Contact Us
Trade Secret Litigation In New York Federal Courts: Specificity of Claims Is A Necessity
POSTED BY ON March 26 2024
Trade Secret Litigation In New York Federal Courts: Specificity of Claims Is A Necessity | Richard Friedman

When pleading a claim of misappropriation of trade secrets, plaintiffs must walk a fine line
between providing sufficient specificity of the alleged trade secrets, on the one hand, and
preventing unnecessary and inadvertent public disclosure, on the other hand. In a trade secret
misappropriation action under common law or the Defend Trade Secrets Act of 2016,¹ the
plaintiff must define the allegedly misappropriated matter with reasonable specificity or
particularity.² A plaintiff’s allegations must be much more than general assertions. They must be
“sufficiently specific to allow a determination by the court.”³ Some states have codified this
requirement, including California⁴ and Massachusetts.⁵

In recent years, a number of New York federal court judges have emphasized the need for
plaintiffs to plead trade secret cases with particularity. Perhaps the earliest New York federal
court cases to affirm this specificity requirement was the 2008 case of Sit-Up Ltd. v.
IAC/InterActive Corp., which held that specificity is required at the time of disclosure and
throughout the litigation. In Sit-Up Ltd., Judge Denise Cote held that the plaintiff failed to define
a number of its allegedly misappropriated trade secrets with sufficient particularity.⁶ In her
decision, Judge Cote stated that “the Second Circuit has not squarely articulated a specificity requirement, [but] there is no reason to believe that it would permit a party to advance a trade secret claim in vague and ambiguous terms.”⁷ Simply put, the court held, this standard of specificity is required because it enables a defendant to adequately defend himself against claims of trade secret misappropriation.⁸

In the 2014 case of Big Vision Private Ltd. v. E.I. DuPont De Nemours & Co., Judge Katherine
Polk Failla of the Southern District concurred with Judge Cote’s discussion of Second Circuit
law on the pleading requirement and added that “each Circuit Court of Appeals to have opined
on this issue has required a comparable degree of specificity, as have numerous district courts
across the country.”⁹  Judge Failla unambiguously adopted a particularity requirement¹⁰ and ruled
that the plaintiff had failed to identify its alleged trade secrets with particularity.¹¹

Citing Sit-Up Ltd. in 2021, Judge Lewis J. Liman affirmed in Town & Country Linen Corp. v.
Ingenious Designs LLC that New York state common law requires a plaintiff to “describe the
alleged trade secret with adequate specificity to inform the defendants what it is alleged to have
appropriated.” Specificity is required both “at the moment of divulging” an alleged secret and
“before the court.”¹² The former requirement ensures that the defendant adequately understands the alleged trade secret enough to prevent misappropriation, while the latter requirement is intended to allow the defendant to defend against misappropriation claims.

In the last few years, several other Southern District judges have affirmed the requirement that
plaintiffs plead their trade secret misappropriation claims with specificity. The cases of Elsevier
Inc. v. Doctor Evidence, LLC¹³ and Zirvi v. Flatley¹⁴ are examples of such rulings.

In 2018, Southern District Judge Katherine Forest dismissed the Elsevier claimant’s pleading
because it failed to include specific allegations “supporting the various factors that define the
‘contours’ of a trade secret[.]”¹⁵ Judge Forest acknowledged that “[t]rade secrets are a narrow
category of confidential information; to survive a motion to dismiss, a party alleging that it owns
a trade secret must put forth specific allegations as to the information owned and its [independent
economic] value.”¹⁶ General allegations regarding confidential information and processes, the
court held, do not constitute a plausible trade secrets claim, as the proper standard for according
the status of “trade secrets” is far greater than the standard for “confidential information.”¹⁷

Two years later, the Clerk of the Southern District issued a Summary Order in Zirvi in which the
Court rejected the plaintiffs’ allegations failed because they failed to put forth specific
allegations as to the information owned or its value.¹⁸ The Court held that the allegations were too broad and vague, and found it “difficult to see how negative trade secrets consisting of unsuccessful efforts to develop trade secrets and experimental dead ends, can have independent
economic value when the end result of the process, the positive trade secrets, have in fact been uncovered.¹⁹ The Zirvi decision makes clear that plaintiffs are required to “plead their trade secrets with sufficient specificity to inform the defendants of what they are alleged to have

In 2022 and 2023, this heightened specificity requirement was echoed in several district court
cases within the Second Circuit, resulting in the dismissal of trade secret claims.²¹

The Eastern District has similarly abided by the standard requiring particularized pleading of
trade secrets. In Core SWX, LLC v. Vitec Grp. US Holdings, Inc., the court held that the
defendants’ counterclaims did not adequately identify the alleged trade secrets. As Judge James
M. Wicks explained, “district courts in this circuit routinely require that plaintiffs plead their
trade secrets with sufficient specificity to inform the defendants of what they are alleged to have

The heightened pleading requirement in trade secret misappropriation cases affirmed in recent
years in New York federal courts demonstrates the need, which has always existed albeit not always heeded, for counsel to thoroughly investigate a client’s purported trade secrets at issue before filing a lawsuit. These cases also highlight the importance of defendants considering whether to file a motion to dismiss on the grounds that the information alleged in a complaint cannot constitute trade secrets.


1 See “Defend Trade Secrets Act of 2016: A Five Year Overview,”

2 To grant a plaintiff’s motion for a preliminary injunction, a court must “find that it clearly appears from specific facts” that the applicant is likely to succeed in demonstrating that the information is a trade secret, and the person against whom seizure would be ordered misappropriated the trade secret of the applicant by improper means or conspired to use improper means to misappropriate the trade secret of the applicant. 18 USCA § 1836 IV. See also 127 AM. JUR. TRIALS 283 § 16 (last updated August 2022) (providing a Cumulative Supplement of relevant cases). 3 AM. JUR. TRIALS § 16 (quoting Healthcare Services of the Ozarks, Inc. v. Copeland, 198 S.W.3d 604, 611 (Mo. 2006)).

4 Cal. Civ. Proc. Code § 2019.210 (requiring plaintiffs to “identify the trade secret with reasonable particularity” before commencing discovery).

5 Mass. Gen. Laws ch. 93, § 42D (“in alleging trade secrets misappropriation a party must state with reasonable particularity the circumstances thereof, including the nature of the trade secrets and the basis for their protection.”

6 Sit-Up Ltd. v. IAC/InterActive Corp., 2008 U.S. Dist. LEXIS 12017, at *29 (S.D.NY. 2008).

7 Id. at 11 (citing Heyman v. AR. Winarick, Inc., 325 F.2d 584, 590 (2d Cir. 1963) (affirming the district court’s factual finding that the plaintiff’s disclosure was “so vague and indefinite as not to be entitled to protection under the law of trade secrets.”).

8 Id.

9 Big Vision Private Ltd. v. E.I. DuPont De Nemours & Co., 1 F.Supp.3d 224, 258 (S.D.N.Y. 2014) (citations omitted).

10 Id. at 259 (“Several district courts within this Circuit have adopted this particularity requirement, and this Court now joins them.”) (citations omitted).

11 Id. at 266 (citations omitted).

12 Town & Country Linen Corp. v. Ingenious Designs LLC, 556 F. Supp. 3d 222, 270 (S.D.N.Y. 2021) (citing Sit-Up Ltd., 2008 U.S. Dist. LEXIS 12017, at *11) (alteration in original).

13 Elsevier Inc. v. Dr. Evidence, LLC, 2018 U.S. Dist. LEXIS 10730, at *10 (S.D.N.Y. 2018).

14 Zirvi v. Flatley, 433 F.Supp.3d 448, 465 (S.D.N.Y. 2020).

15 Elsevier Inc., 2018 U.S. Dist. LEXIS 10730, at *10 (“contours” of a trade secret include: “the information’s value, the extent to which it is known by those within and outside the business, the amount of effort or money spent to develop the information, and the ease with which the information could be acquired or developed by outsiders.”).

16 Id. at 3 (citation omitted) (alteration in original); see Zirvi, 433 F.Supp.3d at 465 (citation omitted).

17 Id. at 5. There is no one-size-fits all definition to a trade secret, so New York courts typically consider several factors to determine whether the information at issue qualifies. Id. at 3.

18 Zirvi, 433 F.Supp.3d at 465.

19 Id. at 465 (alteration in original).

20 Id. (citation omitted).

21 AA Med. P.C. v. Almansoori, 2023 U.S. Dist. LEXIS 207487, *26 (E.D.N.Y. 2023); UrthTech LLC v. GOJO Indus., 2023 U.S. Dist. LEXIS 125555 (S.D.N.Y. 2023); Beijing Neu Cloud Oriental Sys. Tech. Co. v. IBM, 2022 U.S. Dist. LEXIS 54348, *10 (S.D.N.Y. 2022); Altman Stage Light, Inc. v. Smith, 2022 U.S. Dist. LEXIS 22699 at *11 (S.D.N.Y. 2022) (examples of cases where plaintiffs’ claims were dismissed because of failure to meet this standard).

22 Core SWX, LLC v. Vitec Grp. US Holdings, Inc., 2022 U.S. Dist. LEXIS 125198, at *13 (E.D.N.Y. 2022) (citations omitted). 

Other Blog Posts

Subscribe to Our Newsletter
Click here to subscribe to our newsletter.