Once or twice a year, I update my chart of reported noncompete and trade secret decisions. Here is the latest (full size).
Around the time I started my firm, I became curious to see how many 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:
- the red lines show all noncompete decisions reported on Westlaw for the particular year;
- the purple lines show all trade secrets decisions reported on Westlaw for the particular year; and
- the orange lines show all decisions involving the Defend Trade Secrets Act reported on Westlaw for the particular year.
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, even when they do report out their decisions, 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, this is truly raw data; I have not gone case-by-case, as the point of this exercise is to get a rough sense of the relative volume of decisions, not exact numbers.
Trends…
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 2o or so years, reflecting a rough leveling off of those decisions, trade secret litigation has taken a bit of a dip recently and DTSA cases continue to slowly increase. (The dip is likely only partially explained by the way Westlaw populates its database; time will tell.)
Not surprisingly, there is not much that can really be told about the trend in DTSA decisions (other than the obvious), given that it is so new, and, as a result, the data is very limited and likely underreported.
If you’d like to take a closer look at the numbers, you can click the image above or here.
Firm resources:
We know how hard it is to keep up with the ever-changing laws and requirements around the country for how you can protect company’s trade secrets, customer goodwill, and the integrity of your workforce. To help, we have created the following resources (available for free):
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| 50-State Noncompete Law Chart — summarizing the noncompete laws in each state and DC — the first of its kind and regularly updated (downloadable) 50-State and Federal Trade Secret Law Chart — comparing DTSA and trade secrets laws nationally to the Uniform Trade Secrets Act (downloadable) |
 | Chart of Noncompete “Low-Wage” Thresholds and Criteria — providing each state’s minimum compensation thresholds and other criteria for using noncompetes and other restrictive covenants (downloadable) |
 | Notice requirements summary chart — providing summary of each states’ (plus D.C.’s) notice requirements related to noncompetes and other restrictive covenants (downloadable) |
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Changing Trade Secrets | Noncompete Laws — dedicated blog page providing a current, detailed summary of the changing landscape of trade secret and noncompete laws around the country, state by state and at the federal level
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 | Trade secret protection plan strategy and checklist — providing a starting point for companies to update their processes for protecting trade secrets, other confidential information, and customer relationships. |
| Videos | Ten Minute Trade Secret Training SeriesTM and “Basics” Videos |
 | The Exit Plan: Being a Good Leaver — designed for employees before they decide to leave a job, and is perhaps the most critical, as it is the first chance for employees to understand how to prevent liability before the risk arises. For companies, have your job candidates watch it.
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| The Entrance Plan: Preparing for the Cease and Desist Letter at Your New Job — designed for employees as soon as they receive — or expect to receive — a cease and desist letter from their prior employer, so they know how to avoid making critical, difficult-to-fix mistakes. |
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| Avoiding Mistakes When Starting A New Job — designed for companies and employees to know the steps an employee should take when starting a job to ensure they comply with their post-employment obligations. |
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| Protecting Trade Secrets While Working Remotely — designed for companies and employees to learn how to identify and protect against the common risks to trade secrets in a remote (or hybrid remote) work environment. |
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| Fair Competition Law Basics – What is a Trade Secret? — explaining what a trade secret is through easy-to-understand examples. |
We hope you find all of these resources useful. More will be coming.
And please note, we are grateful for all of the input we’ve received over the years. We welcome any suggestions for improvements that you may be willing to share.
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*A huge thank you to Erika Hahn for all of her extraordinary help in tracking and monitoring all of the recent noncompete and trade secret legislative and caselaw developments.