About twice a year, I update my chart of reported noncompete and trade secrets decisions. Here is the latest.
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 noncompete decisions reported on Westlaw; (2) the red bars show all reported trade secrets decisions reported on Westlaw; and (3) the yellow bars show all decisions involving the Defend Trade Secrets Act reported on Westlaw. To be clear, these are decisions that are reported on Westlaw. They do not reflect all decisions in these types of cases (many of which are not picked up by Westlaw), nor do they directly tell us the number of cases filed, though one could assume that they correlate at least to some extent.
I should note that each time I’ve run the queries, the results for each year have varied slightly (inching up over time). I attribute this to Westlaw’s database management, which seems to add cases over time. Consistent with that, the older the data, the less it moves, and some of the oldest data usually doesn’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 (like this time), 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 (using decisions as a proxy for cases) 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 so limited and very likely underreported. This is, of course, no surprise given the newness of the cause of action.
If you’d like to take a closer look at the numbers, you can click the image above or here.