Intellectual Property / Trade Secret Litigation

For most businesses, the most valuable assets are not on the balance sheet. Customer lists, pricing models, formulas, processes, software, supplier terms and strategic plans give a company its edge, and they are only protected if the company takes reasonable steps to keep them confidential and acts quickly when they are misused. The most common scenario is a departing employee or business partner who takes information to a competitor or a new venture, but disputes also arise with vendors, licensees, joint venture partners and prospective acquirers who received information under a non-disclosure agreement.

Mark A. Fantin represents businesses on both sides of these disputes. He pursues claims on behalf of companies whose information has been taken, and he defends companies and individuals accused of misappropriation, including employers who hired someone from a competitor. These cases move fast, turn on technical facts and frequently begin with an emergent application for a restraining order.

Trade secret and unfair competition matters are typically brought under the New Jersey Trade Secrets Act, the federal Defend Trade Secrets Act, and related common-law and contract theories. Depending on the facts, a case may include:

• Misappropriation of trade secrets and confidential information
• Breach of non-disclosure, confidentiality, non-solicitation and non-compete agreements
• Breach of the duty of loyalty by employees, officers or members
• Tortious interference with contracts and customer relationships
• Unfair competition, including misuse of a company’s name, goodwill or reputation
• Computer-related claims involving unauthorized access to systems or data
• Temporary restraints, preliminary injunctions and orders for the return or forensic imaging of devices and accounts
• Damages, including lost profits, unjust enrichment and, in appropriate cases, exemplary damages and attorney’s fees

Trade secret cases are won or lost early. The business must be able to show what the information is, why it qualifies for protection, what reasonable measures were taken to keep it secret, and how it was taken or used. That often requires forensic review of email, cloud accounts and devices, coordination with IT professionals and experts, and a carefully drafted application to the court that protects the secret while proving it exists.

Mark has handled these matters in the New Jersey Superior Court, including the Chancery Division and the Complex Business Litigation Program, and in the federal district courts in New Jersey and New York. He understands the standards judges apply to emergent relief and the practical steps that make a claim credible.

The best trade secret case is the one that never has to be filed. Mark works with businesses to identify what actually needs protection, to put confidentiality, invention assignment and restrictive covenant agreements in place, to control access to sensitive information, and to build onboarding and exit procedures that reduce risk when employees join from or leave for a competitor. When a business is hiring from a competitor, he helps structure the hire to minimize exposure to a lawsuit.

Mark practices from Montclair in Essex County and represents businesses and owners throughout New Jersey, including Morris, Bergen, Union, Passaic, Hudson, Somerset and Middlesex counties, as well as clients in the New York metropolitan area.