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Time to Amend the DTSA
In 2016, Congress passed the Defend Trade Secrets Act (the “DTSA”). The vote was unanimous in the Senate and 410:2 in the House. President Obama signed it on May 11, 2016.
Codified at 18 U.S.C. § 1836, et seq., the DTSA created a federal private right of action for trade secret owners to sue for the misappropriation of their secrets.
But, as John Marsh has pointed out, “the DTSA is far from perfect. Like the Uniform Trade Secrets Act on which it was based, the DTSA can be improved as trade secret law evolves.”
There are certainly plenty of people who engage in culpable, willful misappropriation of trade secrets. The DTSA was designed to address that.
But others get caught up in the DTSA’s enforcement mechanism far longer than they should be.
Many defendants (typically former employees) are either wrongfully accused of taking information that they did not take, or are accused of taking information that they did take, but that they had not intended to take or even realized they took. For example, employees often forget that they have company information on thumb drives they used for work, or in their email, or backed up on personal devices as part of routine computer or cellphone backups.
There are also plenty of employees who made a mistake of judgment and took information they should not have taken.
Many of the employees who have their former employer’s information will — at least once counsel is involved — promptly realize the error of they ways and cooperate with the trade secret owner to ensure that all information is returned and that all copies are permanently removed from their possession. Nevertheless, in many of those cases, the former employer continues to press the misappropriation claim, long after any potential material harm has been addressed.
Having represented many such defendants, John has identified two proposed amendments to the DTSA:
- (1) a “safe harbor” provision for penitent defendants who have agreed to an injunction and are cooperating in a litigation; and
- (2) a trade secret identification requirement similar to the Model Local Rule suggested by the Sedona Conference’s Trade Secrets Working Group.
Join John, Ben, and Russell as they discuss John’s suggested amendments – and their plans to try to make those a reality.
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.
Exploring the FTC’s Proposed Ban on Noncompetes (Fairly Competing, Episode 20)
The FTC just proposed a ban on noncompetes with virtually no exceptions. And, they have placed nondisclosure agreements and other restrictive covenants squarely in the crosshairs.
Join John, Ben, and Russell as they take a look at the FTC’s proposed ban on noncompetes, how we got here, what the proposed rule would do and when, the potential practical and legal problems with it, the opportunity to provide comments to the FTC about it, what employers should do in the interim to protect their trade secrets and customer goodwill, and predictions on where this all goes.
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.
2022 Year In Review (Fairly Competing, Episode 19)
Happy Holidays!
Join John, Ben, and Russell as they take a look back on some of the more significant developments in trade secret and restrictive covenant law from the past year and what to be expecting in the coming year. They discuss recent criminal prosecutions for use of no-poach agreements, legislative changes to state noncompete and nonsolicitation laws, federal regulatory and legislative efforts to limit or ban noncompetes, eye-popping trade secret damage awards, and developing trends in the way trade secret cases are being handled and tried.
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.
Catching up with AIPLA Presidents and Executive Director about Trade Secrets (Fairly Competing, Episode 18)
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 AIPLA Annual Meeting in Washington, D.C. We caught up about their experience with the AIPLA and the AIPLA’s Trade Secret Law Committee, and the importance of trade secret law more generally and its place with other forms of intellectual property. Enjoy the conversation!
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.
Don’t go too far when investigating trade secret misappropriation by an employee (Fairly Competing, Episode 17)
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 discusses in a recent article about the case, “Employers often assume they are empowered to exercise broad discretion when investigating employee computer misconduct, especially when employees are suspected of using company emails or computers to engage in the misconduct. However, employers should be aware of potential liability that could arise from their digital investigations and monitoring of employee computer and email use.”
In this episode, John, Ben, and Russell discuss how the teachings of the Patel v. Duke Hospitality LLC case affect what employers can and cannot do when they suspect misappropriation by a departing employee.
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.
The Key to Seeking and Defending Against Temporary Restraining Orders (Fairly Competing, Episode 16)
Temporary retraining orders (called, “TROs”) are a staple of trade secret and restrictive covenant litigation. In this episode, John, Ben, and Russell discuss what you need to know when you are either seeking or defending against a TRO in a trade secret or noncompete case.
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.
Fairly Competing, Episode 14: Irreparable Harm in Trade Secret Cases
In this episode, John, Ben, and Russell discuss the requirement of irreparable harm for injunctive relief in trade secret disputes through a discussion with special guest Vicki Cundiff, one of the true deans of the trade secret bar.
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.
Fairly Competing, Episode 13: Year in Review
In this episode, John, Ben, and Russell take a look back on some of the more significant developments in trade secret and restrictive covenant law over the past year, and try to give some insight into what to expect in the coming year.
So, come join us on Spotify or Apple Podcasts. Or, if you’re just looking for the feed to load into your reader, it’s here: Fairly Competing RSS feed.
Fairly Competing, Episode 12: Wisk Aero LLC v. Archer Aviation Inc. (How to Avoid Dismissal and Get an Injunction in Trade Secret Cases)
In this episode, John, Ben, and Russell explore an important, extremely well-reasoned, recent decision by U.S. District Court Judge William Orrick in Wisk Aero LLC v. Archer Aviation Inc.
The case offers an object lesson about preliminary injunctions in trade secret cases, highlighting that it’s no longer safe to assume you will get a preliminary injunction simply because a former employee downloaded 5,000 documents — even if he invokes the 5th Amendment… well, at least in California — and, as we discuss, probably beyond California too. But, good news: Your case probably won’t be dismissed. We explain all of this through an examination of the decision, why the court came out as it did, what it signals, and what we can learn from it.
So, come join us on Spotify or Apple Podcasts. Or, if you’re just looking for the feed to load into your reader, it’s here: Fairly Competing RSS feed.
Fairly Competing, Episode 9: Litigating Trade Secret Cases Generally and Post-COVID (Part 2 – Civility)
This episode continues our discussion about litigating trade secret cases generally and post-COVID, this time with a focus on the reasons for the lack of civility in trade secret and restrictive covenant cases — and what to do about it.
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.
Fairly Competing, Episode 8: Litigating Trade Secret Cases Generally and Post-COVID
This episode covers litigating trade secret cases — including expedited discovery, depositions, protective orders, and hearings on motions for temporary restraining orders and preliminary injunctions — generally and post-COVID.
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.
Fairly Competing, Episode 8: Litigating Trade Secret Cases Generally and Post-COVID
Fairly Competing, Episode 7: Trade Secret Roundtable on Developments and Emerging Issues (NERA Economic Consulting Program, Part 2)
This episode is a departure from our usual. We are making available (through this episode and the last) Trade Secret Roundtable on Developments and Emerging Issues, a program presented by NERA Economic Consulting at which John, Ben, and Russell were panelists, along with Dr. Stephanie Demperio and Vicki Cundiff.
In our last episode, part one of the program, we covered what satisfies the reasonable efforts requirement and considerations in early case assessment, including when and how to involve an expert.
In today’s episode, part two of the program, we cover how the COVID-19 pandemic has impacted trade secret litigation and new developments in noncompete legislation and the expected impact on trade secrets litigation.
You can follow us on Spotify or Apple Podcasts. Or, if you’re just looking for the feed, it’s here: Fairly Competing RSS feed.
Fairly Competing, Episode 6: Trade Secret Roundtable on Developments and Emerging Issues (NERA Economic Consulting Program)
This episode is a departure from our usual. We are making available (through this episode and the next) Trade Secret Roundtable on Developments and Emerging Issues, a program presented by NERA Economic Consulting at which John, Ben, and Russell were panelists, along with Dr. Stephanie Demperio and Vicki Cundiff.
The program covers emerging issues in trade secrets litigation, including what satisfies the reasonable efforts requirement; considerations in early case assessment, including when and how to involve an expert; how the COVID-19 pandemic has impacted trade secret litigation; and new developments in noncompete agreements and the expected impact on trade secrets litigation.
You can follow us on Spotify or Apple Podcasts. Or, if you’re just looking for the feed, it’s here: Fairly Competing RSS feed.
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