## Facts

- James G. Bernier worked as an engineer for Merrill Air Engineers from 1988 until resigning in March 1997 under an agreement that included a commission program and a nondisclosure clause.
- In 1993, Merrill announced a 3% commission program, reserving the right to change or end it at the president’s discretion.
- In 1996, Merrill communicated that commissions would be paid “if the cash is available” when the job closed out and the engineer was still employed, and commissions were often paid periodically in lump sums.
- When Bernier left Merrill, he had earned three commissions that had not been paid; he demanded payment in writing, and Merrill responded that it would assess cash flow but did not pay.
- During his Merrill employment, Bernier worked on a confidential proposal and design for an industrial dryer for Henry Molded Products, which committed to purchase Merrill’s design.
- After resigning, Bernier took a job with Henry; Henry canceled its order with Merrill.
- While at Henry, Bernier designed a dryer found to be similar to Merrill’s design and to have used Merrill’s confidential or proprietary design information.

## Issues

1. Whether Bernier’s earned commissions were payable upon separation or were excused by an alleged “cash availability” condition, and whether treble damages and attorney’s fees were authorized under Maine’s wage payment statute, 26 M.R.S.A. § 626.
2. Whether Bernier breached the employment agreement’s nondisclosure clause by using Merrill’s confidential information for Henry, and whether the trial court improperly amended pleadings to reach that result.
3. Whether Bernier misappropriated a “trade secret” under Maine’s Uniform Trade Secrets Act (UTSA), 10 M.R.S.A. §§ 1541–1548.

## Decision

- The Maine Supreme Judicial Court affirmed the judgment in full.
- It upheld the award to Bernier for unpaid commissions and affirmed trebling and attorney’s fees under 26 M.R.S.A. § 626.
- It upheld the finding that Bernier breached the nondisclosure clause and affirmed damages awarded to Merrill for that breach.
- It affirmed the rejection of Merrill’s UTSA claim, concluding the information at issue did not qualify as a statutory trade secret.
- It rejected Bernier’s procedural challenge, holding the trial court acted within its discretion in treating the issues as tried and argued and conforming the pleadings to the evidence.

## Legal Principles

- Earned commissions constitute wages subject to Maine’s wage payment statute, and an employer that withholds due wages without a bona fide dispute may be liable for treble damages and attorney’s fees under 26 M.R.S.A. § 626.
- Contractual nondisclosure provisions may protect confidential or proprietary business and technical information even when that information does not satisfy the UTSA definition of a trade secret.
- UTSA liability requires proof that the information meets the statutory requirements for a “trade secret” (including secrecy and independent economic value from not being generally known) and that it was misappropriated.
- A trial court may conform pleadings to the evidence when an issue has been actually litigated at trial, and doing so is reviewed for abuse of discretion.

## Conclusion

The court held that Merrill owed Bernier earned commissions and properly incurred treble damages and attorney’s fees for nonpayment, that Bernier breached his nondisclosure obligations by using Merrill’s confidential dryer-design information for a new employer, and that the same information was not a UTSA trade secret.


Bernier v. Merrill Air Eng’rs, 770 A.2d 97 (Me. 2001)