                                                             2017 WI 75

                  SUPREME COURT           OF   WISCONSIN
CASE NO.:              2015AP643
COMPLETE TITLE:        North Highland Inc.,
                                 Plaintiff-Appellant-Petitioner,
                            v.
                       Jefferson Machine & Tool Inc. and Steven M.
                       Homann,
                                 Defendants,
                       Frederick A. Wells,
                                 Defendant-Respondent.
                         REVIEW OF A DECISION OF THE COURT OF APPEALS
                          Reported at 369 Wis. 2d 223, 880 N.W.2d 182
                                      (2016 – Unpublished)

OPINION FILED:         July 6, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         January 17, 2017

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Jefferson
   JUDGE:              William F. Hue

JUSTICES:
   CONCURRED:
   DISSENTED:          ROGGENSACK, C.J. dissents (opinion filed).
                       R.G. BRADLEY J. dissents, joined by KELLY, J.
                       (opinion filed).
  NOT PARTICIPATING:

ATTORNEYS:


       For the plaintiff-appellant-petitioner, there was a brief
by Kyle B. Hanson and Hanson Law Group, LLP, Barrington, and
oral argument by Kyle B. Hanson.


       For the defendant-respondent, there was a brief by Bruce A.
Schultz, Vincent J. Scipior, and Coyne, Schultz, Becker & Bauer,
S.C., Madison, and oral argument by Bruce A. Schultz.
                                                                     2017 WI 75
                                                             NOTICE
                                               This opinion is subject to further
                                               editing and modification.   The final
                                               version will appear in the bound
                                               volume of the official reports.
No.   2015AP643
(L.C. No.   2012CV125)

STATE OF WISCONSIN                         :            IN SUPREME COURT

North Highland Inc.,

            Plaintiff-Appellant-Petitioner,

      v.
                                                                  FILED
Jefferson Machine & Tool Inc. and Steven M.
Homann,                                                       JUL 6, 2017
            Defendants,                                         Diane M. Fremgen
                                                             Clerk of Supreme Court
Frederick A. Wells,

            Defendant-Respondent.




      REVIEW of a decision of the Court of Appeals.             Affirmed.


      ¶1    ANN   WALSH   BRADLEY,   J.   Petitioner,       North     Highland,

Inc., seeks review of an unpublished per curiam opinion of the

court of appeals affirming a circuit court grant of summary

judgment in favor of Frederick A. Wells ("Wells").1               The court of

      1
       N. Highland Inc. v. Jefferson Mach. & Tool Inc., No.
2015AP643, unpublished slip op. (Wis. Ct. App. Apr. 28, 2016)
(affirming judgment and order entered by the circuit court for
Jefferson County, William F. Hue, J., presiding).

                                                                   (continued)
                                                                            No.   2015AP643



appeals         determined     that   the   circuit       court     properly      entered

summary judgment in favor of Wells.                     It concluded that North

Highland failed to present evidence sufficient to support either

its claim of conspiracy to breach a fiduciary duty or its claim

of misappropriation of a trade secret.                        N. Highland Inc. v.

Jefferson Mach. & Tool Inc., No. 2015AP643, unpublished slip

op., ¶¶11, 26 (Wis. Ct. App. Apr. 28, 2016).

       ¶2        North   Highland     contends     that      the    court   of    appeals

erred and that it is entitled to summary judgment in its favor.

It alleges that Wells conspired to breach a fiduciary duty that

Dwain Trewyn ("Trewyn"), a former North Highland employee, owed

to the company.              North Highland further contends that Wells

misappropriated          a    trade   secret     in    violation      of    Wis.    Stat.

§ 134.90 (2013-14) (Uniform trade secrets act).2

       ¶3        In this review of a grant of summary judgment, we

examine the conspiracy and misappropriation claims through the

lens       of   sufficiency     of    evidence.        We    determine      that     North

Highland has not met its burden to show that there exists a
genuine         issue    of     material        fact    as     to     either       claim.

Consequently, due to insufficiency of evidence, both of North




     Because the court of appeals opinion is an unpublished per
curium, it provides neither precedential nor persuasive value.
Wis. Stat. (Rule) § 809.23(3)(b).
       2
       All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.


                                            2
                                                          No.   2015AP643



Highland's   claims   fail   to   survive   Well's   summary    judgment

motion.3

     ¶4    Accordingly, we affirm the decision of the court of

appeals affirming the circuit court's grant of summary judgment

in favor of Frederick Wells.4




     3
       In its petition for review, North Highland framed the
issues as a question of whether it could maintain suit against
Wells for any of the following:    (a) conspiracy with Trewyn to
violate Trewyn's breach of fiduciary duties to North Highland,
(b) aiding and abetting Trewyn's breach of fiduciary duties to
North Highland, (c) interference with Trewyn's contractual or
fiduciary obligations to North Highland, or (d) for interference
with North Highland's prospective contract with another person.
In its brief, it asserts that the circuit court incorrectly
dismissed these claims on the basis of claim preclusion.

     We observe, as did the court of appeals, that the
evidentiary record in this case is incomplete.     North Highland
asks this court to reverse the circuit court's decision
dismissing its claims against Wells, yet the hearing transcripts
setting forth the circuit court's oral ruling are not in the
record before us. Additionally, the only claim set forth above
that North Highland has briefed or argued before this court is
its conspiracy claim against Wells.         Without evidence or
argument, we do not address the circuit court's grant of summary
judgment on the aiding and abetting or interference claims.
     4
       Although we affirm the court of appeals determination that
North Highland's claim for misappropriation of a trade secret
fails for lack of evidence, we do so with a different focus on
the inquiry. The court of appeals focused on whether there was
sufficient evidence to demonstrate that a bid amount constitutes
a trade secret. See N. Highland Inc. v. Jefferson Mach. & Tool
Inc., No. 2015AP643, ¶¶25 (Wis. Ct. App. Apr. 28, 2016)
(determining that North Highland "fails to explain to this court
why its bid amount constitutes 'information' as that term is
used in Wis. Stat. § 134.90(1)(c).).

                                                           (continued)
                                   3
                                                                   No.    2015AP643



                                       I

      ¶5     This review originates from a lawsuit North Highland

brought     against    Frederick   Wells,   Dwain   Trewyn,   Bay        Plastics,

Inc., and Jefferson Machine & Tool Inc. ("Jefferson Machine").

      ¶6     Wells is the owner of Bay Plastics, a distributer of

customized plastic parts that it purchased from vendors.                   One of

its vendors was North Highland, a small manufacturing company.

Trewyn was an employee of North Highland with job duties that

included     submitting      quotes   and   obtaining     business       for     the

company.5

      ¶7     When Wells decided that he wanted to form a company to

manufacture the parts Bay Plastics sold, he asked Trewyn to be

his   partner     in   the   new   business.      While   Trewyn     was       still

employed     at   North   Highland,    he   and   Wells   formed     their      new




     In contrast, the focus of our inquiry addresses whether
there is sufficient evidence to show misappropriation. Because
our determination that there is insufficient evidence to show
misappropriation is dispositive, we need not further address the
court of appeals' per curium disposition of this claim.

     Likewise,   because  our   determination  that  there   is
insufficient evidence to support a claim for conspiracy to
breach a fiduciary duty is dispositive, we need not reach North
Highland's argument that the circuit court erred in determining
that its civil conspiracy claim is barred under the doctrine of
claim preclusion.
      5
       As set forth more fully below, Trewyn filed a Chapter 7
bankruptcy petition, which ultimately led to a settlement
agreement dismissing North Highland's claims against Trewyn with
prejudice. See infra ¶17.


                                       4
                                                                         No.    2015AP643



manufacturing      company,    Jefferson         Machine.6        Wells        owned     75

percent of Jefferson Machine and Trewyn owned 25 percent.

      ¶8    The underlying dispute arose when both North Highland

and   Jefferson      Machine       submitted       confidential          bids     on      a

manufacturing project for Tyson Foods Inc. ("Tyson").7                                North

Highland alleges that while Trewyn was still its employee, he

formulated     confidential        bids    for     both    North     Highland           and

Jefferson Machine, the company he co-owned with Wells.

      ¶9    Jefferson Machine was awarded the Tyson project, but

its contract was cancelled after North Highland threatened to

seek an injunction, blocking the performance of the contract.

Ultimately,    neither   Jefferson        Machine    nor     North    Highland          was

awarded the Tyson contract.

      ¶10   North Highland subsequently filed a lawsuit against

Trewyn, Jefferson Machine, Wells, and Bay Plastics.                              In its

amended     complaint,   North      Highland       alleged       that:          (1)    the

defendants misappropriated trade secrets; (2) Trewyn breached

his   fiduciary    duties     to   North      Highland     and    that     the        other
defendants conspired with Trewyn in the breach of those duties;

(3) Trewyn breached his contract with North Highland; and (4)

the   defendants    interfered      with      Trewyn's     contract       with        North

Highland.


      6
       Trewyn did not have a non-compete agreement with North
Highland.
      7
       The Tyson project was for the manufacture of 3,000
stainless steel trolley assemblies for use in food production.


                                          5
                                                                  No.    2015AP643



    ¶11     The     affidavits     on     file    demonstrate     that      during

litigation, both Wells and Trewyn repeatedly testified at their

depositions that Wells had no knowledge that Trewyn was bidding

on behalf of North Highland.            For example, Wells testified:

    Q:   Did you know that [Trewyn] was doing bidding on
    behalf of North Highland to some customers——

    A:    No.

    Q:    ——from September to December of 2011?

    A:    No.
    ¶12     Wells    also    repeatedly      testified    that    he     had   no

knowledge   that    Trewyn   was   bidding       specifically    on   the   Tyson

project for North Highland.         For example, he testified:

    Q:   Did you know that [Trewyn] submitted a bid for
    trolleys to Tyson?

    A:    No, I did not.

    Q:   Did you know that [Trewyn] submitted any other
    bids to Tyson for trolleys?

    A:    Any other bids?

    Q:    On North Highland's behalf.

    A:    No.
    ¶13     Trewyn similarly testified that Wells had no knowledge

Trewyn was bidding on the Tyson project for North Highland:

    Q:   And [Wells] knew about your work with Tyson, for
    example?

    A:    I didn't discuss Tyson stuff with him, no.

     . . .

    Q:   Did you tell [Wells] that you had submitted the
    bid [for North Highland] in Exhibit 1?

                                         6
                                                       No.   2015AP643


    A:    No.

    Q:    Why not?

    A: Because there was really no reason to discuss that
    with him.

        . . .

    Q:   Is there any reason why you didn't mention your
    work on the trolleys at North Highland to [Wells]?

    A:    There was no reason to.

    Q:    You didn't think it was important?

    A:    No.
    ¶14     In addition, Wells repeatedly denied that he formed

Jefferson Machine to compete against North Highland:

    Q:   Did you understand that Jefferson Machine & Tool
    was a competing business of North Highland?

    A:     No, no, not necessarily.

                                . . .

    Q: But you knew when you started Jefferson Machine &
    Tool that it would be a competing business to North
    Highland?

    A:     I did not know that, no.8
    ¶15     Wells further testified that he left the bidding at

Jefferson Machine up to Trewyn:

    Q: When [Trewyn] was doing bids for you at Jefferson
    Machine & Tool, did you leave quoting entirely up to
    him?

    A:    Yes.

    8
       As set forth above, Wells asserts that he formed Jefferson
Machine in order to manufacture the parts that Bay Plastics
sold. See supra ¶7.


                                    7
                                                                        No.    2015AP643


       Q:    And you didn't              have   any    oversight     over     his
       bidding, right?

       A:    No.

       Q:    Did you ever ask him about how he formulated bids?

       A:    No, I did not.

       Q:   So you just left quoting at Jefferson Machine &
       Tool up to [Trewyn]?

       A:    Yes.
       ¶16    The circuit court granted in part and denied in part

the defendants' motion for summary judgment.                        Pursuant to the

circuit court order, Bay Plastics was dismissed as a party from

the    lawsuit      and   the    trade    secret      and   contract   claims       were

dismissed with prejudice.                The breach of fiduciary duty and

conspiracy to breach a fiduciary duty claims remained.

       ¶17    Two days before trial on the fiduciary duty claims,

Trewyn filed a Chapter 7 bankruptcy petition.                          In response,

North Highland filed an adversary claim against Trewyn arguing

that its state law claims were non-dischargeable in bankruptcy.

Ultimately, North Highland and Trewyn entered into a settlement

agreement that dismissed North Highland's claims against Trewyn

with    prejudice.         The    settlement       allowed    North    Highland       to

maintain     its     state      law   claims    against     Wells    and      Jefferson

Machine.

       ¶18    Wells moved to dismiss the remaining claims against

both him and Jefferson Machine, arguing that a litigant may not

maintain a derivative conspiracy claim when it has settled and
dismissed all claims against the actual tortfeasor.                     The circuit


                                            8
                                                                                            No.    2015AP643



court granted Wells' motion to dismiss.                              North Highland appealed

the     circuit     court's        decision,                naming          Wells      as     the        only

respondent.9

      ¶19    The    court     of    appeals             issued          a     per     curium       opinion

affirming     the    circuit       court       order.              It       determined            that    the

circuit     court    properly       entered            summary          judgment         in       favor    of

Wells     because    North       Highland          failed          to       set      forth    any    facts

establishing        there     was        a    conspiracy.                       N.     Highland,          No.

2015AP643,        unpublished        slip          op.,        ¶¶16-17.                 Likewise,          it

determined       that     North    Highland             did    not          meet      its     burden       of

establishing that the amount of its bid for the Tyson project

constituted a trade secret.                  Id., ¶26.

                                               II

      ¶20    In    this     case    we       are       asked       to       review      the       court    of

appeals' decision affirming the circuit court's grant of summary

judgment    in     favor    of     Wells.              We    review         a     decision        granting

summary judgment independently of the determinations rendered by

the circuit court and the court of appeals.                                     Lambrecht v. Estate
of    Kaczmarczyk,         2001     WI        25,           ¶21,        241       Wis. 2d 804,            623

N.W.2d 751.

      ¶21    On review, we apply the same two-step analysis the

circuit court applies pursuant to Wis. Stat. § 802.08(2).                                                  It

provides that the "judgment sought shall be rendered if the


      9
       Given that the claims against Jefferson Machine were
dismissed and not raised on appeal, we are not reviewing any
claims that may apply to Jefferson Machine.


                                                   9
                                                                        No.   2015AP643



pleadings,      depositions,        answers        to     interrogatories,         and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law."

Wis. Stat. § 802.08(2).         We examine the record in the light most

favorable to the non-moving party.                 Lambrecht, 241 Wis. 2d 804,

¶3 (citation omitted).

     ¶22    "The mere allegation of a factual dispute will not

defeat     an   otherwise    properly        supported     motion       for    summary

judgment."      Helland v. Kurtis A. Froedert Mem'l Lutheran Hosp.,

229 Wis. 2d 751, 756, 601 N.W.2d 318 (Ct. App. 1999).                         A party

opposing a motion for summary judgment must demonstrate that

there exists a genuine issue of material fact.                    Id.    "It is not

enough     to    rely    upon    unsubstantiated           conclusory         remarks,

speculation,     or     testimony   that      is    not   based     upon      personal

knowledge."     Id. (citation omitted).10

10
    The reliance Chief Justice Roggensack's dissent places
on Leske v. Leske, 197 Wis. 2d 92, 97-98, 539 N.W.2d 719
(Ct. App. 1995), is misguided.     Leske is distinguishable
from the facts of this case because the moving party
apparently submitted no material in support of its motion
beyond a statement that the plaintiff lacked evidence.

The dissent further misreads Leske, stating that "[if] a
movant's submissions do not establish by undisputed facts
that the nonmoving party has no claim or defense, the
movant has failed to meet its burden.    Roggensack, C.J.,
dissent, ¶94 (citing Leske, 197 Wis. 2d at 96-97).   Quite
the contrary, Leske instructs that "the moving party need
not support its motion with affidavits that specifically
negate the opponent's claim." 197 Wis. 2d at 97 (quotation
and citations omitted).


                                        10
                                                                         No.   2015AP643



       ¶23   Finally, a claim for conspiracy to breach a fiduciary

duty requires a more stringent test than whether a reasonable

inference may be drawn from the facts.                     Maleki v. Fine-Lando

Clinic    Chartered,      S.C.,    162    Wis. 2d 73,       84,    469     N.W.2d 629

(1991).      To prove a conspiracy, a plaintiff "must show more than

a mere suspicion or conjecture that there was a conspiracy or

that there was evidence of the elements of a conspiracy."                            Id.

In order to sustain a jury verdict of conspiracy, there "must be

a quantum of evidence that the trial judge can conclude leads to

a   reasonable       inference    of     conspiracy."        Id.    at     85.        If

circumstantial evidence supports equal inferences of lawful or

unlawful action, then the conspiracy is not proven and the case

should not be submitted to the jury.               Id.

                                         III

       ¶24   We address first North Highland's claim that Wells and

Trewyn conspired to breach a fiduciary duty that Trewyn owed to

North Highland.

       ¶25   Civil    conspiracy       involves    "a    combination      of   two    or
more     persons     by   some    concerted       action   to     accomplish       some

unlawful purpose or to accomplish by unlawful means some purpose

not in itself unlawful."           City of Milwaukee v. NL Indus., Inc.,

2005 WI App 7, ¶25, 278 Wis. 2d 313, 691 N.W.2d 888 (citation

omitted).     A civil conspiracy claim has three elements:                     (1) the

formation and operation of a conspiracy; (2) a wrongful act or

acts done pursuant to the conspiracy; and (3) damage resulting




                                          11
                                                                 No.   2015AP643



from the act or acts.      Onderdonk v. Lamb, 79 Wis. 2d 241, 247,

255 N.W.2d 507 (1977).11

     ¶26    North   Highland,   therefore,      has   the    burden    to   "set

forth specific evidentiary facts that are admissible in evidence

showing that there is a genuine issue for trial" of such overt

acts taken in furtherance of the conspiracy.                Buckett v. Jante,

2009 WI App 55, ¶29, 316 Wis. 2d 804, 767 N.W.2d 376 (citations

omitted).      To survive summary judgment, "there must be facts

that show some agreement, explicit or otherwise, between the

alleged     conspirators   on   the    common     end   sought        and   some

cooperation toward the attainment of that end."                 Augustine v.

Anti-Defamation League of B'Nai B'Rith, 75 Wis. 2d 207, 216, 249

N.W.2d 547 (1977).

     ¶27    Additionally, "[t]o prove a conspiracy, a plaintiff

must show more than a mere suspicion or conjecture that there

was a conspiracy or there was evidence of the elements of a

conspiracy."     Maleki, 162 Wis. 2d at 84.           "[I]f circumstantial

evidence supports equal inferences of lawful action and unlawful
action, then the claim of conspiracy is not proven."                    Allen &


     11
        "[T]here is no such thing as a civil action for
conspiracy." Singer v. Singer, 245 Wis. 191, 195, 14 N.W.2d 43
(1944). Instead, there is only an action for damages caused by
acts pursuant to a conspiracy, but none for the conspiracy
alone.    Id.   Thus, "[i]n a civil action for damages for an
executed conspiracy, the gist of the action is the damages."
Id. "It is only the existence of overt acts which is critical,
in order that damages occur, not the actionability of overt acts
themselves." Radue v. Dill, 74 Wis. 2d 239, 244, 246 N.W.2d 507
(1976).


                                      12
                                                                           No.    2015AP643



O'Hara, Inc. v. Barrett Wrecking, Inc., 898 F.2d 512, 516 (7th

Cir. 1990) (applying Wisconsin law).

      ¶28    North Highland cannot sustain this burden because it

points      to       no     evidence    that    Wells     was     aware    that    Trewyn

formulated both Jefferson Machine's and North Highland's bid on

the Tyson project.                  If Wells was not aware that Trewyn had

allegedly breached his fiduciary duty to North Highland, Wells

could not take overt acts in furtherance of the conspiracy.

See, e.g., Bruner v. Heritage Companies, 225 Wis. 2d 728, 736,

593 N.W.2d 814 (Ct. App. 1999) ("In short, a civil conspiracy

entails      two       or    more    persons        knowingly    committing       wrongful

acts.").

      ¶29    However,          North   Highland       contends     that   the     evidence

submitted to the circuit court on summary judgment is sufficient

to   allow       a     reasonable      inference       that     Wells   conspired     with

Trewyn.      It asserts that the evidence demonstrates that there

was a conspiracy because:                 (1) Wells and Trewyn combined to form

Jefferson Machine and compete against North Highland; (2) Wells
purchased the manufacturing space and equipment and materials

necessary         for       the   Tyson     project;      (3)     Wells    incorporated

Jefferson Machine; and (4) Wells told Trewyn that he should bid

on the Tyson project.

      ¶30    Based on this evidence of Wells and Trewyn's working

relationship at Jefferson Machine, an inference may be drawn

that Trewyn shared his knowledge of the Tyson bid with Wells.

However,         the      unrebutted      deposition      testimony       supports     the
opposite conclusion.                There is no evidence of the formation and
                                               13
                                                                   No.    2015AP643



operation of a conspiracy.          In his deposition, Wells repeatedly

denied that he formed Jefferson Machine to compete against North

Highland:

    Q:   Did you understand that Jefferson Machine & Tool
    was a competing business of North Highland?

    A:    No, no, not necessarily.

                                     . . .

    Q: But you knew when you started Jefferson Machine &
    Tool that it would be a competing business to North
    Highland?

    A:    I did not know that, no.
    ¶31     Wells      also   repeatedly     testified     that    he     had     no

knowledge   that    Trewyn    was   bidding      specifically     on   the   Tyson

project for North Highland.         For example, he testified:

    Q:   Did you know that [Trewyn] submitted a bid for
    trolleys to Tyson?

    A:    No, I did not.

    Q:   Did you know that [Trewyn] submitted any other
    bids to Tyson for trolleys?

    A:    Any other bids?

    Q:    On North Highland's behalf.

    A:    No.
    ¶32     As   set     forth   more    fully    above,   Trewyn        similarly

testified that Wells had no knowledge Trewyn was bidding on the

Tyson project for North Highland.                He stated that he did not

discuss his work on the Tyson project with Wells and that he did

not tell Wells that he submitted a bid for North Highland.                      When



                                        14
                                                                             No.    2015AP643



asked "why not?," Trewyn responded that "there was really no

reason to discuss it."             See supra, ¶13.

    ¶33        Not only is the first element of a conspiracy not met,

there    is    no     evidence     that   Wells     told    Trewyn      to   bid     on    the

Jefferson      Machine       project.       Indeed,        Wells   testified         to    the

contrary during his deposition:

    Q: When [Trewyn] was doing bids for you at Jefferson
    Machine & Tool, did you leave quoting entirely up to
    him?

    A:        Yes.

    Q:    And you didn't                  have    any   oversight        over       his
    bidding, right?

    A:        No.

    Q:        Did you ever ask him about how he formulated bids?

    A:        No, I did not.

    Q:   So you just left quoting at Jefferson Machine &
    Tool up to [Trewyn]?

    A:        Yes.
    ¶34        Without      any    contradictory        evidence     in      the     record,
North's Highland's allegation that Wells and Trewyn conspired to

breach a fiduciary duty claim is speculative at best.                               However,

speculation          is   insufficient      to    create      a    genuine         issue   of

material fact on summary judgment.                  Helland, 229 Wis. 2d at 756.

Additionally, on a claim for conspiracy, a reasonable inference

must be supported by a quantum of the evidence.                              Maleki, 162

Wis. 2d at 85.

    ¶35        North Highland has produced no evidence that Wells and
Trewyn    entered         into    an   agreement,    explicit      or     otherwise,        to

                                            15
                                                                    No.   2015AP643



conspire to breach Trewyn's fiduciary duty to North Highland.

There is no evidence that Wells knowingly intended to compete

with North Highland for the Tyson project, let alone by improper

means.      North Highland makes arguments aplenty in support of its

position, but arguments are not facts.

      ¶36    Accordingly,       we   determine   that   North    Highland      has

failed to provide sufficient evidence to support its conspiracy

to breach a fiduciary duty claim.

                                        IV

      ¶37    For the same reasons that North Highland's conspiracy

to breach a fiduciary duty claim fails, it also cannot succeed

on   its    claim   that   Wells     misappropriated    a   trade     secret    in

violation of Wis. Stat. § 134.90.

      ¶38    According     to   North   Highland,   its     confidential       bid

amount on the Tyson project constitutes "information" under Wis.

Stat.       § 134.90(1)(c)(1)-(2).           Pursuant       to   Wis.       Stat.

§ 134.90(1)(c), a trade secret is defined as a specific type of

information:

      "Trade secret" means information, including a formula,
      pattern,   compilation,   program,   device,   method,
      technique or process to which all of the following
      apply:

             1. The information derives independent economic
             value, actual or potential, from not being
             generally known to, and not being readily
             ascertainable by proper means by, other persons
             who can obtain economic value from its disclosure
             or use.

             2. The information is the subject of efforts to
             maintain its secrecy that are reasonable under
             the circumstances.
                                        16
                                                                              No.   2015AP643



       ¶39    The    court       of    appeals    observed       that    as     the    party

seeking trade secret protection, North Highland has the burden

of   establishing      that       its     bid    amount    for    the    Tyson      project

constitutes a trade secret.                N. Highland Inc. v. Jefferson Mach.

& Tool Inc., No. 2015AP643, unpublished slip op. (Wis. Ct. App.

Apr. 28, 2016) (citing Wis. Elec. Power Co. v. Pub. Serv. Comm'n

of Wis., 106 Wis. 2d 142, 146, 316 N.W.2d 120 (Ct. App. 1981),

aff'd, 110 Wis. 2d 530, 329 N.W.2d 178 (1983)).                               However, we

need   not    wade    into       the    discussion    addressing         whether      a    bid

amount    constitutes        a    trade     secret,       and,   if     so,   under       what

circumstances.        Even if North Highland could present evidence

that its bid amount constitutes "information" as that term is

used     in   Wis.     Stat.          § 134.90(1)(c),       it    has     not       provided

sufficient evidence demonstrating misappropriation.

       ¶40    Wisconsin Stat. § 134.90(2) provides that a person may

not use or disclose a trade secret when it was acquired through

improper means:

       Misappropriation. No person, including the state, may
       misappropriate or threaten to misappropriate a trade
       secret by doing any of the following:

              (a) Acquiring the trade secret of another by
              means which the person knows or has reason to
              know constitute improper means.

              (b) Disclosing or using without express or
              implied consent a trade secret of another if the
              person did any of the following:

                     1. Used improper means to acquire knowledge
                     of the trade secret.

                     2. At the time of disclosure or use, knew or
                     had reason to know that he or she obtained

                                             17
                                                                      No.    2015AP643


                     knowledge of the trade secret through any of
                     the following means:

                            a. Deriving it from or through a person
                            who utilized improper means to acquire
                            it.

                            b. Acquiring it under circumstances
                            giving rise to a duty to maintain its
                            secrecy or limit its use.

                            c. Deriving it from or through a person
                            who owed a duty to the person seeking
                            relief to maintain its secrecy or limit
                            its use.

                            d. Acquiring it by accident or mistake.
      ¶41    It is apparently undisputed that Trewyn formulated the

confidential bids for the Tyson project on behalf of both North

Highland and Jefferson Machine.              However, the parties dispute

whether      Wells    was    aware   that    Trewyn     had    access       to    North

Highland's     confidential      bid   amount    at     the   same   time        he   was

formulating      Jefferson       Machine's       bid.          See    Wis.        Stat.

§ 134.90(2)(b)2.        According to North Highland, it is reasonable

to   infer    from    Trewyn's   testimony      that    he    told   Wells       he   was

bidding on the Tyson contract and that Wells aided Trewyn in
breaching his fiduciary duty to North Highland.

      ¶42    Contrary to North Highland's assertions, the evidence

in the record fails to establish that Wells had knowledge of,

let alone "acquired," "disclosed," or "used" the bid amount.12


      12
       Chief Justice Roggesack's dissent maintains that the
circuit court improperly granted summary judgment because Wells
"failed to make a prima facie showing of sufficient undisputed,
material facts . . . ." Roggensack, C.J., dissent, ¶48.

                                                                        (continued)
                                        18
                                                              No.   2015AP643



Indeed, North Highland has not alleged in its amended complaint

that    Wells      personally   acquired,    disclosed   or   used    North

Highland's bid amount in any way.           There are simply no facts or

reasonable inferences derived from the facts to support such an

allegation.


     Rather than offering disputed facts, however, the dissent
creates its own facts that are unsupported by the evidentiary
record.

     For example, the dissent asserts that Wells "knew that the
company he and Trewyn owned were making use of North Highland's
bid information, but he thought North Highland had no right to
object to this." Id., ¶109. To the contrary, Wells denied any
knowledge of North Highland's bid information:

       Q:   This is Exhibit 3. It is a quote from Dwain
       Trewyn on North Highland's behalf to Tyson for
       trolleys, right?

       A:   Yes.

                                   . . .

       Q:   And you didn't know about either Exhibit 1 or
       Exhibit 3?

       A:   Yes, I did not know about these.

       Q:   And just like for Exhibit 1, you didn't think to
       ask?

       A:   No, I did not ask.

     Again, the dissent tells the reader only part of the story,
leaving the reader not merely ill-informed, but misinformed.
Resting its analysis and conclusion on only a cherry-picked
portion of the testimony about whether Trewyn had a non-compete
agreement with North Highland, together with unsupported
inferences, the dissent asserts that "Wells knew that the
company he and Trewyn owned were making use of North Highland's
bid information." C.J. Roggensack, Dissent, ¶109.


                                     19
                                                                                No.    2015AP643



       ¶43     As set forth above, both Wells and Trewyn repeatedly

testified      that    Wells    had    no   knowledge         that     Trewyn         was   also

bidding on behalf of North Highland.                    There is also no evidence

in the record that Trewyn disclosed the bid amount to Wells.

Given    the      unrebutted    testimony        that     Wells      was    unaware         that

Trewyn formulated North Highland's bid on the Tyson project, we

determine that North Highland has failed to meet its burden of

providing sufficient evidence of misappropriation.

                                             V

       ¶44     In sum, we determine that North Highland has not met

its burden to show that there exists a genuine issue of material

fact    as   to    whether     Wells   and       Trewyn    conspired        to        breach   a

fiduciary      duty.     The    evidence         of    record     is   insufficient            to

support a conspiracy claim.

       ¶45     We likewise conclude that North Highland has not met

its burden of demonstrating that there exists a genuine issue of

material fact regarding its claim that Wells misappropriated a

trade secret.          Again, the evidence of record fails to support
such a claim.          Consequently, both of North Highland's claims

fail to survive Well's summary judgment motion.

       ¶46     Accordingly, we affirm the decision of the court of

appeals affirming the circuit court's grant of summary judgment

in favor of Frederick Wells.

       By    the   Court.—The     decision        of    the    court       of    appeals       is

affirmed.




                                            20
                                                           No.   2015AP643.pdr


    ¶47     PATIENCE DRAKE ROGGENSACK, C.J.          (dissenting).        The

review before us arises from summary judgment.            I conclude that

defendants,1 as the moving party to whom summary judgment was

granted, failed to make a prima facie showing of sufficient

undisputed, material facts that North Highland Inc.'s bid to

construct and supply Tyson Foods, Inc. with 3,000 trolleys, (the

Trolley Contract) did not meet the definition of a trade secret

as set out in Wis. Stat. § 134.90(1)(c), which Fredrick A. Wells

(Wells) and Jefferson Machine & Tool, Inc. (Jefferson Machine)

misappropriated.        Leske v. Leske, 197 Wis. 2d 92, 96-97, 539

N.W.2d 719 (1995).

    ¶48     Defendants also failed to make a prima facie showing

of sufficient undisputed, material facts that Wells, Jefferson

Machine and Dwain D. Trewyn (Trewyn) did not obtain or use North

Highland's    Trolley    Contract   bid    information   contrary   to   Wis.

Stat. § 134.90(2).        Id.    Accordingly, I conclude that summary

judgement     was   improperly   granted    dismissing   North   Highland's

claim   for    trade    secret   misappropriation    against     Wells    and
Jefferson Machine.

    ¶49     And finally, I conclude that claim preclusion cannot

be applied against North Highland based on the Stipulation and

Order that dismissed Trewyn from this lawsuit.               Therefore, I

would reverse the decision of the court of appeals and remand



    1
       Initially Dwain D. Trewyn, Frederick                 A. Wells and
Jefferson Machine & Tool, Inc. were defendants.            On this review,
only Wells and Jefferson Machine remain.


                                     1
                                                               No.   2015AP643.pdr


for a jury trial of North Highland's claim against Wells and

Jefferson Machine for misappropriation of a trade secret.2

                              I.     BACKGROUND

                               1.     Parties

     ¶50    The Trolley Contract to fabricate and deliver 3,000

stainless    steel   twin   trolley      assemblies     for    Tyson's   Council

Bluff, Iowa facility is central to this dispute.

     ¶51    Trewyn worked for North Highland as a salesman until

the end of December 2011.          As part of his job, he bid, sometimes

referred to as "quoted," on potential contracts for work that

North Highland hoped to obtain.

     ¶52    Trewyn   agreed   to    be   subject   to    the   confidentiality

restrictions contained in North Highland's Associate Handbook.

It provided in relevant part:

     [D]o not discuss confidential business with anyone who
     does not work for North Highland Inc.             Such
     confidential information includes, but is not limited
     to . . . pending projects and proposals, pricing or
     costing information . . . .     Anyone who discloses
     trade secrets or confidential business information
     will be subject to disciplinary action, up to and
     including termination of employment and legal action,
     even if he/she does not actually benefit from the
     disclosed information.[3]

     2
       Although I do not address North Highland's breach of
fiduciary duty claim, a reversal by this court would abrogate
the court of appeals' decision in full. Blum v. 1st Auto & Cas.
Ins. Co., 2010 WI 78, ¶46, 326 Wis. 2d 729, 786 N.W.2d 78
("Unless this court explicitly states otherwise, a court of
appeals opinion overruled by this court no longer retain[s] any
precedential value.").   Therefore, all North Highland's claims
against Wells would be available for trial upon remand. Id.
     3
         R. at 187:6.


                                         2
                                                                  No.   2015AP643.pdr


     ¶53    In     September     of    2011,   Wells     incorporated     Jefferson

Machine.        Trewyn and Wells were the sole shareholders, with

Wells owning 75% and Trewyn owning 25%.                  Wells and Trewyn also

were the sole employees of Jefferson Machine.

     ¶54    This lawsuit arose out of actions of Trewyn, while he

was employed by North Highland, and of Wells, who knew that

Trewyn was a salesman for North Highland at the time Trewyn and

Wells prepared the Trolley Contract bid for Jefferson Machine

that competed with North Highland's bid.                   A lengthy deposition

was taken of Wells by an attorney for North Highland.                            The

quotes     below    are   from      that   deposition,      Record      47,   unless

indicated otherwise.4

                               2.     Bidding process

     ¶55    On November 11, 2011, Tyson sent a RFQ (request for

quotes)    on    the   Trolley      Contract   to    a   number   of    businesses.

North Highland was on the RFQ list.                 Jefferson Machine was not.5

Bids ("quotes") were not accepted by Tyson Foods unless the

bidder was on Tyson's list of authorized bidders.
     ¶56    However, on December 1, 2011, Trewyn faxed Jefferson

Machine's bid on the Trolley Contract to Tyson.                        On the cover

sheet of the bid Trewyn said, "I received permission to quote




     4
       Affidavit of Vincent J. Scipior, made in Support of
Defendants Frederick A. Wells, Bay Plastics Inc., and Jefferson
Machine & Tool Inc.'s Motion for Summary Judgment.      Vincent
Scipior is an attorney for the defendants.
     5
         R. at 76:4.


                                           3
                                                            No.   2015AP643.pdr


the trolley assy's from Ray R.            I hope that is not a problem."6

Wells was aware of this.     At his deposition, Wells testified:

    Q       And Dwain was the one who got the opportunity for
            Jefferson Machine & Tool to bid on the trolley
            contract?

    A       Yes.[7]
    ¶57     Trewyn and Wells8 developed Jefferson Machine's bid on

the Trolley Contract.      Wells testified:

    Q       That's Exhibit 5.         That is     Dwain's    quote on
            Jefferson Machine     &     Tool's     behalf    for the
            trolleys.

    A       Okay.

    Q       Do you remember that?

    A       Yes, Dwain put this together.

    Q       And Dwain told you about it?

    A       Yes.[9]
    ¶58     It is undisputed that Trewyn was an employee of North

Highland when he and Wells submitted Jefferson Machine's bid.10

Wells knew that Trewyn was employed at North Highland at that

time.    He testified:



    6
         R. at 65:6.
    7
         R. at 47:15-16.
    8
       Wells had a sample trolley made at Tyson's request, and he
purchased the equipment necessary to perform the Trolley
Contract.
    9
         R. at 47:20.
    10
         Jefferson Machine's bid, R. at 65:7.


                                      4
                                                                 No.    2015AP643.pdr

    Q       Do you remember         when      you    got     the       trolley
            contract?

    A       I don't recall the date.

    Q       It was in December of 2011, right?

    A       I believe so.

    Q       Do you know when Dwain quit his job at North
            Highland?

    A       In December, end of December.

    Q       The end of December?

    A       Yes.

    Q       After Jefferson Machine & Tool got the trolley
            contract?

    A       Yes.[11]
    ¶59     Wells also acknowledged that he knew that Jefferson

Machine    was     a   competing   business     of   North       Highland.        He

testified:

    Q       So Jefferson Machine & Tool              was     a     competing
            business of North Highland?

    A       It's the American way. You can compete. There's
            competitors all up and down the highway here for
            machine   houses,   injection   molders,   vacuum
            formers, fabricators. Look in the phone book.

    Q       So you'd like to change your answer, yes, they
            are competing businesses?

    A       They could be.[12]
    ¶60     However, we can infer from Wells' testimony that he

believed     he    and    Trewyn   could      use    North       Highland's      bid


    11
          R. at 47:11.
    12
          R. at 47:9.


                                      5
                                                       No.   2015AP643.pdr


information because Trewyn did not have a non-compete agreement

with North Highland.    He testified:

    Q       Did you think that North Highland had any right
            to have its employees not compete with them at
            the same time as they were employed at North
            Highland?

    A       Say that again.

    Q       Did you think that North Highland had any right
            to have its employees not compete against them
            while they were still employed at North Highland?

    A       There was no non-compete form with them.

    . . . .

    Q       And the reason why you think they don't have that
            right is because they didn't have an express non-
            compete clause in their employment contract?

    A       Yes.13
    ¶61     Wells was actively involved in bidding on the Trolley

Contract.    He testified:

    Q       This is Exhibit 2.  I'm going to show you email
            6. That is an email from Gordon Slothower to you
            and Dwain, right?

    A       Yes.

    Q       And the email right on the top, it starts,
            "Attached is the revised," do you see where I'm
            pointing to?

    A       Yes.

    Q       Why was he giving you a revised trolley drawing?

    A       I don't know.     He copied me on whatever he sent
            to Dwain.


    13
         R. at 47:12.


                                   6
                                                               No.   2015AP643.pdr

    . . . .

    Q       Well, when you're putting together the quote, the
            number, how much you would bid on the trolley
            contract, how would you formulate the number?

    A       By the quotes on the raw material and the
            machining time and the assembly time to put the
            part together.

    . . . .

    Q       For the trolley contract at Jefferson Machine &
            Tool, were you aware that Tyson asked for samples
            of the trolleys to be created?

    A       Yes.14
    ¶62     Jefferson     Machine    underbid      North   Highland       and    was

awarded the Trolley Contract.               This lawsuit followed.          North

Highland claimed for misappropriation of trade secrets, alleging

that Trewyn took its Trolley Contract bid and Wells, who had

reason to know that it was improper for Trewyn to disclose and

use North Highland's bid, aided and abetted Trewyn and Jefferson

Machine    in     the   misappropriation      of   North   Highland's           trade

secret.    A jury trial was demanded in the complaint.

    ¶63     The      circuit    court   granted      summary     judgment         to
defendants,     dismissing     the   complaint.      The   court     of   appeals

affirmed, based on its conclusion that North Highland had not

proved that a bid was the type of information set forth in Wis.

Stat. § 134.90(1)(c).          North Highland Inc. v. Jefferson Mach. &

Tool Inc., No. 2015AP643, unpublished slip op. (Wis. Ct. App.

April 28, 2016).         The court of appeals opined, "As the party

seeking trade secret protection, it is North Highland’s burden

    14
          R. at 47:19-27.


                                        7
                                                                    No.   2015AP643.pdr


to establish that the amount of its bid for the Tyson project

constitutes a trade secret."                Id., ¶26 (citing Wisconsin Elec.

Power Co. v. PSC, 106 Wis. 2d 142, 146, 316 N.W.2d 120 (1981),

which    interpreted       Wis.     Stat.         § 943.205(2)(1975)         and    not

§ 134.90).

                                 II.    DISCUSSION

                           A.     Standard of Review

      ¶64   Whether    a   bid    is    a    trade      secret    because    it    is   a

compilation    of   costs,      labor   and       profit   that    has    independent

economic value from not being generally known to or                           readily

ascertainable     by   proper     means      by    competitors,     and     for    which

reasonable efforts to maintain its secrecy were taken, presents

questions of fact.         Minuteman, Inc. v. Alexander, 147 Wis. 2d

842, 849, 434 N.W.2d 773 (1989).

      ¶65   Wisconsin Stat. § 134.90 is Wisconsin's enactment of

the Uniform Trade Secrets Act.                  Id. at 851.        Sub section (7)

provides:

      UNIFORMITY OF APPLICATION AND CONSTRUCTION.
                                           This section shall
      be applied and construed to make uniform the law
      relating to misappropriation of trade secrets among
      states enacting substantially identical laws.
We   have   recognized     and    followed        the   statutory    directive      for

Wisconsin's enactments of uniform laws in other decisions.                          For

example in Estate of Matteson, we said,

      The purpose of uniform laws is to establish both
      uniformity of statutory law and uniformity of case law
      construing  the   statutes,  ensuring   certainty  and
      guidance to litigants who rely on courts to interpret
      uniform statutes in a predictable and consistent
      manner.


                                            8
                                                                   No.    2015AP643.pdr


Estate of Matteson v. Matteson, 2008 WI 48, ¶42, 309 Wis. 2d

311, 749 N.W.2d 557.

       ¶66     It is the majority view of those courts that have

considered the standard of review that whether a trade secret

exists is a question of fact.              See, e.g., All West Pet Supply v.

Hill's Pet Products, 840 F. Supp. 1433, 1437-38 (D. Kan. 1993);

Network Telecommunications, Inc. v. Boor-Crepeau, 790 P.2d 901,

902 (Colo. App. 1990); Defiance Button Mach. Co. v. C&C Metal

Products Corp., 759 F.2d 1053, 1063 (2d Cir. 1985).

       ¶67     In order to provide the benefits of the Uniform Trade

Secrets       Act   to     Wisconsin    litigants,     Wisconsin      courts        should

employ the majority interpretation for the standard of review

accorded to trade secret claims.                  Accordingly, I conclude that

whether a trade secret exists under Wis. Stat. § 134.90 is a

question of fact to be determined by the trier of fact.

       ¶68     We     independently      review     whether      North        Highland's

complaint was properly dismissed on summary judgment.                            Burbank

Grease Services, LLC v. Sokolowski, 2006 WI 103, ¶6, 294 Wis. 2d
274,    717    N.W.2d       781.   In    order    to   affirm    summary        judgment

dismissing         North    Highland's   trade     secret    claim,      we    would    be

required to conclude that the defendants made a prima facie

showing       of    sufficient,    undisputed      material     facts     that      North

Highland's bid for the Trolley Contract was not a trade secret,

which        Wells,        Jefferson     Machine       and      Trewyn        did      not

misappropriate.            Leske, 197 Wis. 2d at 97-98.          "A statement that

the plaintiff lacks evidence is insufficient" to meet the moving
party's burden at summary judgment.                Id. at 97.

                                           9
                                                                            No.    2015AP643.pdr


    ¶69     Here,         the   interpretation          of    Wis.    Stat.       § 134.90      is

intertwined         with    summary        judgment.          The     interpretation           and

application of a statute present questions of law that we review

independent of the decisions of the court of appeals and circuit

court, but benefitting from their discussions.                          State v. Duchow,

2008 WI 57, ¶11, 310 Wis. 2d 1, 749 N.W.2d 913 (citing Marder v.

Bd. of Regents of the Univ. of Wis. Sys., 2005 WI 159, ¶19, 286

Wis. 2d 252, 706 N.W.2d 110).

    ¶70     And finally, whether claim preclusion was correctly

applied    by       the    circuit    court      is    a    question    of        law    for   our

independent review.             Lindas v. Cady, 183 Wis. 2d 547, 552, 515

N.W. 458 (1994).

                                     B.    Trade Secret

                                1.   General principles

    ¶71     Trade secret law in Wisconsin is established by Wis.

Stat.   § 134.90.            Section       134.90      made   significant          changes     in

trade secret law from that which was formerly set out in Wis.

Stat.     § 943.205(2)          (1975).          For       example,    Wisconsin           courts
interpreted § 943.205(2) (1975) by following Restatement (First)

Torts § 757, cmt. b (1939).                     See, e.g., Abbott Laboratories v.

Norse Chemical Corp., 33 Wis. 2d 445, 147 N.W.2d 527 (1967) and

Gary Van Zeeland Talent, Inc. v. Sandas, 84 Wis. 2d 202, 267

N.W.2d 242 (1978).

    ¶72     The Restatement (First) of Torts § 757, cmt. b (1939)

engrafted       a    "continuous          use   requirement"         onto    the        statutory

definition of trade secret, as did Wisconsin's appellate courts.
For example, Wisconsin Elec. Power Co., 106 Wis. 2d at 147-48,

                                                10
                                                                   No.   2015AP643.pdr


directed    that    in    order    to    find    protection    under     Wisconsin's

trade secret law a party must show that the information does not

relate "to single or ephemeral events in the conduct of the

business, as, for example, the amount or other terms of a secret

bid   for    a   contract,"       but    rather       the   information     must     be

"continually used in the operation of the business."                          Id. at

147-48    (quoting       Restatement     of     Torts    (First)   § 757,    cmt.     b

(1939)).

      ¶73    In Corroon v. Hosch, 109 Wis. 2d 290, 295, 325 N.W.2d

883 (1982), we affirmed that Wisconsin's former trade secret

statute,     Wis.    Stat.     § 943.205(2)        (1975),     incorporated         the

definition of Restatement (First) Torts § 757, cmt. b (1939).

Many other states did the same before the Uniform Trade Secret

Act was promulgated by the Uniform Law Commission.                       See Richard

F. Dole, Jr., The Contours of American Trade Secret Law:                           What

Is and What Isn't Protectable as a Trade Secret, 19 (SMU Sci. &

Tech. L. Rev. 89) (2016).

      ¶74    However, the continuous use doctrine no longer affects
trade secret law in Wisconsin.                  This is so because in 1986,

Wisconsin enacted the Uniform Trade Secret Act.                          Wis. Stat.

§ 134.90 (1986).          Section 134.90 created a new definition of

trade secret that changed the Restatement's definition in part

because § 134.90 eliminated the continuous use requirement from

trade secret law.           Minuteman, 147 Wis. 2d at 852-53 (citing

Uniform     Trade   Secrets       Act,   sec.    I,     comment,   14    U.L.A.     543

(1985)).



                                          11
                                                                   No.    2015AP643.pdr


       ¶75   In Minuteman, we carefully examined the Uniform Trade

Secret Act as set out in Wis. Stat. § 134.90, and explained that

by enacting § 134.90, Wisconsin "created a new definition of

trade secret."        Id.     We addressed specific provisions of Wis.

Stat.    § 134.90     in    order    to   emphasize       that    in     addition     to

adopting a new definition of trade secret, legal principles that

may have affected trade secret law in the past were no longer

applicable    in    Wisconsin.         We      identified      § 134.90(6)       as   we

explained that trade secret law had been changed significantly.

Subsection (6) provides:

       (6) Effect on other laws. . . (a) Except as provided
       in par. (b), this section displaces conflicting tort
       law, restitutionary law and any other law of this
       state providing a civil remedy for misappropriation of
       a trade secret.
Id. at 852 (footnote omitted).

       ¶76   Because we had employed Restatement (First) of Torts'

definition of trade secret in Corroon and Wis. Stat. § 134.90

changed the definition of trade secret, we directed that "[t]he

test    established    in    Corroon      []    is   []   no     longer    the   legal

standard" for determining what may qualify as a trade secret.

Id. at 852.     We explicitly provided that the definition of trade

secret no longer has a continuous use requirement.                        Id. at 852-

53.

                             2.     Bid as a trade secret

       ¶77   We have not considered whether a bid may be found to

be a trade secret since Wisconsin enacted the Uniform Trade

Secrets Act.       Other states that have enacted the Uniform Trade
Secrets Act have litigated whether bids for prospective work

                                          12
                                                                    No.    2015AP643.pdr


qualify as trade secrets.             And, numerous courts have concluded

that a confidential bid is a trade secret.                        USA Power, LLC v.

PacifiCorp, 372 P.3d 629 (Utah 2016) is a recent example.                            In

USA Power, a region served by the utility, PacifiCorp, was in

need of additional power generation.                  USA Power was aware of the

opportunity to design and construct an additional facility, and

it spent two years and nearly $1 million studying, purchasing

consultant's advice and formulating how and where to construct

such a facility.       Id. at 638.

      ¶78    USA    Power         disclosed     its       development       plans    to

PacifiCorp under a confidentiality agreement when PacifiCorp was

a potential purchaser of USA Power's development plan for the

power generation facility.             Id.     After USA Power's disclosure,

PacifiCorp terminated its negotiations to purchase USA Power's

development plan and issued a Request for Proposal (RFP) for

development of a power generation facility sufficient to serve

the region's need.          Id.

      ¶79    USA Power bid in response to the RFP, but PacifiCorp
submitted its own competing bid.               PacifiCorp's proposal was very

similar     to   the   bid    for     development       of   a    power    generation

facility that USA Power had disclosed to PacifiCorp earlier.

Id.    When      PacifiCorp       selected    its   own    bid,    USA    Power   sued,

claiming its bid was a trade secret created through its years of

study, which PacifiCorp misappropriated.                  Id.

      ¶80    The jury agreed with USA Power.                      On motions after

verdict, the court concluded that because PacifiCorp knew all
the   components       of    USA     Power's    development         plan    it    could

                                         13
                                                                                    No.    2015AP643.pdr


anticipate its bid and make that bid a "price to beat."                                          Id. at

654-55.         As the court explained, "It can hardly be argued that,

in    a       bidding    contest,     for       one       competitor         to    have       access   to

another           competitor's              internal             financial            calculations—

calculations            that   will    certainly            bear      upon    that        competitor's

ultimate          bid—would        have         obvious         value.             Such        financial

information is a paradigmatic example of a trade secret."                                              Id.

at 655.          In upholding the jury's finding that USA Power's bid

was       a    trade     secret,      the       court       held      "there        was       sufficient

evidence in the record from which the jury could infer that a

trade secret existed."                Id.

          ¶81    In     Ovation    Plumbing,             Inv.    v.    Furton,       33       P.3d   1221

(Colo.          Ct.     App.     2001),         a        jury    found        that        a    plumbing

subcontractor's            bid     was      a       trade       secret.            Furton       appealed

claiming that a bid does not qualify as a trade secret.                                          Id. at

1223.          The appellate court relied on the definition of trade

secret under the Colorado statute, Colorado's enactment of the

Uniform Trade Secrets Act.                   Id.
          ¶82    The     court      began           by     pointing          out     that       "[w]hat

constitutes a trade secret is a question of fact."                                        Id. at 1224.

Therefore, it considered whether sufficient evidence had been

presented to the jury from which it could have found that the

bid was a trade secret.                Id.

          ¶83    There was testimony, "both direct and circumstantial"

that the bid had value to Ovation because it was not known by

Ovation's competitors.                Id. at 1225.               Although it was not "clear
from the record whether Furton copied Ovation's bid documents or

                                                     14
                                                                      No.    2015AP643.pdr


merely      used         information          that          he   took        from      the

documents[,] . . . it [was] clear from the record that Furton

did not have permission to access [Ovation's bid documents]."

Id.   After so concluding, the court affirmed the jury's verdict.

Id. at 1225-26.

      ¶84   In     CDC       Restoration          &   Const.,    LC     v.     Tradesmen

Contractors, LLC, 369 P.3d 452 (Utah Ct. App. 2016), a concrete

contractor sued Tradesmen, the employer of a former employee,

Paul Carsey.          It also sued Carsey, and Keith Allen, all for

misappropriation of trade secret under Utah's enactment of the

Uniform Trade Secrets Act.             The suit claimed misappropriation of

CDC Restoration's bid for a Kennecott project for repair and

restoration work.         Id. at 455.

      ¶85   CDC Restoration did business with Kennecott under a

Preferred Provider Agreement (PPA), a confidential document that

set forth CDC Restoration's rates for work, pricing information

for hourly employees and hourly rates for use of various types

of equipment.          Id.    Carsey had been a CDC Restoration foreman
for a number of years.           Id.     He regularly delivered confidential

information      to    Kennecott       for   CDC      Restoration,      but    he   never

signed a confidentiality agreement.                   Id.

      ¶86   In mid-2005, Keith Allen, who was then a subcontractor

at Kennecott, met with Carsey to discuss forming a company to do

work at Kennecott.           Later in 2005, while he was employed by CDC

Restoration, Carsey and Allen became co-owners of a new company,

Tradesmen.       Id.      At that time, Allen was a subcontractor for
Kennecott who supervised CDC Restoration's work there.                           Id.    As

                                             15
                                                                     No.   2015AP643.pdr


part   of    Allen's     work    for    Kennecott,    he     had     access       to   CDC

Restoration's pricing information for its ongoing projects at

Kennecott.     Id.

       ¶87   In late 2005, Kennecott opened a competitive bidding

process on a project known as E-Bay.                 Id.      Carsey and another

CDC    Restoration       employee,        Ralph     Midgley,         developed         CDC

Restoration's      bid    for    E-Bay.         Shortly     before     the       bid   was

submitted to Kennecott, Carsey told Midgley to increase the bid

price because more hours of labor were needed than had been

calculated initially.           Midgley did so.      Id.

       ¶88   In the meantime, Carsey and Allen put together a bid

on Kennecott's E-Bay project for Tradesmen, which they submitted

after CDC Restoration submitted its bid.                  Id. at 456.        Tradesmen

underbid CDC Restoration and got the contract.                  Id.

       ¶89   CDC   Restoration         sued    Tradesmen,    Carsey        and    Allen,

alleging "misappropriation of trade secrets for improper use of

its labor and equipment rates and bid information."                           Id.      The

trial court granted summary judgment for the defendants on all
claims.      Id.     The court of appeals concluded that the record

contained "enough evidence to create a genuine issue of material

fact   to    preclude    summary       judgment    regarding       CDC's     claim     for

misappropriation of bid information."               Id.

       ¶90   A jury trial was held, and CDC Restoration prevailed.

Id.    Again, review was sought.                The court of appeals reasoned

that misappropriation of trade secrets had two elements:                                 a

finding that the bid was a trade secret and a finding that the
bid had been misappropriated.             Id.

                                          16
                                                                      No.   2015AP643.pdr


    ¶91    In order to satisfy the first element, the court held

that there must have been proof from which the jury could have

found:     (1) the bid had independent economic value that was

"attributable to the independent efforts of the one claiming to

have conceived it," and was not readily ascertainable by others,

id. at 457-58; and (2) reasonable efforts had been taken to

maintain the bid's secrecy.              Id. at 458.      The court affirmed the

jury's finding that the bid was a trade secret, as that term is

defined in the Uniform Trade Secrets Act.                      Id.    The court also

affirmed    the        jury's      finding      that      the        bid    had         been

misappropriated        within     the    definitions      in    the    Uniform      Trade

Secrets Act.      Id. at 460.

    ¶92    In sum, each of these courts reasoned that whether a

confidential     bid    is   a    trade    secret    is    a    question      of    fact.

However, each court also concluded that sufficient evidence had

been presented to prove that the confidential bid at issue was a

trade secret under the Uniform Trade Secrets Act.

                             3.    North Highland's claim
    ¶93    In this review of the court of appeals' decision that

affirmed   the     dismissal        of    North     Highland's        claim,       it     is

important to remember that we are at the summary judgment stage,

not after a trial, because the analyses are very different at

those two different stages.

    ¶94    Upon review of summary judgment, we begin by testing

the legal sufficiency of the complaint.                   As we have explained,

"Every decision on a motion for summary judgment begins with a
review of the complaint to determine whether, on its face, it

                                           17
                                                                      No.   2015AP643.pdr


states a claim for relief."             Hoida, Inc. v. M & I Midstate Bank,

2006 WI 69, ¶16, 291 Wis. 2d 283, 717 N.W.2d 17 (citing Westphal

v. Farmers Ins. Exch., 2003 WI App 170, ¶9, 266 Wis. 2d 569, 669

N.W.2d 166).           "If it does, we examine the answer to see if

issues of fact or law have been joined."                    Id.    Next, we consider

"the    moving     party's       affidavits        [or     other     submissions]         to

determine whether they establish a prima facie case for summary

judgment."       Id.     If a movant's submissions do not establish by

undisputed    facts       that    the   nonmoving        party     has    no    claim    or

defense, the movant has failed to meet its burden.                             Leske, 197

Wis. 2d at 96-97.

       ¶95   Therefore, when defendants move for summary judgment

dismissing plaintiff's claims, the burden of proof is on the

defendants to have proved sufficient undisputed, material facts

in the submissions in support of their motion that establish a

prima facie showing from which the circuit court is required to

conclude that plaintiff's claims must be dismissed.                            Id. at 97-

98.
       ¶96   Although      the     movant       is   not     required          to   submit

affidavits,      the     movant    must     make     submissions         sufficient       to

"demonstrate the absence of a genuine issue of material fact."

Id. at 97.         Stated otherwise, the movant has the burden to

demonstrate a basis in the record that shows the plaintiff lacks

evidence to support the claim made.                  Id. at 97-98.             It is only

after the movant has made a prima facie showing for dismissal of

the    nonmoving       party's    claim,    that     the    burden       shifts     to   the



                                           18
                                                                               No.    2015AP643.pdr


nonmoving party to provide submissions opposing the submissions

of the movant.         Hoida, 291 Wis. 2d 283, ¶16.

       ¶97     Leske        involved       a    claim       of      misappropriation          of     a

"'program       designed       to     establish         a     business       to      manufacture,

distribute, and sell ice for commercial use in Dane County and

the surrounding area,'" which Leske claimed was a trade secret

that defendants misappropriated.                      Leske, 197 Wis. 2d at 95. Id.

at 96.        The issue presented on appeal was whether the circuit

court       properly    granted       summary         judgment        dismissing        the    trade

secret misappropriation claim.                    Id. at 96.15

       ¶98     The court of appeals began by examining the complaint.

The court concluded the complaint stated a claim for violation

of Wis. Stat. § 134.90, Wisconsin's trade secret law, which the

answer       denied.         Id.    at     96.        The     court     then      examined         the

submissions by defendants in support of their motion for summary

judgment.       Id. at 96-97.              The court explained that defendants'

understanding          of     their      burden       as      the     movants        for    summary

judgment was not correct because defendants asserted that "we
should immediately review the plaintiff's material to determine

whether he produced evidence in support of his claims."                                       Id. at

97.     In reversing the circuit court's grant of summary judgment

to    defendants,        the       court       explained,        "[t]he      defendants           must

demonstrate       that       the    claimed       trade       secrets     do      not      meet    the

definition       of     trade       secret."            Id.      at    98.        Although         the

       15
       This is the same issue, at the same stage of the
proceedings, as has been presented by North Highland in the case
now before the court.


                                                 19
                                                                   No.    2015AP643.pdr


defendants      did    make    submissions    in   support    of       their   motion,

those       submissions      were   insufficient    to    make     a     prima    facie

showing that plaintiff's claimed trade secret did not meet the

definition of a trade secret.               Therefore, the court of appeals

reversed the circuit court's grant of summary judgment.                          Id. at

99.

       ¶99     Given   the    required   summary      judgment     methodology,         I

begin by examining the complaint.16                North Highland asserted a

claim for trade secret misappropriation.17                   In support of its

claim, North Highland asserted that one of Trewyn's duties at

North Highland was to formulate North Highland's bid for the

Tyson       Foods   Trolley    project.18     North      Highland      alleged        that

Trewyn and Wells "aided and abetted each other" in illegal acts

that    damaged     North     Highland.19     North    Highland's        bid     on   the

Trolley project was secret.20                Knowing the amount and/or the

terms of North Highland's bid "would allow one to bid slightly

below the known bid."21              The bidding process on the Trolley

project was secretive.22
       16
       I refer to the complaint, even though there is an amended
complaint in the record because the two documents do not differ
in regard to the allegations relating to North Highland's trade
secret claim.
       17
            Complaint, see pp. 6-7.
       18
            Complaint, ¶¶7-9.
       19
            Complaint, ¶6.
       20
            Complaint, ¶¶16, 17.
       21
            Complaint, ¶18.
       22
            Complaint, ¶19.

                                         20
                                                                      No.   2015AP643.pdr


       ¶100 North Highland had a confidentiality policy that was

expressly set out in its Associate Handbook.23                       Trewyn agreed to

comply        with     the     confidentiality      policy      of    the     Associate

Handbook.24          Trewyn disclosed North Highland's trade secrets to

defendants.25            That    disclosure       permitted    defendants         to     bid

slightly more favorable terms on the Trolley project and were

thereby awarded the project.26              The defendants had reason to know

that        Trewyn's     disclosing       North    Highland's        bid    and        their

subsequent         use   of     it   to   North    Highland's       disadvantage        was

improper.27

       ¶101 I conclude that the allegations in the complaint are

sufficient to state a claim for trade secret misappropriation.

       ¶102 My review of the answer of Wells and Jefferson Machine

shows they denied the allegations in the complaint, generally

based on insufficient knowledge to admit or deny.28                          Therefore,

the answer is sufficient to join issues of fact and law in

regard        to       North     Highland's        claim      for     trade        secret

misappropriation.




       23
            Complaint, ¶11.
       24
            Complaint, ¶21.
       25
            Complaint, ¶20.
       26
            Complaint, ¶20.
       27
            Complaint, ¶¶22, 23.
       28
       Answer, ¶¶1-19.    Although Trewyn is no longer a party,
his Answer, too, was sufficient to join issues of law and fact.


                                            21
                                                                          No.   2015AP643.pdr


     ¶103 I        next     review       Wells       and       Jefferson           Machine's

submissions in support of their motion for summary judgment that

requested      dismissal         of    North         Highland's            trade      secret

misappropriation claim to determine if they established a prima

facie     defense.        Id.    at   98.        Wells     and       Jefferson       Machine

submitted the affidavit of one of their attorneys, Vincent J.

Scipior.29    He attached copies of depositions of Fred Wells and

Dwain Trewyn.         He also attached North Highland's answers to

Wells' and Jefferson Machine's First Set of Interrogatories and

Request for Production, Tyson Foods' original specifications and

drawings     for    the    trolleys,     and     page      6    of    North     Highland's

Associate Handbook.

     ¶104 The       defendants'       brief      before        us    is    based    on   the

attachments to the Scipior affidavit.                   Defendants argue in their

brief that North Highland's bid on the Trolley Contract was not

a trade secret under Wisconsin law.30                 They assert that a bid is

not similar to the types of information listed in Wis. Stat.

§ 134.90(1)(c).           They also argue because the bid was not for
continuous or repeated use, it cannot fall within the statutory

definition     of     trade      secret.         They      assert,         "One     of   the

fundamental    tenets       of   trade      secret    law       is    that      information

relating to a single event in the conduct of business is not




     29
          R. at 47.
     30
          Resp. Br. 39-45.


                                            22
                                                                           No.   2015AP643.pdr


protected,"        for    which      proposition       they    cite       Wisconsin       Elec.

Power Co.31

     ¶105 Wisconsin            Elec.      Power   was    issued       by    the    court      of

appeals in 1981; it interprets Wis. Stat. § 943.205(2) (1975).

It was issued before Wisconsin adopted the Uniform Trade Secrets

Act, Wis. Stat. § 134.90.

     ¶106 Furthermore, the continuous use requirement relied on

in defendants' brief was specifically removed from Wisconsin's

trade     secret    law       by    Minuteman,    a     1989   decision          grounded     in

Wisconsin's        enactment         of    the    Uniform        Trade      Secrets        Act.

Minuteman, 147 Wis. 2d at 852-53.

     ¶107 There          is    no    citation     to     Minuteman         in    defendants'

brief.      Furthermore,            and   much    more    troubling,            there   is    no

citation to Minuteman in the majority opinion even though North

Highland clearly makes a claim for misappropriation of trade

secret.

     ¶108 Minuteman is our thorough explanation of the changes

brought    about     by       Wisconsin's      enactment       of   the     Uniform       Trade
Secrets Act.         Instead of citing Minuteman, the defendants cite

cases from other jurisdictions, many of which were issued by

jurisdictions that had not enacted the Uniform Trade Secrets

Act.32

     ¶109 Wells          also       argues    that      "North      Highland        has      not

presented     sufficient            evidence      to     support      a     trade       secret


     31
          Resp. Br. 42.
     32
          Resp. Br. 43.


                                             23
                                                                 No.   2015AP643.pdr


misappropriation claim against [him.]"33                 Wells asserts that he

did not "use" North Highland's bid information, so he could not

have misappropriated it.34        Evidence of misappropriation of trade

secret    information     does    not    have      to    be   direct     evidence.

Circumstantial evidence must also be considered in determining

whether    Wells   has    established        a   prima   facie   defense.       See

Gagliano & Co. v. Openfirst, 2014 WI 65, ¶32, 355 Wis. 2d 258,

850 N.W.2d 845.     Here, Wells' own deposition testimony of record

defeats his ability to establish a prima facie defense.                         For

example, Wells was actively involved in bidding on the Trolley

Contract:

     Q      This is Exhibit 2.  I'm going to show you email
            6. That is an email from Gordon Slothower to you
            and Dwain, right?

     A      Yes.

     Q      And the email right on the top, it starts,
            "Attached is the revised," do you see where I'm
            pointing to?

     A      Yes.

     Q      Why was he giving you a revised trolley drawing?

     A      I don't know.        He copied me on whatever he sent
            to Dwain.[35]
Wells' involvement in the bidding is further demonstrated; for

example, he testified:



     33
          Resp. Br. 45.
     34
          Resp. Br. 45-46.
     35
          R. at 47:19.


                                        24
                                                       No.    2015AP643.pdr

    Q      What did you know about the trolley contract in
           November of 2011?

    A      We had an opportunity to quote on it.

    Q      And you were in conversation with Tyson personnel
           about that quoting?

    A      Yes.

    Q      And in December of 2011 you were also still
           communicating with Tyson and with Dwain about the
           trolley contract?

    A      Dwain was   talking   with   Tyson   on   the     trolley
           contract.

    Q      And you were talking with Dwain?

    A      About the trolley contract?

    Q      Yes.

    A      Yes.[36]
Furthermore, Wells knew that the company he and Trewyn owned

were making   use of North Highland's bid information, but he

thought North Highland had no right to object to this.                  He

explained:

    Q      Did you think that North Highland had any right
           to have its employees not compete with them at
           the same time as they were employed at North
           Highland?

    A      Say that again.

    Q      Did you think that North Highland had any right
           to have its employees not compete against them
           while they were still employed at North Highland?

    A      There was no non-compete form with them.

    . . . .

    36
         R. at 47:10-11.


                                 25
                                                                  No.   2015AP643.pdr

    Q      And the reason why you think they don't have that
           right is because they didn't have an express non-
           compete clause in their employment contract?

    A      Yes.[37]
    ¶110 When        considering         the     entirety        of     defendants'

submissions,    I   conclude     that    they    do   not   provide      sufficient

undisputed, material facts to preclude the bid from meeting the

definition     of     a   trade    secret        pursuant     to        Wis.   Stat.

§ 134.90(1)(c) or to preclude the finding that Wells had "reason

to know"38 that he used North Highland's bid without the consent

of North Highland after obtaining it through improper means,

contrary to § 134.90(2).

    ¶111 My         conclusion      is         required     by        Wis.     Stat.

§ 134.90(1)(c), which provides:

    "Trade secret" means information, including a formula,
    pattern,   compilation,   program,   device,   method,
    technique or process to which all of the following
    apply:

         1.   The information derives independent economic
    value, actual or potential, from not being generally
    known to, and not being readily ascertainable by
    proper means by, other persons who can obtain economic
    value from its disclosure or use.

         2. The information is the subject of efforts to
    maintain its secrecy that are reasonable under the
    circumstances.




    37
         R. at 47:12.
    38
       "Reason to know" is the Wis. Stat. § 134.90(2) standard
that Wells' submissions must be sufficient to set aside in
regard to misappropriation.  As the quotes above show, he has
not done so.


                                         26
                                                                  No.   2015AP643.pdr


     ¶112 In     order    to    satisfy      Wis.   Stat.     § 134.90(1)(c)'s

criteria and be found to be a trade secret, the bid:                       (1) must

be   information     that      is   a   compilation;        (2)     must     derive

independent economic value from not being generally known by

competitors; (3) amount presented to Tyson must not be generally

known or readily ascertainable by proper means; (4) must have

been subject to reasonable efforts under the circumstances to

protect its secrecy.

     ¶113 It is undisputed, as explained by Wells, that the bid

is information assembled as a compilation39 of "quotes on raw

material and the machining time and the assembly time to put the

part together."40     And as Wells further acknowledged, the amount

of a bid is not shared with others:

     Q.      The only person you would disclose how much you
             were bidding was the customer?

     A.      Correct.41
The reason for not sharing bid information is self-apparent:                      if

competitors knew the amount of North Highland's bid, that amount

becomes the "price to beat."             USA Power, 373 P.3d at 654-55.

However, whether North Highland took reasonable efforts under

the circumstances to protect the bid's secrecy, is a question of

fact.     Minuteman, 147 Wis. 2d at 849.



     39
       A    compilation   is   an   assemblage    or   gathering.
Compilation, Roget's Thesaurus, 51 St. Martin's Press (1965).
     40
          R. at 47:19.
     41
          R. at 47:28.


                                        27
                                                                                   No.    2015AP643.pdr


        ¶114 The court of appeals assigned the burden of proof to

North Highland in response to defendants' motion for summary

judgment.           North Highland, No. 2015AP643, ¶11 ("[W]e agree with

Wells        that        summary     judgment         is     appropriate            because          North

Highland           has    failed     to       establish          that    there      is     sufficient

evidence to support the claim.").                           While North Highland has the

burden of proof at trial, it was error to assign the burden to

North Highland on defendants' summary judgment motion when the

defendants did not meet their obligation to make a prima facie

showing that North Highland's bid did not meet the statutory

definition          of     trade    secret       or    that       defendants         did       not    have

reason        to    know     they    obtained          or    used       North      Highland's          bid

information          improperly.              Leske,       197    Wis.       2d    at    97-99       ("The

defendants          mistakenly          assert    that       it     is       Thomas's         burden    to

establish           that    he     took       reasonable          precautions           [to    maintain

secrecy].            While       this     would       be    true        at   trial,       on    summary

judgment the moving defendants must establish that Thomas did

not take reasonable steps.").
        ¶115 The court of appeals also erred when it relied on

Wisconsin Elec. Power, which provides an interpretation of Wis.

Stat.        § 943.205(2)          (1976).        That       statute         no    longer       has    any

relevance to trade secret law.                         Minuteman, 147 Wis. 2d at 852-

53.42

        ¶116 Furthermore,               the    court        of    appeals         appeared      not     to

recognize that the determination of whether a bid is a trade

        42
       Minuteman v. Alexander, 147 Wis. 2d 842, 434 N.W.2d 773
(1989), is not addressed by the court of appeals.


                                                  28
                                                                     No.    2015AP643.pdr


secret as set out in Wis. Stat. § 134.90(1)(c) is a question of

fact.      Id. at 849, 854; Ovation, 33 P.3d at 1224; USA Power, 372

P.3d at 655.       Similarly, if the jury determines that the bid is

a trade secret, it also will be required to determine whether

defendants misappropriated it.                 Minuteman, 147 Wis. 2d at 854-

55.     Both are factual findings under the Uniform Trade Secrets

Act, and as we implied in Minuteman, they are factual findings

under § 134.90(1).

                                   C.    Claim Preclusion

      ¶117 The      court     of   appeals       chose   not    to    address      claim

preclusion.        North    Highland,          No.   2015AP643,      ¶11.      However,

defendants continue to argue that North Highland's claim for

misappropriation of trade secret is barred by claim preclusion

because of the Stipulation and Order that dismissed Trewyn from

this lawsuit.       They assert that the circuit court correctly held

that claim preclusion bars North Highland's claims.43

      ¶118 "Claim preclusion prevents relitigation of the same

claim      when:    (1)    there    is    an    identity   of     parties     or   their
privies in a prior lawsuit; (2) there is an identity of claims

for relief that were brought, or should have been brought; and

(3) a final judgment on the merits in a court of competent

jurisdiction       resolved    the      first    lawsuit."        Mrozek      v.   Intra

Financial Corp., 2005 WI 73, ¶28, 281 Wis. 2d 448, 699 N.W.2d 54

(citing Kruckenberg v. Harvey, 2005 WI 43, ¶21, 279 Wis. 2d 520,




      43
           Resp. Br. 17-26.


                                           29
                                                                      No.     2015AP643.pdr


694 N.W.2d 879; Northern States Power Co. v. Bugher, 189 Wis. 2d

541, 551, 525 N.W.2d 723 (1995)).

      ¶119 Wells       and     Jefferson      Machine       create        a     bootstrap

argument      under     which    they       assert     that       North        Highland's

misappropriation of trade secret claim is precluded.                               First,

they contend that due to its Stipulation with Trewyn, North

Highland cannot proceed on its conspiracy claim against them.

They cite numerous cases on which I do not comment because I

address only the misappropriation of trade secret claim.                                Then

defendants bootstrap North Highland's trade secret claim as a

"matter[]     arising    out     of   the     same    facts    and      occurrences,"

concluding      that    all     claims      against     them      are         precluded.44

Although     the   language      "arising      out    of    the    same        facts     and

occurrences" is claim preclusion language, Wells and Jefferson

cannot meet the three necessary elements to support dismissal of

all claims under claim preclusion.

      ¶120 First, neither Wells nor Jefferson Machine was a party

to Trewyn's Stipulation, which was entered into during Trewyn's
bankruptcy action.           To the contrary, the Stipulation provides:

"All rights are reserved by North Highland, Inc. to any claims

made against joint or several tortfeasors, including Frederick

Wells and Jefferson Machine & Tool Inc.                    North Highland, Inc.'s

cause of action remains against all non settling tortfeasors."

      ¶121 Second, the defendants are not privies of Trewyn.                             As

we   have    explained,       "[p]rivity      exists    when      a    person      is    so


      44
           Resp. Br. 23.


                                         30
                                                                             No.    2015AP643.pdr


identified in interest with a party to former litigation that he

or she represents precisely the same legal right in respect to

the subject matter involved."                Pasko v. City of Milwaukee, 2002

WI 33, ¶16, 252 Wis. 2d 1, 643 N.W.2d 72.                        The burden of proving

the    elements      of     claim    preclusion     is     on    the     party         asserting

dismissal of claims based on claim preclusion.                          Id.

       ¶122 Although Trewyn was obligated to make certain payments

to North Highland under the Stipulation, Wells and Jefferson

Machine were not similarly obligated.                       For example, if Trewyn

defaulted      on     the       payments    due    under        the    Stipulation,           the

obligation for payment could not be enforced against Wells or

Jefferson      Machine.          Wells     and    Jefferson      are     not        privies    of

Trewyn.

       ¶123 Here, Trewyn, Wells and Jefferson Machine are alleged

to    be    joint    tortfeasors.          North    Highland          sued    each      of    them

individually         for     misappropriation        of     trade        secrets.             The

Stipulation         and    release    entered       with    Trewyn           is     similar    to

releases that often are used when there is a settlement with one
tortfeasor      and       the    lawsuit    continues       against           the      remaining

tortfeasors.45

       ¶124 Third, there was no final judgment on the merits of

the trade secret action against Wells and Jefferson Machine at

the time that the circuit court dismissed all claims against

them based on claim preclusion.                    Accordingly, claim preclusion



       45
       See, e.g.,            Pierringer      v.    Hoger,       21    Wis.        2d   182,   124
N.W.2d 106 (1963).


                                             31
                                                                         No.    2015AP643.pdr


has     no        application          to     North     Highland's        trade        secret

misappropriation claim against Wells or Jefferson Machine.

                                      III.    CONCLUSION

      ¶125 I conclude that defendants, as the moving party to

whom summary judgment was granted, failed to make a prima facie

showing      of     sufficient        undisputed,      material       facts     that    North

Highland's         bid     to    construct      and     supply        Tyson     with   3,000

trolleys, did not meet the definition of a trade secret as set

out   in     Wis.    Stat.       § 134.90(1)(c),        which    Wells       and   Jefferson

Machine misappropriated.                Leske, 197 Wis. 2d at 96-97.

      ¶126 Defendants also failed to make a prima facie showing

of sufficient undisputed, material facts that Wells, Jefferson

Machine      and     Trewyn      did    not    obtain    or     use    North       Highland's

Trolley      Contract           bid    information      contrary        to     Wis.     Stat.

§ 134.90(2).         Id.     Accordingly, I conclude that summary judgment

was   improperly         granted       dismissing     North     Highland's         claim   for

trade      secret        misappropriation           against     Wells     and      Jefferson

Machine.
      ¶127 And finally, I conclude that claim preclusion cannot

be applied against North Highland based on the Stipulation and

Order that dismissed Trewyn from this lawsuit.                                Therefore, I

would reverse the decision of the court of appeals and remand

for a jury trial of North Highland's claim against Wells and

Jefferson Machine for misappropriation of a trade secret.




                                               32
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    ¶128 REBECCA        GRASSL    BRADLEY,     J.   (dissenting).             The

circuit court's dismissal of North Highland, Inc.'s complaint

against Frederick Wells reflects an improperly narrow conception

of what constitutes a "trade secret" as well as a misapplication

of the doctrine of claim preclusion.1          Because I conclude that a

confidential bid can be a trade secret and that an adversary

action in Dwain Trewyn's federal bankruptcy proceedings does not

necessarily preclude North Highland's claims against Wells in

state   court,    I   would   reverse   the   decision   of    the    court   of

appeals   and    therefore    respectfully    dissent.    Additionally,        I

would remand to the circuit court for a jury trial; material

    1
       Unfortunately, the court conducts its review of this case
without the benefit of the circuit court's reasoning on the
dispositive decisions. Although the record includes the circuit
court's orders resolving the relevant motions for summary
judgment and dismissal, those orders merely state the court's
conclusions with a note that the orders were entered "[f]or the
reasons stated on the record."      But the transcripts of the
relevant hearings are absent from the record on appeal.

     The appellant has the initial responsibility to request
transcripts for the record, Wis. Stat. § (Rule) 809.11(4)(a),
and any other party also has the opportunity to request that
transcripts   be    included    in  the   record,  Wis.   Stat.
§ (Rule) 809.11(5).    Appellate counsel for each party have a
responsibility to identify all transcripts necessary for
appellate review.

     When the record on appeal lacks transcripts relevant to the
circuit court's orders under review and the circuit court has
not issued a written order explaining the reasons for its
decision, appellate courts do not receive sufficient information
to review the case in its entirety.       Although I conduct my
review in this opinion because the case raises questions of law
and we do have the circuit court's conclusions, a future
appellate court may not have sufficient information to proceed
if appellate counsel fail to satisfy their responsibilities
under the Wisconsin Rules of Appellate Procedure.


                                        1
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factual       disputes     remain     on   North     Highland's       trade   secret

misappropriation claim,2 and the circuit court should restore its

earlier ruling that North Highland's claims against Wells for

civil conspiracy to breach a fiduciary duty, aiding and abetting

breach of fiduciary duty, and interference with contract survive

a motion for summary judgment.

                                           I

                                           A

       ¶129 Historically,       Wisconsin      has    held     that   "[w]hether   a

trade secret exists is a mixed question of fact and law.                        Once

the historical facts are found by the circuit court, whether

those facts meet the legal standard is a question of law which

we review without deference to the circuit court's decision."

B.C. Ziegler & Co. v. Ehren, 141 Wis. 2d 19, 26, 414 N.W.2d 48

(Ct.       App.   1987)   (citation    omitted)      (citing    Corroon   &   Black-

Rutters & Roberts, Inc. v. Hosch, 109 Wis. 2d 290, 294, 325

N.W.2d 883 (1982)).           Notwithstanding Wisconsin's adoption of a

version of the Uniform Trade Secrets Act (UTSA), I would not
cast this standard aside.

       ¶130 In Minuteman, Inc. v. Alexander, 147 Wis. 2d 842, 434

N.W.2d 773 (1989), this court properly acknowledged that when

the legislature adopted the UTSA, it replaced the common law

definition of "trade secret" with the statutory definition in


       2
       Chief Justice Roggensack's dissent comprehensively sets
forth facts from the record, which, viewed in the light most
favorable to the party opposing summary judgment (here, North
Highland), show genuine issues of material fact properly
resolved at trial.

                                           2
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Wis.    Stat    § 134.90(1)(c).             Minuteman,        147   Wis. 2d at        851-52.

Accordingly, the six-factor test from Corroon & Black-Rutters &

Roberts, Inc. v. Hosch, 109 Wis. 2d 290, 325 N.W.2d 883 (1982),

no longer set the standard for determining the existence of a

trade    secret,         although     the   test     continues      to   offer    "helpful

guidance       in    deciding       whether         certain    materials        are    trade

secrets" under the statute.                 Minuteman, 147 Wis. 2d at 851-53.

       ¶131 The Minuteman court, however, did not discuss whether

the statutory abrogation of the common law definition of "trade

secret" had a similar impact on the standard of review in trade

secret cases.            Instead, the Minuteman court set forth a standard

of review before discussing Wis. Stat. § 134.90:

            The construction of a statute or the application
       of a statute to a particular set of facts is a
       question of law. Bucyrus–Erie Co. v. ILHR Dept., 90
       Wis. 2d 408, 417, 280 N.W.2d 142 (1979).   This court
       decides questions of law without deference to the
       circuit court's determination.  Ball v. Dist. No. 4,
       Area Bd. of Vocational, Technical & Adult Education,
       117 Wis. 2d 529, 537, 345 N.W.2d 389 (1984).     This
       court, however, accepts the circuit court's findings
       of fact unless they are clearly erroneous.    Section
       805.17(2), Stats.
Minuteman, 147 Wis. 2d at 853.                 Although the Minuteman court did

not specifically identify the "mixed" standard of review derived

from Corroon & Black, its statement of separate standards for

statutory interpretation, on the one hand, and circuit court

findings       of        fact,   on     the     other,        suggests     an     implicit

acknowledgement of the mixed nature of the questions raised in

trade secret cases.
       ¶132 Among state and federal courts interpreting various

enactments          of     the   UTSA,        the     majority      of     jurisdictions
                                               3
                                                                             No.    2015AP643.rgb


characterize the existence of a trade secret as a "question of

fact."       See, e.g., Learning Curve Toys, Inc. v. PlayWood Toys,

Inc., 342 F.3d 714, 723 (7th Cir. 2003) ("The existence of a

trade       secret     ordinarily      is    a     question       of    fact.");          Ovation

Plumbing, Inc. v. Furton, 33 P.3d 1221, 1224 (Colo. App. 2001)

("What constitutes a trade secret is a question of fact."); see

also 1 Melvin F. Jager, Trade Secrets Law § 5.2, at 5-4 (2016)

("In the view of the majority, the existence of a trade secret

is considered to be a 'question of fact.'").                             But the reasons

for    treating       the    existence       of    a     trade    secret       as       purely   a

question of fact are not clear.                   The Fifth Circuit has suggested

that       because    "[t]he   term     'trade         secret'    is    one        of   the   most

elusive       and     difficult   concepts          in    the     law    to        define"     the

question therefore "is of the type normally resolved by a fact

finder       after    full   presentation          of    evidence       from       each    side."

Lear Siegler, Inc. v. Ark-Ell Springs, Inc., 569 F.2d 286, 288-

89 (5th Cir. 1978).               Other jurisdictions seem to repeat the

standard       with    a    quotation       or    citation       but    no    analysis,        and
following       those      citations    to       the     principle's         source       reveals

nothing more than an ostensible truism——also devoid of analysis.3

       3
       For example, working backward from Ovation Plumbing, Inc.
v. Furton, 33 P.3d 1221, 1224 (Colo. App. 2001), the Colorado
Court of Appeals successively cited the following cases for the
principle that "[w]hat constitutes a trade secret is a question
of fact":    Gold Messenger, Inc. v. McGuay, 937 P.2d 907, 911
(Colo. App. 1997); Network Telecomms., Inc. v. Boor-Crepeau, 790
P.2d 901, 902 (Colo. App. 1990); Mulei v. Jet Courier Serv.,
Inc., 739 P.2d 889, 893 (Colo. App. 1987), rev'd on other
grounds 771 P.2d 486 (Colo. 1989) (en banc); Porter Indus., Inc.
v. Higgins, 680 P.2d 1339, 1341 (Colo. App. 1984); Telex Corp.
v. Int'l Bus. Machines Corp., 510 F.2d 894, 928 (10th Cir.
                                                     (continued)
                                4
                                                                             No.   2015AP643.rgb


      ¶133 Wisconsin's mixed standard of review in trade secret

cases   therefore        represents     the       minority        approach.          1   Jager,

supra, § 5.2, at 5-6 to 5-7.                      Nevertheless, the legislature's

1986 adoption of the UTSA in no way necessitates rejection of

our   standard     of     review   in    the       same     way    it     required       us   to

acknowledge      the     abrogation     of        the     common    law       definition      of

"trade secret."          Indeed, the existence of a statutory definition

of "trade secret" suggests that Wisconsin should retain its more

nuanced standard.           As the Minuteman court recognized when it

first interpreted Wis. Stat. § 134.90, the construction of a

statute   and      its    application     to        historical       facts         presents    a

question of law for appellate courts to review independently.

Minuteman, 147 Wis. 2d at 853; see also World Wide Prosthetic

Supply, Inc. v. Mikulsky, 2001 WI App 133, ¶10, 246 Wis. 2d 461,

631     N.W.2d 253         ("Resolution            of      this         appeal        requires

interpretation of Wis. Stat. § 134.90(4), a question of law we

review de novo.").          Trade secret cases no doubt turn on subtle

questions     of    fact,     such      as,        "Did     the     information          derive
independent     economic      value     from       its     nondisclosure?             Was     the

information      subject     to    reasonable             efforts       to     maintain       its

secrecy?"     But no less than any other statute, it is the court's

1975). The Tenth Circuit's opinion in Telex Corp. merely states
that "what constitutes a trade secret . . . is a question of
fact for the trial court."     510 F.2d at 928.   In turn Telex
Corp. refers to Kodekey Electronics, Inc. v. Mechanex Corp., 486
F.2d 449 (10th Cir. 1973), which offers no more justification
for the standard than the fact that trade secrets are a
"nebulous concept," id. at 453-55 & n.3, the same unsatisfying
reasoning articulated in Lear Siegler, Inc. v. Ark-Ell Springs,
Inc., 569 F.2d 286 (5th Cir. 1978).


                                              5
                                                                   No.   2015AP643.rgb


responsibility      to       say   what   § 134.90      means——as    the     question

raised by North Highland in this case illustrates.4

                                           B

      ¶134 North Highland argues that the circuit court and court

of appeals erred by failing to conclude that a confidential bid

may   satisfy    the     definition       of   "trade   secret"     in   Wis.    Stat.

§ 134.90.    Because the plain language of § 134.90 supports North

Highland's      broad       interpretation      of   "trade     secret,"     I   would

reverse the decision of the court of appeals and remand for the

circuit     court      to     consider     North     Highland's      trade       secret

misappropriation claim under the proper standard of law.

      ¶135 Assessment         of   Wis.    Stat.     § 134.90    begins    with     its

text.     State ex rel. Kalal v. Cir. Ct. for Dane Cty., 2004 WI

58, ¶¶44-51, 271 Wis. 2d 633, 681 N.W.2d 110.                   Section 134.90(1)

defines "trade secret" as follows:

            (c) "Trade secret" means information, including
      a   formula, pattern, compilation, program, device,


      4
       This court's fundamental responsibility to interpret a
Wisconsin statute also means Wis. Stat. § 134.90(7) does not
mandate the jettisoning of our uniquely descriptive phrasing of
the standard of review. Subsection (7) dictates that Wis. Stat.
§ 134.90 "shall be applied and construed to make uniform the law
relating to misappropriation of trade secrets among states
enacting substantially identical laws."     In articulating the
standard of review, however, we do not "apply" or "construe" any
of the statute's language.     Instead, the standard of review
implicates the perspective from which the court approaches the
statute before even considering its text.         Joining other
jurisdictions in repeating by rote that "the existence of a
trade secret is a question of fact" risks putting before the
finder of fact matters of statutory interpretation——questions of
law——properly reserved for the court.


                                           6
                                                                                  No.    2015AP643.rgb

      method, technique                  or   process       to      which       all     of     the
      following apply:

           1. The information derives independent economic
      value, actual or potential, from not being generally
      known to, and not being readily ascertainable by
      proper means by, other persons who can obtain economic
      value from its disclosure or use.

           2. The information is the subject of efforts to
      maintain its secrecy that are reasonable under the
      circumstances.
North Highland's claim therefore turns on whether a confidential

bid   constitutes             "information"             within       the     meaning           of    this

section.      To answer that question, I consider the plain meaning

of the word "information," as well as the effect, if any, of the

"including" clause that follows it in paragraph (c).

      ¶136 Dictionary definitions of "information" suggest that

the   term     encompasses               a    broad       class      of      knowledge.                See

Information,        The       American        Heritage      Dictionary           of     the     English

Language      901    (5th          ed.    2011)     ("Knowledge            or    facts         learned,

especially     about          a    certain     subject         or    event.");          Information,

Webster's      Third          New        International           Dictionary             1160        (1986)

("knowledge     of        a       particular      event        or    situation";             "facts    or
figures ready for communication or use").                                    These definitions

indicate     that     "information"               consists          of    facts,        figures,       or

general    knowledge              regarding     a       particular         subject       matter       and

capable of practical application or use.                                 Given the breadth of

the term's scope, a business might possess any number of pieces

of "information" that it wishes to protect, and a confidential

bid   price    certainly             consists       of     a     figure         that     a     business
develops and communicates for the practical purpose of securing

a contract.
                                                    7
                                                                              No.    2015AP643.rgb


       ¶137 Despite         the    broad      reach       of    the    term    "information,"

Wells    points    to     the      remainder         of    the       definition       of    "trade

secret":           "information,              including          a      formula,        pattern,

compilation,      program,         device,      method,          technique      or     process."

Wis. Stat. § 134.90(1)(c) (emphasis added).                              Wells argues that

State     v.    Popenhagen,          2008      WI         55,    309     Wis. 2d 601,          749

N.W.2d 611, and Village of Hobart v. Oneida Tribe of Indians of

Wisconsin, 2007 WI App 180, 303 Wis. 2d 761, 736 N.W.2d 896,

hold    that   when     a    list       introduced         by    "including"          follows   a

general term, the list limits the scope of the general term to

items    similar     in     nature       to    those       listed.         Popenhagen,         309

Wis. 2d 601, ¶¶46-48; Oneida Tribe, 303 Wis. 2d 761, ¶9.                                       The

ejusdem    generis      canon      of    statutory          construction        discussed       in

those cases, however, does not invert the plain meaning of the

term "including" in Wis. Stat. § 134.90 because the canon "has

traditionally required the broad catchall language to follow the

list of specifics."               Antonin Scalia & Bryan A. Garner, Reading

Law 202 (2012).             Rather, "[f]ollowing the general term with
specifics . . . mak[es]              doubly          sure       that     the        broad     (and

intended-to-be-broad)                general              term . . . include[s]                the

specifics," meaning the "including" phrase serves a "belt-and-

suspenders function" in the statutory text.                             Id. at 204.           This

construction of "including" also comports with the canon that

presumes the use of "including" does not create an exhaustive

list but merely an exemplary one.                     Id. at 132-33.                Accordingly,

formulas,      patterns,      compilations,            programs,         devices,       methods,
techniques,       and       processes          are        not     the     only        types     of

                                                8
                                                                     No.    2015AP643.rgb


"information" that may satisfy the definition of "trade secret"

in Wis. Stat. § 134.90(1).

     ¶138 The        plain    language     of    Wis.     Stat.    § 134.90(1)         also

defeats Wells's argument that the definition of "trade secret"

includes    a    "continuous       use"    requirement.            Wisconsin       courts

defining    "trade     secret"      at    common    law    held    that     "[a]     trade

secret is a process or device which is continually used in the

operation    of      the     business    and     thereby       differs     from    secret

information which may refer only to an isolated transaction."

Wis. Elec. Power Co. v. Pub. Serv. Comm'n, 106 Wis. 2d 142, 148,

316 N.W.2d 120 (Ct. App. 1981) (internal quotation mark omitted)

(quoting Future Plastics, Inc. v. Ware Shoals Plastics, Inc.,

340 F. Supp. 1376, 1383 (D.S.C. 1972)).                        The court of appeals

even went so far as to observe that a trade secret "differs from

other secret information in a business . . . in that it is not

simply   information         as   to    single   or     ephemeral    events       in    the

conduct of the business, as, for example, the amount or other

terms of a secret bid for a contract."                          Id. (alteration in
original)   (quoting         Restatement       (First)    of    Torts    § 757     cmt. b

(1939)).        As   already      noted,   the     1986    adoption      of   the      UTSA

abrogated the more restrictive common law definition of "trade

secret."        Minuteman,        147    Wis. 2d at       851-52.          Because     the

language in Wis. Stat. § 134.90(1) does not include a continuous

use requirement in the definition of "trade secret," it should

not be judicially imposed here.5


     5
       Confirming this plain meaning, an explanatory note
accompanying the enactment of Wis. Stat. § 134.90(1) quotes from
                                                     (continued)
                                9
                                                                           No.    2015AP643.rgb


       ¶139 Wisconsin Stat. § 134.90(7) also commands courts to

apply and interpret § 134.90 in a manner that will "make uniform

the   law     relating      to    misappropriation          of     trade    secrets       among

states      enacting     substantially        identical           laws."         Refusing    to

graft a renewed "continuous use" requirement onto the definition

of "trade secret" aligns with other jurisdictions, which already

protect some types of business information as trade secrets,

even if used only for a short period of time——or just once, in

the case of a confidential bid.                    See, e.g., Economy Roofing &

Insulating Co. v. Zumaris, 538 N.W.2d 641, 646-47 (Iowa 1995)

(holding       that    complaint          alleging     misappropriation              of    "bid

information" and "bid estimates" properly stated claim because

"information" included "such [business] matters as maintenance

of    data    on   customer        lists     and     needs,       source     of     supplies,

confidential costs, price data and figures" (emphasis omitted)

(quoting US West Commc'ns, Inc. v. Office of Consumer Advocate,

498 N.W.2d 711, 714 (Iowa 1993))); B & G Crane Serv., L.L.C. v.

Duvic,       2005-1798,      p.     7-8    (La.      App.     1     Cir.     5/5/06),       935
So. 2d 164, 168-69 ("[W]hile under the employ of [plaintiff],

[defendant] . . . wrongfully                  misappropriated                [plaintiff's]

confidential          pricing        and       bid/quote            information . . . ,

terminated            his         employment          with          [plaintiff]             and


a report by the national conference of commissioners on uniform
state   laws,  which   observed that  the   UTSA's  recommended
definition of "trade secret" "contains a reasonable departure
from the Restatement of Torts (first) definition which required
that a trade secret be 'continuously used in one's business.'"
1985 Wis. Act. 236, § 6 note.


                                             10
                                                             No.    2015AP643.rgb


immediately . . . began       unlawfully    using    that    information      to

compete with [plaintiff] in attempt to win bids."); USA Power,

LLC v. PacifiCorp, 2016 UT 20, ¶69, 372 P.3d 629 ("It can hardly

be argued that, in a bidding contest, for one competitor to have

access to another competitor's internal financial calculations——

calculations    that   will   certainly    bear    upon    that    competitor's

ultimate     bid——would   have    obvious    value.          Such     financial

information is a paradigmatic example of a trade secret."); cf.

Ovation Plumbing, 33 P.3d at 1224 ("declin[ing] to adopt a per

se rule that a bid on a contract cannot be a trade secret as a

matter of law").

    ¶140 Categorically excluding confidential bids from trade

secret   protection    contradicts    the    legislature's         decision   to

bring all "information" within the definition of "trade secret,"

provided the other statutory parameters are met:

          Almost any subject matter may be a trade secret,
    including a secret formula or process, computer
    software, digital databases, the passcode for a
    website,   biotechnology,    mechanical    configurations,
    information relating to the finding and extraction of
    oil and gas, plans, layouts and design drawings,
    recipes,    boat    hull     molds,     customer     lists,
    instructional materials, internal business practices,
    manufacturing    cost   data,    sales     histories    and
    forecasts,   materials   and   plans    for   advertising,
    marketing,   and   distribution,    and   membership    and
    employee information.      Even religious material is
    eligible for trade secret protection.
3 Louis Altman & Malla Pollack, Callmann on Unfair Competition,

Trademarks     and   Monopolies   § 14:14,    at     160    (4th    ed.   2016)

(footnotes omitted).      Applying "information" to a broad spectrum
of facts, figures, and knowledge, does not, however, infinitely


                                     11
                                                                 No.       2015AP643.rgb


expand the scope of trade secret protection.                     After all, any

individual piece of "information" satisfies the definition of

"trade secret" only if it also meets the independent economic

value and secrecy requirements in Wis. Stat. § 134.90(1)(c)1 and

2.

     ¶141 In this case, the parties focused their arguments on

the threshold question of whether a confidential bid can be

"information."       Because I conclude, as a matter of law, that a

confidential bid certainly constitutes "information" within the

meaning of Wis. Stat. § 134.90, I would reverse the decision

granting summary judgment to Wells on North Highland's trade

secret misappropriation claim, and I would remand the matter to

the circuit court for a jury trial on the remaining factual

issues,     including    whether       North     Highland     took         reasonable

measures     to    maintain    the    bid's     secrecy   and     whether        Wells

misappropriated North Highland's bid.

                                        II

     ¶142 The      circuit    court   also     ruled   that   claim         preclusion
barred    North    Highland's    claims      against    Wells.         I     disagree.

Courts     apply   the   doctrine     of      claim    preclusion      to      prevent

"vexatious, repetitious and needless claim[s]" between the same

parties on the same causes of action when another court has

previously    entered    a    final   judgment    on    the   merits.          See   N.

States Power Co. v. Bugher, 189 Wis. 2d 541, 550, 525 N.W.2d 723

(1995) (quoting Purter v. Heckler, 771 F.2d 682, 690 (3d Cir.

1985)).     Claim preclusion promotes finality in litigation and
prevents a party from repeatedly filing the same cause of action

                                        12
                                                                      No.    2015AP643.rgb


against    the    same    defendant        where     that    lawsuit        has     already

resulted   in    "a   final      judgment       on   the    merits    in     a    court   of

competent jurisdiction."            Id. at 551.            "Key objectives of the

doctrine of claim preclusion are to promote judicial economy and

to 'conserve the resources the parties would expend in repeated

and needless litigation of issues that were, or that might have

been resolved in a single prior action.'"                     Mrozek v. Intra Fin.

Corp., 2005 WI 73, ¶28, 281 Wis. 2d 448, 699 N.W.2d 54 (quoting

Hanlon v. Town of Milton, 2000 WI 61, ¶20, 235 Wis. 2d 597, 612

N.W.2d 44).       "The question of whether claim preclusion applies

under a given factual scenario is a question of law that this

court reviews de novo."            Wis. Pub. Serv. Corp. v. Arby Constr.,

Inc., 2012 WI 87, ¶30, 342 Wis. 2d 544, 818 N.W.2d 863 (quoting

N. States Power Co., 189 Wis. 2d                at 551).

       ¶143 The factual scenario presented here involves not only

North Highland's state court claims against Trewyn, Jefferson

Machine & Tool Inc., and Wells but also a separate adversary

proceeding       by   North       Highland       against      Trewyn         in     federal
bankruptcy court challenging the dischargeability of Trewyn's

debt to North Highland.            Ultimately, North Highland settled the

dischargeability         issue    in   bankruptcy          court     on     its     merits.

Shortly after the settlement in that adversary proceeding, North

Highland and Trewyn entered a stipulation in the state court

case   dismissing     Trewyn       alone    but      reserving       North       Highland's

claims against Wells.            Pursuant to this stipulation, the circuit

court dismissed Trewyn from the case, ordering that the "matter
shall proceed as between all remaining parties."                             None of the

                                           13
                                                                     No.    2015AP643.rgb


stipulations     or    orders     dismissing       Trewyn    from     the       state   or

federal court proceedings affected claims against Wells; rather,

those claims were expressly reserved.                   None of the stipulations

or orders adjudicated the merits of North Highland’s claims——

against    any   party——for       trade        secret   misappropriation,          civil

conspiracy     to     breach    fiduciary       duties,     aiding     and      abetting

breach    of   fiduciary       duties,    or    interference    with        contractual

obligations.

    ¶144 Claim         preclusion        applies    where    there         is   "(1)    an

identity between the parties or their privies in the prior and

present suits; (2) an identity between the causes of action in

the two suits; and, (3) a final judgment on the merits in a

court of competent jurisdiction."                  Id., ¶35 (quoting N. States

Power Co., 189 Wis. 2d at 551).                    The absence of any element

renders the doctrine inapplicable.                 See N. States Power Co., 189

Wis. 2d at 551.        Under the circumstances presented in this case,

there is clearly no identity of parties or final judgment on the

merits.
    ¶145 There is no identity of parties because Wells was not

a party to the bankruptcy proceeding involving Trewyn, which

precipitated the settlement between North Highland and Trewyn

leading to the dismissal of Trewyn alone as a party in this

case.     It remains uncontroverted that Trewyn and Wells are not




                                           14
                                                                          No.   2015AP643.rgb


privies.6     Wisconsin        has    long    held       that    claim     preclusion       is

unavailable if the parties are not the same.                              See Bentson v.

Brown, 191 Wis. 460, 461-62, 211 N.W. 132 (1926).                               Here, North

Highland wishes to proceed against Wells, not Trewyn; absent

privity between the two defendants, Trewyn's dismissal from the

case presents no bar to North Highland proceeding against Wells,

an entirely distinct party.

     ¶146 Furthermore, there is no final judgment on the merits.

Instead, Trewyn and North Highland settled the issue of whether

any debt Trewyn may owe North Highland was dischargeable in

bankruptcy,      and    this      settlement            included      North      Highland's

agreement not to maintain suit against Trewyn.                            The settlement

agreement   dismissing         the    adversary          proceeding        in    bankruptcy

court, which led to the stipulated dismissal of Trewyn in the

state    court   proceedings,          does       not     even     come     close      to   an

"adjudication      on       the      merits        by     a     court      of     competent

jurisdiction."         As   this     court        explained      in   Mrozek      v.    Intra

Financial Corp., 2005 WI 73, 281 Wis. 2d 448, 699 N.W.2d 54, a
bankruptcy judgment may be a "final judgment on the merits"


     6
       A "privy" refers to "[a] person having a legal interest of
privity in any action, matter, or property; a person who is in
privity with another." Privy, Black's Law Dictionary 1394 (10th
ed. 2014).   Privity can arise from various relationships.    Id.
(listing six types of privity).    "The term also appears in the
context of litigation.   In this sense, it includes someone who
controls a lawsuit though not a party to it; someone whose
interests are represented by a party to the lawsuit; and a
successor in interest to anyone having a derivate claim."     Id.
There is no indication that Trewyn and Wells maintain any
relationship of this sort relative to the present litigation.


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sufficient to satisfy the third prong under the claim preclusion

doctrine, but only when the subject of the pending lawsuit was a

"core proceeding" resolved by the bankruptcy court.                      Id., ¶¶29-

31.7       Regardless of the core versus non-core distinction, the

bankruptcy court involved here did not litigate the subject of

North Highland's lawsuit against Wells.                 Nor does it appear from

this record that the bankruptcy court litigated the subject of

North Highland's trade secret case against Trewyn.                      There was no

bankruptcy court judgment on the merits of the pending lawsuit

or on the facts underlying North Highland's civil suit.                      Rather,

Trewyn      and     North    Highland     reached   a    settlement       agreement,

entered      into    a   covenant   not    to   sue,    and   stipulated     to   the

dismissal     of     North   Highland's     adversary    bankruptcy       claim   and

distinct state court claims against Trewyn.                   Like the entry of a

guilty plea disposing of a criminal case, which this court held

did not satisfy the "actually litigated" requirement for issue

preclusion to apply,8 the settlement agreement does not satisfy

the "judgment on the merits" requirement of claim preclusion
because the settlement effected compromise without a judgment on

the merits.



       7
       But see Matrix IV, Inc. v. American Nat'l Bank and Trust
Co. of Chi., 649 F.3d 539, 549-52 (7th Cir. 2011) (noting a
split of authority on the core versus non-core reasoning).
       8
       See Mrozek v. Intra Fin. Corp., 2005 WI 73, ¶21, 281
Wis. 2d 448, 699 N.W.2d 54 (observing that the guilty plea
"inquiry is not the same as a fully litigated trial between
adversarial parties resulting in the fact-finder determining
that the facts prove" the allegations).


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       ¶147 Of    course,     litigation     in     bankruptcy      courts     can

preclude    claims   in   subsequently      filed   lawsuits.        See,    e.g.,

Matrix IV, Inc. v. American Nat'l Bank and Trust Co. of Chi.,

649 F.3d 539, 542, 547-52 (7th Cir. 2011) (holding that claim

preclusion      barred   plaintiff's    subsequent    RICO   and     common    law

fraud action against same defendants involved in bankruptcy case

where plaintiff fully "litigated and lost the very same fraud

claims").    But the settlement here was unlike the cases applying

claim preclusion following bankruptcy litigation.                   Indeed, some

courts adopt a unique approach for determining whether claim

preclusion should bar an action when the previous claim occurred

in a bankruptcy court.        One court explained why:

       "Because    a   'bankruptcy   case'    is    fundamentally
       different from the typical civil action, however,
       comparison of a bankruptcy proceeding with another
       proceeding is not susceptible to the standard [claim
       preclusion]   analysis."       Rather,    a   court   must
       "scrutinize the totality of the circumstances in each
       action and then determine whether the primary test
       of . . . essential    similarity    in    the   underlying
       events[] has been satisfied."      Also, the court must
       "properly tailor[]" the claim preclusion doctrine to
       the "unique circumstances that arise when the previous
       litigation took place in the context of a bankruptcy
       case."    Ultimately, "a claim should not be barred
       unless the factual underpinnings, theory of the case,
       and   relief   sought   against   the   parties   to   the
       proceeding are so close to a claim actually litigated
       in the bankruptcy that it would be unreasonable not to
       have brought them both at the same time in the
       bankruptcy forum."
Haskell v. Goldman, Sachs & Co., 355 B.R. 438, 449 (Bankr. D.

Del.    2006)    (citations    and     quoted     sources    omitted;       fourth

alteration in original).



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      ¶148 Here, the claims North Highland pursues against Wells

were not "actually litigated" in the bankruptcy case——Wells was

not even involved in the bankruptcy proceeding.                       Nor would it

have been reasonable or possible for North Highland to litigate

its claims against Wells within Trewyn's bankruptcy proceeding.

North     Highland's    agreement    to      forgo   its   state     court    lawsuit

against a bankruptcy debtor whose obligations were dischargeable

does not bar it from pointing the finger at Trewyn to establish

a   conspiracy      with   Wells,   even       though   Trewyn    cannot     be     held

legally liable should the jury find in North Highland's favor.

      ¶149 The absence of a judgment on the merits also defeats

Wells's argument that dismissal of North Highland's underlying

claims against Trewyn precludes North Highland from proving that

Wells is liable under a "derivative" theory such as conspiracy

or aiding and abetting.           Although Wells cites several cases from

other     jurisdictions     for   the    proposition       that   dismissal        of   a

tortfeasor       precludes        further       proceedings        against         other

defendants     on      derivative       liability       theories,     those        cases
featured     actual    resolution       of     the   underlying      cases    on    the

merits, unlike the settlement at issue here.9                 Wisconsin has long


      9
       See Discon Inc. v. NYNEX Corp., 86 F. Supp. 2d 154, 165-66
(W.D.N.Y. 2000) (district court previously dismissed underlying
alleged violation of Sherman Act); Barrios v. Paco Pharm.
Servs., Inc., 816 F. Supp. 243, 252 (S.D.N.Y. 1993) (noting
conspiracy claim precluded after considering and rejecting
merits of claim against alleged co-conspirator); Richard B.
LeVine, Inc. v. Higashi, 32 Cal. Rptr. 3d 244, 253-54 (Ct. App.
2005) (holding that derivative liability precluded "where
plaintiff has already arbitrated or litigated against the direct
tortfeasor and lost" (emphasis added)).


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recognized a plaintiff's ability to settle a claim                               with one

joint     tortfeasor     while   continuing       to   pursue     a    claim      against

another.         See Imark Indus., Inc. v. Arthur Young & Co., 148

Wis. 2d 605, 621-22, 436 N.W.2d 311 (1989) (citing Pierringer v.

Hoger, 21 Wis. 2d 182, 124 N.W.2d 106 (1963); Loy v. Bunderson,

107 Wis. 2d 400, 320 N.W.2d 175 (1982)).                   Because Wisconsin law

contemplates       continued     proceedings       after   a    plaintiff         settles

with an alleged joint tortfeasor, Trewyn's dismissal does not

preclude     a    full   hearing      on   the    merits   of     North      Highland's

conspiracy, aiding and abetting, and interference claims against

Wells.10

     ¶150 Trewyn's        settlement       with   North    Highland         as   part   of

bankruptcy       proceedings     in    federal     court    and       the    subsequent

dismissal of North Highland's state-court claims against Trewyn

     10
       North Highland also directs our attention to Muchow v.
Goding, 198 Wis. 2d 609, 623, 544 N.W.2d 218 (Ct. App. 1995), to
argue that a settlement does not give rise to claim preclusion.
But the cited portion of Muchow discusses the doctrine of
collateral estoppel, now known as issue preclusion.    See Paige
K.B. ex rel. Peterson v. Steven G.B., 226 Wis. 2d 210, 219, 594
N.W.2d 370 (1999). "Issue preclusion addresses the effect of a
prior judgment on the ability to re-litigate an identical issue
of law or fact in a subsequent action."             Mrozek, 281
Wis. 2d 448, ¶17.   The doctrine precludes subsequent litigation
only on questions of fact or law actually litigated in previous
proceedings. Id.

     Since Wells has focused his argument for dismissal on a
theory of claim preclusion, I will not discuss issue preclusion
in great detail.   I do note, however, that the doctrine likely
would not bar North Highland's claim against Wells because the
extent of Wells's alleged liability to North Highland was never
actually   litigated   during   the   federal  dischargeability
proceedings or as part of Trewyn's stipulated dismissal from
this state-court action.


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do    not    extinguish         North     Highland's           previously-filed             lawsuit

against      Wells    in     state      court.           These       circumstances          satisfy

neither      the    elements      of    claim          preclusion      nor     the      objectives

underlying the doctrine.                Holding that the settlement of North

Highland's         adversary      claim      in    Trewyn's          bankruptcy         proceeding

precludes          North        Highland's         claim         against        Wells         could

unnecessarily relieve jointly responsible tortfeasors from their

legal obligations based on a dismissed defendant's fortuitous

bankruptcy filing.

                                              III

       ¶151 In sum, I conclude that a confidential bid can be a

trade       secret.         I     would      reverse           the     court       of      appeals'

determination otherwise and remand to the circuit court because

the record contains material disputed issues of fact for a jury

to resolve on whether Wells violated trade secret law.                                     Further,

the   circuit       court    erred      in    concluding          that    North         Highland's

action against Wells was barred under claim preclusion based on

the     compromise         reached      between          North       Highland        and    Trewyn
resolving      the     adversary          claim         North    Highland          asserted      in

Trewyn's      bankruptcy         proceeding,           which     ultimately          led    to   the

dismissal of Trewyn alone from the state court case.                                       I would

reverse the circuit court's dismissal of this case and remand

for a jury trial on North Highland's conspiracy, aiding and

abetting, and interference with contract claims against Wells

because the circuit court previously determined that material

issues of disputed facts exist with respect to those claims.
       ¶152 For these reasons, I respectfully dissent.

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    ¶153 I am authorized to state that Justice DANIEL KELLY

joins this dissent.




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