Trade Secrets


We Are Experienced Trade Secret Misappropriation Litigators

At Lesowitz Gebelin LLP, we have significant experience with trade secret law and trade secret lawsuits. The founders of the firm are graduates of Harvard Law School and the NYU School of Law, and much of their practice has related to trade secret litigation, unfair competition, and intellectual property disputes.

Unlawful trade secret misappropriation can occur through the acquisition, disclosure, or use of a trade secret without authorization. We understand that legal protection of trade secrets can be of vital importance to a business. Valuable business information, systems, methods, and software may not qualify for protection other areas of intellectual property law.

Our firm handles many matters involving cyberlaw and lawsuits involving issues involving computers, IT systems, and the internet. This background knowledge can be valuable in modern trade secret litigation where laws pertaining to the internet and computers often overlap with traditional trade secret claims.

We are experienced in both pursuing and defending against applications for temporary restraining orders and motions for preliminary injunctions. Early in a case, the judge has the authority to bar the use or disclosure of alleged trade secrets prior to a full resolution. It often takes a strong effort to obtain a temporary restraining order or preliminary injunction.

We have represented both plaintiffs and defendants in trade secret litigation. This provides us with a more balanced perspective on how to pursue and defend cases. We appreciate the importance of protecting trade secret rights. We also appreciate that, at times, frivolous trade secret lawsuits are used to prevent competition.

It is important for a trade secret litigator to have a firm understanding of the particularities of trade secret law. Courts do not treat all information that a business identifies as confidential as a legally protected trade secret. As discussed below, there are multiple requirements that must be met for something to be deemed a trade secret under the law. These requirements contain exceptions and nuances that require a familiarity with judicial decisions and guidance.

Additionally, businesses face a tough balance in keeping trade secrets sufficiently confidential while not interfering with their ability to run their business. If unrestricted access to information is given to too many people, information will likely lose its trade secret status. However, the law recognizes that businesses at times must allow certain people to learn their trade secrets. Many businesses must disclose trade secrets to their employees or vendors. Businesses should exercise caution to ensure that any disclosures are handled properly.

What is a Trade Secret?

The type of information that could potentially constitute a trade secret is broad. A trade secret may include “a formula, pattern, compilation, program, device, method, technique, or process.” Cal. Civ. Code § 3426.1(d).

While nearly any type of information could potentially constitute a trade secret, there are four additional requirements for trade secret protection. A court of law will not find something to be a trade secret just because a business considers it to be confidential or proprietary.

For information to constitute a legally protectable trade secret, the following conditions must be met.

(1) the information cannot be “generally known” within the general public or the relevant field of business,

(2) reasonable efforts must be taken to keep the information secret,

(3) the information must have value from not being generally known, and

(4) the information must not be “readily ascertainable” through proper efforts.

Cal. Civ. Code § 3426.1(d); DVD Copy Control Assn., Inc. v. Bunner, 31 Cal.4th 864, 899 (2003).

Note that in the California Civil Code, that the information cannot be “readily ascertainable” is not part of the definition of “trade secret.” However, a defendant may raise as a defense that the information is “readily ascertainable” by proper means. Abba Rubber Co. v. Seaquist, 235 Cal.App.3d 1, 21, n. 9 (1991).)

If someone may reasonably and properly reverse engineer a program or process, the program or process would likely be “readily ascertainable,” and thus not a protectable trade secret.

Confidentiality Agreements, Nondisclosure Agreements, and Breach of Contract

Complete confidentiality is not required to prevail in a trade secret misappropriation (sometimes referred to as a trade secret infringement) lawsuit. The efforts need only be “reasonable.” That said, a business should be cautious prior to disclosing information that may be a trade secret, including to employees.

It is usually the best practice for businesses to require anyone who receives proprietary information to sign a confidentiality agreement or nondisclosure agreement. That said, courts do not always find the lack of a confidentiality agreement or NDA to bar a trade secret lawsuit. Hilderman v. Enea TekSci, Inc., 551 F.Supp.2d 1183, 1201 (C.D. Cal. 2008).

One benefit of a confidentiality agreement is that if someone violates it, the person may be found liable for breach of contract even if the information would not meet the legal definition of a trade secret.

Noncompete Agreements, Employees, and Inevitable Disclosure

In California, except in narrow exceptions, agreements between a business and an employee that the employee will not compete against the employer following employment are unenforceable. Cal. Bus. & Prof. Code § 16600. Unlike some other states, in California non-competition agreements are unenforceable, even if they are of a limited scope, only last for a short time, and are limited to a small geographic area.

Courts are hesitant to allow trade secret law to act as a way around the bar on non-compete agreements. The most notable way that this manifests itself is that California courts reject the so-called inevitable disclosure doctrine. This means that California courts, unlike courts in many other states, will not issue an injunction prohibiting a former employee from working for a competitor or starting a competing business on the grounds that the new work is of a type where one would be expected to likely use the former employer’s trade secrets. Whyte v. Schlage Lock Co., 101 Cal.App.4th 1443 (2002).

Trade Secret Defense and Trade Secret Infringement

Our practice is located in Los Angeles, California. We represent clients throughout Southern California, including Orange County, Beverly Hills, Santa Monica, Century City, Riverside, San Bernardino, Sherman Oaks, and Long Beach.

If you would like legal assistance regarding a trade secret or other litigation matter, please contact us.

Contact Us About Your Trade Secret Suit

Our offices are located in the heart of Los Angeles, California. We represent clients throughout California, from Silicon Beach to Silicon Valley and beyond, including Beverly Hills, Santa Monica, Orange County, San Diego, Ventura, Riverside, San Bernardino, and Santa Barbara.

Lesowitz Gebelin LLP’s litigation attorneys can help you If you believe your trade secrets have been violated. We invite you to contact us about your Trade Secret matter and either submit to us using our online case submission form or by calling us directly at 310-341-3072.

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