Second Circuit Follows Third Circuit in Applying Broad ‘Use’ Definition for DTSA Misappropriation Claims

Yesterday, the U.S. Court of Appeals for the Second Circuit reversed and remanded the Southern District of New York’s dismissal of trade secret misappropriation claims filed against fintech company Arcesium by rival SS&C Technologies. Deciding that a broad definition of “use” under the Defend Trade Secrets Act (DTSA) was consistent with Second Circuit case law, the appellate court held that the district court erred in finding no misappropriation of SS&C’s alleged trade secrets and improperly credited Arcesium’s explanation of emails attached to SS&C’s complaint at the motion to dismiss stage.

Explanation of Trade Secret Functions Gives Notice of Bases for Misappropriation Claims

In 2015, SS&C acquired Advent, which had developed a portfolio accounting software product known as Geneva designed to provide real-time assessments of firm-wide portfolio data. Prior to that acquisition, Arcesium had entered into a hosted reseller agreement (HRA) under which Arcesium was authorized to sublicense Geneva for the purpose of displaying Geneva data to customers within its own fintech platform. SS&C allowed the HRA to expire in 2020, after which Arcesium only possessed run-off rights allowing Arcesium to provide Geneva to existing customers.

SS&C attempted to end Arcesium’s run-off rights after learning that Arcesium was advertising Geneva’s availability to prospective customers. In response, Arcesium filed a lawsuit in Southern New York district court against SS&C alleging breach of contract and antitrust law violations. At the same time, Arcesium began informing customers that certain Geneva functionalities would soon be available through Arcesium’s own proprietary competing product Trinity. During the antitrust case, SS&C learned about potential misappropriation including Arcesium’s development of a Nautilus project that enabled access to Geneva through Geneva’s integration layer, database scheme and data model.

On appeal, Arcesium argued the district court’s dismissal should be affirmed on the ground that SS&C failed to sufficiently plead the existence of trade secrets, which SS&C alleged as the executable version of Geneva’s software; Geneva’s integration layer, including application programming interfaces (APIs); and Geneva’s data model. Arcesium contended that SS&C failed to sufficiently protect the alleged trade secrets because each one is accessible by every licensed Geneva user. Rejecting an overly narrow definition of “reasonable measures” to safeguard trade secrets, the Second Circuit followed the Ninth Circuit’s reasoning from VBS Distribution v. Nutravita Laboratories (2020) that “[p]roviding alleged secrets to third parties does not undermine a trade-secret claim” if the information was provided on an understanding of confidentiality, which was established by non-disclosure agreements signed by all Geneva customers including Arcesium.

The Second Circuit also found that Arcesium overrelied on the specificity requirement in arguing that SS&C only pleaded extremely general categories of information as alleged trade secrets. Here, the Second Circuit followed the Third Circuit’s approach in declining to impose a general specificity rule, citing Oakwood Laboratories v. Thanoo (2021) for the premise that the fact-specific question over sufficient trade secret disclosure should be decided on a case-by-case basis, and that the alleged trade secret need only be identified with enough specificity to place a defendant on notice of the bases for the misappropriation claim. In the present appeal, SS&C’s complaint included explanations of the function of each alleged trade secret and how those functions can be used by developers.

Reliance on Defendant’s Interpretation of Complaint Attachments Was Fundamental Error

Acknowledging that it has never defined acts constituting use under the DTSA, the Second Circuit noted that the DTSA’s language contemplates an expansive definition of “use,” supported both by Oakwood Laboratories, which found “use” in the trade secret context broadly defined as “any exploitation of the trade secret that is likely to result in injury to the trade secret owner or enrichment to the defendant,” and Black’s Law Dictionary’s definition of “use.” The appellate court added that this expansive definition tracks case law from within the circuit, which has found misappropriation on a product merely similar to a competitor’s alleged trade secret and when alleged trade secrets have been used merely to better a competitor’s own knowledge.

Under this definition, the Second Circuit found that SS&C sufficiently alleged use of its trade secrets. According to the appellate court, these allegations included Arcesium’s replication of Geneva’s loader formats, data models and integration layer, Arcesium’s use of Geneva’s functions to solve problems in its own proprietary platform, and Arcesium’s use of Geneva’s database schema, data model and integration layer to develop the Nautilus interface for unauthorized access of Geneva. Further, SS&C alleged circumstances supporting allegations of use including Trinity’s accelerated development timeline and Arcesium’s solicitation of Geneva customers based on Trinity’s similar functionality.

In assessing the district court’s contrary conclusion that SS&C did not sufficiently allege use, the Second Circuit found that the district court relied heavily on Arcesium’s assertions of what was shown by external documents incorporated into SS&C’s complaint, namely internal Arcesium emails discussing how and whether Arcesium’s platforms should mimic Geneva’s functionality. The appellate court found these documents akin to those it discussed in Pearson v. Gesner (2025), which warned district courts to consider why a plaintiff attached unilateral writings by a defendant to a complaint instead of accepting statements within those unilateral documents as true.

However, the district court made an even more fundamental error when it compared Arcesium’s explanations of the internal email chains attached to SS&C’s complaint with SS&C’s allegations in granting Arcesium’s motion to dismiss. While documents attached to a complaint contradicting the complaint’s allegations may supersede those allegations, the Second Circuit noted that the district court relied not on the emails’ contents but Arcesium’s explanations of what those emails show. Cautioning that its opinion should not be read to opine on the ultimate merits of SS&C’s trade secret claims, the Second Circuit reversed the district court’s dismissal and remanded without reaching SS&C’s alternative appeal the district court’s denial of its motion to vacate judgment and amend its complaint.