109 Wis.2d 290 (1982) 325 N.W.2d 883

CORROON & BLACK-RUTTERS & ROBERTS, INC., Plaintiff-Respondent-Petitioner,
v.
Jack HOSCH, Defendant-Appellant.

No. 80-2337.

Supreme Court of Wisconsin.

Argued September 7, 1982. Decided November 2, 1982.

For the plaintiff-petitioner there were briefs by Kenneth M. Kenney and Kenney, Krembs & Fellows, Milwaukee, and oral argument by Kenneth M. Kenney.

For the defendant-appellant there was a brief by Tom E. Hayes, M. Susan Maloney and Hayes & Hayes, and oral argument by William A. Stearns of Quarles & Brady, all of Milwaukee.

Affirming 105 Wis.2d 755, 315 N.W.2d 728 (Ct App).

*291 LOUIS J. CECI, J.

The question presented is whether it is unfair competition for an insurance agent to use his former employer's customer lists to direct clients to the agent's new insurance agency.

A jury found that the defendant, Jack Hosch, had unfairly used confidential information to compete with the plaintiff, Corroon & Black-Rutters & Roberts, Inc. The court of appeals reversed and remanded for judgment notwithstanding the verdict, holding that the verdict was not supported by credible evidence and was contrary to public policy. We conclude that the information gleaned by the defendant from the plaintiff's files does not constitute a trade secret under Wisconsin law and, therefore, affirm the decision of the court of appeals.

Jack Hosch has been an agent licensed to sell insurance since 1958. In that year, he began his employment with the Roberts Company, a general insurance agency. In 1973, the business and assets of Roberts, including all of its insurance accounts, were acquired by Corroon & Black through an exchange of the stock of Roberts with the stock of Corroon & Black.

During his employment, Hosch was responsible for procuring and servicing insurance accounts for a large number of Corroon & Black's customers. Hosch himself brought about half of these accounts to Corroon & Black. Servicing an account involved, among other things, contacting a customer when the policy was about to expire and reviewing and updating the coverages before renewing the policy.

When the two agencies merged in 1973, Hosch and other employees of Roberts who joined Corroon & Black were required to sign a covenant not to compete. Hosch's covenant not to compete terminated on December 31, 1977. He entered into no other such agreement.

When the term of the covenant not to compete ended, Hosch left Corroon & Black to work for a competitor. *292 Shortly thereafter, in January of 1978, Corroon & Black's president learned that numerous agent-of-record letters had been issued in favor of Hosch and his new agency. These letters notified insurance companies that certain accounts were being switched to a different agency. This resulted in substantial losses of commissions for Corroon & Black, since approximately two-thirds of Hosch's Corroon & Black customers changed to his new agency.

It is clear that Hosch actively solicited his former Corroon & Black clients. That he utilized information gained during his employment with Corroon & Black is not in dispute. This information was of help to him in contacting former customers. Corroon & Black presented testimony that Hosch may have taken detailed information in the expiration lists. Such lists contain names and addresses of policyholders, key personnel to contact, renewal dates and amounts of coverage. Hosch disputes this.^[1] While we recognize the dispute in the evidence on this issue, we can accept Corroon & Black's statement of facts on this point and still reach a conclusion adverse to them.

Corroon & Black's customer files were kept in filing cabinets, which were never locked. Expiration lists were kept in cabinets which were locked on rare occasions. There were approximately 75 employees, all of whom had access to these files.

Corroon & Black commenced an action against Hosch, alleging that Hosch had unlawfully used "privileged and confidential information in the nature of trade or business secrets" from Corroon & Black's files to solicit his former customers.

The complaint demanded compensatory damages in the amount of the commissions for the diverted accounts and further demanded punitive damages. Corroon & Black *293 also asked for an order enjoining any future solicitation by Hosch of his former Corroon & Black clients. The jury found that the files were confidential and that Hosch had made unauthorized use of them. It awarded Corroon & Black $50,000 compensatory damages and $4,000 punitive damages. The trial court approved the verdict.

Hosch appealed, contending that there was no trade secret involved. He also challenged the damages award. The court of appeals concluded that no liability existed because no trade secrets were involved. Therefore, the court did not address the damages issues.

The jury determined that it was unfair competition for Hosch, an insurance agent, to use customer lists of his former employer to divert clients to his new insurance agency. Corroon & Black emphasizes the unfairness of this situation and asserts that Hosch was untrustworthy. The plaintiff in Gary Van Zeeland Talent, Inc. v. Sandas, 84 Wis. 2d 202, 267 N.W.2d 242 (1978), made a similar argument. However, any perceived unfairness should not be the determining factor. As we stated in Van Zeeland:

"[S]o long as a departing employee takes with him no more than his experience and intellectual development that has ensued while being trained by another, and no trade secrets or processes are wrongfully appropriated, the law affords no recourse." Id. at 214.

We also feel compelled to point out that there was no covenant not to compete in effect when Hosch began working for a competitor of Corroon & Black.

Since the protection of a covenant not to compete is not available to Corroon & Black, the outcome in this case necessarily turns on the question of whether the information taken by Hosch was a trade secret.

[1]

At the outset, we must address Corroon & Black's contention that the jury's verdict was supported by credible evidence. The court of appeals properly characterized *294 the issue of whether a trade secret exists as a mixed question of law and fact. In Department of Revenue v. Exxon Corp., 90 Wis. 2d 700, 281 N.W.2d 94 (1979), we stated that when a mixed question of law and fact is presented to this court, there are two component questions which must be answered. The first question is what, in fact, actually happened. The second question, whether those facts as a matter of law fulfill a particular legal standard, is a question of law. Id. at 713. Thus, we hold that whether the information taken by Hosch constitutes a trade secret is a question of law for the court.^[2] This court need not give special deference to the determinations of the trial court on an issue of law. Compton v. Shopko Stores, Inc., 93 Wis. 2d 613, 287 N.W.2d 720 (1980); First Nat. Leasing Corp. v. Madison, 81 Wis. 2d 205, 260 N.W.2d 251 (1977).

The conclusion that an insurance agency's customer list is not a trade secret is consistent with current Wisconsin law, as enunciated in our decisions in Abbott Laboratories v. Norse Chemical Corp., 33 Wis. 2d 445, 147 N.W.2d 529 (1967), and Gary Van Zeeland Talent, Inc. v. Sandas, 84 Wis. 2d 202, 267 N.W.2d 242 (1978).

In Abbott, an employee took, among other things, a customer list for artificial sweeteners and used it to compete against his former employer. In the Abbott opinion, we noted that the law concerning trade secrecy features two basic themes. Some courts have emphasized the breach of confidence aspect of the law of unfair competition.^[3] Usually, however, such cases also involve an *295 assumed trade secret. The second theme is the requirement of the existence of an actual trade secret as the sine qua non of a cause of action for unfair competition. The emphasis is on the nature of the ideas and concepts which employees take with them to their new jobs. 33 Wis. 2d at 455-56.

Corroon & Black's analysis in the instant case bears close resemblance to the first theory in trade secret law discussed in Abbott. As mentioned previously, Corroon & Black emphasizes the alleged confidentiality of its customer lists and apparently equates confidentiality of information with trade secret status. We find this to be an inaccurate statement of existing law. This court in Abbott adopted the Restatement view of the law of trade secrets, finding that it:

". . . gives proper balance to the two factors that have cropped up throughout the development of the law of trade secrets." Id. at 456.

In discussing the definition of a trade secret, we quoted with approval the following language from Restatement, 4 Torts, § 757, comment b (1939):

"Some factors to be considered in determining whether given information is one's trade secret are: (1) the extent to which the information is known outside of his business; (2) the extent to which it is known by employees and others involved in his business; (3) the extent of measures taken by him to guard the secrecy of the information; (4) the value of the information to him and to his competitors; (5) the amount of effort or money expended by him in developing the information; (6) the ease or difficulty with which the information could be properly acquired or duplicated by others." Id. at 463-64.

Applying the Restatement definition, this court held that Abbott's customer list was not a trade secret, because it was not sufficiently secret or confidential and because it contained only the names and addresses of the *296 individual to be contacted, rather than complicated marketing data concerning the customer's projected market needs or the customer's market habits.

We also noted that customer lists are the periphery of the law of unfair competition.^[4] This is because legal protection would not provide the incentive to compile such lists; most are developed in the normal course of business, anyway.^[5]

This court applied the Restatement definition to a customer list in Gary Van Zeeland Talent, Inc. v. Sandas, 84 Wis. 2d 202, 267 N.W.2d 242 (1978), and reached a similar result. When the defendant, Sandas, left Van Zeeland, a talent booking agency, he made copies of Van Zeeland's customer list. Shortly thereafter, Sandas started his own talent agency. The trial judge concluded that the list did not constitute a trade secret and ordered summary judgment for the defendant. We affirmed the trial court.

The trial court in Van Zeeland determined that the list did not meet the Restatement definition of a trade secret. The list did not contain complicated marketing data; it merely included names of customers. Moreover, the list was reproducible by many persons.

We are not unmindful of the fact that the Corroon & Black list may have contained more detailed information than the "bare bones" customer lists in Abbott and Van Zeeland. However, we do not agree with Corroon & Black's contention that this should be a deciding factor. Even though it contains more than just names and addresses of customers, an insurance agency customer list, *297 such as the one in this case, is not entitled to trade secret protection under Wisconsin law.

Corroon & Black contends that the six Restatement elements are not requirements for trade secret status, but rather are factors under which the defendant must show that a trade secret does not exist. It is argued that the expiration lists qualify as trade secrets under this interpretation of the Restatement definition.

We hold that an insurance agency expiration list does not meet the six-factor Restatement definition of a trade secret. Each of the six factors should indicate that a trade secret exists if the information is to be afforded legal protection.

Corroon & Black asserts that considerable time and money were expended in the development of the information on the expiration lists. In Abbott and Van Zeeland, we stated that the customer lists in those cases were "merely the outgrowth of normal marketing endeavors" and were "nothing unique or confidential that should be protected in order to prevent competition." Van Zeeland, 84 Wis. 2d at 217. The court of appeals below correctly determined that the time and money expended by Corroon & Black were spent on the development of the market which the customer list represents, rather than on the compilation of the information. Thus, the fourth and fifth elements of the Restatement definition are lacking. To afford protection to insurance agency customer lists, which are developed in the normal course of business anyway, would be contrary to public policy.

Corroon & Black's president testified that the files were, in his opinion, confidential. However, the evidence shows that most, if not all, of Corroon & Black's employees had access to this information. On this basis, the customer lists fail to meet the Restatement definition under the second and third elements.

*298 Finally, there is some evidence which indicates that the information on many of the larger insurance clients could have been obtained by Hosch and others even without the customer lists.

Aside from the Restatement definition of a trade secret, this court also considered the route-nonroute distinction in Abbott and Van Zeeland. As we explained in Abbott, a nonroute customer is likely to purchase from several suppliers. Courts are less likely to afford protection against "unfair" competition by a former employee, because there is no particular relationship developed between a customer and a salesman (the employer) which is enduring. 33 Wis. 2d at 467. In Van Zeeland we pointed out that certain professionals, for example, dentists, doctors, attorneys and accountants, may be considered to be covered by the route sales rationale, even though they do not meet the traditional definition of "route salesman."^[6]

Corroon & Black asserts that insurance agents are in the route salesman category. We disagree. To the extent that the route-nonroute rationale applies^[7] in this situation, it appears that insurance agents are nonroute salesmen. It seems clear to us that many insurance customers do not depend on one agency for all of their insurance needs. Moreover, many persons change companies *299 and agents quite frequently in order to save a few dollars in premium.

Finally, public policy reasons militate against affording trade secret status to insurance agency customer lists. As we pointed out in Van Zeeland:

"[C]ustomer lists are at the very periphery of the law of unfair competition, because legal protection does not provide incentives to compile lists, because they are developed in the normal course of business anyway." 84 Wis. 2d at 221-22.

We also noted:

"The enforcement of a concept that one may not use trade secrets can only be justified as an unusual exception to the common law policy against restraint of trade." Id. at 209.

This court stated in Van Zeeland that it was the public's right to have reasonable competition. Worker mobility should also be encouraged. Legal protection for customer lists works against these goals.

"[I]t is contrary to public policy to afford special protection to a restraint-of-trade mechanism where to do so does not give a special incentive for creativity that will inure to the benefit of the public at large." Id. at 217.

[2]

Therefore, we conclude that the insurance agency customer list in this case was not a trade secret and that the defendant should not be restrained from contacting the customers of the plaintiff.

By the Court. — The decision of the court of appeals is affirmed.

BEILFUSS, C.J., took no part.

*300 SHIRLEY S. ABRAHAMSON, J. (dissenting).

I dissent because the majority has departed, without justification or explanation, from the well-accepted legal principles which this court has previously adopted in trade secret cases and because the majority has not given proper deference to the jury verdict.

I.

In order to evaluate the majority's departure from precedent and the majority's new standard of appellate review of jury verdicts, I will set forth the factual dispute which the jury in this case was called upon to resolve and the jury instructions which provide the legal framework for the jury to use in deciding the issues presented to it.

Corroon & Black presented evidence that Hosch had unlawfully taken and used three types of information:

(1) "Customer lists," that is, lists containing names and addresses of 85 commercial and 113 personal customers that Corroon & Black had assigned to Hosch;

(2) "Expiration lists," that is, lists of the customer policies showing their expiration date; and

(3) Information contained in "insurance agency files," such as:

(a) names of key personnel to contact regarding particular insurance policies;

(b) type and amount of coverage under each policy;

(c) name of insurer providing each type of coverage;

(d) summaries of calls made to customers and information discussed during those calls;

(e) suggestions concerning information that might be discussed with the customer on the next call;

(f) memoranda regarding a customer's problems that would affect the customer's insurance coverage,

*301 (g) the names of insurance companies with which Corroon & Black had placed the customer's insurance business;

(h) the premium charge for each policy;

(i) the commissions on the policies;

(j) the customer's claims history and loss experience;

(k) whether any other insurer had refused to write a particular type of policy for the customer;

(l) engineering surveys and information on structures insured;

(m) evaluations of the customer's business indicating potential for additional insurance.

Hosch acknowledged that he had access to all of this information when he worked for Corroon & Black and that the information had value to an insurance agent or agency because it gave the agent or agency a competitive advantage over others in the business. He denied that he took either the expiration lists or the information in the insurance agency files.

Hosch moved for a directed verdict on the ground that the evidence, as a matter of law, was insufficient to prove that Hosch made unauthorized use of trade secrets. The trial court denied the motion, finding that the disputed facts gave rise to a jury question.

The trial court then instructed the jury regarding its duties and the principles of law applicable to the case. The trial court instructed the jury with regard to the value of some particular types of information in issue here and to the use of six factors (sometimes referred to herein as the Abbott-Restatement factors) adopted by this court to guide the determination of whether particular information should be protected as a trade secret. The six factors are set forth in the instructions quoted in full below.

The trial court also instructed the jury that trade secret law will allow a former employee to "freely use *302 general knowledge, skills and experience acquired under his former employer," but that the employee "remains under a duty not to use to the detriment of his former employer, without authorization, confidential information acquired in the course of his previous employment." The jury was instructed as to the policy balance that trade secret law attempts to strike between employee mobility and employer business protection. Beyond the policy of balancing fairness to the employer and fairness to the employee, the trial court instructed the jury regarding the general policy of not protecting information that need not be protected because it is "generated in the ordinary course of a business, or . . . is merely the outgrowth of a company's normal marketing endeavors, and which is nothing unique or confidential. . . ."

The jury instructions relevant specifically to trade secrets are as follows:

"While a former employee may freely use general knowledge, skills and experience acquired under his former employer, he remains under a duty not to use to the detriment of his former employer, without authorization, confidential information acquired in the course of his previous employment.

"`Expirations' or `renewal rights' of an insurance agency is a valuable asset, and is frequently bought and sold between agents.

"In determining whether the customer files are confidential, you may consider:

"1. The extent to which the information contained in the files is known outside of plaintiff's business;

"2. The extent to which the information contained in the files is known by employees and others involved in plaintiff's business;

"3. The extent of measures taken by plaintiff to guard the confidentiality of the information;

"4. The value of the information to plaintiff and to his competitors;

"5. The amount of effort or money expended by plaintiff in developing the information; and

*303 "6. The ease or difficulty with which the information could be properly acquired or duplicated by others.^[1]

"The plaintiff must prove that:

"1. The information contained in the customer files was of a confidential nature.

"2. The defendant obtained or used the information improperly; and

"3. The defendant knew or should have known his action was improper.

"If you determine that the customer files were of a confidential nature, then in order to find for the plaintiff, you must determine whether the files were obtained or used improperly.

"One who discloses another's confidential information is liable to the other if his disclosure or use constitutes a breach of confidence reposed in him.

"To find a breach of a confidential relationship, you must first find that the recipient of the information knew or should have known the information was confidential. A relationship of confidence may be implied if the disclosure is made solely for the purpose of advancing or implementing an existing special relationship.

"An agent is entitled to use general information concerning the method of business of his former employer and the names of the customers retained in his memory, if such information is not acquired in violation of his duty as agent. Information of this sort is barred from use in competition with the employer to the extent that, considering all the circumstances, it would be unfair to the former employer for the agent to use it. In determining this, the desirability of permitting employees to be free to terminate the employment relation and to continue working in the same business, are factors to be considered.

"Material which is generated in the ordinary course of a business, or which is merely the outgrowth of a company's normal marketing endeavors, and which is nothing unique or confidential, is not afforded protection."

Neither party challenges the instructions on appeal. The trial court phrased the instructions in terms of "confidential" *304 information rather than "trade secrets." Although better instructions might be devised, the trial court correctly set forth the law of trade secrets which this court adopted in Abbott Laboratories v. Norse Chemical Corporation, 33 Wis. 2d 445, 456, 147 N.W.2d 259 (1967).^[2] As the majority points out, Abbott adopted the statement of the law of trade secrets set forth in sec. 757 of the Restatement of Torts (1939), supra at 295, and this court has consistently followed the Restatement and the Abbott decision. See American Welding & Engineering Co. v. Luebke, 37 Wis. 2d 697, 701, 155 N.W.2d 576 (1968); RTE Corp. v. Coatings, Inc., 84 Wis. 2d 105, 114-15, 267 N.W.2d 226 (1978); Gary Van Zeeland Talent, *305 Inc. v. Sandas, 84 Wis. 2d 202, 208-11, 267 N.W.2d 242 (1978).^[3]

The jury found, by special verdict, that the insurance files of Corroon & Black were of a confidential nature and that Hosch had made unauthorized use of the information in the insurance files.^[4]

*306 On appeal, the court of appeals remanded the case to the trial court to enter a judgment notwithstanding the verdict, and the majority here has, to a great extent, adopted the reasoning of the court of appeals. The majority concludes that the trial court erred in failing to find, as a matter of law, that the information in issue does not constitute a trade secret.^[5] In reaching its conclusion, the majority alters significantly the substantive law of trade secrets and undermines the established standard used to review jury verdicts.

II.

The majority departs in two significant ways from this court's prior cases which analyze trade secrets. First, the majority fails to follow our prior case law *307 which recognizes that a wide spectrum of information may be protected as a trade secret and that the decision to protect information as a trade secret in a particular case must be determined on the basis of the facts of the case. Second, the majority, contrary to this court's interpretation of the Abbott-Restatement test, holds that the information sought to be protected must fulfill each prong of the six-factor test. Supra at p. 297.

This court has consistently reviewed each trade secret case on its own facts, refusing to create "generic" categories of information which are or are not trade secrets. We have stated repeatedly that a court cannot determine whether the information is a trade secret in a factual vacuum. The court must make a "detailed analysis" of the facts. Abbott, supra, 33 Wis. 2d at 457; RTE Corporation v. Coatings, Inc., 84 Wis. 2d 105, 116, 267 N.W. 2d 226 (1978); Gary Van Zeeland Talent, Inc. v. Sandas, 84 Wis. 2d 202, 206-207, 209, 212, 216, 223, 267 N.W.2d 242 (1977); American Welding Engineering Co. v. Luebke, 37 Wis. 2d 697, 702-703, 155 N.W.2d 576 (1968).

While this court has been reluctant to protect customer lists and has stated that customer lists are on the "periphery" of the law of unfair competition, Abbott, supra, 33 Wis. 2d at 467, Van Zeeland, supra, 84 Wis. 2d at 209, this court has also recognized that there may be circumstances under which customer lists are protected. Van Zeeland, supra, 84 Wis. 2d at 208, 222. We have not created a per se rule which eliminates customer lists from protection as a trade secret, because we have recognized that customer lists present "problems of extreme commercial importance and a close balancing of the interest of the employer and employee." Van Zeeland, supra, 84 Wis. 2d at 209, quoting from Alexander, Commercial Torts, sec. 3.34, p. 216 (1973). The Van Zeeland Abbott, and American Welding cases do not hold that customer lists can never be trade secrets. Those cases stand only for the proposition that under the circumstances described *308 in those cases the customer lists did not meet the legal standard of a trade secret.

Neither courts in other jurisdictions nor the Restatement have created a per se rule granting or denying customer lists protection as a trade secret. Courts in other jurisdictions analyze each customer list case on its own facts. In some cases customer lists and customer information have been protected and in others not.^[6] The Restatement specifically includes customer lists in its discussion of the different types of trade secrets:

"A trade secret may consist of any formula, pattern, device or compilation of information which is used in one's business, and which gives him [or her] an opportunity to obtain an advantage over competitors who do not know or use it. It may be a formula for a chemical compound, a process of manufacturing, treating or preserving materials, a pattern for a machine or other device, or a list of customers. . . . It may, however, relate to the sale of goods or to other operations in the business, such as a code for determining discounts, rebates or other concessions in a price list or catalogue, or a list of specialized customers, or a method of bookkeeping or other office management." 4 Restatement of Torts, sec. 757, comment b, p. 5 (1939) (emphasis supplied).

The majority here ignores the factual approach to trade secret cases by purporting to create a rule that, as a matter of law, certain customer information is not to be afforded protection as a trade secret. The majority *309 simultaneously fails to specify the particular customer information that it will not protect. As noted earlier, the majority recognizes that the record reveals that Corroon & Black sought to protect three distinct types of customer information but uses the categories of information interchangeably. The majority refers to: "customer lists," supra pp. 291, 293, 294, 295, 296, 299; "expiration lists," supra pp. 292, 297; and "information gleaned . . . from the plaintiff's files." Supra p. 291. The majority states that this review presents a question concerning "customer lists," supra p. 291, but concludes, supra p. 291, that the "information gleaned . . . from the plaintiff's files does not constitute a trade secret"; it concludes that "an insurance agency's customer list is not a trade secret," supra p. 294, and holds that the "expiration list" is not protected because it does not meet the six-factor Restatement definition, supra p. 297; it analyzes the Restatement factors in terms of the customer list and the files, and then concludes that "[o]n this basis, the customer lists fail to meet the Restatement definition under the second and third elements." Supra p. 297. Finally, the majority determines that "public policy reasons militate against affording trade secret status to insurance agency customer lists." Supra p. 299. Because the majority is inattentive to the type of information it discusses, I do not know what type of information is no longer protected as a trade secret "as a matter of law." The majority's opinion can only serve to confuse the law of trade secrets and create uncertainty in the insurance industry which will not be able to tell what information this court will consider protectable.

The majority further errs in departing from prior case law by treating the Abbott-Restatement six-factor approach to trade secrets as a definition of a trade secret and by requiring each of the six Abbott-Restatement *310 factors to be satisfied before the information can be classified as a trade secret. Supra p. 297. Neither the Restatement nor Abbott defines "trade secrets" because, as the American Law Institute explains, "[a]n exact definition of a trade secret is not possible." In place of a definition, the Restatement lists "some factors to be considered in determining whether given information is one's trade secret. . . ." 4 Restatement of Torts, section 757, comment b, p. 6 (1939). The majority converts the six factors into a six-pronged test in which each prong is independent of the others. The majority gives each of the six factors much more importance than either the Restatement or this court intended to give them.

This court and other courts using the Restatement approach to trade secret law have never held that each of the six Abbott-Restatement factors must be "met" to establish a trade secret. The factors are "relevant," but not determinative. Van Zeeland, supra, 84 Wis. 2d at 211. The court need not accord the factors equal weight or consideration. Holiday Food Co., Inc. v. Munroe, 37 Conn. Supp. 546, 426 A.2d 814, 817 (1981).

One reason why the Restatement, this court, and other courts have not treated the six factors as independent tests is that the factors are a part of the overall policy balance that the decision maker must make and the fact that one factor is or is not met does not necessarily resolve the policy balance.

Perhaps in an attempt to reconcile the public policy aspects of trade secret law with its new use of the Abbott-Restatement factors as a test, the majority recognizes the role of public policy in trade secret cases, delineates the two overriding policy considerations (which were included in the instructions to the jury in this case), and then creates black-letter rules regarding the use of those policies.

*311 The first policy consideration is that the law should not and will not protect information if protecting the information would serve no useful economic or social purpose and might unnecessarily inhibit competition. Thus, this court has held that a customer list which is "merely the outgrowth" of normal marketing endeavors and is "nothing unique or confidential" should not be protected. Van Zeeland, supra, 84 Wis. 2d at 217; Abbott, supra, 33 Wis. 2d at 468.

The second policy consideration involves balancing the interests of the employer and the employee. Employers have an interest in protecting information which they have spent a great amount of time and effort gathering and which gives them a competitive advantage over other businesses. Employees have an interest in not protecting information because of their concern that protecting the information will limit their ability to find employment in the field in which they may have developed expertise. Employees should, upon termination of employment, be able in their new employment to draw upon their general knowledge, experience and skill, however acquired.

The majority appears to place this trade secret case within the first policy construct by holding that "to afford protection to insurance agency customer lists, which are developed in the normal course of business anyway, would be contrary to public policy." Supra p. 297. The majority misapplies this policy by apparently holding that all information developed in the ordinary course of business is "merely the outgrowth of normal marketing endeavors" and is "nothing unique or confidential,"^[7] and is therefore not protectable.

*312 Just as the majority's transformation of the Abbott-Restatement factors into flat rules conflicts with this court's prior case law, the majority's categorical denial of protection for information generated in the normal course of business regardless of the nature of the information is contrary to the Abbott-Restatement formulation of trade secret law and contravenes the public policy of this state as defined by the Wisconsin legislature.

The Abbott-Restatement formulation of trade secrets does not categorically deny trade secrets protection to information generated in the normal course of business. The Restatement describes a trade secret as "any formula, pattern, device or compilation of information which is used in one's business and which gives him [or her] an opportunity to obtain an advantage over competitors who do not know or use it." (Id. at p. 5, emphasis added) In addition, the six factors all relate to business information. 4 Restatement of Torts, sec. 757, comment b, p. 6 (1939). Since business information and information used in business are often generated in the normal course of business, I do not construe either Abbott or the Restatement as precluding protection for information generated in the normal course of business.

Similarly, the Wisconsin legislature's definition of a "trade secret" includes business information used or for use in business. The legislature does not exclude from the definition of "trade secret" information generated in the normal course of business. Sec. 943.205, Stats. 1979-80, which applies to both civil and criminal cases, defines trade secret as follows:

"`Trade secret' means the whole or any portion or phase of any scientific, technical, laboratory, experimental, development or manufacturing information, equipment, *313 tooling, machinery, design, process, procedure, formula or improvement, or any business information used or for use in the conduct of a business, which is manifestly intended by the owner not to be available to anyone other than the owner or persons having access thereto with the owner's consent and which accords or may accord the owner a competitive advantage over other persons." Sec. 943.205(2) (a), Stats. 1979-80 (emphasis added).

If the legislature authorizes punishment as a felony for the theft of information which might have been generated in the ordinary course of business, the majority's enunciation of public policy should not preclude civil protection of information generated in the ordinary course of business.

Just as the majority considers and misapplies this court's and the Restatement's policy of not protecting information that is "merely the outgrowth" of normal marketing endeavors, the majority considers and misapplies the second policy balance creating the framework of trade secret law, that of allowing employees job mobility while protecting employers from use of confidential information by former employees. In certain cases protecting customer information will be too great a restriction on the employee and will give the employer unjustified protection. See, e.g., the Van Zeeland case. However, this court's refusal to protect customer information in some cases should not determine the result of all cases since the decision maker could reach a different policy equilibrium in each case.

The evidence in this case did not necessitate the majority's conclusion that the protection of Hosch's mobility outweighs the protection of Corroon & Black's business. There was no evidence that protecting Corroon & Black's information would have had any impact at all on Hosch's employability in another insurance agency. There was much evidence that eliminating trade secret protection *314 for this information resulted in Corroon & Black's loss of the competitive advantage it had built up through its efforts. The jury made this balance, and the majority opinion gives no adequate explanation for the court's substitution of its conclusion for the jury's.

III.

The majority changes the standard of review of jury verdicts. Instead of using the established standard of review, which calls for deference to the jury verdict, the majority substitutes its conclusion for the jury's after analogizing the jury's determination in this case to an admi