Kansas Supreme Court - 99536 – Wolfe Electric, Inc. v. Duckworth

(1) Contractual remedies, whether or not based upon misappropriation of a trade
secret;
(2) other civil remedies that are not based upon misappropriation of a trade secret;
or
(3) criminal remedies, whether or not based upon misappropriation of a trade
secret." (Emphasis added.)
According to one commentator, "[t]he drafters [of Section 7 of the Uniform Trade
Secrets Act, identical to K.S.A. 60-3326] explicitly abrogate other civil remedies based on
misappropriation of a defined trade secret and, among the courts, there seems to be little
dispute that the UTSA did, in fact, intend to abrogate other civil remedies when a claim
involves misappropriation of a trade secret." Comment, I Have a Secret?: Applying the
Uniform Trade Secrets Act to Confidential Information That Does Not Rise to the Level of
Trade Secret Status, 12 Marq. Intell. Prop. L. Rev. 359, 367 (Summer 2008); see, e.g.,
BlueEarth Biofuels v. Hawaiian Elec. Co., 123 Hawaii 314, 318, 235 P.3d 310 (2010)
(stating that "[c]ourts that have considered the UTSA's preemption provision have
'uniformly interpreted [it] to preempt previously existing misappropriation of trade secret
actions, whether statutory or common law' [Citations omitted.]").
That said, we now provide guidance on remand. Defendants frame their appellate
argument as trial court error for not granting their motions for judgment as a matter of law,
not for giving erroneous jury instructions. Nevertheless, Instruction 3 improperly informed
the jury that Wolfe Electric could, and did, allege Duckworth breached his fiduciary duty
and caused damages by:
"1) using or attempting to use Wolfe Electric's trade secrets and confidential
information to develop, manufacture and sell conveyor pizza ovens;
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