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

While California law is clear regarding the elements required to establish a misappropriation of trade secrets claim, the law has remained unsettled on the elements required to maintain an action for threatened misappropriation of trade secrets. However, in the case of Beauty Barrage LLC, et al. v. Dermaceutical Laboratories LLC, et al., San Francisco Superior Court Judge Anne-Christine Massullo shed some light on the question.

Continue Reading Addressing Wrinkles in California’s Threatened Misappropriation of Trade Secrets Law

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?

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

First off, don’t worry, Coca-Cola’s super-secret trade secret recipe is still safe.  But on April 22, 2021, a jury in the Eastern District of Tennessee convicted a former Coca-Cola employee, Dr. Xiaorong (a/k/a Shannon) You, of stealing trade secrets related to BPA-free coatings for the inside of beverage cans for the Chinese Government. The Indictment alleged that the trade secret information cost almost $120 million to develop. The twelve-day in-person trial focused not just on the former employee’s wrong doing, but also on some the best practices Coca-Cola and Eastman Chemical Company used to protect the trade secrets at issue.

Continue Reading Former Coca-Cola Employee Convicted of Stealing Trade Secrets for the Chinese Government

Defendants may be entitled to review proprietary software code used in the prosecution’s expert probabilistic DNA analysis, according to a New Jersey appeals court in New Jersey v. Pickett.

In 2017, defendant Corey Pickett and an accomplice were arrested and charged with first degree murder after they allegedly fired weapons into a crowd, wounding one victim and killing another.  In the course of the arrest, the police discovered a revolver and a ski mask.  Finding the samples inappropriate for traditional DNA analysis, swabs from the revolver and ski mask were sent to Cybergenetics Corp.’s Laboratory to use its TrueAllele software to run probabilistic genotyping analysis on the samples.  The TrueAllele software determined that Pickett was the source of the DNA on the revolver and ski mask.


Continue Reading New Jersey Appeals Court Rules that Defendant Can Review the Proprietary DNA Analysis Software That Linked Him to the Crime

In an opinion first issued in June 2020 and modified in October 2020, the Fifth Court of Appeals in Texas granted summary judgment in a trade secret dispute based on plaintiff’s failure to present any facts that defendants had access or exposure to plaintiff’s claimed trade secrets.  Josh Malone designed a device that fills and seals water balloons.  Kendall Harter did the same.  Mr. Malone filed a patent.  Mr. Harter accused Mr. Malone of stealing his water balloon filling design.  According to Mr. Harter and KBIDC Investments, the company that acquired Mr. Harter’s company, Mr. Malone came up with his patented product by stealing the trade secrets belonging to Mr. Harter and then KBIDC Investments.  So, KBDIC Investments sued Mr. Malone and Zuru Toys, which acquired an interest in Mr. Malone’s “Bunch O’ Balloons” product for trade secret misappropriation.
Continue Reading Bunch O’ Balloons Trade Secret Dispute Results in Bunch O’ Appeals

On March 13, 2021, borrowing from California Code of Civil Procedure § 2019.210 (which requires a plaintiff to “identify. . . trade secret[s] with reasonable particularity” before it can obtain discovery on those trade secrets), a Northern District of California judge narrowed trade secret claims asserted under the Defend Trade Secrets Act (“DTSA”) due to the plaintiff’s failure to specifically identify most of its asserted trade secrets prior to discovery.  Although not an explicit requirement under federal law, the Court reasoned that the disclosure requirement served to prevent plaintiffs from getting discovery and then using that discovery to “cleverly specify whatever happens to be there as having been trade secrets stolen from plaintiff.”  The decision could be significant for trade secret litigants going forward.

Continue Reading Federal Court Imports California Trade Secret Disclosure Rule and Narrows DTSA Claim

On December 16, 2020, the U.S. Court of Appeals for the Ninth Circuit held for the first time in Attia v. Google LLC that a misappropriation claim under the Defend Trade Secrets Act of 2016 (“DTSA”) may be brought for a misappropriation that started prior to the enactment of the DTSA as long as the claim also arises from post-enactment misappropriation or from the continued use of the same trade secret.  The decision further expands the reach of the DTSA and provides a blueprint for other courts to rule along the same lines.

The case, which was originally filed in the Northern District of California in 2014, was brought by an architect and his firm against Google under the DTSA, the Racketeer Influenced and Corrupt Organizations Act (“RICO”), and state trade secret and contract laws for alleged misappropriation of the plaintiff’s “Engineered Architecture” technology.[1] Although the Ninth Circuit affirmed the District Court’s dismissal of the DTSA claim on the grounds that  the architect lacked standing under the DTSA because Google’s 2012 patent applications based on the “Engineered Architecture” technology placed the contested information in the public domain, extinguishing any trade secret claims over it,[2] the Ninth Circuit’s ruling was significant for other reasons, namely the expansion of the DTSA’s potential applicability.


Continue Reading Ninth Circuit Allows Defend Trade Secrets Act Claims for Conduct Predating the DTSA

Last week, a District Court in the Southern District of New York imposed a $40,000 sanction on SIMO Holdings, Inc. (“SIMO”) for violating a pretrial discovery protective order.  SIMO disclosed four documents covered under the protective order to persons not permitted to view those documents, and the Court determined that a $10,000 sanction for each document was warranted.

Continue Reading Plaintiff Sanctioned for Violating Protective Order by Sharing Discovery