Employment Litigation Involving Trade Secrets Leveraging the - - PowerPoint PPT Presentation

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Employment Litigation Involving Trade Secrets Leveraging the - - PowerPoint PPT Presentation

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Presenting a live 90-minute webinar with interactive Q&A Employment Litigation Involving Trade Secrets Leveraging the Inevitable Disclosure Doctrine and Computer Fraud and Abuse Act to Defend Against Employee Misappropriation TUES DAY,

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Employment Litigation Involving Trade Secrets

Leveraging the Inevitable Disclosure Doctrine and Computer Fraud and Abuse Act to Defend Against Employee Misappropriation

Today’s faculty features:

1pm East ern | 12pm Cent ral | 11am Mount ain | 10am Pacific

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TUES DAY, FEBRUARY 28, 2012

Presenting a live 90-minute webinar with interactive Q&A

Jason C. S chwart z, Part ner, Gibson Dunn & Crutcher, Washingt on, D.C. Brian Z. Liss, S enior Counsel, Science Applications International Corporation, McLean, Va. Brent M. Timberlake, Direct or and Assist ant General Counsel, Capitol One, Richmond, Va.

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Febr ebruary 28, 28, 2012 2012

Brian an Z

  • Z. Liss, S

Seni nior

  • r C

Couns unsel Scienc nce A e Applicat ations ns I Internat national nal C Corp. McLean, an, V VA (70 703) 676 676-2257 257 Bria ian.Z .Z.L .Lis iss@saic ic.c .com Bren ent M

  • M. Timber

berlake, D Director, A Assistant nt G Gene neral al C Couns unsel Capi apital al One F e Finan ancial C Corp. p. Richmond, nd, V VA (80 804) 284 284-0846 846 brent nt.timber erlak ake@capi apital alone. ne.com

  • m

Jason

  • n C
  • C. Schwar

artz Gibson

  • n, D

Dunn & n & Crutcher her L LLP Washing ngton,

  • n, D

D.C. (20 202) 955 955-8242 242 JSchwar artz@gibs bsondu

  • ndunn.

nn.com

  • m

Employment Litigation Involving Trade Secrets

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OVERVIEW

I. Pre-Litigation Strategies (In-House Perspective) II. Inevitable Disclosure and Other Trade Secrets Case Law Developments III. Computer Fraud and Abuse Act and Criminal Prosecutions

DISCLAIMER: This presentation is intended to provide general information only; it is not intended to communicate legal advice.

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Pre-Litigation Strategies (In House Perspective)

1. Do your offer letters contain representations regarding former employer obligations and information? 2. Do you have written employment policies in place concerning trade secrets and confidential information? 3. Do your employees sign non-compete and confidentiality agreements? 4. Do you have your vendors/business partners sign confidentiality agreements?

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Pre-Litigation Strategies (In-House Perspective)

5. How do you define trade secrets? 6. Do you keep an inventory of trade secrets? 7. How do you restrict access to trade secrets and confidential information? 8. Do you use passwords to protect electronic information? Locks to protect physical information? 9. Do you train employees regarding trade secrets, confidential information, and computer use policies?

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Pre-Litigation Strategies (In-House Perspective)

  • 10. What steps do you take to protect trade secrets when

a key employee departs?

  • 11. What steps do you take when hiring a key employee

from a competitor?

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Inevitable Disclosure and Other Trade Secrets Case Law Developments

  • Inevitable Disclosure Doctrine

– Used to determine whether to enjoin “threatened misappropriation” under Uniform Trade Secrets Act – Varies by state – Where accepted, tends to require “plus” factors

  • Dishonesty
  • Unusually high compensation
  • Competitive circumstances and timing
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Inevitable Disclosure and Other Trade Secrets Case Law Developments

  • Watershed Cases

– PepsiCo Inc. v. Redmond, 54 F.3d 1262 (7th Cir. 1995) – Bimbo Bakeries USA Inc. v. Botticella, 613 F.3d 102 (3d Cir. 2010) (“substantial likelihood” of disclosure sufficient)

  • Failure to disclose job offer to current employer
  • Accessing confidential information after accepting offer
  • Downloading information to external storage device
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Inevitable Disclosure and Other Trade Secrets Case Law Developments

  • Compilations as Trade Secrets

– Design Insights Inc. v. Sentia Group Inc., 416 Fed. App’x. 324 (4th Cir. 2011) – Tewari De-Ox Systems, Inc. v. Mountain States/Rosen LLC, 637 F.2d 604 (5th Cir. 2011) – AvidAir Helicopter Supply, Inc. v. Rolls Royce Corp.,

  • No. 10-3444 (8th Cir. Dec. 13, 2011)
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Inevitable Disclosure and Other Trade Secrets Case Law Developments

  • Blockbuster Verdicts

– E.I. DuPont de Nemours and Co. v. Kolon Industries, Inc. (E.D. Va.): $920 million – Bryant v. Mattel, Inc. (C.D. Cal.): $310 million – Pacesetter Inc. v. Nervicon Co. (Cal. Super. Ct.): $2.3 billion

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Computer Fraud And Abuse Act

  • Provides for criminal and civil liability for unauthorized

access to a protected computer system

  • Often used as “hook” to get UTSA claim heard in federal

court

  • Requires demonstration of at least $5,000 loss

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Computer Fraud And Abuse Act

  • Meaning of “authorization” requirement

– United States v. Nosal, 2011 WL 1585600 (9th Cir. Apr. 28, 2011) (employee’s access must exceed that permitted by computer use policies)

  • Pending en banc decision

– Platinum Logistics v. Mainfreight, et al.,

  • No. 11-cv-1174 (S.D. Cal. Jan. 18, 2012)

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Criminal Prosecutions

  • “Growing and persistent” foreign threat according to U.S. Office of

the National Counterintelligence Executive

  • Economic Espionage Act prosecutions include:
  • U.S. v. Liu (M.D. La.)
  • U.S. v. Lin (W.D.N.Y.)
  • U.S. v. Jhaveri (N.D.N.Y.)
  • U.S. v. Yu (E.D. Mich.)
  • U.S. v. Doxer (D. Mass.)
  • U.S. v. Yang (N.D. Ill.)
  • U.S. v. Jin (N.D. Ill.)
  • U.S. v. Huang (S.D. Ind.)

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