In anticpation of speaking at the Boston Bar Association’s 15th Annual Intellectual Property Year in Review earlier this month, I prepared a paper discussing a number of the developments in trade secrets law and noncompete law around the country in 2014. Ultimately, I was unable to make it to speak at the event, but my partner, Steve Riden, covered for me – for which I am grateful!
The topics covered in the paper are as follows:
- Congressional efforts to amend the Economic Espionage Act, most recently through the Trade Secrets Protection Act of 2014.
- The Wyoming Supreme Court’s decision in Powder River Basin Resource Council v. Wyoming Oil and Gas Conservation Commission, 320 P.3d 222 (2014), detemining that information claimed to be a trade secret would be evaluated under the comparatively-narrow definition of trade secrets provided by FOIA, not by the broader definition under state trade secrets laws.
- The Supreme Judicial Court’s much-anticipated decision in LightLab Imaging, Inc. v. Axsun Technologies, Inc., 469 Mass. 181 (2014), opening the door for trade secrets misappropriation plaintiffs to develop new damages theories (beyond the traditional misappropriation theories of lost profits, unjust enrichment, and royalties) in Massachusetts.
- The continuing saga of mixed interpretations of the scope of the Computer Fraud and Abuse Act, focusing (for the paper) on Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 32 Mass.L.Rptr. 27 (Mass. Sup. Ct. Dec. 17, 2013) (Lauriat, J.), taking a narrow interpretation of the Act in what appears to be the first reported Massachusetts state court decision interpreting the CFAA; and Pine Environmental Services, LLC v. Carson, __ F. Supp.2d __, 2014 WL 4185502 (Aug. 20, 2014) (Talwani, J.), focusing on the use to which the computer had been put at the time of the allegedly wrongful access, and its impact on whether the computer fell within the scope of the CFAA.
- The European Commission’s efforts to develop a unified approach to trade secrets law in Europe.
- The benefits of including “teeth” in a nondisclosure agreement, as demonstrated by Gulliver Schools, Inc. v. Snay, 137 So.3d 1045 (Ct. App. Fla. 2014) (the so-called “Suck It!” case).
- Recent cases applying Atlantic Marine Construction Company, Inc. v. United States District Court for the Western District of Texas, 134 S.Ct. 568 (2013), to the enforcement of forum selection clauses in noncompete cases – including California decisions transferring noncompete cases out of California.
- Continued Massachsuetts legislative efforts to ban or modify Massachusetts noncompete law and to adopt the Uniform Trade Secrets Act in Massachusetts. (For the latest update on Massachusetts noncompete and trade secrets bills, see Massachusetts Bills to Ban Noncompetes and Adopt UTSA in the New Legislative Session (2015-2016), which discusses the bills that were all just filed.)
- The Arizona’s Supreme Court’s decision in Orca Communications Unlimited, LLC v. Noder, 337 P.3d 545 (2014), adding to the body of cases considering the scope of preemption under the UTSA and taking a narrow approach to what the UTSA preempts.
- The United States District Court for the Central District of California’s decision in Cellular Accessories For Less, Inc. v. Trinitas LLC, 2014 WL 4627090 (C.D. Cal. Sept. 16, 2014), denying summary judgment on the issue of whether and under what circumstances LinkedIn contacts can be considered trade secrets.
- The North Carolina Court of Appeals’ decision in Beverage Systems of the Carolinas, LLC v. Associated Beverage Repair, LLC, 762 S.E.2d 316 (N.C. Ct. App. 2014), holding that it was error to refuse to reform an overly-broad noncompete that arose in the context of a sale of a business and contained a provision permitting judicial modification of the contract.
The paper is available here.