14-4647
Banner Industries of N.E., Inc. v. Wicks



                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                           SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.



       At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
25th day of January, two thousand sixteen.

Present:    ROSEMARY S. POOLER,
            PETER W. HALL,
            SUSAN L. CARNEY,
                        Circuit Judges.
_____________________________________________________

BANNER INDUSTRIES OF N.E., INC.,

                                    Plaintiff-Appellant,

                           v.                                          14-4647-cv

KENNETH L. WICKS, HARRINGTON INDUSTRIAL PLASTICS LLC,

                        Defendants-Appellees.
_____________________________________________________

Appearing for Appellant:            Seth H. Hochbaum, Regnante, Sterio & Osborne LLP, Wakefield,
                                    MA.

Appearing for Appellees:            Andrew Marks, Littler Mendelson, P.C. (Stephen T. Melnick, on
                                    the brief), New York, NY.

Appeal from the United States District Court for the Northern District of New York (Mordue, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order of said District Court be and it hereby is AFFIRMED.
        Banner Industries of N.E., Inc. appeals from the December 1, 2014 memorandum-
decision and order of the United States District Court for the Northern District of New York
(Mordue, J.) granting the motion for summary judgment made by Kenneth L. Wicks and
Harrington Industrial Plastics, LLC. Banner Industries of N.E., Inc. v. Wicks, 71 F. Supp. 3d 284
(N.D.N.Y. 2014). We assume the parties’ familiarity with the underlying facts, procedural
history, and specification of issues for review.

        We affirm for the reasons set forth in the district court’s thorough and well-reasoned
opinion. In order for a party to succeed on a claim for misappropriation of trade secrets, the
party must show “(1) that it possessed a trade secret and (2) that the defendants used that trade
secret in breach of an agreement, [a] confidential relationship or duty, or as a result of discovery
by improper means.” N. Atl. Instruments, Inc. v. Haber, 188 F.3d 38, 43–44 (2d Cir. 1999)
(citing Hudson Hotels Corp. v. Choice Hotels Int'l, 995 F.2d 1173, 1176 (2d Cir. 1993)
(abrogated on other grounds )). Banner argues that the record contains sufficient circumstantial
evidence from which a fact finder can infer that Wicks misappropriated Banner’s confidential
information. The district court properly determined that Banner failed to raise a question of
material fact on this issue. The fact that Wicks had information belonging to Banner does not
give rise to an inference that Wicks misappropriated the information, because even assuming
Wicks possessed Banner’s trade secrets, nothing in the record supports an inference that Wicks
used those trade secrets.

         Further, the district court properly declined to enforce the restrictive covenant as
overbroad. As a general rule, “New York courts disfavor restrictive covenants in the employment
context and will generally enforce them only to the extent they are reasonable and necessary to
protect valid business interests.” Lucente v. Int’l Bus. Mach. Corp., 310 F.3d 243, 254 (2d Cir.
2002). (citing BDO Seidman v. Hirshberg, 93 N.Y.2d 382, 388 (1999)). New York “require[s]
restrictive covenants to be reasonably limited in time, scope and geographical area, and to be
grounded in a legitimate business purpose.” Brown & Brown, Inc. v. Johnson, 25 N.Y.3d 364,
369 (2015). We find no error with the district court’s analysis.

       We have considered the remainder of Banner’s arguments and find them to be without
merit. Accordingly, the order of the district court hereby is AFFIRMED.

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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