Defining Trade Secrets: Texas Supreme Court May Soon Decide How Particular Trade Secrets Owners Must Be in Court

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

Automation of Our Auto Nation: New Tech Requires a New Look at Trade Secret Laws

Self-driving cars—once a thing of the future—are now becoming a reality. And, as with any new technology, there is a learning curve. Once consumers are able to test out new products, they adapt, preferences change, and what once seemed absurd or over-the-top becomes commonplace. Manufacturers then face perhaps an even steeper learning curve, trying to stay one step ahead of what the public will demand—and two steps ahead of the competition. READ MORE

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

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

EVEN BAMBI IS A TRADE SECRET: Eastern District Of Texas Finds That Lineage and Genetic Information of Deer Are Trade Secrets, Grants Preliminary Injunction

As surprising as it may be to city dwellers, the deer farming industry generates $3 billion per year for the U.S. economy. According to the North American Deer Farmers Association, “deer farming is one of the fastest growing industries in rural America.”  The corollary of the deer farming industry is a burgeoning deer breeding industry. As a court in the Eastern District of Texas recently noted, the “deer breeding industry is a potentially lucrative industry with single straws of buck semen selling for $5,000 to $20,000 on average, and ranging all the way up to $1 million to purchase the entire buck.” READ MORE

Courts Still Heavily Favor Rule 65 TROs Over DTSA Ex Parte Seizures

Temporary Restraining Order acronoym in front of gavel image Courts Still Heavily Favor Rule 65 TROs Over DTSA Ex Parte Seizures

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.


A “Virtual” Home Is Not a Home: Court Sanctions Plaintiffs for “Reckless Disregard” in Deciding the Proper Forum for Their Litigation

Toy model house on pier by water A “Virtual” Home Is Not a Home: Court Sanctions Plaintiffs for “Reckless Disregard” in Deciding the Proper Forum for Their Litigation

The following blog post is courtesy of our sister blog, NorCal IP.

Usually, one benefit of being a plaintiff is deciding in what forum to pursue litigation.  Generally, even a foreign-based plaintiff may pursue litigation in a U.S. forum where a defendant may be found or in which there is a substantial connection to the litigation.  There are, however, limits on a plaintiff’s choice of forum, and a recent decision in Tapgerine LLC v. 50Mango, Inc. demonstrates that pushing those limits may result in sanctions.


ROADBLOCK IN PLACE: Court Grants Limited Preliminary Injunction in Waymo v. Uber

Imagine preparing for that big meeting on your way to work, while you ride along in your car—without the need for a driver. What sounds like it might be out of a sci-fi movie, may actually be the not-so-distant future.  Such technology is at the center of the Waymo LLC v. Uber Technologies, Inc. litigation. The self-driving technology at issue hasn’t been the only intriguing part of this case–the litigation itself has been action packed, and we’ve been watching closely. As you’ll recall from previous posts, Waymo alleged that, while working at Waymo, its star engineer Anthony Levandowski downloaded over 14,000 confidential files before leaving the company to start his own competing business, Ottomoto, which was later acquired by Uber.  The twists and turns of this fast-paced litigation have included Uber’s denied petition for arbitration, Fifth Amendment invocations by Levandowski and his failed appeal, a criminal referral by Judge William Alsup of the Northern District of California, and now an order granting a “limited” preliminary injunction blocking any participation of Levandowski in Uber’s self-driving car project. READ MORE

Don’t Friend My Friends: Nonsolicitation Agreements Should Account for Social Media Strategies

As social media becomes an important part of many companies’ sales and branding strategies, issues relating to companies’ ability to protect their investments in such strategies are emerging. Indeed, this blog has previously covered whether LinkedIn contacts can qualify as trade secrets (answer: maybe). Another such issue, recently addressed in a district court in Idaho, is whether and to what extent a nonsolicitation agreement can restrict a former employee’s Facebook interactions with the former employer’s customers. READ MORE

Misappropriation Versus the Copyright Act: Round 2 in the Fifth Circuit

A few months ago, Trade Secrets Watch covered the GlobeRanger Corp. case in which the Fifth Circuit joined 10 other circuits in determining that the Copyright Act does not preempt state trade secret misappropriation claims. The court used a two-prong test in its analysis, establishing that the Copyright Act could preempt a state law claim if two conditions are met: (1) if the work at issue fell within the subject matter of copyright; and (2) if the right that the litigant sought to protect was equivalent to any of the exclusive rights within the general scope of copyright. READ MORE

“It’s a Free Country, Right?” Court Declines to Enjoin Ex-Free Country Ltd. Employees From Contacting Customers on Purloined Contact List

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