About twice a year, I update my chart of reported noncompete and trade secrets decisions. Here is the latest (full size).
Over a decade 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 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 reported on Westlaw; they do not reflect all of the decisions in these types of cases. For example, courts often do not report out (all of) their decisions, and Westlaw may not pick them up. Nor do they directly tell us the number of cases filed, though one could assume that they correlate at least to some extent.
Things to note…
Each time I run the queries, the specific results in a given each year may vary slightly (generally inching up over time). I attribute this to Westlaw’s database management, which seems to add (and occasionally remove) cases over time. Consistent with that, the older the data, the less it tends to move, and indeed, most of the oldest data typically doesn’t change at all.
In contrast, the data for the most recent few years tends to be significantly underreported. Even when I run the numbers later in the year, the data for the most recent few years remains significantly underreported (which becomes clear a few years later when I re-run the data). Also, the most current year (when I run it later in the year) is annualized for a rough estimate.
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 15-plus years, reflecting a rough leveling off of those decisions, trade secret litigation has continued to trend up.
Not surprisingly, the clear (and very early) trend in DTSA decisions is up year over year, 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.