Trade Secrets, Restrictive Covenants & Unfair Competition

Securing a company’s information and protecting its legitimate business interests are more crucial than ever. Without these protections, customer lists can be stolen and misused, product designs usurped and implemented by a competitor, pricing margins and strategic plans made publicly available, sophisticated algorithms and source code improperly downloaded and misappropriated, and other confidential data absconded with and then turned against the company. Thus, the failure to understand, navigate, and confront the depth of these challenges can cause the loss of valuable trade secrets, significant business harm, unwanted media attention, and potential breach of fiduciary duty allegations against management.

Benesch’s Trade Secrets, Restrictive Covenants, and Unfair Competition Group consists of attorneys from across the country and multiple practice groups (Labor & Employment, Litigation, and Corporate) who understand the importance of protecting a company’s valuable information and business interests. Combined, group members have over 100 years of experience in handling trade secret, restrictive covenant, and unfair competition matters. Two attorneys in the group have been ranked among the top 10 most active trade secret litigation lawyers in the country by Lex Machina’s 2024 Trade Secret Litigation Report. The group works collaboratively to share best practices, stay abreast of and exchange information on legal developments, and learn industry-specific information that enables them to maximize expertise and value when working to address and meet a client’s needs and goals. Many of the attorneys in the Trade Secrets, Restrictive Covenants, and Unfair Competition Group are nationally recognized as leading authorities in this area, and commonly write and speak about these matters before bar groups, business organizations, and governmental bodies. They also assist both state and federal legislators in drafting restrictive covenant and trade secret statutes.

The group organizes members around clients so that each client is comfortable with the consistency of representation, and the members are familiar with clients’ needs, goals, and business. We also keep clients apprised of significant changes in state and federal law, and regularly conduct no-cost “information sessions” with our clients in order to keep them up to speed on recent legal opinions and statutes that may affect their operations, activities, and trade secrets.

Trade Secret Consulting

Recent studies estimate that publicly traded companies own approximately $5 trillion in trade secrets. Studies also show that the economic loss from trade secret theft is between $209 billion and $600 billion. No company is immune from trade secret theft, and Chief Executive Officers and corporate boards are looking to their in-house legal departments and outside counsel to help create and implement policies that maximize the protection of trade secrets and reduce the likelihood of trade secret theft.

Unlike most law firms, Benesch’s Trade Secrets, Restrictive Covenants, and Unfair Competition Group understands the importance of trade secret protection and, as such, has developed packages and programs that are specifically designed to help minimize the risk of trade secret theft and allow clients to receive the full value of trade secret protection. These packages and programs apply regardless of whether the thief is a disgruntled employee, a former business partner, or a competitor.

Some of the services Benesch provides for its clients, from small businesses to Fortune 50 companies, include:

• Assisting clients in conducting trade secret audits to determine the type of information amenable to trade secret protection and the protections that can be put in place to safeguard trade secrets in a manner consistent with the company’s structures, goals, environment, and culture.
• Evaluating trade secrets and restrictive covenants as part of the due diligence process in an acquisition, and drafting agreements and implementing trade secret protections after the acquisition closes so that the company receives full acquisition value.
• Creating and implementing trade secret programs and educating employees on trade secret protection.
• Analyzing restrictive covenant and confidentiality agreements in order to assess the enforceability of the agreements.
• Working with clients to gauge and, when necessary, minimize any trade secret or restrictive covenant risk resulting from hiring a competitor’s employee(s).
• Providing clients with updates on important developments in trade secret and restrictive covenant law, including changes that necessitate new agreements, changes to data protection programs, and/or revised employee onboarding and separation procedures.

When necessary, group members also work with other Benesch departments and groups, such as the Data Protection and Privacy Group, in conducting forensic analysis to help design trade secret protection programs. 

Litigation Services

We understand that there are times when litigation is necessary to protect a client’s trade secrets and legitimate business interests, or to fend off unwarranted claims of trade secret misappropriation or restrictive covenant violations. When this happens, and knowing that speed is key in these types of cases, the experienced team of trial lawyers in Benesch’s Trade Secrets, Restrictive Covenants, and Unfair Competition Group—lawyers who have litigated trade secret and restrictive covenant matters throughout the United States—jump into action by working with the client and forensic specialists to gather and preserve evidence, notify and work with relevant state and federal authorities, and file (or defend against) actions in state and federal court that seek temporary restraining orders, preliminary injunctions, expedited discovery, and permanent injunctions.  Not surprisingly then, Benesch’s Trade Secret, Restrictive Covenants, and Unfair Competition Group has obtained and defeated temporary restraining orders, preliminary injunctions, and permanent injunctions in state and federal courts located throughout the country, as well as in arbitration and alternative dispute resolution venues (such as FINRA).

Group members also understand the importance of recovering monetary and noneconomic damages in trade secret and restrictive covenant cases and, as a result, have obtained substantial trade secret and restrictive covenant jury verdicts on behalf of their clients. These successes have occurred in a wide range of industries, and for all sizes of companies, including, but not limited to, securities, pharmaceuticals, medical supplies and products, transportation, e-commerce, financial services, retail banking, healthcare, insurance, manufacturing, transportation, brokerage, real estate, and consumer goods. Not surprisingly, we also have an advanced understanding of the legal issues that recur from case to case, such as:

• What constitutes irreparable injury.
• Consideration for, and reasonableness of, restrictive covenants.
• Legitimate business interests needed for the enforcement of a restrictive covenant.
• Inevitable disclosure.
• Electronic discovery and forensic computer analysis.

Knowing that time equals money in trade secret and restrictive covenant cases, Benesch’s Trade Secrets, Restrictive Covenants, and Unfair Competition Group is skilled at quickly and aggressively obtaining injunctive relief in time-sensitive situations. Indeed, the fact that our dedicated team members are intimately familiar with companies and their respective industries sets us apart from our competitors.

It also allows us the ability to seek enforcement of trade secret protections or restrictive covenants in a fast and efficient manner. Such activities include:

• Investigating the facts and issues of a potential case through interviews and collaboration with forensic and computer experts.
• Issuing cease and desist letters when appropriate.
• Filing suit and seeking an injunction.
• All aspects of expedited discovery.
• When applicable, contacting and working with law enforcement.