The facts in question are, in summary, the communication of confidential business information, in breach of the confidentiality agreement. The agreement did not state which documents contained the confidential information. The judgment considers that the object of the confidentiality agreement clearly results from the fact that the infringer had access to the information on the operation of a hotel business after the signing of the confidentiality agreement. The confidential information consisted of valuation reports, the business plan prepared by a third party on behalf of the company that provided the confidential information to the defendant (with all the economic data of the hotel operation included therein) and the salary and professional data of the employees. This allowed the Respondent to prepare a business plan with precise data on income and expenses, as well as two offers on the rent to be paid for the hotel rental.

The defendant had all the data related to the exploitation of the hotel, obtained after the signing of the confidentiality agreement, allowing it to make a reasonable offer and to acquire, indirectly, all the shares of the company owning the exploitation of the hotel establishment.

The judgment considers it to be proven that the defendant, after having become aware of the commercial and economic data related to the operation of the hotel and making unlawful use thereof, by violating the confidentiality commitment, purchased through a related company the shares of the company that owns the hotel operation. Article 32.2. of the Trade Secrets Law provides that “the use or disclosure of a trade secret is considered unlawful when, without the consent of the owner, it is made (…) by anyone who has breached a confidentiality agreement or any other obligation not to disclose the trade secret, or by anyone who has breached a contractual or any other obligation limiting the use of the trade secret”. Thus, the current law considers as a violation of trade secrets the use of such secret information, when it has been made in breach of what has been established, as in this case, a confidentiality agreement. This type of infringement can be included in the exploitation of secrets referred to in art. 13 Unfair Competition Law. This leads us to consider that the defendant has incurred in the unlawful competition provided for in the former art. 13 UCL for exploiting the secrets obtained with a duty of confidentiality to make the offer to purchase the shares of the company operating the hotel. The defendant was ordered to pay compensation for the damages caused, which consisted of the loss of the hotel’s operating business, as well as the expenses related to the viability of the business.

SAP of Barcelona of May 20, 2022.