
Although the Boston Scientific story represents a relatively
rare situation where criminal charges are being pursued for the alleged theft
of trade secrets, instances of employees misappropriating an employer’s trade
secrets, and other confidential and proprietary information, are far too common
these days. Those unlawful acts can
cause tremendous harm to a company and can also expose new employers of
pilfering employees to very severe legal and economic consequences, including multi-million
dollar jury awards (such as the $22 million verdict that we obtained for our client) and injunctions shutting
down significant portions of their business.
Although the matter of misappropriation/theft of trade
secrets has been addressed for quite some time by laws enacted at the state
level, with 47 different states adopting versions of the Uniform Trade Secrets
Act, including Minnesota, that topic
is also now receiving serious attention at the federal level. There is no currently
existing federal law that directly addresses the issue of misappropriation of
trade secrets, although some federal laws do touch on the issue peripherally. Although Congress has kicked around the
possibility of a federal statute over the last few years, the current
developments regarding the possible Trade Secrets Protection Act of 2014 represent the farthest advancement to date
of a possible federal trade secrets law.
In the meantime, careful employers would be well served to
give some thought as to how much harm they might suffer at the hands of an unscrupulous
employee. Employers should then think
about confidentiality policies, practices, and agreements to be put in place –
and followed. That should include
consideration of efforts to monitor compliance by employees with those policies and practices. Notwithstanding the criminal proceedings
in the Boston Scientific matter, wronged employers are typically left to fight
for their own justice through the commencement of a civil lawsuit. We still operate mostly in a legal
environment where a person can get incarcerated for five years for stealing a
$1,000 laptop computer, but only face a civil lawsuit for stealing thousands of
computer files, worth hundreds of thousands of dollars (or more). So, it is much better for companies to be
vigilant on the front-end.
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