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Long gone are the days of a departing employee sneaking surreptitiously into the office after hours to steal his or her employer’s valuable information just before starting a new job at a competitor. Today, stealing the information is often as simple as forwarding a few emails to a personal email account or downloading internal documents to a flash drive. In a matter of seconds, the company’s most sensitive information leaves the security of its network and enters the world of unknowns—or even worse, the World Wide Web.

Many trade secret litigations begin the same way—with the former employer racing to the courthouse for an injunction to stop the employee from beginning work at the competitor. For a quarter century, New Jersey litigators relied on the seminal case of National Starch and Chemical Corp. v. Parker Chemical Corp. to persuade judges to issue injunctions to stop the former employee from letting the cat out of the bag. The so-called “inevitable disclosure” doctrine allowed a judge to issue restraints precluding (or limiting) the employee’s job at a competitor, even when the former employer lacked smoking-gun evidence of theft. So long as the companies were competitors, the departing employee had access to the secrets, and the new job and old job were so similar that there existed a “sufficient likelihood of inevitable disclosure,” then restraints could be entered against the departing employee.

On Jan. 5, 2012, the New Jersey Trade Secrets Act (NJTSA) took effect. The NJTSA, by its very terms, superseded the existing common law for misappropriation of trade secrets. Over four years later, however, it remains an open question whether the “inevitable disclosure” doctrine survived, and if so, in what function.

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