“Specific Opportunity” Means a Discrete, Unauthorized Chance to Acquire a Trade Secret: North Carolina Clarifies NCTSPA § 66-155(2) and Reinforces Business Court Written-Opinion and Spoliation Requirements

I. Introduction

In Rel. Ins., Inc. v. Pilot Risk Mgmt. Consulting, LLC (N.C. May 22, 2026), the Supreme Court of North Carolina reviewed interlocutory summary-judgment rulings arising from a complex business dispute between an insurance brokerage group (Relation) and a competing agency (Pilot) formed and staffed in part by Relation’s former employees.

The litigation featured familiar “departure-and-competition” allegations: client and employee solicitation, handling of client lists and renewal data, alleged misuse of confidential information, and post-departure computer access. The case was complicated by extensive electronic evidence destruction across multiple devices, prompting the Business Court to grant an adverse inference for spoliation.

The Supreme Court’s opinion addresses several important issues: (1) how North Carolina courts should apply spoliation adverse inferences at the summary-judgment stage; (2) what makes client lists and renewal lists protectable trade secrets; (3) the meaning of “specific opportunity to acquire” in the prima facie misappropriation standard under the North Carolina Trade Secrets Protection Act (NCTSPA); (4) post-employment “authorization” theories under the federal Computer Fraud and Abuse Act (CFAA); (5) enforceability analysis for non-solicitation provisions tied to corporate affiliates; and (6) the statutory obligation of the Business Court to issue a written opinion when ruling on Rule 56 motions.

II. Summary of the Opinion

  • Affirmed summary judgment on Relation’s unjust enrichment claim (Relation did not “confer” a benefit; it alleged a taking).
  • Reversed summary judgment holding two spreadsheets were not trade secrets:
    • Gurley’s Customer List (compiled list of 98 clients).
    • Client Renewal List (37 clients with renewal dates and benefit lines).
  • Clarified NCTSPA prima facie misappropriation: a plaintiff may rely on a “specific opportunity to acquire” a trade secret only if the opportunity occurred without the owner’s express or implied consent/authority; “specific” is construed narrowly as a discrete, identifiable instance.
  • Reversed and remanded multiple issues due to the Business Court’s failure to define the scope and claim-specific application of its spoliation adverse inference.
  • Reversed and remanded the Business Court’s CFAA summary judgment rulings, recognizing evidence that:
    • King’s post-departure portal access could be “without authorization” after a cease-and-desist letter.
    • Crooker may have “exceed[ed] authorized access” if a “Relation rule” barred producers from the expiration-list database.
    • Other email/screenshot allegations required reconsideration in light of spoliation and proof of the CFAA’s $5,000 loss threshold.
  • Remanded non-solicitation enforceability because the record did not permit a reliable assessment of Relation’s affiliate structure and evidentiary disputes existed regarding an “Organizational Chart” offered to define the covenant’s breadth.
  • Reversed the “Clarifying Order” because it granted Rule 56 relief without a written opinion, contrary to N.C.G.S. § 7A-45.3, and remanded for a written, reasoned decision.

III. Analysis

A. Precedents Cited

1. Interlocutory appeals and “substantial right”

  • Veazey v. City of Durham (definition of interlocutory order) anchored the court’s framing of what was (and was not) immediately appealable.
  • Land v. Whitley (reaffirming the general rule against interlocutory appeals) and Goldston v. Am. Motors Corp. supported the baseline rule, with statutory exceptions supplying jurisdiction.
  • Hamby v. Profile Prods., LLC supplied the “substantial right” rationale: partial summary judgment that risks inconsistent verdicts can be immediately appealed.

2. Summary judgment standards

  • Hinman v. Cornett and Zimmerman v. Hogg & Allen, Pro. Ass'n guided the de novo review and “light most favorable to the nonmovant” approach, which was decisive in reversing the Business Court on trade-secret status and certain CFAA theories.

3. Spoliation / adverse inference doctrine

  • Yarborough v. Hughes provided the classic North Carolina articulation: withholding relevant evidence within a party’s control permits an inference the evidence would harm that party.
  • Black v. Wright was invoked for the strength of spoliation as circumstantial proof.
  • Sunset Beach Dev., LLC v. AMEC, Inc. clarified that the inference is not mandatory and belongs to the trier of fact.
  • Vodusek v. Bayliner Marine Corp. (4th Cir.) was used for the trial court’s “broad discretion” in shaping the inference via jury instruction, underscoring the Supreme Court’s insistence that the Business Court specify scope and application.

4. Trade secret definition and client lists as trade secrets

  • Wells Fargo Ins. Servs. USA, Inc. v. Link supplied North Carolina’s six-factor guide (Restatement-derived) and reinforced the case-specific nature of trade secret analysis.
  • Krawiec v. Manly controlled the threshold “identify with sufficient particularity” requirement and the client-list trade secret discussion (including when lists are too publicly derivable).
  • Combs & Assocs., Inc. v. Kennedy and NovaCare Orthotics & Prosthetics E., Inc. v. Speelman informed the limits of protectability where information is readily compiled from public sources and not meaningfully protected.
  • Allstate Ins. Co. v. Fougere (1st Cir.) materially influenced the compilation principle: even if some elements are public, the compilation may be a trade secret if it is difficult to assemble in the same form.
  • Federal and other-circuit authorities (e.g., Syntel Sterling Best Shores Mauritius Ltd. v. The TriZetto Grp., Inc.; Bimbo Bakeries USA, Inc. v. Sycamore; Decision Insights, Inc. v. Sentia Grp., Inc.; AvidAir Helicopter Supply, Inc. v. Rolls-Royce Corp.; Learning Curve Toys, Inc. v. PlayWood Toys Inc.) were used to emphasize that trade-secret existence is “fact-intensive,” supporting reversal at summary judgment.

5. NCTSPA misappropriation: reading “specific opportunity to acquire”

  • Bd. of Adjustment of Swansboro v. Town of Swansboro supplied the in pari materia canon used to harmonize NCTSPA’s definition of misappropriation (N.C.G.S. § 66-152(1)) with the prima facie standard (N.C.G.S. § 66-155).
  • N.C. Dep't of Corr. v. N.C. Med. Bd. reinforced that every statutory word must be given effect—central to rejecting an interpretation that effectively reads “specific opportunity to acquire” out of § 66-155(2).
  • RLM Commc'ns, Inc. v. Tuschen (4th Cir.) was discussed and effectively declined as an interpretive prediction that undervalued the statutory phrase “has had a specific opportunity to acquire.” The Supreme Court’s approach preserved the phrase while constraining it with a narrow construction.
  • Illustrative NCTSPA applications:
    • Amerigas Propane, L.P. v. Coffey (no prima facie case where no evidence the employee accessed/downloaded customer information in connection with departure).
    • Med. Staffing Network, Inc. v. Ridgway (prima facie case where unusual-frequency access to “game plan” and confidential documents shortly before joining a competitor).

6. Restrictive covenants and blue-pencil doctrine

  • Triangle Leasing Co. v. McMahon stated the five enforceability elements (writing; reasonableness as to terms/time/territory; part of employment contract; consideration; not against public policy).
  • Wells Fargo Ins. Servs. again was pivotal: affiliate-linked restrictions can be unreasonable depending on company size/scope and unrelated lines of business.
  • Med. Staffing Network, Inc. v. Ridgway supported invalidity risks where covenants cover an undefined universe of affiliates engaged in distinct businesses.
  • Beverage Sys. of the Carolinas, LLC v. Associated Beverage Repair, LLC and Whittaker Gen. Med. Corp. v. Daniel governed North Carolina’s “strict blue[-]pencil doctrine”: courts may sever divisible unreasonable portions, but may not rewrite or surgically edit a covenant into enforceability.
  • Welcome Wagon Int'l, Inc. v. Pender supplied the classic equitable framing of blue-penciling.

7. Collateral estoppel after settlement

  • In re A.D.H. stated the elements of defensive-use collateral estoppel.
  • Arizona v. California (U.S. Supreme Court) and Restatement principles were used to reject issue preclusion where the earlier case ended in settlement and the settlement did not clearly intend preclusive effect.

8. Unjust enrichment

  • Booe v. Shadrick supplied the rule that unjust enrichment is quasi-contractual and generally unavailable where an express contract governs.
  • Se. Shelter Corp. v. BTU, Inc. stated the elements, particularly the “conferred benefit” requirement, which Relation could not satisfy on its “they took it” theory.
  • Business Court decisions (KNC Techs., LLC v. Tutton; Chisum v. Campagna) were cited for the same point: wrongful retention/taking is not a “conferred benefit.”

9. CFAA interpretation: authorization and “gates-up-or-down”

  • Van Buren v. United States (U.S. Supreme Court) supplied the “gates-up-or-down inquiry” for “exceeds authorized access” (off-limits areas vs. improper purpose).
  • United States v. Eddings (3d Cir.) was relied upon for post-employment access concepts: absent contract/policy, an employer must take an “affirmative act” to rescind authorization; whether the act suffices may be for the jury.
  • Facebook, Inc. v. Power Ventures, Inc. (9th Cir.) supported the proposition that a cease-and-desist letter can revoke authorization.
  • United States v. Nosal (9th Cir.) and United States v. Shahulhameed (6th Cir.), as discussed alongside Abu v. Dickson (6th Cir.), illustrated other revocation mechanisms (credential revocation; termination).

B. Legal Reasoning

1. Spoliation: the adverse inference must be operationalized claim-by-claim

The Supreme Court agreed that the record supported an adverse inference given “remarkable” and “coordinated” deletions across devices after preservation notices and during discovery. The doctrinal problem was not whether spoliation occurred; it was that the Business Court did not specify where and how the inference applied in resolving the summary-judgment motions and in shaping the issues for trial.

Because adverse inferences are typically for the factfinder (Sunset Beach Dev., LLC v. AMEC, Inc.) and because trial courts have discretion to craft instructions (Vodusek v. Bayliner Marine Corp.), meaningful appellate review required the Business Court to articulate the inference’s contours. The remedy was remand for clarification “as to each claim,” including providing the parties the inference instruction and detailing in orders where it applies.

2. Trade secrets: compilations can be protectable even if component data is public

Applying the Wells Fargo Ins. Servs. USA, Inc. v. Link six-factor guide, the Court held that Relation produced enough evidence for a jury to find trade-secret status for both client spreadsheets.

  • Gurley’s Customer List: The Court emphasized the distinction between (i) public availability of individual names/addresses and (ii) public availability of the compiled list of Relation’s clients serviced by Gurley. Evidence suggested the compilation was not publicly available, access was limited, systems were password protected, and the list had competitive value because many of Gurley’s new Pilot clients appeared on it.
  • Client Renewal List: The Court likewise treated the compilation (clients + renewal dates + lines of coverage) as potentially protectable, highlighted the time-sensitive value of renewal dates in insurance brokerage, and found evidence that could support secrecy and difficulty of duplication in the same compiled form.

This portion of the decision reinforces that trade-secret analysis is rarely suitable for categorical dismissal when the plaintiff offers evidence that the compilation itself is not readily ascertainable and derives competitive value (Allstate Ins. Co. v. Fougere).

3. NCTSPA § 66-155(2): “specific opportunity to acquire” survives, but only when unauthorized and discrete

The opinion’s central doctrinal clarification is its reading of the NCTSPA’s prima facie misappropriation standard:

  • Section 66-155(2) allows a prima facie case by showing the defendant “[h]as had a specific opportunity to acquire [the trade secret] for disclosure or use,” but the Court held the opportunity must have occurred “without the express or implied consent or authority of the owner.”
  • The Court reached this result by harmonizing § 66-155 with § 66-152(1)’s definition of “misappropriation” (Bd. of Adjustment of Swansboro v. Town of Swansboro) and by insisting every statutory word has meaning (N.C. Dep't of Corr. v. N.C. Med. Bd.).
  • The Court declined to follow the Fourth Circuit’s prediction in RLM Commc'ns, Inc. v. Tuschen insofar as it effectively demanded evidence of actual acquisition/use in all cases and thereby risked reading “specific opportunity” out of the statute.
  • To address policy concerns about dragging ordinary employees into litigation, the Court narrowed “specific” to mean a discrete, identifiable instance—not mere day-to-day access inherent in employment.

Practically, the Court’s construction preserves a meaningful evidentiary middle ground: plaintiffs may proceed without proving completed acquisition/use, but they must show a concrete, unauthorized occasion to obtain the secret (e.g., an unusual access event outside assigned duties, or access after consent/authority ends), akin to scenarios discussed in Med. Staffing Network, Inc. v. Ridgway and contrasted with Amerigas Propane, L.P. v. Coffey.

4. CFAA: post-employment access theories and employer revocation

The Supreme Court accepted that Van Buren v. United States does not resolve all post-employment scenarios and looked to federal appellate decisions for workable standards. It recognized that post-employment access often turns on “without authorization” rather than “exceeds authorized access,” and credited United States v. Eddings for requiring an employer “affirmative act” to rescind permission (while leaving sufficiency to factfinding).

Applying that approach:

  • King’s carrier portal access: Relation’s cease-and-desist letter constituted rescission of authorization (consistent with Facebook, Inc. v. Power Ventures, Inc.), making her later portal access potentially “without authorization.”
  • Crooker’s expiration lists: COO testimony suggesting a “Relation rule” that producers could not access a database created a genuine factual dispute; if the database area was off-limits, access could be “exceed[ing] authorized access” under Van Buren.
  • Other email/screenshot allegations: remanded due to evidentiary gaps potentially affected by spoliation, and the Business Court was instructed to address the CFAA’s civil loss threshold (the $5,000/one-year requirement).

5. Non-solicitation provisions tied to affiliates: evidentiary foundation matters

The Court did not decide enforceability outright; instead, it held that enforceability analysis required reliable evidence of the size and scope of “the Company or any other member of the Ascension Group,” given Wells Fargo Ins. Servs. USA, Inc. v. Link and Med. Staffing Network, Inc. v. Ridgway. The remand highlights a procedural point with substantive consequences: the party seeking enforcement bears the burden (Wells Fargo Ins. Servs.) and must meet Rule 56 evidentiary standards (competent, admissible evidence rather than hearsay).

6. Blue-pencil: strict divisibility, not large-scale judicial editing

The Court applied North Carolina’s “strict blue[-]pencil doctrine” (Beverage Sys. of the Carolinas, LLC; Whittaker Gen. Med. Corp. v. Daniel) to reject Relation’s proposed “rewrite.” Striking “Ascension Group” across dozens of clauses was characterized as impermissible surgical editing rather than severing a divisible covenant. The Court remanded the non-solicitation issue “as written,” reinforcing that drafting overbreadth cannot be cured by extensive judicial interlineation.

7. Business Court procedure: Rule 56 orders must have written opinions

The Court treated the “Clarifying Order” as a straightforward statutory violation: under the Business Court Modernization Act codified in N.C.G.S. § 7A-45.3, the presiding Business Court Judge “shall issue a written opinion” for any order granting or denying Rule 56 relief. Because the Clarifying Order granted summary judgment without analysis, it was reversed and remanded for a written, reasoned opinion.

C. Impact

1. A new, text-driven framework for NCTSPA prima facie misappropriation

The Court’s interpretation of § 66-155(2) is likely to be the opinion’s most cited doctrinal contribution. It:

  • Preserves “specific opportunity to acquire” as a viable prima facie pathway.
  • Constrains it with two limiting principles: (i) the opportunity must be unauthorized (after consent/authority ceases), and (ii) it must be specific (discrete and identifiable).
  • Creates a structured way to plead and prove misappropriation where direct evidence is scarce—an especially common problem in employee-departure cases and, as here, spoliation-heavy records.

Expect future NCTSPA cases to litigate what counts as a “discrete, identifiable instance” and what constitutes “implied authority” in modern employment settings (role-based access, shared drives, cloud permissions, MDM policies, and offboarding practices).

2. Strong incentives for precise spoliation rulings

By remanding for claim-specific articulation of the adverse inference, the Court signals that spoliation sanctions must be administrable: trial courts should identify the nexus between destruction, relevance, and the elements of each claim and defense. This will likely increase the rigor of spoliation orders in the Business Court and may reduce appellate uncertainty in cases involving digital evidence loss.

3. Client lists and renewal lists remain fertile trade-secret territory

The decision reinforces that insurance brokerage compilations (client relationships, renewal calendars, coverage types) are not automatically unprotectable merely because component data can be found elsewhere. The emphasis on compilation difficulty and competitive value is likely to support more trade-secret cases surviving summary judgment—especially where plaintiffs can show limited access, security measures, and competitor value.

4. CFAA claims in North Carolina business disputes may turn on offboarding “revocation” steps

Although federal law governs the CFAA, the Court’s use of Eddings and Facebook underscores that cease-and-desist letters, credential revocations, termination notices, and clear access policies can be outcome-determinative for “authorization.” Employers litigating CFAA theories will be incentivized to document revocation and access boundaries, while employees/competitors will scrutinize whether authorization was clearly and effectively withdrawn.

5. Enforcement of affiliate-linked restrictive covenants will require an evidentiary record

The remand illustrates that broad “affiliate group” language invites enforceability challenges under Wells Fargo Ins. Servs., and that plaintiffs must be prepared to prove the corporate universe covered, the business lines involved, and why the scope is reasonably tailored to legitimate interests.

6. Business Court accountability under § 7A-45.3

By reversing an analysis-free summary judgment order, the Court strengthens the statutory expectation that Business Court Rule 56 decisions be reasoned and transparent—benefiting litigants, improving appellate review, and reinforcing uniformity in complex business adjudication.

IV. Complex Concepts Simplified

  • Trade secret (compilation): Even if individual facts are public, a curated spreadsheet can be a trade secret if the collection (who the clients are, what renews when, what coverage lines exist) is not readily obtainable in the same form and has competitive value.
  • Misappropriation: Not just “having access” at work. Under the NCTSPA, the key is an unauthorized act (or specific unauthorized opportunity) tied to acquisition/disclosure/use—particularly after authority ends or outside assigned duties.
  • Adverse inference for spoliation: A permitted conclusion that missing evidence would have hurt the deleting party. It is usually for the jury, and courts must explain when it applies so parties understand what factual gaps it fills (if any).
  • CFAA “without authorization” vs. “exceeds authorized access”:
    • “Without authorization” typically means you had no permission at all (often after revocation).
    • “Exceeds authorized access” means you had some permission but entered an off-limits part of the system (a “gates-up-or-down” inquiry under Van Buren).
  • Blue-pencil doctrine (North Carolina): Courts may cross out a separable, unreasonable chunk, but they cannot rewrite a covenant into something new. If fixing it requires widespread editing, it is usually not blue-pencilable.
  • Collateral estoppel after settlement: A settlement usually does not “actually litigate” issues, so earlier interlocutory rulings typically don’t preclude later litigation unless the settlement clearly says so.

V. Conclusion

Rel. Ins., Inc. v. Pilot Risk Mgmt. Consulting, LLC is a wide-ranging employee-mobility and business-torts decision with three standout takeaways: (1) the Supreme Court’s text-based clarification that NCTSPA § 66-155(2) permits a prima facie case through a narrowly construed, unauthorized “specific opportunity to acquire” a trade secret; (2) a strong procedural insistence that spoliation adverse inferences be clearly defined and that Business Court summary judgment orders comply with § 7A-45.3’s written-opinion mandate; and (3) practical guidance for modern competition disputes involving compilations of client data and post-employment system access.