Invesco Institutional (N.A.), Inc. v Deutsche Inv. Mgt. Ams., Inc.

Invesco Inst. (N.A.), Inc. v Deutsche Inv. Mgt. Ams., Inc. 2010 NY Slip Op 05701 [74 AD3d 696] June 29, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 25, 2010

Invesco Institutional (N.A.), Inc., Respondent,
v
Deutsche Investment Management Americas, Inc., Appellant, et al., Defendants.

—[*1] Baker & Hostetler LLP, New York (John Siegal of counsel), for appellant.

Alston & Bird LLP, New York (John F. Cambria of counsel), for respondent.

Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered November 2, 2009, which, after a hearing, granted plaintiff's motion for a preliminary injunction as to that portion of the action asserting a claim for misappropriation of trade secrets in connection with certain software tools, unanimously affirmed, with costs.

Plaintiff met its burden for the grant of a preliminary injunction by demonstrating (1) a likelihood of ultimate success on the merits; (2) the prospect of irreparable injury if the provisional relief is withheld; and (3) a balance of the equities in its favor (Doe v Axelrod, 73 NY2d 748, 750 [1988]). Based upon the submissions and hearing testimony, particularly from plaintiff's expert witnesses, the court properly found that plaintiff had a protectable trade secret in the proprietary nature of its Q-Tech, Alpha Sources and PIT software and database structure (see Ashland Mgt. v Janien, 82 NY2d 395, 407 [1993]).

Although irreparable injury cannot be presumed (see Faiveley Transp. Malmo AB v Wabtec Corp., 559 F3d 110, 118 [2d Cir 2009]), it may be established "where there is a danger that, unless enjoined, a misappropriator of trade secrets will disseminate those secrets to a wider audience or otherwise irreparably impair the value of those secrets" (id.). Here, the court properly determined that plaintiff demonstrated that, without a preliminary injunction barring appellant from the continued use of its trade secrets, plaintiff "would likely sustain a loss of business impossible, or very difficult, to quantify" (Willis of N.Y. v DeFelice, 299 AD2d 240, 242 [2002]). [*2]

We have considered appellant's remaining arguments, including that the balance of the equities tipped in its favor, and find them unavailing. Concur—Andrias, J.P., Saxe, Friedman, Nardelli and Acosta, JJ.