Judge Gorton Pares Claims in Trade Secret Dispute

In this Lanham Act / trade secret case pitting a former employer against its ex-employee and his new company, the defendants moved to dismiss three counts of the complaint.  Judge Gorton allowed the motion with respect to one claim and denied it with respect to two others.

Pullen, the employee in question, served for two years as the plaintiff's VP of North American Sales.  The plaintiff alleges that for eight months he stole thousands of computer files before jumping ship. 

Judge Gorton dismissed a claim against the former employee under Massachusetts' consumer protection statute (93A) because the employee / employer relationship is private in nature and does not occur "in trade or commerce."  However he refused to dismiss a similar claim against the new company since that dispute "falls squarely within the realm of 'trade or commerce.' " 

Judge Gorton also refused to dismiss a claim under the Computer Fraud and Abuse Act (18 U.S.C. § 1030(a)(4)) finding that the pleadings are sufficient to allege that the employee used proprietary information "without authorization" even though he may have been an employee at the time of the alleged file copying.

http://pacer.mad.uscourts.gov/dc/cgi-bin/recentops.pl?filename=gorton/pdf/guest-tek%20mo%20dismiss%20m-o.pdf

Guest-Tek Interactive Entm't, Inc. v. Pullen and PureHD, Ltd., 09-11164-NMG (D. Mass.  Oct. 19, 2009)