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If worrying about our soon-to-be AI overlords wasn’t enough, two rulings recently dropped that illustrate the risk that an AI platform’s terms of use and privacy policy limitations may pose to confidential information. On February 17, 2026, in U.S. v. Heppner, Judge Jed Rakoff of the U.S. District Court for the Southern District of New York ruled that AI-generated documents were not entitled to either attorney/client or attorney work product protection, citing waiver of confidentiality due to the defendant’s consent to Anthropic’s privacy policy. And on January 5, 2026, in a case that has not received the same notoriety, Trinidad v. OpenAI, Inc., 2026 U.S. Dist. LEXIS 1129, 2026 WL 21791, Judge Jon Tigar of the U.S. District Court for the Northern District of California dismissed that case because he found that the plaintiff forfeited her trade secrets claim under OpenAI’s terms of use.

These cases not only serve as a cautionary tale for trade secret owners but a reminder of the impact that terms of service–the fine print many of us scroll through and consent to when securing access to a website or online tool–may have in future trade secret disputes. This begs the following question: should courts reconsider applying those terms of service and privacy policies so broadly in situations of confidentiality? Read on to find out . . .

Continue Reading Yet Another Reason to Fear AI? Two recent decisions provide a reminder of the risks of its use for trade secrets

I’m excited to announce that I will be the panel chair and moderator for “Artificial Intelligence & Trade Secrets” at the New York City Bar Association’s Trade Secret Symposium 2026 on Friday, February 20, 2026 at 9:00 a.m. ET. I’ll have the honor of facilitating a panel composed of AI experts Matthew D’Amore of Cornell Tech and Cornell Law School, Jim Ko of The AI Rights Project and Dean Pelletier of Pelletier Law, LLC.

The Symposium starts on Thursday, February 19, 2026 at 9 a.m. and will run to 1:25 both days. Other important topics that will be covered include lessons from mega-verdicts in trade secret cases in 2025, an overview of New York trade secrets law vs. the DTSA, drafting restrictive covenants and other agreements to protect trade secrets, the latest on FTC and New York AG enforcement actions, seeking expedited relief when misuse is unclear, the perspective of forensics experts in trade secret litigation, and ethical issues in trade secret cases. A special thanks to Presto Ricardo of Vedder and Miguel Lopez of Littler for putting together this timely and comprehensive Symposium.

To find our more and register for the Symposium, please go to this link. Hope you can join us!

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Do three important decisions signal a trend? Well, they just might, particularly when they are considered with recent appellate decisions setting aside other runaway trade secret verdicts. Last month, the Virginia Supreme Court affirmed the Virginia Court of Appeals’ reversal of Appian Software’s $2 billion verdict against its competitor Pegasystems, agreeing that the trial court failed to properly instruct the jury on the burden of proof for Appian’s unjust enrichment damages. This followed the December 8, 2025 decision by the U.S. Court of Appeals for the Federal Circuit affirming U.S. District Court Judge Sandra Lioi’s vacatur of a $63 million jury verdict against The Goodyear Tire & Rubber Company because the plaintiffs failed to sufficiently identify several of their trade secrets. And most recently, on January 21, 2026, the U.S. Court of Appeals for the Fifth Circuit affirmed U.S. District Court Judge Andrew Hanen’s decision to vacate a $75 million jury verdict because the plaintiff Trinseo Europe elected not to apportion the damages for each of its trade secrets.

As I discuss below, those decisions are consistent with a growing number of other appellate and trial decisions critically examining the grounds giving rise to these mega-verdicts. So what is going on here? Read on to find out.

Continue Reading Three More Mammoth Trade Secret Verdicts Fail to Survive Appeal: The Trade Secret Litigator Reads the Tea Leaves (Part I)

For those looking for a comprehensive webinar on developments in trade secret and restrictive covenant law by experts from around the country, please join me for the first annual “Trade Secrets and Restrictive Covenants Symposium” for the Ohio State Bar Association on Wednesday, January 28, 2026 from 1:00 p.m. ET to 4:15 p.m. ET. Distinguished speakers include Jim Pooley, Russell Beck, Ben Fink, Rachel Powitzky Steely, Dean Pelletier, Eric Ostroff, Hannah Joseph, Mark Klapow, Mike Weil, Chris Tackett, Jim Ko, Sarah Tishler and Greg Kelley. I’ll be presenting on “Key Developments in Trade Secret and Restrictive Covenant Law” and moderating the panel discussing “The Impact of AI on Trade Secrets: What Every Lawyer and Client Needs to Know.”

Here’s a description of the program:

“Trade secret protection continues to grow in importance as a tool for emerging technologies and related intellectual property.  As a result, trade secret litigation has steadily climbed since the enactment of the federal Defend Trade Secrets Act, and billion dollar and multi-million dollar jury verdicts over the misappropriation of trade secrets are now frequently in the news.  At the same time, one of the key tools for protecting those trade secrets—restrictive covenants—is under withering scrutiny by legislators, regulators and courts. This symposium, presented by distinguished trade secret practitioners from around the country, will provide in-house counsel, business leaders, outside counsel and litigators with guidance about the legal and technological developments that are impacting the ability of companies to protect trade secrets in a world increasingly without noncompetes.  Learn how technologies such as generative AI may be fundamentally changing the legal landscape of trade secret law as well, and what your clients need to do to adapt to these rapidly unfolding changes.”

To get more information on the presentations and to register, please go the following link here.  Hope you can join us.

In this episode of the Fairly Competing podcast, recorded on December 19, 2025, Ben, Russell, guest Sarah Tishler and I examine the significant developments in trade secret and restrictive covenant law in 2025, make some predictions about what to expect in 2026, and provide some practical takeaways.

The episode covers the sharp shift in federal noncompete policy, highlighting how the FTC and NLRB moved from pursuing sweeping nationwide bans to a strategy of individualized enforcement actions, with the FTC particularly targeting the healthcare and staffing industries. At the state level, Ben, Russell and I identify the continuing wave of new legislation — most notably Florida’s “CHOICE Act,” which dramatically strengthened noncompete enforceability, contrasting sharply with stricter trends in states like California, Wyoming, and many others. The discussion then turns to a deep dive into AI-driven trade secret litigation with Sarah and concludes with a review of high-profile and high-stakes trade secret disputes and their implications for litigation moving forward.

So, come join us on Spotify or Apple Podcasts or YouTube.

Trade Secrets & Restrictive Covenants: 2025 Recap, 2026 Outlook (Fairly Competing, Episode 28)

Episode 27 of Fairly Competing is out!

In this episode, recorded on January 3, 2025, Ben, Russell and I take a look back on some of the more significant developments in trade secret and restrictive covenant law in 2024, and try to give some insight into what to expect in 2025. We discuss the FTC’s noncompete ban, extraterritoriality of the Defend Trade Secrets Act, damages in trade secret cases, legislative changes to state noncompete laws, noteworthy cases from various states and the Third Circuit, and other issues and predictions.

You can join us on Spotify or Apple Podcasts, or go to FairlyCompeting.com, if you’re just looking for the RSS feed.

And, because this show is for you, please email Ben, Russell or me with any topics you’d like to hear us discuss. While we cannot offer legal advice on the show, we can certainly discuss any issues you may be wondering about.

Trade secret litigation is expensive. But trade secret owners often don’t have the resources to pay for the litigation necessary to protect their rights against a larger adversary with deeper pockets.

Enter: litigation funding.

Litigation funding can level the playing field and provide the resources necessary for the trade secret owner to recover damages and enforce its trade secret rights. 

Join Ben, Russell as and me as we talk with Stephanie Southwick of Law Finance Group about how litigation funding works, its pros and cons, and things to know if you or your client is considering funding.

So, come join us on Spotify or Apple Podcasts. Or, if you’re just looking for the feed, it’s here: Fairly Competing RSS feed.

Litigation Funding with Guest, Stephanie Southwick (Fairly Competing, Episode 26)

I will be speaking at the American Intellectual Property Law Association’s 2024 Annual Meeting on Saturday, October 26, 2024 from 9:00 a.m. – 10:45 a.m. ET at the Closing Plenary Session as part of the IP Year in Review panel at the Gaylord National Resort in National Harbor, Maryland.

It will be a dynamic session as I join Kevin Tottis of TottisLaw (copyright), Amy L. Landers of Drexel University’s Thomas R. Kline School of Law (patent) and Katie Laatsch Fink of Banner Witcoff (trademark) on a panel moderated by Jocelyn Ram of The Broad Institute of MIT and Harvard. I’ll be covering the past year’s developments in trade secrets law.

We’ll be discussing trends that cut across different IP subject matters, including extraterritoriality (Motorola v. Hytera), administrative rulemaking (Loper and the FTC) and damages (unjust enrichment verdicts including the Appian v. PegaSystems and Syntel v. Trizetto decisions).

REGISTER HERE: 2024 Annual Meeting

Hope you can join us.

Remedying the overseas misappropriation of U.S. companies’ trade secrets, particularly in China, was one of Congress’ core goals when it enacted the Defend Trade Secrets Act (DTSA) in 2016. But despite that goal, some district courts have wrestled over the extent to which the DTSA could apply to misconduct that occurred abroad. Now, in Motorola Sols., Inc. v. Hytera Commc’ns Corp. Ltd., the U.S. Court of Appeals for the Seventh Circuit has resoundingly affirmed the extraterritorial reach of the DTSA, finding that worldwide sales of a product incorporating misappropriated trade secrets may be recoverable as damages. The Seventh Circuit has ruled that, under the DTSA, liability can accrue for acts committed wholly abroad if some act in furtherance of the misappropriation occurred in the U.S. In the Motorola case, the marketing of the product at trade shows in the U.S. was a sufficient act in furtherance of the overseas misappropriation for a damages award including sales from around the world.

Continue Reading Motorola v. Hytera: The Seventh Circuit Upholds Damages for Worldwide Sales under the Defend Trade Secrets Act

On April 23, 2024, the FTC adopted its noncompete rule to ban virtually all employee noncompetes. For background, see my posts on the rule here and here.

The rule was scheduled to go into effect on September 4, 2024. But on August 20, 2024, Judge Dana Brown of the U.S. District Court for the Northern District of Texas vacated the rule.

Companies and employees have a reprieve, but they should not let their guard down. In this episode, Ben, Russell and I discuss what happened, what to expect going forward, and what companies should do now to protect their trade secrets, confidential information, customer goodwill, and the integrity of their workforce.

You can join us on Spotify or Apple Podcasts, or go to FairlyCompeting.com, if you’re just looking for the RSS feed.

And, because this show is for you, please email Ben, Russell or me with any topics you’d like to hear us discuss. While we cannot offer legal advice on the show, we can certainly discuss any issues you may be wondering about.