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Inevitable Disclosure Need Not Be Inevitable
There is something in the doctrine of inevitable disclosure that sets the heart to fluttering and the blood to boil. The former for those suing disreputable employees who want to advance themselves by peddling to their new boss their former boss's trade secrets. The latter for those representing honest employees who believe they ought to be able to change jobs without checking their years of accumulated know-how at the door on their way out. Both have legitimate concerns.
The doctrine of inevitable disclosure is a crucial tool to protect companies from perfidious former employees and is no threat to the honest ones ' if properly applied. The Third Circuit's recent decision in Bimbo Bakeries USA, Inc. v. Botticella, 2010 WL 2902729 (July 27, 2010), is a good illustration of this. But by studiously avoiding the word “inevitable” in its formulation of the basic legal principles, and stating that only “substantial likelihood” is required for the former employer to prevail, it muddied the analysis. What really matters in such cases is not the degree of probability, but rather the predictability of unauthorized use of trade secrets based on the pre-termination conduct of the departing employee.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.