The blog was on hiatus for a few weeks back in early September while I was out for a brief baby break, a period which included an important opinion from Judge Andrews. He granted a motion to dismiss a DTSA claim that relied on inevitable disclosure, holding that inevitable disclosure is not a cognizable harm under the DTSA:
I find that, to the extent FICO relies on the inevitable disclosure doctrine to plead threatened misappropriation, FICO has failed to state a claim under the DTSA. Dr. Bastert is bound by multiple agreements that bar him from disclosing FICO's trade secrets to his new employer. (D.I. 1 131). That Dr. Bastert only provided FICO with a month's notice that he would be leaving (Id. 1 48) and that FICO failed to obtain " assurances" from Gurobi and Dr. Bastert (Id. 1 49), without more, does not plausibly allege that Dr. Bastert is untrustworthy or planning not to abide by his contractual obligations.
FICO does not allege that Dr. Bastert took any documents, customer lists, or schematics with him when he left FICO. Therefore, FICO does not allege that he has shared or plans to share such items with Gurobi. The only trade secrets Dr. Bastert is alleged to possess reside inside his head. The DTSA does not allow for injunctions to "prevent a person from entering into an employment relationship" and requires that "conditions placed on such employment" be "based on evidence of threatened misappropriation and not merely on the information the person knows." 18 U.S.C. § 1836(b)(3)(A)(i)(I). The facts as stated in FICO's complaint do not state a plausible claim of threatened misappropriation.
Count I of FICO's complaint . . . is DISMISSED as far as it requests injunctive relief based on an inevitable disclosure theory and damages based on hypothetical future harm.
Fair Isaac Corporation v. Gurobi Optimization, LLC, C.A. No. 25-194-RGA (D. Del. Sept. 12, 2025).
This is not exactly a shocking decision given the language of the statute, but it's something trade secret practitioners need to know regardless. Inevitable disclosure likely will not be enough to sustain your DTSA claim before Judge Andrews.
Keep in mind that, as former Chief Judge Sleet was known to say, "there is no law of the District of Delaware." In re Tribune Media Co., 587 B.R. 606, 614 (D. Del. 2018). Other District of Delaware judges might hold differently. But Judge Andrews' opinion will, at a minimum, be persuasive precedent, and will likely give plaintiffs an uphill battle in sustaining a DTSA claim based on inevitable disclosure before our other judges as well.
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