Before this week, I had never thought much about trade-secrets issues intersecting with the First Amendment. But then I read the complaint in a lawsuit filed by hedge fund Greenlight Capital Inc. against the owner of a website called seekingalpha.com, which published a post disclosing Greenlight’s then-confidential investment strategy. The suit seeks to compel the website owner to disclose the writer’s identity so that Greenlight can sue for trade-secret misappropriation. A copy of the complaint is linked below.
Greenlight Capital, led by David Einhorn, is a hedge fund whose “activity in the investment markets is well known and closely watched by other traders and investment advisors.” In the complaint, Greenlight describes how it develops its investment strategies “at considerable expense,” and how it must keep this information confidential, since disclosure of its investment strategies could move the market.
In November 2013, Greenlight was building an equity position in Micron Technologies. This information was not public knowledge. On November 14, 2013, a writer on the seekingalpha.com website, writing under a pseudonym, disclosed Greenlight’s intentions regarding Micron. As a result, Micron’s share prices rose immediately. Greenlight now needs the writer’s identity, so that it can sue him or her for misappropriating trade secrets.
In a New York Times article discussing this lawsuit, high-profile First Amendment lawyer Floyd Abrams offered thoughts on how the suit implicated constitutional issues:
Floyd Abrams, a First Amendment lawyer with Cahill Gordon & Reindel, said there might be reasons for a judge to compel an anonymous blogger to be identified in a libel case. But he said there weren’t many good reasons for doing so in what would appear to be a largely commercial dispute. “There is a serious First Amendment issue here,” Mr. Abrams said. “He will have a pretty tough job persuading a judge.”
While Floyd Abrams has forgotten more about the First Amendment than I’ve ever known, his position strikes me as off point. Laws prohibiting trade-secret misappropriation by definition restrict speech. Essentially, the Uniform Trade Secrets Act* recognizes that, for example, if you obtain a trade secret you know was acquired by improper means, you are not permitted to disclose that information. Allowing someone to hide behind an online pseudonym could render these laws ineffective.
There are other interesting issues in this case. For example, Greenlight says it takes the following measures to protect this confidential information:
Greenlight’s employees are required pursuant to both firm policy and their employment agreements to keep information regarding Greenlight’s non-public investment strategies confidential. In addition, Greenlight’s prime brokers and custodians are required by confidentiality agreements and other duties to Greenlight to keep non-public information concerning Greenlight’s securities positions confidential.
Later, it notes that at the time seekingalpha.com published the post, “the only persons who lawfully possessed information regarding Greenlight’s position in Micron were persons with a contractual, fiduciary, or other duty to maintain the confidentiality of Greenlight’s position: Greenlight’s employees, counsel, prime and executing brokers and other agents.”
It’s not possible to tell from the complaint whether all of Greenlight’s employees, brokers, and agents are required to sign a confidentiality agreement. If not, Greenlight has a major gap in its confidentiality protections that could undermine its misappropriation claims — the defendant could argue that Greenlight did not reasonably protect its proprietary information. As I’ve discussed often before, it is critical to make sure that all employees, vendors, etc. with access to confidential or proprietary information sign agreements that, at a minimum, require them to keep this information confidential.
*Greenlight filed the case in New York, which is one of the few states that has not adopted some form of the UTSA.