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The Stakes Have Never Been Higher

With the Continuing Explosion of Cases, the Increasing Importance of AI,

the Challenges of Cybersecurity and the Swirling Controversies Surrounding

Non-Competes, Forfeiture and Other Restrictions on Competition

FACULTY

From the Judiciary and the Government:

Hon. Young Kim, Magistrate Judge, United States District Court, Northern District of Illinois, Chicago

Steven J. Dollear, Chief, National Security and Cybercrime Section, U.S. Attorney’s Office, Northern District of Illinois, Chicago

Michael Lovernick, FBI Supervisory Special Agent, Chicago Field Office

Melody Wells, Deputy Chief, National Security and Cybercrime Section, U.S. Attorney’s Office, Northern District of Illinois, Chicago

 

OTHER FACULTY:

Russell Beck, Partner, Beck Reed Riden LLP, Boston, MA 

Sarah Heffron, Assistant General Counsel and Head of Employment Law, North America, Aon, Chicago

Maria A. Maras, Intellectual Property Associate Director, Accenture, Chicago

Daniel M. McGavock, Vice President, Practice Leader of Intellectual Property, Charles River Associates, Chicago

Aimee Nolan, General Counsel, Zoro.com, Chicago
Brian W. Nolan, Partner, Mayer Brown, New York

Steven Pearlman, Partner, Proskauer Rose LLP, Chicago

Dean A. Pelletier, Founder, Pelletier Law, LLC, Chicago

Katherine E. Perrelli, Partner, Seyfarth Shaw LLP, Boston

Sean Radcliffe, Executive Vice President and General Counsel, R1 RCM, Chicago

William E. Ridgway, Partner, Co-Head, Cybersecurity and Data Privacy, Skadden, Arps, Slate, Meagher & Flom LLP, Chicago

Cuyler Robinson, Vice President, Forensic Services, Charles River Associates, Chicago

Michelle Schmit, Partner, Quinn Emanuel Urquhart & Sullivan, LLP, Chicago

Leif R. Sigmond Jr., Partner, BakerHostetler, Chicago

Collin Smyser, General Counsel and Corporate Secretary, Option Care Health, Bannockburn, IL

Peter A. Steinmeyer, Member of the Firm, Epstein Becker & Green, P.C., Chicago

Amy Van Gelder, Partner, Skadden, Arps, Slate, Meagher & Flom LLP, Chicago

Matthew W. Walch, Partner, Latham & Watkins LLP, Chicago

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In The Spotlight:  Non-Competes, Forfeiture for Competition Provisions, Misappropriation and Legislative Activity

The now-stayed FTC ban on non-competes probably attracted the most headlines.  What is next with new FTC leadership and the Administration?  Another hot issue: contractual provisions that do not prohibit competition but provide for the forfeiture of economics if the employee does compete.  Since “only” money is at stake, should courts be more likely to enforce forfeiture as compared with prohibitory non-competes?  A couple of important new cases suggest yes.  But, meanwhile, there’s a bit of a contrary trend—courts seem increasingly reluctant to narrow overbroad non-competes and other competitive restrictions.  Our distinguished faculty will address all these topics, along with state legislative activity throughout the country on non-competes and related issues.

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Trade Secret Protection, Cybersecurity Developments Require Immediate Attention

Trade secrets and cybersecurity are found in more and more everyday situations.  We live in an age of increasing worldwide connectivity, more people than ever changing jobs post-pandemic, cyber threats coming from all directions and, of course, the still not fully developed impact of generative artificial intelligence.  All of this, along with the uncertainty of non-compete enforcement, has led companies to rely more heavily on trade secret protection. So too have developing limitations on patent and copyright protection, including their application outside the United States, while recent cases have upheld the application of the DTSA outside the US whenever an “act in furtherance” takes place domestically. 

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Navigating the Wild World of Trade Secret Damages

Soaring jury verdicts and creative damages theories are facing increased judicial scrutiny on causation. Our panel of seasoned litigators and experts will discuss strategies for maximizing recovery and minimizing exposure in trade secret litigation. They will address the latest theories and nuances associated with all remedies, including lost profits, unjust enrichment, reasonable royalties, punitive damages and injunctions. Drawing on recent case decisions, our panel will provide practical tips on proving causation, avoiding double recovery, “avoided cost” theories, apportionment, and aligning trade secret definition with damages theories. Key takeaways from recent verdicts and court decisions will be discussed, including Appian v. Pegasystems; Insulet v. EOFlow; Syntel v. TriZetto; Motorola v. Hytera; Propel Fuels v. Phillips 66; Ryan v. FTC and Properties of the Villages v. FTC.

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Program Highlights/Topics for Discussion

8:30 a.m. – 1:00 p.m. CDT

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Panel 1:  Observations From the Judiciary and Government

  • Judicial Perspectives on Trade Secrets Law and Practice

    • Identification of the claimed trade secrets – specificity and timing

    • Trends in trade secrets cases (including the interplay with non-competes and forum/ choice of law battles)

    • TROs and preliminary injunctions

    • How often do trade secret cases go all the way to trial?

    • Advice to litigation counsel; successful trial strategies

  • Extraterritorial Application of the DTSA

  • International Trade Commission (ITC) Developments

  • Criminal Prosecution of Trade Secrets Theft

    • Government priorities

    • Recent investigations and prosecutions

    • Geopolitical challenges, including national security and state actors

    • Cybercrime prosecutions, ransomware, new forms of cyber intrusions, business email compromise

 

Panel 2:  The In-House Perspective - Protection, Prevention and Investigations

  • Cybersecurity Risks

    • Threat landscape

    • Ransomware update

    • Incident response notification

    • Tools to detect internal and external threats

    • Confidentiality and reputational concerns

  • Trade Secret Protection

    • What kinds of information does your firm (or do your clients) consider a trade secret or confidential?

    • Has the increase in remote work made it more challenging to protect trade secrets and confidential information?

    • Practical steps that companies can take to protect their trade secrets

    • How do you decide whether to patent an invention or protect it as a trade secret? Can you do both?

    • What to do when there’s been a theft or one is suspected?

    • Avoiding being accused of misappropriation

    • AI, including using AI in practice for research and discovery.  Open source.  Digital assets.

 

Panel 3:  Restrictive Covenants and Non-Competes: New Challenges

  • Update on regulatory and legislative developments –FTC, New York, NLRB, new state laws

  • What kinds of non-competes and other post-employment restrictions are best practices and for what categories of employees?  In what types of agreements should they be included?

  • Particular Hot Issues

    • Managing risks of on-boarding employees

    • Managing risks of departing employees

    • Use of arbitration provisions

    • Changing best practices given legislative activity, press attention, etc

    • Customer non-solicit and non-service agreements

    • Forfeiture for competition agreements and other “golden handcuffs”

    • Trends on narrowing or “blue penciling” overbroad non-competes

    • Garden leave provisions and/or paid and right to buy non-competes as alternatives to unpaid non-competes

  • Recent case law developments concerning restrictive covenants

 

Panel 4:  Trade Secrets in the Courtroom: Civil Litigation and Damages

  • Civil Litigation: Planning and Strategy

    • Litigation Best Practices

      • Discovery

      • Trial

    • Key Takeaways from Recent Cases

      • What lessons can we learn from recent high profile trade secret cases like Syntel v. TriZetto; Motorola Solutions v. Hytera Communications; Insulet Corp. v. EOFlow Co. Ltd.; Pegasystems Inc. v. Appian Corp.; Propel Fuels Inc. v. Phillips 66 Co.; Taxinet Corp v. Santiago Leon; Computer Sciences Corp. v. Tata Consultancy Services Ltd.

  • Damages Strategies

    • We’ve seen several mammoth damages awards in recent years, but those awards have been subjected to intense scrutiny on appeal. 

    • What is your case really worth?  What types of damages are recoverable?

    • What are some of the unique challenges (and opportunities) in litigating trade secret damages claims under federal and state law?  For example, the DTSA potentially allows for damages on misappropriation-related sales outside the U.S. and both the DTSA and UTSA allow for exemplary damages and fee shifting in certain circumstances.

    • Causation considerations?

    • Apportionment issues?

    • Why are some awards being reduced on appeal, while others have been affirmed?

    • What lessons can be learned about how to successfully prosecute/defend against damages claims from recent trade secret cases? (e.g., BladeRoom v. Facebook, E.J. Brooks Co. v. Cambridge Sec. Seals)

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© 2024 by Sandpiper Partners, LLC​

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