Given the increasing number and quality of fine posts about trade secret, non-compete and cybersecurity issues, I am resurrecting my regular updates post  (although it will be monthly rather than weekly).  Without further adieu, here are the noteworthy posts of the past month:

Defend Trade Secrets Act:

  • With the recent passage of the 1-year anniversary of the DTSA, there have been a number of interesting posts that have detailed compilations about the cases filed with DTSA claims over the past year.    Professor David Opderbeck of Seton Hall has an interesting guest post for Patently O and Fish & Richardson’s Claire Collins, Jeffrey Schneidman and Carol Simons have some noteworthy statistics in their Litigation Blog as well.
  • Finnegan’s John Williamson, Paula Miller and Jon Self have a guest post nicely summarizing the extra-territorial reach of the DTSA and other statutes for the IP Watchdog.
  • Robert Milligan and Josh Salinas offer their take on likely developments for the DTSA in its second year in Seyfarth’s Trading Secrets Blog.
  • Maxwell Goss has a post that suggests that reports of the death of the inevitable disclosure doctrine under the DTSA may be greatly exaggerated in his Law and the Creative Economy Blog.

Continue Reading Monthly Wrap Up (June 16, 2017): Noteworthy Trade Secret, Non-Compete and Cybersecurity Posts from the Web

Here are the noteworthy trade secret, non-compete and cybersecurity stories from the past week, as well as one or two that I missed over the past couple of weeks:

Trade Secret and Non-Compete Cases. Posts and Articles:

  • “Seagate Technology Recoups $630 Million Trade-Secrets Award” reports Business Week.  A Minnesota state appeals court has ruled that an arbitrator didn’t exceed his authority in awarding Seagate $525 million (and an additional $105 million in interest) in its trade secret dispute with Western Digital and a former Seagate employee. The arbitrator had found that some of the defendants’ evidence was fabricated regarding three of the trade secrets at issue and entered judgment against Western and the employee, Sining Mao, as a sanction.
  • “Even Preparing To Compete In Texas May Be Prohibited During A Non-Competition Covenant Period” advises Paul Freehling for Seyfarth Shaw’s Trading Secrets Blog.  Rob Radcliff also has a post on this decision, “Anti-Planning Provisions – A New Non-Compete Weapon?” in his Smooth Transitions Blog.
  • And speaking of Texas, “Physician Noncompetition Agreements May Be Challenged More Often After Recent Texas Appellate Decision” warns Randy Bruchmiller for Seyfarth Shaw’s Trading Secrets Blog.
  • “Five Year Non-Compete Enforced In Indiana” reports Peter Steinmeyer for Epstein Becker’s Trade Secrets & Noncompete Blog.
  • For the latest on non-compete legislation in Massachusetts, see “Massachusetts Noncompete Bill – Hearing Date” by Russell Beck in his Fair Competition Law Blog.  Seyfarth Shaw’s Erik Weibust also has a post on the legislation.
  • The Southern District of New York has recently held “Marketing Concepts Are Not Trade Secrets” advises Eric Ostroff in his Trade Secrets Protection Blog.
  • In “Don’t Chase Your Tail in Pursuit of the “Perfect Non-Compete,” Michael Greco offers some sound and practical advice in Fisher & Phillips’ Non-Compete and Trade Secrets Blog.
  • “The Line Between Trade Secrets and Patents: Getting Dual IP Coverage on the Same Technology” recommends Matthew Poppe and Morvarid Metanat for Orrick’s Trade Secrets Watch Blog.
  • “Myriad’s Trade Secret Trump Card: The Myriad Database of Genetic Variants” reports Courtenay Brinckerhoff of Foley & Lardner for JDSupra Law News.
  • “The next controversy in genetic testing: clinical data as trade secrets?” ask Robert Cook-Deegan, John M. Conley, James P Evans and Daniel Vorhaus for The European Journal of Human Genetics.
  • “The Business End Of The ‘Snowden Lessons'” reports Anne Sutton of Dentons and Erik Laykin of Duff & Phelps Corp. for Law360.
  • “More Answers To Your Noncompete Questions” provides Donna Ballman for her Screw You Guys, I am Going Home Blog.
  • “Texas Public Information Act: Shielding Your Company from the Open Records Sword” advises Jack Skaggs of Jackson Walker for JDSupra Law News.
  • In “Trade Secrets Whistleblower SLAPPed In Effort to Dismiss Lawsuit,” Ken Vanko reports on the recent dismissal of a whistleblower claim brought against Anhueser-Busch in his Legal Developments in Non-Competition Agreements Blog.  For more on this case, see my post from the spring.

Cybersecurity Posts and Articles:

  • Looking to limit others from digitally eavesdropping you?  Then check out “Digital Tools to Curb Snooping” by Somni Semgupta for The New York Times Bigs Blog.
  • “U.S. Cybersecurity Plan Not Designed To Increase Regulation, Officials Say” claims Bloomberg BNA.
  • “How America Is Fighting Back Against Chinese Hackers” advises Adam Clark Estes for Gizomodo.

Computer Fraud & Abuse Act Posts and Articles:

  • “MIT Intervenes In Release Of Aaron Swartz Case Details” reports Gerry Smith for The Huffington Post.

Here are the noteworthy trade secret, non-compete and cybersecurity stories from the past week, as well as one or two that I missed over the past couple of weeks:

Trade Secret and Non-Compete Cases. Posts and Articles:

  • “Connecticut Governor Vetoes Noncompete Statute Passed By Legislature,” reports Daniel P. Hart for Seyfarth Shaw’s Trading Secrets Blog. Last Friday, Governor Dannel P. Malloy vetoed Public Act No. 13-309, sending the bill to the legislature with a letter noting his concerns about a lack of clarity in the final version of the bill. The bill essentially required employers to provide some reasonable notice of a non-compete to an employee or prospective employee.  David Popick has a post for Epstein Becker’s Trade Secrets & Noncompete Blog, as does Russell Beck in his Fair Competition Blog.
  • “Texas Appeals Court Guts $40M Energy Trade Secret Verdict” against Southwestern Energy Group, reports Law360.
  • “Elevator Sales Company and Former Employee in Interesting Non-Compete Fight,” reports Jonathan Pollard in the non-compete blog.
  • “Are WWE Wrestling Results Trade Secrets?” asks Eric Ostroff in his Trade Secrets Protection Blog.
  • “Recent Conflicting Decisions Make It Potentially Easier and Harder to Enforce Non-Competition and Non-Solicitation Covenants,” advises Choate Hall & Stewart’s Employment and Benefit Group for JDSupra.
  • “Using Covenants Not to Compete in the Health Care Industry Part 1 – Understand the Basics,” advises Lee A. Spinks from Poyner Spruill.
  • And while on the topic of non-competes and doctors, “Judges giving departing doctors new leverage,” reports Claire Bushey for Crain’s Chicago Business.
  • “Restaurant Wars: Restrictive Covenants for Chefs & Tandoori Chicken Tikka,” reports Daniel Schwartz for the Connecticut Employment Law Blog.
  • “California officials wrestle with handling trade secrets on fracking,” reports The Los Angeles Times.
  • “Benefits of Early Discovery in Defending Trade Secret Misappropriation Claims,” advise Brent J. Gurney, Joshua T. Ferrentino and Alexander B. White for The New York Law Journal.
  • “Factors to Consider in Cross-Border Trade Secret Protection,” recommends The IP Exporter.
  • “Smoking Gun or Blowing Smoke? Five Tips to Make Sure That Computer Forensic Evidence of Trade Secret Theft Is What You Think It Is,” advise Thomas Gray and Elizabeth McBride for Orrick’s Trade Secrets Watch.
  • “My Issue With PRATSA: The Rule of Lenity,” argues Kenneth Vanko in his Legal Developments in Non-Competition Agreements Blog.
  • “Please, Do Not Trust Your New Employer to Interpret Your Non-Compete Clause,” pleads Laura Ellerman for Frith & Ellerman’s Virginia Non-Compete Law Blog.
  • “Money, Money, Money: Top 10 Trade Secret Verdicts,” reports Rob Shwartz and Cam Pham for Orrick’s Trade Secrets Watch.
  • “Five Things to Consider When Hiring an Employee From a Competitor,” recommends Benjamin Fink for Berman Fink Van Horn’s Georgia Non-Compete & Trade Secrets Report Blog.

Cybersecurity Posts and Articles:

  • “U.S., Firms Draw a Bead on Chinese Cyberspies,” reports The Wall Street Journal. This fascinating articles details the recent cooperation between the Obama Administration and various technology and internet companies.
  • “Nations Buying as Hackers Sell Computer Flaws,” reports The New York Times.
  • “Cybersecurity Pros Call For Federal Breach Notification Law,” advises Law360.

Here are the noteworthy trade secret, non-compete and cybersecurity stories from the past week, as well as one or two that I missed over the past couple of weeks:

Trade Secret and Non-Compete Cases. Posts and Articles:

  • There has been an uptick in media coverage and criticism of non-competes this week, which dovetails with the growing legislative efforts in several states to limit or restrict the use of non-competes.  “More firms requiring non-compete agreements: Efforts to retain employees being tested in courts, statehouses,” reports Jonnelle Mart for The Wall Street Journal’s Market Watch. Likewise, The Los Angeles Times has chimed in, “Contracts, court rulings giving employers legal upper hand: Emboldened by Supreme Court decisions and a weak job market, employers are starting to require workers to sign away their rights in return for a job.”
  • “Legally Smited Eaton Asks Supreme Court of Mississippi to Reinstate Civil Trade Secret Theft Case Against Five Former Employees,” reports Todd Sullivan in his Sullivan’s Trade Secrets and Employee Defections Blog.
  • Texas “Appeals Court OKs Extension Of Insurer’s Noncompete Deal,” advises Law360.
  • “Can Confidential Info That’s Not a Trade Secret Be Misappropriated?” asks Eric Ostroff in his Protecting Trade Secrets Blog as he discusses a recent case out of Arizona.
  • Jon Cavicchi is ramping his Trade Secrets Vault Blog back up. Check out his many new posts, including his re-posting of some valuable advice on “Implementing a Trade Secret Audit.”
  • “Is An Assigned Non-Compete Agreement Enforceable?” asks Monika Vyas Scott for Burr & Forman’s Non-Compete Trade Secrets Law Blog and she summarizes the law in states throughout the Southeast.
  • For those looking for more on the Illinois Appellate Court’s recent decision that an employee must be employed at least two years for a non-compete to be enforceable, Kenneth Vanko is not quite yet done venting about the reasoning in Fifield v. Premier Dealer Services.
  • “Scientist pleads guilty in Pa. trade secrets case” reports Associated Press. Tung Pham, who was charged with stealing trade secrets from his employer to take to a competitor in China, pleaded guilty in federal court in Philadelphia to seven counts of wire fraud, prosecutors said last week.
  • “Medtech inventor claims Ethicon lawyer tricked him into divulging trade secrets” advises the Massachusetts Medical Device Journal. Todd Sullivan also provides his take on the case here.
  • For tips on dealing with whistleblowers and trade secrets, check out Robert Milligan’s post “An Employee Is Stealing Company Documents…That Can’t Be Protected Activity, Right?” for Seyfarth Shaw’s Trading Secrets Blog.
  • “When An Employee Goes ‘Snowden:’ State High Court To Decide If An Employer Can Be Liable For A Rogue Employee’s Disclosure of Confidential Information,” reports Joe Wilson for Kelley Drye’s DC Metropolitan Business Law Alert.
  • “iPads and Blackberries: The Hidden Dangers for Employers,” warns Amy Dehnel for Berman Fink Van Horn’s Georgia Non-Compete & Trade Secrets Reporter.
  • For a primer on “Health Care Non-Compete Agreements,” in Tennessee, check out Cole Dowsley’s post for Thompson Burton’s Litigation & Dispute Resolution Blog.

Cybersecurity Posts and Articles:

  • “NIST Releases Draft Outline of Cybersecurity Framework for Critical Infrastructure,” notes the National Institute of Standards and Technology’s Tech Beat.
  • For two completely different takes on recent testimony before the House Energy and Commerce Oversight Subcommittee yesterday, compare “China Bears Burden Of Stopping IP Theft, Panel Hears,” from Law360 with “U.S. Defenses ‘Feeble’ against Chinese Cyber Threat, Experts Testify,” from Main Justice.
  • “Report Details Data Breaches in California,” advises Cheryl Miller for Corporate Counsel.
  • “US, China kick off annual dialogue with talks on cybersecurity,” reports The Washington Post.
  • “You Aren’t Using These 10 Simple Security Settings,” laments Jess Fee for Mashable.

Here are the noteworthy trade secret, non-compete and cybersecurity stories from the past week, as well as one or two that I missed over the past couple of weeks:

Trade Secret and Non-Compete Posts and Articles:

  • A Pennsylvania Court of Appeals has rejected the two-prong test (objective test of speciousness and subjective test for bad faith) used by many federal courts for an award of attorneys fees for a bad faith trade secrets action under the Pennsylvania Uniform Trade Secrets Act reports Law360. In Kraft v. Downey, the Superior Court reversed a trial court’s dismissal of a claim for attorneys fees by the defendants, even though the plaintiffs prevailed at trial on other claims. (A hat tip to Mark Grace for forwarding the opinion to me).
  • Ericsonn and Airvana have reached an agreement in principle to settle their trade secrets case, Bloomberg is reporting. Airvana had secured a preliminary injunction in New York Supreme Court that had threatened to disrupt a $3 billion opportunity with Sprint and had resulted in Airvana’s claim that Ericsonn had violated the injunction. For more on the case and injunction, see my March post here.
  • For the latest involving the prosecution of Walter Liew for the alleged theft of DuPont’s titanium dioxide trade secrets, see “Feds Say Execs Can’t Ax DuPont Trade Secrets Charges,” as reported by Law360.
  • “Using Computer Forensics to Investigate IP Theft,” advise Sid Venkatasen and Elizabeth McBride for Law Technology News.
  • “Kentucky Court Finds No Insurance Coverage for Trade-Secrets Claim,” reports Eric Ostroff in his Trade Secrets Law Blog.
  • “Massachusetts Federal Court Takes Jurisdiction Over ‘One-Man’ Georgia Corporation Whose Agent Allegedly Stole Trade Secrets in Massachusetts,” reports Brian Bialas for Foley & Hoag’s Massachusetts Noncompete Law Blog.
  • “Recapping the Latest Blue Belt Tech. Non-Compete Dispute (This Time vs. Stryker),” summarizes Jonathan Pollard for the non-compete blog.
  • “Act On Clarifying Ownership of Work-Related Social Media Accounts Before You Become ‘Dinner,'” recommends Daniel Schwartz in his Connecticut Employment Law Blog.
  • If you are into podcasts, check out, “The Administration is Focused on Preventing Trade Secrets Misappropriation. Your Business Should Be, Too,” by Victoria Cundiff of Paul Hastings.
  • “Proposed Non-Compete Legislation in Connecticut Follows Legislative Trend” advises Kenneth Vanko in his Legal Developments in Non-Competition Blog.
  • If you are interested in more on the $44 million verdict in the Wellogix/Accenture dispute, check out “I Thought We Broke Up Years Ago! Why You Should “Throw Out” Trade Secrets As Soon As A Business Relationship Ends” by Matthew Kugazaki and Valerie Goo for Orrick’s Trade Secrets Watch and Eric Ostroff’s “A Cautionary Tale About Sharing Trade Secrets With Consultants — Fifth Circuit Affirms $44 Million Verdict.”

Cybersecurity Posts and Articles:

  • “California law would require breach notice if online account information is stolen,” reports Dan Kaplan for SC Magazine.
  • “Cyber Compliance: Hiring a Cybersecurity IT Firm for Rookies,” advises Christopher Matthews for The Wall Street Journal’s Risk & Compliance Reporter.
  • “Why CISPA is a global problem,” warns TechnoLlama.
  • “Data Breach – Your Organization Needs a Plan” recommends Nicole Reiman of Schnader Harrison Segal & Lewis LLP for JDSupra.
  • “Corporate Security’s Weak Link: Click-Happy CEOs: Top Bosses, Exempt From Companywide Rules, Are More Likely to Take Cyber-Attackers’ Bait,” reports The Wall Street Journal. For more on Spearphishing (or attacks geared towards senior executives better known as whaling, see my post here).
  • “GSA, DOD Solicit Advice On Revamping Cybersecurity,” advises Kathryn Brenzel for Law360.

Computer Fraud and Abuse Act Posts and Cases: 

  • “Applying Georgia Long-Arm Statute, Eleventh Circuit Finds No Personal Jurisdiction Based on Internet Activity” in a CFAA dispute, courtesy of Colin Freer for Berman Fink Van Horn’s Georgia Non-Compete and Trade Secret News Blog.

01042013Here are the noteworthy trade secret, non-compete and cybersecurity stories from the past week, as well as one or two that I missed over the past couple of weeks:

Trade Secret and Non-Compete Posts and Articles:

  • Bloomberg has received withering criticism for allowing the presumably confidential information of its customers to be viewed (and most likely used) by its reporters. Last week, Bloomberg said it had now restricted its journalists from accessing information about terminal subscribers, including when they last logged on, when they subscribed and how often they accessed features like news or the chat function. CNBC, The New York Times and The Wall Street Journal all have comprehensive articles on the scandal. Bloomberg’s troubles underscore the challenges of maintaining ethical screens and walls between business units who have potentially divergent interests over confidential information. 
  • “Credit Suisse says ex VP stole trade secrets in move to Goldman,” reports Reuters
  • “5th Circ. Affirms $44M Wellogix Jury Award In Trade Secret Spat,” reports Law360.
  • “Trade Secret ‘Watch List’: Bill Would Establish Monitoring List of Countries Engaging in Cybertheft, and Make U.S. Intelligence Czar the Point Person,” reports Robert Isaackson for Orrick’s Trade Secrets Watch.
  • “New Massachusetts Superior Court Noncompete Decision Discusses the ‘Material Change’ Defense and Shows the Benefit to Employers of Having a ‘Material Change’ Clause in Noncompete Agreements,” advises Brian Bialas for Foley & Hoag’s Massachusetts Noncompete Law Blog.
  • Josh Durham reports on the latest non-compete involving a doctor, “NC Court of Appeals Orders Injunction In OB-GYN Covenant Not To Compete Case,” for Poyner Spruill’s Under Lock & Key Blog.
  • And while we are talking about physician non-competes, the recent $39 million “Tuomey verdict could make hospitals more cautious in doctor contracts,” advises Adam Kerlin for Reuters.
  • “Florida Court Discusses Trade Secrets in Discovery,” reports Solomon Genet for the Trade Secrets Law Blog.
  • “Show Me the Money – Injunctions are Not Cheap,” warns Rob Radcliff in his Smooth Transitions Blog.
  • “You Can’t Reverse Blue-Pencil a Non-Compete,” advises Kenneth Vanko in his Legal Developments in Non-Competition Agreements Blog.
  • “Trade Secrets Law Still Murky in Georgia Courts,” reports Alyson Palmer for Corporate Counsel.
  • Fracking and trade secrets remain a combustible combination, as Law 360 reports that, “Enviros Must Show Need To Get Trade Secret Docs: Pa. Court.”
  • For an excellent summary of the key points of the new Texas Uniform Trade Secrets Act, see, “Texas Trade Secrets Law Gets Business-Friendly Upgrade,” by Jesse Davis for Law360.
  • A recent study finds that over 90% of innovative products are never patented, reports Eric Ostroff in a recent post for his Trade Secrets Law Blog. According to Eric, the study looked at the “R&D 100 Awards” to reach its conclusions. The results of this study of course reinforce the importance of making sure your trade secret protections are adequate.
  • Attention eBay shoppers: “Coca Cola’s secret formula for sale for 15 million dollars,” reports DailyBhaskar.com

Cybersecurity Posts and Articles:

  • The theft of nearly $45 billion was from New York banks by cyberthieves was widely reported in the past week. For an analysis of the legal fallout, see, “Lessons From the New York ATM Heist,” by Jason Weinsten for Steptoe’s Cyberblog.
  • “Legal Showdown on Cybersecurity: Hotelier Wyndham Challenges FTC’s Authority to Police Corporate Data Practices,” reports The Wall Street Journal.
  • “Cyberattacks Against U.S. Corporations Are on the Rise,” reports The New York Times.
  • “‘Bring Your Own Device’ is Evolving from a Trend to a Requirement,” advises Arik Hesseldahl for All Things Digital
  • “Hacking back: Digital revenge is sweet but risky,” advises Melissa Riofrio for PCWorld.  

Computer Fraud and Abuse Act Posts and Cases:

  • “No Damages? Illinois Federal Court Tosses Computer Fraud and Abuse Act Claim Alleging Hacking of Law Firm Network,” reports Paul Freehling for Seyfarth Shaw’s Trading Secrets Blog.
  • “Should Lying About Your Age Online Be a Federal Crime?” asks Peter Torren in an article for Corporate Counsel.

Here are the noteworthy trade secret, non-compete and cybersecurity stories from the past week, as well as one or two that I missed over the past couple of weeks:

Cybersecurity Posts and Articles:

  • Well, it’s official: “U.S. Blames China’s Military Directly for Cyberattacks,” reports The New York Times. Also see “PENTAGON: Chinese Hackers Have Stolen Data From ‘Almost Every Major U.S. Defense Contractor,'” asserts The Business Insider, “Pentagon report says U.S. computer hacking ‘appears to be attributable’ to Chinese government,” reports The Verge and “U.S. Says China’s Government, Military Used Cyberespionage,” reports The Wall Street Journal.
  • “A cybersecurity primer for legal departments: Understanding the basic terms and concepts needed to protect your company from cyber attacks” by David Lim for Inside Counsel.

Trade Secret and Non-Compete Posts and Articles:

  • Less than two months after its introduction, Texas has adopted the Uniform Trade Secrets Act effective Sept. 1, 2013, reports Orrick’s Trade Secrets Watch Blog. It appears that the version adopted is similar to that proposed by Dallas State Senator John Carona and will include a presumption in favor of granting protective orders to protect trade secrets in litigation, including limiting access to confidential information to attorneys and their experts. (For more on the proposed statute, see my post earlier this year as well as Robert Milligan’s recent post).
  • Connecticut is joining the list of states tinkering with their non-compete laws, advises Daniel Schwartz in his Connecticut Employment Law Blog.  In “Bill Targets Non-Compete Agreements But Would Also Create New Cause of Action,” Daniel reports that the bill allows “reasonable” non-competes but would permit an aggrieved employee the right to sue if the non-compete was unreasonable or the employee was not provided with at least 10 days to consider the non-compete before signing it.
  • “Chinese Couple Sentenced to 3 Years and 1 Year for Theft of GM Hybrid Technology,” advises Todd Sullivan in his Trade Secrets Blog.
  • And in another prosecution, “Ex-Frontier Chemist Dodges Prison For Disclosing Recipes,” as Law360 reports that the U.S. District Court for Utah sentenced Prabhu Prasad Mohapatra to time served — three days — and ordered him to pay $3,435 in restitution.
  • “Georgia Supreme Court Rejects Independent Claim for Inevitable Disclosure of Trade Secrets,” reports Eric Ostroff in his Trade Secrets Law Blog.  Kenneth Vanko has a post on the case as well in his Legal Developoments in Non-Competition Agreements Blog.
  • Eric Ostroff also has a fine post entitled “Five Ways to Protect Trade Secrets When an Employee Departs.”  If you have not bookmarked Eric’s blog, you should as he is churning out very good content regularly.
  • Those in Pennsylvania should be aware of a decision out of the U.S. Eastern District of Pennsylvania reports the Employee Discrimination Reporter. In De Lage Landen v. Thomasian, the District Court refused to enforce a non-compete despite proof that the former employee had breached a non-solicitation provision by approaching a former colleague. The court reasoned that the parties were not sufficient competitors, there was no showing of future harm, money damages were available, and therefore no irreparable harm was present.
  • “Fracking and Trade Secrets: An Introduction,” advises Kenneth Vanko in his Legal Developoments in Non-Competition Agreements Blog.
  • “Fisher/Unitech (Basically) Loses Non-Compete Fight Against Former Sales Exec,” advises Jonathan Pollard for the non-compete blog.
  • “Doctor Non-Solicitation Agreement Not Supported By Legitimate Business Interest,” reports Zach Jackson for Epstein Becker’s Trade Secrets & Noncompete Blog.
  • “Employers Slow To Guard Data Amid Social Media, Tech Boom,” bemoans Erin Coe for Law360.
  • “Data Security Policies and Procedures Still Lacking,” warns Catherine Dunn for Corporate Counsel.
  • In “Unleashing job hoppers could give economy a bounce,” Reynolds Holdings posits in an article for Reuters that releasing unemployed workers from their non-competes might help the economy.
  • “China Non-Competes. The Basics Have Become Clearer,” advises Dan Harris in his China Law Blog.

Computer Fraud and Abuse Act Posts and Cases:

  • “California Federal Court Dismisses Computer Fraud and State Unfair Competition Claims Alleged Against Ex-Employees Accused Of Stealing Computer Source Code,” reports Paul Freehling for Seyfarth Shaw’s Trading Secrets Blog.
  • “Programmer Arrested For Cyberattack On Ex-Employer,” reports Law360.
  • “Use a Software Bug to Win Video Poker? That’s a Federal Hacking Case,” proclaims Kevin Paulson for Wired.
  • “Who’s at Fault for the CFAA Mess? Blame Congress,” sighs Brian Bialas for Foley & Hoag’s Massachusetts Noncompete Law Blog. Sounds good to me.

Wow, it was a busy week. Here are the noteworthy trade secret, non-compete and cybersecurity stories from the past week, as well as one or two that I missed over the past couple of weeks:

Trade Secret and Non-Compete Posts and Articles:

  • Federal prosecutors were dealt a severe blow in the Economic Espionage Act case brought against affiliates of the Pangang Group (a company with ties to the Chinese government), as U.S. District Court Judge Jeffrey White quashed summons against them in the U.S. v. Liew case.  As reported by Bloomberg and Law360, this is the second time that summons have been quashed and it increasingly appears that the government will not be able to serve, let alone prosecute, these companies for their alleged role in the theft of DuPont’s titanium dioxide trade secrets.
  • “New Jersey Legislators Propose Banning Non-Compete Agreements With Employees Who Can Claim Unemployment,” reports Jessica Mendelson for Seyfarth Shaw’s Trading Secrets Blog. Also see Law360’s article, “NJ Bill Targets Noncompete Restrictions On Unemployed.”
  • Honey, I stole the trade secrets!  “Can an Employee Use a Spouse to Circumvent Restrictive Covenants? Georgia Court of Appeals Says ‘No,'” advises Amy Dehnel for Berman Fink Van Horn’s Georgia Non-Compete and Trade Secret News.
  • “Merrill Lynch Says Ex-Advisers Stole Client Info,” reports Law360, when they joined competitor Wells Fargo.
  • “Wisconsin Researcher Accused of Economic Spying for China,” reports Bloomberg.
  • “Plaintiff’s Foreign Operations Result in ‘Lessened’ Deference to Choice of Home Forum in Trade Secret Misappropriation Case,” advises John C. Law, Ph.D. of McDermott Will & Emery for the National Law Review.
  • “Frisby-Eaton Whistleblower Settles with Frisby, Tolling Agreement Persists with Eaton,” advises Alison Grant for The Plain Dealer and Todd Sullivan for his Trade Secrets Blog.
  • “Get Smart About Noncompetes,” advises Alan Bush for The Texas Lawyer.
  • Don’t forget the importance of “Trade Secrets and Due Diligence,” a reminder by Eric Ostroff for his Trade Secrets Law Blog.
  • For a recent non-compete case out of Florida’s Fifth District Court of Appeal, see “A Court’s Order Must Comply With The Restrictive Covenant It Seeks To Enforce,” by Kain & Associates’ ComplexIP.com.
  • “Enforcing a Non-Compete Agreement in Florida: What Evidence is Relevant?” asks Jason Cornell for Fox Rothschild’s South Florida Trial Practice Blog.
  • “Non-competes: HR’s version of the Prenup,” proclaims Steve Boese for Fistful of Talent.
  • “5 Privacy and Data Security Measures That Can Protect Your Company Against Trade Secret Theft,” recommends Lindsey Tonsager for Covington’s Inside Privacy Blog.
  • Kenneth Vanko has the first of three posts on why certain non-compete and trade secrets cases may not settle for his Legal Developments in Non-Competition Agreements Blog.
  • And for the litigators, “Don’t Forget about E-Discovery When Moving to The Cloud,” advises Jay Yurkiw for Porter Wright’s Technology Law Source Blog.

Cybersecurity Posts and Articles:

  • As many of you may have noticed last week, The Wall Street Journal launched a Risk & Compliance Reporter that will cover, among other things, developments in cybersecurity.  It is worth bookmarking. To that end, here is one of the introductory posts, “Three Tactics for Cyber defense” by Mark G. Graff.
  • “How To Mitigate The IP Risks Of Data Breaches,” advises Carol Anne Been and Andy Blair of Dentons for Law360.
  • In an op-ed piece for The New York Times “Closing the Door on Hackers,” Marc Maifret, CTO for BeyondTrust wonders whether software companies are incentivized to allow hacking.
  • “Insider Theft: the Real Cyber Threat?” asks The Wall Street Journal’s Corruption Currents Blog.  The post quotes Mike Dubose of Kroll as estimating the average time between an internal breach and its discovery is 32 months.
  • “As more hackers target lawyers, here’s how to protect client data,” recommends Rachel Zahorsky for the ABA’s Techshow.
  • “U.S. Undersecretary to Discuss Hacking With Chinese Officials,” reports Bloomberg.
  • “Silicon Valley Fights Restrictions on Chinese Tech,” reports The Wall Street Journal.
  • “A Different Approach To Foiling Hackers? Let Them In, Then Lie To Them,” recommends Andy Greenberg for Forbes. (And don’t forget to at least buy them a drink).

Computer Fraud & Abuse Act Posts and Cases:

  • The trial in the prosecution of David Nosal is underway in San Francisco and expected to go about 12 days. Here are some of the articles covering it: “In High-Tech Hacking Trial, a Battle of Low-Tech Openings,” notes Max Taves, who is covering the Nosal trial, for The Recorder. Also check out Vanessa Blum’s article, “Amid Calls for Reform, a Rare Trial of Hacking Law,” also for The Recorder.
  • “Here are eight cyber crooks who got less prison time than Andrew Auernheimer,” advises Dan Kaplan for SC Magazine.
  • “NY Times Reporter Jenna Wortham Accidentally Reveals How She Violated Both The CFAA & The DMCA,” reports Techdirt.
  • “7th Circ. Won’t Resurrect Employer Email Hack Suit,” reports Law360, as the plaintiff was unable to demonstrate that the alleged invasion of privacy cost him more than $5,000.

Here are the noteworthy trade secret, non-compete and cybersecurity stories from the past week, as well as one or two that I missed over the past couple of weeks:

Trade Secret and Non-Compete Posts and Articles:

  • Does a law firm have to reveal its client’s non-compete to the client’s business partners? In “Texas Firm Beats Fraud Suit For Keeping Mum On Noncompete,” Law360 reports that the answer is “no.” The Texas Court of Appeals held that there was no duty to disclose the client’s non-compete by the law firm and its attorney when they negotiated legal documents with those third parties.
  • “Non-Compete Fight in the World of Surgical Robotics: MAKO Surgical Sues Competitor, Former Employee,” advises Jonathan Pollard for the non-compete blog.
  • “FBI arrests NASA contractor employee trying to flee to China,” reports The Washington Examiner.
  • “Stryker Exec Who Jumped Ship Must Hand Over Trade Secrets,” reports Law360.
  • “Protecting Trade Secrets with a Mobile Workforce and Telecommuters,” reports Cliff Atlas for Jackson & Lewis’ Non-Compete & Trade Secrets Report.
  • Even The Economist is writing about the importance of trade secrets, asking, “Can you keep a secret? To patent an idea, you must publish it. Many firms prefer secrecy.”
  • “Mediating Non-Competes in the Medical Device Industry,” explains Michael Greco for Fisher & Phillips’ Non-Compete and Trade Secrets Blog.
  • Will the ability to preserve an invention as a trade secret lead patentholders to withhold the best mode of that invention in their patent applications? In “Patent law’s ‘best mode’ requirement a conundrum for attorneys,” Erin Geiger Smith warns that could be the case for Bloomberg.
  • “5 ways in-house lawyers can support innovation at their companies: Inside counsel have a duty to help drive innovation to success, within the limits of existing law and policy,” advises Eric Esperne in Inside Counsel.
  • Want to enforce a non-compete against a Chinese employee? You need to read, “China Employee Non-Competes. Do Not Try This At Home,” by Dan Harris for his China Law Blog.

Cybersecurity Posts and Articles:

  • “After a Data Breach, Do You Need an Investigator or a Lawyer?” asks Catherine Dunn for Corporate Counsel.
  • “Take Chinese Hacking to the WTO,” urges James P. Farwell for The National Interest.
  • “Infographic: How Criminals Guess Your PIN,” warns Gina Smith for Tech Page One.

Computer Fraud and Abuse Act Posts and Cases:

  • “U.S. v. Nosal: Back In the District Court, the Defendant Isn’t as Fortunate,” reports Kenneth Vanko in his Legal Developments in Non-Competition Agreements Blog.
  • “The Split in the Circuit Courts Over the Proper Interpretation of the Computer Fraud and Abuse Act Actually Goes Three Ways,” updates Brian Bialas for Foley & Hoag’s Massachusetts Noncompete Law Blog.
  • Is journalist Matthew Keys the latest Aaron Swartz? asks Garance Burke in his article for The Huffington Post entitled, “Matthew Keys’ LA Times Hack: Security Breach Or Harmless Prank?”
  • And in another high profile CFAA prosecution, Orin Kerr writes, “United States v. Auernheimer, and Why I Am Representing Auernheimer Pro Bono on Appeal Before the Third Circuit,” for The Volokh Conspiracy.

Texas has long been considered a fiercely independent state, but Law360 is reporting that the Lone Star State is considering joining the other 47 states that have adopted the Uniform Trade Secrets Act (UTSA).  Dallas State Senator John Carona recently introduced S.B. 953, which Law360 states “would codify and modernize existing Texas common law relating to misappropriation of trade secrets, while enhancing available remedies to aggrieved businesses.”  If Texas adopts the UTSA, that would leave Massachusetts and New York as the only two remaining states that have not adopted some variation of the UTSA (New Jersey enacted the UTSA in 2011).  A link to the proposed statute can be found here.

There are some interesting features to this potential Texas version of the UTSA.  It would create a “presumption in favor of granting protective orders to preserve the secrecy of trade secrets,” a feature that could be at odds with general principles favoring open court proceedings (New Jersey’s version of the UTSA initially offered similar protections but it was eventually amended to remove that presumption).

In addition, S.B. 953 would dispense with the requirement that a trade secret must be in “continuous use” in order to be protected.  The Law360 article quotes Texas lawyer Val Perkins of Gardere Wynne Sewell LLP as noting that Texas common law “currently bars from protection trade secrets that are not actively used in business operations either because they have not yet been deployed or were abandoned.”  Naturally, this change would expand the categories of information available for trade secret protection.

The Texas bill proposes customary provisions under the UTSA, such as preemption (i.e., barring common law claims arising out of the same factual circumstances and providing the UTSA as the sole remedy), attorneys fees for bad faith or malicious conduct, injunctive relief, and the imposition of royalties as a potential remedy for the misappropriation of trade secrets in “exceptional” circumstances.  The Texas bill also tracks some of the noteworthy features of California’s version of the UTSA, which has language essentially permitting the “reverse engineering” of a trade secret provided no improper means are used (Ohio, for example, does not have that language in its version of the UTSA).

This is a very positive step as greater uniformity in the law throughout the country will benefit businesses and employees alike.  I will keep my eye on any further developments and keep everyone posted.