As many of you know from my post last week, the Federal Trade Commission (FTC) just proposed a ban on noncompetes with virtually no exceptions. And, the FTC has also placed nondisclosure agreements (NDAs) in its crosshairs.

No one knows this area better than Russell, and I mean no one, so please join 

December was unusually busy and 2023 started with a bang courtesy of the Federal Trade Commission’s (FTC) proposed rule banning noncompetes.  Here are the noteworthy cases and posts from last month, with several notable posts regarding the FTC’s big announcement on Thursday, for good measure:

Noteworthy Defend Trade Secrets Act Cases, Federal Trade Secrets Opinions and Related Commentary:

  • Courts continue to scrutinize claims of irreparable injury in trade secret cases, and no court runs a tighter ship than the U.S. District Court for the Southern District of New York.  In Tomgal LLC v. Castano, District Court Judge John Koeltl of the U.S. District Court for the Southern District of New York denied an injunction request, reasoning that irreparable injury did not exist because any injury arising from the misappropriated trade secrets could be easily calculated.  Judge Koeltl found “every unit of inventory that [defendant] Fashion Code sells to a Robin Ruth distributor is a sale that Robin Ruth did not make,” i.e., profits from the sale of the products containing the misappropriated trade secrets could be easily monetized. Judge Koeltl also rapped the plaintiff’s knuckles on laches grounds, finding that a 7-month delay was substantial and unreasonable.
  • If you don’t identify your trade secrets with particularity, you are not going to get an injunction.  That is the simple message that many federal courts are sending to trade secret owners, and a recent decision by District Court Judge Nugent of the U.S. District Court for the Northern District of Ohio is the latest. To date, most of the discussion regarding trade secret identification has been at the discovery stage but now courts are reinforcing that message by denying early requests for an injunction. In Collar Jobs, LLC v. Slocum, Judge Nugent denied the request for an injunction against a former joint venture partner, expressing concern that “it is not entirely clear what Collar Jobs’ ‘trade secret’ is.”   He also questioned the novelty of the alleged “platform” trade secret before him, which appeared to be a combination trade secret of customer and prospect data.
  • So Judge Nugent’s opinion begs the following question: should the DTSA be amended to include a requirement that trade secret identification is provided early in a case?  In an article for Law360, Willenken LLP’s Amelia Sargent details recent rulings by the U.S. Courts of Appeal for the Seventh Circuit and Ninth Circuit recognizing the need for identification and advocates for that amendment.  It’s a good read and Amelia’s points are reasonable and sound.
  • A recent decision out of Massachusetts cuts against the trend of decisions broadly interpreting the extraterritorial reach of the DTSA.  In Sysco Machinery Corp. v. Cymtek Solutions, Inc., District Court Judge Leo Sorokin of the U.S. District Court for Massachusetts ruled the sale of products in the U.S. that were made using the alleged trade secrets, without more, did not qualify as “an act in furtherance” of misappropriation under the DTSA.  According to Judge Sorokin, the defendant Cymtek used the misappropriated trade secrets improperly to make competing machines in Taiwan, but all of that conduct occurred in Taiwan or outside the United States; as a result, on this record, he found that there was neither “misappropriation” in the United States nor an “act in furtherance of the offense . . . committed in the United States” as required under §1837(2) of the DTSA.  Contrast this ruling to the decisions described in my September 2021 post.  Tough to reconcile in my judgment.


Continue Reading Monthly Wrap Up (January 9, 2023): Noteworthy Trade Secret and Restrictive Covenant Posts, Cases and Developments

2022 was a momentous year in trade secret and restrictive covenant law. Join BenRussell and me as we take a look back on some of the more significant developments in trade secret and restrictive covenant law from the past year and what we are expecting in the coming year. We discuss recent criminal

For the American Intellectual Property Law Association’s 125th Anniversary, John and Russell (both former chairs of the AIPLA Trade Secret Law Committee) and Ben (the current chair) went on the road to talk to the current AIPLA President, Brian Batzli, immediate past-President, Patrick Coyne, and Executive Director, Vince Garlock, at this year’s

When an employee leaves for a competitor, it’s not uncommon for the former employer to investigate whether the employee took information on the way out the door. But a recent case from the Georgia Court of Appeals, Patel v. Duke Hospitality LLC, highlights some limits on what the former employer can do.

As Ben

Episode 16 of Fairly Competing is out!

Temporary retraining orders (called, “TROs”) are a staple of trade secret and restrictive covenant litigation. IIn this episode, Ben, Russell  and I  discuss what you need to know when you are either seeking or defending against a temporary restraining order in a trade secret or noncompete case.

Episode 12 of Fairly Competing is out and we discuss the high profile Wisk Aero litigation in California.

In this episode, Ben, Russell  and I explore the decision by U.S. District Court Judge William Orrick in Wisk Aero LLC v. Archer Aviation Inc.  Readers will remember that I wrote about this case last