that it prevents
customers or suppliers from sharing its prices, (2) that customers do not share
drawings with others, and (3) that its margins and specifications were subject to
general protections, were known to only a limited number of people, were not
readily ascertainable, or were valuable from not being widely known. Double
Eagle, 2024 WL 3166921, at *2–3. Double Eagle’s claims fail for a lack of
evidence showing that the information was not readily ascertainable, not
because of an “absolute secrecy” requirement.
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appeal, Double Eagle argues that the district court disregarded evidence of the
downloaded files’ confidentiality.
Oklahoma recognizes the common-law tort of misappropriation of
confidential business information, described as “[o]ne who, for the purpose of
advancing a rival business interest, procures by improper means information
about another’s business[.]” Am. Biomedical Grp., Inc. v. Techtrol, Inc., 374
P.3d 820, 825 (Okla. 2016) (internal quotation marks omitted). The individual
“is liable to the other for the harm caused by his possession, disclosure or use
of the information.”
Id. (internal quotation marks omitted). As an initial matter,
the OUTSA “displace[d] conflicting tort claims only for ‘misappropriation of a
trade secret.’”
Id. at 827. But it did not displace tort claims for
“misappropriation of business information not rising to the level of a trade
secret.”
Id. To qualify as legally protected business information, the plaintiff
must present evidence that the misappropriated information was confidential.
Id. at 826. The information must also “be the particular secrets of the employer
as distinguished from the general secrets of the trade in which he is engaged.”
Cent. Plastics Co. v. Goodson,
537 P.2d 330, 333 (Okla. 1975); see also Am.
Biomedical Grp., 374 P.3d at 825–86. Information “readily available to
competitors” does not amount to confidential business information. Cent.
Plastics,
537 P.2d at 334.
Though trade secrets differ from confidential information, the lack of
secrecy that defeated the trade-secret claims also defeats the misappropriation
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claim. Double Eagle contends that “at least some of the information” contained
in the 2,660 files is confidential. 20 Op. Br. at 43. Again, Double Eagle advances
that a large swath of information could qualify as confidential business
information without any attempt to identify the allegedly confidential
information. We decline to scour the record for “evidence considered material
to each legal theory advanced on appeal” or credit the conclusory allegations of
confidentiality. Rocky Mountain Wild, Inc. v. U.S. Forest Serv., 56 F.4th 913,
927 (10th Cir. 2022) (internal quotation marks omitted). And as discussed
above, Double Eagle’s 718 and K500 PSQ specifications are nearly identical to
their customers’ specifications and to Ace Alloys’s specifications. Double
Eagle also posted on its website a nearly identical version of its 718
20
We agree with the district court that Double Eagle has “shift[ed] the
goalposts” throughout litigation when defining its trade secrets and confidential
business information. Double Eagle, 2024 WL 3166921, at *1. Double Eagle’s
president claims that “[a]ll of the Double Eagle information downloaded by
Hooper is protected, confidential, and not available to the public or other
persons who can obtain economic value from its disclosure or use.” Sealed
App. vol. III, at 524 (Crissup affidavit). And in the district court, Double Eagle
listed its trade secrets as “PSQ specifications, pricing, margins, costs, and
customer drawings.” Double Eagle,
2024 WL 3166921, at *2 (internal
quotation marks omitted). On appeal, Double Eagle changes tack and limits the
identified trade secrets to just PSQ specifications, pricing, and customer
drawings. Double Eagle then represented at oral argument that “most of” the
downloaded files qualified as trade secrets without differentiating the trade
secrets from the non-trade secrets. Oral Argument at 0:02:39–0:02:46. And that
statement seems more expansive than the brief’s description “that at least some
of the information on the . . . [downloaded files] was confidential.” Op. Br. at
43 (emphasis added). The varied representations reflect Double Eagle’s
inability to define its trade secrets or confidential business information with
sufficient particularity.
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specification. Similarly, the customer drawings are not Double Eagle’s
“particular secrets,” because they come from the customers. Cent. Plastics, 537
P.2d at 333. As for Double Eagle’s pricing model, the only evidence that
Double Eagle cites is an affidavit from its sales manager that its margins and
material costs are “highly confidential.” Sealed App. vol. VI, at 1117. But that
same affidavit shows that other aspects of Double Eagle’s pricing are not
confidential, such as the published surcharge, machining costs, and the prices
themselves.
Id. Though a pricing model could qualify as confidential business
information, Double Eagle presents no evidence that its pricing model is unique
to its business, rather than a “general secret[] of the trade.” Cent. Plastics,
537
P.2d at 333. Without evidence of the time, effort, or expense to create the
pricing model, we fail to discern how a pricing model that boils down to margin
plus costs differs from any other distributor’s pricing scheme.
More generally, Double Eagle also cites an employee handbook, an
information-security policy, and other sales department practices to support the
confidential nature of the information in the downloaded files. See App. vol. I,
at 104; App. vol. II, at 292–93; App. vol. III, at 496; Sealed App. vol. III, at
497, 521, 524–25; Sealed App. vol. VI, at 1109, 1154–55, 1162, 1229–30. But
again, this evidence suffers the same problem as Double Eagle’s other
evidence—namely, a lack of detail about how these policies relate to the
allegedly confidential business information in the downloaded files. The
employee handbook fails to identify the “nonpublic” or “confidential”
36
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information, and no affidavit describes how the sales department practices
protect the confidentiality of information in the downloaded files specifically.
The information-security policy offers no refuge either. The policy defines
confidential information as any information “that is not publicly known,”
meaning some of Double Eagle’s allegedly confidential information contradicts
even its internal definition of “confidential information.” Sealed App. vol. III,
at 501. As the district court accurately described in its opinion, Double Eagle
fails to “distinguish the wheat from the chaff,” leaving the jury without
sufficient evidence to find that any of the downloaded information is
confidential under Oklahoma law. Double Eagle, 2024 WL 3166921, at *4. For
these reasons, the district court properly dismissed the misappropriation
claim. 21
B. The district court complied with Rule 56’s requirements before
granting summary judgment.
Double Eagle also argues that the district court failed to provide an
adequate opportunity for Double Eagle to present all evidence in support of the
misappropriation claim. We disagree.
21
We note that the underdeveloped evidence in the record plays a large
role in our dismissals of the trade-secret and misappropriation claims. In many
instances, Double Eagle makes seemingly plausible and reasonable assertions.
And yet the cited portions of the record fail to match the assertion, contain only
generalized and conclusory statements, or require one inference too many to
adequately support the assertion.
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Federal Rule of Civil Procedure 56(f) allows a court to grant summary
judgment on grounds not raised by any party after giving notice and a
reasonable time to respond. The district court did just that. It provided notice to
the parties that it would consider granting summary judgment to Defendants on
the misappropriation claim based on (1) whether Double Eagle sufficiently
identified the allegedly misappropriated business information, and (2) whether
the allegedly misappropriated business information is of a secret or confidential
character. App. vol. III, at 549. The district court invited the parties to submit
briefs on these issues and properly dismissed the misappropriation claim after
considering all submissions.
Double Eagle complains that the district court prohibited Double Eagle
from presenting additional evidence to support the misappropriation claim. This
argument misstates the record. In the briefing order, the district court instructed
the parties to “refer to the exhibits previously submitted in connection with the
parties’ most recent motions for summary judgment” and to “not introduce new
evidence without express leave of [c]ourt.” Id. at 550. So the district court did
not bar Double Eagle from submitting more evidence; it merely required
Double Eagle to move for leave of court. Despite receiving notice of the issues
and of the district court’s preferred procedure, Double Eagle did not request
leave to submit new evidence or object to the procedure. By failing to preserve
this issue in the district court and failing to argue for plain-error review on
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appeal, Double Eagle waived this issue. 22 United States v. Leffler, 942 F.3d
1192, 1196 (10th Cir. 2019).
III. Civil-Conspiracy Claim
For the last claim, Double Eagle argues that we should reverse the
district court’s dismissal of the civil-conspiracy claim. Under Oklahoma law, a
civil-conspiracy claim requires an underlying tort. Brock v. Thompson, 948
P.2d 279, 294 n.66 (Okla. 1997); see also AKC ex rel. Carroll v. Lawton Indep.
Sch. Dist. No. 8,
9 F. Supp. 3d 1240, 1245 (W.D. Okla. 2014). Because the
district court properly dismissed all other claims, we conclude that it properly
dismissed the civil-conspiracy claim as well. Double Eagle,
2024 WL 3166921,
at *5.
CONCLUSION
For the reasons stated, we affirm.
22
Even if we reached the merits of Double Eagle’s argument, we see no
error in the district court’s procedure. Kannady v. City of Kiowa, 590 F.3d
1161, 1170 (10th Cir. 2010) (“A district court may grant summary judgment on
a ground not formally raised in a summary judgment motion, so long as the
losing party was on notice that she had to come forward with all of her
evidence.” (cleaned up)).
39
