On June 27th, 2019, the Georgia Court of Appeals affirmed a denial of a motion to dismiss brought by a state university after finding it was not immune from trade secret claims brought under the Georgia Trade Secrets Act. Board of Regents of the University System of Georgia vs. One Sixty Over Ninety, LLC, A19A0006 A19A0007 (Ga. Ct. App.).

Plaintiff One Sixty, a creative services agency that provides “branding, strategy, design, public relations, and other services,” claimed that it submitted a variety of materials marked “Confidential & Proprietary” to University of Georgia (“UGA”) as part of a bid to work on a branding initiative for the university. Despite receiving confirmation from a UGA representative that plaintiff’s information would be kept confidential, UGA allegedly shared plaintiff’s confidential information with its direct competitor – Ologie, LLC, the creative services agency that was ultimately selected by UGA for the branding initiative – who used this information in later bids and proposals to win business from plaintiff as a result.

Plaintiff sued UGA for violations of the Georgia Trade Secrets Act. UGA moved to dismiss, arguing it was immune from these claims. The Court noted the Georgia Trade Secrets Act does not expressly waive sovereign immunity nor contain an implied waiver of sovereign immunity despite defining “person” in part as a “government [or] governmental subdivision or agency” because the Act did not “sufficiently identif[y] the state or any of its departments to waive the state’s sovereign immunity by implication.” However, the Court ultimately found that a claim could survive because a plaintiff can sue a state actor for a tort under the Tort Claims Act, which does contain an express waiver of sovereign immunity, and therefore violations of the Georgia Trade Secrets Act constitute a tort under Georgia law. Stay tuned for the potential impact of this decision on liability against state entities in cases involving trade secret claims.