The Sedona Conference’s working group on trade secrets has published the WG12 Commentary on Protecting Trade Secrets throughout the Employment Life Cycle. This publication focuses on the inherent potential tensions in the employer-employee relationship, when it comes to trade secret: Trade secrets cannot exist without the work of employees, cannot be protected without the efforts of employees, and would rarely be compromised or lost without the conduct of employees.

The Commentary addresses this issue through a chronological view of the employment relationship, from the recruiting and onboarding, to the period of employment, to the offboarding, and back to the onboarding.

Robert Milligan—Seyfarth partner and co-chair of the firm’s Trade Secrets, Computer Fraud & Non-Competes practice—served as a member of the Sedona Conference Working Group 12 Trade Secrets Advisory Working Committee, co-leads the Employee Life Cycle subgroup, and is a Senior Editor for the Commentary on Protecting Trade Secrets throughout the Employment Life Cycle.

Download the Commentary on The Sedona Conference website.

In the second annual installment of Seyfarth Shaw’s Commercial Litigation Outlook, our nationally-recognized team provides keen insights about what to expect in 2022. It will be a busy year that will call upon clients and their counsel to be flexible, creative, and proactive on many fronts.

As the pandemic morphs into an endemic, we are seeing overall litigation activity increase as court backlogs have cleared and trials have resumed. The drivers of increased litigation are many, and include vaccine availability, a more robust federal enforcement scheme, and impending court deadlines in cases that were either filed during the early stages of the pandemic or which had previously stalled due to restricted travel, inactivity, or court closures.

Join us for a two-part webinar series, where our subject matter experts will discuss a range of topics, including how the reliance on all things online, and remote workforces, has amplified the risks around cyberattacks and privacy and insurance premiums are increasing across the board for all lines of insurance, particularly as insurers adjust their risk to the increase in expensive ransomware attacks. Other key trends in the commercial litigation space addressed in these webinars are:

  • Antitrust
  • Bankruptcy
  • Consumer Class Action Defense
  • Consumer Financial Services Litigation
  • eDiscovery Litigation
  • Fair Credit Reporting Act
  • Franchise and Distribution
  • Health Care Litigation
  • International Dispute Resolution
  • Real Estate Litigation
  • Securities
  • Trial Outlook

REGISTER HERE


Part 1: Commercial Litigation Outlook: Insights and Predictions for Litigation Trends in 2022

Tuesday, April 12, 2022
1:00 p.m. to 2:00 p.m. Eastern
12:00 p.m. to 1:00 p.m. Central
11:00 a.m. to 12:00 p.m. Mountain
10:00 a.m. to 11:00 a.m. Pacific

In the first session of the series, we will provide insight on increased cyberattacks and how to avoid certain risks, as well as significant trends, predictions and recommendations in the following areas:

  • Bankruptcy
  • eDiscovery Litigation
  • Fair Credit Reporting Act
  • Franchise and Distribution
  • Privacy
  • Securities

Speakers

Scott Carlson, Partner, Seyfarth Shaw

Jay Carle, Partner, Seyfarth Shaw

William Hanlon, Partner, Seyfarth Shaw

Esther Slater McDonald, Partner, Seyfarth Shaw

Jason Priebe, Partner, Seyfarth Shaw

Catherine Schumacher, Partner, Seyfarth Shaw

John Skelton, Partner, Seyfarth Shaw

Moderator

Rebecca Woods, Partner, Seyfarth Shaw


Part 2: Commercial Litigation Outlook: Insights and Predictions for Litigation Trends in 2022

Wednesday, April 27, 2022
1:00 p.m. to 2:00 p.m. Eastern
12:00 p.m. to 1:00 p.m. Central
11:00 a.m. to 12:00 p.m. Mountain
10:00 a.m. to 11:00 a.m. Pacific

In the second session of the series, we will dive into the world of Insurance and how the focus is turning to increased protection for potential cyber and data breach incidents, as well as key trends in the following areas:

  • Trial Outlook
  • Antitrust
  • Consumer Class Action Defense
  • Consumer Financial Services Litigation
  • Health Care Litigation
  • International Dispute Resolution
  • Real Estate Litigation

Speakers

Talat Ansari, Partner, Seyfarth Shaw

Kristine Argentine, Partner, Seyfarth Shaw

David Bizar, Partner, Seyfarth Shaw

Jonathan Braunstein, Partner, Seyfarth Shaw

Tom Locke, Partner, Seyfarth Shaw

Christopher Robertson, Partner, Seyfarth Shaw

Caleb Schillinger, Partner, Seyfarth Shaw

Elizabeth Schrero, Partner, Seyfarth Shaw

Moderator

Shawn Wood, Partner, Seyfarth Shaw

It is well established that the Georgia Trade Secret Act (“GTSA”) includes a preemption clause holding that the Act “supersede[s] conflicting tort, restitutionary, and other laws of this state providing civil remedies for misappropriation of a trade secret.” O.C.G.A. § 10-1-767(a). The GTSA does not, however, preempt (1) “[c]ontractual duties or remedies, whether or not based upon misappropriation of a trade secret”; (2) “[o]ther civil remedies that are not based upon misappropriation of a trade secret”; or (3) “[t]he definition of a trade secret contained in [another Georgia statute].” O.C.G.A. § 10-1-767(b). In other words, the GTSA preempts any non-contractual claims that allege the misappropriation of a trade secret. See Bd. of Regents of the Univ. Sys. Of Georgia v. One Sixty Over Ninety, LLC, 830 S.E.2d 503, 510 n.13 (Ga. Ct. App. 2019) (“[T]he Trade Secrets Act superseded the common law tort of misappropriation [of trade secrets].”) Continue Reading Recent Federal Court Ruling Refuses to Expand the Scope of Georgia Trade Secret Act’s Preemption Clause

Seyfarth attorneys published in IP LitigatorSeyfarth partner Jesse Coleman and associate Kevin Green authored an IP Litigator article focused on a recent DTSA/TUTSA lawsuit which involved the public disclosure of alleged trade secret in an expired patent. Read the full article from the March / April 2022 edition of IP Litigator here.

Robert Milligan, Seyfarth partner and co-chair of the firm’s Trade Secrets, Computer Fraud & Non-Competes group, will moderate the “Leveraging Internal Assets in the Governance and Management of Trade Secrets” panel for The 2022 Sedona Conference. Seyfarth is also sponsoring the Sedona Conference, which is taking place May 9–10 at The Brown Palace Hotel & Spa in Denver, Colorado.

Other panels at the conference include

  • The Proper Identification of Asserted Trade Secrets in Misappropriation Cases
  • Equitable Remedies in Trade Secret Litigation
  • Extraterritorial Reach of Trade Secrets
  • Caselaw Synergies
  • Cross-Border Discovery Issues in Trade Secret Litigation
  • Inevitable Tension: Reconciling Public Court Access with Protecting Trade Secrets in Litigation
  • Monetary Remedies in Trade Secret Litigation
  • Judicial Roundtable

For more information or to register, visit the Sedona website.

On March 24, 2022, Washington state Governor Inslee signed into law Engrossed Substitute House Bill 1795 (The Silenced No More Act) (“ESHB 1795”). Washington now becomes the second state (after California) to render nondisclosure and nondisparagement provisions illegal in employment agreements. Continue Reading Governor Inslee Signs “Silenced No More Act” Prohibiting Nondisclosure and Nondisparagement Provisions In All Employment Agreements In Washington

Louisiana is not a fan of non-competes. Any employer who has employees in Louisiana is likely aware of that (or should be). Louisiana statutory code says so; case law says so; and now the Fifth Circuit has chimed in to add a little more food for thought on the subject.

In its recent unpublished decision of Rouses Enterprises, L.L.C. v. Clapp, 2022 WL 686332 (5th Cir. Mar. 8, 2022), the Fifth Circuit upheld the Eastern District of Louisiana’s decision that a non-compete was unenforceable against Rouses’ former Vice President of Center Store Merchandising, James B. Clapp II, because, when Clapp signed the non-compete agreement, he was not a Rouses employee, but merely an applicant who was later offered and accepted a job. Continue Reading Employer Beware: When Louisiana Says “Employee”, It Means Employee

trade secrets uniquenessAs is often true in fashion, what once was old is now new again. But for famed wedding dress designer, Hayley Paige Gutman, she certainly is ruing the Second Circuit’s recent decision to revive its 1999 holding of Ticor Title Ins. Co. v. Cohen, 173 F.3d 63 (2d Cir. 1999). In JLM Couture, Inc. v. Gutman, 24 F.4th 785 (2d Cir. 2022), the Second Circuit held that JLM Couture’s non-compete was enforceable through New York’s oft-overlooked “uniqueness” exception. But the real question to me as a litigator is whether this doctrine should become part of the tool bag going forward. Upon analysis, the answer is somewhat mixed and going to be exceedingly fact dependent. Continue Reading Is “Uniqueness” Getting a Revival?

In the second program in the 2022 Trade Secrets Webinar Series, Seyfarth partners Jesse Coleman, Dan Hart, and Caitlin Lane discussed how to identify the greatest threats to trade secrets, provided tips and best practices for protecting trade secrets abroad, and covered enforcement mechanisms and remedies internationally and in the US.

As a follow up to this webinar, our team wanted to highlight:

  • US Law provides two key statutes with civil remedies for protecting trade secrets where the misappropriation occurs extraterritorially – ITC Section 337 (19 U.S.C. § 1337) and the Defend Trade Secrets Act, 18 U.S.C. § 1837-each with different remedies, requirements of applicability, and pros/cons.
  • Employers should ensure that their employment agreements include favorable choice-of-law, venue, and forum-selection clauses to increase the likelihood that any subsequent legal proceeding for trade secret misappropriation occurs in a location that is likely to recognize and protect the company’s intellectual property.
  • Employers should form a well-rounded, strategic approach to global defense of trade secrets and leverage multiple protective mechanisms including restrictive covenants, notice periods, contractual agreements and statutory protections.
  • Restrictive covenants should be tailored for jurisdictional requirements and nuances – one-size does not fit all when it comes to protecting trade secrets across multiple countries.
  • Employers should implement a holistic strategy for protecting trade secrets at every stage of the employment relationship, from onboarding to pre-litigation enforcement efforts post-termination, with coordination between HR, Legal, IT, and other stakeholders within the company.
  • Practical measures should also be taken to protect confidential information and trade secrets, including limiting access to sensitive information, using exit interviews, and (provided that applicable privacy laws are followed) monitoring use of company IT resources and conducting forensic investigations of departing employees’ computer devices.

minnesota non-compete legislationOn February 22, 2022, the Minnesota legislature came one step closer to banning non-compete clauses under certain circumstances. On that date, the Minnesota House Labor, Industry, Veterans and Military Affairs Finance and Policy Committee passed HF999.

HF999 renders non-compete clauses in Minnesota void and unenforceable unless either of two circumstances are present: (1) upon termination, the employee earned an annual salary that is more than the median family income for a family of four in Minnesota (as determined by the most recent US Census Bureau data), or (2) the employer agrees to pay, on a pro-rata basis, fifty percent of the employee’s highest annual salary over the past two years for the duration that the employee is subject to the non-compete clause. Continue Reading Minnesota Advances Partial Ban on Non-Compete Clauses