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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:

Brett Dohnal, Special Agent, Federal Bureau of Investigation, New York Field Office

Anisha Dasgupta, Former General Counsel, Federal Trade Commission, New York

Hon. Katherine B. Forrest, Partner, Paul, Weiss, Rifkind, Wharton & Garrison LLP; Retired U.S. District Judge for the Southern District of New York, New York

Hon. Sam Glasscock III, Retired Vice Chancellor, Delaware Court of Chancery; Adjunct Professor of Law, Vanderbilt University, Nashville, TN

Hon. Charles E. Ramos, Retired Senior Judge, Commercial Division, New York Supreme Court; Co-Founder, Ramos & Artal LLC, New York

Hon. Saliann Scarpulla, Justice, Appellate Division, First Department, New York Supreme Court, New York

Ellen H. Sise, Assistant United States Attorney, Eastern District of New York

​

OTHER FACULTY

Russell Beck, Partner, Beck Reed Riden LLP, Boston

Kimberly E. Carson, Partner, Quinn Emanuel Urquhart & Sullivan, LLP, New York

Lauren Rayner Davis, of Counsel, Rottenberg Lipman Rich, P.C., New York

Steven M. Kayman, Member, Rottenberg Lipman Rich, P.C., New York (Co-Moderator)

Steven Klocinski, Senior Vice President and Assistant General Counsel for Intellectual Property, Mastercard, Purchase, NY

April Lindauer, General Counsel, Carta, New York

Daniel S. Lurie, SI Global Deputy General Counsel & EVP, Sompo International, Purchase, NY

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

Harris Mufson, Partner, Co-Chair, Whistleblower Team, Gibson, Dunn & Crutcher LLP, New York

Kenneth J. Nachbar, Retired Partner, Morris, Nichols, Arsht & Tunnell LLP, Wilmington, DE

Dan Roffman, Vice President, Forensic Services, Charles River Associates, Washington, D.C.

John Siegal, Partner, BakerHostetler, New York

Pietro J. Signoracci, Counsel, Paul Weiss, New York

Liza M. Velazquez, Partner, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York (Co-Moderator)

Baldo Vinti, Partner, Head IP Litigation, Proskauer, New York

Mary Therese Weber, Labor and Employment Counsel, IBM, Armonk, NY

In The Spotlight:  Non-Competes, Forfeiture for Competition Provisions

and Legislative Activity

The now-stayed FTC ban on non-competes probably attracted the most headlines.  What is next with new FTC leadership and a new 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 involved, 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.

 

Trade Secrets Protection Is More Important Than Ever

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 of influence” takes place domestically. 

 

Navigating the Wild World of Trade Secret Damages

Soaring jury verdicts and creative damages theories are facing increased judicial scrutiny of 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 royalty, 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.

Program Highlights/Topics for Discussion

9:00 a.m. – 1:30 p.m. EDT

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

  • 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?

  • Cybersecurity risks; tools to detect internal and external threats, confidentiality and reputational concerns

  • 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?

    • 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 Strategy

    • 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 CUTSA allows for exemplary damages 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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Organized by:

Sandpiper Partners is an educational and consulting firm run by industry advisor, Lynn Glasser, who for more than 20 years has created important subject matter IP and Data Protection educational conferences and briefings, white papers and surveys for law firms and law departments. 

Lynn and Stephen Glasser founded The Computer Lawyer, The Internet Lawyer, The Privacy Law Report and other information law resources as well as organized over 1000 conferences in IP, litigation, corporate law, securities law, and finance.

SP is also known as the leading provider of “Business of Law” education for lawyer leaders and senior business executives. www.sandpiperpartners.com

 

About the Premier Sponsor:

Charles River Associates is a leading global consulting firm that provides economic and financial analysis in litigation matters; delivers independent accounting and other forensic services; guides businesses through critical strategy and operational issues to become more profitable; and advises governments and regulatory agencies on the economic impact of policies and regulations. CRA has served major law firms, corporations, and governments around the world for more than fifty years, and we advise 83 of the Fortune 100 companies and 94 of the top 100 law firms.  CRA provides a wide range of services to assist companies and law firms in protecting, enforcing and litigating trade secrets through experts and consultants in its labor & employment, forensics investigations, and intellectual property practices. 

 

Questions? E-mail: Ginarivera@sandpiperpartners.com or Phone:  973.278.8800

CLE/CPE credit has been applied for.

© 2024 by Sandpiper Partners, LLC​

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