UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

IVS HYDRO, INCORPORATED, a West 

Virginia corporation; GENERAL

MANAGEMENT SERVICES,

INCORPORATED, a West Virginia

corporation,

Plaintiffs-Appellants,

v.  No. 03-1827

JACKIE RAY ROBINSON; ONYX

INDUSTRIAL SERVICES, INCORPORATED,

a Delaware corporation; ONYX

PRECISION SERVICES, INCORPORATED, a

Delaware corporation,

Defendants-Appellees. 

IVS HYDRO, INCORPORATED, a West 

Virginia corporation; GENERAL

MANAGEMENT SERVICES,

INCORPORATED, a West Virginia

corporation,

Plaintiffs-Appellees,

v.  No. 03-1898

JACKIE RAY ROBINSON; ONYX

INDUSTRIAL SERVICES, INCORPORATED,

a Delaware corporation; ONYX

PRECISION SERVICES, INCORPORATED, a

Delaware corporation,

Defendants-Appellants. 
Appeals from the United States District Court

for the Southern District of West Virginia, at Charleston.

Joseph Robert Goodwin, District Judge.

(CA-01-1296-2)

Argued: February 25, 2004

Decided: March 31, 2004

Before WILKINS, Chief Judge, MICHAEL, Circuit Judge,

and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion. 

COUNSEL

ARGUED: Bryant Jonathan Spann, ALLEN, GUTHRIE, MCHUGH

& THOMAS, P.L.L.C., Charleston, West Virginia, for Appellants/

Cross-Appellees. John Philip Melick, JACKSON KELLY, P.L.L.C.,

Charleston, West Virginia, for Appellees/Cross-Appellants. ON

BRIEF: Robert B. Allen, ALLEN, GUTHRIE, MCHUGH &

THOMAS, P.L.L.C., Charleston, West Virginia, for Appellants/

Cross-Appellees. Stephanie H. D. Mullett, JACKSON KELLY,

P.L.L.C., Charleston, West Virginia, for Appellees/Cross-Appellants.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

2 IVS HYDRO, INC. v. ROBINSON
OPINION

PER CURIAM: 

IVS Hydro, Incorporated (IVS) and General Management Services,

Incorporated (GMS) appeal the district court’s grant of summary

judgment in favor of Jackie Ray Robinson (Robinson), Onyx Industrial Services, Incorporated, and Onyx Precision Services, Incorporated on IVS and GMS’s claims under West Virginia law for

misappropriation of trade secrets, tortious interference with contract,

and breach of fiduciary duty.1 We affirm. 

I

A

IVS is a West Virginia corporation headquartered in Waverly,

West Virginia. Since its founding in 1972, IVS has provided cleaning

services for industrial facilities, including hydro-blasting and industrial vacuuming. Although IVS has served numerous businesses in the

mid-Ohio valley, only its relationship with four customers, Solvay

Advanced Polymers (Solvay), Kraton Polymers (Kraton), American

Municipal Power (AMP), and Allegheny Power (Allegheny), are relevant to this case. GMS likewise is a West Virginia corporation and

is the largest shareholder of IVS. GMS is owned by Fred Clark

(Clark), who has served as IVS’s general manager since 2000 and as

IVS’s corporate secretary since its founding.2 Onyx is a Delaware corporation based in Texas, with office locations that include Vienna and

Nitro, West Virginia. 

IVS and Onyx compete vigorously in the provision of industrial

cleaning services to customers in the mid-Ohio valley. They solicit

each other’s customers, including AMP, Solvay, Kraton, and Allegheny. Both IVS and Onyx had no guarantee of work under its "blan1Onyx Precision Services, Incorporated has been merged into Onyx

Industrial Services, Incorporated. For ease of reference, we will refer to

the corporate defendants as Onyx. 

2For ease of reference from this point on, we will refer to both IVS and

GMS as IVS. 

IVS HYDRO, INC. v. ROBINSON 3
ket orders." Rather, each customer was non-exclusive and could and

did call on competing vendors in its sole discretion. 

IVS and Onyx also compete for the hiring of competent employees

who have established relationships with customers. Indeed, the record

reflects that, not only did Onyx routinely seek to employ personnel

from its competitors, so did IVS. Both IVS and Onyx held outings,

such as picnics, to recruit employees. These efforts by IVS and Onyx,

as well as other industrial cleaning services companies operating in

the mid-Ohio valley, resulted in the frequent movement of salespersons and superintendents from one industrial cleaning services company to another. As a consequence of this frequent movement,

ballpark rates for industrial cleaning services were common knowledge in the mid-Ohio valley industrial cleaning services marketplace.

From 1977 to 1985, Robinson served as a field worker and parttime foreman for IVS, performing high-pressure water cleaning. After

pursuing another career for the next seven years, Robinson returned

to IVS in 1992, where he initially worked in the equipment repair

shop. After approximately eight months, Robinson was promoted to

a sales position and he remained involved in sales for the next nine

years. On October 1, 2001, Robinson went to work for Onyx performing substantially the same job as he performed at IVS. In large part,

this case concerns the circumstances surrounding Robinson and some

other IVS employees’ decision to go to work for Onyx in October

2001. Of note, the IVS employees at issue in this case were hired as

at-will employees. Not a single employee whose departure was at

issue in this case had any written confidentiality or non-compete

agreement with IVS. 

According to IVS, its greatest confidence at issue in this case was

its confidential pricing information. Some of IVS’s pricing proposals

were marked confidential, but others were not. Some of IVS’s pricing

proposals were kept under lock and key, but others were not. IVS’s

pricing and billing rates were contained on a computer network that

was password protected. However, every IVS employee that had

access to IVS’s computer network had access to IVS’s pricing information. 

In 2000, Clark instituted an aggressive expansion effort, and, by

the summer of 2000, many employees were unhappy with the contro4 IVS HYDRO, INC. v. ROBINSON
versial changes in the company’s management style. Robinson, in

particular, was upset when Clark hired two bankers as vice-presidents

over all the other longstanding employees. By the summer of 2001,

many IVS employees began to look for work elsewhere. In fact,

shortly before the departures at issue, about a dozen employees left

IVS to work for a competitor of both IVS and Onyx. 

By the late summer of 2001, Robinson and fellow IVS employees

James Eddy (Eddy), Steven Hicks (Hicks), Marty McBrayer

(McBrayer), and Fred Cline (Cline) were investigating alternative

employment opportunities.3 In early September 2001, Robinson

approached Eddy after an IVS meeting and told him that he, Hicks,

McBrayer, and Cline were displeased with Clark’s leadership and

were looking to go somewhere else to work. Eddy said he knew people at Onyx and would give them a call.

A short time later, Eddy called Daniel Wright (Wright), an Onyx

vice-president, to tell him about the IVS employees’ interest in leaving IVS. Later that week, Eddy called Wright again and set up a lunch

meeting for a few days later in Wheelersburg, Ohio. Present at the

lunch meeting were Wright, Eddy, and Cline. During the meeting,

Eddy and Cline told Wright that they, along with other IVS employees, wanted to leave IVS and work elsewhere. 

Eddy and Wright then arranged for a second meeting, this time at

Eddy’s farm in Belpre, Ohio. Present at that meeting were Cline,

Eddy, Hicks, Robinson, Wright, and Ronnie Burdette (Burdette), who

was the Onyx manager whose territory encompassed the mid-Ohio

Valley. During the meeting, the IVS employees said they were going

to leave IVS, were looking for another employer, and had already

talked to some others. Wright and Burdette made no offers of employment, but made sure that none of the IVS employees had any confidentiality or non-compete agreements with IVS. The IVS employees

complained about Clark’s poor management and said that many other

employees were upset and that some had already left, as, in fact, they

had. Those present also discussed which customers might wish to purchase services from Onyx if these employees were to be hired by

3Eddy was IVS’s operations manager; Hicks and McBrayer were IVS

supervisors; and Cline was an IVS salesman. 

IVS HYDRO, INC. v. ROBINSON 5
Onyx. At this meeting, Robinson provided "a rough figure of what the

rates were in the valley." However, Robinson deliberately was not too

specific because he did not know if he was going to go to work for

Onyx. 

After obtaining authority to proceed, Wright, on September 10,

2001, sent offers to Cline, Eddy, Hicks, McBrayer, and Robinson. On

September 17, 2001, Wright met with the five to discuss the offers.

On September 18, 2001, Cline and Eddy resigned from IVS. Thereafter, Burdette, Wright, and Connie Johnson (Johnson), who was

responsible for Onyx’s human resources in the territory encompassing

the mid-Ohio Valley, had a conference call with Cline, Eddy, Hicks,

McBrayer, and Robinson so that Johnson could answer questions

about benefits and other details of employment. On September 24,

2001, Wright sent a revised employment offer to Robinson, articulating some of the changes that Robinson had requested. 

On September 28, 2001, Robinson, Hicks, and McBrayer resigned

from IVS. The following day, Cline, Eddy, Hicks, McBrayer, and

Robinson met with Burdette and Wright to pick up their Onyx company vehicles so they could start work for Onyx on October 1, 2001.

At this time, the former IVS employees indicated that many of IVS’s

hourly employees who had been working under their supervision may

also want to come to work for Onyx. John Bills (Bills), an IVS technician, contacted many of these IVS hourly employees and encouraged

them to go to Onyx’s Vienna, West Virginia facility on October 1,

2001 to find out about working for Onyx. 

On October 1, 2001, Cline, Eddy, Hicks, McBrayer, and Robinson

arrived for their first day of work at Onyx. Numerous IVS hourly

employees arrived at Onyx as well. Johnson and her assistant enrolled

Cline, Eddy, Hicks, McBrayer, and Robinson in Onyx’s various benefit programs and provided employment information and applications

to the IVS hourly employees who arrived. Numerous IVS hourly

employees applied for work at Onyx and were hired; some of them

decided not to move, including Bills.4

4According to IVS, when the IVS hourly employees went to Onyx on

October 1, 2001, Robinson allegedly told the employees that they

intended to "destroy" IVS. Robinson allegedly told another attendee that

IVS would be "shut down" by January 1, 2002. 

6 IVS HYDRO, INC. v. ROBINSON
On his first day of employment, Robinson drafted a pricing proposal for industrial cleaning services for Solvay, a company at which

Robinson had an established relationship.5 The Onyx pricing proposal

submitted to Solvay proved to be similar, in many respects, to the

most recent proposal IVS submitted to Solvay, only with lower prices.

Robinson, along with another Onyx employee, later called on Solvay

and Onyx was awarded the work. According to IVS, Robinson drafted

similar low-price proposals and submitted them to Kraton, AMP, and

Allegheny, resulting in IVS losing business with these companies. 

B

On December 19, 2001, IVS filed suit against Robinson and Onyx

in the United States District Court for the Southern District of West

Virginia. IVS’s complaint set forth the following claims under West

Virginia law: (1) civil conspiracy; (2) two causes of action for tortious

interference with contract; (3) defamation; (4) breach of fiduciary

duty; (5) misappropriation of trade secrets; (6) conspiracy in restraint

of trade; (7) interference with prospective business advantage; and (8)

fraud. 

In May 2002, the district court dismissed IVS’s conspiracy in

restraint of trade claim and IVS later abandoned its interference with

prospective business advantage claim. On May 31, 2002, Onyx and

Robinson answered IVS’s complaint and Robinson counterclaimed,

seeking certain unpaid commissions. The parties later settled Robinson’s counterclaim. 

After completing discovery, Onyx and Robinson moved for summary judgment as to each of IVS’s remaining claims. IVS likewise

moved for summary judgment as to its misappropriation of trade

secrets and tortious interference with contract claims. On May 29,

5Each year, Robinson took Solvay representatives to play golf, at

IVS’s expense. Of note, at one point during the August 2001 outing,

Robinson asked a Solvay representative whether he could get on Solvay’s bidder’s list for future business in the event that he were to purchase Hydro Power, a company that provided industrial cleaning services

and competed with both IVS and Onyx. Robinson never purchased

Hydro Power. 

IVS HYDRO, INC. v. ROBINSON 7
2003, the district court granted summary judgment to Robinson and

Onyx as to each of IVS’s remaining claims. IVS filed a timely noticed

of appeal from that order. 

On June 12, 2003, Onyx and Robinson moved the district court to

award to them their attorney’s fees incurred in defending IVS’s claim

for misappropriation of trade secrets. The district court denied that

motion on July 22, 2003, and Onyx and Robinson filed a timely

notice of cross-appeal. 

II

On appeal, IVS argues that the district court erred when it granted

summary judgment in favor of Robinson and Onyx on IVS’s claims

under West Virginia law for misappropriation of trade secrets, tortious interference with contract, and breach of fiduciary duty. Only

the district court’s grant of summary judgment on IVS’s misappropriation of trade secrets claim warrants discussion.6

IVS argues that the district court erred when it granted summary

judgment in favor of Robinson and Onyx on IVS’s misappropriation

of trade secrets claim because Robinson and Onyx misappropriated

IVS’s trade secrets when Robinson used IVS’s "confidential" pricing

information in formulating the Onyx bids submitted to Solvay, Kraton, AMP, and Allegheny. The district court rejected IVS’s misappropriation of trade secrets claim, reasoning that the information

Robinson had from his experience at IVS did not qualify as a trade

secret and the efforts IVS took to maintain the secrecy of its pricing

information did not rise to the level necessary to qualify the pricing

information as a trade secret. Moreover, the court concluded that Robinson and Onyx did not misappropriate the alleged trade secret. 

We review the district court’s grant of summary judgment de novo.

Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir.

2002). Summary judgment is appropriate only when "there is no gen6We have reviewed IVS’s arguments attacking the district court’s grant

of summary judgment to Robinson and Onyx on IVS’s claim for breach

of fiduciary duty and its two claims for tortious interference with contract and find those arguments to be without merit. 

8 IVS HYDRO, INC. v. ROBINSON
uine issue as to any material fact and . . . the moving party is entitled

to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In reviewing

the grant of summary judgment, we view the facts in the light most

favorable to IVS, the nonmoving party, drawing all justifiable inferences in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

(1986). 

In evaluating the district court’s decision regarding IVS’s misappropriation of trade secrets claim, we agree with the parties that we

look to West Virginia law in this diversity case. Under the West Virginia Uniform Trade Secrets Act, a trade secret is defined as "information" that (1) derives "independent economic value" from "not

being generally known" or "readily ascertainable" by others who can

obtain economic value from its use or disclosure; and (2) is the subject of "efforts that are reasonable under the circumstances to maintain" the secrecy of the information. W. Va. Code Ann. §§ 47-22-

1(d)(1), (2). If IVS’s pricing information constitutes a trade secret, we

must then determine whether the pricing information was misappropriated by Robinson and Onyx. Id. §§ 47-22-1(b), 47-22-3. 

In State ex rel. Johnson v. Tsapis, 419 S.E.2d 1 (W. Va. 1992), the

Supreme Court of Appeals of West Virginia adopted the six-factor

test found in § 757 of the Restatement of Torts to determine whether

there was good cause to issue a protective order to prevent the disclosure of the defendant’s trade secrets. Id. at 3. The factors set forth in

Tsapis are as follows:

(1) [T]he extent to which the information is known outside

of the defendant’s business; 

(2) [T]he extent to which it is known by employees and

others involved in the defendant’s business; 

(3) [T]he extent of the measures taken by the defendant to

guard the secrecy of the information; 

(4) [T]he value of the information to the defendant and

competitors; 

IVS HYDRO, INC. v. ROBINSON 9
(5) [T]he amount of effort or money expended by the

defendant in developing the information; and 

(6) [T]he ease or difficulty with which the information

could be properly acquired or duplicated by others.

Id. A similar formulation of this six-factor test has been applied by

other courts in determining whether a trade secret exists. See, e.g.,

Learning Curve Toys, Inc. v. PlayWood Toys, Inc., 342 F.3d 714, 722

(7th Cir. 2003) (applying similar six-factor test under Illinois law to

determine whether a trade secret existed); Harvey Barnett, Inc. v.

Shidler, 338 F.3d 1125, 1129 (10th Cir. 2003) (applying similar sixfactor test under Colorado law to determine whether a trade secret

existed). Under the six-factor test set forth above, which we believe

the West Virginia Supreme Court of Appeals would apply in determining whether a trade secret exists in this case, the absence of evidence on any single factor does not necessarily preclude a finding of

a trade secret. Learning Curve Toys, Inc., 342 F.3d at 722; Harvey

Barnett, Inc., 338 F.3d at 1129. Rather, the factors should be weighed

together in making that determination. Learning Curve Toys, Inc., 342

F.3d at 722. 

When examining these six factors, it becomes readily apparent that

no trade secret existed in this case. With regard to the extent to which

IVS’s pricing information was known outside of its business, the

record reflects that ballpark rates for industrial cleaning services in

the mid-Ohio valley were common knowledge. Moreover, the customers of both IVS and Onyx were non-exclusive and could and did

call on competing vendors in their sole discretion. The record also

reflects that both IVS and Onyx, as well as other companies similarly

situated, aggressively hired competent employees from each other and

their competitors. Consequently, employees, including salesman,

flowed freely from company to company like the tides. These market

conditions made pricing information, including the manner in which

it was compiled, no big secret in the mid-Ohio valley industrial cleaning services marketplace. 

With regard to the second factor, the record reflects that IVS’s pricing information was widely known by its employees. Indeed, every

10 IVS HYDRO, INC. v. ROBINSON
IVS employee that had access to IVS’s computer network had access

to IVS’s pricing information. 

With regard to the third factor, while it is true that some steps were

taken to keep IVS’s pricing information confidential, these steps did

little to keep IVS’s pricing information confidential. Not a single

employee whose departure was at issue had a written confidentiality

or non-compete agreement with IVS. Id. at 724-26 (stressing the

importance of confidentiality agreements in determining whether

information should be regarded as a trade secret). Some IVS proposals were marked confidential, but others were not. Finally, as a matter

of practice, IVS did not require its customers to refrain from disclosing IVS’s pricing information to other potential sources of industrial

cleaning services. Cf. Motor City Bagels, L.L.C. v. The American

Bagel Co., 50 F. Supp.2d 460, 480 (D. Md. 1999) (company did not

meet secrecy requirement when it failed to exact secrecy agreements

from potential investors and the exclusivity language was ineffective).

With regard to factor four, there is little doubt that this factor

weighs in IVS’s favor, as its pricing information was undoubtedly an

asset to IVS and was a weapon that could be used by a competitor.

With regard to factor five, the record does not reflect that IVS

expended a great deal of money in formulating its pricing information; rather, IVS heavily relied on the practical experience of its sales

force, which included Robinson and his lengthy background in the

industrial cleaning services industry. Moreover, IVS’s pricing information is not patented nor is it licensed to others for their use. With

regard to factor six, the record does not reflect that IVS’s approach

to pricing was in any way unique so as to prevent a competitor from

easily duplicating IVS’s pricing techniques. 

Weighing the six factors in their totality, we conclude that IVS’s

pricing information does not constitute a trade secret. IVS’s approach

to pricing was not unique and IVS did not expend a great deal of

money developing its pricing techniques. Moreover, IVS only took

minimal steps to ensure the confidentiality of its pricing information

and there is little doubt that every IVS employee that had access to

IVS’s computer network had access to its pricing information.

Finally, rates for industrial cleaning services were common knowledge in the marketplace as evinced by the market conditions in the

IVS HYDRO, INC. v. ROBINSON 11
mid-Ohio valley. Based on this evidence, we agree with the district

court that IVS’s pricing information does not constitute a trade secret.

Accordingly, we need not address whether Robinson and Onyx misappropriated IVS’s pricing information. 

III

On cross-appeal, Robinson and Onyx argue that the district court

abused its discretion when it denied their motion for attorney’s fees

incurred in defending IVS’s claim for misappropriation of trade

secrets. We review "the denial of an award for attorney fees for abuse

of discretion." People for Ethical Treatment of Animals v. Doughney,

263 F.3d 359, 370 (4th Cir. 2001). An abuse of discretion only arises

if the district court’s "conclusions are based on mistaken legal principles or clearly erroneous factual findings." Id.

Robinson and Onyx seek the attorney’s fees award pursuant to the

West Virginia Uniform Trade Secrets Act, which permits recovery of

attorney’s fees by a prevailing party if the court determines that a

claim of misappropriation of trade secrets was made in bad faith. W.

Va. Code Ann. § 47-22-4. In this connection, Robinson and Onyx

concede that the issue of bad faith is to be determined by the court,

utilizing an objective reasonableness standard. 

In rejecting Robinson and Onyx’s motion for attorney’s fees, the

district court primarily relied on the West Virginia rules governing

attorney conduct in litigation. According to the court, the action was

not brought in bad faith because at no time before or during the litigation was it apparent to counsel that the misappropriation of trade

secrets claim was frivolous or lacked a good faith basis.

The gist of Robinson and Onyx’s argument is that the district court

erred when it looked to the West Virginia rules governing attorney

conduct in litigation to provide the standard governing its decision.

Specifically, Robinson and Onyx argue that the West Virginia rules

governing attorney conduct in litigation evaluate only the good faith

of an attorney bringing a claim, not the good faith of the client on

whose behalf the attorney acts. This distinction has no relevance in

this case. Obviously, an attorney cannot ethically bring and maintain

a claim on behalf of a client who is pressing the same claim in bad

12 IVS HYDRO, INC. v. ROBINSON
faith. Thus, by finding that IVS’s trade secret arguments were not

frivolous and were made in good faith before and during the litigation, the district court necessarily concluded that IVS itself was not

pursuing that claim in bad faith. 

In summary, we simply cannot conclude that the district court

abused its discretion in refusing to grant attorney’s fees to Robinson

and Onyx in this case.

IV

For the reasons stated herein, the judgment of the district court is

affirmed.

AFFIRMED

IVS HYDRO, INC. v. ROBINSON 13