A State-By-State Analysis of Inevitable Disclosure: A Need For Uniformity a nd a Workable Standard

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Citation: Ryan M. Wiesner (2012) A State-By-State Analysis of Inevitable Disclosure: A Need For Uniformity a nd a Workable Standard. Marquette Intellectual Property Review (RSS)



Download: http://scholarship.law.marquette.edu/iplr/vol16/iss1/2/

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Summary:

Reviews trade secret law, inevitable disclosure doctrine, the UTSA, PepsiCo, and variable treatment of inevitable disclosure among (and within) states ranging from rejection to favoring. Argues for standard:

  • In presence of a valid, narrowly drafted employment agreement burden on employer to show:
    • employee was given access to trade secrets during employment
    • employee has taken a position with a direct competitor
    • new position is similar to old one, such that employee will be unable to perform duties without revealing trade secrets
  • In absence of an employment agreement, presumption against enjoining employee from new employment. In addition to showing above factors, employer must show:
    • employee acted in bad faith