Creative Representation | Expert Litigation

BZB Alert! President signs “Defend Trade Secrets Act of 2016” – by Benjamin K. Riley

For many years, litigants have had original federal court jurisdiction for Patent, Trademark and Copyright cases, but the fourth major area of Intellectual Property law — Trade Secrets — has been governed by state law with no federal court jurisdiction. No longer. On May 11, 2016, President Obama signed the “Defend Trade Secrets Act of 2016” to “provide a single, national standard for trade secret misappropriation with clear rules and predictability” in federal court.

“Trade Secret Damages,” Chapter 9, Calculating and Proving Damages – by co-author Benjamin K. Riley

The law of trade secrets protects information that provides independent economic value because others do not generally know that information. The holder of a trade secret seeks to capitalize on the business advantage that derives from ownership of the trade secret and prevent use of the trade secret by competitors. Moreover, the trade secret owner must make reasonable efforts to maintain the secrecy of the trade secrets or risk loss of the trade secret protection.

Injunction Relief in Lanham Act Cases Post-Herb Reed – by C. Griffith Towle

Motions for preliminary injunctive relief are routinely sought in cases involving claims for trademark infringement. For many years, once a moving party established a likelihood of success on the merits, irreparable harm was presumed and an injunction would usually be issued. This all changed with the Ninth Circuit's holding in Herb Reed Enter., LLC v. Florida Entm't Mgmt., Inc., 736 F.3d 1239 (9th Cir. 2013).

How Not to Regret Your Direct: Exploring the Human Story – by Benjamin K. Riley

How often do we look back and wonder whether we could have done things better, worked harder, been clearer, obtained a better result? Especially with those trial skills we don’t often get to practice. Presenting a powerful and persuasive direct examination is one of the most challenging parts of a trial. In our discovery and pretrial work, we get to practice argument and deposition-style cross-examination, but rarely do we get the chance to prepare a witness thoroughly and then present him or her to a judge or jury. And how hard it is for most litigators to step back after all the hard preparation and let the witness be the star! To avoid regret after direct examination, listen to the witness, get to know the witness, and weave your examination around his or her human story—the interesting and unique aspects of the witness that best highlight and teach about the issues in the case.

Restoring CMIA’s Intended Balance – by Michael D. Abraham

California’s Confidentiality of Medical Information Act (CMIA), Civil Code section 56 et seq., carefully balances obligations to handle and dispose of medical information in a manner preserving confidentiality with patients’ CMIA rights of action for nominal or actual damages. Disruption of this balance has recently been threatened by multiple class action lawsuits seeking to dictate privacy procedures and recover millions or, in one case, billions, of dollars from health care providers in response to the theft or loss of electronic databases.

Proving Irreparable Harm – Have The Standards Changed? – by co-author C. Griffith Towle

Irreparable harm is the sine qua non of injunctive relief - a showing of a likelihood of irreparable harm in the absence of an injunction is a critical factor in the injunction analysis, without which a court will not issue an injunction.

Three Legal Lessons for Startups – by Benjamin K. Riley

Startup or emerging growth companies have to act decisively, efficiently and quickly. But the frenetic pace and other challenges these companies face often lead to serious legal mistakes. All too often, these companies fail to distinguish and understand the differences between an agreement that is legally enforceable and one that is not; keep inadequate documentation of the legal rights and responsibilities among joint venture partners; and fail to identify and protect the company’s trade secrets.

Fundamentals 201: Stop That Right Now – Preparing For, And Winning, Injunctions – by co-author C. Griffith Towle

For both franchisees and franchisors, an injunction application is a valuable tool in expediting necessary relief to prevent a continuing harm or to maintain the status quo pending an ultimate decision on the merits. An injunction can also be valuable to position an early settlement of a case, where relative strengths and weaknesses of the parties' positions have not been fully addressed but while contemplating the finality of an adverse ruling.

Incurable Defaults and “Good Cause” Requirements – by co-author C. Griffith Towle

Many franchise agreements contain provisions allowing the franchisor to terminate the agreement without affording the franchisee an opportunity to cure. These sections are typically reserved for egregious breaches, and the commission of one of these breaches by the franchisee constitutes an incurable default. However, some states prohibit a franchisor from terminating a franchise agreement without "good cause."

Secrets Service – by Benjamin K. Riley

It's Friday afternoon. One of your most important clients calls and says that its key technologist is leaving the company and is starting a similar job with a competitor on Monday. The client believes that many of the company's most important trade secrets will go with him. What do you do?