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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.

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Well, that was quick. After rejecting a request for a nationwide injunction in her original opinion granting the plaintiffs’ motion for a preliminary injunction, and then summarily denying a motion to reconsider that ruling, this afternoon U.S. District Court Judge Ada Brown reversed course, granted summary judgment against the FTC, and effectively entered a nationwide ban against the Federal Trade Commission’s Final Rule banning noncompetes. This should mean that employers around the country will not have to send out notices to their former and current employees telling them their noncompetes are no longer valid, as the Final Rule required by September 4, 2024. For a concise review of Judge Brown’s opinion, read on.

Continue Reading Ding, Dong, the Rule is Dead: Judge Brown Effectively Enters a Nationwide Ban Preventing Enforcement of the FTC’s Noncompete Rule

I will be providing a 1-hour webinar for the Ohio State Bar Association entitled “Strategies for Defusing Trade Secret Disputes” on Friday, August 16, 2024 at 1:00 p.m. ET. Here’s a description of the presentation:

What can employers and employees do to avoid litigation and minimize their risk once they are ensnared in a trade secret lawsuit? The number of trade secrets and restrictive covenant cases continue to grow each year. These cases are notoriously contentious and can be extremely expensive. We’ll look at high profile trade secret lawsuits and share tips to minimize your client’s risk of and exposure in litigation.

You can register for the seminar here.  Hope you can join us.