Wilbur-Ellis Company v. Gompert — Eighth Circuit Affirms Dismissal of Trade Secret Claims for Lack of Specificity

Background

Wilbur-Ellis Company is an agricultural products, services, and technologies company based in San Francisco. In August 2021, four of its employees — Josh Gompert, Aaron Petersen, James Kunzman, and Chad Mueller — simultaneously resigned and almost immediately began working for J.R. Simplot Company, a direct competitor. What made the departure unusual was its scale and coordination: at least eleven Wilbur-Ellis employees moved to Simplot around the same time, and the four defendants were placed on “inactive employment status” while still receiving Wilbur-Ellis paychecks for two weeks before their resignations were formalized on August 27.

Wilbur-Ellis sued the four employees four days after they formally departed, alleging (1) misappropriation of trade secrets under both the federal Defend Trade Secrets Act (DTSA) and the Nebraska Trade Secrets Act (NTSA); (2) breach of the duty of loyalty; and (3) tortious interference with business relationships. The company attempted to subpoena Simplot early in discovery, but the magistrate judge pushed back, calling it “backwards” to seek third-party discovery before obtaining discovery from the defendants themselves. Wilbur-Ellis also submitted a trade secret disclosure document that identified its alleged trade secrets only in broad categories — phrases like “documents and information regarding Wilbur-Ellis’s business and market strategy” and “documents and information relating to Wilbur-Ellis’s customers.”

After years of litigation in the District of Nebraska, the district court granted summary judgment for the employees on nearly all claims. Wilbur-Ellis appealed, and the employees cross-appealed the district court’s narrow denial of summary judgment on a “Limited Breach Claim” (the two-week dual-employment period). The Eighth Circuit affirmed in full.

The Court’s Holding

Writing for a unanimous panel, Judge Shepherd affirmed on every issue. On the trade secrets claims, the court held that Wilbur-Ellis’s identification of alleged trade secrets was fatally overbroad. Courts imposing a pre-discovery specificity requirement on trade secret plaintiffs are within their discretion, and Wilbur-Ellis’s six-page disclosure document — describing its trade secrets in broad categorical terms without identifying any specific documents, files, or information taken — failed to meet even a basic threshold of particularity. The court agreed with the district court’s characterization: Wilbur-Ellis “apparently claim[ed] that everything [the Employees] encountered in their positions at Wilbur-Ellis was a trade secret.” Asserting misappropriation without specifying what was taken, which defendant took it, or how it constituted a protectable trade secret is insufficient as a matter of law under both the DTSA and NTSA.

On the duty of loyalty claims, the court emphasized that Nebraska law — like most states — gives at-will employees wide latitude to plan a competitive departure while still employed. Employees may meet with each other to plan a rival venture, accept outside offers, and even resign simultaneously without breaching their duty of loyalty. Only specific acts cross the line: misappropriating trade secrets, soliciting the employer’s customers or employees while still on the job, or carrying away confidential information. The court found that Wilbur-Ellis offered only “mere allegations, unsupported by specific facts or evidence” of any such prohibited acts. Gompert’s deposition didn’t confirm improper solicitation; employee device-wiping before return didn’t link to trade secret theft; and a coordinated mass resignation — without more — doesn’t give rise to liability.

On the tortious interference claims, the court again found Wilbur-Ellis “long on allegations and short on probative evidence.” The company failed to identify any specific defendant’s specific act of unjustified interference or provide evidence causally linking any such act to lost profits.

The Limited Breach Claim (dual employment for two weeks) was voluntarily dismissed by both parties before appeal, stripping the Eighth Circuit of jurisdiction to review it.

Key Takeaways

• Trade secret identification must be specific: Identifying alleged trade secrets with broad categorical language (“documents regarding business strategy,” “customer information”) is insufficient under the DTSA and NTSA. Plaintiffs must identify specific information, specific acts of misappropriation, and specific defendants — mere categories won’t survive summary judgment.
• At-will employees can plan their departures: Coordinating a departure with colleagues, accepting outside offers, and resigning simultaneously do not breach the duty of loyalty under Nebraska law (and most states). The duty is breached only by affirmative acts like misappropriating secrets or soliciting customers while still employed.
• Third-party competitor discovery comes after employee discovery: Courts may require plaintiffs alleging trade secret theft to seek discovery from the accused employees before subpoenaing the new employer. Skipping this step risks losing key discovery disputes.
• Voluntary dismissal kills appellate jurisdiction: Wilbur-Ellis’s decision to voluntarily dismiss the Limited Breach Claim before appeal — apparently to manufacture clean appellate jurisdiction — backfired. The Eighth Circuit held the voluntary Rule 41 dismissal stripped it of power to address that claim at all.
• Hearsay-dependent depositions won’t save a trade secret case at summary judgment: Where the plaintiff’s evidence of disloyalty and interference rests primarily on hearsay statements in its own depositions, summary judgment for the defendants is appropriate.

Why It Matters

The Wilbur-Ellis decision is a useful reminder of how difficult it is to win a trade secret case when employees leave en masse for a competitor — a scenario that has become increasingly common in agricultural technology, software, and other data-intensive industries. The ruling reinforces that trade secret plaintiffs must do their homework: before filing suit, they need to identify the specific information they claim was stolen, gather evidence of actual misappropriation (not just suspicion), and avoid the temptation to claim that “everything” the departing employees knew constitutes a trade secret.

For companies worried about competitive departures, the case highlights the value of non-disclosure agreements with specific descriptions of protected information, exit interviews documenting device and data returns, and prompt forensic investigation of company systems before the litigation clock runs. For employees changing jobs, it confirms the significant latitude they have under Nebraska law (and similar state frameworks) to plan and execute a competitive departure — though they must stay well clear of actually taking documents, soliciting clients, or poaching colleagues while still on the payroll.