Trade Secret Litigation and Free Speech: Is it Time to Restrain the Plaintiffs?

Abstract

Trade secret misappropriation litigation is often criticized for its negative effects on competition and speech. In particular, some accuse plaintiff trade secret owners of filing complaints for the purpose of running competitors out of business, or restraining individuals from discussing matters which are unfavorable. This Article enters the discussion to critically assess whether there is reason to consider restricting these actions. It concludes that trade secret litigation on the whole does not inappropriately impinge on speech rights. Even if certain cases come closer to offending defendants’ free speech rights, these occasions and the concerns they raise are not unique to trade secret law. Instead, they stem from the broader issue of litigation misuse in civil and intellectual property cases. Indeed, there are particular reasons not to be overly concerned about trade secret actions because existing litigation safeguards, when properly applied, minimize the risk of free speech incursions.