The big news this week was the Ninth Circuit’s decision in U.S. v. Nosal and the Second Circuit’s decision in U.S. v. Aleynikov (briefly addressed below).  Here is a rundown of the notable decisions and posts of another busy week:
Trade Secret and Non-Compete Posts and Articles:

  • Yesterday, the U.S. Court of Appeals for the Second Circuit issued its opinion explaining why it vacated the criminal conviction of former Goldman Sachs programmer Sergey Aleynikov in February.  As expected, the Second Circuit held that the actual software he stole was “not produced for or placed in interstate or foreign commerce” as required under the Economic Espionage Act. (A PDF copy of the decision can be found below).  I am in the process of reviewing it more closely and I will have a post addressing it over the weekend. 
  • Massachusetts may be the next state to adopt the Uniform Trade Secrets Act according to Foley Hoag’s Massachusetts Noncompete Blog.  Brian Bialas is reporting the bill was introduced in late January and testimony addressing the pros and cons of the bill was presented to the Massachusetts Joint Committee on the Judiciary on February 28, 2012.  Brian’s take is that bill has received lukewarm support from the legal community because of potential complications with the pending non-compete legislation as well as concerns by lawyers about their ability to recover treble damages.
  • The long-running prosecution of a former Intel engineer who stole technology estimated at $1 billion has resulted in a plea on the eve of trial.  Biswamohan Pani, who prosecutors say downloaded Intel’s confidential documents after joining rival Advanced Micro Devices Inc., could see 20 years’ imprisonment, a $250,000 fine and three years of probation for each count, according to the plea agreement.
  • Akerman’s HR Defense Blog warns of the dangers of failing to tailor your non-competes to how your employees perform their job in “Horse Doctors Make Housecalls: A Lesson in Why Boiler-Plate Non-Compete Agreements May Not Hold Up in Court.”  Kenneth Vanko has a thorough post about the Florida decision, Heiderich v. Florida Equine Veterinary Svcs., Inc, as well.
  • For those doing business in China, a non-disclosure agreement is not enough.  Rather, in a post entitled, “NNN Agreements: Watching the Sausage Get Made,” Dan Harris’ China Law Blog advocates provisions that also restrain competition and forbid use of the trade secrets, and his post details the factors to consider when drafting and negotiating those agreements.
  • U.S. District Court Judge Robert Payne has dismissed Kolon’s antitrust counterclaim against DuPont.  While DuPont had moved for summary judgment on various grounds, including a request that the case be dismissed because of Kolon’s spoliation of evidence (see the update on this request in this previous post), Judge Payne’s summary judgment ruling focused on the the merits of the antitrust issues.  (A copy of the 51-page opinion is attached below).  I believe there are no further claims remaining in this case and Kolon will now be left to appeal this decision to the Fourth Circuit.
  • Watch out for inconsistent forum selection clauses in transactions involving multiple agreements warns Seyfarth Shaw’s Trading Secrets Blog.  The post details a recent ruling by the District Court of Colorado in Robert Stuart v. Marshfield Doorsystems, Inc. which declined to dismiss an action filed in Colorado because only one of the integrated agreements (the employment agreement with the non-compete) specified Chicago as the forum for the dispute. 

Cybersecurity Posts and Articles: 

  • “Why Aren’t Companies Better Prepared for Data Breaches?” asks Catherine Dunn on Corporate Counsel’s website. 
  • The Threat Post Blog has an article warning “Executives Abroad May Get Owned Before They Get Off the Tarmac.” 
  • According to The Wall Street Journal, “The Enemy Within: For the IT staff, the biggest security risk is…the IT staff.” 

News You Can Use:

  • The New York Times’ Personal Tech page has advice for “Eluding a Barrage of Spam Text Messages.”

U.S. v. Aleynikov.pdf (85.90 kb)

Dupont v. Kolon – Opinion dismissing antitrust counterclaim.pdf (4.18 mb)