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Spottiswoode v. Levine footnotes
FOOTNOTES******************************** {1} . Mr. Spottiswoode signed all pertinent documents on behalf of Down-East and Lake Brook in his capacity as president of both companies. {2} . The Spottiswoodes, Mr. Levine, Down-East, and Lake Brook signed the first commitment letter on May 14, 1993. Mrs. Levine signed the commitment letter on May 18, 1993. All six co-guarantors signed the guaranty on May 25, 1993. {3} . The ECOA provides that it is "unlawful for any creditor to discriminate against any applicant, with respect to any aspect of a credit transaction . . . on the basis of . . . marital status . . . ." 15 U.S.C. § 1691(a) (1994). Section 1691b of the ECOA grants the Board of Governors of the Federal Reserve System ("Board") the authority to "prescribe regulations to carry out the purposes of this subchapter." 15 U.S.C. § 1691b (1994). Pursuant to that authority, the Board promulgated Regulation B. See 12 C.F.R. § 202.1(a) (1999). Regulation B states, in pertinent part: "a creditor shall not require the signature of an applicant's spouse or other person, other than a joint applicant, on any credit instrument if the applicant qualifies under the creditor's standards of creditworthiness for the amount and terms of the credit requested." 12 C.F.R. § 202.7(d)(1) (1999). Regulation B also provides: If, under a creditor's standards of creditworthiness, the personal liability of an additional party is necessary to support the extension of the credit requested, a creditor may request a cosigner, guarantor or the like. The applicant's spouse may serve as an additional party, but the creditor shall not require that the spouse be the additional party. 12 C.F.R. § 202.7(d)(2). As a specific remedy for violations of the act, the ECOA authorizes a federal civil action against the creditor for damages, punitive damages, and attorney fees. See 15 U.S.C. §§ 1691e(a), (b), (d) (1994). The ECOA also authorizes a court to issue "equitable and declaratory relief as necessary" to enforce the requirements of the act. 15 U.S.C. § 1691e(c) (1994). "Many cases have utilized [section 1691e(c)] as authority for allowing a debtor to assert violations of the ECOA as a counterclaim for recoupment or as an affirmative defense to collection actions, even after the running of the two[-]year statute of limitations." Hammons v. Ehney, 924 S.W.2d 843, 852 (Mo. 1996). However, such cases "dealt with claims made against the actual lenders or those standing in the lenders' shoes." Id. {4} . The Levines claim that the trial court erroneously failed to make factual findings as to the expiration of their guaranty. They contend that Mr. Spottiswoode assumed sole liability on the note and discharged them as guarantors when he renewed the line of credit commitment without their authorization. The Levines also argue that, "[e]ven if there was no total discharge, Mr. Spottiswoode's actions should have estopped him from seeking recovery of sums advanced after the line expired." {5} . 10 M.R.S.A. § 1542 (1997) provides: § 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 its 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} . Some factors a court may examine to determine whether the information "[d]erives independent economic value . . . from not being generally known [or] readily ascertainable," 10 M.R.S.A. § 1542(4)(A), include: (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. See, e.g., Moore v. Marty Gilman, Inc., 965 F. Supp. 203, 217 (D. Mass. 1997); Jet Spray Cooler, Inc. v. Crampton, 282 N.E.2d 921, 925 (Mass. 1972); Picker Int'l Corp. v. Imaging Equip. Servs., Inc., 931 F. Supp. 18, 23 (D. Mass. 1995). {7} . Some factors a court may examine to determine whether the information "[i]s the subject of efforts that are reasonable under the circumstances to maintain its secrecy," 10 M.R.S.A. § 1542(4)(B), include: (1) the extent to which the information is known outside the plaintiff's business; (2) the extent to which employees and others involved in the plaintiff's business know the information; (3) the nature and extent of measures the plaintiff took to guard the secrecy of the information; (4) the existence or absence of an express agreement restricting disclosure; and (5) the circumstances under which the information was disclosed to any employee, to the extent that the circumstances give rise to a reasonable inference that further disclosure without the plaintiff's consent is prohibited. See, e.g., Moore, 965 F. Supp. at 217; Jet Spray Cooler, Inc., 282 N.E.2d at 925; Picker Int'l Corp., 931 F. Supp. at 23.
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