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Luke Bickel is an associate in the Labor & Employment Practice Group in the firm's San Diego (Del Mar) office.

In California, although the prevailing rule is that each party in litigation must cover their own fees and costs, a litigant can be awarded reasonable attorney’s fees and costs if expressly permitted in a contract. Proprietary information agreements often include an award of attorney’s fees and costs if a company prevails in seeking injunctive relief for misappropriation of its trade secrets by a current or former employee. However, there is an ambiguity in whether a plaintiff actually prevails on a claim for trade secret misappropriation, entitling it to injunctive relief and therefore attorney’s fees, even without a showing of damages. In Applied Medical Distribution Corp. v. Jarrells, 100 Cal. App. 5th 556 (2024), the California Court of Appeals ended this uncertainty and affirmed that monetary damages are not an element of a claim for trade secret misappropriation, and a plaintiff may be entitled to attorney’s fees even where the jury found the plaintiff was not damaged by the misappropriation.Continue Reading Attorney’s Fees May Be Recoverable in Trade Secret Cases, Even Without Damages

Employers faced with an apparent trade secret misappropriation by former employees must decide what jurisdiction to bring suit in.  For an employer headquartered outside of California who employs California residents  working primarily in California, choice of law and forum selection clauses favoring states other than California may be ineffective against them unless they had counsel who negotiated the provisions on their behalves.  (Cal. Lab. Code § 925.)  A recent California Court of Appeal decision highlighted this point, and found that where a California employee is sued by the employer for trade secret misappropriation in a separate state based on an out-of-state forum selection clause, the employee may separately sue in California to void the provision, despite the ongoing litigation in a sister state (See LGCY Power, LLC v. The Superior Court,  75 Cal. App. 5th 844 (2022).)
Continue Reading California Labor Code Section 925: A Word of Caution for Out-of-State Employers of California Employees

A recent California Court of Appeals decision found nominal damages could be awarded for an employee’s breach of a non-disclosure agreement (“NDA”), even if no actual harm was done to the employer.  An award of nominal damages for breach of an NDA may be important for companies seeking to protect confidential information and trade secrets for two reasons: (1) this may give rise to an award of litigation costs, and (2) may also support a permanent injunction ruling preventing the former employee from any further possession or use of the protected information.
Continue Reading NDA: An Effective Way to Protect Confidential Information