ALLEN v. AMERICAN COMMERCIAL BARGE LINE

Filing 89

ORDER - 64 Defendant's Motion for Summary Judgment; 77 Defendant's Motion for Summary Judgment are GRANTED. 69 Plaintiff's Motion for Summary Judgment is DENIED. The case shall proceed accordingly. (See Order). Signed by Judge Sarah Evans Barker on 9/20/2019. (TMC)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION
TIM ALLEN,

)
)
Plaintiff,
)
)
v.
)
)
AMERICAN COMMERCIAL BARGE LINE )
LLC,
)
)
Defendant.
)
)
)
AMERICAN COMMERCIAL BARGE LINE )
LLC,
)
)
Counter Claimant,
)
)
v.
)
)
TIM ALLEN,
)
)
Counter Defendant. )

No. 4:17-cv-00222-SEB-DML

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
This cause is now before the Court on (1) the Motion for Summary Judgment
[Dkt. 64] and Supplemental Motion for Summary Judgment on Conversion Claim [Dkt.
77] filed by Defendant and (2) Counter Claimant American Commercial Barge Line
LLC 1 (“ACBL”) and the Motion for Summary Judgment [Dkt. 69] filed by Plaintiff Tim

1

Defendant is named in the caption as “American Commercial Barge Line, LLC,” but has
informed the Court that there should not be a comma within the entity’s name. Accordingly,
Defendant’s name is changed to “American Commercial Barge Line LLC” in the caption and on
any future filings.
1

Allen. Mr. Allen brought this lawsuit against ACBL, his former employer, alleging
various state law claims, including claims for breach of contract (Count I), defamation
(Count II), and conversion (Count III). 2 ACBL has filed a counterclaim for breach of
contract (Count I), trade secret misappropriation under the Indiana Trade Secrets Act
(“IUTSA”) (Count II), tortious interference with contract (Count III), and declaratory
judgment (Count IV) against Mr. Allen. We have jurisdiction under diversity of
citizenship. 28 U.S.C. § 1332(a)(1) (diversity jurisdiction exists “where the matter in
controversy exceeds … $75,000, exclusive of interests and costs, and is between …
citizens of different States”).
ACBL seeks summary judgment in its favor on all of Mr. Allen’s claims as well as
on Count I of its counterclaim for breach of contract. Mr. Allen, in turn, has moved for
partial summary judgment on his breach of contract claim as well as on Counts I and II of
ACBL’s counterclaim for breach of contract and trade secret misappropriation. For the
reasons detailed below, we GRANT ACBL’s Motions and DENY Mr. Allen’s Motion.
Factual Background
Mr. Allen was employed by ACBL on two separate occasions. From 1987 to
1993, he worked as a sales representative in ACBL’s liquid sales department. Then, from
2005 to 2016, Mr. Allen worked for ACBL as Director of Liquid Sales and Vice
President of Liquid Sales, both of which are senior management positions. During his

2

We previously dismissed Mr. Allen’s claim brought pursuant to the Indiana Wage Payment
Statute.
2

employment with ACBL, he sold barge transportation services and directed the
negotiation of thousands of contracts as the head of an eight-member team.
The ACBL-Statoil Negotiations
In early 2015, Mr. Allen represented ACBL throughout ninety days of
negotiations for a master service agreement with energy company Statoil Marketing &
Trading (US) Inc. (“Statoil”). Those negotiations resulted in the signing of the Master
Liquid Cargo Contract between ACBL and Statoil (the “ACBL-Statoil Contract”), which
included a confidentiality provision prohibiting the disclosure to third parties of the terms
and conditions of the contract. Mr. Allen was not responsible for drafting the agreement,
but he did review and comment on the various iterations of the contract throughout the
negotiating process. According to Mr. Allen, this contract used terms and conditions
“standard in the industry that any other carrier would apply the same way.” Allen Dep. at
15.
The Parties’ Severance Agreement
On December 29, 2016, due to restructuring of ACBL’s senior staff positions, Mr.
Allen executed a Severance Agreement and Release (the “Severance Agreement”),
voluntarily terminating his employment in exchange for certain severance benefits to be
paid out over time. Specifically, pursuant to the terms of the Severance Agreement,
ACBL promised to provide Mr. Allen his normal weekly rate of pay based on his annual
salary at the time of his termination for one full year, along with any vacation and other
paid leave he had accrued. These terms were in line with ACBL’s salaried severance
policy that provides benefits based on the severed employee’s length of employment.
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As consideration for those severance benefits, Mr. Allen agreed, inter alia, to
comply with non-disclosure obligations regarding ACBL’s confidential business
information, including refraining from using or disclosing any such information and
immediately returning any property of ACBL, including confidential information, which
might subsequently come into his possession. The Severance Agreement provides that
the non-disclosure obligations do “not apply to information that is in the public domain or
that becomes part of the public domain through no fault of Employee’s.” Severance
Agreement and Release, § 5.3.6.
The Severance Agreement, defines “confidential information” as follows:
any information of any kind, nature or description concerning any matters
related to the Released Parties which are not generally known or readily
accessible to the public and which, if divulged, disclosed or otherwise
communicated to a person or entity other than the Released Parties or their
agents or employees, would be deemed by a person exercising reasonable
judgment to, or likely to, adversely impact or affect the Released Parties’
business interests or to aid or assist a competitor of the Released Parties.
Confidential information includes, but is not necessarily limited to,
information pertaining to the Released Parties’ products, services, business
procedures, marketing plans, customer lists, inventions and other
information, as well as all other trade secrets, intellectual property and
information proprietary to the Released Parties including, but not limited to,
information pertaining to strategies, finances, sales, markets, business plans
and methods, future business plans and methods, future product and
services, discounts, profit margins, wholesale prices, identities of existing
and prospective customers, suppliers and vendors of the Released Parties
(including lists thereof), and technical information pertaining to the
Released Parties’ business, products, services, manufacturing practices and
techniques, tooling, machinery, fixtures, formulas, compositions, research
and computer programs.

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Id. § 5.3.6.1. 3 The Severance Agreement further provides that “[i]nformation that
arguably meets the above description [of confidential information] shall be
deemed ‘confidential information’ under this Agreement, regardless of whether it
has been stamped, marked or otherwise expressly identified as such.” Id.
§ 5.3.6.2.
Mr. Allen admits that he read and understood these non-disclosure obligations at
the time he signed the Severance Agreement. The Severance Agreement specifically
provides that Mr. Allen’s compliance with the non-disclosure obligations is material to
ACBL’s performance of its contractual obligations. Id. § 5.3.
The Statoil-Kirby Negotiations
A few months after his departure from ACBL, Mr. Allen began working as a
broker for Omega Partners (“Omega”). His duties in that position included arranging
deals between barge carriers and customers needing commodities shipped. In this
capacity, he was approached by Kirby Inland Marine, LP (“Kirby”), one of ACBL’s
competitors, to negotiate a master service agreement with Statoil, his former ACBL
customer. It is standard in the barge industry to begin negotiations with a draft contract,
originating either from the shipper or the carrier. Kirby sent Statoil its own Master
Agreement of Affreightment as a draft to use to open negotiations. Instead of using

3

Throughout this Order, we cite to portions of the sealed Severance Agreement that are relevant
to resolving the parties’ cross motions for summary judgment. The parties too have quoted
excerpts from this sealed material in their briefing on these motions. We are not aware,
therefore, of any reason that this Order should be sealed. If the parties disagree, they should
notify the Court forthwith.
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Kirby’s draft contract, on June 21, 2017, Statoil forwarded Mr. Allen a version of the
ACBL-Statoil Contract to serve as a starting point for its negotiations with Kirby
(hereinafter, the “Statoil Draft”).
The only substantive difference between the ACBL-Statoil Contract and the
Statoil Draft sent to Mr. Allen to forward to Kirby was that ACBL’s name had been
replaced throughout the document with generic references to “Barge Company.” All of
ACBL’s contracts have distinctive formatting that distinguish them from other carriers,
including “the way the parties’ names are identified, the location of the title, the location
of the contract number, effective date sort of in a box at the beginning, [and] the order of
the sections in general.” Gallagher Dep. at 20. The Statoil Draft retained ACBL’s
formatting characteristics.
Mr. Allen had not drafted the ACBL-Statoil Contract and testified that he was
unaware of the origin of the draft Statoil sent him as it did not contain ACBL’s name nor
was ACBL’s name mentioned in the emails he received regarding the Statoil draft.
According to Mr. Allen, the Statoil draft was basically a “blank document” containing
common industry terms and conditions without any details, including names or rates, that
make a contract personal. It also did not contain a completed schedule, which is the
attachment to a standard contract that contains details unique to the parties. According to
ACBL’s agent, Robert Blocker, ACBL’s master service agreements include a variety of
general, industry-accepted terms and conditions as well as a separately attached schedule
that sets forth the particularized details of the deal that pertain to the parties involved.
The schedule contains “the commercial terms and conditions relative to the actual
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volume, rates, and the task at hand relative to the general [terms and conditions] of the
[master service agreement].” Blocker Dep. at 39. Although the majority of the details
specific to the contracting parties are set forth in the schedule, Mr. Allen testified that
certain provisions of the master service agreements, while covering standard topics in the
industry, can involve unique negotiations between the parties particularly with regard to
risk allocation, insurance, and indemnification. Allen Dep. at 44–47.
Before Mr. Allen sent the Statoil Draft to Kirby, he was assured by Statoil that its
legal group had reviewed the draft to make sure it was not a confidential document.
Based on this assurance, Mr. Allen viewed the contract given to him by Statoil only long
enough to ensure it was indeed a draft contract and not a mistakenly attached document
before forwarding it to Kirby. He admits that he also sent the same draft agreement to
representatives of Ingram and Enterprise, two other of ACBL’s competitors.
Defendant Stops Paying Plaintiff’s Severance Benefits
ACBL discovered that Statoil and Kirby were negotiating a contract in mid-July
2017 when it received an automated email alert after a Statoil agent inadvertently sent an
email to Mr. Allen’s prior ACBL email address and again in early August 2017 when Mr.
Allen inadvertently copied that same old address into an email sent to Kirby. No one
from ACBL notified Mr. Allen of the mistake in the July email. The August email
contained two paragraphs from the working draft contract between Statoil and Kirby that
Mr. Allen had forwarded without editing. Upon review of the inadvertently sent email,
ACBL General Counsel Sean Gallagher believed he recognized some of the language in

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the excerpted paragraphs, although he was not sure where the format used by ACBL
originated. ACBL did not contact Kirby or Omega for an explanation at that time.
Instead, ACBL contacted Statoil between August 7 and August 15, 2017, stating
that it was not appropriate to use the ACBL-Statoil Contract with competitors. Statoil
originally pushed back, but ultimately agreed to start over with contract negotiations and
refrain from using the Statoil Draft. On August 15, 2017, ACBL sent similar letters to
Omega and Kirby, outlining Mr. Allen’s restrictions and the unauthorized disclosure of
what ACBL considered its confidential information. There is no indication that ACBL’s
letters were distributed to any other parties. In response, Kirby’s general counsel sent a
letter to ACBL asserting that the contract at issue did not involve “confidential or
proprietary information of ACBL.” Pl.’s Exh. I. No legal action was taken by ACBL
against Statoil, Kirby, or Omega following the dissemination of these letters, and, at least
as of the time the parties’ briefing was filed, ACBL continued to maintain a business
relationship with Statoil.
ACBL’s in-house counsel also sent Mr. Allen a letter on August 15, 2017,
advising him that ACBL was aware that he had shared the ACBL-Statoil Contract with
Kirby and that it considered the unauthorized disclosure a violation of Mr. Allen’s
confidentiality obligations under the Severance Agreement. ACBL demanded that Mr.
Allen cease and desist any future violations and informed him that ACBL was “retaining
any further Severance Benefit payments as liquidated damages in accordance with
Section 5.4.2 of [the] Severance Agreement.” Def.’s Exh. 5 at 1–2.

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Once Mr. Allen learned of the similarities between the Statoil Draft and the
ACBL-Statoil Contract, he did not send the draft contract to any other entity. In response
to ACBL’s cease and desist letter, Mr. Allen sent ACBL multiple letters explaining that
he had not retained the ACBL-Statoil Contract upon his termination and did not currently
have any of ACBL’s confidential or proprietary information in his possession, but rather
that Statoil had given him the draft contract and had represented it as a document it had
permission to use. Mr. Allen informed ACBL that he had simply forwarded the draft to
Kirby on Statoil’s behalf and that he was unaware of its connection to ACBL because it
did not contain any reference to his former employer.
ACBL stopped making severance payments to Mr. Allen in August 2017 and
withheld the final five months of severance pay and benefits provided for in the
Severance Agreement.
Plaintiff’s Current Employment
Mr. Allen continues to work for Omega and no disciplinary action was taken
against him as a result of his disclosure of the ACBL-Statoil Contract. Mr. Allen also
continued his business relationships with both Statoil and Kirby and the compensation he
received based on those relationships was not impacted by ACBL’s letters to those
companies.
The Instant Litigation
On November 29, 2017, Mr. Allen filed his complaint in this action, alleging
claims for breach of contract (Count I), defamation (Count II), and conversion (Count
III). On January 17, 2018, ACBL filed a counterclaim for breach of contract (Count I),
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misappropriation of trade secrets under the Indiana Trade Secrets Act (Count II), tortious
interference with contract (Count III), and declaratory judgment (Count IV). Currently
before the Court are ACBL’s motions for summary judgment on all three counts of
Plaintiff’s complaint and its breach of contract counterclaim and Mr. Allen’s motion for
summary judgment on his breach of contract claim as well as Counts I (breach of
contract) and II (misappropriation of trade secrets) of ACBL’s counterclaim.
Legal Analysis
I.

Summary Judgment Standard
Summary judgment is appropriate where there are no genuine disputes of material

fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). A court must grant a motion for
summary judgment if it appears that no reasonable trier of fact could find in favor of the
nonmovant on the basis of the designated admissible evidence. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247–48 (1986). We neither weigh the evidence nor evaluate
the credibility of witnesses, id. at 255, but view the facts and the reasonable inferences
flowing from them in the light most favorable to the nonmovant. McConnell v. McKillip,
573 F. Supp. 2d 1090, 1097 (S.D. Ind. 2008).
Courts often confront cross-motions for summary judgment because Rules 56(a)
and (b) of the Federal Rules of Civil Procedure allow both plaintiffs and defendants to
move for such relief. “In such situations, courts must consider each party’s motion
individually to determine if that party has satisfied the summary judgment standard.”
Kohl v. Ass’n of Trial Lawyers of Am., 183 F.R.D. 475 (D.Md. 1998). Thus, in
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determining whether genuine and material factual disputes exist in this case, the Court
has considered the parties’ respective memoranda and the exhibits attached there to, and
has construed all facts and drawn all reasonably inferences therefrom in the light most
favorable to the respective non-movant. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574 (1986).
II.

Discussion
A.

Plaintiff’s Breach of Contract Claim and Defendant’s Breach of
Contract Counterclaim

Mr. Allen claims that ACBL breached the Severance Agreement by discontinuing
payment of his severance benefits after only seven of the twelve-monthly installments
provided for under the contract. ACBL rejoins that it was Mr. Allen who breached the
Severance Agreement by disclosing ACBL’s confidential information in violation of the
contract’s non-disclosure provisions, and that, by virtue of that material breach, ACBL
was entitled under the terms of the contract to discontinue payment of his severance
benefits. The parties have filed cross motions for summary judgment on both of these
claims.
The elements of a breach of contract claim under Indiana law are: (1) the existence
of a contract; (2) a breach thereof; and (3) damages resulting from the breach.
McKeighen v. Daviess Cnty. Fair Bd., 918 N.E.2d 717, 721 (Ind. Ct. App. 2009). It is
undisputed that the Severance Agreement is a valid contract, and thus, that the first
element, to wit, the existence of a contract, has been proven on both sides. We turn next
to address the issue of breach.
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ACBL admits that it discontinued its severance payments to Mr. Allen after only
seven of the twelve payments required under the Severance Agreement but argues that it
did so only because Mr. Allen breached the contract first by disclosing ACBL’s
confidential information in violation of his non-disclosure obligations under the contract.
Under Indiana law, a party who commits a material breach of contract cannot seek to
enforce such contract or otherwise maintain an action for breach against another who
subsequently refuses to perform. Titus v. Rheitone, Inc., 758 N.E.2d 85, 94 (Ind. Ct. App.
2001). Thus, the determinative issue here is whether Mr. Allen materially breached the
Severance Agreement before ACBL discontinued his severance payments. For the
reasons detailed below, we hold that he did.
The undisputed evidence establishes that the draft contract Statoil sent to Mr.
Allen—which he concedes he viewed briefly and then forwarded to Kirby as well as to
two other of ACBL’s competitors—differed from the ACBL-Statoil Contract he had
previously negotiated only in that ACBL’s name had been removed and replaced with the
generic term “Barge Company.” Mr. Allen contends that this was not a breach of his
non-disclosure obligations, however, because the draft contract did not contain
“confidential information” as defined by the Severance Agreement. Alternatively, Mr.
Allen argues that, even if the draft agreement did contain confidential information, it was
placed in the public domain through no fault of his own because he was assured by
Statoil that it was not confidential, and he acted merely as a go-between in forwarding the
draft to Kirby. We address these arguments in turn below.

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The Severance Agreement broadly defines “confidential information,” to include
“any information of any kind, nature or description concerning any matters related to
[ACBL] which are not generally known or readily accessible to the public ….”
Severance Agreement § 5.3.6.1. The Severance Agreement also identifies specific
examples of “confidential information,” including but not limited to “information
pertaining to [ACBL’s] … services, business procedures, … sales, markets, [and]
business plans and methods.” Id.
Mr. Allen argues that the draft contract he forwarded to ACBL’s competitors does
not come within this definition as it contained only “standard contract language used in
the industry.” Dkt. 73 at 14. This argument is belied by the fact that Kirby attempted to
use a draft contract of its own at the start of the negotiation process, but Statoil rejected
that contract in favor of opening negotiations with the ACBL-Statoil Contract. If, as Mr.
Allen argues, the ACBL-Statoil Contract contained nothing more than standard contract
language used throughout the industry and was interchangeable with any other draft
contract in the barge industry, it would not have mattered whose draft contract was used.
Moreover, by Mr. Allen’s own admission, a number of the provisions of the
ACBL-Statoil Contract that were also in the Statoil Draft were specifically negotiated
between ACBL and Statoil and were unique to their relationship, including the particular
risk allocation agreed upon between the companies. Allen Dep. at 44–45. Additionally,
Mr. Allen testified that the provisions regarding insurance, confidentiality, choice of law,
and indemnification included in the ACBL-Statoil Contract all vary from contract to
contract. He also conceded that, in his experience, he had only ever seen the provision
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regarding consent for voice recording in the ACBL-Statoil Contract and the Statoil Draft.
Id. at 46–47. Thus, while the Statoil Draft undoubtedly contained certain terms and
conditions standard in the industry as Mr. Allen contends, it also included information
regarding ACBL’s business procedures and methods not generally known or easily
accessible to the public.
We find, therefore, that the draft contract forwarded by Mr. Allen comes within
the broad definition of “confidential information” set forth in the Severance Agreement.
This conclusion is buttressed by the fact that the Severance Agreement specifically
provides that information which “arguably meets” the definition of confidential
information “shall be deemed ‘confidential information’ under this Agreement, regardless
of whether it has been stamped, marked or otherwise expressly identified as such.”
Severance Agreement § 5.3.6.2.
Nor are we persuaded by Mr. Allen’s second argument, to wit, that the “no fault”
provision of the Severance Agreement excuses his breach. The Severance Agreement
provides that Mr. Allen’s non-disclosure obligations do not apply to “information that is
in the public domain or that becomes part of the public domain through no fault of
Employee’s.” Id. § 5.3.6 (emphasis added). Mr. Allen argues that the Statoil Draft
became part of the public domain through no fault of his own because Statoil assured him
that it was authorized to use the draft and that the draft did not contain confidential
information. Mr. Allen claims, therefore, that any fault for disclosing confidential
information lies with Statoil alone.

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Mr. Allen knew, however, that he had an independent responsibility under the
Severance Agreement to ensure that he was not disclosing ACBL’s confidential
information and to return any such proprietary information if it subsequently came into
his possession. Mr. Allen concedes that he opened the Statoil Draft before forwarding it
to Kirby to be sure it was the correct attachment. Although he did not write the ACBLStatoil Contract, the undisputed facts establish that he was intimately involved with the
contract negotiations. In fact, he concedes that he reviewed and commented on various
iterations of the contract as it went back and forth between the parties during that time
period, and that, as a result, he “became familiar with it.” Allen Dep. at 41–42. The
evidence further establishes that all ACBL contracts, including the draft contract, use a
consistent and distinctive format for its contracts, including a box setup identifying the
parties, title, contract number, and effective date at the beginning of the document.
Accordingly, when Mr. Allen viewed the Statoil Draft with these indicia that it was
ACBL’s and then disclosed that document containing the confidential terms and
conditions of the ACBL-Statoil Contract to three of ACBL’s competitors, he breached
the Severance Agreement. Whether he intended to do so is irrelevant. See Burleson v.
Ill. Farmers Ins. Co., 725 F. Supp. 1489, 1495 (S.D. Ind. 1989) (“[I]n contract actions the
defendant’s motive or state of mind is of no moment except where punitive damages are
sought.”).
Mr. Allen’s breach was also material. Generally, the materiality of a breach is a
question of fact. However, “where a contract itself provides the standard for what
constitutes a material breach, this is the standard that governs.” State v. Int’l Bus. Machs.
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Corp., 51 N.E.3d 150, 161 (Ind. 2016). The Severance Agreement specifically provides
that the non-disclosure provisions at issue in this litigation “are material provisions of
[the] Agreement.” Severance Agreement § 5.4. Accordingly, we hold that Mr. Allen’s
breach was material.
With regard to the element of damages, Mr. Allen argues that ACBL cannot show
that it was damaged as a result of the ACBL-Statoil Contract being disclosed because it
continues to maintain a solid business relationship with Statoil and any losses in revenue
it may have suffered cannot be traced to the disclosure of the draft contract. However,
the Severance Agreement provides that, by signing the agreement, Mr. Allen
“acknowledge[d] that [ACBL] would be irreparably harmed by [his] breach” of, inter
alia, the non-disclosure provisions of the contract. Severance Agreement § 5.4.1.
Further, the Severance Agreement provides that, in the event of Mr. Allen’s breach, he
“shall immediately pay to [ACBL] one half the monetary value of the Severance Benefit
as liquidated damages. [He] acknowledges these liquidated damages represent a fair and
reasonable assessment of the actual damages [ACBL] would incur as a result of such
breach by [Mr. Allen].” Id. § 5.4.2.
For these reasons, ACBL is entitled to summary judgment on Mr. Allen’s breach
of contract claim as well as its counterclaim for breach of contract against Mr. Allen. Mr.
Allen’s cross motion for summary judgment on these claims is therefore denied.
B.

Plaintiff’s Defamation and Conversion Claims

As a result of Mr. Allen’s material breach of the Severance Agreement, his
remaining claims for defamation and conversion cannot survive summary judgment. Mr.
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Allen’s conversion claim fails because ACBL cannot be held liable for withholding
severance benefits to which Mr. Allen was not entitled under the terms of the contract.
See Shourek v. Stirling, 621 N.E.2d 1107, 1109 (Ind. 1993) (holding that conversion
claims require the plaintiff to establish “an immediate, unqualified right to possession
resting on a superior claim of title”). His defamation claim likewise fails because he
cannot recover under a theory that ACBL defamed him by falsely asserting that he
improperly disclosed confidential information in violation of the Severance Agreement
when he did in fact violate his non-disclosure obligations. Melton v. Ousley, 925 N.E.2d
430, 437 (Ind. Ct. App. 2010) (“[T]ruth is a complete defense in civil actions for
defamation.”).
C.

Defendant’s Trade Secret Appropriation Counterclaim

ACBL alleges in Count II of its counterclaim that Mr. Allen’s disclosure of the
draft contract to three of its competitors constituted misappropriation of trade secrets in
violation of the IUTSA. Mr. Allen has moved for summary judgment on this claim,
arguing that he did not misappropriate any information, and, in any event, the draft
contract does not constitute a trade secret under the IUTSA.
Misappropriation occurs when there is “disclosure or use of a trade secret of
another without express or implied consent by a person who[,]… at the time of the
disclosure …, knew or had reason to know that his knowledge of the trade secret
was…derived from or through a person who owed a duty to the person seeking relief to
maintain its secrecy ….” IND. CODE § 24-2-3-2(2)(B)(iii). Mr. Allen argues that he
received assurance that the Statoil Draft had been approved by Statoil’s legal department
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and was acceptable to use and he therefore had no reason to know that the draft
constituted a trade secret that either Statoil or he was duty-bound to protect.
A reasonable jury could find, however, that Mr. Allen’s forwarding of the draft
contract to Kirby and two other of ACBL’s competitors without ACBL’s knowledge
constituted a disclosure without express or implied consent. There is also sufficient
evidence in the record from which a jury could conclude that Mr. Allen knew both that he
had non-disclosure obligations as set forth in the Severance Agreement and also that
Statoil owed non-disclosure obligations to ACBL given that he personally negotiated the
ACBL-Statoil contract which contained a provision requiring Statoil to maintain the
confidentiality of the agreement.
Finally, we cannot say as a matter of law that the draft contract does not constitute
a trade secret such that Mr. Allen would be entitled to summary judgment in his favor on
ACBL’s counterclaim. A “trade secret” under the IUTSA is: “(1) information, (3) which
derives independent economic value, (3) is not generally known, or readily ascertainable
by proper means by other persons who can obtain economic value from its disclosure or
use, and (4) is the subject of efforts reasonable under the circumstances to maintain its
secrecy.” Bodemer v. Swanel Beverage, Inc., 884 F. Supp. 2d 717, 723 (N.D. Ind. 2012)
(quoting Steve Silveus Ins., Inc. v. Goshert, 873 N.E.2d 165, 197 (Ind. Ct. App. 2007)).
Determining whether information qualifies as a trade secret is a fact-specific inquiry.
Credentials Plus, LLC v. Calderone, 230 F. Supp. 2d 890, 900 (N.D. Ind. 2002).
Mr. Allen does not dispute that the Statoil Draft satisfies the first two requirements
of a trade secret under Indiana law, to wit, that it constitutes (1) information that (2)
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derives independent economic value. He argues, however, that the information at issue is
generally known and/or readily ascertainable by those in the industry and that ACBL did
not use reasonable efforts to maintain its secrecy. For the same reasons we have found
that the draft contract constituted “confidential information” as defined by the Severance
Agreement, we cannot say as a matter of law that the draft contract includes only
information that is generally known or readily ascertainable by others in the industry.
There is also sufficient evidence in the record from which a reasonable jury could
conclude that ICBL took reasonable efforts to maintain the secrecy of the ICBL-Statoil
Contract, including, storing the contract electronically on a secured, password-protected
database managed by its legal department and in paper form in a building that requires a
security badge to enter and on a floor that is limited to designated employees, requiring
employees to sign confidentiality agreements to protect its proprietary information, and
including a specific confidentiality provision in the ACBL-Statoil Contract prohibiting
Statoil from “disclos[ing] the terms or conditions of this Contract, including rates, to any
third party without the written consent of [ACBL].” Dkt. 66-1 § 31.
For these reasons Mr. Allen is not entitled to summary judgment on ACBL’s
misappropriation of trade secrets counterclaim brought pursuant to the IUTSA.
III.

Conclusion
For the reasons detailed above, we GRANT Defendant’s Motion for Summary

Judgment and Supplemental Motion for Summary Judgment and DENY Plaintiff’s

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Motion for Summary Judgment. The case shall proceed accordingly.
IT IS SO ORDERED.

9/20/2019
Date: _______________

_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

Distribution:
Garry R. Adams
CLAY DANIEL WALTON & ADAMS PLC
[e-mail]
Amanda Warford Edge
WYATT TARRANT & COMBS, LLP (Lousiville)
[e-mail]
C. Tyson Gorman
WYATT, TARRANT & COMBS LLP
[e-mail]
Andrew Thomas Lay
CLAY DANIEL WALTON & ADAMS PLC
[e-mail]
Sean G. Williamson
WYATT TARRANT & COMBS, LLP (Lousiville)
[e-mail]

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