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When the twitter account is a trade secret

BH Media Group, Inc. is the owner and operator of thirty-one daily newspapers across the USA, which also include the Roanoke Times (the “Times”). In addition to providing print news sources, BH Media also provides marketing and advertising opportunities for partners wishing to reach large audiences both in print and via online marketing and advertising avenues, including Facebook and Twitter.

Prior to 2010, the Virginian-Pilot hired and employed Kyle Tucker as a staff or ‘beat’ writer to cover Virginia Polytechnic Institute and State University football and athletics for the Pilot and, eventually, the Times. In August of 2010, Tucker created a Twitter account within the scope of his employment, the content of which was work product to be owned by the Pilot and licensed to the Times to engage readers and subscribers, solicit future readers and subscribers, promote the newspapers, and cover issues related to Virginia Tech athletics.

Tucker ended his employment with the Pilot in August of 2011, and relinquished the Account to the Pilot. The Times began looking for a replacement writer to cover Virginia Tech athletics, and in October of 2011, Andy Bitter was hired to fill that role. In addition to taking over Tucker’s regular column, Defendant was provided access to the Account and the login information (including user name and password) to that account, which occurred in October of 2011. Bitter updated the Account login information (including user name and password) during the time he managed the Account. During his employment, Bitter was authorized by BH Media to access the Account on behalf of BH Media, and use the Account to disseminate information on behalf of and in order to promote the Times.

The manager of the Account (or those with access rights) has access to unique, nonpublic information. The list of roughly 27,100 domestic and international followers on the page provides direct, unfettered, and instant access to a unique group of individuals that have affirmatively indicated interest in the products of the Times, namely its reporting, by following the Account and consenting to being contacted directly. Finally, the manager retains the exclusive right to direct message or “DM” twitter followers, which creates the opportunity share private messages and information not publicly available. The Account and these various sources of information and communication rights constitute what BH Media considers to be its trade secrets (“Trade Secrets”).

The primary purpose of the Account is to generate interest in, and by proxy, advertising revenue for, the Times. In order to generate pageviews on the Times website, the account manager posts links to articles published on the Times’s website directing users to the Times.  This utilization of Twitter drives traffic to the Times’s website and generates advertising revenue for the Times based on the number of clicks it receives on its various original stories and content. There are many details of BH Media’s (and the Times’s) relationship with its Twitter followers and website users that are not generally known or readily accessible to the public or BH Media’s competitors.

On or about June 22, 2018, Bitter notified BH Media that he intended to leave his employment at BH Media on July 6, 2018. Defendant indicated that he was leaving BH Media to work for the Athletic Media Group as a writer to focus on Virginia Tech athletics. In connection with his departure, BH Media reaffirmed its ownership of the Account and requested that Bitter relinquish the Account and the Trade Secrets so that BH Media could transition the Account to the staff writer that would ultimately replace Bitter (as had previously been done).

Bitter refused to relinquish the Account, and as of the date of this filing, Bitter has used the Account and Trade Secrets to communicate with BH Media’s followers without BH Media’s permission and beyond his authorization, which ended upon his resignation. Bitter’s use targets the follower list for marketing and advertisement of the services and products of his employer, the Athletic. To that end, Bitter pinned a lead post highlighting his move to the Athletic and soliciting subscriptions to the Athletic from the roughly 27,100 followers of the Account.

On July 11, 2018, BH Media sent a letter demanding that Bitter cease and desist from accessing the Account and return the same to BH Media. As of the date of filing, Bitter has not relinquished the Account or provided its login information. BH media sought a temporary restraining order and preliminary injunction.

A “trade secret” is defined as: “information, including but not limited to, a formula, pattern, compilation, program, device, method, technique, or process, that: (1) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (2) is the subject of efforts that are reasonable under the circumstances to maintain secrecy.”

The ancillary information available to the Account holder squarely fits within the categories of information capable of constituting trade secrets. The Account information qualifies as a trade secret because (1) the information has independent economic value; (2) it is not generally known to the public and not readily ascertainable; and (3) it is the subject of reasonable efforts to maintain secrecy.

In the hands of a competitor, the Trade Secrets accessible through the Account enable a competitor to unfairly compete with BH Media by accessing the unique twitter feed to analyze various Account followers’ traits and tendencies to inform marketing efforts, by using the direct messaging (“DM”) service to communicate privately, and most importantly, by directly communicating with a curated list of followers en masse – followers that have actively indicated their assent to being contacted by the Account.

BH Media’s Trade Secrets are not generally known to the public and are not readily ascertainable. Specifically, without access to the Account, BH Media is unable to reach the Account’s 27,100 followers directly. The Account cannot be replicated because there is no guarantee that all Account followers would follow a new account, and any new account would not have the benefit of eight years of relationship building on Twitter.

The value and secrecy of that information is demonstrated by BH Media’s efforts to maintain the secrecy of the login information. BH Media limited access to the login information strictly to one employee at a time and maintained confidentiality provisions and controls over company property, computer, and social media usage. Consequently, all proprietary business information available to BH Media’s employees is provided under both express and implied agreements of confidentiality. For the above reasons, information associated with the Account qualifies as Trade Secrets.

The Bitter’s unauthorized access to the Account qualifies as misappropriation. Following his resignation, when Bitter knew or should have known that he was no longer authorized to do so, Bitter accessed the Account and modified and posted new information to BH Media’s follower list, including but not limited to a pinned tweet promoting a competing website and soliciting subscriptions. And Bitter knew that he did not own the Account or the Trade Secrets associated therewith because it was handed off to him by another employee prior to his joining the Pilot. Furthermore, Bitter knew that the Account was BH Media property, that the Account encompassed proprietary information, and that using it to access the site was in excess of his authorization, which terminated on the date he resigned.

Thus, Bitter misappropriated these trade secrets by knowingly acquiring them through improper means – namely, through breach of his fiduciary duties to BH Media, breach of his duty to maintain the secrecy of that information to employees on a need to know basis only, and breach of express duties by failing to return the Account and by continuing to access the Account after his resignation. Because Bitter misappropriated BH Media’s trade secrets, he should be enjoined from benefitting from his misconduct and forced to relinquish the Account login information and cease accessing and posting to the Account.

This is compounded by the fact that any attempt to recreate the Account would be futile. To re-establish the Account, BH Media would be forced to hire or redirect a full time employee to attempt to reengage roughly 27,100 followers. There is no guarantee that any or all of those followers would choose to follow the new account, that they would engage in the same way, or that they would follow without the Account following them back.

Accordingly, there is simply no way to identically recreate the Account. However, even attempting to recreate the Account would result in significant expense to BH Media. Any attempt at recreation would likely never result in the same configuration of followers. Thus, while the time and expense required to recreate the Account is partially estimable, there would be no way to recreate the Account identically. Thus, BH Media can demonstrate irreparable harm.

Granting a temporary restraining order will merely prohibit Bitter from doing something that he does not have the right to do. There is therefore no likelihood of harm to Bitter if the court grants a temporary restraining order protecting BH Media’s property. Conversely, BH Media would be greatly harmed in the absence of a temporary restraining order and preliminary injunction. Any disclosure or use of the proprietary information associated with the Account unavoidably injures BH Media’s ability to compete in its market, while simultaneously providing Bitter and his employer an unfair competitive advantage.

BH Media has met its burden and established an entitlement to a temporary restraining order and preliminary injunction arising from misappropriation of its trade secrets.