Here at the Law Office of Vincent Miletti, Esq. and the home of the #UnusuallyMotivated movement, we take pride as a resilient and dependable legal services firm, providing such services in both a traditional and online, web-based environment. With mastered specialization in areas such as Employment and Labor Law, Intellectual Property (IP) (trademark, copyright, patent), Entertainment Law, and e-Commerce (Supply Chain, Distribution, Fulfillment, Standard Legal & Regulatory), we provide a range of legal services including, but not limited to traditional legal representation (litigation, mediation, arbitration, opinion letters and advisory), non-litigated business legal representation and legal counsel, and unique, online legal services such as smart forms, mobile training, and legal marketing & development.

Still, here at Miletti Law®, we feel obligated to enlighten, educate, and create awareness about how these issues and many others affect our unusually motivated® readers and/or their businesses. Accordingly, to achieve this goal, we have committed ourselves to creating authoritative, trustworthy, and distinctive content that looks to educate and deliver in a manner that only Miletti Law® can. Usually, this content is featured as videos posted on our YouTube Channel https://www.youtube.com/channel/UCtvUryqkkMAJLwrLu2BBt6w and blogs that are published on our website WWW.MILETTILAW.COM. With the ball in your court, yours is an effortless obligation to subscribe to the channel and sign up for the Newsletter on the website, which encompasses the best way to ensure that you stay in the loop and benefit from the knowledge bombs we drop here!

As the authoritative force in Employment Law, we are committed to providing you with authoritative, up-to-date, and trustworthy content through which you can draw enlightening information to stay ahead of the game in your business. In this regard, this blog is Part IX of our multipart series on the “Enforcement of the Protection of Employers’ Confidential Information & Trade Secrets.” In Part VIII of this series, we moved the discussion forward with an overview of “The International Trade Commission (ITC), Section 337, & the DTSA” and provided you with key information on how Section 337 Investigation empowers employers to address trade secret misappropriation that took place outside of the U.S. before the International Trade Commission. In order to keep the discussion going and ensure you are educated, we have provided you with key information concerning “Trade Secret Misappropriation Claims under State & Common Law” in this blog and Part IX of the series.

Trade Secret Misappropriation Claims under State & Common Law

State and common laws recognize that employers have a legitimate interest in protecting their trade secrets and/or confidential information that include, but are not limited to lists of prospective or actual clients, financial data, processes, drawing, techniques, methods, devices, programs, compilations, patterns, formulas, and technical or non-technical data. Accordingly, irrespective of their relationship with the employer, employees are prohibited, under these laws, from taking a trade secret or confidential information that gives the employer an economic advantage over competitors, has not been shared publicly, and which the employer might have shared with them in the course of employment.

In our previous blogs under this series, we have severally mentioned some version of the UTSA (Uniform Trade Secrets Act) has been codified and adopted in most American states. In addition to providing a definition of “misappropriation” and “trade secret,” this version offers a uniform framework that can be used to address and remedy trade secret misappropriation. We covered these definitions under two blogs. The first one is titled “Misappropriation, as Defined under the DTSA & UTSA,” published under this series, and accessible at https://milettilaw.com/blog/f/misappropriation-as-defined-under-the-dtsa-utsa. The second one is titled “Statutory Definitions & Types of Info Considered Trade Secrets,” published under the series “Cybersecurity Measures to Protect Employers,” and accessible at https://milettilaw.com/blog/f/statutory-definitions-types-of-info-considered-trade-secrets. Do not hesitate to hit both links and catch up with other unusually motivated® readers on both definitions.

With that information on their hands, state laws within which a version of the UTSA has been codified and adopted permit employers to bring trade secret misappropriation claims against former employees and/or their new employers. However, one must generally demonstrate a number of things in order to state a trade secret misappropriation claim in state court. They must generally demonstrate that:

  • Improper means were used to misappropriate trade secret(s) by the defendant (former employee)-
  • Reasonable steps had been taken by the plaintiff (former employer) to ensure that trade secrets remained secret-and-
  • The information in question is a trade secret by the UTSA’s definition.

One key aspect to note is that while the UTSA has been determined as preemptive of trade secret misappropriation and/or confidential information theft/loss claims in the majority of jurisdictions, common law may be utilized to make such claims, especially if the employer’s information in question does not qualify as a trade secret by definition. This underscores the need for employers to be very specific about the exact trade secrets and/or confidential information that has been allegedly misappropriated by the former employee when drafting a complaint alleging common or state law violations. Importantly, pursuant to the local rules or the court handling the lawsuit, employers should also remember to ask the court to enforce the sealing or impounding of attached documents or filings they wish to be kept secret in order to ensure that the secrecy of information is preserved and not exposed in public filings. This ensures that only the parties involved in the lawsuit, the court, and the clerk will have access to view the secret and/or confidential information in question.

We hope you are enlightened on what you, as an employer, need to consider and factor in before bringing a trade secret misappropriation or confidential information theft/loss claim in a court under both state and common law. In Part X of this series, we will move the discussion forward by providing you with an overview of the “Preliminary Trade Secret Misappropriation Injunctions in State Court.”

As usual, while you should strive to be #UnusuallyMotivated, stay tuned for more education, training, and legal guidance. In the interim, reach out to us with questions and/or comments on our website at the Contact Us page!

Always rising above the bar,

Isaac T.,

Legal Writer & Author.