In every trade secrets case, the plaintiff faces the same fundamental dilemma: In order to enforce their rights in court, they must identify (at least to some degree) the trade secrets at issue. Although California has adopted a reasonable particularity requirement by statute, how much detail plaintiffs must provide when identifying their trade secrets in litigation continues to vary state-by-state. The answer is no clearer under federal law, as the Defend Trade Secrets Act is silent as to this issue.
Notwithstanding, the level of particularity required is an ongoing issue that courts continue to grapple with. For example, Texas’s highest court may weigh in for the first time on the degree of specificity plaintiffs must provide when identifying trade secrets allegedly misappropriated under the Texas Uniform Trade Secrets Act (TUTSA). READ MORE
We’ve blogged a lot about the Defend Trade Secrets Act in the roughly year-and-a-half period since the law was enacted. Our coverage has run the gamut: from the first jury verdict under the DTSA, to the U.S. Patent and Trademark Office’s emerging interest in trade secrets, to the once-controversial ex parte seizure provision that, so far, has been used very little in practice. READ MORE
It turns out that, even in romantic relationships, some things are best kept secret. On July 7, 2017, Teva Pharmaceuticals USA, Inc. filed a complaint in the Eastern District of Pennsylvania alleging that a former executive disclosed confidential information to a romantic partner who happens to be an executive of one of Teva’s direct competitors. READ MORE
(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.
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.
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
In a dispute over ripped off recipes, counsel for victorious plaintiff Dalmatia Import Group hailed the jury verdict as the first of its kind under the Defend Trade Secrets Act, as we previously reported. Not so fast, sulked the defendants, Dalmatia’s erstwhile manufacturer Lancaster Fine Foods and distributor FoodMatch, in a filing this month. While acknowledging their defeat under the Pennsylvania Uniform Trade Secrets Act, the defendants nevertheless urged the court not to enter judgment under the DTSA.
In little under a year after its enactment, a Federal Court jury in the Eastern District of Pennsylvania issued the first verdict under the Defend Trade Secrets Act in favor of the Plaintiff Dalmatia Import Group, Inc. The jury awarded Dalmatia $2.5 Million in total damages for all claims, with $500,000 attributed to its DTSA and Pennsylvania Uniform Trade Secrets Act claim. Just this week, Dalmatia filed a motion for judgement on the verdict, seeking treble damages for its related trademark and counterfeiting claims. If the court awards treble damages, total damages could exceed $5 Million.
A dismissal with prejudice is a plaintiff’s worst fear realized. When it comes to alleging a proper claim for trade secret misappropriation, the Western District of Kentucky recently reminded plaintiffs just how critical it is to “kick the tires.” In Raben Tire Co., LLC v. McFarland, Case No. 5:16-cv-00141 (W.D. Ken.), plaintiff Raben Tire Co., LLC, alleged misappropriation of trade secrets against two former employees under the Defend Trade Secrets Act of 2016 (“DTSA”), 18 U.S.C. § 1831 et seq., and the Kentucky Uniform Trade Secrets Act (“KUTSA”), Ky. Rev. Stat. § 365.880 et seq., along with a handful of additional common-law claims. 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