26 | Coatings World www.coatingsworld.com December 2015
Protecting the P&C Industry’s Intellectual Assets
by Steve McDaniel & Jon Hurt
TechnologyLitigators.com
What do you do if someone mis- appropriates confidential in- formation that is not deemed
(ultimately by a court, when push comes
to shove in such matters) a trade secret?
Well, depending upon what state in the
U.S. has jurisdiction in your case, you
may have some options.
Almost all states in the U.S. have ad-
opted some version of the Uniform Trade
Secrets Act (“UTSA”), and the UTSA
preempts you from bringing a common
law or other civil lawsuit regarding trade
secret misappropriation, with an excep-
tion for breach of contract claims. But
state courts are splitting as to whether
other confidential information that does
not rise to the level of a trade secret can
be the subject of a lawsuit based on their
version of the UTSA. Depending upon
the circumstance of the information mis-
appropriation, there have been a vari-
ety of conflicting rulings from one state
to another (e.g., Washington, Nevada,
Ohio, Hawaii, and Utah having pro-UT-
SA preemption rulings, while New Jersey
and Pennsylvania noted for anti-USTA
preemption rulings), and even within the
same state (I’m looking at you, California),
as to whether or not the USTA preempts
you from filing a lawsuit for mishandling
of non-trade secret confidential informa-
tion. A recent ruling in Arizona’s Supreme
Court flipped the trend in that state to-
ward an anti-UTSA stance, so this issue is
in flux in each state. Hint: you will need
to consult your local attorney to get the
inside baseball for your state’s recent court
decisions on this issue.
Your first line of defense to avoid being caught in the trap of having non-trade
Who Let the State Legislatures Out?
