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In this episode, Ben Fink, Russell Beck, and I discuss two hot topics in trade secret and noncompete law, particularly during COVID-19: employee surveillance and protecting legitimate business interests when an employee’s employment is terminated without cause.

So, come join us on Spotify or Apple Podcasts. Or, if you’re just looking for the feed, it’s here: Fairly Competing RSS feed.

And, as always, please don’t hesitate to email Ben, Russell or me with any topics you’d like to hear us discuss.  While we cannot offer legal advice on the show, we can certainly discuss any issues you interested in.

*And, thank you again to Erika Hahn for the intro and outro voice over, Tyler Beck for the music, and mohamed_hassan for the base image.

A lot has been written about the havoc that COVID-19 has wrought on courts and the changes it has caused in the way we litigate and try cases.  Unlike more conventional litigation, which ultimately seeks damages in trials that go before a jury, trade secret litigation frequently revolves around a trade secret owner’s request for an injunction, fast-moving legal proceedings that are generally decided by judges rather than juries.  So what has been the impact of COVID-19 on trade secret cases?  Perhaps the easiest way to analyze the pandemic’s impact is to break it down into three components:  (1) administrative, (2) procedural and (3) substantive.

Continue Reading How COVID-19 Is Changing the Way We Litigate Trade Secret Cases

In this episode, Ben Fink, Russell Beck, and I provide some basics on what noncompetes and other restrictive covenants are, how they are enforced, how the law involving these agreements has been changing, and the legislative and regulatory changes companies and employees can expect from state and federal levels in the near future.

Please join us on Spotify or Apple Podcasts. If you’re just looking for the feed, it’s here: Fairly Competing RSS feed.

We are always looking for new ideas and topics, so please don’t hesitate to email Russell, Ben, or me with any topics you’d like to hear us discuss. While we cannot offer legal advice on the show, we are very interested in discussing any issues you may be curious about.

Most trade secret lawsuits involve a request for an injunction, frequently in the form of a motion for a temporary restraining order (TRO).  TROs are high octane proceedings that move very quickly and can turn on one key fact, argument or legal doctrine.  A recent ruling in a high profile case dominating the news, Parler v. Amazon Web Services, reinforces a number of important lessons that can determine a critical ruling on a very limited evidentiary record.  While the Parler case doesn’t involve claims typically found in a trade secret injunction, the lessons described below apply with equal force in all cases involving TROs and other emergency injunctions.

Continue Reading Parler v. Amazon Web Services: Three Lessons for Trade Secret Litigators

 

Russell Beck, Ben Fink and I are delighted to announce the launch of a new podcast, Fairly Competing, that will provide our analysis and commentary on trade secret law, non-compete law, and related developments in intellectual property law.

We are planning on covering the latest trends and hot topics in these areas of the law, including legislative developments at the state and federal level, important legal decisions in different courts, practical tips for employers and employees, and other issues that commonly come up in these types of disputes.  We’ve tailored our podcasts for a broad audience, including employers, in-house counsel, employees, HR executives, business owners and lawyers of all levels of experience.

Hope you will join us on Spotify or Apple Podcasts.

*And a special thanks to Russell Beck and his team, including Erika Hahn, Tyler Beck and mohamed_hassan for their getting this up and running!

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The economic carnage unleashed by the COVID-19 virus has disrupted virtually every industry in the United States.  At last count, more than 38 million workers had lost their jobs and made claims for unemployment benefits.  And while states have begun easing restrictions on the ability of many businesses to reopen, it is reasonable to expect there will be further turnover, leading to the departure of many employees to competitors.  Feeling more vulnerable because of the downturn, employers will inevitably look to enforce restrictive covenants, including non-competes and non-solicitation agreements, against those former employees.  How will courts tend to handle requests to enforce restrictive covenants, especially non-competes, in this difficult economy?  One guide may be looking at how they handled similar requests during the last economic downturn in 2008 in the state of Ohio. Continue Reading Back to the Future: Do Restrictive Covenant Cases from the 2008 Recession Offer Clues to How Courts Will Rule in the Aftermath of COVID 19?

AIPLA 2019 TS Summit

March is fast approaching and the American Intellectual Property Law Association’s 7th Annual Trade Secret Summit is now set for Thursday, March 21 and Friday, March 22, 2019 at the American Express Company offices in the Financial District in downtown Manhattan.  For those who have not attended before, the Summit provides great content and plenty of networking opportunities for outside counsel, in-house counsel and consultants who practice in this space.

I will be co-presenting with Russell Beck for the Legislative Roundtable, which will address the latest legislative developments on the federal and state level as well as an engaged discussion on the legislative trends impacting trade secrets, cybersecurity and restrictive covenants.  I will also be moderating a blue-ribbon cybersecurity panel that will feature Gabriel Ramsey of Crowell & Moring, Derron Blakely of Elbit Systems of America and Kurt Goudy of IBM.

Registration for the Summit can be found here.  Hope you can join us!

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Last week, in a significant development in the simmering IP and technology dispute between the U.S. and China, the U.S. Department of Justice unsealed an indictment filed in the U.S. District Court for the Western District of Washington against Chinese telecommunications manufacturer Huawei for the theft of trade secrets from T-Mobile.  This salvo is the latest in an increasingly high stakes confrontation between the U.S. and China arising from longstanding concerns in the U.S. about China’s involvement in and support for the theft of trade secrets from U.S. companies.  Huawei, which was also the subject of a FBI sting last month in another unrelated trade secret investigation involving a U.S. smartphone screen manufacturer, is now at the center of this international IP superpower row.  What’s the international context that led to this indictment, what did Huawei do to trigger the indictment, and what forces are now in play that will shape the prosecution going forward?  Read on for my thoughts below. Continue Reading Tappy’s Revenge: What You Need to Know About the DOJ’s Momentous Trade Secret Indictment of Huawei

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Most employee restrictive covenant disputes arise as a result of an employer’s concern about the potential loss of customer relationships and customer goodwill.  These disputes generally involve sales representatives or high level business executives that have relationships with key customers; these disputes also frequently involve defenses that the employees had pre-existing business relationships with the customers that should fall outside the non-compete or non-solicitation agreement at issue.  These disputes can be very fact-driven and the subject of very different recollections.  For these reasons, non-solicitation cases can be especially messy.  Unfortunately, a recent case out of the U.S. Court of Appeals for the Sixth Circuit, Hall v. Edgewood Partners Insurance Center, Inc., Case No. 18-3481/3482, highlights a doctrine — that an employee has rights to clients he/she acquired on his/her own time and dime — that may make these cases more complicated, expensive and problematic.

Continue Reading Whose Customer Is It Anyway? The Sixth Circuit Further Clouds New York’s Already Murky Law on Non-Solicitation Agreements
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Given the ubiquity of thumb-drives and use of personal devices for work, it should come as no surprise that former employees frequently download and even retain their former employer’s sensitive information on their personal devices.  A Symantec study in 2013 found that ½ of the employees surveyed admitted to keeping confidential corporate data from their previous employer and 40% planned to use it in their new jobs.  However, is the fact that an employee downloaded confidential information, standing alone, enough to trigger a lawsuit and possibly an injunction?  A recent case out of the U.S. District Court for the Southern District of New York, AUA Private Equity Partners, LLC v. Soto, Case No. 1:17-cv-8035 (April 5, 2018), held downloading and refusing to return confidential information was enough to give rise to a claim under the Defend Trade Secrets Act (DTSA) (for more on that case, see William Brian London’s post for Fisher & Phillips’ Non-Compete and Trade Secrets Blog).  As for the other question — whether a court will be willing to enter an injunction based on downloading — the answer is less clear.

Continue Reading Is Downloading Confidential Information Enough For An Injunction Under The Defend Trade Secrets Act?