Posts by: Mark Mermelstein

Kittens, Stephen Curry, and Cryptocurrency: This Trade Secrets Case Has It All.

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What do kittens, three-time NBA Finals champion Stephen Curry, and cryptocurrency have in common?

On May 7, 2018, a subsidiary of Launch Labs, a Canadian corporation doing business as Axiom Zen, released cryptocollectibles called “CurryKittens.”  Cryptocollectibles are unique, digital tokens created using blockchain technology.  The CurryKittens, a type of Cryptocollectible, were virtual kittens with the likeness of NBA star Stephen Curry.  The CurryKittens were three of many virtual cats that could be securely bought, sold, traded, and bred on the multimillion dollar- generating CryptoKitties platform.  (An image of the now suspended “CurryKittens” can be found here.) READ MORE →

A Bump in the Road: An Update on the Waymo v. Uber Litigation

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The Waymo v. Uber trade secrets litigation has been underway for less than two months but the case has already hit quite few speed bumps with multiple discovery battles, Waymo’s efforts to obtain a preliminary injunction from Judge William Alsup of Northern District of California, a fight over arbitration, assertions of 5th Amendment rights, and now an appeal to the Federal Circuit that has temporarily halted a portion of the district court proceedings.

As a quick recap of how we got here, Waymo alleges that one of its former key managers in charge of Waymo’s driverless car business, Anthony Levandowski, downloaded more than 14,000 files to start a competing company—Otto—that Uber later purchased.  The key technology relates to a LiDAR system, which is mounted on top of the car and gives the driverless car the ability to “see” other cars and obstacles.  Waymo is seeking a preliminary injunction enjoining Uber from using or disclosing any of Waymo’s trade secrets and from selling any devices based on Waymo’s patents.  In aid of the PI hearing on May 3, 2017, the parties are engaging in expedited discovery. Since this case started, the docket has been quite active and full of interesting, thorny legal issues. READ MORE →

Baring It All: Judge Orders Swingers’ Club to Produce Email Distribution List

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A recent case in the Southern District of Florida serves as a reminder that even trade secrets may be subject to production to opposing counsel. Magistrate Judge Jonathan Goodman recently ordered a defendant “swingers’” club to produce its email distribution list to plaintiffs in Edmonson v. Velvet Lifestyles, LLC (S.D. Fla. Dec. 5, 2016). READ MORE →

No Explicit Efforts to Maintain Secrecy? No Problem, Suggests the Ninth Circuit

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In Direct Technologies, LLC v. Electronic Arts, Inc., the Ninth Circuit set forth an interesting take on what is sufficient to demonstrate reasonable efforts to maintain secrecy under the California Uniform Trade Secrets Act (“CUTSA”). In the case, plaintiff Direct Technologies, LLC asserted a trade secret misappropriation claim against defendant Electronic Arts regarding the disclosure of its usb drive prototype for Electronic Arts to a third-party. The district court granted summary judgment for Electronic Arts, finding that no reasonable jury could find that Direct Technologies had taken reasonable efforts to maintain the confidentiality of its prototype. READ MORE →

Practical Tips: Keeping Trade Secrets Safe During Litigation – Texas Supreme Court Edition

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Last week, the Texas Supreme Court provided its first opinion interpreting the Texas Uniform Trade Secrets Act in a case involving an issue that often causes discomfort to lawyers on both sides of the “v” in trade secret misappropriation cases: how much of their trade secrets do plaintiffs have to disclose to enable the defendant to adequately defend itself? The opinion in In re M-I L.L.C. d/b/a M-I Swaco, 2016 WL 2981342 (Tex., May 20, 2016) demonstrates this tension. READ MORE →

Trade Secrets Unwrapped: Packaging Materials Case Demonstrates The Importance Of Keeping Confidential Information Sealed Shut

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There are many ways to gain trade secret protection, but also many ways to lose it. As the recent motion to dismiss ruling in Fleetwood Packaging v. Hein from the Northern District of Illinois illustrates, how a company vacuum packs its confidential information can make all the difference between preserving it and watching it get spoiled by a competitor. READ MORE →

Filer Beware! E-Filing Error Can Destroy Trade Secret Status

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First rule of thumb in trade secrets litigation? A trade secret must be kept secret. It is painfully obvious, but modern practitioners must not grow complacent due to the convenience of electronic filing. Although trade secrets law does not command absolute secrecy, a recent e-filing snafu in HMS Holdings Corp. v. Arendt offers a cautionary tale from New York on how one botched upload could jeopardize a client’s most prized possession. READ MORE →

Will Your Cyber Insurance Respond When You Need It Most?

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As many companies are considering purchasing cyber insurance, they often wonder: “Will my insurer be there when I have a data breach?”  Cyber insurers have generally been good in paying claims. But the recent lawsuit featured in this Orrick Client Alert demonstrates that as the landscape evolves, insurers may refuse to cover breach costs by arguing that insureds failed to meet “minimum requirements” for cybersecurity. Tending to cybersecurity policies and procedures before breaches occur is more important than ever. READ MORE →

All Bets Are Off: Kentucky Downs Trade Secrets Case Presents Novel Question Under Kentucky’s Uniform Trade Secrets Act

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Earlier this month, AmTote International, Inc. sued the famed Kentucky Downs racetrack, three high-ranking Kentucky Downs employees, and Encore Gaming, LLC in federal court alleging misappropriation of trade secrets related to horse racing betting machines.  AmTote’s lawsuit presents the interesting question of whether the “inevitable disclosure” doctrine applies under Kentucky law. READ MORE →

New Opposition to the EU Trade Secrets Directive

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Not everyone is happy about the proposed EU Trade Secrets Directive.  When we last touched on this topic a couple of months ago, the European Union looked poised to enact a sweeping new legal regime that would harmonize trade secrets law across all member states.  The new framework was supposed to be a single, clear, and coherent legal regime for the protection of trade secrets.   And it was aimed at making it easier for national courts to deal with the misappropriation of confidential business information, remove trade-secret-infringing products from market, and facilitate compensation for illegal actions. READ MORE →