                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-1435


HILL HOLLIDAY CONNORS COSMOPULOS, INCORPORATED,
d/b/a/ Erwin-Penland,

                Plaintiff - Appellee,

           v.

JEFFREY GREENFIELD; 1ST APPROACH LLC,

                Defendants and Third-Party Plaintiffs -
                Appellants,

           v.

CELLCO PARTNERSHIP, d/b/a/ Verizon Wireless;
JOSEPH A. ERWIN,

                Third-Party Defendants - Appellees.



Appeal from the United States District Court for the District of
South Carolina, at Greenville.    G. Ross Anderson, Jr., Senior
District Judge. (6:08-cv-03980-GRA)


Argued:   March 23, 2011                    Decided:   June 2, 2011


Before GREGORY, AGEE, and KEENAN, Circuit Judges.


Affirmed by unpublished opinion. Judge Agee wrote the majority
opinion, in which Judge Keenan joined.  Judge Gregory wrote a
dissenting opinion.
ARGUED: Jay Stanley Horowitz, HOROWITZ & FORBES, LLP, Denver,
Colorado, for Appellants.    Brenda R. Sharton, GOODWIN│PROCTER,
Boston, Massachusetts, for Appellees. ON BRIEF: Phillip Jeffrey
North, THE LAW OFFICE OF P. JEFFREY NORTH LLC, Hilton Head
Island, South Carolina, for Appellants. Stacey B. Ardini, Kunal
Pasricha, GOODWIN│PROCTER, Boston, Massachusetts, William F.
Sheehan, GOODWIN│PROCTER, Washington, D.C., Bernie W. Ellis,
Rita M. McKinney, MCNAIR LAW FIRM, P.A., Greenville, South
Carolina,   for  Appellee Hill    Holliday  Connors  Cosmopulos,
Incorporated, d/b/a/ Erwin Penland, and Joseph A. Erwin; Robert
A. Muckenfuss, David M. Chromy, Elizabeth M. Z. Timmermans,
MCGUIREWOODS LLP, Charlotte, North Carolina, for Appellee Cellco
Partnership, d/b/a Verizon Wireless.


Unpublished opinions are not binding precedent in this circuit.




                                2
AGEE, Circuit Judge:

            Jeffrey Greenfield collaborated with Erwin-Penland, a

South Carolina advertising agency, on a marketing plan aimed at

securing    a    contract     with    the       Captain       D’s    restaurant      chain.

Captain D’s declined to implement the proposal, which centered

on the general concept of a gospel choir competition entitled

“How Sweet the Sound.”          Erwin-Penland, however, later convinced

another client, Verizon Wireless, to fund a modified version of

the project, but without the participation of Greenfield or his

company,        1st   Approach        LLC        (collectively            “Greenfield”).

Greenfield       subsequently        demanded       compensation             from    Erwin-

Penland, who responded by filing a declaratory judgment action

in South Carolina state court, seeking a ruling that Greenfield

had no ownership interest in the “How Sweet the Sound” concept.

            Greenfield      removed       the     case        to    the   United     States

District Court for the District of South Carolina and instituted

various counterclaims, including a third-party complaint against

Verizon    Wireless   and     Joseph      Erwin     —    the       president   of    Erwin-

Penland.        The district court concluded that Greenfield had no

protected    interest    in    the    “How      Sweet        the    Sound”   project      and

granted    summary    judgment       in     favor       of    Erwin-Penland         and   the




                                            3
third-party defendants. 1            Greenfield now challenges that ruling

on   appeal.          For   the   reasons         stated     herein,      we     affirm      the

judgment of the district court.



                                              I.

               Joseph Erwin heard Greenfield speak on the subject of

“branded entertainment” at a conference.                      Subsequently, he asked

Greenfield       to    collaborate       with      Erwin-Penland          on    a     marketing

proposal   aimed       at   securing      an       account    with     the      Captain      D’s

restaurant      chain.       Greenfield         accepted      Erwin’s      offer        without

entering into a written agreement establishing the terms of his

relationship with Erwin-Penland.

               After    a   series       of     collaborative        phone          calls    and

emails, Greenfield sent Erwin-Penland a marketing deck outlining

a    concept     he    labeled    “‘Amazing          Grace’    Captain          D’s     Branded

Reality Show.”         Joint Appendix (“J.A.”) at 1375.                        Erwin-Penland

subsequently changed the name of the proposal to “How Sweet the

Sound.”     Id. at 712, 896.              The “How Sweet the Sound” concept

involved “[t]he top 20 church choirs in the US competing for

over $250,000 in prizes and the title of the Best Choir in the

USA.”      Id.    at    1376.        A   production          team    of    producers         and


       1
          We refer to Verizon Wireless and                                     Joseph       Erwin
collectively as the “third-party defendants.”



                                              4
cameramen,      along     with    a    host    “[s]imilar       to   Ryan    Seacrest      on

American Idol,” would “cross the country in [a] 6 week trek of

visiting   EVERY        Captain       D’s     location,”     using     local       media   to

publicize the event.             Id. at 1377.          Once there, the team would

interview local choir members about their “choir and why they

think they are the best in the US.”                   Id.

            Competitions          would        then    take        place    in     Atlanta,

Georgia;        Jackson,     Mississippi;             Birmingham,          Alabama;        and

Charleston, South Carolina between the best twenty-five choirs

in each region.         Each contest would be featured in a television

episode, take place “in large arenas,” and “have a large panel

of    celebrity     judges       who    [would]       vote    on     the    best    overall

performance.”        Id.     The winners of the regional competitions

would then “be invited to attend [a] National competition in

Nashville,” Tennessee featuring “the 4 best church choirs in the

country in an authentic inspirational contest to find the #1

Choir in the USA.”          Id.        Winning the national competition would

entitle a choir to “the title of the Best Choir in the USA” and

“over $250,000 in prizes.”              Id. at 1376.

            In    conjunction          with    the    “entertainment”        provided      by

the    gospel     choir    competition,            Greenfield      proposed        marketing

Captain D’s through three different mediums:                         product placement,

radio, and the internet.                The parties intended that Greenfield

would serve as producer and talent broker for Captain D’s “How

                                               5
Sweet the Sound” project.                Although Captain D’s expressed some

interest in the proposal, it ultimately declined to adopt the

plan.

             Subsequently, Greenfield and Erwin-Penland presented a

similar “How Sweet the Sound” concept to Verizon Wireless, one

of Erwin-Penland’s existing clients.                Modifications were made to

this proposal to better suit Verizon Wireless’ business model.

For     example,     Greenfield     and     Erwin-Penland       suggested        signing

choirs up for the competition at Verizon Wireless stores and

creating “a CD of the winning choirs” that would be distributed

“through stores and agents.”              Id. at 1587.

             Although Verizon Wireless also expressed interest in

the “How Sweet the Sound” concept, it had concerns about the

plan’s      projected       cost.              Greenfield     and        Erwin-Penland

subsequently worked to scale back the television component of

the project to a one-hour special or documentary.                         When Verizon

Wireless’      response      to     this       less-expensive       model       was   not

immediately        forthcoming,      Greenfield         inquired    as     to    whether

Verizon Wireless was still interested in the concept or whether

he    was   free   to    present    it    to    other    clients.        Erwin-Penland

responded     that      Verizon    was    still   considering       the    scaled-back

plan.

             Over a year later, Erwin-Penland and Verizon Wireless

implemented a limited “How Sweet the Sound” marketing concept by

                                            6
organizing        a     single      gospel     choir      competition        in    Memphis,

Tennessee.        The project later evolved into a series of gospel

choir competitions orchestrated throughout the nation.                             In 2009,

the final contest was televised on the Gospel Music Channel and

a    documentary         about       the     series       appeared      on     the      Black

Entertainment          Television       Network       (“BET”).         Although         other

agencies      aided          Erwin-Penland          and      Verizon         Wireless      in

implementing the “How Sweet the Sound” concept, Greenfield was

not asked to assist, and had no part, in executing the plan.



                                              II.

             Greenfield          demanded      compensation        from      Erwin-Penland

for its use of the “How Sweet the Sound” marketing plan, which

he claimed to have originated.                 In response, Erwin-Penland filed

a    declaratory        judgment      suit    in    South    Carolina        state   court,

requesting        a     ruling      that     Greenfield      had      “no     co-ownership

interest     or       rights   in    the     marketing      project    ‘How       Sweet   the

Sound.’”     J.A. at 28.            Greenfield removed the case to the United

States District Court for the District of South Carolina based

on the parties’ diverse citizenship.                      See 28 U.S.C. § 1332(a).

He    then   filed       a   first    amended       counterclaim       and     third-party

complaint against Erwin-Penland and the third-party defendants,

which stated numerous claims for, inter alia, fraud, breach of



                                               7
contract,      misappropriation             of     trade     secrets,        and    unjust

enrichment.

              Erwin-Penland           and         the      third-party        defendants

subsequently filed motions for summary judgment as to all of

Greenfield’s claims.            In turn, Greenfield filed a motion for

summary      judgment    on     his       unjust        enrichment    and     breach      of

fiduciary duty claims.               The district court concluded that no

genuine issue of material fact precluded granting judgment as a

matter of law to Erwin-Penland and the third-party defendants.

Accordingly, the court granted summary judgment in their favor

on   all    claims    and     denied      Greenfield’s        competing      motion       for

summary judgment.

              First, the district court concluded that “Greenfield’s

purported trade secrets fail[ed] to meet [the] criterion” for

protection      under   the    South        Carolina      Trade   Secrets     Act       (“the

Act”), see S.C. Code Ann. § 39-8-20(5), because his “claimed

trade     secrets    [were]    not     novel       or   protectable,     and,      if   they

were,      Greenfield   failed       to     take    reasonable       steps   to    protect

them.” 2     J.A. at 183.         Thus, “even assuming the existence of

. . . trade secret[s],” id. at 183 n.3, summary judgment was




      2
         Our summary of the district court’s summary judgment
orders focuses solely on the portions relevant to the four
issues Greenfield raises on appeal.



                                              8
appropriate “for the independent reason that Greenfield failed

to take reasonable efforts to protect” them.                         Id. at 187.

             Second,         the    district         court        rejected    Greenfield’s

argument that he had “an oral or implied-in-fact contract” with

Erwin-Penland that was subject to breach.                          Id. at 189.       Because

“[t]he parties did not discuss, let alone come to an agreement

on,   the    essential       terms    of    a       contract,”      the   district     court

concluded “no reasonable trier of fact could find mutual assent

as    to   any   essential         terms”    of      an    agreement,        given   “either

orally, in writing, or implied” in fact.                        Id. at 189.

             Indeed, the district court concluded that “[a] careful

review      of   the    documentary         record        and     deposition    testimony”

established, “at best, that Erwin-Penland and Greenfield . . .

discuss[ed] potential or speculative options for the [“How Sweet

the    Sound”]    concept[].”           Id.          It    was     “undisputed       that   no

proposed options made by Greenfield were ever accepted by Erwin-

Penland.”        Id.    at    189-90.         The     district       court     consequently

determined that Greenfield was unable to “point to any objective

manifestations and expressions by Erwin-Penland that would be

sufficient to establish the existence of a contract.”                                 Id. at

190; see also id. (“Mere expectations and one-sided hopes of a

party do not make a contract . . . .”).

             Third, the district court held that Greenfield “failed

to    satisfy     the    elements       necessary            to    support”     an    unjust

                                                9
enrichment claim.       Id. at 199.            Greenfield’s “only contribution

to” the “How Sweet the Sound” project “was in conjunction with

. . . speculative pitches . . . to Verizon Wireless and Captain

D’s.”     Id.    at   200.      As   he   had       no    “role     in     executing     and

implementing the . . . project . . . eventually undertaken by

Verizon Wireless” and “did not contribute any trade secret or

other   protectable     information”           to   the     marketing         scheme,   the

district court held that Greenfield was unable to “prove as a

matter of law that a non-gratuitous ‘benefit’ was conferred for

which compensation [was] required.”                 Id.

            Fourth,    the     district    court          ruled     that      Greenfield’s

attempt     to   cancel      Erwin-Penland’s             “How      Sweet      the     Sound”

trademark    based    on     fraudulent    representations               to    the    United

States Patent and Trademark Office failed as a matter of law.

The court stated that even if Greenfield’s factual allegations

were true, “[t]rademark rights are not based on creativity, but

on use in commerce.”           Id. at 201.           Because it was “undisputed

that Greenfield ha[d] not used the [“How Sweet the Sound”] mark

in commerce,” he could not “claim trademark rights in the term”

or demonstrate “that Erwin-Penland committed fraud in procuring

th[e] trademark registration.”            Id.

            Greenfield       noted   a    timely          appeal    of     the      district

court’s order granting summary judgment.                        We have jurisdiction

under 28 U.S.C. § 1291.

                                          10
                                             III.

              On   appeal,      Greenfield         generally    argues     the   district

court misapplied the summary judgment standard in failing to

view the record evidence and all inferences drawn therefrom in

the light most favorable to him, as the non-moving party.                                He

more specifically avers the district court erred in concluding

the “How Sweet the Sound” concept failed to meet the criteria

for protection under the Act.                 For example, Greenfield contends

the district court applied “a non-existent novelty requirement”

for   trade    secret      protection        and    ignored     a    genuine     issue   of

material      fact    as   to     whether     he     took     reasonable       efforts   to

preserve the         secrecy    of     the   “How     Sweet    the    Sound”     marketing

scheme.    Opening Br. at 23.

              Greenfield        also     challenges         the      district      court’s

“failure to discern in the” relationship between himself and

Erwin-Penland “the basis for imposing contractual and equitable

duties”    predicated        on      Erwin-Penland’s          and    Verizon     Wireless’

“unjust enrichment at [his] expense.”                         Id. at 24.          Finally,

Greenfield claims the district court erred in refusing to cancel

Erwin-Penland’s “How Sweet the Sound” trademark based on various




                                              11
fraudulent assertions made throughout the trademark registration

process. 3   See id.; see also 15 U.S.C. § 1064(3).

             In     response,     Erwin       Penland         and      the       third-party

defendants    argue     the    Act    offers       no   protection         as    to     any    of

Greenfield’s        claims    concerning          the     “How      Sweet       the     Sound”

marketing     scheme.         They    contend       the    concept         was        “‘readily

ascertainable by proper means by the public,’” Response Br. at

19,   and    that    Greenfield       “knowingly        shared         [the      plan]       with

multiple     third      parties       (some        of   whom        were        Greenfield’s

competitors)”         without         the         protection         offered            by     a

confidentiality       agreement.            Id.    at   20.         Accordingly,          Erwin

Penland and the third-party defendants maintain that “Greenfield

cannot prove . . . he took reasonable efforts to maintain the

confidentiality of his supposed secrets.”                     Id.

             Based    on     Greenfield’s         admissions        that        the    parties

“engaged     only     in     preliminary          proposals       in     advance         of     a

speculative pitch for new business and never even discussed the

essential terms of a . . . contract,” Erwin-Penland and Verizon

Wireless     also     dispute        Greenfield’s         claim        that      a      binding

contractual relationship was established.                        Id. at 20-21.               They

      3
        Greenfield raised various fiduciary-duty claims in                                    his
Opening Brief but informed the Court at oral argument he                                       no
longer asserted those issues on appeal.  As Greenfield has                                    now
conceded there was no error as to those claims, we do                                         not
address them here.



                                            12
further argue that Greenfield is unable to make out a claim for

unjust   enrichment,        as     he   contributed    neither      labor     nor    a

protected piece of intellectual property to the marketing scheme

Verizon Wireless eventually implemented.                   Lastly, Erwin-Penland

and the third-party defendants would have us reject Greenfield’s

trademark-cancellation claim because “he makes no claim to ever

having used the [“How Sweet the Sound”] mark in commerce.”                          Id.

at 34.



                                          IV.

              “We review de novo a district court’s award of summary

judgment,     viewing      the   facts    and   inferences       reasonably    drawn

therefrom in the light most favorable to the nonmoving party.”

Fraternal     Order    of   Police      Lodge   No.   89    v.   Prince     George’s

County, 608 F.3d 183, 188 (4th Cir. 2010).                   Under Federal Rule

of Civil Procedure 56(a), summary judgment is appropriate “if

the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter

of law.”      In this case, the record demonstrates that no genuine

dispute as to a material fact precluded granting judgment as a

matter   of    law    in   favor   of    Erwin-Penland     and    the   third-party

defendants.      See Estate of Kimmell v. Seven Up Bottling Co. of

Elkton, Inc., 993 F.2d 410, 412 (4th Cir. 1993) (“[I]n a case

where ‘the record taken as a whole could not lead a rational

                                          13
trier of fact to find for the non-moving party, there is no

genuine      issue       for    trial’   and     summary    judgment      is    proper.”

(quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986))).



                                    A.   Trade Secret

              The South Carolina Trade Secrets Act protects “trade

secrets” that meet two separate criteria. 4                        First, the trade

secret      must    “derive[]       independent     economic       value,      actual   or

potential,        from    not   being    generally     known      to,   and    not   being

readily ascertainably by proper means by the public or any other

person      who    can   obtain     economic     value     from   its   disclosure      or

use.”       S.C. Code Ann. § 39-8-20(5)(a)(i).                    Second, the trade

secret must be “the subject of efforts that are reasonable under

the     circumstances          to   maintain     its     secrecy.”        Id.    § 39-8-

        4
          The Act defines a “‘[t]rade secret’” asinformation
including but not limited to, a formula, pattern, compilation,
program, device, method, technique, product, system, or process,
design, prototype, procedure, or code that:

             (i) derives independent economic value, actual or
        potential, from not being generally known to, and not
        being readily ascertainable by proper means by the
        public or any other person who can obtain economic
        value from its disclosure or use, and

             (ii)  is  the  subject  of  efforts that                           are
        reasonable under the circumstances to maintain                          its
        secrecy.

S.C. Code Ann. 39-8-20(5)(a) (emphasis added).



                                            14
20(5)(a)(ii).     As the plain language of the statute provides,

information must satisfy both criteria in order to be deemed a

“trade secret” under the Act. 5        Id. § 39-8-20(5)(a).

           For   purposes     of   this     opinion,    we   assume,    without

deciding, that the “How Sweet the Sound” concept satisfies the

Act’s first criterion. 6         A reasonable finder of fact, however,

could not conclude that Greenfield took reasonable efforts to

maintain   the   secrecy    of   the   “How   Sweet    the   Sound”    marketing

scheme, the second criterion for protection under the Act.                     In

Lowndes Products, Inc. v. Brower, 191 S.E.2d 761 (S.C. 1972),

the Supreme Court of South Carolina construed the reasonable-

efforts-to-maintain-secrecy        requirement    as    setting   a    high   bar


     5
        See also Restatement (Third) of Unfair Competition § 39
(1995) (defining a “trade secret” as “any information that can
be used in the operation of a business or other enterprise and
that is sufficiently valuable and secret to afford an actual or
potential economic advantage over others”); Restatement (First)
of Torts § 757 cmt. b (1939) (“The subject matter of a trade
secret must be secret.     Matters of public knowledge or of
general knowledge in an industry cannot be appropriated by one
as his secret.”).
     6
        See S.C. Code Ann. § 39-8-20(5)(b) (“A trade secret may
consist of a simple fact, item, or procedure, or a series or
sequence of items or procedures which, although individually
could be perceived as relatively minor or simple, collectively
can make a substantial difference in the efficiency of a process
or the production of a product, or may be the basis of a
marketing or commercial strategy. The collective effect of the
items and procedures must be considered in any analysis of
whether a trade secret exists and not the general knowledge of
each individual item or procedure.”).



                                       15
for trade secret protection. 7             See id. at 766; see also Woven

Elecs. Corp. v. Advance Grp., Inc., 930 F.2d 913, Nos. 89-1580 &

89-1588, 1991 WL 54118, at *3 (4th Cir. Apr. 15, 1991), as

amended May 6, 1991 (unpublished) (characterizing “a consistent

effort . . . to keep” a “wire weaving process” secret, rather

than       “isolated    attempts     to        protect    [that     information’s]

confidentiality,” as sufficient to meet the reasonable-efforts-

to-maintain-secrecy       requirement)          (citing   Lowndes    Prods.,   191

S.E.2d at 765)).

              Individuals “entitled to a trade secret” and desiring

“to have its exclusive use in [their] own business” are barred

from “lightly or voluntarily hazard[ing] its leakage or escape.”

Lowndes      Prods.,    191      S.E.2d     at     766    (quotation     omitted).

Revealing a trade secret to others is consequently fatal to its

protected      status   unless    one     “exercise[s]     eternal    vigilance.” 8

Id. (quotation omitted).            The exercise of “eternal vigilance”

imposes a heavy burden on the owner of a trade secret, as it

“calls for constant warnings to all persons to whom the trade

       7
         See also 20 S.C. Jur. Intellectual Prop. § 75 (2011)
(engaging in an extensive discussion of the reasonable-efforts-
to-maintain-secrecy requirement based on Lowndes Products).
       8
        Although the dissent is correct that “[d]isclosure . . .
does not necessarily vitiate secrecy,” Dis. Op. at 28, it fails
to account for South Carolina case law conditioning further
trade secret protection on the exercise of “eternal vigilance.”
Lowndes Prods., 191 S.E.2d at 766.



                                          16
secret has become known and obtaining from each an agreement,

preferably in writing, acknowledging its secrecy and promising

to respect it.” 9    Id. (quotation omitted).

            The undisputed evidence in this case demonstrates that

Greenfield did not exercise “eternal vigilance” in sharing the

details   of   the   “How   Sweet    the   Sound”    marketing    scheme    with

others.    To the contrary, Greenfield transmitted the “How Sweet

the Sound” concept to Erwin-Penland, J.A. at 775, and presented

the plan to Verizon Wireless in the presence of multiple third

parties — including members of “other ad agenc[ies]” — without

the benefit of any type of nondisclosure agreement.               Id. at 791.

The record, without contradiction, also supports the district

court’s finding that “[t]he alleged ‘trade secrets’ in question

had . . . been previously shared with a different third-party,

the restaurant chain Captain D’s, with whom Greenfield . . . had

no confidentiality or other agreement.”             Id. at 186.

            It would thus be unreasonable, if not impossible, for

a finder of fact to conclude that Greenfield took “efforts that

[were]    reasonable   under   the    circumstances      to   maintain     [the]


     9
         See also 20 S.C. Jur. Intellectual Prop. § 75 (2011)
(“‘[E]ternal vigilance’ in the form of ‘constant warnings to all
persons to whom the trade secret has become known and obtaining
from each an agreement, preferably in writing, acknowledging its
secrecy and promising to respect it’ is required.” (quoting
Loundes Prods., 191 S.E.2d at 761)).



                                      17
secrecy”    of   his     marketing       strategy.        S.C.   Code    Ann.   § 39-8-

20(5)(a)(ii).       And such efforts are mandatory under the plain

language    of     the    Act     if    a    trade   secret      is     to   merit    its

protection.      See id.; Lowndes Prods., 191 S.E.2d at 765 (“[A]ll

trade secrets are not entitled to . . . protection . . . .); 20

S.C. Jur. Intellectual Prop. § 76 (2011) (“A third party who

receives information without any express or implied assurance of

confidence may do what it likes with the information.”).

            Although              Greenfield              unilaterally             placed

confidentiality          notices       on   some     of    his   materials,          these

notations    are    not     sufficient        to   create    a   genuine      issue    of

material fact as to the reasonableness of his conduct. 10                            South

Carolina courts do, of course, require such “warnings to all

persons to whom the trade secret has become known.”                             Lowndes

Prods.,    191   S.E.2d      at    766      (quotation     omitted).         But     South

Carolina law is clear that warnings alone are insufficient to

place a trade secret within the sphere of protection provided by

the Act.    See id. (characterizing “isolated steps . . . taken to




     10
         In his Opening Brief, Greenfield also notes that he
registered the “How Sweet the Sound” concept as a “Gospel Music
Contest” with the Writers’ Guild of America, listing himself and
Joseph Erwin as co-owners.   See Opening Br. at 18.   Greenfield
does not contend, however, that this registration constituted
reasonable measures to maintain the secrecy of the “How Sweet
the Sound” marketing plan.



                                             18
implement       secrecy”    as    insufficient     to     merit      trade   secret

protection).

            A     trade     secret    owner      who      knowingly      discloses

proprietary information to others must also “obtain[] from each

an agreement . . . acknowledging its secrecy and promising to

respect it.” 11      Id. (quotation omitted).             Greenfield points to

nothing in the record suggesting he obtained a confidentiality

agreement from the multiple entities to whom he presented the

“How Sweet the Sound” concept. 12           Accordingly, the district court

correctly   determined       no   material    facts     were    in    dispute   and

correctly   held     that   (1) Greenfield       failed    to   take    reasonable

efforts to maintain the secrecy of his marketing plan, see 20

     11
         We respect the dissent’s viewpoint but are compelled to
adhere to the principle that “federal courts sitting in
diversity must apply state substantive law, decisional as well
as statutory, in the adjudication of state-created rights.”
Hottle v. Beech Aircraft Corp., 47 F.3d 106, 109 (4th Cir.
1995).     Accordingly, we emphasize Greenfield’s failure to
procure a non-disclosure agreement of any kind from any of the
parties to whom he disclosed his trade secrets because that
consideration is controlling under the precedent of South
Carolina’s highest court. See Liberty Mut. Ins. Co. v. Triangle
Indus., Inc., 957 F.2d 1153, 1156 (4th Cir. 1992) (“[A] federal
court sitting in diversity has a duty to apply the operative
state law as would the highest court of the state in which the
suit was brought.”).
     12
         See Estate of Kimmell, 993 F.2d at 412 (acknowledging
that “the non-moving party may not rest on its pleadings, but
must come forward with specific facts showing that evidence
exists to support its claims and that there is a genuine issue
for trial” (citing Celotex Corp v. Catrett, 477 U.S. 317, 324
(1986)).



                                       19
S.C. Jur. Intellectual Prop. § 76 (2011) (“If no understanding

of confidentiality exists, there can be no secrecy regarding

information     disclosed.”),         and     (2) this    failure     precluded

Greenfield     from    relying   on     the    protection   of      intellectual

property afforded by the Act.               See id. § 73 (“South Carolina’s

statutory definition of a trade secret requires that the secret

be   ‘the    subject   of   efforts     that     are   reasonable    under   the

circumstances to maintain its secrecy.’” (quoting S.C. Code Ann.

§ 39-8-20(5)(a)(ii))).



                                 B.   Contract

            A contract, under South Carolina case law, is defined

as

     an obligation which arises from actual agreement of
     the parties manifested by words, oral or written, or
     by conduct. If agreement is manifested by words, the
     contract is said to be express.   If it is manifested
     by conduct, it is said to be implied. In either case
     the parties must manifest a mutual intent to be bound.
     Without the actual agreement of the parties, there is
     no contract.

Stanley Smith & Sons v. Limestone Coll., 322 S.E.2d 474, 477

(S.C. Ct. App. 1984) (internal citations omitted).

            “The essentials of a contract [thus] include an offer

and acceptance.”       Benya v. Gamble, 321 S.E.2d 57, 60 (S.C. Ct.

App. 1984); see also Hodge v. Nat’l Fid. Ins. Co., 68 S.E.2d

636, 639 (S.C. 1952) (“Regardless of which party makes the offer


                                       20
or proposal, its acceptance by the other is necessary to the

creation of the contract.”).                   In this case, Greenfield points to

four    pieces       of    evidence,         which   he     believes      demonstrate      the

formulation of a binding agreement with Erwin-Penland.

               First, Greenfield cites a March 28, 2006 email that

demonstrates the parties discussed forming an LLC with Verizon

Wireless if it agreed to fund the “How Sweet the Sound” project,

50% of which would be owned by Verizon Wireless and 50% of which

would    be    owned       by    1st    Approach      and    Erwin-Penland.           Second,

Greenfield          relies      on     two   slides       from    the    April     26,     2006

presentation to Verizon Wireless indicating the “How Sweet the

Sound” concept was created jointly by 1st Approach and Erwin-

Penland       and    that       they    offered      Verizon      Wireless      40%   of    net

revenues       if    it     would      agree    to    fund       the    project.         Third,

Greenfield generally points to evidence that he was responsible

for creating at least 50% of the “How Sweet the Sound” marketing

scheme.       Fourth, Greenfield references his work scaling back the

“How    Sweet       the   Sound”       proposal      to   address       Verizon    Wireless’

budgetary      concerns,         resulting      in    a   new    plan    similar      to   that

which     Verizon         Wireless       and    Erwin-Penland           later    implemented

without his assistance.

               Greenfield’s first two pieces of evidence do indicate

that he and Erwin-Penland reached an agreement concerning the

concept they would initially pitch to Verizon Wireless.                               What is

                                                21
lacking from the record, however, is any evidence demonstrating

that Verizon Wireless ever accepted their proposed terms.                     And

it is clear that Verizon Wireless’ acceptance of the offer was a

condition precedent to the formation of the LLC which Greenfield

and Erwin-Penland had discussed. 13          See Rickborn v. Liberty Life

Ins. Co., 468 S.E.2d 292, 300 (S.C. 1996) (“A meeting of minds

is   based   upon   the    intent    and   purposes   as   shown   by   all   the

circumstances.”).         Because the necessary condition precedent of

acceptance was never satisfied, no reasonable finder of fact

would conclude the parties reached a binding agreement.                       See

McGill v. Moore, 672 S.E.2d 571, 575 (S.C. 2009) (“If a contract

contains a condition precedent, that condition must either occur

or   it    must   be   excused      before   a   party’s   duty    to   perform

arises.”); Allstate Ins. Co. v. Estate of Hancock, 545 S.E.2d

845, 847 (S.C. Ct. App. 2001) (“[N]o contract arises until the

offer is accepted and all conditions precedent are met.”).

             Greenfield’s    other    evidence,    which   indicates     he   was

responsible for developing portions of the “How Sweet the Sound”

project later implemented by Verizon Wireless and Erwin-Penland,

is insufficient to change our analysis.               The relevant question


      13
         See Alexander’s Land Co. v. M & M & K Corp., 703 S.E.2d
207, 214 (S.C. 2010) (“A condition precedent is an act which
must occur before performance by the other party is due.”
(quotation omitted)).



                                        22
on Greenfield’s contract claim is not whether Erwin-Penland and

Greenfield collaborated in formulating the “How Sweet the Sound”

proposal submitted to Verizon Wireless — record evidence makes

clear they did.        Rather, it is whether Greenfield and Erwin-

Penland    ever    reached       a   binding       agreement    concerning         the

implementation of that scheme.              On this record, the district

court did not err in concluding there is insufficient evidence

for a reasonable finder of fact to conclude that an agreement as

to the “How Sweet the Sound” plan’s execution was ever reached.



                            C.   Unjust Enrichment

           Under    South     Carolina      law,    “quantum     meruit,     quasi-

contract, and implied by law contract are equivalent terms for

an   equitable    remedy.”       Myrtle    Beach     Hosp.,    Inc.   v.    City    of

Myrtle Beach, 532 S.E.2d 868, 872 (S.C. 2000).                   Obtaining this

remedy requires Greenfield to show (1) he conferred a benefit

upon   Erwin-Penland       and   the   third-party      defendants,        (2) they

realized   some    value     from    the   benefit,     and    (3) it      would    be

inequitable for Erwin-Penland and the third-party defendants to

retain the benefit without paying Greenfield its value.                            See

Gignilliat v. Gignilliat, Savitz & Bettis, L.L.P., 684 S.E.2d

756, 764 (S.C. 2009); Sauner v. Pub. Serv. Auth. of S.C., 581

S.E.2d 161, 167 (S.C. 2003).



                                       23
               The list of benefits Greenfield alleges he conferred

on     Erwin-Penland       and     the    third-party       defendants    includes

(1) trademark          rights,     (2) an       Effie   Award, 14     (3) the   BET

television       special,      (4) various      financial    benefits    resulting

from     the    “How   Sweet     the   Sound”    series,    and   (5) intellectual

property       related   to    the     competitions.        As    explained   below,

Greenfield possessed no trademark related to the “How Sweet the

Sound” concept; he was therefore unable to confer such a benefit

on Erwin-Penland and the third-party defendants.                    See infra Part

IV.D.        We further conclude that Greenfield cannot equitably take

credit for “conferring” critical and financial success on the

“How Sweet the Sound” project when he played no role in the

execution and production of the work. 15

        14
         In 1968, the American Marketing Association established
an annual awards program known as the “Effie Awards” to
recognize the most effective advertising efforts in the United
States.
        15
              The district court correctly found that

        [b]y his own admission, Greenfield has not expended
        ‘any time or effort having the concerts go forward,’
        had no involvement in the ‘day-to-day’ operations of
        the concerts, has not worked on any concert logistics,
        has not lined up any churches, booked any venues, and
        has not traveled for the project. By contrast, Erwin-
        Penland, which has worked on the [“How Sweet the
        Sound”] project [from] 2007 through the present, has
        been compensated for the actual work it performed on
        the . . . project.       Such compensation for work
        performed does not constitute unjust enrichment.

J.A. at 200.


                                           24
               That leaves Greenfield’s argument that he contributed

valuable intellectual property to the project in conceptualizing

the general marketing scheme Erwin-Penland and Verizon Wireless

later utilized.             Given the fact that (1) Greenfield’s only claim

to a protected intellectual property right arises under the Act,

and (2) we          have    already   concluded    the   “How    Sweet     the    Sound”

concept fails to meet the Act’s definition of a “trade secret,”

see    supra    Part        IV.A,   Greenfield    is   unable    to   show       that   he

conferred any intellectual property benefit on Erwin-Penland and

the    third-party          defendants.    See    Sauner,     581     S.E.2d      at    167

(requiring a plaintiff “confer[] a non-gratuitous benefit on the

defendant”).

               We    consequently      agree    with   the   district      court       that

Greenfield failed to demonstrate he conferred a benefit upon the

defendants that would be inequitable for them to keep without

paying its value.             Summary judgment in favor of the defendants

on     Greenfield’s            unjust-enrichment         claim        is        therefore

appropriate.           See Othentec Ltd. v. Phelan, 526 F.3d 135, 140

(4th    Cir.        2008)    (requiring   “a     nonmoving      party”     on    summary

judgment “produce some evidence (more than a ‘scintilla’) upon

which a jury could properly proceed to find a verdict for the

party . . . upon whom the onus of proof is imposed” (quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986))).



                                           25
                             D.    Trademark Cancellation

            Greenfield also contends the district court erred in

refusing to cancel Erwin-Penland’s “How Sweet the Sound” mark.

See 15 U.S.C. § 1064(3).                    This argument is based on Greenfield’s

contention that Erwin-Penland fraudulently failed to reveal in

trademark registration paperwork, filed with the United States

Patent and Trademark Office, that he too had “a credible right

to use the mark.”             Opening Br. at 41.                   We find no merit to

Greenfield’s trademark-cancellation claim.

            As this Court has previously explained, “[t]here is no

such   thing     as     property            in   a    trade-mark    except      as     a    right

appurtenant to an established business or trade in connection

with     which   the     mark          is     employed. . . .           [T]he   right       to    a

particular mark grows out of its use, not its mere adoption.”

Int’l Bancorp, LLC v. Societe des Bains de Mer et du Cercle des

Etrangers a Monaco, 329 F.3d 359, 364 (4th Cir. 2003) (quoting

United    Drug    Co.    v    Theodore           Rectanus,     Co.,      248    U.S.       90,   97

(1918)) (emphasis added); see also Sengoku Works Ltd. v. RMC

Int’l, Ltd., 96 F.3d 1217, 1219 (9th Cir. 1996) (“To acquire

ownership of a trademark it is not enough to have invented the

mark   first     or    even       to    have         registered    it    first;   the       party

claiming ownership must have been the first to actually use the

mark in the sale of goods or services.”) (emphasis added).



                                                     26
               Nothing in Greenfield’s Opening Brief, or the record,

suggests       he    ever    used       the    “How        Sweet    the    Sound”      mark    in

commerce. 16         See Opening Br. at 42-42.                      Therefore, Greenfield

failed    to     establish        the    necessary         factual     predicate       for    his

trademark-cancellation             claim.            See     Gen.    Healthcare        Ltd.    v.

Qashat, 364 F.3d 332, 335 (1st Cir. 2004) (“Trademark rights may

arise under either the Lanham Act or under common law, but in

either     circumstance,          the     right       is    conditioned         upon   use     in

commerce.”)          (emphasis      added).            We     accordingly        uphold       the

district court’s grant of summary judgment in favor of Erwin-

Penland.        See Celotex Corp., 477 U.S. at 323 (“[A] complete

failure     of       proof   concerning          an        essential      element      of     the

nonmoving       party’s      case       necessarily         renders       all    other      facts

immaterial.”).



                                                V.

               For    all    of     the       foregoing       reasons,      we    affirm      the

judgment of the district court.

                                                                                       AFFIRMED




     16
        We decline to address the additional arguments raised in
Greenfield’s Reply Brief, as “arguments not specifically raised
and addressed in opening brief, but raised for the first time in
reply, are deemed waived.”    Moseley v. Branker, 550 F.3d 312,
325 n.7 (4th Cir. 2008).



                                                27
GREGORY, Circuit Judge, dissenting in part:

            This case is about just compensation for an inventor

of a marketing scheme who was later cut out of the deal by two

entities that had a long-standing relationship with each other:

Verizon    and    its    advertising        agency    of     record,    Erwin-Penland

(“EP”).      The    majority        takes    the     case    away   from    the     jury,

concluding       that    no    rational      trier    of    fact    could    find       the

inventor,    Greenfield,        had   taken       efforts    reasonable     under       the

circumstances       to    protect      the       scheme’s     secrecy.           Such    a

conclusion is premature.              There is a rich record with details

pointing in both directions regarding Greenfield’s efforts to

protect    his     ideas,      with   both       copyright    and    confidentiality

notices,    including         one   that    was    specifically        removed    by     EP

without     Greenfield’s        permission,         that     indicates      while       the

arguments in his favor may ultimately be overcome, a jury should

at least have been allowed to view his efforts.

            There are three additional points that the majority

overlooks.       First, the majority ignores a proposition advanced

by the very treatise it cites:                   that disclosure to prospective

clients in the advertising context does not necessarily vitiate

secrecy, but rather may, in fact, be reasonable.                           Second, the

majority assumes without record support that other advertising

agencies were competitors.                 These agencies may well have been

collaborators whose roles were to take over portions of the plan

                                            28
that could not be executed by EP and 1st Approach, meaning their

presence       is    a       fact       the    jury     has    a   right      to    consider      and

ultimately discount.                    The majority thus skews this fact in the

light most favorable to the movants.                           Finally, the argument that

Greenfield disclosed some secrets to Captain D’s is irrelevant

because these were not the same secrets presented to Verizon, in

particular they did not include the so-called Pastor Packet,

which    was    an       idea       unique       to     the    proposal       drafted      for   the

wireless giant.              For these reasons, I respectfully dissent as to

the trade secret cause of action.                            I concur in the remainder of

the majority’s opinion, and do not discuss it here.



                                                      I.

               Unless otherwise noted, all of the following facts are

uncontested.             I    relate          them    here    because      there     are    several

important points that the majority omits.

               Jeffrey          Greenfield            is     the   sole    employee        of    two

marketing       companies,              1st     Approach       and     Buzznations.             These

companies specialize in branded entertainment:                                 the combination

of   a   brand        with          a    live        event    synthesized          with    internet

strategies,          word-of-mouth,              grassroots          “buzz”    marketing,        and

traditional print and broadcast media.                             In addition to being the

principal       at       both       companies,         he     gives    lectures       around     the

country.        At one of his lectures, he met Joseph Erwin, the

                                                      29
president    and    founder   of    EP,    a     regional       advertising   agency

located in Greenville, South Carolina. 1                    After hearing his talk

about     branded     marketing,      Erwin          approached     Greenfield     and

suggested that the two collaborate.

            1st Approach and EP pursued an account with Captain

D’s, a seafood restaurant chain primarily located in the South,

to be what is known in the industry as the “agency of record.”

There is hot dispute over who first originated the concept, 2 but

the two parties agree that the advertising campaign to Captain

D’s   centered      around   the   production          of   a   marketing   campaign

called    “Amazing     Grace,”     after       the    hymn.       The   campaign   was

designed to be a reality television series modeled on the show

American Idol in a competition for the best church choir in

America.

            There was no non-disclosure agreement (“NDA”) between

the parties.        Nevertheless, the two had extensive collaboration

including    conference      calls,   meetings,          and    materials   sharing.

The information Greenfield transmitted to EP, in the form of


      1
       EP was purchased by Hill Holliday Connors Cosmopulos,
Inc., a national advertising agency that is owned by Interpublic
Group.
      2
       Greenfield testifies that it was his idea to have the
gospel choir competition.    In contrast, Erwin testifies that
someone on his team – who used to be a political operative in
the democratic South – had the idea of using churches and faith-
based singing to bring the communities together.


                                          30
PowerPoint slides as part of a presentation “deck,” was under

explicit      confidentiality      provisions.           Specifically,     the

disclaimer on the slides presented to Captain D’s read:                 “[t]he

ideas and concepts contained within this document are the sole

and confidential property of 1st Approach, LLC and will not be

shared with any other agency or utilized without prior written

consent.”   J.A. 1375.

            After Captain D’s turned down the bid, 1st Approach

and EP decided to market it elsewhere.           EP was the ad agency of

record for Verizon.           Verizon was EP’s top revenue-generating

client and had been for some number of years.                   EP had initial

discussions     with   Verizon     about    potentially     developing     the

“Amazing Grace” concept, which later became known as “How Sweet

The Sound” (“HSTS”), after the second line of the song, for the

wireless company.      Verizon was trailing its competitors in the

African American community, with only 17% of market-share as

opposed to 25% overall, and needed a marketing strategy to reach

this demographic.

            When EP initially presented the HSTS idea in December

2005   to   Verizon,     it    labeled     the   idea    “Confidential     and

Proprietary Material by [EP].”        J.A. 1577.        Like the Captain D’s

disclaimer, the material read “[u]se, disclosure or distribution

of this material is not permitted to any unauthorized persons or

third parties except by written agreement.”               Id.     The regional

                                     31
Verizon employees passed on the information to Verizon’s Chief

Marketing Officer, Stratton, without the knowledge or consent of

Greenfield.

                 After the December 2005 pitch, in which Greenfield did

not participate, EP followed up with an April 2006 presentation.

The contents of this presentation, a 30-plus PowerPoint slide

deck,      lie       at   the   heart    of     the   dispute,    because   Greenfield

concedes in his deposition that the trade secrets in question

were contained therein. 3               As part of the presentation, Greenfield

came       up    with     numerous      ideas    he   claims     were   trade   secrets

including tax strategies and the so-called Pastor Packet, which

was a direct mailing bundle sent to church preachers and choir

directors that could be used to rope their congregations into

signing         up    for   Verizon      subscriptions.          Importantly,     these

secrets differ markedly from the information that was submitted

to Captain D’s, both in kind and in quantity, with the Pastor

Packet being the most obvious example.




       3
       Greenfield’s reply brief alleges that there were trade
secrets beyond what were contained in the April 2006 pitch at
which other advertising agencies were present.       (Appellant’s
Reply Br. at 27.) It is theoretically possible, then, that some
of the secrets may not have been adequately protected, whereas
others were. The majority does not consider this point. I need
not express an opinion on their scope, however, as there are
enough facts on this record for a jury to be able to consider
the secrets even if they are limited to the April 2006 deck.


                                                32
           In      the    lead    up     to        the    April     2006     presentation,

Greenfield and EP exchanged many emails and also participated in

numerous conference calls with each other.                          On March 13, 2006,

Greenfield drafted a budget that he sent to EP detailing the

projected costs of HSTS.               Verizon ultimately did not rely upon

this budget – it went with a scaled-down version of the idea –

but it did pick up the HSTS program and execute it in Memphis,

Tennessee as a test market.                The parties did not discuss what

would happen if Verizon did not accept the deal, or as here

accepted     it,    but    in    modified           form.         Greenfield,       however,

registered    his    idea       with    the     Writer’s         Guild     of    America   on

February 15, 2006, with ownership vested in himself and EP.

           At the April 2006 presentation to Verizon, Greenfield

spoke only briefly, for as short as five minutes, and the people

at Verizon do not remember him independently of this lawsuit.

Nevertheless, the “deck” identified him and 1st Approach as the

co-creators of the HSTS idea and included a copyright notice

from EP and 1st Approach.                At the meeting, at least one other

advertising agency was present and possibly more.                               The deck was

not marked “confidential.”               The record does not specify whether

the   advertising         agencies        were           competitors       or      potential

collaborators      to     1st    Approach          or    what    the   relationship        was

between Verizon, EP, and the agency or agencies.                             See J.A. 494-

500   (discussing         the     role     of           the     respective       advertising

                                              33
agencies).         None   of     the    people      from   advertising       agencies      or

other      attendees       at     the      meeting        were     asked     to     sign    a

confidentiality agreement.

              Greenfield was ultimately cut out of the process after

the April 2006 pitch.               In the two-month period following the

presentation,       he    worked       with    EP   to     fine    tune    the    proposal,

scaling it back to reduce the television aspect since Verizon

determined that aspect was not within its “core competency.”                               On

June 9, 2006, Greenfield participated in a conference call with

EP    in   which    Erwin       affirmed      the   “partnership.”           The     parties

agreed that Greenfield would have to downsize the proposal to

fit Verizon’s needs.             On June 19, 2006, Greenfield submitted his

final work-product to EP, reducing the cost of the budget to

$5.4 million.        On November 22, 2006, Greenfield wrote to EP and

asked whether Verizon had approved or turned down HSTS and said

that if they had turned it down, he would like to shop around

the   idea    to   other    potential         clients.           Allen    Bosworth    of   EP

responded by saying that the idea was “still being looked at” by

Verizon and that Yahoo! Music was very interested in the deal.

J.A. 1598.         After that, Greenfield emailed EP on January 26,

2007,      March   29,    2007,    and     July     26,    2007,    but    EP     failed   to

respond.

              EP claims that the reason it ceased to do business

with Greenfield is because he was the “television man”; that if

                                              34
Verizon decided it did not want to do that component of the

advertising     campaign,        then     it       could    simply      eliminate        him.

However, the record shows that Verizon did adopt a proposal that

was    strikingly        similar        to        Greenfield’s          original     idea.

Specifically,       in   conjunction         with     EP     and   other    advertising

agencies, Verizon in both 2008 and 2009 produced eleven events

and a final competition, a one-hour documentary film, and a one-

hour televised finals competition that aired on the Gospel Music

Channel.      According to Greenfield, the marketing campaign has

been   a   financial     boon    to     both      Verizon    and   EP,     substantially

creating    inroads      into    the     African      American       community.          The

campaign     for     HSTS       ultimately          received       an     Effie     Award,

essentially the equivalent of an Oscar within the advertising

community.    EP also received trademark registration for HSTS.



                                             II.

            There     are   three       important          inquiries     that     must    be

decided.     First, as a threshold matter, is there a trade secret?

Second, if there is a trade secret, was it adequately protected?

Third, if it was adequately protected, was it improperly taken?

The first inquiry, one that is assumed though not decided by the

majority, is whether Greenfield has a protectable interest to

begin with under South Carolina Code § 39-8-20(5).                          Because the



                                             35
answer is not clearly established, I would certify it for the

South Carolina courts.

               The Act defines trade secret to include “a formula,

pattern,       compilation,          program,       device,      method,       technique,

product, system, or process, design, prototype, procedure, or

code.”     S.C. Code Ann. § 39-8-20(5)(a).                    It goes on to specify

that:

        [a] trade secret may consist of a simple fact, item,
        or procedure, or a series or sequence of items or
        procedures which, although individually could be
        perceived as relatively minor or simple, collectively
        can make a substantial difference in the efficiency of
        a process or the production of a product, or may be
        the basis of a marketing or commercial strategy. The
        collective effect of the items and procedures must be
        considered in any analysis of whether a trade secret
        exists   and  not   the  general  knowledge   of  each
        individual item or procedure.

Id. at (5)(b).           Although there is little to no caselaw on the

issue,    it    appears      from    the     statute’s    text     that    a   marketing

strategy that consists of disparate ideas woven together can be

a trade secret.

               Verizon      argues     that     there    is     nothing     protectable

contained      in     the   April     2006    slides.          Specifically,     Verizon

claims that because the individual elements of the trade secret

are in the public domain there is no trade secret.                         The district

court seemed to agree with this proposition, holding that “[t]he

concepts themselves are generalized principles that are well-

known    in     the    advertising      and        marketing    industries      and   are

                                              36
readily         ascertainable         by    others.”           J.A.    165-66.           However,

neither Verizon nor the district court cited any authority to

support         their    proposition          that      because       some    elements      of     a

marketing strategy are public, their “collective effect” cannot

constitute a trade secret.

                 Both the text of the statute as well as what little

law exists on the topic seem to go in the opposite direction.

That is to say, even if elements of the trade secret are public,

if the particular alchemy behind the item as a whole is not,

then it is considered protectable.                        Greenfield uses the analogy

of    a   Mrs.     Fields       cookie;      general      recipes      for    chocolate         chip

treats are common, but the recipe specific to Mrs. Fields is

still      considered       a     trade     secret.        Several      cases      support       his

point.       See, e.g., Lowndes Products, Inc. v. Brower, 259 S.C.

322,      328    (1972)      (“A      trade      secret    can     exist      in     the    unique

combination of otherwise known components; although each of its

parts,      by    itself,       may    be    in   the     public      domain,      the     unified

process,        design      and    operation       of    the    combination        may     be    the

essence of the secret.”); Servo Corp. of Am. v. General Elec.

Co., 393 F.2d 551, 555 (4th Cir. 1968) (a litigant may not

“avoid the consequences of the breach of confidence by piecing

together         in   retrospect        bits      of    information          which    had       been

disclosed in a variety of places and which as a combination were

not       clearly       a    matter         of    public       knowledge.”);          Elizabeth

                                                  37
Carpenter, 20 S.C. Jur. Intellectual Property § 74 n.3 (2010)

(collecting cases); Louis Altman & Malla Pollack, 2 Callman on

Unfair    Competition,      Trademarks,       and   Monopolies       § 14:22   (2008)

(“The internal facts of a business . . .                     [t]he subject matter

is not necessarily new, novel or unique; it may be something

which, when connected with a known factor, may be so valuable to

a   business   that   its    continued    concealment         from    others   is   of

paramount importance.”).         However, general business know-how is

not protected.        Id.    Similarly, marketing strategies that are

commonly employed are not protectable.               Id. 4

            Greenfield alleges that the particular combination of

his marketing plan, with judges selecting the best choirs after

they submit short segments, text message voting, and audience

participation,    constituted      the    essence      of     his    secret.    Even

though there are particular elements that are within the public

domain, there are kernels of ideas that are both original and

unknown, and as a result not readily ascertainable by proper

means.    Specifically, the idea of the Pastor Packet – which was

utilized by Verizon to outreach to ministers and choir directors

– is an idea original to Greenfield that was ascertainable only

      4
       It is also important to note that South Carolina has no
“novelty” requirement, unlike other jurisdictions such as New
York and California that require the combination to be new, much
like a patent, must not be “obvious.” The district court seemed
to impose just such a requirement, but I find that to be
unsupported by South Carolina law.


                                         38
through his private presentation.              Thus, while in retrospect

some of these ideas may be self-evident, at the time they were

created they were not.

             More importantly, however, even if we were to conclude

that   the    April   2006    presentation    contained      no    trade   secrets

because    the   individual     elements    were    “readily      ascertainable,”

the existence of a trade secret is generally one of fact left to

the jury, not for the judge, though a few courts consider the

issue to be a mixed question and a small minority consider it to

be an issue of law.          Louis Altman & Malla Pollack, 2 Callman on

Unfair Competition, Trademarks and Monopolies § 14:27 ns.61-63

(Supp.    2010-2)     (collecting   cases).         South   Carolina       has    not

weighed in on the issue and there are no cases that I have

uncovered from this jurisdiction addressing the point.                     I would

thus certify the issue to the South Carolina courts.



                                     III.

             The next question is whether Greenfield took adequate

steps to protect his trade secret.             The district court granted

summary      judgment   on    the   basis    that     Greenfield      failed      to

adequately protect his secrets because he disclosed them at a

business pitch to Verizon and the business pitch included third-

parties:      other advertising agencies whose role in the process

is   unspecified.       The    majority    agrees    and    concludes      that    no

                                      39
reasonable        jury      could    find   otherwise.         I   disagree.         It    is

striking       to     me,     for    instance,      that      Greenfield      did     place

confidentiality notices on his materials – notices that were

only subsequently removed by EP.                      I do not believe that EP’s

unilateral actions should vitiate efforts to protect secrecy nor

that a reasonable jury should be foreclosed from agreeing.

               Under South Carolina law, the owner of a trade secret

must show that she or he made “efforts that are reasonable under

the circumstances to maintain its secrecy.”                        S.C. Code Ann § 39-

8-20(5)(a)(ii).             Thus, “[o]ne may not claim as a trade secret

information ‘completely disclosed by the goods one markets’” or

“information that has been disclosed to the public in a way

which makes ‘the “secret” so obvious as to render meaningless’

any    claim     of    confidentiality.”            Carpenter,       supra,    at     § 74.

Nevertheless, “courts have recognized that some disclosure is

necessary for enjoyment of the benefits of a trade secret and

that not every disclosure effectively destroys secrecy.”                             Id.    A

quintessential example of protected disclosure is a pitch to

potential customers.                Id. at n.7 (citing ILG Indus., Inc. v.

Scott, 49 Ill. 2d 88, 94 (1971)).                      Most importantly, like the

question of whether or not a trade secret exists as a threshold

matter,     the     question        of   adequate     protective     measures       is,    at

least under Fourth Circuit caselaw, one of fact.                            Trades Corp.

v.    Guy   F.    Atkinson      Co..     996   F.2d    655,    664   (4th     Cir.    1993)

                                               40
(analyzing a Maryland law that, for our purposes, is identical);

Altman    &    Pollack,         supra,      § 14:26,   n.27       (collecting    cases).

Indeed,   it       is    a    rare   case    where   summary      judgment    should   be

granted on this issue because “the answer depends on a balancing

of costs and benefits that will vary from case to case and so

require estimation and measurement by persons knowledgeable in

the particular field of endeavor involved.”                             Rockwell Graphic

Systems, Inc. v. Dev Industries, Inc., 925 F.2d 174, 179 (7th

Cir. 1991).             Factors that should be considered by a jury in

evaluating     secrecy          include,     according       to   the    Restatement   of

Torts:

     (1) the extent to which the information is known
     outside of his business; (2) the extent to which it is
     known by employees and others involved in his
     business; (3) the extent of measures taken by him to
     guard the secrecy of the information; (4) the value of
     the information to him and to his competitors; (5) the
     amount of effort or money expended by him in
     developing the information; (6) the ease or difficulty
     with which the information could be properly acquired
     or duplicated by others.

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

              In    the       instant    matter,     these    factors      suggest   that

there was enough of a track record for the jury to be able to

hear the case.               First and foremost, the pitch was not open to

the general public; it was a closed setting and the information

was thus not known outside the business.                      While it is true other

advertising agencies may have been there, the precise nature of


                                              41
the relationships is not fleshed out by the record.                             Indeed, it

is a fact that can be spun in many directions, and, according to

summary     judgment      standards,        deserves      to         be    construed     in

Greenfield’s favor.          These agencies may or may not have been

competitors looking to poach the idea from EP and 1st Approach,

or they may have been collaborators that would be brought in to

handle parts of the deal that were beyond the competencies of EP

and 1st Approach.           They may have been agents of Verizon, and

they may have had contractual relationships with EP.                               To rest

the    entire    decision    on    this    point    seems       to    me    a   thin    reed

indeed.     I think it would be far better to allow the jury to

weigh and consider this in addition to other evidence at trial.

            The    majority       also    makes    much    of    the       disclosure    to

Captain D’s, but there are two responsive points.                               First, as

stated above, disclosure to potential customers is a protected

activity.         Second,    the    content       of    the     secrets         that    were

disclosed to Captain D’s differs from the content of the trade

secrets – in particular the Pastor Packet – that made up the

idea    Greenfield       claims    Verizon        misappropriated.               Thus    the

majority seems to be comparing apples to oranges.

            Next,    even     if    the     other       advertising         agencies      or

Captain    D’s    were   competitors       as     the   majority          simply   assumes

without support, the deck said that it was copyrighted to EP and

1st Approach.       1st Approach also had confidentiality notices on

                                           42
materials.     J.A. 910; J.A. 941; J.A. 1061-64; J.A. 1186; J.A.

1375 (including information that was in talks and Captain D’s

pitch and confidentiality notices from EP on their own behalf).

Indeed, the confidentiality notices that were lacking on the

final deck were, according to Greenfield, removed without his

consent.     (Appellant’s Br. at 36-37.)            I do not believe that it

is appropriate to hold that EP’s unauthorized and unilateral

efforts vitiate Greenfield’s protective efforts or render them

insufficient as a matter of law.

            While a business pitch may be “speculative,” at least

according to Verizon and EP, it arguably does not allow the

customer to appropriate the ideas in the pitch without paying

for them.     Any disagreement over the function of business sales,

and   precisely     how   confidential       they   are    intended    to   be    and

actually    were,   is    further    justification        for   vacating    summary

judgment and allowing the matter to go to trial.

            The   contractual       relationship     between     Verizon    and   EP

also militates against the degree of disclosure necessitated;

because the two companies had a very close working relationship

and Verizon was EP’s biggest client, it is within the purview of

the jury to find that secrets might fall within their legal

relationship.       More specifically, the jury could determine an

expectation    of   secrecy    was    part    of    the   overall     relationship

between the two companies.           See, e.g., Burten v. Milton Bradley

                                        43
Co.,    763    F.2d    461,   463       (1st        Cir.      1985)   (“A        confidential

relationship     generally     arises          by       operation     of    law     from   the

affiliations     of    the    parties      and          the    context      in    which    the

disclosures      are    offered      . . .          a     confidential           relationship

typically will be implied where disclosures have been made in

business      relationships         between             employers        and       employees,

purchasers      and     suppliers,        or         prospective           licensees       and

licensors.”) (internal citations omitted).

              Furthermore, the fact that Greenfield himself kept the

idea for the series a secret is telling.                        He waited after being

assured that Verizon was still considering the pitch instead of

taking it to other potential customers, suggesting he viewed the

matter as both secret and proprietary.

              Finally, Verizon points to the fact that there was no

NDA as an example of why Greenfield failed to take reasonable

efforts to protect his material.                        I strongly caution against

placing too much reliance on the existence of an NDA.                                     While

indicative of secrecy, it is no talisman.                             Altman & Pollack,

supra, § 14:26 (noting four factors, of which an NDA is only

one).    Indeed, according to the treatise on South Carolina law

cited   by    the     majority,     a    confidential            relationship        may    be

implied from the circumstances of the disclosure rather than be

in the form of an express agreement, as mentioned previously.

Carpenter, supra, at § 76 (“Written agreements are not, however,

                                          44
essential to protect secret information disclosed to employees

or others in every case. The required agreement may be implied

by the confidential relation itself.”).                       Thus, I believe there

are enough facts for a jury at least to be able to evaluate this

issue for itself.



                                             IV.

               Last, there is the question as to whether the secret

was indeed misappropriated if it did exist in the first place.

The district court held that it was not; even if the materials

were    confidential,         it    ruled,     it    had     not    been   acquired       by

“improper means.”             Under South Carolina law, “improper means”

means “theft, bribery, misrepresentation, breach or inducement

of a breach of a duty to maintain secrecy, duties imposed by the

common    law,       statute,      contract,      license,    protective        order,    or

other     court       or   administrative          order,     or    espionage     through

electronic       or    other       means.”         S.C.     Code    Ann.   § 39-8-20(1)

(emphasis added).            The district court ruled that because Verizon

did not consider the material confidential, a fortiori it could

not    have    been    acquired      through       improper      means.     I   disagree.

Verizon       knew    that   Greenfield       had    a    role     in   formulating      the

marketing strategy, as evidenced by 1st Approach’s inclusion in

the 2006 deck, and a reasonable jury could find that Verizon

intentionally induced EP to breach its duty of secrecy and cut

                                             45
him out from the deal.      This is true regardless of whether or

not key Verizon officials knew specifically who Greenfield was.



                                  V.

          For   the   foregoing   reasons,   I   affirm   in   part   and

dissent in part.




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