Forgive me, I use hashtags ironically.
And this morning, after having read yet another article about the ongoing trade secret litigation between Google and Uber, respectively.
This is not a surprising scenario, but as alleged we have the following players:
Company 1 (Google) has long term employee (we will call him Bozo) who helps Company 1 develop something which Company 1 believes to be confidential, proprietary, special, of value and protected by state and federal trade secret laws. Bozo is paid for this work. He is likely paid handsomely for this work. Bozo, feeling unappreciated, sticks a thumb drive (or using some other more sophisticated method) takes some of this special, confidential information that Company 1 thinks has value, and goes to work at Company 2 (Uber). Now, normally this may not be stupidity worth mention unless of course Bozo is hired by Company 2 for the reason that he has and is willing to share the information with Company 2, to the detriment of Company 1. Or, less egregious, Company 2 doesn’t want the information but Bozo tries to use it anyway because he is smarter than anyone.
When Company 1 finds out – they hire big expensive lawyers in $1,000 shoes (fancy shoe firm) and they lawfully sue the pants off Bozo and Company 2 to get back their protected secret information, and stop Company 2 from using it.
Usually 1 of 2 scenarios plays out: Scenario 1 – Company 2 hires their own expensive lawyers (fancy suit firm) and they bill the crap out of the case for the next two years until some settlement is reached wherein Company 2 pays company 1 a sum of money. Scenario 2 – Company 2 hires fancy suit firm and they aver (which is fancy lawyer talk for argue) they have no access to the trade secrets and have done nothing wrong – see you in Court!
In the Google v. Uber approach, a third and more unique scenario played out: Fancy suit firm can’t get Bozo to cooperate and Bozo is fired quickly as a way to save Company 2 some level of heartache and financial loss.
Sounds Shakespearean doesn’t it?
We see it all the time in our practice, but usually Company 1 and 2 are much smaller and Bozo is less educated and less sophisticated.
The trend however, is not unique. Employees feel a certain amount of entitlement to their work and work product and believe they have the legal right to take it with them when and where they go. Might be a design, a program, a client list, a cost sheet, a Rolodex (yes we have clients who still use these. For you millennials that are confused – see here) a marketing plan, whatever. Why would the employee feel entitled? Maybe they are just arrogant jerks. Maybe, they didn’t think about it. Maybe, they thought – “I don’t have a contract that says I can’t take it,” or maybe, just maybe, they wrongly assumed that their work product was theirs.
Whatever the reason, I am here to preach the gospel of trade secret law.
Here it is:
1. If you created something as someone’s employee – it’s not likely yours.
2. If you created something yourself, then gave it, sold it, lent it to your employer, and used it as an employee, – it may not be yours.
3. If you take something, the smart computer guys will find out.
4. If the information you created was considered to be confidential and treated as such, it may likely be entitled to trade secret protection – regardless of whether you have a written contract.
5. Even California has trade secret laws.
6. If you use that secret information for the benefit of yourself or someone else, without permission, you will get sued.
7. Mostly men do this. Few women are this _________ to take information from one company and assume it is their own. It’s like a chose your own adventure, I will let you fill in the above blank. And yes, that may be a gross over-generalization and gender stereotype that hurts feelings but I have only had 1 client in 12 years who has done this and was female. The men are too numerous to count.
8. Because people will continue to think the information is theirs to take, I will have a job for years to come. Thus, #noncompete #jobsecurity.
9. Even smart people act dumb sometime.
10. Only the lawyers win in trade secret litigation companies.
So, let’s keep watching this legal drama and unfold and all use this as a personal lesson. Don’t take what isn’t yours, even if you think you are smarter than everyone else.