On Saturday, February 25, 2017, Jonathan Pollard, Principal of Pollard PLLC, spoke on the Defend Trade Secrets Act of 2016 at the National Bar Association’s 30th Annual Corporate Counsel Conference in Atlanta. Pollard was part of a panel discussion entitled How the Defend Trade Secrets Act of 2016 Affects Your Employment Agreements.” The panel was moderated by prominent litigator David Long-Daniels, Co-Chair of Greenberg Traurig LLP’s Global Labor & Employment Practice. Other panelists included Danielle Ochs, a partner at Ogletree Deakins; Antonio Robinson, Counsel at Carter’s Inc.; and Corie Pauling, Senior Director and Associate General Counsel at TIAA (and formerly a shareholder at Litler).
Pollard’s presentation focused on the seizure provisions of the DTSA. Pollard provided an overview of recent DTSA seizure case law and stressed that plaintiffs seeking seizure should be targeted and specific. Pollard notes, “Trade secret plaintiffs often go running into court yelling that the defendants stole everything. And when it comes to the DTSA’s seizure provisions, that’s no exception. A number of plaintiffs have basically requested an order allowing them to seize everything: every computer; every phone; every ipad; every peripheral that might contain their data. And that will never succeed. When you move for seizure under the DTSA, you need to make a device by device request, preferably with make, model and serial number. You need to map out for the court, one by one, why you are entitled to seize each specific device; what misappropriated trade secrets occupy each device. That’s the only viable approach.”
Pollard went on to map out the distinctions between seizure pre DTSA and post DTSA. In essence, there are three major differences. In relevant part, Pollard touched upon (1) the ability to seek seizure ex parte rather than via a standard preliminary injunction with notice (2) the need to prove not only irreparable harm, but that the defendant would abscond with the stolen materials and (3) the enhanced consideration harm to third parties or the public that may result from the requested seizure.
Pollard closed by pointing out the significant downside risks attendant to wrongful seizure. Ordinarily, if a defendant is wrongfully enjoined, that defendant’s only remedy is against an injunction bond. But not under the DTSA. If a plaintiff obtains a wrongful seizure under the DTSA (meaning its allegations are later proven false), the plaintiff has opened itself up to tremendous exposure. The Act allows the victim of wrongful seizure to recover actual damages, damages from lost goodwill, damages from business disruption, lost profits and attorneys fees.
In addition to speaking on the Defend Trade Secrets Act, Pollard – and the firm – were also sponsors of the conference.
Pollard PLLC is a litigation boutique based on Fort Lauderdale, Florida and focused on competition law. The firm and its attorneys have extensive experience litigating non-compete, trade secret, trademark and antitrust disputes. Their office can be reached at 954-332-2380.
