The Defend Trade Secrets Act of 2016 was signed into law by President Obama on May 11, 2016. While the DTSA has been on the books for over a year, relatively few courts have addressed the ex parte seizure provision and even fewer have actually granted a seizure under the DTSA. This is likely due to the DTSA’s requirement that courts order property seizures only in extraordinary circumstances. In other words, courts are hesitant to grant DTSA ex parte seizure requests unless it is clear that the alleged misappropriator would disobey a TRO or preliminary injunction, or otherwise destroy, move, or hide trade secrets. Courts continue to favor FRCP 65 TROs and preliminary injunctions to protect trade secrets from disclosure or destruction. Under FRCP 65, courts can issue TROs and preliminary injunctions, but cannot order U.S. Marshalls to seize property from a defendant without notice. The following cases are illustrative.
The following blog post is courtesy of our sister blog, NorCal IP.
Usually, one benefit of being a plaintiff is deciding in what forum to pursue litigation. Generally, even a foreign-based plaintiff may pursue litigation in a U.S. forum where a defendant may be found or in which there is a substantial connection to the litigation. There are, however, limits on a plaintiff’s choice of forum, and a recent decision in Tapgerine LLC v. 50Mango, Inc. demonstrates that pushing those limits may result in sanctions.
Imagine preparing for that big meeting on your way to work, while you ride along in your car—without the need for a driver. What sounds like it might be out of a sci-fi movie, may actually be the not-so-distant future. Such technology is at the center of the Waymo LLC v. Uber Technologies, Inc. litigation. The self-driving technology at issue hasn’t been the only intriguing part of this case–the litigation itself has been action packed, and we’ve been watching closely. As you’ll recall from previous posts, Waymo alleged that, while working at Waymo, its star engineer Anthony Levandowski downloaded over 14,000 confidential files before leaving the company to start his own competing business, Ottomoto, which was later acquired by Uber. The twists and turns of this fast-paced litigation have included Uber’s denied petition for arbitration, Fifth Amendment invocations by Levandowski and his failed appeal, a criminal referral by Judge William Alsup of the Northern District of California, and now an order granting a “limited” preliminary injunction blocking any participation of Levandowski in Uber’s self-driving car project. READ MORE
As social media becomes an important part of many companies’ sales and branding strategies, issues relating to companies’ ability to protect their investments in such strategies are emerging. Indeed, this blog has previously covered whether LinkedIn contacts can qualify as trade secrets (answer: maybe). Another such issue, recently addressed in a district court in Idaho, is whether and to what extent a nonsolicitation agreement can restrict a former employee’s Facebook interactions with the former employer’s customers. READ MORE
A few months ago, Trade Secrets Watch covered the GlobeRanger Corp. case in which the Fifth Circuit joined 10 other circuits in determining that the Copyright Act does not preempt state trade secret misappropriation claims. The court used a two-prong test in its analysis, establishing that the Copyright Act could preempt a state law claim if two conditions are met: (1) if the work at issue fell within the subject matter of copyright; and (2) if the right that the litigant sought to protect was equivalent to any of the exclusive rights within the general scope of copyright. READ MORE
Within days of each other, your clothing company―Free Country Ltd.―loses two employees who decamp to a rival to set up a competing apparel line. You discover that just before leaving, they transferred some 50,000 documents to a personal account—customer orders, your master contact list, and product design information. Incensed, you file a trade secrets lawsuit and seek an injunction prohibiting the thieves from soliciting your customers. Their defense amounts to, “so what if we took the documents―it’s a free country!” Easy win, right? Wrong. These are the facts of a recent trade secrets lawsuit in the Southern District of New York, in which the court denied the plaintiff’s request that its former employee defendants be prohibited from soliciting plaintiff’s customers. READ MORE
The holiday season is officially upon us: peppermint mochas have popped up on coffee shop menus, carols ring from department store speakers, and you can’t turn on the television without seeing at least three diamond commercials. But it’s not all yuletide and merriment for those in the diamond business. As one diamond importer and wholesaler recently learned, sometimes instead of a gem you get a lump of coal—in this case, from the Northern District of California, which tossed out certain claims against a former business partner on the grounds those claims were preempted by the California Uniform Trade Secrets Act. READ MORE
The Federal Circuit recently issued another Rule 36 affirmance of an International Trade Commission order barring the importation of products made using misappropriated trade secrets. (See our previous post about another Rule 36 affirmance of an ITC trade secrets order here.) This time, the Commission barred for ten years the importation into the U.S. of crawler cranes that relied on the trade secrets at issue. READ MORE
The “gist of action” doctrine. Heard of it? Well, if you are dealing with Pennsylvania law, you need to know it. The “gist of action” doctrine asks whether the “gist” of a suit sounds in tort or contract. When applied to a claim of trade secret misappropriation, the doctrine questions whether the wrongful acts constitute a tort or a breach of contract. If the wrongful acts constitute a breach of contract, Pennsylvania law bars any trade secret claim. As evidenced by the case Wiggins v. Physiologic Assessment Services, LLC, whether a claim can be brought as a trade secret claim or a breach of contract claim can turn on the wording of the contract at issue. READ MORE
Over the years, it has proven difficult to fit software in any one category of IP protection. And while software’s ability to seemingly transcend patents, copyright, and trade secrets provides software developers and technology companies with options, it also makes it challenging to decide which will provide the best way to enforce those rights. There are obviously risks and benefits to each form of protection. However, the courts have reduced at least one risk: preemption of state trade secret laws by the Copyright Act. READ MORE