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Book Review: Big Data

Several times each month, we are pleased to republish a recent book review from the Canadian Law Library Review (CLLR). CLLR is the official journal of the Canadian Association of Law Libraries (CALL/ACBD), and its reviews cover both practice-oriented and academic publications related to the law.

Big Data. Edited by Benoit Leclerc & Jesse Cale. Abingdon: Routledge, 2020. 148 p. Includes illustrations, bibliographic references, and index. Criminology at the Edge series. ISBN 9781138492783 (hardcover) $136.00; ISBN 9781032336992 (softcover) $42.36; ISBN 9781351029704 (eBook) $42.36.

Reviewed by Matthew Renaud
Law Librarian,
E.K. Williams Law Library, University of Manitoba . . . [more]

The post Book Review: Big Data appeared first on Slaw.


Governance Reform and Lawyer Independence in Canadian Legal Regulation: Examining British Columbiaas Bill 21

Earlier this month, the government of British Columbia introduced Bill 21, the Legal Professions Act. This bill amalgamates the Law Society of British Columbia and the Society of Notaries Public of British Columbia into a new corporation, Legal Professions British Columbia (LPBC), while also creating a licensing and regulation structure for paralegals. It could be the most consequential development in Canadian legal regulation in more than 100 years.

The British Columbia legal professionas leading organizations (the Law Society, the Canadian Bar Associationas BC branch, and the Trial Lawyersa Association of BC) strongly oppose Bill 21, with the . . . [more]

The post Governance Reform and Lawyer Independence in Canadian Legal Regulation: Examining British Columbiaas Bill 21 appeared first on Slaw.


Effective Use of Visual Aids in Mediation

The use of demonstrative or visual aids at mediation is more widely accepted by lawyers and mediators since the legal profession began its rapid embrace of technology. Arguably, the pandemic accelerated this implementation. The technology adoption started with the exchange of electronic mediation briefs, improved access to scanned documents, and the use of video software, like Zoom and Teams. Now, counsel more commonly use Power Point or slides and electronic documentation in their introductory remarks, and present demonstrative aids in their Mediation Briefs to bolster arguments by visual communication.

Through technology, counsel can now utilize a variety of demonstrative aids . . . [more]

The post Effective Use of Visual Aids in Mediation appeared first on Slaw.


BC Court of Appeal Recognizes the Myth of False Allegations of Intimate Partner Violence

Case Commented On: KMN v SZM, 2024 BCCA 70 (CanLII), overturning 2023 BCSC 940 (CanLII)

We have both written previously on myths and stereotypes about intimate partner violence (IPV), one of the most common of which is that women make false or exaggerated claims of violence to gain an advantage in family law disputes (see here and here). In KMN v SZM, 2024 BCCA 70 (CanLII), the British Columbia Court of Appeal (BCCA) recognized the existence of this myth and the need for courts to avoid making assumptions that perpetuate it, holding that it is . . . [more]

The post BC Court of Appeal Recognizes the Myth of False Allegations of Intimate Partner Violence appeared first on Slaw.


Mondayas Mix

Each Monday we present brief excerpts of recent posts from five of Canadaas awardA-winning legal blogs chosen at random* from more than 80 recent Clawbie winners. In this way we hope to promote their work, with their permission, to as wide an audience as possible.

This week the randomly selected blogs are 1.A Dooreyas Workplace Law Blog 2. Lash Condo Law 3. Canadian Appeals Monitor 4. Family LLB 5. Avoid a Claim

Dooreyas Workplace Law Blog
SCC: Exclusion of Managers from Labour Legislation Not a Charter Violation

The Supreme Court of Canada released a much anticipated but under the radar . . . [more]

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Summaries Sunday: SOQUIJ

Every week we present the summary of a decision handed down by a QuA(c)bec court provided to us by SOQUIJ and considered to be of interest to our readers throughout Canada. SOQUIJ is attached to the QuA(c)bec Department of Justice and collects, analyzes, enriches, and disseminates legal information in QuA(c)bec.

PANAL (DROIT) : La juge de premiA"re instance n’a pas errA(c) en dA(c)terminant que la caractA(c)ristique dominante de la poupA(c)e en silicone que possA(c)dait l’accusA(c) est une reprA(c)sentation des organes sexuels et de la rA(c)gion anale d’une enfant dans un but sexuel, ce qui constitue du matA(c)riel de pornographie juvA(c)nile . . . [more]

The post Summaries Sunday: SOQUIJ appeared first on Slaw.


Remembering Attorney General Roy McMurtry

The Hon. Roy McMurtry had a stellar career, serving as Chief Justice of Ontario, Canadian High Commissioner to the United Kingdom, Commissioner of the Canadian Football League, and Attorney General of Ontario. When he passed away in March, many of the tributes rightly focussed on the critical role he played in reaching athe kitchen accorda which led to the patriation of the Constitution with the enactment of the Charter of Rights and Freedoms, section 35 and the notwithstanding clause. Other tributes noted his participation in the landmark case of Halpern v. Canada (2003), which legalized same-sex marriage.

Because McMurtry . . . [more]

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Friday Jobs Roundup

Each Friday, we share the latest job listings from Slaw Jobs, which features employment opportunities from across the country. Find out more about these positions by following the links below, orA learn how you can use Slaw JobsA to gain valuable exposure for your job ads, while supporting the great Canadian legal commentary at Slaw.ca.

Current postings on Slaw Jobs:

. . . [more]

The post Friday Jobs Roundup appeared first on Slaw.


The Lack of Protection for Non-Denominational Identity: The Webber Academy Case

INTRODUCTION

Webber Academy (or athe schoola), a private educational institution in Alberta, defined itself as non-denominational: it did not engage in any overt religious practice (with one possible and qualified exception). Yet, after two Alberta Human Rights Commission (AHRC) decisions, two Queenas Bench (as it then was) (QB) judgements, two Court of Appeal (CA) rulings and two denial of leaves to appeal by the Supreme Court of Canada (SCC), it was held to have discriminated without justification against two Muslim students whom it prohibited from engaging, on school property, in overt prayers. How did this happen? And what does it . . . [more]

The post The Lack of Protection for Non-Denominational Identity: The Webber Academy Case appeared first on Slaw.


Missing Discussions at Center of Union COVID Dispute

Written by Daniel Standing, LL.B., Content Editor, First Reference Inc.

The Supreme Court of British Columbia rendered a decision (2024 BCSC 55 (CanLII)) on judicial review which looked at the employer’s choice to implement a COVID-19 vaccination policy, and whether, under the Labour Relations Code, it was obligated to enter into discussions with the union first. The case provides employers with insight into the difficulty of overturning a tribunal’s decision.

Background

The workplace was a provincially run rapid transit company. The Court considered a union’s petition for judicial review of a decision by the British Columbia Labour . . . [more]

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Thursday Thinkpiece: Internationally-Trained Lawyers Need More Than Just NCA Exams

For those of us raised in Canada and who studied law here, it can be easy to forget that the way we practise law is verya| Canadian.

While weare all aware that there are substantive differences between Canadian law and the law of other jurisdictions, itas much easier to forget that the practice of law varies just as much from nation to nation. Thereas more than one way to do almost anything, and the Canadian legal system is founded on a very specific set of choices, norms, and traditions.

Upon arriving in Canada from her native Australia, and despite her . . . [more]

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R. v. Bykovets: SCC Recognized Privacy Rights for IP Addresses

In R. v. Spencer[1] the Supreme Court of Canada held that a reasonable expectation of privacy attaches to subscriber information a the name, address, and contact information a associated with an individual Internet Protocol (IP) address. In R. v. Bykovets[2], the majority found that reasonable expectation of privacy extends to the numbers which make up an Internet protocol address even though those numbers might be changed at random by an Internet service provider.

The Facts

The Calgary City Police were investigating fraud in online liquor sales and came across a payment processor who processed the suspect transactions. . . . [more]

The post R. v. Bykovets: SCC Recognized Privacy Rights for IP Addresses appeared first on Slaw.


Sharenthood: Turning Childhood Into Lucrative Content

In the 1920s, Jackie Coogan became one of Hollywoodas first child stars after playing the titular role of aThe Kida alongside Charlie Chaplin. Having starred in several box office successes, Cooganas childhood career had earned him an estimated $4 million (roughly $62 million today). When Coogan tried to access his earnings in his 20as, however, he discovered that his mother had spent nearly his entire fortune. In response to public outcry, California passed the Coogan Act, which aimed to safeguard a portion of child actorsa earnings until they reached adulthood and to protect them from abuse and exploitation. The Coogan . . . [more]

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Summaries Sunday: SOQUIJ

Every week we present the summary of a decision handed down by a QuA(c)bec court provided to us by SOQUIJ and considered to be of interest to our readers throughout Canada. SOQUIJ is attached to the QuA(c)bec Department of Justice and collects, analyzes, enriches, and disseminates legal information in QuA(c)bec.

PANAL (DROIT) : Dans le cadre de l’affaire du meurtre de Guylaine Potvin, le tribunal dA(c)clare recevable le tA(c)moignage d’une biologiste judiciaire A titre de tA(c)moin expert concernant l’utilisation du nouvel outil d’enquAate dA(c)signA(c) comme le A<> et ses rA(c)sultats.

IntitulA(c) :A R. c. Grenon, 2024 QCCS 551
Juridiction . . . [more]

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Blaming Victim of Sexual Harassment Not a Good Defence

Written by Christina Catenacci, BA, LLB, LLM, PhD, Content Editor, First Reference Inc.

In January 2024, a British Columbia labour arbitrator had no hesitation concluding that an employee, who was the grievor accusing a female colleague of sexual harassment in this case, was actually the one who was sexually harassing the female colleague. Simply put, the arbitrator found that the grievor’s evidence was not credible, the female colleague’s account was credible and consistent with the evidence, and the female colleague did not do what the employee accused her of. As a result, the labour arbitrator agreed with the employer that . . . [more]

The post Blaming Victim of Sexual Harassment Not a Good Defence appeared first on Slaw.


Democratizing Justice, Whose Problem Is It?

Democratization means making something, usually a public good, accessible to everyone. The democratization of technology related to the internet or the democratization of health care are examples. As digital technologies become more widely adopted in areas touching peoplesa daily lives such as making appointments, applications for employment, being informed about changes in conditions of services or bargains available in the marketplace the reasons for making enabling technologies accessible to everyone become increasingly obvious. In a nation with a long-standing system of publicly funded health care the reasons are obvious although the realization seems to be falling short. In justice democratization . . . [more]

The post Democratizing Justice, Whose Problem Is It? appeared first on Slaw.


What if Access to Justice Was Never Going to Lead to Poverty Alleviation?

I recently read that when legal aid was first developed in the United States in the 1960s, its primary goal was alleviation of poverty rather than access to counsel. However, over time, some stakeholders, mostly on the conservative side of the political spectrum, expressed concern that this was an inappropriate goal for public policy. This led people working in the legal aid sector to rebrand their initiatives as access to justice.[1] The primary difference between framing initiatives as “access to justice” as opposed to “alleviation of poverty” being that access to justice has a goal of improving the legal system . . . [more]

The post What if Access to Justice Was Never Going to Lead to Poverty Alleviation? appeared first on Slaw.


The Court of Owlsa| and Other Things That Mean Different Things to Different People

Note: In this article, the term aculturea is used broadly and is intended to mean anything and everything related to oneas customs, beliefs, behaviours and habits attributable to the make-up of who they are. It embraces the concept introduced to the writer by legendary professor Michelle LeBaron which appreciates that each individual person subscribes to several different cultures. Any one person may have a cultural component of themselves attributable to their age, surroundings, work, etc.

Afsana Gibson-Chowdhury is the founder of Gibson Chowdhury, Clear Collaborative Mediation and a renowned advocate for equity, diversity and inclusion among legal, dispute resolution and . . . [more]

The post The Court of Owlsa| and Other Things That Mean Different Things to Different People appeared first on Slaw.


Anticipating AI-Generated Law Journal Submissions

Last week, I was asked to provide a peer-review of an article submission to a law journal.

After reviewing it thoroughly, I began to suspect that at least some of the content may have been AI-generated.

What Gives?

First off, there were at least two citations that led to dead ends. By now we all know this is a dead give away.

Second, there was little to no language linking paragraphs together. So there might have been two or three paragraphs written on a distinctive topic, but no language to alert the reader that a new topic was about to . . . [more]

The post Anticipating AI-Generated Law Journal Submissions appeared first on Slaw.


Mondayas Mix

Each Monday we present brief excerpts of recent posts from five of Canadaas awardA-winning legal blogs chosen at random* from more than 80 recent Clawbie winners. In this way we hope to promote their work, with their permission, to as wide an audience as possible.

This week the randomly selected blogs are 1.A PierreRoy & AssociA(c)s 2. IFLS at Osgoode 3. Employment & Human Rights Law in Canada 4. Barry Sookmant 5. Meurrens on Immigration

PierreRoy & AssociA(c)s
ResponsabilitA(c)s daadministrateurs daentreprise : ce que vous devez savoir

Si vous Aates laadministrateur daune entreprise aux prises avec des difficultA(c)s financiA"res, vous . . . [more]

The post Mondayas Mix appeared first on Slaw.


Summaries Sunday: SOQUIJ

Every week we present the summary of a decision handed down by a QuA(c)bec court provided to us by SOQUIJ and considered to be of interest to our readers throughout Canada. SOQUIJ is attached to the QuA(c)bec Department of Justice and collects, analyzes, enriches, and disseminates legal information in QuA(c)bec.

PANAL (DROIT) : Dans une affaire de violence conjugale et postconjugale, la juge de premiA"re instance a commis 2A erreurs de principe en omettant d’A(c)valuer correctement le risque que l’imposition d’une peine avec sursis A l’accusA(c) poserait pour la collectivitA(c); une peine d’emprisonnement de 6A mois est substituA(c)e aux 10A . . . [more]

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Environmental Regulation Is Not “Constructive Expropriation”

On April 4, 2024, the Alberta Court of Appeal released its decision in Altius Royalty Corporation v Alberta, 2024 ABCA 105 (CanLII).

The appellants own a royalty interest in a coal mine. In 2014 they acquired royalty interests in the Genesee coal mine. This coal fuels the Genesee power plant in Alberta.
By 2012 federal performance standards, the end of life of the three coal-fired plants was determined to be 2039, 2044 and 2055 (para 3).

They claim their interest was constructively expropriated (paras 2 and 5) when the government of Canada amended the regulations to require the . . . [more]

The post Environmental Regulation Is Not “Constructive Expropriation” appeared first on Slaw.


Friday Jobs Roundup

Each Friday, we share the latest job listings from Slaw Jobs, which features employment opportunities from across the country. Find out more about these positions by following the links below, orA learn how you can use Slaw JobsA to gain valuable exposure for your job ads, while supporting the great Canadian legal commentary at Slaw.ca.

Current postings on Slaw Jobs:

. . . [more]

The post Friday Jobs Roundup appeared first on Slaw.


When Practicing Law Is Slow Death

It started as soon as I began my law career as an articling student. A lawyer gave me a task on Friday due Monday, meaning I would lose my weekend. I felt a little bit of pride a who, little old me, tasked with something so important? But I soon learned what is urgent is rarely important, and important rarely urgent. Having “uncovered every rock” and discovered nothing further, I watched my research memo fall into the abyss of make-work legal projects, more for show and profit, productivity measured more in money than in legal progress. I think I gained . . . [more]

The post When Practicing Law Is Slow Death appeared first on Slaw.


The Perils of Remaining Silent

Written by Daniel Standing, LL.B., Content Editor, First Reference Inc.

The interim decision of Caroline Sand, Member of the Human Rights Tribunal of Ontario in 2024 HRTO 233 (CanLII) shows what can happen when a party is invited to participate but decides not to. As it turns out, the technique of putting one’s head in the sand works for ostriches but not for employers who seek to avoid liability for human rights complaints.

Background

The matter arose out of a sex-based human rights complaint by an employee against her former employer, a social club. The employer had numerous opportunities to . . . [more]

The post The Perils of Remaining Silent appeared first on Slaw.


Thursday Thinkpiece: Suing for Silence : Sexual Violence and Defamation Law

Periodically on Thursdays, we present a significant excerpt, usually from a recently published book or journal article. In every case the proper permissions have been obtained. If you are a publisher who would like to participate in this feature, please let us know via the siteas contact form.

Suing for Silence : Sexual Violence and Defamation Law

Author: Mandi Gray
Publication Date: March 1, 2024
ISBN: 9780774869171
Page count: 180 pages; 6 x 9

Excerpt: Introduction

In summer 2017, I received a Facebook message from Lynn, a Canadian tattoo artist in her late twenties. Women from all . . . [more]

The post Thursday Thinkpiece: Suing for Silence : Sexual Violence and Defamation Law appeared first on Slaw.


Wednesday: Whatas Hot on CanLII? a March 2024

At the beginning of each month, we tell you which three English-language cases and French-language cases have been the most viewed* on CanLII in the previous month and we give you a small sense of what the cases are about.

For this past month, the three most-consulted English-language decisions were:

  • R. v. Kruk, 2024 SCC 7 (A(c)galement disponible en franASSais ici)

    • [81] Assessments of credibility and reliability can be the most important judicial determinations in a criminal trial. They are certainly among the most difficult. This is especially so in sexual assault cases, which often involve acts that . . . [more]

    The post Wednesday: Whatas Hot on CanLII? a March 2024 appeared first on Slaw.


    Newly-Launched Jurisprudence Database of the Inter-American Court of Human Rights

    At the beginning of this year, in January 2024, the Inter-American Court of Human Rights (IACtHR) based in San JosA(c), Costa Rica launched its first ever AI-powered case law database.This free legal source aims to provide an easy to use access to the regional courtas jurisprudence and important information regarding its procedure and composition. Recently, I had the tremendous opportunity to interview the Courtas Head Librarian, Ana Rita RamArez and get more information regarding the process of producing this database and its future growth.

    [Screenshot of the Database main page. Click image to see the larger picture.]

    What was the . . . [more]

    The post Newly-Launched Jurisprudence Database of the Inter-American Court of Human Rights appeared first on Slaw.


    Study Permits & Uncertainty

    In July 2023, IRCC Minister Marc Miller was put in charge of our immigration system and he has been focused on fixing problems while addressing the growing anti-immigration sentiment within Canada. On one side, he inherited many years of Liberal promises to welcome and support international students and to meet lofty goals. To that end, he remains committed to the goal of 485k new permanent residents in 2024, 500k in 2025 and 500k in 2026. On the other side, Minister Miller has overseen a series of decisions to cut programs, increase restrictions and add roadblocks to previous pathways. Applicants most . . . [more]

    The post Study Permits & Uncertainty appeared first on Slaw.


    Keyword Selected: Clapper

    "Defend Trade Secrets Act" - How Will This New Law Affect Your Business?

    With a near unanimous (410-2) vote on April 27, 2016, the House passed the aDefend Trade Secrets Acta (aDTSAa). Having already been passed by the Senate (87-0), the legislation advances to President Obama, who has signaled that he will sign the bill into law. The law is drafted to go into effect on the day of its enactment, and will apply to misappropriation occurring on or after that date.

    Read more...(wcsr.com).




    Trade Secrets of the Assault Rifles

    From the Daytona Beach News-Journal of Florida, a Florida contribution to the evolving role of trade secrets, concerning old-fashioned stealing, a vendetta against a former employee, and, of course, assault weapons.


    The paper reports that two men -- Mark Hazelip and Jake Economou a were arrested and charged with stealing trade secrets from Tactical Machining of Deland, Florida, a company that produces upper and lower receivers for AR-15 rifles.

    The two alleged stole computer programs, blueprints, drawings and a list of customers. Hazelip quit the company in January and went to work for a competitor, Daytona CNC . Economou was later fired from Tactical Machining. According to investigators, Hazelip talked of putting Tactical Machining out of business/

    Instead, after a tip from another former employee working at Daytona CNC, the police aexecuted a search warrant at Daytona CNC and found the Tactical Machining blueprints and drawings for the gun parts and a spiral bound notebook with the name of clients in Hazelip's desk.a

    Uncle Samas Economic Espionage a Not Looking for Your Trade Secrets


    This follows on the heels of reports that the NSA has hacked into the systems of various foreign companies including a Brazilian state oil company.


    The report quotes James Clapper, Director of National Intelligence:
    aWhat we do not do, as we have said many times, is use our foreign intelligence capabilities to steal the trade secrets of foreign companies on behalf of, or give intelligence we collect, to US companies to enhance their international competitiveness or increase their bottom line.a
    This issue, obviously, is far from settled.

    John Deere in Trade Secrets Dispute with Former Factory General Manager

    From the Business Section of the Waterloo Cedar Falls (IA) Courier, a story concerning a trade secrets case by agricultural equipment maker Deere & Co. against the long-time general manager of its largest combine factory.


    Deere is seeking injunctive relief against Eric Hansotia, who was hired by Deere competitor AGCO into a position that "significantly overlaps" his old job.

    The case is pending in federal court in Illinois.

    By the sound of the allegations, the case concerns both inevitable disclosure type claims, but also has claims that the defendant aIn his last four days of work . . . connected portable electronic storage devices, some of which computer logs indicate contained Deere trade secrets, to his Deere computer, and he may have kept those devices after his employment ended.a

    Chinese Trade Secrets Theft Hits US Universities



    Now, in a new twist, Reuters reports that three Chinese researchers at NYU Langone Medical Center have been charged in federal court with bribery in connection with theft of trade secrets relating to MRI technology.

    The researchers apparently received at least $400,000 in bribes to provide information to a Chinese Medical Imaging company, United Imaging Healthcare, and a Chinese government-backed research institute, Shenzen Institute of Advanced Technology.

    The three were charged in federal court in the Southern District of New York where the US Attorney doesnat play.


    Man Bites Dog!

    Morning Whistle, an unsourced report that publisher and education company Pearson has been sued for stealing the trade secrets of a Chinese competitor, CentriPoint (China).

    According to the report, Pearson VUE, Pearsonas computer-based testing division, acquired Certiport on May 15, 2012, but decided to suspend the online service of Certiport (China).

    That company now claims that Pearson stole its client list under the pretense of an audit and informed customers of the change without prior consent of the other shareholders of Certiport (China).

    An initial court date is scheduled for May 23, 2013.

    Trade Secrets Finally Gets Toward the Top of the National Agenda

    You know trade secrets has finally hit it big when the subject is covered in USA Today and the report is on the Obama Administrationas a new strategy to combat the theft of American trade secrets.


    The administration has released its 141-page Strategy on Mitigating the Theft of U.S. Trade Secrets. This comes just after the president signed an executive order adesigned to help U.S. computer networks guard against cyberattacks,a as USA Today put it.

    The story contains comments from Victoria Espinel, the U.S. Intellectual Property Enforcement coordinator.

    In the words of USA Today:

    aThe strategy includes diplomatic engagement with nations where incidents of trade secret theft are high, working with industries on the best ways to protect their secrets, and stepped up prosecutions of business espionage.a

    The plan comes out at the same time as reports of Chinese Red Army hacking into U.S. computers.

    Espinel says: "The administration will continue to act vigorously to combat the theft of American trade secrets that could be used by foreign companies or foreign governments to gain an unfair commercial advantage over U.S. companies."

    Sounds like weare finally getting serious about a problem that has been allowed to grow for years.


    Bratz-Mattel Doll Fight Ends Not with a Bang But a Whimper



    Now it looks to be all over.

    A prA(c)cis goes like this: designer leaves Mattel to go to MGA Entertainment where he designs the popular Bratz line of dolls. Mattell sues MGS for copyright infringement and gets a $100 million verdict and the rights to Bratz going forward.


    The Ninth Circuit finds that amount excessive and sends the case back down to the trial court where the jury finds nothing for Mattel, but returns a $170 million verdict against Mattel on a counterclaim for theft of trade secrets, along with $137 million in attorneysa fees.

    Now the Ninth Circuit vacates that verdict, finding it time-barred. The attorneysa fees, however, stick.

    Itas time to find a cautionary tale here, but the case is so weird we may just need to chalk it up as a one-off.


    A Video Overview of the Economic Espionage Act


    From me (click the link), a short description of the recent changes in the EEA.

    Do Computer Fraud & Abuse Act Prosecutions Sometimes Go Too Far?

    Offered here without commentary, an article from Slate concerning the recent suicide of Aaron Swartz who was set to go on trial next month for violations of the Computer Fraud & Abuse Act for unlocking a database of scholarly articles.


    Prosecutors charging decisions a particularly the amount of prison time and penalties to be sought a are generally discretionary, rarely reviewable, and certainly subject to abuse (and not just under the CFAA).

    There should be near unanimous agreement that what happened to Aaron is sad and, if an over-reaching prosecution played a role, something that ought to be rectified.


    More on Economic Espionage Act Amendments

    IP 360, a story concerning the amendments to the Economic Espionage Act.


    The story quotes John Marsh of Hahn Loeser & Parks LLP as saying that the two bills passed by Congress represent "a strong commitment by the federal government to broaden the protections of trade secrets."


    The bill, once itas signed by the President, will increase the maximum penalty for misappropriating trade secrets to benefit a foreign government from $500,000 to $5 million for individuals and also applies the law more broadly to the services industry.

    The big question on tap for 2013: will Congress create a federal civil remedy for trade secrets theft as a cognate to the criminal statute represented by the EEA?




    Amendment to Economic Espionage Act



    In the Aleynikov case that we reported about over the years, the defendant managed to walk because the trade secrets he stole were not aproduceda for use in interstate commerce.

    Under the new law, designed to reverse the earlier decision in Aleynikov, trade secrets used in or intended for use in interstate commerce are now included. The produced for requirement is gone.

    Now say goodnight to the 112th Congress.


    Chinaas Economic Espionage

    Foreign Affairs, an excellent article by James A. Lewis on aChinaas Economic Espionage.a


    According to Lewis, China is the worldas most aggressive practitioner of economic espionage, targeting key industries such as telecom, aerospace, energy and defense. Among other victims are Google and Nortel while some companies that are victims aoften conceal their losses.a


    Lewis also argues that the national strategy of economic espionage actually serves to handicap Chinaas own development.

    His final assessment:

    Economic espionage lies at the heart of the larger issue of Chinaas integration into the international system -- the norms, practices, and obligations that states observe in their dealings with one another and with the citizens of other states. A failure to hold China accountable for espionage undermines efforts to bring Beijing into the fold. In the end, any peaceful rise requires that China play by the rules, even if it seeks to change them, rather than pretend they do not apply.


    More Kolon Troubles



    The US Attorney in Richmond has indicted the company and five officials, charging them with trade secrets theft. According to the Business Week report here the indictment includes a forfeiture claim seeking at least $225 million in alleged criminal proceeds from the company.

    Civil trade secrets cases are bad enough. Criminal ones should be avoided at all costs.

    Huawei a Another Side of the Story




    Farhad Manjoo, in Slate, says that whether a given piece of technology is dangerous is not determined by the nationality of the company that makes it.

    As Manjoo puts it:

    In reality, most devices are from everywhere. Your Android smartphone was designed in Korea, assembled in China, runs an operating system created in California, and works on a cellular carrier owned by a firm based in Germany. If youare worried about a certain companyas connections to China, you should be worried about pretty much every company in the tech industryathey all have large operations there, and, as a result of those operations, theyave all cut certain less-than-transparent deals with Chinese authorities.

    http://www.slate.com/articles/technology/technology/2012/10/huawei_zte_are_chinese_telecom_firms_really_a_danger_to_national_security.html

    Huawei a Any Old Tech Company or Trade Secrets Threat?


    On the heels of a recent report on 60 Minutes, Reuters (from LiveMint) reports on the controversy concerning Chinaas Huawei, the worldas second-largest maker of telecommunications gear.

    The report quoted Rep. Mike Rogers, chair of the House Intelligence Committee: aIf I were an American company today ... and you are looking at Huawei, I would find another vendor if you care about your intellectual property; if you care about your consumersa privacy and you care about the national security of the United States of America.a

    The committee is expected to release a report on the company later today (10/8/12).

    Weall get a summary up as soon as itas released.

    According to Reuters, Huawei has rejected charges that its expansion in the US poses a security risk and argues that it operates independently of the Chinese authorities.

    A Long, Long Injunction in DuPont Trade Secrets Case


    We reported earlier on the $920 million damage award in favor of DuPont against South Koreaas Kolon for stealing trade secrets relating to the fibers used to make Kevlar body armor.

    Now we learn from Bloomberg that the trial judge has not only upheld the verdict, but also imposed a 20-year injunction against Kolon to keep the company from producing any such fibers.

    Injunctions, including permanent injunctions, are generally available under trade secrets statutes. Twenty years, though, is probably toward the outside range of what courts have ordered.


    New Indictment in Bridgestone Tire Trade Secrets Case


    Plain-Dealer is becoming our go-to source on current trade secrets stories.

    Hereas another from that publication concerning a case out of Akron.

    Xiaorong Wang, a former research scientist with Bridgestone Americas, has been indicted again on 15 counts of trade secrets theft and lying to the FBI.

    The indictment claims that Wang burned six CDas of proprietary information on his way out the door after being told he would be let go. The secrets allegedly concern formulas and compound properties for race tires.

    An earlier plea deal was rejected by the judge.

    The FBI says that Wang provided the trade secrets to Shanghai Frontier Elastomer Co.

    Eaton-Frisby Trade Secrets Summary


    Cleveland Plain Dealer concerning one of the strangest trade secrets cases ever, with North Carolina ties to boot.

    Set Back in Governmentas DuPont Trade Secrets Case


    Weave reported previously on the economic espionage case concerning Pangang Group Steel Vanadium & Titanium Co Ltdas indictment for stealing DuPontas secret process for manufacturing titanium dioxide, a compound that makes products white.

    Now comes this report from Reuters (in the Chicago Tribune) concerning a major set back in the governmentas case.

    Federal judge Jeffrey White in the Northern District of California dismissed the indictment against the Chinese company on the grounds that service on its putative US agent was insufficient.

    According to the report, White ruled that the government had not shown sufficient evidence that Pangang exercised enough control over the entity served for it to be considered an agent.

    So we can now add service of process issues to the list of difficulties in trying to rein in Chinese economic espionage.

    The government has until August to figure out what it will do next.

    Weall report on what happens.

    Trade Secrets of the OLED TVas


    Daytona Beach News-Journal is reporting what sounds like a potentially big trade secrets case.

    According to the News-Journal, Samsung is accusing eleven people, including six of its own employees of stealing its trade secrets with respect to OLED (organic light-emitting diode) television technology.

    The alleged bad-guy in the scenario: fellow Korean TV maker LG Display. Those two are currently fighting it out in OLED, believed to be the next generation of big-screen TV technology.

    Samsung claims that LG stole its display technology and poached Samsung employees.

    Snyder's and Almeling's "Keeping Secrets: A Practical Introduction to Trade Secret Law and Strategy"

    Womble Trade Secrets - after 16 great years at Womble Carlyle, I am departing for a litigation boutique that will be called Graebe Hanna & Sullivan, PLLC.  Before advising you about a great new trade secret resource for all, I want to thank my friend and partner Press Millen for prompting me to co-author this blog with him back in 2006.  There have been literally hundreds of thousands of visitors to this blog and I've met scores of attorneys and business people who reported perusing and using the blog for information.  Thank you Press.

    Our friends at O'Melveny & Myers, Darin Snyder and David Almeling, have written a practical and useful primer on trade secret law and the legal and practical treatment of trade secrets.  The book, published by Oxford University Press, is divided into three parts:  (a) the basics and some definitions useful in understanding trade secret law; (b) guidelines for creating a legal strategy for protecting trade secrets; and (c) practical guidance regarding business and legal responses to incidents of trade secret misappropriation or accusations of the same.

    The anecdotes and breezy case studies in the book are rewarding - our favorite quote was from the founder of a company that designed underground mining vehicles and whose company was the victim of a key, respected employee's theft: "I was like the husband whose wife was getting it on the side."  Messrs. Snyder and Almeling have shared with us their homework and case studies - just great stuff.  We recommend this book to business litigators and non-specialists but it is great reading for those of us specializing in this area of law, as well.  You can find the link to the book here:  http://www.amazon.com/Keeping-Secrets-Practical-Introduction-Strategy/dp/0199797439/ref=sr_1_3?ie=UTF8&qid=1340990328&sr=8-3&keywords=almeling. http://www.amazon.com/Keeping-Secrets-Practical-Introduction-Strategy/dp/0199797439/ref=sr_1_3?ie=UTF8&qid=1340990328&sr=8-3&keywords=almeling

    Chicago Trade Secrets Case Blows Up on Plaintiff



    Take the case of Portola Packaging against its rival Logoplaste (reported here behind Litigation Dailyas paywall) but also nicely summarized in the Trial Communityas Litigation News Blog.

    Logoplaste, in 2007, discussed the prospect of buying Portolaas Canadian subsidiary. They exchanged some putatively confidential information but never got a signed NDA. Negotiations broke off in February 2008. Shortly thereafter, Logoplaste landed a key Portola client.

    Fast forward more than a year. Portola finally demanded return of the confidential information and filed suit claiming Logoplaste used the documents to steal the customer.

    An Illinois state court judge ultimately ruled that Portola failed to protect its information. So far, pretty normal.

    Hereas where it gets weird. The judge also ruled that because Portola designated its general counsel as a key witness, his emails were not protected by the attorney-client privilege.

    Those emails apparently showed that he had urged Portola to sue just to hurt Logoplasteas business interests. And, he also apparently hired Logoplasteas regular counsel in an unrelated matter in order to create a conflict.

    According to the report, although Portola claimed that its confidential documents were used to lure an employee away, the emails indicated the general counsel knew the employee approached Logoplaste first.

    The result: a scathing opinion and an order that Portola will pay all of Logoplasteas attorneysa fees for the three years of litigation.

    Ouch.

    Appeals, no doubt, to follow.

    Another Big Verdict a Utah Style



    For sheer dollars, though, this one out of state court in Utah is right up with those. The report is from the Salt Lake Tribune.

    The scenario is a familiar one: Company A seeks bids to build a power plant and Company B, under a non-disclosure agreement, submits its proposal. Company A decides to pull the bidding and awards the contract to itself.

    Many years and one trade secrets lawsuit later, Company A finds itself on the wrong side of $134 million verdict based on the contention that it used Company Bas trade secrets to build the power plant.

    Company A is PacifiCorp (doing business in Utah as Rocky Mountain Power) and Company B is USA Power.

    Now USA Power wants to double the verdict to $267 million.

    Thatas a big one by trade secrets standards and weall let you know how it turns out.

    The Trade Secrets Dilemma a Sue and Disclose


    News & Insight on an age-old problem in trade secrets, the fact that bringing suit often requires disclosing the trade secrets.

    The article concerns a case in New York state court, MSCI v. Jacob and Axoma. MCSI, a software maker, claimed that its former employee, Jacob, misappropriated trade secrets in its software on behalf of his new employer, Axoma.

    The judge overseeing the case made a critical ruling in a discovery dispute requiring the plaintiff to identify awith reasonable particularitya the trade secrets it contends were misappropriated. Only this, the judge ruled would allow the court to distinguish abetween the general knowledge in their field and trade secrets.a

    An earlier ruling, now changed, had allowed the plaintiff to identify only those portions of its computer source code that were not trade secrets. That, defendants contended, was unfair since it essentially required them to deduce which trade secrets were at issue, possibly from millions of lines of computer source code.

    The judge came around to defendantsa point of view:

    Plaintiffs who have brought this action, bear the burden of proving their allegations. Merely providing defendants with plaintiffs' "reference library" to establish what portions of their source code are in the public domain shifts the burden to defendants to clarify plaintiffs' claim.

    One of the defense lawyers claimed that to do otherwise would be like allowing a person to claim that he had been robbed by a suspect and then walk around the suspectas apartment to identify what was taken.

    Before bringing any trade secrets case, it's always necessary to consider what disclosure may be required and its implications for the business and the trade secrets themselves.

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