Here are the noteworthy trade secret and restrictive covenant posts from September and some of October:
- Massachusetts is once again contemplating multiple bills regarding non-competes as well as a possible adoption of what appears to be the DTSA advises Russell Beck in his Fair Competition Blog. Russell and his team also have summaries of legislative activity in Maryland, Maine, Michigan, New York, Oregon, Pennsylvania, Washington and West Virginia, among others.
State Law Trade Secret and Restrictive Covenant Cases
- The Illinois Attorney General’s office has sued a payday lender for violating Illinois’ recently enacted statute forbidding the use of non-competes for low wage workers. Peter Steinmeyer has a timely post about this recent filing in Epstein Becker’s Trade Secrets & Non-Compete Blog.
- Wisconsin’s Supreme Court recently upheld a summary judgment ruling rejecting circumstantial evidence of misappropriation advises Kevin Mahoney for Seyfarth Shaw’s Trading Secrets Blog. In the case, the Supreme Court found that the direct testimony of the defendants was unrebutted by the admittedly strong circumstantial case and therefore properly dismissed; however, in a strong dissent, Justice Rogensack vigorously argued that the case should have been submitted to a jury.
- Florida’s Supreme Court has issued a significant decision broadening the categories of protected interests under Florida non-compete law writes Eric Ostroff in his Protecting Trade Secrets Blog. According to Eric, this opinion has far-reaching implications beyond cases involving referral sources because “[i]t makes clear that courts should engage in industry-specific, context-based analysis to determine whether the plaintiff has a legitimate business interest, regardless of whether that interest is listed in the statute.”
- Litigating a violation of a non-recruitment covenant (forbidding solicitation of former colleagues) in Georgia? Then take a look at Neal Weinrich’s recent post in Berman Fink Van Horn’s Georgia Non-Compete & Trade Secrets Blog about a recent Georgia appellate court opinion finding that such a provision does not require a geographical or material contact limitation to be enforceable. Adriana Midance and Colin Thakkar also have a post about the same case in Jackson Lewis’ Non-Compete & Trade Secrets Report.
- Speaking of non-recruitment covenants, if you are looking to draft and enforce one in Texas, then check out Rob Radcliff’s post in his Smooth Transitions Blog.
- Litigation over the scope and enforceability of non-solicitation agreements has been on the uptick, perhaps because this form of restrictive covenant has become popular as an alternative to the increasingly unpopular use of non-competes. L. Andrew Brehm reports in Schuyler Roche Crisham’s Trade Secrets & Restrictive Covenant Blog about a recent case from the U.S. District Court for the Central District of Illinois finding that a solicitation can still occur even if the client is the one making the initial contact.
- New Jersey employers need to make sure they are wage-and-hour-compliant or they risk having their non-competes tossed warn Mark Romeo and Ian Robertson in Crowell & Moring’s Trade Secrets Trends Blog.
- Ken Vanko has two posts in his Legal Developments in Non-Competition Blog detailing other developments in Indiana (enforcement of a nationwide non-compete), Illinois (enforcement of a non-compete accompanying a sale of business), and Connecticut (regarding the enforcement of the Protocol for departing financial advisors where there are allegations that the advisor failed to follow it).
International Trade Secret Enforcement
- If you are litigating a trade secret case in China, Yufeng Ma has a post for you in Orrick’s Trade Secrets Watch Blog.
Computer Fraud & Abuse Act
- The U.S. Supreme Court has declined to grant certiorari to two Computer Fraud and Abuse Act (CFAA) cases, Facebook v. Power Ventures and U.S. v. Nosal, reports Mark Romeo and Ian Robertson for Crowell & Moring’s Trade Secret Trends Blog as well as Scott Atkinson for Seyfarth Shaw’s Trading Secrets Blog. In short, the CFAA remains a mess.
- In his Cybersecurity Lawyer Blog, Professor David Opderbeck provides an update about a bill to amend the CFAA that would allow the defensive use of “beaconing” technology to identify an attacker.
Defend Trade Secrets Act
- In what I believe is the first case to solely address a claim under the DTSA and only the DTSA, a New York federal court has declined to enforce an injunction for a customer list, reasoning its contents were readily ascertainable. Jonathan Shapiro has a thorough discussion of the case for Epstein Becker’s Trade Secrets & Non-Compete Blog.
Waymo v. Uber
- Jim Pooley has written an excellent post on the self-inflicted damage wrought on Uber by its hire of Anthony Levandowski for the IP Watchdog. Jim’s post focuses on the decision to provide an indemnity and other poor decisions that Uber made in connection with the hire.
- And could a pair of earrings spell trouble for some of Waymo’s trade secrets? Mark Green thinks so in a post for IEEE Spectrum (hint, some of the technology may have been included in going-way gifts).
Discovery and Procedural Issues for the Litigators
- Given the prevalence of expedited discovery in trade secret disputes, inadvertent disclosure can be a frequent problem. Joshua Gilliland provides a fine tutorial in his Bowtie Blog on how to best manage these unfortunate situations, detailing a recent ruling in a case out of the Eastern District of Michigan.
- And in another more insidious type of inadvertent disclosure, relying on “autofill” email addresses may get you in trouble. A recent post by Thomas Wallerstein and Juan Aragon for Venable’s Trade Secrets & Transitions Blog details the ethical quandaries that can arise in situations where an email is inadvertently sent to the wrong recipient.
- Zach Wolfe is continuing his fine series on the use of social media in litigation in his Five Minute Law Blog; Parts 3 and 4 can be found here and here.
- For those interested in choice of law disputes, check out John Bauer’s article about resolving potentially conflicting cases in Massachusetts as well as the following article about an Illinois court applying Ohio law by James Komie for Howard & Howard’s Non-Compete & Trade Secrets Law Blog.
- Trying to protect your trade secrets in federal court in Tennessee? Bradley Arant’s Jeffrey Sheehan has some disconcerting news for you.
Articles of Interest for In-House Lawyers
- If you work for a defense contractor and someone has stolen your client’s trade secrets, William Wagner of Taft Stettinius has a post you may want to review regarding what reporting obligations you may have.
- Looking to keep your trade secrets out of your patents? Then check out Christopher Jordan and Daniel Ovanezian’s article for Corporate Counsel.
- Those drafting non-competes in M&A deals that want them to survive in California should read this post by Cooley about a recent Delaware decision declining to enforce just such a non-compete.