Larry E. Clark v. Berkeley L. Bunker

This is an appeal from a judgment in a diversity action awarding damages against appellants for the misappropriation of appellee’s trade secret, consisting of a detailed plan for the creation, promotion, financing, and sale of contracts for “prepaid” or “pre-need” funeral services.

The trial court rested liability upon the legal conclusion that “[sjince Defendant, Berkeley L. Bunker, appropriated and put to use Plaintiff’s plan in breach of the confidential relationship existing between the parties, Plaintiff is entitled to an accounting of profits and to damages.” Appellants concede that use of the trade secret of another, conveyed in confidence, may be actionable, but raise a number of objections to the application of this principle to the present case, and to the award of damages.

1. Appellants contend that appellee’s plan consisted of legal forms, advertising methods, and sales techniques not protectable as a trade secret under Baker v. Selden, 101 U.S. 99 , 25 L.Ed. 841 (1879); Reynolds & Reynolds Co. v. Norick, 114 F.2d 278 (10th Cir. 1940); Hamilton Manufacturing Co. v. Tubbs Manufacturing Co., 216 F. 401 (W.D.Mich.1908); Continental Casualty Co. v. Beardsley, 151 F.Supp.…