Trade Secrets
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Trade secrets and other confidential and proprietary information are the lifeblood of a company, regardless of its size or the industry in which it operates. Trade secrets and other non-public information are typically assets that give a company its greatest competitive advantage. Crowell & Moring has extensive experience dealing with trade secret theft at all levels, from an award-winning litigation practice, to counseling on proactive protection strategies, and to policy determinations and interactions with the U.S. and foreign governments. In 2011, for example, we represented DuPont in a landmark case involving the theft of trade secrets related to KEVLAR® body armor. After a multi-year litigation effort and a two-month jury trial, Crowell secured a $919 million verdict for DuPont for the Kevlar theft — the largest contested jury verdict award ever in a trade secret case, and the largest verdict of any kind in the Commonwealth of Virginia. We also obtained an unprecedented 20-year injunction against the Korean defendant, Kolon Industries, from manufacturing their competing product. (E.I. DuPont de Nemours v. Kolon Industries, E.D. Va 2011).

Our approach to trade secret matters is unique. We use a multi-disciplinary approach, drawing on the tremendous experience of our litigators, employment, antitrust, white collar criminal, and intellectual property lawyers, as well as our U.S. and international policy advisors. We routinely field teams in trade secret matters that include lawyers from the following practice areas: 

  • Labor and employment. We have substantial experience taking immediate, proactive measures to contain the theft, address human resource issues, and develop proactive onboarding, confidentiality, social media, departure, and related policies in partnership with our clients to safeguard their trade secrets. 
  • Intellectual property. We have broad and deep technical experience in understanding high-level technologies, ranging from sophisticated software applications to the complex chemistry of the KEVLAR® fiber.
  • White collar and regulatory enforcement. We have experience with the full panoply of available espionage and related fraud statutes implicated by trade secret theft, and interact with the U.S. government in advancing or defending criminal cases.
  • International trade and dispute resolution. Along with our C&M International policy advisors, we offer the ability to address theft by foreign entities and individuals, and to navigate complex issues in enforcing trade secret actions overseas.
  • Government contracts. We have experience dealing with trade secret issues in government contracts and procurement.
  • Regulatory. We advise clients on the wide range of rules, regulations, and antitrust concerns that must be addressed by companies with trade secrets, including emerging guidelines on electronic theft and cyber-espionage.
  • Litigation. We have tried and won many trade secret cases across the United States, from the DuPont v. Kolon billion-dollar verdict to smaller, but no less important, cases of individual employee thefts.

We apply this same multidisciplinary approach to every engagement, no matter the size or scope of the theft or misappropriation in question, or the alleged role our clients played in the dispute. From the perspective of the victim, we understand the importance of ensuring that the trade secrets theft is promptly and effectively stopped, usually through litigation or an injunction. From the perspective of the accused company, we understand the need to defend vigorously company rights to publicly available information.

We also recognize that there are multiple routes that can be taken to pressure the opposing party, including criminal avenues. We draw on our lawyers' extensive experience in federal and state law enforcement and regulatory agencies to provide important insights and develop and deliver pragmatic, solution-oriented strategies.

Our trade secret team addresses all aspects of the trade secret life cycle, from development through protection. When trade secrets have been stolen, we offer the following services:

  • Advising companies on protecting trade secrets by offering audits, strategic portfolio analyses, and developing robust on-boarding and off-boarding programs to ensure our clients do not inadvertently obtain a competitor's trade secrets through new employees, or allow trade secrets to walk out the door with departing employees. 
  • Helping clients protect their proprietary information through preparation and negotiation of a range of noncompetition, nonsolicitation, and confidentiality agreements. These restrictive covenants often appear in stand-alone agreements, or as part of employment contracts and other agreements for senior executives and managers. In cases involving cross-border theft of trade secrets, we deploy our international capabilities to engage appropriate law enforcement and policy channels. And as governments in the United States and around the world grapple with the rapidly expanding scale of trade secrets misappropriation, we ensure that our clients are engaging directly with policymakers in the pursuit of improved legal and public policy responses.
  • Drawing — where misappropriation, breaches of contract, and other disputes arise — on our strong team of litigators and trial lawyers to take immediate action to stem the loss of critical information, prevent further misappropriation of our clients' confidential information, and achieve appropriate redress.  
  • Working with the U.S. government in obtaining or defending criminal cases arising from trade secret theft.

Our clients in this critical area range from large, international companies to emerging start-up companies with innovative technologies. Our unique, multidisciplinary approach provides the best "go to" abilities for any type of trade secret problem.