Neither snow, nor rain, nor a family Spring Break vacation in Orlando can prevent the Trade Secret Litigator from delivering his Thursday Wrap-Up. Without further ado:
Trade Secrets and Covenants Not to Compete Posts and Articles: 

  • China’s role in the theft of the trade secrets of American companies is now the focus of The New York Times Op-Ed page, courtesy of a piece by former counter-terrorism czar Richard Clarke. Following up on the concerns he recently expressed in an interview with The Smithsonian (see my post from last week), Clarke doubts the effectiveness of the various cybersecurity bills pending in Congress and advocates regulations or legislation that would empower the executive branch to notify and assist American companies whom it believes are going to be attacked. 
  • PepsiCo was able to vacate a suspicious $1.26 billion default verdict on a trade secret claim in Wisconsin by demonstrating the claim was barred under the statute of limitations. Todd Sullivan’s Trade Secrets Blog reports on the case, James v. PepsiCo, Inc. The plaintiffs claimed that they met with representatives of PepisCo in 1981 and disclosed certain trade secrets, including their ideas about bottled water called Ultra-Pure. In 2007, one of the plaintiffs tasted Aquafina and concluded it was a copy of Ultra-Pure, the bottled water that they had disclosed over twenty years before. After vacating its own $1.26 verdict, the Wisconsin trial court then dismissed the claims as untimely. 
  • The fine British IP Blog The IPKat is shocked, shocked, I say, to discover that trade secrets are actually very popular here in the U.S. (a bias one would readily expect from our patent brothers here in the U.S., and not from our more enlightened cousins from across the pond).  Last week, Neil Wilkof was aghast about the recent NSF report finding that more businesses used trade secrets than patents to protect their IP and so advised in a post entitled “Whatever the Report Says: Can Trade Secrets Really Be that Important?” In a guest post rejoinder entitled “Much, Much More on the Centrality of Trade Secrets,” James Pooley, the World Intellectual Property Organization Deputy Director General for Innovation and Technology, confirms the importance of trade secrets particularly in process technology and software. 
  • For those in Illinois, Kenneth Vanko’s Legal Developments in Non-Competition Agreements Blog thinks that the main fallout from the Illinois Supreme Court’s decision last year in Reliable Fire Insur. v. Arredondo will be that TROs enforcing non-competes will be tougher to get. Kenneth believes the requirement that a business show a legitimate business interest supporting a non-compete based on the “totality of the circumstances” will require companies to be more creative.
  • Employee handbooks and policies do not qualify as agreements, Littler’s Unfair Competition & Trade Secrets Blog reports. In a recent case in New Jersey, Metropolitan Foods v. Kelsch, the district court found that handbooks did not qualify as agreements and rejected the breach of contract claim, but allowed their use in support of a breach of the duty of loyalty claim. 
  • In light of the circumstantial nature of many trade secrets cases, digital forensics are always important and Seyfarth Shaw’s Trading Secrets Blog has the first of three guest posts by Jim Vaughn of Intelligent Discovery Solutions to walk you through the basics. 
  • Lemko has sued its insurers, claiming that they improperly denied it coverage for its epic trade secret dispute with Motorola, Law360 is reporting. It will be interesting to see how a court rules, given that the Northern District of Illinois found sufficient evidence of Lemko’s misappropriation of Motorola’s trade secrets to go to trial in the underlying case.

Cybersecurity Articles and Posts:

  • The big news this week was the breach of what is now estimated to be 1.5 million credit card accounts processed by Global Payments. For a quick recap, see the Washington Post’s summary, “FAQ: The Global Payments Hack.”

News You Can Use:

  • In light of the last bulletpoint, Forbes offers the following timely advice on “How to Protect Yourself from Credit Card Breaches.”
  • The Wall Street Journal warns “Beware Apps Bearing Unwanted Gifts.”