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EarthWeb Inc. has failed to establish an imminent risk that its former vice president will disclose trade secrets to his new employer, ITWorld.com, the 2nd U.S. Circuit Court of Appeals ruled May 18 ( EarthWeb Inc. v. Mark Schlack, No. 99-9302, 2nd Cir.). The court affirmed a ruling by U.S. District Judge William H. Pauley III of the Southern District of New York lifting a temporary restraining order and denying preliminary injunctive relief to EarthWeb. EarthWeb asserted trade secret misappropriation and breach of contract claims, based on a confidentiality agreement, against Mark Schlack, who was responsible for content on the company’s Web sites during his employment. EarthWeb moved for a temporary restraining order and preliminary injunction prohibiting Schlack from commencing employment with or disclosing trade secrets to ITWorld.com. Judge Pauley granted the temporary restraining order, but lifted it and denied preliminary injunctive relief after limited discovery and oral argument. NO ABUSE OF DISCRETION Affirming, the 2nd Circuit found no abuse of discretion in the lower court’s conclusion that EarthWeb has failed to demonstrate a likelihood of irreparable injury. “EarthWeb has failed to demonstrate that Schlack has removed any of EarthWeb’s proprietary documents or information or is about to violate the duties imposed by his Employment Agreement,” the panel said. “In the absence of any evidence of this nature, the likelihood that EarthWeb will suffer irreparable injury due to Schlack’s employment at ITWorld.com is merely speculative. “The fact finder at trial, when presented with the allegedly new evidence described by EarthWeb in its letter briefs, may well find that EarthWeb’s trade secrets were misappropriated or that Schlack breached the confidentiality provision in his Employment Agreement. On the present record, however, it is our view that the denial of immediate relief was not an abuse of discretion.” EarthWeb is represented by Nathaniel Ackerman of Seyfarth, Shaw, Fairweather & Geraldson in New York. Schlack is represented by Catherine R. Reuben of Robinson & Cole in New York. � Copyright 2000 Mealey Publications, Inc.

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