Pub. 9 2019 Issue 2

13 ISSUE 2. 2019 Continued on Page 14 are generally aware of this provision by now, as employers are required to pro- vide notice of the DTSA’s whistleblower immunity protections in any contract with employees or independent contractors that govern the use of trade secrets or other confidential information (e.g., nondisclosure or confidentiality provisions in handbooks or contracts). 38 Despite a general awareness of the DTSA’s whistleblower immunity protections, employers and employees may well be wondering how those protections work in practice and what practical implica- tions may affect them. The answers to those questions, while still somewhat unclear, have begun to crystalize with the first two reported cases addressing the DTSA’s im- munity provisions. In Unum v. Loftus 39 – a 2016 decision from the U.S. District Court for the District of Massachusetts – the court refused to dismiss an employer’s DTSA claim based on whistleblower immunity. There, the defendant was captured on surveillance video leaving his employer’s facility with a laptop, boxes and a shopping bag full of documents. After the defendant refused to return these materials, the employer brought a DTSA claim against him. The defendant filed a motion to dismiss, asserting that he had turned over the materials to his attorney to report and investigate a violation of law by the plaintiff. 40 In denying the motion, however, the court found the record lacked any facts to support a whistleblower immu- nity defense, as discovery had not yet been conducted and such facts were not discern- ible from the face of the complaint. 41 Unlike in Loftus , the court in Christian v. Lannett Co., Inc. 42 – a 2018 decision from the U.S. District Court for the Eastern District of Pennsylvania – granted a motion to dismiss a former employer’s DTSA counterclaim. In Christian , the plaintiff employee filed a lawsuit against her former employer for gender and disability dis- crimination under federal law. Before she was terminated and brought claims, the plaintiff retained over 22,000 pages of the defendant’s documents. After she turned these documents over to her counsel, who then produced them in discovery, the former employer aggressively responded by filing a DTSA counterclaim. In dismissing the counterclaim, the court found that the for- mer employee’s disclosure of trade secrets to counsel was for discovery purposes in a lawsuit regarding violations of Title VII, the Americans with Disabilities Act, and the Family and Medical Leave Act. Under these circumstances, the court did not hesitate in applying the DTSA’s immunity protections and dismissing the DTSA counterclaim. 43 Although Loftus and Christian do not paint a complete picture, those cases provide valuable lessons to employers, employees and their counsel on how the DTSA immu- nity protections may be applied in practice. Loftus demonstrates that it will be difficult for a defendant to rely on whistleblower im- munity without first participating in discov - ery and without filing a motion for summary judgment – both time-consuming and costly in your association’s trade journal is a solid approach to business development. dani@thenewslinkgroup.com | thenewslinkgroup.com | (v) 801.676.9722 ADVERTISING in your association’s trade journal is a solid approach to business development. Business publications are rated the first choice for staying in touch with what’s going on in their sector by 61% of decision makers. 83% of managers would recommend to people starting a career in their sector to read the business publications. A recent Nielsen Catalina study shows an average ROI of $7.81 for every $1.00 spent on print ads. Almost half of those surveyed preferred to look at an ad in print, and only 1 in 10 preferred to see that same ad in a digital version. And no one wanted to see it in an app. Print is tangible, it’s engaging, it’s readable, but most of all… it works!