Seyfarth partners Erik Weibust, Jeremy Cohen, Scott Humphrey, and Marcus Mintz recently published an article entitled “Protecting Trade Secrets Without Breaking the Bank (or Even Negatively Affecting Profits)” in the Intellectual Property & Technology Law Journal. The article addresses the use of litigation funding in trade secret cases.

The Intellectual Property & Technology Law Journal helps intellectual property professionals solve practical problems with “how-to” articles on such topics as exit interviews, investigating the activities of former employees or competitors, and conducting an intellectual property audit.

Seyfarth Partners Jeremy Cohen, Marcus Mintz, and Erik Weibust have published an article entitled “Navigating and Weathering the COVID-19 Storm with Your Trade Secrets Intact” in Corporate Compliance Insights. The article addresses several of the topics they have been blogging about over the past two months, including what constitutes “reasonable measures” to protect trade secrets with a remote workforce; enforcing non-competes during times of high unemployment; preparing for and pursuing trade secret litigation during COVID-19; damages remedies; enforcing rights without breaking the bank; enforcing rights against financially troubled wrongdoers, and succeeding in a post-pandemic world.

With more than 100,00 readers from around the world each month, Corporate Compliance Insights is a forum designed to educate and encourage informed interaction within the corporate compliance community. It combines featured articles written by some of the most experienced compliance and ethics professionals in the world with regular updates of important news events in the world of governance, risk and compliance.

The Department of Justice recently announced that it had charged one of the largest independent oncology groups in the country, Florida Cancer Specialists & Research Institute LLC (“FCS”), with antitrust violations under the Sherman Act, an incredibly rare antitrust action against a health care provider and the first in 25 years. The DOJ’s investigation into criminal antitrust violations amongst oncology providers has led to the defendant’s agreement to pay a whopping $100M fine in exchange for the DOJ’s agreement to defer prosecution on the antitrust charges until 2023. Continue Reading First, Do No Harm: Oncology Group Agrees to $100M Fine Following Criminal Antitrust Investigation

On May 27, 2020, at 1:00 p.m. EDT, Seyfarth partner Erik Weibust will be presenting on a webinar for the ABA’s IPLSPRING CLE Series, which is being held in lieu of the ABA-IPL Annual Meeting this year due to COVID-19. The topic is “Trade Secret Law: What You Need to Know Now.” Erik will be speaking specifically on “Heightened Risks to Trade Secrets as a Result of COVID-19.”  In-house counsel from Lockheed Martin and Raytheon, along with other outside counsel, will also be presenting on the following topics:

  • Trade Secrets: Why Should You Care?
  • Trade Secret Protection Strategies
  • Heightened Risks to Trade Secrets as a Result of COVID-19
  • How to Make a Trade Secret Case Worse

Registration is available here. CLE credit is available.

Social distancing, a term which few of us had heard of before this year (despite the fact that it has been used since at least the early 2000s), is stretching into its third month. Notwithstanding some loosening of shelter-in-place advisories, and the fact that some employers are starting to open up offices and invite their workforce back in, a majority of employees are still working from home. This has broad implications for protection of employers’ trade secrets and confidential information—in many cases, a company’s most precious asset. Continue Reading Security From Afar: How Best to Protect Trade Secrets in a World of Remote Working, Zoombombing, and Uncertainty

The Sedona Conference’s working group on trade secrets has created a draft Commentary on the Proper Identification of Asserted Trade Secrets in Misappropriation Cases.

The draft Commentary explains:

The burden is on the party asserting trade secret misappropriation to answer this question by “identifying” the alleged trade secrets. While this requirement for “identification” is ubiquitous, the rules for doing so are not clear or consistent. At the federal level, neither the criminal statute (Economic Espionage Act) nor the civil statute (Defend Trade Secrets Act) explicitly addresses identification. At the state level, California and Massachusetts define certain, but not all, aspects of identification by statute, while other states set out certain rules in case law, and a few states appear yet to have addressed the issue.

The Sedona Conference’s Working Group 12 (WG12) resolved that its first commentary on trade secret law would address the identification question. This commentary represents 12’s views about certain aspects of identification, including when an identification must be provided, what an identification must contain, and how an identification can be amended. The proposals below and across our WG12 commentary drafting team efforts are not intended to displace current law, which is diverse with respect to numerous substantive and procedural issues in trade secret law and litigation, and thus often does not lend itself to the development of more authoritative Best Practice recommendations. Rather, they are intended to summarize 12’s consensus Principles and Guidelines regarding the identification of alleged trade secrets in trade secret litigation, which if adopted in whole or in part would advance he Sedona Conference’s mission, “moving the law forward in a reasoned and just way.”

If you are interested in this important issue, there will be webinar to discuss the draft Commentary and seek public comment on Wednesday, May 20 at 1 p.m. EDT. You can register here. And, comments can be submitted through August 1, 2020, to comments@sedonaconference.org.

Robert Milligan serves as a member of the Sedona Conference Working Group 12 Trade Secrets Advisory Working Committee and co-leads the Employee Life Cycle subgroup. Erik Weibust co-leads the Trade Secret Damages subgroup.

As the global economy falters, a fortunate few companies have seen tremendous growth as a result of the COVID-19 crisis. Among the companies benefitting from the shelter-in-place orders currently in effect is Peloton Interactive, Inc. (“Peloton”), which manufactures and distributes home exercise equipment capable of streaming live and pre-recorded classes. Since Peloton’s IPO in late 2019, its shares have jumped over 50%, largely based on its outstanding second quarter results. As people have been shut-out of their gyms, they are frequently turning to alternatives, including Peloton, to stay active (and sane). In full disclosure, that includes the authors of this article and many of our colleagues. Continue Reading Avoid Spinning Your Wheels: Peloton as a Case Study in the Protection of Customer Goodwill

On May 13, 2020, the Federal Bureau of Investigation (FBI) and the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA) issued a joint Public Service Announcement (PSA) about a threat to academic institutions and business entities engaged in COVID-19-related research and development entitled People’s Republic of China (PRC) Targeting of COVID-19 Research Organizations. Continue Reading FBI and CISA Issue Joint Warning to Academic Institutions and Research Organizations About Targeting of COVID-19 Research

In a case following a familiar trade-secret set of facts, on April 28, 2020, the Texas First District Court of Appeals in Houston reversed the trial court’s grant of a motion to dismiss under the Texas Citizens Participation Act (“TCPA”) in National Signs, Inc. v. John Graff. In doing so, the First District joined the growing number of Texas Appellate Courts that have held that the TCPA, in its Pre-September 2019 amended state, does not protect private communications that are centered on competition or preparing to compete against the plaintiff. Continue Reading Houston First Circuit Court of Appeals Joins the Growing Trend by Holding that the Pre-Amendment TCPA Does Not Protect Certain Competitive Behavior

With so many employees now working remotely through the COVID-19 pandemic—using new and sometimes untested technologies—we are taking this opportunity to collect real-time perspectives on what companies are doing to protect their trade secrets in the current climate.

To that end, we have created a brief anonymous survey that should take no more than three minutes to complete. The survey closes on Monday, May 11.

We plan to share the results so you can get a sense of what other businesses are doing to mitigate risks and manage confidential information and trade secrets in this time of crisis.

Take the Survey >>