Quick Notes

January 1, 2017


Whistleblowers – The first court opinion addressing DTSA whistleblower immunity (18 U.S.C. §1833(2)) was issued on December 6 in Unum Group v. Loftus, 2016 WL 7115967 (D. Mass.). The plaintiff alleged improper taking of company documents by an employee and requested an injunction prohibiting their copying and compelling their return. Although evidence suggested that Loftus had only provided the documents to his attorney for investigation of wrongdoing, the court determined that it could not resolve that fact question and ordered the documents surrendered to the court. The decision has provoked criticism. See link.

China – During the annual meeting of the Joint Commission on Commerce and Trade in DC in November, China announced various improvements to its law and practices on trade secrets, including evidence preservation and calculation of damages. See link.

On January 9 the USTR issued its report to Congress on China in the WTO, noting that China was strengthening its trade secret legal framework, but that the “protection and enforcement of trade secrets in China is a serious problem”. See link at page 9.

On the same day the U.S. Supreme Court declined to hear an appeal by Sino Legend Chemical Co. from a decision of the ITC barring certain imports into the U.S. The appeal sought to challenge the Federal Circuit’s ruling in TianRui Group v. ITC, 661 F.3d 1322 (Fed. Cir. 2011), approving ITC jurisdiction over trade secret misappropriation occurring entirely outside the U.S.

APEC – In November, the Asia-Pacific Economic Cooperation (APEC) group of countries issued a statement approving a set of eight “best practices” for trade secret enforcement at the national level, including providing for both criminal remedies and civil remedies that include damages, injunctions, seizure of goods and cost awards, as well as procedures to obtain and preserve evidence. See link.

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