2020 Georgia Code
Title 10 - Commerce and Trade
Chapter 1 - Selling and Other Trade Practices
Article 27 - Trade Secrets
§ 10-1-761. Definitions
As used in this article, the term:
- "Improper means" includes theft, bribery, misrepresentation, breach or inducement of a breach of a confidential relationship or other duty to maintain secrecy or limit use, or espionage through electronic or other means. Reverse engineering of a trade secret not acquired by misappropriation or independent development shall not be considered improper means.
- "Misappropriation" means:
- Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or
- Disclosure or use of a trade secret of another without express or implied consent by a person who:
- Used improper means to acquire knowledge of a trade secret;
- At the time of disclosure or use, knew or had reason to know that knowledge of the trade secret was:
- Derived from or through a person who had utilized improper means to acquire it;
- Acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or
- Derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or
- Before a material change of position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake.
- "Person" means a natural person, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision or agency, or any other for profit or not for profit legal or commercial entity.
- "Trade secret" means information, without regard to form, including, but not limited to, technical or nontechnical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial plans, product plans, or a list of actual or potential customers or suppliers which is not commonly known by or available to the public and which information:
- Derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and
- Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
(Code 1981, §10-1-761, enacted by Ga. L. 1990, p. 1560, § 1; Ga. L. 1996, p. 894, § 1.)Law reviews.
- For article, "Application of the 'Inevitable Disclosure' Doctrine in Georgia," see 4 Ga. St. B. J. 58 (1999). For survey article on labor and employment law, see 59 Mercer L. Rev. 233 (2007). For article, "Must Government Contractors 'Submit' to Their Own Destruction?: Georgia's Trade Secret Disclosure Exemption and United HealthCare of Georgia, Inc. v. Georgia Department of Community Health," see 60 Mercer L. Rev. 825 (2009). For article, "Avoiding the Potholes: A Roadmap for Intellectual Property Due Diligence in Business Transactions," see 14 Ga. St. B. J. 17 (2008). For article, "Keeping Your Genies in the Bottle: 10 Steps to Protect Your Most Sensitive Secrets," see 14 Ga. St. B. J. 32 (2008). For annual survey of labor and employment law, see 61 Mercer L. Rev. 213 (2009). For article, "Eleventh Circuit Survey: January 1, 2013 - December 31, 2013: Article: Intellectual Property," see 65 Emory L. J. 1049 (2014).JUDICIAL DECISIONS
- General Consideration
Tangible form of property not required.
- In order to be considered "property," an employer's customer list had to be in tangible form to be protected under the Georgia Trade Secrets Act (GTSA), O.C.G.A. § 10-1-760 et seq.; by contrast, the employer's trade secrets were already considered the employer's property; if the employer could show that it was otherwise entitled to protection under the GTSA when its employee began working for a competitor, unless it was complaining of misappropriation of a customer list, Georgia law did not require that the trade secret be in tangible form and, moreover, even without a valid written contract or written covenant, the employee was required to refrain from disclosing the employer's trade secrets. Diamond Power Int'l, Inc. v. Clyde Bergemann, Inc., F. Supp. 2d (N.D. Ga. Jan. 5, 2005).
Trade secrets need not be in the form of written data to warrant protection, but Georgia law generally does not prevent a departing employee from using the skills and information the employee acquired at work. Servicetrends, Inc. v. Siemens Medical Sys., 870 F. Supp. 1042 (N.D. Ga. 1994).Inevitable disclosure doctrine.
- Inevitable disclosure doctrine is not an independent claim under which a trial court may enjoin an employee from working for an employer or disclosing trade secrets. Holton v. Physician Oncology Servs., LP, 292 Ga. 864, 742 S.E.2d 702 (2013).
Cited in Taylor & Rozier, Inc. v. Anderson, 211 Ga. App. 897, 440 S.E.2d 767 (1994); Atlanta Bread Co. Int'l, Inc. v. Lupton-Smith, 292 Ga. App. 14, 663 S.E.2d 743 (2008).
"Trade secret" standard satisfied.
- When a marketing company presented a packaging idea to a beverage manufacturer, requiring that the secrecy of the idea be maintained, the idea was a trade secret, under O.C.G.A. § 10-1-761(4), because aspects of it were not publicly available, it had economic value, as another manufacturer sought a licensing agreement, and reasonable efforts were made to maintain its secrecy. Penalty Kick Mgmt. v. Coca Cola Co., 318 F.3d 1284 (11th Cir. 2003).
Given the highly competitive nature of the asphalt industry in the State of Georgia, the trial court did not err in permanently enjoining the DOT from giving unredacted copies of documents, which contained trade secrets and confidential technical specifications relating to the mix design, to a competitor of a group of contractors; further, the public could ascertain whether a contractor's asphalt product met DOT requirements by examining information on the forms, which was not included in the trial court's injunction, and the records did not fall within the exception to Open Records Act disclosure because the contractors were not required by law to submit the information to the DOT. Douglas Asphalt Co. v. E. R. Snell Contr., Inc., 282 Ga. App. 546, 639 S.E.2d 372 (2006), cert. denied, 2007 Ga. LEXIS 140 (2007).Failure to provide discoverable information.
- Summary judgment was unwarranted on the misappropriation of trade secrets and unfair trade practices claims under Georgia statutory and common law because defendant software developer failed to timely provide the plaintiff software developer with discoverable information about the PA system and, therefore, the court should not say that genuine issues of material fact did not exist. TDS Healthcare Sys. Corp. v. Humana Hosp. Ill., Inc., 880 F. Supp. 1572 (N.D. Ga. 1995).Expert testimony on closely guarded information.
- When the plaintiff presented expert testimony showing that the disputed information was closely guarded in the hotel industry and that to the extent the information was disclosed, it was done so on the express condition that it would not be made public, enough evidence existed to allow a reasonable jury to find in its favor, and summary judgment in favor of the defendant should have been denied. Camp Creek Hospitality v. Sheraton Franchise, 139 F.3d 1396 (11th Cir. 1998).Inadequate evidence of trade secrets violation.
- Claim for misappropriation of trade secrets could not withstand summary judgment because the plaintiff had not presented evidence that the competitor misappropriated the plaintiff's trade secrets by obtaining the trade secrets through improper means, and by using a substantial portion of the trade secrets to create a product that was substantially derived from the plaintiff's trade secrets. Some of the claimed "trade secrets," including camera names and images taken from cameras, were patently frivolous, and no evidence supported the claims that the information gathered in 2006 derived economic value from being a secret not readily ascertainable by proper means. EarthCam, Inc. v. OxBlue Corp., F. Supp. 2d (N.D. Ga. Sept. 22, 2014).
- Computer software programs are trade secrets if the requirements of paragraphs (4)(A) and (4)(B) of O.C.G.A. § 10-1-761 are met. CMAX/Cleveland, Inc. v. UCR, Inc., 804 F. Supp. 337 (M.D. Ga. 1992).
Despite a corporation incorporator's testimony that there was "probably nothing" the corporation had which derived its competitive value from not being generally known and not being readily ascertainable by proper means, sufficient evidence was presented from which a jury could find that the computer software the corporation's president developed for the corporation satisfied the definition of a trade secret under the Georgia Trade Secrets Act of 1990, O.C.G.A. § 10-1-760 et seq., to withstand a motion for summary judgment. Insight Tech., Inc. v. FreightCheck, LLC, 280 Ga. App. 19, 633 S.E.2d 373 (2006).
In a suit alleging misappropriation of trade secrets, a software developer's claims that a subsequent provider of services to the client for whom the software was developed violated the Georgia Trade Secrets Act, O.C.G.A. § 10-1-76, by using software given to it by the client after the client ended the software purchasing and servicing relationship with the developer were properly dismissed; the complaint provided no facts from which it could be inferred that the subsequent servicer knew or should have known that the client had misappropriated the developer's trade secrets. S. Nuclear Operating Co. v. Elec. Data Sys. Corp., F.3d (11th Cir. Apr. 14, 2008)(Unpublished).
Package-tracking software program was not a misappropriated trade secret since dissemination of the program to authorized users necessarily revealed the program's features and functions which were alleged to be secret, there was no written confidentiality agreement, and efforts to maintain secrecy were not reasonable under the circumstances. Warehouse Solutions, Inc. v. Integrated Logistics, LLC, F.3d (11th Cir. May 8, 2015)(Unpublished).
Software developers were not entitled to summary judgment on joint venturers'/investors' claim for misappropriation of trade secrets because there was evidence that the developers improperly retained and failed to return the software after the parties' venture wound up. Healthy-IT, LLC v. Agrawal, 343 Ga. App. 660, 808 S.E.2d 876 (2017).Customer lists.
- Because purported customer lists sought to be protected consisted of information a former employee had in the employee's memory about nurses and health facilities with which the employer contracted during the period the employer employed the employee, and because there was no evidence the employer made reasonable efforts to maintain the confidentiality of the information the employer sought to protect, the information was not a "trade secret" within the meaning of the Georgia Trade Secrets Act (GTSA), O.C.G.A. § 10-1-760 et seq., for the purposes of determining whether an interlocutory injunction was appropriate. Smith v. Mid-State Nurses, Inc., 261 Ga. 208, 403 S.E.2d 789 (1991).
Lists containing the identities of and specific information concerning actual customers of companies were "trade secrets." Avnet, Inc. v. Wyle Lab., Inc., 263 Ga. 615, 437 S.E.2d 302 (1993).
Information contained in a customer list that was readily obtainable by proper means was not a trade secret. Leo Publications, Inc. v. Reid, 265 Ga. 561, 458 S.E.2d 651 (1995).
Tangible customer lists are the property of the employer and warrant protection as trade secrets. Leo Publications, Inc. v. Reid, 265 Ga. 561, 458 S.E.2d 651 (1995).
Only information that may be protected under the Georgia Trade Secrets Act, O.C.G.A. § 10-1-760 et seq., is an actual tangible customer list. AmeriGas Propane, L.P. v. T-Bo Propane, Inc., 972 F. Supp. 685 (S.D. Ga. 1997).
When a car repair company took no precautions to maintain the confidentiality of the company's customer list, which was on computers that were not password protected, the same information in those lists was available to technicians through repair orders that the technicians were permitted to retain indefinitely, and employees were not informed that the information was confidential, such customer lists were not trade secrets. Bacon v. Volvo Serv. Ctr., Inc., 266 Ga. App. 543, 597 S.E.2d 440 (2004).
There was a genuine issue of fact as to whether a former employee had misappropriated trade secrets as defined by O.C.G.A. § 10-1-761; tangible customer lists could warrant protection as trade secrets, and the employee had signed an agreement to keep customer lists confidential, the employee took an organizer containing contact information for customers when the employee resigned, and the employee used the organizer to look up phone numbers after the employee's resignation. Hilb, Rogal & Hamilton Co. of Atlanta, Inc. v. Holley, 284 Ga. App. 591, 644 S.E.2d 862 (2007).
Because a doctor's patient list was not a trade secret within the meaning of the Georgia Trade Secrets Act, O.C.G.A. § 10-1-761(4)(A), and because an attorney the doctor sued for misappropriation was not in the same industry as the doctor, the attorney's possession of the list did not reduce the doctor's competitive advantage in the field, which was the main purpose of protecting a trade secret; thus, the attorney was entitled to summary judgment on the doctor's claim of misappropriation. Vito v. Inman, 286 Ga. App. 646, 649 S.E.2d 753 (2007), cert. denied, 2007 Ga. LEXIS 770 (Ga. 2007).
Home healthcare and hospice services provider satisfied the provider's burden of establishing that the provider's referral log and workbook containing doctor referral statistics constituted trade secrets under O.C.G.A. § 10-1-761(4) since the documents contained valuable, proprietary information uniquely known to the provider, the information was not publicly available, the information, which the provider collected, evaluated, analyzed, and arranged, enabled the provider's employees to make informed, fact-based decisions on where to focus their business solicitation efforts, and the provider undertook reasonable efforts to maintain the confidentiality of the documents. Amedisys Holding, LLC v. Interim Healthcare of Atlanta, Inc., 793 F. Supp. 2d 1302 (N.D. Ga. 2011).
Because the real estate partnerships failed to demonstrate that the partnerships derived economic value from the secrecy of their investor lists in accordance with O.C.G.A. § 10-1-761(4)(A), the lists did not constitute a trade secret; accordingly, the trial court erred by granting summary judgment to the partnerships and denying an investment manager's motion. Sutter Capital Mgmt., LLC v. Wells Capital, Inc., 310 Ga. App. 831, 714 S.E.2d 393 (2011).Customer database.
- Although the trial court erred by enforcing a restrictive covenant in a former office manager's employment contract since the contract was unenforceable as overbroad because the contract failed to properly limit the territory to which the contract applied, the trial court properly held that the former employer's customer database constituted a trade secret under O.C.G.A. § 10-1-761(4); there was sufficient evidence that the former employer made a reasonable effort to maintain the secrecy of the database by not publishing the database, having established company-wide policies to protect that information from disclosure to third-parties, by counseling company employees regarding those policies, and by limiting access to the database. Paramount Tax & Accounting, LLC v. H & R Block Eastern Enters., 299 Ga. App. 596, 683 S.E.2d 141 (2009).Drawings.
- Trial court manifestly abused the court's discretion when the court granted equitable relief to a limited liability company (LLC) because there was no finding that the drawings a company used were trade secrets as defined by the Georgia Trade Secrets Act (GTSA), O.C.G.A. § 10-1-761, and by using O.C.G.A. § 9-5-1 to provide the LLC the same relief based on the same allegations it would have received had the drawings qualified as trade secrets, the trial court undermined the exclusivity of the GTSA; the key inquiry was whether the same factual allegations of misappropriation were being used to obtain relief outside the GTSA, and since the trial court's award of general equitable relief under O.C.G.A. § 9-5-1 was based on the same conduct as the GTSA claim, i.e., the misappropriation of the drawings, such relief was preempted by O.C.G.A. § 10-1-767(a). Robbins v. Supermarket Equip. Sales, LLC, 290 Ga. 462, 722 S.E.2d 55 (2012).Distribution of information outside company.
- Former employee was not guilty of misappropriation of trade secrets and confidential information where it was shown that the allegedly confidential technical data provided to the employee was also distributed to the company's customers which removed any legal protection it might otherwise have had as trade secrets. Servicetrends, Inc. v. Siemens Medical Sys., 870 F. Supp. 1042 (N.D. Ga. 1994).
Manufacturer of a boiler cleaner system was denied a preliminary injunction against a competitor's marketing of a similar product because the manufacturer failed to show it was likely to prevail on a misappropriation of trade secret charge under O.C.G.A. § 10-1-761; the manufacturer could not establish the existence of a trade secret because the product at issue had been sold to the public and was not subject to reasonable efforts to maintain secrecy. Diamond Power Int'l, Inc. v. Clyde Bergemann, Inc., 370 F. Supp. 2d 1339 (N.D. Ga. 2005).Prohibition on former employee working as executive.
- Trial court erred, in part, by ordering an interlocutory injunction prohibiting a former employee from working in an executive capacity for a particular competitor of the former employer for one year based on the inevitable disclosure doctrine because a stand-alone claim under the doctrine, untethered from the provisions of Georgia's trade secret statute, O.C.G.A. § 10-1-760 et seq., was not cognizable in Georgia. Holton v. Physician Oncology Servs., LP, 292 Ga. 864, 742 S.E.2d 702 (2013).
When automobile title loan companies competed for customers, and the plaintiffs sued the defendants, the laws of trespass and trade secrets (at least in Georgia) did not support the scope of the nationwide interlocutory injunction because, to the extent the defendants were collecting information about the plaintiffs' customers in parking lots or using that information to search databases of motor vehicles was based on a finding that the identities of the plaintiffs' customers were trade secrets, which they were not, the injunction could not be sustained. TMX Fin. Holdings, Inc. v. Drummond Fin. Servs., LLC, 300 Ga. 835, 797 S.E.2d 842 (2017).
When automobile title loan companies competed for customers, and the plaintiffs sued the defendants, the laws of trespass and trade secrets (at least in Georgia) did not support the scope of the nationwide interlocutory injunction because the plaintiffs had not claimed that the defendants had taken a tangible list of the plaintiffs' customers but rather that the defendants had searched databases of motor vehicles to determine which vehicles had liens held by the plaintiffs, and while such actions might be unlawful under the Driver's Privacy Protection Act, 18 U.S.C. § 2721 et seq., or otherwise, the actions did not constitute a misappropriation of trade secrets in Georgia. TMX Fin. Holdings, Inc. v. Drummond Fin. Servs., LLC, 300 Ga. 835, 797 S.E.2d 842 (2017).Lease documents.
- When a former employee testified to taking files containing lease documents from the employer with the intent of using the leases to further the former employee's own business, the trial court did not err in finding a genuine issue of material fact as to whether the former employee misappropriated trade secrets and improperly used confidential information. Kuehn v. Selton & Assocs., 242 Ga. App. 662, 530 S.E.2d 787 (2000).Names.
- If the idea for the geographically descriptive name of a proposed publication was not novel or original, the name was not worthy of protection as a trade secret. Leo Publications, Inc. v. Reid, 265 Ga. 561, 458 S.E.2d 651 (1995).List of cities for new franchises.
- Names of cities which a franchisor considered good candidates for new franchises could not be considered trade secrets. Allen v. Hub Cap Heaven, Inc., 225 Ga. App. 533, 484 S.E.2d 259 (1997).
Particularized information about a logistics system learned by an employee through the employee's position of trust with the company that developed the system was a trade secret. Essex Group, Inc. v. Southwire Co., 269 Ga. 553, 501 S.E.2d 501 (1998).Personal knowledge.
- Former employee's personal knowledge of the employer's customer information was not a "trade secret." Avnet, Inc. v. Wyle Lab., Inc., 263 Ga. 615, 437 S.E.2d 302 (1993).
Injunction prohibiting solicitation and sale to customers that the defendant company knew or had reason to know were the plaintiff company's customers during former employee's employment with the plaintiff and prohibiting contact with any vendor on any list obtained from the plaintiff effectively enjoined the defendant from utilizing personal knowledge of customer and vendor information and was overbroad. DeGiorgio v. Megabyte Int'l, Inc., 266 Ga. 539, 468 S.E.2d 367 (1996).
In an annuity company's suit alleging that two former employees violated restrictive covenants of nondisclosure of trade secrets and confidential information and nonsolicitation, the employees' personal knowledge of the company's customers, as well as account information contained in the employees' day planners, both of which the employees used to take business from the company, constituted trade secrets under O.C.G.A. § 10-1-761(4). Variable Annuity Life Ins. Co. v. Joiner, 454 F. Supp. 2d 1297 (S.D. Ga. 2006).Trade secrets protected under Open Records Act.
- Since a company made reasonable efforts to protect the dissemination of trade secret information except for providing the information to the Environmental Protection Division (EPD) of the Georgia Department of Natural Resources, trade secret status was not lost simply because the company did not notify the EPD each time that the company provided the EPD with information containing trade secrets. Theragenics Corp. v. Department of Natural Resources, 244 Ga. App. 829, 536 S.E.2d 613 (2000), aff'd, Theragenics Corp. v. Georgia Dep't of Natural Res., 273 Ga. 724, 545 S.E.2d 904 (2001).Factual issues disputed in restrictive convenant contract action.
- In an agent's suit against an insurance company seeking to invalidate restrictive covenants in an agreement to sell insurance products, the court held that the trial court properly denied the agent's motion for judgment on the pleadings as to a confidential and proprietary information provision because it could not be said as a matter of law that the information defined as such did not constitute a trade secret or merely confidential information relating to the company's business. Holland Ins. Group, LLC v. Senior Life Ins. Co., 329 Ga. App. 834, 766 S.E.2d 187 (2014).Confidentiality agreements not sufficient.
- Requiring employees to sign confidentiality agreements was not a reasonable step to maintain the secrecy of computer software because the employees were transferred to work for a competitor on projects involving use of the software without instructions as to the confidentiality of documentation on the projects. Stargate Software Int'l, Inc. v. Rumph, 224 Ga. App. 873, 482 S.E.2d 498 (1997).
Plaintiff former employer's Georgia Trade Secrets Act, O.C.G.A. § 10-1-760 et seq., claim against the defendants, a former employee and a competitor, failed as to items the employer distributed to the employer's representatives for use at customer sites, without confidentiality markings or copying protection, as those items were not trade secrets under O.C.G.A. § 10-1-761(4) and a general confidentiality agreement the employer required the employees to sign did not create trade secrets in those items. Diamond Power Int'l, Inc. v. Davidson, 540 F. Supp. 2d 1322 (N.D. Ga. 2007)."Misappropriation."
- When a marketing company presented a packaging idea to a beverage manufacturer, requiring that the secrecy of the idea be maintained, and the manufacturer then asked another company to design a similar concept, the evidence did not show misappropriation by the manufacturer, under O.C.G.A. § 10-1-761(2), because all of the other company's production elements were different from the marketing company's idea, and the concept elements had been presented to the manufacturer by a fourth company, as a result of which the manufacturer legally owned those elements, which were also in the public domain, having been the subject of a fifth company's patent application. Penalty Kick Mgmt. v. Coca Cola Co., 318 F.3d 1284 (11th Cir. 2003).
Considering the definition of "misappropriation" in O.C.G.A. § 10-1-761(2) in a motion for a preliminary injunction, an employer could show misappropriation by a competitor through acquisition, disclosure, or use of the employer's trade secrets by the competitor hiring one of the employer's former employees. Diamond Power Int'l, Inc. v. Clyde Bergemann, Inc., F. Supp. 2d (N.D. Ga. Jan. 5, 2005).Disclosure
- Record showed defendant competitor's officer sent an e-mail to the officer's superiors speculating on plaintiff former employer's product design, then, the next day, after having lunch with the other defendant, the employer's former employee, the officer knew of the product's inner structure, components, and service history, and the competitor previously failed in an attempt to reverse engineer the product, a question of fact existed concerning whether the employee "disclosed" the employer's trade secrets in violation of O.C.G.A. § 10-1-761(2)(B)(ii)(II). Diamond Power Int'l, Inc. v. Davidson, 540 F. Supp. 2d 1322 (N.D. Ga. 2007).
Former employee misappropriated a home healthcare and hospice services provider's trade secrets when the employee sent the referral logs to the employee's personal email account when, based on the timing of the transmission, the employee did not need the referral log information to complete a task for the provider's supervisor; the employee's testimony to the contrary was untruthful. Amedisys Holding, LLC v. Interim Healthcare of Atlanta, Inc., 793 F. Supp. 2d 1302 (N.D. Ga. 2011).
Former employee had not misappropriated a home healthcare and hospice services provider's trade secrets after the employee's credible testimony established that the employee inadvertently failed to return a workbook after leaving the provider and did not, and had no intent to, use the workbook to compete against the provider. Amedisys Holding, LLC v. Interim Healthcare of Atlanta, Inc., 793 F. Supp. 2d 1302 (N.D. Ga. 2011).
Former employer's misappropriation of trade secrets claim failed because the former employer presented only circumstantial evidence to support the employer's allegation that the former employee disclosed or used the employer's trade secrets, while the employee testified unequivocally that the employee did not use or disclose any trade secrets and presented evidence showing how the employee's new company could have independently bid upon the jobs at issue. Contract Furniture Refinishing & Maint. Corp. v. Remanufacturing & Design Group, LLC, 317 Ga. App. 47, 730 S.E.2d 708 (2012).Pricing data of bidder.
- Bidder on a public project failed to provide any evidence to support the bidder's claim that the detailed pricing information in the bidder's unredacted price proposal would enable a competitor to deduce how the bidder designed the bidder's systems and, therefore, merited protection under the trade secrets exemption to the Open Records Act, O.C.G.A. § 50-18-72(b)(1). State Rd. & Tollway Auth. v. Elec. Transaction Consultants Corp., 306 Ga. App. 487, 702 S.E.2d 486 (2010).Misuse of information by franchisor.
- In an action by a franchisee against a franchisor, evidence that the franchisor misused information acquired from the franchisee by legitimate means precluded summary judgment. Camp Creek Hospitality Inns, Inc. v. Sheraton Franchise Corp., 130 F.3d 1009 (11th Cir. 1997), modified on other grounds, 139 F.3d 1396 (11th Cir. 1998).