The Ninth Circuit recently certified a question to the California Supreme Court regarding the scope of California Business & Professions Code Section 16600. As TSW readers are likely aware, Section 16600 states that “[e]very contract by which anyone is restrained from engaging in a lawful profession, trade or business of any kind is to that extent void.” Pursuant to this statute, California courts have struck down a number of restrictive covenants in contracts with employees in California, including non-compete provisions, customer non-solicit provisions, and certain employee non-solicit provisions. The Ninth Circuit now wants to know whether the statute should apply to an agreement between two businesses. The Supreme Court’s answer may have significant effects on business agreements and collaborations in or involving California. READ MORE
He has extensive experience advising on distribution law and distribution system issues (including competitor collaborations, pricing issues, non-price restraints and dealer termination issues). He routinely addresses and counsels on the antitrust / intellectual property interface.
Howard currently represents Delta Dental of California and other Delta Dental entities in several litigations, including the In re Delta Dental Antitrust Litigation.
Howard represents Nanya Technology Corporation and Nanya Technology Corporation USA in the national DRAM antitrust price-fixing cases. Other price-fixing experience includes representation of a defendant in the DRAM antitrust price-fixing litigation and a large purchaser in connection with the SRAM antitrust price-fixing litigation, and representation of companies in alleged school milk and paint pigment cartels.
He has also worked on antitrust cases for PG&E Corporation, Equifax, One Technologies, and a number of other companies. He regularly counsels companies on competition issues, including Robinson-Patman Act (price discrimination) issues and market concentration issues. He has worked on a number of Cal. Bus. and Prof. Code Section 17200 (unfair competition) litigations. He has also worked on a number of antitrust-healthcare related matters, including mergers and acquisitions.
Howard has worked on antitrust cases in the life insurance industry and for Microsoft Corp. in connection with intellectual property issues. He recently finished cases for a supplier of industrial equipment (commercial scales) and involving below-cost pricing in the retail gasoline industry. He also recently worked on a Section 2 case for a pool products manufacturer that resolved favorably.
Posts by: Howard Ullman
On May 11, 2016, the U.S. Defend Trade Secrets Act (DTSA) created a federal remedy for trade secret misappropriation and added trade secret theft as an act that can form a predicate for Racketeering Influenced and Corrupt Organizations Act (RICO) violations. Since the DTSA’s enactment, a number of courts have held that the DTSA does not apply retroactively to misappropriation occurring prior to enactment unless there is continuing use (i.e., an act constituting misappropriation after the DTSA’s enactment despite the acquisition occurring pre-enactment). Recently, a court in the Northern District of California found the same to be true for RICO claims predicated upon misappropriation occurring prior to the DTSA’s enactment. In Eli Attia v. Google, the court dismissed with prejudice plaintiff’s fifth amended complaint alleging RICO violations based on criminal trade secret theft and misappropriation that occurred in 2011 and 2012. 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
Several months ago, we reported on the potential to protect trade secrets by encrypting information using blockchain technology. Then, earlier this month, we reported on an order out of the Southern District of California involving “CryptoKitties,” a decentralized application (or “DApp”) built on the Ethereum blockchain (using the ERC721 protocol) that allows users to securely buy, sell, trade, and breed genetically unique virtual cats.
While the potential to protect trade secrets using blockchain technology is clear, the reasoning in the CryptoKitties order raises questions regarding whether blockchain technology could constitute a trade secret in and of itself or when combined with other concepts or business methods pursuant to Federal and California law.
In 2013, U.S. Customs and Border Protection agents caught researchers attempting to smuggle a $75 million trade secret from the United States to China. Unlike the trade secrets we usually discuss, the trade secrets in tow were rice seeds. But not just any rice seeds: these valuable seeds were genetically modified to create proteins used to treat gastrointestinal disease, antibiotic-associated diarrhea, hepatic disease, osteoporosis and inflammatory bowel disease. READ MORE