decided to judgment loys opinion in the avatar versus rolls royce trade secrets case from the eighth circuit it's an incredibly useful and helpful case and we're asking the ninth circuit today to make a similar published order that will help inventors artists creative people and district courts in this circuit and some very basic but easy to misunderstand tenants of trade secret law first of all it's very important for the ninth circuit to give guidance that california recognizes trade secrets and compilations of information even when the individual discrete elements are previously known or in the public domain every other circuit that we cited i think it's all of them except for the first circuit does recognize the trade secret protection resides in the uniform trade secrets act for such combinations so let's assume that we agree with you that that the california statu present protection a compilation of information we review the district court's decision here for abuse of discretion because this is a preliminary injunction case tell me how the court abused its discretion in finding that were really dealing we were to either dealing here with information that was already in the public domain or that had been independently come to by this record abuses its discretion when it based its order on iranians conclusions of law or clearly erroneous findings of fact or it's not an abuse of discretion but it can also be reversed for failure to make sufficient findings of fact and conclusions of law under federal rule fifty two a sufficient to permit appellate review in particular the crux of this appeal is that the district court erred by failing to identify and determine as a matter of law what shapiro's trade secrets actually were we briefed it numerous times each of the discrete elements and each of the two general types of trade secret trade secret number one with the snowglobe collectability device which is a marketing device it's information about a marketing opportunity trade secret number two which is the compilation trade secrets which comprise nine discrete elements of fact i asked a number one as i understand the record here put together a two inch pony with the glitter floating around inside there correct in that those were findings that were made but it didn't tell you and those findings are supported by the record you're not a ten on no no no they're that finding enough to demonstrate that your trade secret number one wasn't a trade secret because it's impossible according to the time when the the case and this is where review of avid ever says rolls royce would be instruct expert testimony in the record that said that's a different category the tooling it was it's two inches rather than four correct the tooling is incredibly expensive you have to order it from hong kong when they commit to release a product they have to invest in the tools that actually can make the plastic injection toy and there were four unrebutted expert declarations even if you disregard shapiro's which is another two that's saying it's a different opportunity it's a different product that's a toy that was never released that was not this toy but if the trade secret is that i wanted to find a trade secret carefully because when you said it's number one if the trade secret is glitter suspended him but it's not side of that that's what you said it was it's not what it's a marketing device a way to sell toys to identify an opportunity in the market that no toy company had ever sold a lot of collectible dolls to little girls in the three to four inch small doll category using the three elements of totally clear animal shaped receptacle in which glittering liquid floated where the shape of the glitter told the story or the character trait inches but other than size what's the distinction has developed the toy a little girl cannot play with an adobe photoshop file what's she going to play with the computer file shapiro actually went to the trouble of developing physical models in secret and keeping it secret and then testing it with focus groups of little girls in the age group so that she could observe the consumer behavior reactions and do what's generally a industry as a checks and balances marketing confirmation that this is a viable toy line it will sell it's new it's familiar it's something little girls would like and little girls were not testing  test they had no data it's just like that hallmark vs monitor case in the circuit that followed avatar versus rolls royce so number one has more didn't develop a toy they'd first of all the trade secret is not the toy the trade secret for me in a new jury to decide what made a mistake but now you're mixing the two of them together so tell me tell me why you're number two is different than your number one number two specifically listed all of the components that go into marketing and that includes part it includes packaging you have to package the toy properly other ways the consumer doesn't know what's new and different about the toy and why it's a new opportunity and something that they would want to buy and why they would want to collect all the characters in the line hasbro never showed shaped heart shaped or star shaped glitter they should two characters and actually the little two inch models that we've asked to be added to the record aren't even in the shapes that match the character those characters are rainbow look here's a roadmap how to sell toys this is going to be different from any other small doll line because this shape is the glitter shape of the glitter is never been seen before and our product designer said yeah that's never been done she she's a world expert in designing dolls well let me ask you maybe a more fundamental question about this you know i think our jurisprudence on injunctions kind of gotten away from the concept that we used to always say when the first things you ask about injunctive relief is is are an adequate remedy and damages if the injunctions not issued and so let's just jump over the likelihood of success and assume you could even get over that hurdle why can't why can't this case be resolved by hasbro paying you a boatload of money down the road if if you win because it would gut the california foreign trade secrets act when legislature enacted cuts at the california uniform trade secrets act they were vindicating an important public policy in california you can enjoying the render actual misappropriation of trade secret information and to this day no  the normal standards for a federal district court when it considers issuing a preliminary injunction don't apply in a california trade secrets act case that the injunction is automatically available on a showing a violation of course not that's that's position that it would be irreparably harmed in the form of lost goodwill intangible business opportunities relationships with customers that's not the question i ask you let's assume you get to let's assume you don't get the injunction and you go to a jury and a jury rules in your favor and if you're a award you whatever amount of damages are appropriate under the circumstances why isn't that a happy day for your side because it took us two years to get there and the trade secret was destroyed hasbro had not destroyed it isn't it already destroyed no it's not if in your view in our view it's not every whole world now knows what what this product looks like with the concept looks like and what their marketing scheme which may or may not match yours looks like so if you're right hasn't your trade secret already been exposed to the world even if that's true it's not a reason to deny the injunction as to hasbro because hasbro is the disclose e who received it under a few sherry duty to maintain it confidential that the question is not whether that's a reason to deny the injunction but i still haven't heard a good answer to judge weiss question because well if you if you get a nice damages awarded the end of the case in a church these and a pat on the back from the district judge haven't you received inadequate remedy at law well no not fully because of the timing she's missing out on the credit the attribution for having invented this and by the way it's not disclosed to the whole world because no one else in the world has seen her slide show her slide show was madoff taking the product to market the infringing product that you say violates tracy that they've already taken the market right ye and so the trade secret has been lost or disclose whatever word you want to use it at this point so why isn't damages an adequate remedy well there's two answers to that if i may i'd like to address them and save a couple minutes for rebuttal they haven't they're not done dismantling the secret there's two more lines of products that we know are coming that are variations also take even more damag that allows for an injunction if you have an employee who takes all your trade secrets moves to another company and then uses all the trade secret information that employee can be enjoined there's no doubt someone can be enjoy but what's the what i mean just what damages will be fine what irreparable harm yeah it destroyed the novelty of the toy market and you're saying let's assume it's destroyed what's a reparable about the harm is that she missed a moment in third factor is the wing of the heart of the chichi i think conflated those two factors that in her analysis but she did explicitly say that the harm to hasbro outweighs the harm to mr pirro and she did also make an express factual finding that  any harm to ms shapiro is vague i think is the way that you so she did make findings a large those findings independent as a lack of probability of success finding or do they just are they derivative of it i they're independent i think that the last problem the public interest piece what is depended on it because on the public interest she said there are two independently created ideas that both have a right to protection therefore that that that element has not been met i think that's dependent on the likelihood of success but to your to your questions about money damages this is a quite the settled money damages case right because this is not a case when the shapiro was out there trying to make the product she was not out there to compete against hasbro or somebody else she was out there to sell her idea and in exchange for  s of what the reason morality should be in addition to the fact that they're looking for profits on top of that as well for thanks and so one that just staying with this general topic when the court s harm if an injunction were to be answered you first start with the investment in the manufacturing and development and all of that but beyond that and probably even more important than that is they have contractual relationships with major retailers not only around the country but around the world and if that if the injunction had entered not only would you have the intangible irreparable harm of the relationship itself and what that would mean but they would it could be preaching contracts i mean there's going to flat out breaches of contract because of a lack of fulfillment of the part of the contractual terms and then you have the cascading harm to the retailers themselves you know this is a very precise business you need to fill your shelves with certain price points and th circuit interpret ing it it's clear that while there is still a sliding scale we certainly agree that there's a sliding scale the plaintiff still has the burden of showing that all four elements of the net and of the court concluded factually that the harm to of you know getting injunctive relief under cuts you know we've seen this in the in the past world where there was a presumption for them junction till e bay came down from the supreme court it sounds like  agree sure so there was that the court struggled as i think happens in these trade secret cases to identify with the trade secret is so let's deal with the so called trade secret one which is however you want to describe it it's a concept  declaration of andrea everett she was the senior designer responsible for the accused toys in her declaration she attaches a number of documents so i mean that's the nestle came up with the general idea in october two thousand and eleven while still working even heard of this shapiro and then on top of that and the this is in the record the court didn't get to it and that much detail because there's such a plethora of evidence to support her holding but on april twenty two twenty thirteen which is three days before the initial meeting with shapiro fourteen days before her submission says six weeks before anybody looked at it she has what's referred to as the p i q which is the price initial quote i mean the product initial quote that  so you know the court noted at the hearing that there is probably an unusual amount of independent creation evidence here how did you want what do you understand trade secret ever to be what your with is ok that's fine but what is it that is potentially in the accused toys for me to look at and understand and aside from the shape clear which is you know concrete enough to talk about the only thing she could find that was potentially in there was this you know call out concept for packaging basically calling out the the idea of shape water and what she found on the record she found i think three things on the record one is to the extent we're going to compare the call that's how it's done how the information is pulled packaging that talked about they call it the magic in the wings which was the same thing and then i thought and then she also concluded which i think is also correct that this is just kind of an abstract idea that's now or the of trade secret protection because it is it is just a marketing technique that's been known for decades and there's nothing to protect and there wasn't a contentious cases i recall that the it was the concept of the call out that's the trade secret was their contention that the call outs were so similar that that even if the concept weren't a trade secret that in effect you copied her call out i think the honest answer is i don't i don't have is that there was a submission made and that products came out you know more than a year later some of which had overlap with some of her some aspects of her his submission to company produced a very similar choice year later that would be enough i think to put the burden on the company that produced it to show that they didn't really use i think you know i think i would need to know more about the fact that if i only knew if i only knew that i would say you had enough to create a question of whether or not there was copy i bought a concept to you in a year later your company used it i'm not sure i'd have to come in with proof of which people knew what  when i think i'd say i brought you this unique thing a year later you produced it i got a pretty good case for it if you had like no isolation we couldn't explain how we got it out there but the burden would be on you you could well i don't think legally  it is about mouthwash more you know and having secret messages under you know the figures that this is just one component to it you know to take your hypothetical if they submitted idea that a year later we came out with whistles idea i you know i think the case would have settled you know right and they also they also would have to prove which people in your company do what went right that's why i say it's hard even though you were right you reacted to my argument it's hard in the abstract she claims is novel and interesting and it was generally found on the internet it wasn't that hard to find we just did a search and it was there still there today you can still buy them in fact the ones i think secret and the courts obligation here of course is only to reverse if there is clear error and i don't think there's any way one can say that there was clear error and her concluding that that secret was not a secret because it was publicly a considered trade secret number one and trade secret number two at pages forty three and forty four and forty five in forty six of hasbro's opening or answering a brief they argue forcefully the district court totally and to volume but counsel brings up an important point he says an idea is not protected as a trade secret this is an often misunderstood dictum from cell bako from the california supreme court please it would be very helpful to the ni clarified in the context in which that statement was made they meant that where the product automatically discloses an idea and it's therefore no longer a protectable idea here in the case law that came after all taffy and notably in the california court of appeal and now we're begging the ninth circuit to make this finding as well if the concept is not commercially released and doesn't meet the standard for relative secrecy are not generally known in the industry the concept itself can be trade secret information depending on how specifically it's been developed that it is shown to have value and that reasonable steps to maintain secrecy were taken so please help us and let's clarify sound i don't like you want us to fix the all the california law in california well it's about pricing i mean it's surprising the ninth circuit doesn't have a done a good job defining so well it would be nice some of the district courts i think they like ninth circuit cases to cite it's nice to have because when we've cited california state law the district court and for some reason the run through with my few seconds left a couple of the points that you were making we did argue we argued at page twenty twenty one of our brief that the district court failed to make an essential findings of fact on the relative harm to shapiro we cited lamb west