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Bernier v. Merrill Air Engineers
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 17
Docket:	Cum-00-32
Argued:	September 6, 2000
Decided:	January 24, 2001




	[¶1]  James G. Bernier appeals and Merrill Air Engineers cross appeals
from a judgment entered in the Superior Court (Cumberland County,
Crowley, J.), following a jury-waived trial.  Bernier contends that the
Superior Court exceeded the bounds of its discretion by amending the
pleadings sua sponte and erred in concluding that he breached the
nondisclosure paragraph in his employment contract.  Merrill cross appeals
from the judgment awarding Bernier attorney fees and trebled unpaid
commissions pursuant to 26 M.R.S.A. § 626 (Supp. 2000) and from the
court's finding that Bernier did not use or disclose Merrill's trade secrets in
violation of the Uniform Trade Secrets Act (UTSA), 10 M.R.S.A. §§ 1541-
1548 (1997).  We affirm the judgment.
	[¶2]  Bernier worked as an engineer for Merrill from 1988 through
March of 1997.  In 1993, Merrill's president signed a memorandum
promising engineers a three percent commission.{1}  In 1996, after disputing
the method of calculating the commission, Bernier received a letter from
Merrill's accountant that stated:  "As in the past these commissions will be
paid if the cash is available at the time and the engineer is with the company
at the time the job closes out (all customer payments received)."
	[¶3]  From the time the commission program was created until
Bernier left the company, Bernier received commissions periodically but not
necessarily at the end of each project.  While still employed at Merrill,
Bernier qualified for but had not received three commissions.  As he was
leaving, Bernier made a written request for payment.  In response, Bernier
received a note from the president that the commissions would only be paid
after assessing Merrill's cash flow.  Bernier demanded his commissions to
no avail in two subsequent letters.
	[¶4]  Bernier filed suit against Merrill to recover, inter alia, unpaid
commissions.  Following a bench trial, the court found that Merrill was liable
for past commissions.  Pursuant to 26 M.R.S.A. 626,{2} the unpaid
commissions were trebled and attorney fees were granted for that portion of
the award.
	[¶5]  Merrill's cross-appeal contends that the court erred in granting
Bernier the commissions because the commissions were contingent on the
availability of cash.  Because the commission agreement indicates that other
conditions may be "announced later," Merrill contends that the subsequent
correspondence mentioning cash availability and the practice of distributing
lump sum commissions at various times, not necessarily after a project
closed, supplemented the original commission agreement.  Furthermore,
Merrill contends that because the commissions were not due until cash was
available, the conditions in the commission agreement had not been
satisfied, and as a result, section 626 is not applicable.
	[¶6]  Bernier contends that the requirements for the commission to
vest were that (1) he sign the proposal and (2) he be at Merrill when the
final invoice is paid by the customer.  The court implicitly agreed with
Bernier's reading of the memo and stated:  "The suggestion that the
payment of commissions was permanently contingent upon the availability of
cash is rejected as just an unreasonable reading of the memo that created
the entitlement to commissions."  In addition, the court stated that the
payment of the commissions was not contingent on the availability of cash
because "[i]t is clear to me from the evidence presented that the financial
affairs of Merrill Air Engineers were throughout the period of time in
question in disarray . . . and [the commissions] must at some point either at
a reasonable time or when they became due under the Wage Statute have
become due and payable . . . ."
	[¶7]  "We review issues of law de novo and issues of fact for clear
error."  Spottiswoode v. Levine, 1999 ME 79, ¶ 16, 730 A.2d 166, 172
(citations omitted).  "[A] factual finding will be set aside as clearly erroneous
only if there is no competent evidence in the record to support it."  Purdy v.
Community Telecomm. Corp., 663 A.2d 25, 29 (Me. 1995) (citation
	[¶8]  The commission agreement itself is devoid of language that
indicates that availability of cash is a prerequisite to receiving the
commissions.  Bernier testified that he did not believe that his commission
was contingent on cash availability.  In addition, the court's conclusion that
cash flow was a continuous problem and could not have been a qualification
for receiving the commissions was supported by the president's testimony. 
Thus, the court's determination that the commissions were not contingent
on the availability of cash is not clearly erroneous.
	[¶9]  After finding that the commissions were not contingent on the
availability of cash, the court applied section 626.  "The employment
agreement, not section 626, governs how wages are earned and, if specified,
when wages are to be paid."  Burke v. Port Resort Realty Corp., 1998 ME
193, ¶ 5, 714 A.2d 837, 839 (citation omitted).  Because the court did not
find that the availability of cash was a contingency that could be read into the
agreement, the court concluded that pursuant to the agreement the
commissions were due.  The court did not err in concluding that the unpaid
commissions should be trebled and attorney fees awarded to Bernier.
	[¶10]  When Bernier accepted employment at Merrill after receiving
his engineering degree, he signed an employment contract that states in
pertinent part:

Confidential Material

. . . [T]he Employee agrees that he or she shall not, during the
term of employment by Tristar [holding company of Merrill] or
at any time thereafter, divulge, use, furnish, disclose or make
accessible to anyone other than Tristar or other than in Tristar's
usual course of business, any knowledge or information with
respect to (i) confidential or secret processes, plans, formulae,
programs, devices or material relating to the business, services
or activities of Tristar, (ii) any confidential or secret
development or other original work of Tristar, (iii) any other
confidential or secret aspect of the business, products, or
activities of Tristar . . . .  All records, materials, and information
obtained by the Employee in the course of his or her
employment are confidential and shall remain the exclusive
property of Tristar.
	[¶11]  After having worked for Merrill for eight years, Bernier
resigned in March of 1997 and accepted a job at Henry Molded Products,
Inc.  The Superior Court made the following findings of facts regarding the
occurrences that preceded Bernier's resignation:
Merrill began working with the Henry Company which is located
in Lancaster, Pennsylvania . . . in 1995 when Merrill through
Donald Currie [sic] [president of Merrill] began a course of
dealings toward identifying how Henry Molded Products, which
manufactured molding paper products, could benefit from a
product dryer that would be designed and produced by Merrill
to improve Henry's drying process.  To this end Merrill invested
time and money and resources in developing the business
opportunity with Henry.  Merrill's efforts included arranging for
and conducting tests at the University of Maine at Orono, to
collect data on drying Henry's product, investing in trips by
Donald Currie [sic], . . . to Henry's facility in Pennsylvania, to
assess the Henry operation and dryer needs and current
capacity, by developing specifications for a dryer that was suited
to the Henry drying process and as a result of this process
Merrill with Mr. Bernier at the helm developed a cost proposal
for Henry in the latter part of 1996.  Mr. Bernier's role and
function in the preparation of the proposal was as manager of
contract engineering, concept design, proposal preparation and
budget preparation and he was in charge of detailed design and
drafting for the proposal.  On January 24th of 1997 Merrill
submitted the proposal to Henry Molded Products.  That
proposal expressly says in a caption on a page on which nothing
else appears that this is a confidential document, that the
engineering design information contained herein is considered
	[¶12]  Though the testimony is disputed, the court found that after
Henry made a preliminary commitment to purchase a Merrill dryer design,
Bernier contacted Henry for a job, Bernier resigned from Merrill, Henry
canceled the dryer order, and Bernier accepted a position at Henry.  The
court further found that when Bernier inquired about employment at Henry,
he was informed that Henry's objectives included obtaining dryers at the
lowest price.  When Bernier interviewed with Henry, he told a Henry
employee that he had his own dryer design.  The offer of employment that
Bernier accepted included bonuses for dryers built while he was at Henry. 
By the end of 1997, a new dryer was built at Henry under Bernier's
supervision.  The dryer built at Henry varied from the Merrill dryer design,
although the parties dispute the degree of variation.
	[¶13]  Following Bernier's claim for unpaid commission, Merrill
counterclaimed alleging, inter alia, his breach of contract and
misappropriation of trade secrets.  The court held that Bernier did not
violate the UTSA, but did breach his "contractual obligations under both
paragraphs three and four of his contract."  Finding that it was more likely
than not that Henry would have ordered a dryer from Merrill if Bernier had
not breached his employment contract, Merrill was awarded damages in the
amount of Merrill's net profit from the construction and design of the dryer
for Henry.
	[¶14]  Bernier contends that the Superior Court erred in enforcing
paragraph 3 (nondisclosure clause).  First, Bernier contends that the
nondisclosure clause is insufficient to protect information that is not
protected by the UTSA.  Second, Bernier contends that the nondisclosure
clause is not reasonable.
	[¶15]  "[A]n employer, under a proper restrictive agreement, can
prevent a former employee from using his trade or business secrets, and
other confidential knowledge gained in the course of the employment, and
from enticing away old customers . . . ."  Roy v. Bolduc, 140 Me. 103, 107,
34 A.2d 479, 480-81 (1943) (construing a noncompete agreement).  The
confidential knowledge or information protected by a restrictive covenant
need not be limited to information that is protected as a trade secret by the
UTSA.  We have not previously read such limitations into restrictive
covenants and do not do so now.  See id.; Ingersoll-Rand Co. v. Ciavatta, 542
A.2d 879, 894 (N.J. 1988) (construing a holdover agreement and
recognizing that "employers may have legitimate interests in protecting
information that is not a trade secret or proprietary information, but highly
specialized, current information not generally known in the industry,
created and stimulated by the research environment furnished by the
employer, to which the employee has been 'exposed' and 'enriched' solely
due to his employment").
	[¶16]  To be enforceable, however, restrictive covenants must be
reasonable.  The reasonableness of a restrictive covenant is a question of law. 
See Brignull v. Albert, 666 A.2d 82, 84 (Me. 1995) (construing a
noncompete agreement).  Questions of law are reviewed de novo. 
Spottiswoode, 1999 ME 79, ¶ 16, 730 A.2d at 172.
	[¶17]  Proper restrictive covenants cannot preclude former employees
from  "following any trade or calling for which he is fitted and from which
he may earn his livelihood" or "exercising the skill and general knowledge
he has acquired or increased through experience or even instructions while
in the employment."  Roy, 140 Me. at 107, 34 A.2d at 481.  To be
enforceable the "agreement must impose no undue hardship upon the
employee and be no wider in its scope than is reasonably necessary for the
protection of the business of the employer."  Id. at 107, 34 A.2d at 480.
	[¶18]  The nondisclosure clause in the Bernier-Merrill employment
contract is reasonable.  We uphold the court's conclusion that paragraph 3
reasonably prohibits Bernier from using particularized, highly specialized
proprietary protected original work that was custom designed for a
particular prospect.  In balancing Bernier's interest in securing employment
and Merrill's interest in protecting the confidential information it created,
we find that the agreement does not pose an undue hardship on Bernier,
and it is not broader than necessary to protect Merrill's business.  The
nondisclosure clause does not prohibit Bernier from using the general skill
and knowledge he acquired during his employment with Merrill.  Instead,
the nondisclosure clause protects the use of information that does not rise
to the level of a trade secret but is more than general skill or knowledge. 
Thus, Paragraph 3 reasonably precluded Bernier from designing a dryer for
Henry by using the "original work" he became privy to while developing
Merrill's dryer proposal to Henry.  In addition, we do not agree with
Bernier's contention that the nondisclosure clause is unreasonable because
it is not limited in duration.  We do not find that durational limits are
necessary in nondisclosure clauses, as they are in noncompete agreements,
because the "imposition of geographic or durational limitations 'would
defeat the entire purpose of restricting disclosure, since confidentiality
knows no temporal or geographical boundaries.'"  Revere Transducers, Inc.
v. Deere & Co., 595 N.W.2d 751, 761 (Iowa 1999) (citing 2 Rudolf Callmann,
The Law of Unfair Competition, Trademarks & Monopolies § 14.04, at 222-23
(Supp. 1998)).
	[¶19]  Next, we consider Bernier's contention that, even if the
nondisclosure clause is enforceable, there is insufficient evidence to
conclude that while employed at Henry, Bernier used or disclosed in the
words of the Superior Court "particularized, highly specialized proprietary
protected original work that was custom designed" for Henry by Merrill. 
Bernier contends that the components of Merrill's original work, including
graph oil seals, staggered mirror image nozzles, welded wall panels, end
enclosures and burners that were identified during the trial as being used by
Bernier to develop the Henry dryer, are not "particularized, highly
specialized proprietary protected original work."  The Superior Court
[A]lthough there are differences between the original Merrill
design and the ultimate dryer that was installed at Henry
Molded Products, the timing of the negotiation and the hiring of
Mr. Bernier and the timing of the Bernier design combined with
the similarity of the Bernier design to the Merrill proposal led
me to the inescapable conclusion that original work of Merrill
was used.
Thus, the Superior Court made its determination based on a finding that the
"original work" used by Bernier was the process and concept Merrill
generated to create the Henry proposal, and not the separate components
	[¶20]  We review the sufficiency of evidence by considering whether,
"by any reasonable view of the evidence, including inferences to be drawn
therefrom, taken in the light most favorable to the prevailing party, the
verdict can be sustained."  Withers v. Hackett, 1998 ME 164, ¶ 7, 714 A.2d
798, 800 (citation omitted).  We find that there is sufficient evidence that
Bernier violated the nondisclosure clause by using "particularized, highly
specialized proprietary protected original work" from Merrill.  Whether
Merrill's "original work" was used by Bernier to design the Henry dryer
encompasses more than a component by component comparison.  Bernier
testified that while he was employed at Merrill, he assisted in preparing the
Henry dryer proposal.  The president of Merrill testified that the proposal
contained the dryer description, including graph oil seals, tongue and
groove walls, and the nozzle arrangement, and Bernier testified that the
dryer he ultimately designed for Henry contained graph oil seals and mirror
imaging nozzles.  Bernier also testified that he was involved in observing and
compiling the data that Merrill generated to create the Henry proposal. 
Furthermore, Bernier testified that he wrote an interoffice memorandum at
the end of his first week at Henry that stated:  "[t]he knowledge gained this
week in conjunction with my previous knowledge of the project will allow
me to move ahead with the dryer design next week."  Thus, the combination
of the common components, the specific knowledge gained while
developing the Henry dryer proposal while employed at Merrill, and the
process of designing the dryer for Henry are sufficient facts to find that
Bernier breached his employment contract.
	[¶21]  Finally, Bernier contends the court's findings that he breached
both the nondisclosure (paragraph three) and noncompete (paragraph four)
paragraphs of the employment contract were erroneous because Merrill
failed to allege a violation of paragraph four.  If paragraph 4 is an improper
basis for a judgment, Bernier contends that the breach of contract claim
cannot be upheld solely on the basis of paragraph 3 and should be vacated.
	[¶22]  "Whether to grant a motion to amend is left to the discretion of
the trial court."  Mutual Fire Ins. Co. v. Richardson, 640 A.2d 205, 207 (Me.
1994) (citations omitted).  In the instant case neither party made a motion
to amend the pleadings, instead, the Superior Court determined sua sponte
after the trial that paragraph 4 was tried by implied consent pursuant to
M.R. Civ. P. 15(b).{3}  "To avoid the possibility of prejudice to a party that may
have relied upon the issues as delineated in the pleadings or pre-trial order,
we will deem an issue to have been tried by consent only where it clearly
appears from the record that both parties consented to trial of the issue."  
Steinberg v. Elbthal, 463 A.2d 731, 734 (Me. 1983) (citations omitted).
	[¶23]  Merrill did not plead a breach of paragraph 4 of the
employment contract in either the counterclaim or the report of conference
of counsel,{4} nor did it seek to amend the pleadings to include paragraph 4. 
The trial transcripts do not indicate that paragraph 4 was a focus of
litigation or questioning by either party or the court.
	[¶24]  Much of the evidence presented at trial to prove a breach of
paragraph 3 could have also been used to prove a breach of paragraph 4;
however, we have stated that "[t]he mere fact that evidence presented at
trial which is competent and relevant to the issues raised by the pleadings
may incidentally tend to prove another fact not put in issue does not give
rise to the application of Rule 15(b) and support a claim that the issue was
tried by consent . . . ."  Blue Spruce Co. v. Parent, 365 A.2d 797, 802 (Me.
1976) (citations omitted).  Thus, the Superior Court improperly amended
the pleadings to include a violation of paragraph 4.  The error, however, was
harmless because the court's finding of a breach of paragraph 3 is adequate
to affirm that Bernier breached his employment contract.
	[¶25]  In Spottiswoode, 1999 ME 79, 730 A.2d 166, we established
that "a court examining a claim under the UTSA must determine whether
the information at issue constitutes a 'trade secret,' as that term is defined
in 10 M.R.S.A. § 1542(4)."{5}  Id. ¶ 27, 730 A.2d at 174 (citation omitted). 
For information to qualify as a trade secret, the information must (1) derive
"independent economic value, actual or potential, from not being generally
known to and not being readily ascertainable by proper means by other
persons"; and (2) be "the subject of efforts that are reasonable under the
circumstances to maintain its secrecy."  10 M.R.S.A. § 1542(4);
Spottiswoode, 1999 ME 79, ¶ 27, 730 A.2d at 174-75.
	[¶26]  To determine whether the information derived "independent
economic value," the Superior Court applied the five factors we articulated
in Spottiswoode, and concluded that "Merrill has not convinced me that in
the situation here, the information constituted a trade secret."{6}  Merrill
contends that the court misapplied the factors and as a result, incorrectly
found that Bernier did not violate the UTSA, 10 M.R.S.A. §§ 1541-48.
	[¶27]  We review issues of law de novo and issues of fact for clear
error.  Spottiswoode, 1999 ME 79, ¶ 16, 730 A.2d at 172.  "[T]he definition
of a trade secret is a matter of law," while "the determination in a given
case whether specific information is a trade secret is a factual question."
Ed Nowogroski Ins., Inc. v. Rucker, 971 P.2d 936, 941 (Wash. 1999)
(citations omitted).
	[¶28]  The first factor is the value of the information to Merrill and to
Merrill's competitors.  Regarding the value of the information, the Superior
Court found:
[I]t's clear in the design of dryers . . . that the Merrill design
differs in some respects from other design[s] but . . . the
evidence in this case does not establish to my satisfaction that
the Merrill design is inherently superior to those competitors
. . . ; therefore, the evidence presented as to the value of the
information in terms of the uniqueness of the Merrill design is
not strong.
Merrill contends that the court's evaluation of the first factor in terms of the
uniqueness and superiority of the dryer design was erroneous.  We do not
find this determination to be clearly erroneous.  Compare Restatement of
Torts § 757 cmt. b (1939) (stating that "[n]ovelty and invention are not
requisite for a trade secret as they are for patentability") (section 757 was
not included in the Restatement (Second) of Torts because the law of Unfair
Competition & Trade Regulation is no longer dependent on tort law, as it
once was)with Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 476 (1974)
(concluding that some novelty is required "if merely because that which
does not possess novelty is usually known; secrecy, in the context of trade
secrets, thus implies at least minimal novelty") (footnote omitted) and
Murray v. Bank One, 649 N.E.2d 1307, 1313 (Ohio Ct. App. 1994) (stating
that "[t]o amount to a trade secret, the use of an item must be unique and
competitively advantageous").  In addition, we do not find that the court
erred in analyzing the value of Merrill information in terms of its utility as
opposed to the actual economic value of the information.  See Picker Int'l
Corp. v. Imaging Equip. Servs., Inc., 931 F. Supp. 18, 35 (D. Mass. 1995)
(finding the diagnostic software the plaintiff claimed was being
misappropriated as a trade secret had "great competitive value" because it
was "vital" to their business of repairing certain machines).
	[¶29]  The second factor is "the amount of effort or money the
plaintiff expended in developing the information."  The Superior Court
[T]here was some effort, although no evidence as to the amount
of money, there was some collaboration of the University of
Maine and some travel there and the actual testing of some
samples, although there was some evidence that the test results
wouldn't mean an awful lot as applied to the Henry business.  But
although there was some effort there, the amount of money or
effort is not well-defined and, therefore, the evidence on that
point is not particularly strong.
In assessing the second factor, the court alters its focus from Merrill's
general dryer design to the dryer specifically designed for Henry.  Merrill
does not challenge the court's approach; therefore, we need not consider
whether the shifting focus of the court's approach was appropriate.  See
Larrabee v. Town of Knox, 2000 ME 15, 744 A.2d 544, 544 n.1.  Indeed,
Merrill only contests the factual findings relating to this factor.  The record
supports the court's conclusion that the amount of money and effort
expended to develop the Henry proposal was not well defined.
	[¶30]  The court found that the third factor, "the extent of measures
the plaintiff took to guard the secrecy of the information," supported a
finding of trade secret status.
	[¶31]  The fourth factor examines "the ease or difficulty with which
others could properly acquire or duplicate the information."  Regarding this
factor, the Superior Court concluded:
[O]nce a Merrill dryer is on the scene, it doesn't take a great
deal of effort or involve a lot of difficulty to find out what the
nozzle pattern is, to find out whether it's a solid wall or a
paneled wall and to find that it is vented at some point other
than in the middle of the dryer.  So the ease or difficulty with
which others could properly acquire or duplicate the
information would suggest as to that factor that this is not a
protectable trade secret.
Merrill contends that Bernier could not "properly" reverse engineer the
dryer design because the dryer was not acquired through proper and legal
means.  Merrill contends that Bernier obtained the information by breaching
the nondisclosure clause of his contract and that Merrill customers sign
confidentiality agreements; therefore, a Merrill dryer could not be properly
reverse engineered.  In the comments to the Uniform Trade Secrets Act,
the National Conference of Commissioners on Uniform State Laws states that
reverse engineering is a "proper" means to discover information.  Unif.
Trade Secrets Act § 1 cmt., 14 U.L.A. 438 (1990).  The comment further
states, however,  that for reverse engineering to be proper, "[t]he
acquisition of the known product must, of course, also be by a fair and
honest means, such as purchase of the item on the open market . . . ."  Id.  It
appears that the court may have misperceived the importance of having
acquired the design by "proper" means.
	[¶32]  The fifth factor considers "the degree to which third parties
have placed the information in the public domain or rendered the
information 'readily ascertainable' through patent applications or
unrestricted product marketing."  Merrill contends that the Superior Court
erroneously concluded that:
both from the patent application with respect to the
thermodyne dryer of Merrill and with respect to the sale of
other products, I think that the technology that Merrill suggests
is unique and superior is readily ascertainable.
Merrill contends that the trade secret regarding the seals was not the
physical seal but the actual information that Merrill had acquired that the
seal "was a cost effective, suitable seal that gave Merrill a competitive
advantage . . . ."  The comments to the Uniform Trade Secret Act state that
the readily ascertainable factor "does not require that information be
generally known to the public for trade secret rights to be lost."  Unif. Trade
Secrets Act § 1 cmt., 14 U.L.A. at 439.  "If the principal persons who can
obtain economic benefit from information are aware of it, there is no trade
secret."  Id.  There is evidence in the record that indicates that even though
the seals were not advertised, they could be purchased from a supplier off-
the-shelf, and anybody who knew about them could acquire them.  Thus,
implicit in the Superior Court's opinion is the fact that the seal and its
superior qualities are readily ascertainable because the seals are sold by a
third party and are "off-the-shelf" items.  We do not find this finding to be
clearly erroneous.
	[¶33]  After balancing the five Spottiswoode factors, the court found
that the information Bernier used to design a dryer for Henry was not a
trade secret.  Although the court's handling of the fourth Spottiswoode
factor may have been error, its ultimate finding was not clearly erroneous.
	The entry is:
			Judgment affirmed.

Attorney for plaintiff: Thomas B. Federle, Esq., (orally) Dyer, Goodall and Federle, LLC 61 Winthrop Street Augusta, ME 04330 Attorney for defendant: E. James Hamilton, Esq., (orally) 120 Echange Street, suite 404 Portland, ME 04101-3004
FOOTNOTES******************************** {1} . The commission agreement stated in pertinent part: The following negotiations apply to this program and there may be more announced later. The salesman on the project and the co-sign engineer on the project will both receive 3% of gross profit at the close of the project. (Money received by us.) The only qualification is you sign the proposal and be here when the final invoice payment is made by the customer. It goes without saying that back charges to the job, after it is closed out, will have an adjustment on the project and this adjustment will affect the corrected bonus. {2} . 26 M.R.S.A. § 626 provides in relevant part: An employee leaving employment must be paid in full within a reasonable time after demand at the office of the employer where payrolls are kept and wages are paid . . . . . . . . For purposes of this subchapter, a reasonable time means the earlier of either the next day on which employees would regularly be paid or a day not more than 2 weeks after the day on which the demand is made. . . . . . . . An employer found in violation of this section is liable for the amount of unpaid wages and, in addition, the judgment rendered in favor of the employee or employees must include a reasonable rate of interest, an additional amount equal to twice the amount of those wages as liquidated damages and costs of suit, including a reasonable attorney's fee. {3} . M.R. Civ. P. 15(b) states in pertinent part: Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. {4} . Arguably, the report of conference of counsel that listed "misappropriation of corporate opportunity" as an issue might have alerted counsel to a claim that paragraph 4 was in issue. {5} . 10 M.R.S.A. § 1542 provides in pertinent part: § 1542. Definitions. As used in this Act, unless the context otherwise indicates, the following terms have the following meanings. 1. Improper means. "Improper means" means theft, bribery, misrepresentation, breach or inducement of a breach of duty to maintain secrecy or espionage through electronic or other means. 2. Misappropriation. "Misappropriation" means: A. Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or B. Disclosure or use of a trade secret of another without express or implied consent by a person who: (1) Used improper means to acquire knowledge of the trade secret; (2) At the time of disclosure or use, knew or had reason to know that his knowledge of the trade secret was: (i) Derived from or through a person who had utilized improper means to acquire it; (ii) Acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (iii) Derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit is use; or (3) Before a material change of his position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake. . . . . 4. Trade Secret. "Trade secret" means information, including, but not limited to, a formula, pattern, compilation, program, device, method, technique or process, that: A. Derives independent economic value, actual or potential, from not being generally known to and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; and B. Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. {6} . The five factors are: (1) the value of the information to the plaintiff and to its competitors; (2) the amount of effort or money the plaintiff expended in developing the information; (3) the extent of measures the plaintiff took to guard the secrecy of the information; (4) the ease or difficulty with which others could properly acquire or duplicate the information; and (5) the degree to which third parties have placed the information in the public domain or rendered the information "readily ascertainable" through patent applications or unrestricted product marketing. Spottiswoode, 1999 ME 79, ¶ 27, 730 A.2d at 174 n.6 (citations omitted). The court found factors 1, 2, 4 and 5 favor Bernier and factor 3 favors Merrill.