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Patrick, Esq.
Patrick, Esq., Lawyer
Category: Employment Law
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Experience:  Significant experience in all areas of employment law.
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I received a cease and desist order to stop using my former

Customer Question

I received a cease and desist order to stop using my former employer's confidential information and trade secrets on my own or on behalf of other entity. I don't know how to properly address such order, I am a Marketing Rep my job has always been to obtain information from clientele, stay updated on competition, and establish new accounts. All information ever obtained was solely through me performing my duties. This information is not trade secret, these were never house accounts, these were accounts that I gained and have established a close business relationship with, throughout time such accounts have decided to follow me because they were not pleased with the service after I resigned from my previous employer and have now transitioned and are doing business with my current Employer. I never once signed a document that stated I could not use information obtained by my myself in any future endeavor. As a matter of fact, in my term of employment with mentioned former employer I only signed a W4, I9, and Employment Application. Please advise, I don't know where I stand or what my next move should be.
Submitted: 2 years ago.
Category: Employment Law
Expert:  Patrick, Esq. replied 2 years ago.
Thank you for your question. In California, agreements that operate to restrict an employee's ability to compete are void as a matter of law except in certain limited and inapplicable circumstances. Employers, therefore, often attempt to limit an employee's ability to compete by claiming "trade secret" violations. In most cases, such allegations will not hold up in court because the definition of "trade secret" is quite narrow. In order to qualify as a trade secret, information must (1) derive independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and (2) be the subject of efforts that are reasonable under thecircumstances to maintain its secrecy." If you never signed any sort of document indicating that you were dealing with confidential information or attempting to restrict your disclose of certain sensitive information you learned on the job, your employer already has very little to stand on when it comes to claiming that the information at issue was "subject to efforts to maintain its secrecy." But even if you did sign something attempting to restrict your use of information learned on the job, that does not automatically made the information a protectable "trade secret." It seems like your employer is attempting to construe the definition of trade secret so broadly that just about ANYTHING learned in the course of the employment is a trade secret. That cannot be the applicable definition--otherwise, an employee could never accept a second job in the same industry as the first. Usually, employers send out this sort of cease and desist letter hoping that it will scare the employee into quitting their job, and the letter is itself an empty threat. The reality is that even if the employer felt they had a legitimate claim, the amount of money they would spend in legal fees pursuing it would be so high and the prospects for ever collecting on a judgment so slim that it is not worth it for them to file a lawsuit. Your options are to call your employer on their bluff, or to hire an attorney to respond to the cease and desist letter explaining why the information you were exposed to is not actually a trade secret. the latter option would show that you are serious about defending against a claim, but in most circumstance is probably not even necessary as the employer's threat is empty to begin with. How you choose to proceed is, of course, up to you. I hope that you find this information helpful. Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.If you do not require any further assistance, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes moving forward.