On June 8, 2021, the Third Circuit clarified the requirements for making a trade secret misappropriation claim under the Defend Trade Secrets Act (“DTSA”) in a decision vacating the District of New Jersey’s dismissal of a trade secret misappropriation lawsuit against a former employee and his current employer. In short, the Third Circuit’s decision took a more relaxed view than the District Court, finding that a trade-secret plaintiff need not “spell out the details of its trade secret” or have direct allegations of misappropriation and harm to avoid dismissal.
Continue Reading The Third Circuit Clarifies DTSA Pleading Requirements, While Vacating Dismissal
Fifth Circuit Rules Delayed Discovery of Misappropriation Not A Bar To Suit
A recent decision from the Fifth Circuit showcased the usefulness of the “discovery rule” for trade secret plaintiffs facing statute of limitations issues. The court reversed the dismissal of a claim for misappropriation of trade secrets because the plaintiff could not have discovered the misappropriation using reasonable diligence within the applicable statute of limitations period.
Continue Reading Fifth Circuit Rules Delayed Discovery of Misappropriation Not A Bar To Suit
Major League … Misappropriation?
Bolsinger is still pitching! After a recent dismissal for lack of jurisdiction in California, former Major League Baseball pitcher Michael Bolsinger refiled claims against the Houston Astros in state court in Houston, Texas on May 13, 2021. While asserting similar factual allegations as his original California complaint, the former Toronto Blue Jays pitcher has abandoned his previous unfair business practice causes of action in favor of claims for trade secret misappropriation under the Texas Uniform Trade Secrets Act and for conversion. Bolsinger claims that the pitching signs he used during his August 4, 2017 game against the Astros were trade secrets.
Continue Reading Major League … Misappropriation?
Partial Victory for L’Oreal In Hair Coloring Fight
As predicted, the trade secrets battle between Olaplex, Inc. and L’Oreal continues – and L’Oreal has scored a fresh victory. On May 6, 2021, the Federal Circuit Court of Appeals overturned a $66 million judgment against L’Oreal and ordered a new trial – but only on one of Olaplex’s patent claims. The panel stated that Olaplex had entirely failed to show that its information was eligible for trade-secret protection, and that no reasonable jury could find otherwise.
Continue Reading Partial Victory for L’Oreal In Hair Coloring Fight
New DTSA Complaint Implicates Law’s Definition of “Disclosure”
A Complaint recently filed in the Southern District of New York may shed light on courts’ willingness to apply a broad interpretation of “misappropriation” in trade secrets cases. Plaintiff Greenpoint Capital Management, which grants loans to law firms to fund high-stakes litigation, has accused Apollo Hybrid Value Management LP and Apollo Hybrid Value Management GP
DOJ Indicts Hong Kong Citizen in Attempted Trade Secrets Scheme
The U.S. Justice Department indicted a man for allegedly conspiring to steal proprietary data from General Electric (“GE”) and produce and sell it in China.
Continue Reading DOJ Indicts Hong Kong Citizen in Attempted Trade Secrets Scheme
Florida Lawmakers Seek to Address Corporate Espionage in Proposed Legislation
On March 1st, Florida Governor Ron DeSantis, along with GOP members of the state’s House of Representatives and Senate, announced legislation to address corporate espionage and foreign influence in Florida. In public remarks about the proposed legislation, Florida House Speaker Chris Sprowls expressed concern about the threat of China’s influence on local governments and university systems, stating “that there are no limits to the depths to which other countries, especially China, will go to steal our science and technology.”
Continue Reading Florida Lawmakers Seek to Address Corporate Espionage in Proposed Legislation
ITC Finds Trade Secret Misappropriation and Bars Electric Vehicle Batteries from SK Innovation—With Exceptions
On February 10, the U.S. International Trade Commission (“ITC”) issued a final determination finding South Korean lithium-ion electric vehicle battery maker SK Innovation misappropriated the trade secrets of its Korean competitor LG Chem in violation of Section 337 of the Tariff Act of 1930. The ITC issued a 10-year exclusion order blocking SK’s imports into the U.S. of lithium-ion batteries and related products, but with substantial exceptions: SK is permitted to continue importing these products specifically for Ford Motor Co.’s EV F-150 program for four years, for Volkswagen of America’s modular electric drive line for two years, and for the repair and replacement of EV batteries for Kia vehicles sold to U.S. customers. President Biden and his U.S. Trade Representative—Katherine Tai has been nominated but not yet confirmed—now have 60 days to review the ITC’s electric vehicle battery exclusion order, an order that could be seen as in tension with the new administration’s promotion of green energy.
Continue Reading ITC Finds Trade Secret Misappropriation and Bars Electric Vehicle Batteries from SK Innovation—With Exceptions
Senate Passed New Legislation to Punish Foreign Individuals and Corporations for IP Theft
On December 20, 2020, the US Senate unanimously passed a new bipartisan bill designed to punish foreign individuals and corporations involved in intellectual property theft.
The Protecting American Intellectual Property Act was co-authored by Sen. Ben Sasse, R-Neb., and Sen. Chris Van Hollen, D-Md. The bill requires a report to Congress every six months identifying:
- any individual or firm that has engaged in, benefitted from, or materially assisted the significant theft of U.S. trade secrets, if that theft constitutes a major threat to the national security, foreign policy, economic health or financial stability of the United States; and,
- the chief executive officers and board members of the reported firms and whether those individuals have benefitted from the significant theft of U.S. trade secrets.
Final ITC Ruling in Botox Rival Case Creates More Head-Lines
On January 13, the U.S. International Trade Commission (“ITC”) issued the long-awaited public version of its final opinion in the Matter of Botulinum Products (Inv. No. 337-TA-1145), otherwise known as the “Botox case.” As previewed in the ITC’s earlier notice of decision, the ITC’s final opinion affirmed the Administrative Law Judge’s issuance of a 21-month ban on imports and sale of Respondents’ lower-cost alternative to Botox for misappropriation of trade secret manufacturing processes and reversed the finding that Complainant Medytox’s specific strain of botulinum toxin bacteria is a protectable trade secret.
As we previously reported, South Korean company Daewoong Pharmaceutical and its U.S.-based licensee Evolus had been facing a potential 10-year ban of the import and sale of its product, Juveau; however, because the ITC reversed the ALJ’s finding and instead held that the bacterial strain at issue was not a protectable trade secret, the Respondents could not be liable for trade secret misappropriation of the bacterial strain itself. The ITC thus reduced the length of the ban from 10 years to 21 months, accounting for the ITC’s finding that Respondents were liable for theft of trade secrets related to Medytox’s manufacturing process.Continue Reading Final ITC Ruling in Botox Rival Case Creates More Head-Lines