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Shhh! It’s Time for Trade Secret Cases. Steve Baron 3-26-09. Cenveo Corp. v. Southern Graphic (1-22-09). What Court? Who’s the plaintiff? Who are the defendants? What are they fightin’ about? What is the Court asked to decide? What does the Court decide and why?. - PowerPoint PPT Presentation
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Shhh! It’s Time for Trade Shhh! It’s Time for Trade Secret CasesSecret Cases
Steve BaronSteve Baron
3-26-093-26-09
Cenveo Corp. v. Southern Cenveo Corp. v. Southern Graphic (1-22-09)Graphic (1-22-09)
What Court?What Court? Who’s the plaintiff?Who’s the plaintiff? Who are the defendants?Who are the defendants? What are they fightin’ about?What are they fightin’ about? What is the Court asked to decide?What is the Court asked to decide? What does the Court decide and why?What does the Court decide and why?
Cenveo Corp. v. Southern Cenveo Corp. v. Southern Graphic (1-22-09)Graphic (1-22-09)
Court = US DC MinnesotaCourt = US DC Minnesota Plaintiff = CenveoPlaintiff = Cenveo Defendants = Southern Graphic and indiv.Defendants = Southern Graphic and indiv. Fight = Cenveo wants to stop SG from Fight = Cenveo wants to stop SG from
working with past and current Cenveo working with past and current Cenveo clients and using proprietary info.clients and using proprietary info.
Court to decide whether to enter Court to decide whether to enter preliminary injunction.preliminary injunction.
Cenveo Corp. v. Southern Cenveo Corp. v. Southern Graphic (1-22-09)Graphic (1-22-09)
Court decides:Court decides: Grants preliminary injunction in part and Grants preliminary injunction in part and
denies in part.denies in part.
What are alleged trade secrets:What are alleged trade secrets: Job history information Job history information USB flash driveUSB flash drive
Cenveo Corp. v. Southern Cenveo Corp. v. Southern Graphic (1-22-09)Graphic (1-22-09)
Cenveo claims:Cenveo claims: Breach of duty of loyaltyBreach of duty of loyalty Tortious interference with employees and Tortious interference with employees and
customerscustomers Misappropriation of trade secretsMisappropriation of trade secrets Unjust enrichmentUnjust enrichment Unfair competitionUnfair competition
Cenveo Corp. v. Southern Cenveo Corp. v. Southern Graphic (1-22-09)Graphic (1-22-09)
Preliminary injunction factors:Preliminary injunction factors: Irreparable harmIrreparable harm Balance of harmsBalance of harms Probability of success on the meritsProbability of success on the merits Public interestPublic interest
Cenveo Corp. v. Southern Cenveo Corp. v. Southern Graphic (1-22-09)Graphic (1-22-09)
Cenveo Corp. v. Southern Graphic (1-Cenveo Corp. v. Southern Graphic (1-22-09)22-09)
Why wasn’t Cenveo entitled to a Why wasn’t Cenveo entitled to a preliminary injunction to stop SG from preliminary injunction to stop SG from working with past and present clients?working with past and present clients? No irreparable harmNo irreparable harm Balance of harms in favor of SG employeesBalance of harms in favor of SG employees Right of clients to work with whom they wantRight of clients to work with whom they want
Cenveo Corp. v. Southern Cenveo Corp. v. Southern Graphic (1-22-09)Graphic (1-22-09)
Why was Cenveo entitled to an injunction Why was Cenveo entitled to an injunction on information relating to job histories?on information relating to job histories? Sufficient trade secretSufficient trade secret Competitively advantageousCompetitively advantageous Would be irreparably harmedWould be irreparably harmed High degree of probability of “inevitable High degree of probability of “inevitable
disclosure”disclosure”
ClearOne v. Chiang (2007)ClearOne v. Chiang (2007)
What court?What court? Who’s the plaintiff?Who’s the plaintiff? Who are the defendants?Who are the defendants? What’s the fight about?What’s the fight about? What’s the procedural posture?What’s the procedural posture?
ClearOne v. Chiang (2007)ClearOne v. Chiang (2007)
Court = USDC UtahCourt = USDC Utah Plaintiff = ClearOne = Maker of wideband Plaintiff = ClearOne = Maker of wideband
codecode Defendants = Biamp licenses object code Defendants = Biamp licenses object code
from Widebandfrom Wideband The fight’s about whether the code is a The fight’s about whether the code is a
trade secrettrade secret The posture: Biamp files a motion to The posture: Biamp files a motion to
dismissdismiss
ClearOne v. Chiang (2007)ClearOne v. Chiang (2007)
Biamp says: it can’t read the object code; only Biamp says: it can’t read the object code; only machines can read object code.machines can read object code.
Court says: who cares. It doesn’t matter.Court says: who cares. It doesn’t matter. Biam says: object code was publicly available.Biam says: object code was publicly available. Court says: who cares. Even if object code Court says: who cares. Even if object code
available, the source code (human readable) available, the source code (human readable) may still be protectable trade secret.may still be protectable trade secret.
Result: Motion to dismiss complaint denied.Result: Motion to dismiss complaint denied.
Taco Bell v. TBWA (2009)Taco Bell v. TBWA (2009)
http://www.youtube.com/watch?v=M8sZ1DWsAHE/
Taco Bell v. TBWA (2009)Taco Bell v. TBWA (2009)
What court?What court? Who’s the plaintiff?Who’s the plaintiff? Who’s the defendant?Who’s the defendant? What are they fightin’ about?What are they fightin’ about? What’s the trade secret?What’s the trade secret?
Taco Bell v. TBWA (2009)Taco Bell v. TBWA (2009)
Court = Ninth Circuit Court of AppealsCourt = Ninth Circuit Court of Appeals Plaintiff/Appellant = Taco BellPlaintiff/Appellant = Taco Bell Defendant/Appellee = TBWADefendant/Appellee = TBWA They’re fightin’ about who should pay for They’re fightin’ about who should pay for
the use of the psycho chihuahua the use of the psycho chihuahua character.character.
The confidential TS is the concept of using The confidential TS is the concept of using a psycho chihuahua as a Taco Bell a psycho chihuahua as a Taco Bell mascotmascot
Taco Bell v. TBWA (2009)Taco Bell v. TBWA (2009)
Underlying case: Wrench v. Taco BellUnderlying case: Wrench v. Taco Bell Jury finds that Taco Bell breached and Jury finds that Taco Bell breached and
implied confidentiality agreement.implied confidentiality agreement. Awards Wrench $30 million, which mounts to Awards Wrench $30 million, which mounts to
$42 million with interest.$42 million with interest.
Taco Bell v. TBWA (2009)Taco Bell v. TBWA (2009)
This case:This case: Question presented: Is Taco Bell’s ad Question presented: Is Taco Bell’s ad
agency, TBWA, liable for “indemnity” to Taco agency, TBWA, liable for “indemnity” to Taco Bell?Bell?
Trial court granted summary judgment for Trial court granted summary judgment for TBWA.TBWA.
Ninth Circuit agrees: TBWA not aware of Ninth Circuit agrees: TBWA not aware of implied contract b/t Taco Bell and Wrench.implied contract b/t Taco Bell and Wrench.
Quote of the DayQuote of the Day
““Do not tell secrets to those whose Do not tell secrets to those whose faith and and silence you have not faith and and silence you have not already tested.”already tested.”
Elizabeth IElizabeth I
