Posts by: Editorial Board

That’s a Cut: “Textbook Reparable Harm” was “Showstopper” to Video-Streamers’ Preliminary Injunction Request

Posted on

The lawsuit between Swarmify and Cloudflare recently produced an Order in which U.S. District Court Judge William Alsup denied Swarmify’s motion for a preliminary injunction, and also offers a cautionary tale about what activities might result in bloggers being hauled into Court.

In 2016, Swarmify, a start-up focused on affordable video streaming, and Cloudflare, a corporation that uses a network of data centers for content delivery, entered into confidential negotiations regarding Cloudflare’s potential acquisition of Swarmify. During these discussions, Swarmify disclosed to Cloudflare some confidential information about the company’s proprietary streaming method, including a pending unpublished patent application, but notably did not disclose any computer code. While the discussions were ongoing, Cloudflare offered employment to Swarmify’s CEO and the senior developer of Swarmify’s proprietary streaming method.  Both individuals declined, and informed Cloudflare any movement on their part would have to come through Cloudflare’s acquisition of their company. The companies ended negotiations and parted ways, but not for long. READ MORE →

David Nosal Raises Unusual Fairness Argument in Yet Another Attempt to Avoid 366-Day Prison Sentence

Posted on

Just over four years ago, in January 2014, a court sentenced former Korn/Ferry regional director David Nosal to one year and one day in prison for violations of the federal Computer Fraud and Abuse Act and the Espionage Act.  Nosal appealed the sentence, but his appeals ultimately failed: the U.S. Court of Appeals for the Ninth Circuit upheld Nosal’s sentence, and the U.S. Supreme Court denied review of the case.  Luckily for Nosal, his 2014 motion for release pending appeal was granted, so he has not served any time during the four years of appeals. READ MORE →

THANKSGIVING EDITION: Looking Back at Turkey Trade Secrets in the US and Understanding Employer Remedies in the UK

Posted on

As our United States readers prepare for the holiday weekend, we look back to a post from the archives where we dished about franchise relationships gone awry and a trade secrets dispute over turkey sandwiches.  The takeaway:  Savvy franchisors should consider revisiting their agreements with an eye toward gaining admissions from franchisees that certain materials constitute trade secrets.

And while our readers in the rest of the world wrap up the work week, companies in the United Kingdom may have a reason to be thankful.  As our colleagues over at the Employment Law and Litigation blog discuss, a recent High Court decision granted an order allowing an employer to image a departing employee’s computer to see if it contained confidential information.

This post is a good read not only for those in the UK but for any company interested in protecting its trade secrets and confidential information.  For example, the post includes this tip, which has fairly broad impact:  You will be more likely to persuade a court to rule in your favor if you offer limitations and controls in the carrying out of a forensic search of a computer or other device.

AEO Designations: A Balance Between Protecting Trade Secrets And Allowing Defendants To Defend Themselves

Posted on

Whenever a trade secret owner asserts its rights in court against a party alleged to have misappropriated the trade secret, there is always a risk that the trade secret will be publicly disclosed during discovery or during trial, thereby resulting in a further uncontrollable dissemination of the trade secret.  The owner also faces a risk that information not included in the originally misappropriated information, will be disclosed during discovery, thereby possibly giving the adversary a free peak at new information.  One way to guard against the risk of such disclosure is the use of “AEO” or Attorneys’ Eyes Only designations in litigation protective orders for highly confidential materials, which limits the parties who can review such highly confidential information to attorneys only.  But as a recent case reminded us, the right to designate documents as AEO is not automatic; this protection of the plaintiff’s trade secrets and other highly confidential materials must also be balanced against the right of defendants to assist in their own defense. READ MORE →

Accounts Frozen: DOJ Alleges Seven Defendants Conspired To Misappropriate Trade Secrets

Posted on

Competition from Chinese companies shows no signs of slowing. Likewise, allegations of trade secret theft against Chinese companies are increasingly common. In this case, the U.S. Department of Justice linked allegations of trade secret theft with wire transfers from a Chinese company in order to freeze bank accounts and real property held by several defendants charged with conspiracy to steal trade secrets. READ MORE →

Excess Cargo? Shipping Common Law Claims Out of a Trade Secret Complaint

Posted on

AFS, a company specializing in streamlining shipping costs and logistics, had its eight count amended complaint streamlined to only one—its Tennessee Uniform Trade Secrets Act (“TUSTA”) claim—primarily due to preemption and AFS’s lack of specificity as to its common law claims.

AFS filed suit in December 2016 against two prior employees, Christopher Cochran and Alessandro Rustioni, and their new competing company, Freightwise LLC.  AFS’s complaint set forth the classic case of defecting employee trade secret theft.  Among other things, AFS alleged that Cochran and Rustioni founded Freightwise in 2014 while still employed for AFS.  Both continued to work for AFS in sales leadership positions until late 2015 and early 2016.  And, they allegedly conspired to and secretly organized Freightwise by soliciting one of AFS’s major clients and maliciously interfering with its high-value contracts. READ MORE →

Amendments to Texas UTSA Bring it Closer in Line with DTSA, but Differences Remain

Posted on

American and Texas state flags flying on the dome of the Texas State Capitol building in Austin Amendments to Texas UTSA Bring it Closer in Line with DTSA, but Differences Remain

(Editors’ note: Thanks to Orrick summer associate, Ruben Sindahl, for his help with this blog post.)

Just four years after the Lone Star State ended its holdout by becoming the 48th State to adopt the Uniform Trade Secrets Act, Texas passed a bill to amend its enactment. The bill was signed by Texas Governor Greg Abbott on May 19, 2017, and will take effect on September 1, 2017.

READ MORE →

ECONOMIC ESPIONAGE AND PROTECTING TRADE SECRETS: Ninth Circuit Holds That Reasonable Measures to Guard Technology are Sufficient

Posted on

How can you protect your trade secrets from a vast and well-concealed international effort to steal those secrets? What constitutes a “reasonable” effort to protect that information where at least one competitor may already have the information?  The Ninth Circuit recently opined on these matters in the ongoing saga of U.S. v. Liew.

In 2014, Walter Liew and his company, USA Performance Technology, Inc., were convicted of multiple offenses, including claims under the Economic Espionage Act and conveying misappropriated trade secrets to a third party. The trade secrets related to DuPont’s technology for producing titanium dioxide, which is used in a wide range of products such as paint and Oreo cookies. READ MORE →

USPTO’s Second Trade Secrets Symposium Looks Back on First Year of DTSA and Ahead Toward Challenges of International Trade Secrets Protection

Posted on

On May 8, 2017, the United States Patent and Trademark Office hosted its second event on trade secrets. When we covered the USPTO’s inaugural trade secrets symposium held in January 2015, there was a palpable sense among DC insiders that, at long last, federal trade secrets legislation was imminent.

Readers of this blog of course know the rest of that story: obviously the biggest change in the landscape since the last event was the passage of the Defend Trade Secrets Act of 2016.  In fact, the USPTO intentionally timed this event to fall near the one-year anniversary of the DTSA’s passage.

What else had changed in the last two years? To answer that question, I once again traveled to USPTO headquarters in Alexandria, VA to attend the symposium and provide TSW readers with the following report. READ MORE →