                   Not for Publication in West’s Federal Reporter

             United States Court of Appeals
                          For the First Circuit


No. 09-1336

                            TAKE IT AWAY, INC.,

                           Plaintiff, Appellant,

                                        v.

                           THE HOME DEPOT, INC.,

                            Defendant, Appellee.


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF MASSACHUSETTS

           [Hon. Douglas P. Woodlock,          U.S. District Judge]


                                     Before

                         Lipez, Circuit Judge,
         Souter, Associate Justice,* and Howard, Circuit Judge.


     Philip Y. Brown, with whom Timothy P. Frawley, Brian R.
Birke, Adler Pollock & Sheehan P.C., and John M. Greabe were on
brief, for appellant.
     David B. Chaffin, with whom Sarianna T. Honkola and White
and Williams LLP were on brief, for appellee.


                                April 15, 2010




     *
          The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
           SOUTER, Associate Justice.        Three principals organized

the appellant, Take It Away, Inc., to act as a broker in a

contemplated business of supplying dumpsters that do-it-yourselfers

could rent from the appellee, The Home Depot, Inc., and like

retailers.   In a document called a “teaser,” mailed to a Home Depot

official in 1997, Take It Away hopefully described itself as a

“Nationwide Association” of waste haulers and others, with a

“Retail Distribution Channel for renting Construction & Demolition

Debris Removal Containers” (i.e., dumpsters), which was prepared to

form   “Strategic   Partnerships”    with   building   material   supplies

dealers like Home Depot. Take it Away would “provid[e] all the

tools,” apparently dumpsters, “for [Home Depot] to capture [its]

share of this immense untapped market,” presumably by renting the

dumpsters to its customers.         The statement described itself as

confidential, and when the recipient at Home Depot agreed to have

discussions he signed a “non-disclosure agreement” prepared by Take

It Away, pledging that Home Depot would “utilize the Confidential

Proprietary Information” to be disclosed “for the sole purpose of

evaluating the business of [Take It Away] and [would] make no other

use” of it without permission.

           The information actually disclosed was a proposal that

the association, Take It Away, would supply dumpsters (obtained,

one supposes, from its associated trash haulers) that Home Depot

would rent directly to its customers, pocketing ten percent of the


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charge and remitting the balance to Take It Away.                    Home Depot was

not interested in becoming a dumpster lessor, and remained of that

mind despite at least four more of Take It Away’s pitches to other

company officers and employees over the next five years. Beginning

in 2003, however, Home Depot signed agreements allowing four

suppliers in the United States and Canada to use space in Home

Depot stores to offer dumpster rentals directly as lessors to Home

Depot customers.

              Take It Away brought this suit in a Massachusetts state

court.   Count 1 accused Home Depot of violating the non-disclosure

agreement; count 2 charged appropriation of trade secrets contrary

to Massachusetts General Laws Chapter 93, § 42; count 3 alleged

common   law    conversion      of   trade    secrets;       and   count    4   claimed

violation of Chapter 93A, § 11 of the Massachusetts statutes,

forbidding unfair trade practices.             Home Depot removed the case to

federal court, where the district judge granted summary judgement

to Home Depot on all counts.          On appeal for de novo review, Klaucke

v. Daly, 595 F.3d 20, 24 (1st Cir. 2010), we affirm.

              The principal difficulty in this case is understanding

what    the    confidentiality       agreement    was    supposed      to       protect.

“Confidential      Proprietary       Information”       is    undefined,        and   the

district court not unnaturally took it at a fairly general level to

cover    “the    concept   of    renting      dumpsters       from   national         home

improvement retail centers.”            At first, some of us also thought


                                        -3-
that was what the fight was about, but a careful rereading of Take

It Away’s reply brief shows that its claim is a degree more

particular, focused on brokerage.         It says that its “dumpster-

brokerage concept and business plan” were the intended subjects of

protection;   “the   essence   of   its   concept   is   national   retail

distribution dumpster brokerage” combined with a “separate business

plan for putting its concept into practice” (emphasis in original).

The stress in the reply brief is repeatedly on its “dumpster-

brokerage concept” or “container-brokerage concept,” which is more

specific than “rental of dumpsters.”

          The clarification at least saves Take It Away from the

obvious response that all it disclosed was that Home Depot, like

ever so many others, could rent out dumpsters.               But even as

clarified, the claim seems to boil down to this:         the agreement was

intended to protect a “brokerage” concept to the effect that Take

It Away would deal with third parties to obtain dumpsters that Home

Depot could rent to customers. The concept is not merely, “you can

do it, too,” but no more than “you can do it, too, and we will

broker your supplies.”

          With the subject of the claimed protection so understood,

we think the summary judgement order was correct on all counts.

Although much of the briefing and argument addresses the potential

breadth of “Confidential Proprietary Information” along with its

relation to the notion of a trade secret and the criteria for


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concluding that information amounts to a trade secret, the anterior

issue is whether the concept actually meant to be protected here

can reasonably be seen as having enough value, beyond what was

commonly known or obvious, to amount to consideration for Home

Depot’s promise to limit its use of that concept as Take It Away

subsequently disclosed it.          The first reason for answering no is

simply that before the Home Depot official signed the agreement he

had already seen the teaser, which is fairly read as disclosing the

concept of a network of businesses organized by Take It Away to

supply dumpsters to be rented out by retail suppliers to their

customers.         That is, the teaser described an association in the

role of a broker of rental goods.                While the details of the

business plan were not set out there, the basic business structure

was apparent: Home Depot would “capture” the market, while Take It

Away       would   work   behind   the   scene   of   the   retailer’s   direct

transaction with the customer.            The concept was out in the open

before Home Depot agreed to talk.1

               But even if the claimed secret had not already been

revealed before the agreement was signed, one searches in vain for

anything of value not readily imaginable that might be protected.


       1
       The detailed provisions of the business plan were not
disclosed by the relatively short teaser statement, but this is
irrelevant for two independent reasons. First, it does not appear
that the plan adds anything to the concept that was not obvious
from the concept as described by the teaser.    And, second, Home
Depot did not implement the details of Take It Away’s plan; its
four contractors deal directly with the customers.

                                         -5-
It is undisputed that Home Depot rented tools and even trucks to

its customers, that dumpsters were commonly rented out, and that

retailers need manufacturers or suppliers.              While it might have

been   information      of   some   commercial    (though      not   necessarily

protectable) value that a previously unknown broker network was

ready for business and could give Home Depot an immediate entree to

the dumpster supply market, that could not have been protectable

information here, if for no other reason than the undisputed fact

that Take it Away’s “Nationwide Association” did not actually

exist; the references to an association were expressions of hope,

nothing more.     In sum, it is hard to see what concept or plan Home

Depot gained from the disclosure that it could not have thought up

readily for itself if it had found any reason to expand its rental

activity: a dumpster is a big tool for removing debris, and renting

tools and establishing reliable supply networks are not the stuff

of novel concepts.       This is not to say, of course, that a proposal

like Take It Away’s could not have led to lucrative business if

accepted,   but   any    such   value    would   have   come    from   efficient

execution, not conceptual inventiveness, and disclosing the concept

did not provide the value necessary for consideration supporting a

contractual claim.

            This view of the nature and worth of Take It Away’s

disclosure answers its argument that “Confidential Proprietary

Information” may be the subject of a confidentiality agreement


                                        -6-
covering more than trade secrets and may be protected by contract

under Massachusetts law.    We will assume this to be so, for it

makes no difference.     Whatever the state law of contract may

protect, there must be a contract to protect it, and without

valuable consideration on one side there is none.

          As might be expected, the state doctrine of protectable

trade secrets, the subject of counts 2 and 3, fails to improve Take

It Away’s position. Under Massachusetts common law, a trade secret

is “‘any formula, pattern, device or compilation of information

. . . used in one’s business . . . which gives him an opportunity

to obtain an advantage over competitors who do not know or use it,”

J.T. Healy & Son, Inc. v. James A. Murphy & Son, Inc., 357 Mass.

728, 736, 260 N.E.2d 723, 729 (1970) (quoting Restatement of Torts

§ 757 cmt. b (1939)).2   The definition is spacious to be sure, but

a protectable secret must still be described aptly as a secret

after considering six criteria, see Jet Spray Cooler, Inc. v.

Crampton, 361 Mass. 835, 840, 282 N.E.2d 921, 925 (1972), which are

not much help to Take It Away.




     2
       While Take It Away brought claims under both Massachusetts
common law and statutory law, it does not distinguish between them
on appeal because it views them as “doctrinally equivalent.” This
may well be true. See Incase Inc. v. Timex Corp., 488 F.3d 46, 52
n.10 (1st Cir. 2007); Burten v. Milton Bradley Co., 763 F.2d 461,
462 (1st Cir. 1985) (“Mass. Gen. Laws Ann. ch. 93, § 42 . . .
essentially codifies the common law.”). Regardless, because Take
It Away makes no argument that its statutory claim calls for a
separate analysis, we analyze counts 2 and 3 together.

                                 -7-
          The first and last criteria look to the extent that

information was known outside Take It Away and the ease with which

it could be acquired independently.    As noted, the teaser revealed

what a true teaser would have left for later, and for that matter

anyone interested in domestic building construction could readily

have thought of supplying dumpsters for rent by a lumber dealer; in

fact, the idea struck one of Take It Away’s principals in a flash

as he was driving by a Home Depot store.   While it should not count

against a small corporation that everyone working for it knows the

supposed secret (under the second criterion), it does count against

Take It Away (under the third) that the move it made to protect

itself (getting a non-disclosure agreement) was outflanked by the

teaser and was insisted upon in dealing with only one of at least

seven Home Depot officers or employees to whom Take It Away

revealed the concept.   The others variously refused, declined, or

were never asked to sign the non-disclosure form.    See Healy, 357

Mass. at 738, 260 N.E.2d at 731 (he who wishes to preserve a trade

secret “must exercise eternal vigilance”).

          The amount of effort and money devoted to developing the

supposed secret (criterion five) does not enhance Take It Away’s

case appreciably, for the 1700 hours of work claimed, and the

thousands said to have been spent, include the extended and wholly

unsuccessful marketing efforts.       Finally, with respect to the

fourth criterion (the value of the idea), while Take It Away’s


                                -8-
expert envisioned millions in profits, nothing in his report

suggests that a trade secret was the reason; he simply estimates

the value of the business opportunity assuming vigorous marketing

by Home Depot.   Cf. Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1011

n.15 (1984) (“[T]he value of a trade secret lies in the competitive

advantage it gives its owner over competitors.”).

          It is not apparent that consideration of these six

factors could support a conclusion of protectable trade secret. So

summary judgement on counts 2 and 3 was proper.       See Rodi v. S. New

Eng. Sch. of Law, 532 F.3d 11, 15 (1st Cir. 2008) (explaining that

summary judgement is appropriate if no reasonable jury could find

for the non-movant, even on an issue that is “ordinarily a question

of fact for the jury” under state law).

          Take    It   Away’s     final   claim   alleges   violation    of

Massachusetts    General   Laws    Chapter   93-A.    As    Take   It   Away

succinctly put it in the reply brief, this claim “is premised on a

number of unfair and deceptive acts . . . namely, Home Depot’s

breach of the Agreement and misappropriation of trade secrets.”

Absent an enforceable agreement and, specifically, a trade secret,

count 4 fails as well.

          Affirmed.




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