Nielsen Consumer LLC v. Circana Group, L.P., 1:22-cv-03235

Background

NielsenIQ (market-research firm) and NPD (market-research firm owning the ReceiptPal panel/app) entered a 2018 Data and Intellectual Property License Agreement governing NPD’s provision of ReceiptPal data to NielsenIQ. NielsenIQ alleges misappropriation of confidential information and trade secrets and asserts claims including under the DTSA.
NPD commercialized non-CPG (general merchandise and food service) ReceiptPal-derived products; IRI is NielsenIQ’s primary competitor in the CPG sector. NPD announced a merger with IRI on April 7, 2022.
NielsenIQ moved for a preliminary injunction to block completion of the merger and to prohibit use/disclosure of NielsenIQ’s confidential information; the district court initially denied an injunction against the merger but imposed interim confidentiality commitments. NielsenIQ appealed.
The Second Circuit remanded under United States v. Jacobson, directing the district court to clarify its rationale, make explicit findings, and, if appropriate, specify enjoined acts. The district court solicited proposed findings on remand.
On remand the court: concluded NielsenIQ had not shown irreparable harm justifying enjoining the merger or spinning off ReceiptPal; found limited risk from a small set of specific documents; and entered narrowly tailored preliminary injunctive relief (CPG exclusivity, restricted access to NielsenIQ-contributed SharePoint/Trello materials, restricted access to CPG ReceiptPal data, and prohibition on use of identified NielsenIQ trade-secret documents). The court denied broader relief.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether merger completion should be enjoined to prevent irreparable harm to NielsenIQ’s exclusivity rights	Merger with IRI threatens irreparable harm because IRI is a primary CPG competitor and combined entity could use ReceiptPal to compete using NielsenIQ’s licensed CPG data	Agreement and NPD commitments protect NielsenIQ; any risk is manageable with narrow safeguards and monetary damages would be adequate	Denied full injunction against the merger; granted narrow injunctive measures enforcing exclusivity for CPG ReceiptPal data and operational restrictions to prevent misuse
Whether NielsenIQ’s proprietary information has been "embedded" in ReceiptPal such that any use of ReceiptPal data constitutes misappropriation (reverse-engineering theory)	NielsenIQ contends 14 categories of proprietary information were embedded into ReceiptPal via NielsenIQ’s contributions, so ReceiptPal use (even non-CPG) would misappropriate trade secrets	Agreement language permits NPD to use ReceiptPal improvements and non-CPG data; NielsenIQ’s construction is implausible given contract text and other provisions	Rejected broad reverse-engineering theory as unlikely to succeed; Agreement supports NPD’s right to use embedded improvements for non-CPG data
Whether certain specific documents (categories 9–11) in NPD’s possession risk misappropriation and require relief	Some documents voluntarily shared by NielsenIQ may contain proprietary trade secrets and, if used by the merged entity, could cause irreparable harm	Only a small number of such documents exist; NPD has secured them and sworn not to use or disclose them; risk is limited and manageable	Ordered NPD to secure and not use or disclose any identified NielsenIQ trade-secret documents; imposed restrictions but declined broader remedies like spin-off or merger enjoinment
Whether an evidentiary hearing was required before deciding the preliminary injunction	NielsenIQ suggested witness testimony could assist but did not formally request a hearing	NPD submitted affidavits and the parties litigated the motion on papers and declarations	No evidentiary hearing required; court found the written record and declarations sufficient and noted NielsenIQ forfeited any right to live testimony by not timely requesting one

Key Cases Cited

United States v. Jacobson, 15 F.3d 19 (2d Cir. 1994) (remand procedures for clarity in preliminary-injunction rulings)
Faiveley Transp. Malmo AB v. Wabtec Corp., 559 F.3d 110 (2d Cir. 2009) (preliminary injunctions must be narrowly tailored to specific violations)
Conn. State Police Union v. Rovella, 36 F.4th 54 (2d Cir. 2022) (standards for preliminary injunction factorization in the Second Circuit)
Fengler v. Numismatic Am., Inc., 832 F.2d 745 (2d Cir. 1987) (when factual disputes exist, an evidentiary hearing is required for preliminary injunctions)
Consol. Gold Fields PLC v. Minorco, S.A., 871 F.2d 252 (2d Cir. 1989) (a party may waive an evidentiary hearing by resting on affidavits)
Dexter 345 Inc. v. Cuomo, 663 F.3d 59 (2d Cir. 2011) (definition of irreparable harm and adequacy of monetary damages)
Waldman Pub. Corp. v. Landoll, Inc., 43 F.3d 775 (2d Cir. 1994) (injunction relief should avoid unnecessary burdens on lawful commercial activity)