Consider this: a former employee has just left his or her employer and may have taken trade secrets to a competitor. Can the employer log in to that former employee’s personal social media account to search for potentially incriminating evidence? For most employers, the answer may be “no,” as doing so may be unlawful or at a minimum, may constitute “unclean hands” (a doctrine barring equitable relief when the party seeking the relief has committed misconduct related to the claims at issue) possibly jeopardizing the employer’s trade secret misappropriation (and other claims) against the former employee. READ MORE
Daniel J. Corbett
Daniel Corbett is a member of the employment law group at Orrick’s Global Operations Center in Wheeling, West Virginia. Dan provides high-value employment litigation and counseling services to global leaders in a variety of sectors, including retail, tech, and financial services.
Dan has deep experience in a number of areas, including wage-and-hour class actions, trade secrets and unfair competition, discrimination and harassment claims, and whistleblower matters. He brings three years of intellectual property (IP) experience to Orrick, having practiced in the areas of copyright and trademark law prior to joining Orrick in the employment group. Dan co-founded Orrick's Trade Secrets Watch blog, and he continues to serve on the editorial board. The blog quickly established itself as a leading voice in the trade secrets area and has enjoyed a positive profile on Page 1 of The Recorder and discussion in media such as Corporate Counsel, Bloomberg, and Law360.
For the third straight year, Orrick’s Employment Law and Litigation group was recently named Labor & Employment Department of the Year in California by The Recorder, the premier source for legal news, in recognition of their significant wins on behalf of leading multinational companies on today’s most complex and challenging employment law matters.
Prior to joining Orrick, Dan worked at Elliott & Davis in Pittsburgh, where his practice focused on trademark and copyright law. He has worked as a grant writing consultant for nonprofit organizations and as an intern with a public policy think-tank in Washington, D.C. Dan studied journalism in college, where he worked for a local newspaper and a public radio station.
Dan is an avid runner and completed five marathons in five consecutive years before (temporarily) hanging up his running shoes after he and his wife welcomed their second child. He currently gets most of his exercise chasing after toddlers.
Posts by: Daniel Corbett
With the holidays behind us and our calendars flipped over to 2019, we’re taking a look back at some key trade secrets developments of the past year. Here are some of the big cases and legislative developments from 2018. READ MORE
On October 25, the U.S. District Court for the District of Massachusetts denied motions for injunctive relief in a case involving trade secrets allegedly stolen by a departing consultant using his personal computer to sync with the company’s Dropbox. This case established (1) Massachusetts’ newly enacted Uniform Trade Secrets Act (“UTSA”) does not apply retroactively even if the violation is continuing; and (2) intent to use a trade secret is a hurdle which Plaintiffs can struggle to show where there is not evidence of actual use and the defendant takes steps at remediation. READ MORE
On August 7, 2018, the Eleventh Circuit affirmed summary judgment in favor of defendant in Yellowfin Yachts v. Barker Boatworks, LLC. Sending the rival high-end boatmakers back to shore after a two-year dispute, the Eleventh Circuit concluded, among other things, that plaintiff had not done enough to maintain the secrecy of its alleged trade secret information. READ MORE
As we’ve observed over the years, when addressing trade secrets claims based on customer lists, courts have landed all over the place. These cases involve difficult questions such as when an employee develops relationships on behalf of Company A but then leaves for Company B, who “owns” those relationships?
A recent federal district court decision from the District of Hawaii, WHIC LLC dba Aloha Toxicology v. Nextgen Labs, Inc., offers an example of how the severity of the alleged misconduct may enable the employer to prevail, even if it can make only a marginal showing on the existence of a trade secret. On September 17, 2018, the court granted the plaintiff drug testing company’s request for a preliminary injunction, requiring, among other things, its competitor to stop servicing certain former clients of the plaintiff. READ MORE
Now, roughly five years and one federal trade secrets statute later, Massachusetts has become the 49th state, leaving New York as the lone holdout. The new law, which takes effect on October 1, 2018, is part of an amendment to a $1.1 billion economic development bill that Massachusetts Governor Charlie Baker signed into law on August 10, 2018. With the enactment of the UTSA, Massachusetts courts will have newfound power to enter injunctions against actual or threatened misappropriation of trade secrets.
Several of our previous posts have covered the trade secrets implications of laws that require disclosure of hydraulic fracturing fluid ingredients. As today’s method of hydraulic fracturing combined with horizontal drilling in shale formations rose to prominence in recent years, so too did the public’s concern over chemicals contained within fracturing fluid. Even before the existence of state mandatory disclosure laws, like the one enacted in Wyoming in 2010, there was a fair amount of general information publicly available about the composition of hydraulic fracturing fluid. However, much information remains confidential as trade secrets. READ MORE
But, as the cowboy in the cult-classic film The Big Lebowski noted, “Sometimes you eat the bear, and sometimes, well, he eats you.” So, this time, we are discussing a recent case that involved the question of when trade secret claims are preempted by Copyright Law. READ MORE