Intellectual Property—Trade Secret Law—Is the Arkansas Supreme Court Following Other Jurisdictions Down the Wrong Road in Analyzing Combination Trade Secrets? Wal-Mart Stores, Inc. v. P.O. Market, Inc., 347 Ark. 651, 66 S.W.3d 620 (2002)

and Brief of Appellees at 83, Wal-Mart (No. 00-1223). 84. Wal-Mart, 347 Ark. at 662, 66 S.W.3d at 626-27 (providing that instead of GECC taking title of the goods, the title passed directly from Sam's Club to the consumer). 85. Id., 66 S.W.3d at 627. The appellants contended that this program was not new in the industry but was already in use by other business. Supplemental Abstract and Substituted Brief of Appellant at 286, Wal-Mart Stores, Inc. v. P.O. Market, Inc., 347 Ark. 651, 665 [Vol. 25 INTELLECTUAL PROPERTY In November 1993 O'Banion learned of an article in the Wall Street Journal detailing Sam's Club's new plan to offer bulk purchase financing.86 After reading the article, O'Banion tried to contact Austin, but was unable to reach her. O'Banion did speak with Austin about what had occurred later in November and in April 1994.88 In these taped conversations, 89 Austin revealed that O'Banion had "made it easy for them" to use his plan and that she felt that Wal-Mart had "stepped on" him.90 Austin also informed O'Banion that she was not sure whom at Wal-Mart actually saw the O'Banion concept.91 After talking with Austin, P.O. Market filed suit against Wal-Mart in Pulaski County Circuit Court for trade secret misappropriation. 92 P.O. Market later nonsuited that cause of action, and on April 9, 1999, P.O. Market filed suit in Miller County.93 P.O. Market stated six causes of action, including misappropriation of a trade secret. Wal-Mart answered and filed a motion for summary judgment claiming that the O'Banion concept was not a trade secret. 95 The trial judge rejected the motion, and in March of 2000, the case went to trial.96 After a ten-day trial, the jury returned a verdict for P.O. Market and awarded $6,736,761 in lost profits and $25 million for unjust enrichment. 97 The trial court also awarded P.O. Market $5 million in attorneys' fees and $1125 in costs.98 With interest added, the total judgment was approximately $50 million.99 Wal-Mart appealed the judgment to the Arkansas Supreme Court, stating in part that the O'Banion concept was not a trade secret. 100 S.W.3d 620 (2002) (No. 00-1223). A plan similar to Sam's Club Direct had already been in use at Home Depot and Payless Cashways prior to 1992, but the trial court excluded this evidence from the jury. Id. 86. Wal-Mart, 347 Ark. at 661, 66 S.W.3d at 626. 87. Id., 66 S.W.3d at 626. 88. Id., 66 S.W.3d at 626. 89. Id., 66 S.W.3d at 626. O'Banion admitted that he taped the conversations without Austin's knowledge in anticipation of the lawsuit that he had already decided to file against Wal-Mart. Id., 66 S.W.3d at 626. 90. Id., 66 S.W.3d at 626. 91. Id., 66 S.W.3d at 626. 92. Wal-Mart, 347 Ark. at 662, 66 S.W.3d at 627. 93. Id., 66 S.W.3d at 627. 94. Id., 66 S.W.3d at 627. The six causes of actions were: "breach of implied contract, breach of a confidential agreement, breach of confidential relations, misappropriation of a trade secret, unjust enrichment, and negligence." Id., 66 S.W.3d at 627. 95. Id., 66 S.W.3d at 627. 96. Id. at 664, 66 S.W.3d at 627. 97. Id. at 654, 664, 66 S.W.3d at 621, 628. 98. Wal-Mart, 347 Ark. at 664, 66 S.W.3d at 628. 99. Wal-Mart Wins, supra note 27, at El. 100. Wal-Mart, 347 Ark. at 654, 66 S.W.3d at 621. Wal-Mart had four points for appeal: "(1) a trade secret was not involved; (2) there was no competent evidence of misappropria2003]