Author: Autumn Gentry

3 Steps to Protect Trade Secrets Under the DTSA

The Defend Trade Secrets Act (DTSA) was a breath of fresh air for many companies that rely on trade secrets as part of their business model. Under the DTSA, a business’s or individual’s trade secrets—such as copyrights, patents and trademarks—are federally protected. This federal protection allows a business to file a private civil lawsuit if a trade secret which is related to a product or service used in, or intended for use in, interstate or foreign commerce is misappropriated. Prior to the DTSA, trade secrets law was a state issue, and most states adopted some version of the Uniform Trade Secrets Act (UTSA) to protect their local businesses. However, the interpretation of these laws varied greatly from state to state. The DTSA adopts many provisions from the UTSA such as injunctive relief to prevent actual or threatened misappropriation; actual damages; and exemplary damages and attorneys’ fees for willful and malicious misappropriate. However, unlike the UTSA, the DSTA also: Provides businesses access to federal courts, regardless of the amount in controversy; Permits ex parte seizures where injunctive relief is clearly shown to be inadequate; Grants whistleblowers who disclose trade secrets to the government immunity from civil and criminal liability in certain situations; and Mandates that notice about whistleblower immunity be included in any new or updated employment agreement that governs the use of a trade secret or other confidential information....

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The Devil is In the Details: The Importance of Sound Non-Compete and Confidentiality Agreements

By:  Autumn L. Gentry Though it may mean a few frantic days and maybe more than one sleepless night, most companies can manage the loss of a key employee relatively well. However, the thought of a key employee going to work for a competitor and calling on the employee’s old contacts to divert business away from the company would have most companies seeing red and staying awake at night. Fortunately, most business owners are savvy enough to have their key employees sign non-compete and confidentiality agreements. Unfortunately these agreements are sometimes unenforceable. Thus, it is critically important to have a well drafted, narrowly tailored agreement. When it comes to enforceability, the question becomes whether the non-compete or confidentiality agreements are sufficient to withstand court scrutiny? The issues outlined below are the ones courts most often look at to determine whether such an agreement is enforceable or not. Is the restriction reasonable? Many companies have the tendency to be heavy-handed in structuring their non-compete provisions; however, it is important to be reasonable. In the non-compete context, reasonableness takes two forms: (1) temporal reasonableness; and (2) geographic reasonableness. Excessive restrictions in a non-compete make it more likely that a judge will not enforce it. For example, attempting to bind someone for more than one or two years after the employee leaves the company may not be enforceable. While a company may reasonably...

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The HR Blog is published by Dickinson Wright PLLC to inform the public of important developments within the firm and practice areas. The content is informational only and does not constitute legal or professional advice. We encourage you to consult a Dickinson Wright attorney if you have specific questions or concerns relating to any of the topics covered in this blog.

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