Image: 1shots/

To be sure, trade secret theft cases, particularly on the plaintiff's end of things, are not easy.

In short, here's the reason why:

An employer, or former employer, whose proprietary information is being, or was, stolen is often confronted with a huge gap between what the employer "knows" happened (i.e., that their property was wrongly taken) and what they can actually prove happened in a court of law.

Then, every once in a while, you come across one of these veritable gems, and it's certainly worth sharing.

A few years ago, the Price Chopper chain store filed suit in upstate New York against one of its chief local competitors, Giant Market, accusing them of stealing proprietary pricing information for their products. More specifically, in its initial suit papers, Price Chopper alleged that competitor Giant Market had someone consistently and surreptitiously obtain copies of Price Choppers' fliers that would announce their special sale items, and then undercut those specific sales items in their own advertisements, thereby depriving Price Choppers' sales of any measurable impact, and giving Giant Market an unfair competitive advantage.

A skeptic would, predictably, react by saying, "Go ahead; try and prove it."

But consider the unusual level of (tantalizing) detail (and, it appears, the nature of the proof) that back up Price Chopper's claims:

Price Chopper apparently has videotape of someone sneaking into the warehouse where their pre-publication fliers were stored, and then handing them to a Giant Market employee -.and it appears that they have videotape of this occurring on several occasions.

There are three (3) important takeaways from this story:

(1) Trade secret protection is not limited to proprietary technology and formulae; if your product marketing and pricing took time, effort, research and expense to develop, and is not readily available to the general public, it can be applied to that as well.

(2) If this case were ever to go to trial, it is hard to imagine that a jury wouldn't be overwhelmingly impressed by Price Chopper's videotape catching Giant Market engaged in clandestine activity, which is commonly referred to in legalese as "jury appeal"; and,

(3) It is important to consider how difficult - it likely is to obtain "smoking gun," or even truly "solid" proof that the other side actually stole and benefitted from your proprietary information. That's why protecting your core business and intellectual property begins well before a lawsuit - it begins with having internal procedures, monitors and mechanisms (yes, that must include, in this day and age, email monitoring) in place to enable ongoing policing of your property (helping prevent a theft in the first instance), and a quick and thorough investigation that produces concrete evidence after you suspect a theft has taken place.

In other words, if you are starting an investigation from scratch, and without a pre-existing structure to do it, you're almost certainly too late.

Jonathan Cooper
Connect with me
Non-Compete, Trade Secret and School Negligence Lawyer
Post A Comment