Nielsen Consumer LLC v. Circana Group, L.P.

Background

Nielsen Consumer LLC, doing business as NielsenIQ, sued The NPD Group, Inc. NielsenIQ asserted claims under the Defend Trade Secrets Act, breach of contract, and other common-law theories. The dispute centered on a 2018 Data and Intellectual Property License Agreement involving consumer data collected through NPD’s ReceiptPal application and panel.

NPD announced a planned merger with Information Resources, Inc. NielsenIQ sought a preliminary injunction—temporary court-ordered relief while the case continued—to prevent NPD from completing the merger until it provided adequate protections for NielsenIQ’s confidential data. NielsenIQ also sought to prevent NPD from using or disclosing its confidential information and trade secrets without written permission.

In May 2022, the court denied relief that would have blocked the merger but ordered NPD to comply with certain commitments concerning confidential information during the litigation. NielsenIQ appealed. The Second Circuit remanded for the court to clarify its reasoning and, if appropriate, specify the acts that should be enjoined. The parties then submitted proposed findings and legal conclusions. The court concluded that no evidentiary hearing was necessary because the agreement, undisputed facts, and written declarations were sufficient, and NielsenIQ had not adequately requested such a hearing.

Court’s Analysis

The court applied the standards for a preliminary injunction, including irreparable harm, a likelihood of success on the merits or sufficiently serious questions for litigation, the balance of hardships, and the public interest. It found that NielsenIQ had not shown irreparable harm requiring an order against the merger itself. The court determined that narrower restrictions could protect NielsenIQ while the case proceeded.

The court rejected NielsenIQ’s broad theory that many categories of proprietary information had become embedded in ReceiptPal as the service improved, meaning that NPD would misappropriate NielsenIQ’s information whenever it used ReceiptPal data, including non-consumer-packaged-goods data. The court stated that NielsenIQ was unlikely to succeed on that theory and found that the agreement’s better reading supported NPD’s ability to use embedded improvements in ReceiptPal, at least regarding non-consumer-packaged-goods data.

The court found more limited concerns regarding certain documents in three categories of allegedly proprietary information. The evidence showed that NPD possessed a small number of documents previously shared by NielsenIQ, but did not show that NPD had used or disclosed them in violation of the agreement. Because the documents were likely to contain NielsenIQ’s proprietary information and their use by a competing post-merger entity could potentially cause irreparable harm, the court ordered restrictions on those documents.

The court also concluded that monetary damages would likely adequately compensate NielsenIQ for broader harm that ultimately proved actionable. It found no showing that NPD had disseminated or was likely to disseminate NielsenIQ’s proprietary information, and stated that competitive injury involving ReceiptPal was likely reasonably measurable.

Order

The court ordered NPD, pending a decision in the case or further court order, to:

The court stated that NielsenIQ’s motion was granted in part and denied in part. It otherwise denied the requested preliminary-injunction relief, including relief that would have blocked the merger or required the merged entity to separate ReceiptPal. The opinion contains redacted passages, including portions describing the agreement and the specifically identified information.