1E9Ct5D

5 for the RoadBuilding a Better Mousetrap – Protecting Company AssetsJames M. PetersonHIGGS, FLETCHER & MACK, LLP, San Diego, Californiapeterson@higgslaw.comEva KnipschildKENNEDY VAN DER LAAN, Amsterdam, Netherlandseva.knipschild@kvdl.nl1. Start with the fundamental question: What information qualifies as a “protectabletrade secret” under state and/or federal law? Decide at the outset whether this“trade secret” or other information requires protection.2. Different states have different laws regarding trade secret protection and it isimportant to know the rules of your state.3. Understand what you can and cannot do if utilizing a restrictive covenant(specific to the locations where they operate). When parties are decidingwhether to sue, state law variations will make choice of law a powerful factor inanalyzing the risks and benefits of pursuing trade secret litigation, and the choiceof forum may prove critical in the success or failure of the action.4. Determine whether a breach of your confidentiality agreement or restrictivecovenant entitles you to injunctive relief, monetary damages, attorneys’ fees, orany other type of damages or relief. (Just as state laws differ on the validity ofrestrictive covenants, so too do they differ on the extent of remedies available forbreach of those covenants.)5. Be cautious that your efforts to protect confidential information did not go “toofar.” (For example, there has been a significant rise in litigation regarding thevalidity and enforceability of anti-poaching agreements; these are agreementsbetween two different employers to refrain from hiring each other’s employees;they are very risky and could violate antitrust laws.)March 5, 2015© 3-5-2015 ALFA International