| Invesco Inst. (N.A.), Inc. v Deutsche Inv. Mgt. Ams., Inc. |
| 2010 NY Slip Op 05701 [74 AD3d 696] |
| June 29, 2010 |
| Appellate Division, First Department |
| Invesco Institutional (N.A.), Inc., Respondent, v DeutscheInvestment Management Americas, Inc., Appellant, et al.,Defendants. |
—[*1] Alston & Bird LLP, New York (John F. Cambria of counsel), for respondent.
Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered November 2,2009, which, after a hearing, granted plaintiff's motion for a preliminary injunction as to thatportion of the action asserting a claim for misappropriation of trade secrets in connection withcertain software tools, unanimously affirmed, with costs.
Plaintiff met its burden for the grant of a preliminary injunction by demonstrating (1) alikelihood of ultimate success on the merits; (2) the prospect of irreparable injury if theprovisional relief is withheld; and (3) a balance of the equities in its favor (Doe vAxelrod, 73 NY2d 748, 750 [1988]). Based upon the submissions and hearing testimony,particularly from plaintiff's expert witnesses, the court properly found that plaintiff had aprotectable trade secret in the proprietary nature of its Q-Tech, Alpha Sources and PIT softwareand database structure (see Ashland Mgt. v Janien, 82 NY2d 395, 407 [1993]).
Although irreparable injury cannot be presumed (see Faiveley Transp. Malmo AB vWabtec Corp., 559 F3d 110, 118 [2d Cir 2009]), it may be established "where there is adanger that, unless enjoined, a misappropriator of trade secrets will disseminate those secrets to awider audience or otherwise irreparably impair the value of those secrets" (id.). Here, thecourt properly determined that plaintiff demonstrated that, without a preliminary injunctionbarring appellant from the continued use of its trade secrets, plaintiff "would likely sustain a lossof business impossible, or very difficult, to quantify" (Willis of N.Y. v DeFelice, 299AD2d 240, 242 [2002]).[*2]
We have considered appellant's remaining arguments,including that the balance of the equities tipped in its favor, and find them unavailing.Concur—Andrias, J.P., Saxe, Friedman, Nardelli and Acosta, JJ.