This is the third edition of the first casebook in the United States devoted exclusively to trade secret law. As with previous editions, it is challenging yet user-friendly to students in order to facilitate their reading and understanding of the material. It is designed to be used by law students (and business students) with no prior background in intellectual property law. Most of the cases added to this third edition are recent cases that apply the Defend Trade Secrets Act (DTSA).

Due to the breadth of the subject matter, professors who teach trade secret law need not be intellectual property experts, but can specialize in a variety of fields, including employment law, torts, and unfair competition. The casebook also provides the context to re-teach and reinforce many of the basic concepts of law that students learned as 1L’s, including tort law, contract law, property law, civil procedure, constitutional law, and criminal law.

The authors have made conscious and thoughtful decisions about the way in which the information throughout the casebook is presented and organized. The general organization of the casebook follows a logical analytical approach to understanding trade secret law with the chapters progressing from proving the essential elements of a trade secret claim to defensive tactics and remedies, managing trade secrets, and criminal actions. It also addresses employment, management, and international issues.

Imprint: West Academic Publishing
Series: American Casebook Series
Publication Date: 12/21/2020

Elizabeth A. Rowe, University of Florida College of Law

Sharon K. Sandeen, Mitchell Hamline School of Law


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Here are brief explanations of the changes made to each chapter (some chapters are unchanged):

Chapter 1: We deleted an introductory case and the two common law cases and replaced them with a decision on a request for preliminary injunction that was rendered in the recent case of Waymo v. Uber. Not only do we think this case will resonate with students given the recognizable parties and the cool technology (self-driving cars), it has everything that a trade secret professor could want for an introductory case. First, it provides a detailed explanation of the elements of a trade secret claim, discussing both the DTSA and California’s version of the UTSA. Next, it details the standards for the grant of a preliminary injunction. It also explains: how Fifth Amendment issues and stays pending arbitration can arise in trade secret cases; the difference between trade secrets and other confidential business information; and the role of non-disclosure agreements in trade secret litigation.

Chapter 3: [Argus Leader added]

Chapter 4: The economic value requirement of the UTSA/DTSA is the most undertheorized requirement of the three prongs of trade secrecy, so we are always on the look-out for cases that explain the requirement in detail. We kept the classic Electro Craft case and added a new case which details the economic value analysis and required proof in a case involving a combination trade secret. We also added a DTSA case concerning how the economic value requirement must be pleaded in federal courts. This provides an opportunity to re-teach Iqbal and Twombly. One case was deleted to keep the length of the chapter reasonable.

Chapter 6: This chapter concerning the acquisition by improper means prong of trade secret misappropriation was not changed significantly, principally because these types of claims are not brought much and, thus, the jurisprudence is relatively stagnant. The Christopher case remains the most interesting reported case on the reach of the definition of “improper means” but it has been cited far more by legal commentators than courts (only 55 times since 1970). A reference to Professor Sandeen’s article on the history of the wrongful acquisition tort has been added as it is one of the few articles to explain how that prong of trade secret misappropriation developed. As she points out, a critical issue in wrongful acquisition cases is whether there can be a successful claim for monetary damages without proof of subsequent disclosure or use.

Chapter 7: The cases in this chapter have not been changed, but more explanatory material has been added, particularly with respect to the definitions of “disclosure” and “use” under the UTSA and DTSA. As noted in Chapter 6, the wrongful disclosure or use of trade secrets is the traditional definition of misappropriation, with the “wrongful acquisition” tort being added later. However, neither the UTSA nor the DTSA define those terms and most courts rely upon the definitions that are set forth in the Restatement (Third) of Unfair Competition. As the added materials now explain, the theory of disclosure or use that a plaintiff alleges (and that is accepted by the court) will determine the harm suffered and ultimately the amount (if any) of allowable damages.

Chapter 9: A significant change was made to this chapter to add a new section and a new case on the topic of Motions to Dismiss in trade secret litigation. Due to the enactment of the DTSA and the pleading standards of federal courts, it has become fairly common practice for defendants to challenge the sufficiency of pleadings in trade secret cases, most often challenging the sufficiency of the allegations related to the existence of trade secrets. Even if the motion is not granted, or it is granted with leave to amend, bringing a Motion to Dismiss under FRCP Rule 12(b)(6) for failure to state a claim upon which relief can be granted is an important strategy for defendants because it: (1) stalls commencement of discovery; (2) requires the plaintiff to provide further explanations concerning that nature and scope of their alleged trade secrets; and (3) highlights a critical issue for the court: namely, whether trade secrets actually exist.

Learn more about this series.