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Don’t Worry, Your Secret is Safe With Me

Many defendants attempt to defend claims for trade secret misappropriation by claiming that they never used or disclosed the information in question. Based on a recent ruling by a federal district court in New York, however, that may not matter. In AUA Private Equity Partners, LLC v. Soto, No. 1:17-CV-8035-GHW (S.D.N.Y. Apr. 5, 2018), an employer filed suit against one of its former employees, asserting claims for trade secret misappropriation under the Defend Trade Secrets Act (“DTSA”), the federal law enacted in May 2016. The employer alleged that shortly before her termination, the employee uploaded files containing confidential and proprietary business information from her company-issued laptop to her personal cloud storage account on Google Drive. Following a preliminary injunction hearing, the employee moved to dismiss the employer’s DTSA claim on grounds that the employer did not allege that she ever used or disclosed the files, only that she acquired them.

Did Your Non-Compete Agreement Just Get Laid Off?

Imagine this scenario: Like most businesses, you have undergone the effort and expense of recruiting quality talent to join your workforce. After employment offers are extended and accepted, you provide valuable training to your newest employees. To protect your investment, you have obtained a strongly worded and enforceable non-compete agreement.

Combatting Corporate Espionage In The Digital Age

In the modern age of relatively cheap and ever-evolving technology, corporate espionage is a real threat that could be perpetrated by any employee or other insider at any time. The term “corporate espionage” covers many different types of behavior, ordinarily taking the form of a malicious company insider secretly stealing confidential company information, usually for use in a competing business. The insider may be planning on joining an existing competitor, or may be planning on founding a new competing business of their own. In essence, however, the term refers to any act of spying that is carried out for commercial purposes. Regardless of the form it takes, the wrongdoer will be looking to exploit the time, money, and hard work you have put in to make your business successful for their own malicious purposes.

Can Silicon Valley Keep a (Trade) Secret?

The simplest, most valuable, yet commonly overlooked piece of advice any trade secret owner can receive is this: Protect yours trade secrets! It seems crazy that this simple advice warrants repeating, but apparently, it does, particularly in Silicon Valley where billions of dollars have been spent researching and developing electric and autonomous vehicle technology.

Restrictive Covenants Place In-House Attorneys in a Real Predicament – But Are They Enforceable?

Employers enter into restrictive covenants with members of their workforce to protect their trade secrets and confidential information, particularly with employees who have access to such information. As in-house counsel become more involved in business affairs and put on a business “hat” for some of their roles, they may have more exposure to sensitive, non-public information about the business that can either be helpful to competitors or would cause damage to the business if disclosed to the outside world. Accordingly, an increasing number of businesses are entering into restrictive covenant agreements with in-house attorneys. But are such agreements enforceable?

Lessons From The Waymo v Uber Trade Secrets Trial

Just hours after the Eagles clinched their upset Super Bowl win over the Patriots, a different battle royale began in a San Francisco courtroom between an established juggernaut and its upstart rival. For techies and trade secret geeks, the Waymo v. Uber trial was shaping up to be the Super Bowl of trade secret litigation. The lead-up to the trial had more surprises than a Justin Timberlake halftime show (though fewer wardrobe malfunctions).

"No Poaching" Agreements Could Be Subject to Criminal Enforcement by DOJ

The Department of Justice (DOJ) appears poised to bring criminal enforcement actions against employers that have "no poaching" agreements in place. A no-poaching agreement is an agreement between employers not to recruit certain employees or not to compete on compensation terms.

Employers are Subject to Criminal Antitrust Charges for Wage-Fixing and No-Poaching Agreements

On January 19, 2018, the Assistant Attorney General for Antitrust, Makan Delrahim, announced that in the coming months the Department of Justice (DOJ) expects to bring its first criminal antitrust charges involving agreements among competitors not to solicit each other’s employees – referred to as “no-poaching agreements.” Delrahim’s comments make it clear that going forward, the DOJ will treat wage-fixing and no-poaching agreements between competitors as per se criminal cartel activity; i.e., in the same way it traditionally treats price-fixing, bid-rigging and customer allocation agreements among competitor firms.

Lead Antitrust Attorney Hints At Upcoming Prosecutions For No-Poach Agreements

The chief prosecutor in the U.S. Department of Justice’s Antitrust Division signaled last week that his unit expects to initiate criminal actions against multiple companies accused of entering unlawful pacts not to hire each other’s employees.

A Protocol On Life Support – Financial Industry Assesses The Aftermath Of Major Defections From Broker Recruitment Pact

In the fourth quarter of 2017, two major financial firms dropped out of an industry-wide Protocol for Broker Recruiting (the “Protocol”), an agreement designed to reduce litigation surrounding the movement of stockbrokers between competing firms. While those departures do not necessarily seal the fate of the Protocol, they do portend an increase in litigation to enforce customer non-solicitation covenants against departing brokers.