Sunday, August 29, 2010

What is a "trade secret" and how can it result in a lawsuit

Ohio has what is a called a "trade secret" statute - a statute that seeks to define and control valuable sensitive information that businesses take time to develop and protect. Contractors and employees of business that own these trade secrets can sometimes use or even steal that data (called "misappropriation") - and such misappropriation can often lead to litigation. Often trade secret litigation can involve what are called "temporary restraining orders," which are orders issued in the very beginning of a lawsuit (vs. at the end of the lawsuit) to control the activities of individuals while the lawsuit is pending. When a trade secret lawsuit is first filed, the owners of trade secrets look to have a court essentially restrain the alleged users or thieves from using that data while the lawsuit is pending. The ultimate relief sought in the lawsuit is usually damages and/or a permanent injunction forever barring the defendants from possible (or further) appropriation of the data.
However, in order for something to constitute a "trade secret," the data must actually be valuable (having what is called "ascertainable" value) and the owner of that data must take "reasonable efforts" to keep that data secret.
Business owners need to take specific steps to develop and protect their trade secrets, which includes written provisions in contracts for all of those who come into contact with the data. These contracts need to identify just what the protected information is, and those contracts should also include provisions where the persons coming into contact with the data consent to litigation restraining orders and specifically set amounts of damages for any attempts at improper use or theft of that data.

Stay in the Car Dude

The Cuyahoga Court of Appeals has recently affirmed the "obsructing of official business" conviction of a speeding motorist. In Broadview Heights v. Stovall, the Court held that a jury could convict a motorist of obstruction of official business [in Broadview Heights called "interference with an enforcing official"] for simply getting in and out of her car and screaming at police during a traffic stop. The Court made it clear that Ohio law does permit a police officer to demand that a motorist "remain in the vehicle" while the officer has the motorist stopped on the side of the road. Although it would not have been enough to convict a person of simply yelling an obscenity at a police officer for writing a ticket, this woman took it all to a whole new level. We suggest you click on the case caption to read these facts. This gal's action were so over the top, the trial judge gave her 30 days after the jury verdict - although she could have gotten 180.
Our advice, stayin the car dude.

Actus Reus vs. Mens Rea

In an August 27, 2010 decision, the Ohio Supreme Court addressed the difference and the application of two important legal terms/doctrines that apply in all criminal cases: "actus reus" and "mens rea." Whenever a defendant is prosecuted and tried for a crime, the prosecutor must prove both that the defendant engaged in statutorily prohibited conduct (Latin: "actus renus") and that the defendant had a specific metal state (Latin: "mens rea") in violating that statute. The four mental states under Ohio law are: (i) negligently, (ii) recklessly, (iii) knowingly and (iv) intentionally. [Please note that this article will not discuss the definitions of those four terms - that may be the subject of a later article]. What the Court held in its recent decision of State v. Horner was that when an indictment charges a defendant with a violation of a criminal statute, that indictment does not necessarily have to set forth the applicable mental state in the text of the indictment - the text of the indictment just has to tract the criminal statute in such a way as to put the defendant on notice of the charges against him/her. The Court also held, as an additional matter, that when s specific criminal statute does not specifically set forth the required mental state (i.e. the "mens rea"), then the default mental state (for the most part) is going to be "recklessly."
This recent decision essentially overturned a 2008 Ohio Supreme Court of Ohio decision that lead to a large amount of confusion and motion practice by defendants who claimed that their indictments were defective because the indictment did not specifically set forth the applicable mental state. What we have here, practically speaking, is a 2010 decision that overruled a 2008 decision - something that is very unusual for the Ohio Supreme Court (given the fact that essentailly the same judges that were involved in the 2008 decision were also involved with this recent decision). We guess that, to use an old phrase, the 2008 decision sounded like a good idea at the time, but that the substantial amount of motion practice by defendants arguing the technical application of the 2008 decision resulted in the Ohio Supreme Court saying, let's think about this again.

Saturday, August 7, 2010

Pregnancy does not trump normal leave policy

The Ohio Supreme Court has recently ruled that a pregnant woman does not have any special exception to a company policy which holds that an employee must be employed for 6 months before they can obtain any leave from their employment. In the case of McFee v. Nursing Care Mgt. of Am., Inc., the plaintiff was employed by a nursing home company that had a policy that stated that all employees had to be on the job for at least 6 months before they were entitled to any paid leave. However, the plaintiff ended up getting pregnant before she was employed for 6 months, and when the employer would not give her pregnancy leave, she sued the employer claiming that she was being discriminated against for being a woman. The lower appellate court held that Ohio law required all employers to provide all employees with a reasonable period of time for maternity leave - and thus held that the nursing home had discriminated against the plaintiff. However, the Ohio Supreme Court held that because the employer had a gender neutral policy which required that all employees be on the job for at least 6 months before they get any leave, the fact that the employer would not give the plaintiff maternity leave did not constitute sex discrimination.

Woman (and for that matter - men) need to read their employee manual when they accept a new job.