July 26, 2016

“Non-compete agreements, inevitable disclosure, and the DTSA,” Inside Counsel, July 26, 2016

The Defend Trade Secrets Act (DTSA) purposely did not adopt the inevitable disclosure document, but it also purposely left the inevitable disclosure doctrine under state laws intact. Why?

We sat down with Bryan Wheelock, a principal at the intellectual property firm Harness Dickey, to dig into this a bit further.

Some version of the Uniform Trade Secret Act is in force in 48 states (Massachusetts and New York have not adopted the UTSA), according to Wheelock. In fact, section 2a of the UTSA states: “Actual or threatened misappropriation may be enjoined.” Relying on Section 2a and/or common law principles, some states have adopted the Inevitable Disclosure Doctrine.

“Under the Inevitable Disclosure Doctrine, the former employee of a trade secret owner may be enjoined from working for a new employer even in the absence of a non-compete agreement if it is determined that the disclosure of the former employer’s trade secrets is inevitable,” he explained.

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