In preparation for the start of my class (I teach Trade Secrets and Restrictive Covenants at my old law school, Boston University School of Law), I re-ran my chart of reported noncomepte and trade secrets decisions.
As regular readers of this blog know, several years ago, I became curious to see how many reported trade secret and noncompete decisions were issued each year in all of the federal and state courts around the country. So, I did a “back of the envelope” calculation. I have performed similar calculations every year since.
The graph shows three things: (1) the blue bars show all reported noncompete decisions; (2) the red bars show all reported trade secrets decisions; and (3) the yellow bars show all decisions involving the Defend Trade Secrets Act.
I should note that each time I’ve run the queries, the results for each year have varied slightly (inching up over time), which I attribute to Westlaw’s database management, which seems to add cases over time. Consistent with that, the older the data, the less it moves. Indeed, some of the oldest data didn’t change at all.
The other thing worth noting is that every time I’ve run this inquiry during the first half of the year, the data for the most recent few years has been significantly underreported. Nevertheless, even when I run it later in the year, the data for those last few years remains significantly underreported.
Despite the database changes, the trends have remained largely the same. Perhaps most telling is that while noncompete litigation has ticked up and down only slightly over the last decade, reflecting a leveling off in recent years, trade secrets litigation has increased almost every year, with a significant upward trend until recently (which could reflect a reduction in filings or just the database lag). In addition, with the exception of 2015 forward (which will likely turn out to be an artifact of the Westlaw database issue), only 2011 shows a slight dip for trade secret litigation.
Not surprisingly, the clear (and very early) trend in DTSA filings is up, even though the data is very likely underreported. This is, of course, no surprise given the newness of the claim.
If you’d like to take a closer look at the numbers, you can click the image above or here.