Trade secrets are the lifeblood of the operations and success of many businesses. But they, and other confidential information, may be shared with a third party — even a competitor — during the course of business transactions such as: consulting and vendor agreements; dealer, distributor and franchisee agreements; independent sales representative agreements; joint ventures; letters of intent; product development and technology agreements; and software and technology licenses. Likewise, employees often have access to their employer’s trade secrets and confidential information as part of their job responsibilities.

Hinshaw’s Intellectual Property Practice lawyers help businesses safeguard their trade secrets and other confidential information against theft and destruction. We assist with the drafting and implementation of enforceable nondisclosure and other confidentiality agreements and other sound policies and procedures, and advise on proper disclosure protocols. We also advise businesses on the proper protections to implement to protect against employee theft, including the drafting and use of confidentiality agreements and employee handbook provisions and the implementation of security and access policies.

When a theft or unauthorized use is suspected, quick, decisive and often aggressive action must be taken to stop further use and dissemination and to secure the return of the trade secrets and other confidential information. We handle misappropriation cases in state and federal courts throughout the United States. We also advise and execute on the legal steps to be taken to stop further use and dissemination of trade secrets and other confidential information and secure their return.

Commercial Transactions

As global competition increases and more businesses operate internationally, organizations increasingly need to share confidential information with third parties as part of their operations as well as strategic growth plans. The risk of economic espionage and theft of trade secrets and other confidential information has risen in turn. Accordingly, before any trade secrets or confidential information is shared, the appropriate nondisclosure agreement must be signed by the participants and the necessary disclosure protocols must be in place.

Hinshaw’s Intellectual Property Practice attorneys advise businesses on protocols to protect trade secrets and other confidential information from misappropriation. We also draft tailored nondisclosure agreements to meet the needs of a specific transaction or business relationship. In providing these services, we work to ensure legal compliance and proactively address litigation strategies should enforcement of the terms later be necessary.

Protections Against Employee Theft

The increasing ease by which trade secrets and other valuable confidential information are created and stored electronically has unfortunately produced an accompanying increase in employee theft of such information. Accordingly, businesses need to take protective measures by: using the proper agreements with employees; implementing policies and procedures to protect against theft, including employee handbook provisions; educating human resource staff and supervisors about the proper administration of these agreements; and enforcing these policies and procedures.

Hinshaw’s Intellectual Property Practice attorneys draft legally compliant confidentiality agreements and restrictive covenant agreements tailored to our clients' business operations. We also draft and help implement policies and procedures designed to reduce the possibility of theft and to enhance a business’ ability to pursue legal action if necessary.

Enforcement Strategies

When theft or improper use of trade secrets or other confidential information is suspected, it is critical to immediately implement a strategy to protect against further dissemination and use of that data and to secure the return of the data. The use of forensic experts will often be necessary to prove the improper misappropriation and assist with the return of electronic data.

Hinshaw’s Intellectual Property Practice attorneys work with forensic experts to gather evidence of improper use and dissemination. Additionally, our in-house technical experts interface with these forensic experts in collecting, preserving and presenting evidence of misappropriation.

In the case of employee theft, it is critical to identify the participants, contain the damage and protect the business from further damage by the employee(s). Should the culprit instead be a third-party business associate, decisive — and often aggressive — action to enforce the applicable agreements and protocols are key. Moreover, court intervention frequently is necessary to prevent further dissemination and use and to secure the return of the trade secrets and confidential information.

Hinshaw attorneys litigate these types of disputes in state and federal courts throughout the United States, and we are skilled at obtaining temporary restraining orders and preliminary injunctions. Additionally, these disputes are best handled by lawyers skilled in pursuing claims under the new Defend Trade Secrets Act, the Uniform Trade Secrets Act, the Computer Fraud and Abuse Act (and state counterparts), and the Economic Espionage Act. We have the necessary knowledge and experience to use these laws to our client’s advantage.

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