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Bid pricing information constitutes a trade secret under Colorado law, the state appeals court ruled April 12. Ovation Plumbing Inc. v. Darrell D. Furton, No. 00CA101, Colo. App. The court affirmed a jury verdict and judgment entered against Darrell D. Furton in a suit brought by Ovation Plumbing Inc. In addition, the court reversed an order entered by the El Paso County District Court denying Ovation’s motion for injunctive relief and remanded for further action. Furton did plumbing work for Ovation, a plumbing subcontractor for Jefferson Properties Inc., a multifamily home developer. Ovation terminated Furton when it became dissatisfied with his work. Furton subsequently submitted a successful bid for a plumbing contract on a similar, but unrelated, multifamily home construction project known as Strawberry Fields. SUIT FILED Ovation sued alleging trade secret misappropriation based upon Furton’s use of its confidential contract pricing and bid information and unfair competition and misappropriation of business value based on Furton’s misrepresentation to the developers of Strawberry Fields about the scope of the work he performed for Ovation. A jury ruled for Ovation. The court entered judgment on the verdict. Ovation moved for injunctive relief. The court denied the motion, finding no proof of irreparable injury and holding that Ovation had an adequate remedy at law. The parties filed cross-appeals. VERDICT AFFIRMED Affirming the verdict and judgment, the appeals court rejected Furton’s argument that the bid pricing information does not constitute a trade secret under Colorado law. “We note that the definition of trade secret in [the state statute] includes ‘confidential business or financial information … or other information relating to any business or profession which is secret and of value,’ ” the appeals court said. “ This definition, together with evidence of value and of measures to protect disclosure, is broad enough to include a bid on a contract. Accordingly, we decline to adopt a per se rule that a bid on a contract cannot be a trade secret as a matter of law.” CONTINUOUS USE The court also rejected Furton’s argument that the bid information is not a trade secret because it was not used continuously in the operation of Ovation’s business, saying, “We will not read a continuous use requirement into this statute when it does not contain such language or any indication of legislative intent to include this concept.” Nor does the fact that the bid was specific to a certain project render it unprotectable as a trade secret, the appeals court said. “The jury was instructed that the bid had to have value to be considered a trade secret,” the court said. “A review of the record reveals that both direct and circumstantial evidence was presented concerning the value of the bid to Ovation and the advantage that knowledge about the bid gave Furton.” The court also affirmed the unfair competition verdict, finding sufficient evidence to support it. INJUNCTIVE RELIEF However, the court reversed the denial of injunctive relief, finding that the lower court failed to enter factual findings on the issue and remanding for such findings or an evidentiary hearing. Ovation is represented by Stephen B. Shapiro and Eloise Henderson Bouzari of McKenna & Cuneo in Denver. Furton is represented by Alan Epstein and Michael L. Luchetta of Hall & Evans in Denver.

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