Recognizing Risk: When Pursuing A Competitive Edge Creates Exposure To Trade Secret Claims

A well-known idiom - widely credited to Ben Franklin in the 1700s - is that an ounce of prevention is worth a pound of cure. Yet, few companies actively train their personnel to recognize the risk of a trade secret misappropriation claim posed by (overly) aggressive business tactics. The cost of an hour-long training session pales in comparison to the cost of defending, even if prevailing in, a trade secret action.

A trade secret claim generally requires, among other things, a defendant to have gained access to trade secret information via improper means. Such improper means often result from a zealous appetite for competitive intelligence or a business "edge." Complainants typically allege a breach of a duty of confidence (e.g., a non-disclosure or employment agreement), unauthorized access, acquisition by fraud, or an overt act of corporate espionage. In many instances, an experienced litigator can use a bit of smoke to create a reasonable inference of plausible