Here are the noteworthy trade secret, restrictive covenant and cybersecurity posts from the month of August (warning, there are a lot):
Defend Trade Secrets Act
- Munger Tolles’ Miriam Kim, Carolyn Hoecker Luedtke and Laura Smolowe have put together another fine summary of the trends they are tracking under the Defend Trade Secrets Act. There are several interesting findings in the summary. For example, state courts and state law remain the preferred forum and substantive law for trade secrets claimants, at least at this time. According to the summary, while 378 DTSA cases have been filed in federal and state courts, more than 515 complaints with trade secret claims have been filed with no DTSA claims in federal and state courts throughout the U.S. I have to admit that I was surprised by this finding, as I expected that litigants would be eager to secure a federal forum using the DTSA. I suspect that most of those state law cases involve restrictive covenants and that the plaintiffs are more comfortable with a local judge enforcing a non-compete or want to avoid entanglements arising from the DTSA’s limitations on injunctions. Or it might be that they simply want to go with the law they know best, which would be the more developed state trade secret law regime. In any event, a very interesting finding.
- One of the more recent (and unexpected) developments under the DTSA has been the number of motions to dismiss challenging DTSA claims. Olga May has a post for Fish & Richardson’s Litigation Blog detailing those decisions on those motions, which range from challenges to the specificity of the trade secrets pleaded to whether the complaint comports with the standards under Twombly and Iqbal.
- For an update on the modest number of ex parte seizure order filings under the DTSA, see Michael Renuad of Mintz Levn’s article in the National Law Journal.
Practice and Procedure (for the Litigators)
- If you have not done so already, you need to bookmark Zach Wolfe’s Five Minute Law Blog. Zach has a couple of interesting posts on the potential minefields that may await a litigator doing his/her investigation on an opposing party through social media.
- Kevin Cloutier and Amy Harwath of Shepard Mullin have a must-read article for the National Law Journal on practical tips for proving misappropriation at the preliminary injunction stage.
- Dennis Crouch’s Patently-O Blog has a post providing proposals on how to deal with redactions when seeking to protect confidential information under the DTSA or other trade secret cases.
- Ken Vanko’s Legal Developments in Non-Competition Agreements Blog has a post criticizing the recent decision by California Supreme Court that declined to overturn the dismissal of a malicious prosecution claim brought against Latham & Watkins. I can’t say that I completely agree with Ken on this one (the prospect of a bad faith award under the UTSA should be a sufficient deterrent), but as always, his reasoning is impeccable.
- Seyfarth’s Trading Secrets Blog has had some interesting guests posts on the forensic side of trade secret litigation. For example, Bobby Williams of iDiscovery has some thoughts on how to deal with “wipers” in trade secret disputes. I would recommend reading all of them.
- Johanna Jacob describes a recent decision out of Tennessee applying Tennessee’s version of preemption to dismiss other claims in Orrick’s Trade Secrets Watch Blog.
- Leiza Dolghih’s North Texas Legal News Blog details a recent Texas appellate decision remanding a TRO because the trial court didn’t adequately define solicitation in the order. Memo to trade secret plaintiffs: Be precise!
- Gamesmanship does not pay, at least it didn’t in a case that Zach Wolfe recounts in his Five Minute Blog. Efforts to mislead a witness during a deposition ended up blowing up on the plaintiff’s lawyer in that case. It is a good read and reminder that courts will frequently see through the smoke.
Non-Solicitation, Non-Compete and Other Restrictive Covenant Developments
- In the Technology & Marketing Blog, Vankat Balasubramani writes about another recent decision involving LinkedIn and whether the communications in question violated the former employee’s non-solicitation agreement (hint: this court found that they did). The case is called Mobil Mini v. Vevea and was decided by a federal court in Minnesota.
- Kevin Burns details a recent decision from the U.S. Court of Appeals for the Eighth Circuit affirming a district court’s decision under Iowa law rejecting an effort to enforce a non-compete against an independent contractor for Fisher & Phillips Non-Compete & Trade Secrets Blog. Jonathan Shapiro and Ken Vanko both have posts about the decision.
- A New York Court of Appeals has expressed concern about the general enforceability of non-competes in New York according to an article by Wilson Elser’s Peter Lauricella and Richard Burger for the National Law Journal.
- Russell Beck’s Fair Competition Blog has updated its 50 state surveys for both non-competes and trade secret law. It’s a great resource that I would recommend to all readers.
Statutory and Regulatory Developments
- For those looking for a good summary of the Trump Administration’s recent decision to launch a probe into allegations of Chinese theft of trade secrets and other intellectual property, check out Steve Brachmann’s post for the IP Watchdog.
Other Posts of Interest
- I have recently written about several decisions scaling back the scope and enforceability of online terms and conditions. Peter Sloan provides some solid practical advice to website owners in his Information Bytes Blog about the wisdom of scaling back those agreements.
- Afraid you might irritate a judge with your brief? Then look no further than Ross Guberman’s post for the Legal Writing Pro Blog. Ross recently surveyed thousands of judge about stylistic and substantive points that raise their ire, so this post is a must-read for those looking not to alienate the man/woman in the black robe.