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V O L . X X I I N O. X V I I I A U G U S T 8 , 2 0 1 6 28 T ilson Technology Management, a fast-growing information tech- nology professional services and network construction company, knows how to keep a secret. Trade secrets, that is — an essential consideration for a company whose clients range from companies of all sizes to the U.S. Department of Defense, with client information ranging from confi - dential to highly classifi ed. "We have a rigorous process for mark- ing and classifying secret information," says President and CEO Joshua Broder. "Our company participates in classi- fi ed projects for the federal government and we in turn have clearances from the federal government, so many policies and procedures we're required to follow on classifi ed projects were in turn more rigorous anyway. And we found that han- dling classifi ed information in the federal context allowed us to improve our han- dling of commercial information as well." e subject of trade secrets received a bounce in May with the enactment of the Defend Trade Secrets Act, which creates federal jurisdiction for trade secret litigation. Previously, lawsuits regarding misappropriated trade secrets could be taken to state courts. State laws on the subject follow guidance of the Uniform Trade Secrets Act, published in 1979 by the National Conference of Commissioners on Uniform State Laws. But the state laws are not uniform across state lines. e new federal law, also mir- roring the UTSA, provides a universal cause of action and also incorporates new provisions designed to better pro- tect employees. Litigants can now sue either at the state or federal level. What qualifi es as a trade secret Tilson deals with trade secrets in two contexts, says Broder. One is develop- ment of software products for commer- cial and government clients. "We feel strongly that secrets need to be protected to have a healthy economy," says Broder. "So we're happy to see laws strengthened that help our customers protect their secrets." e other context involves the fast- growing company's hiring of people from other companies. at's where DTSA is a mixed bag. Sometimes, Broder says, new hires at Tilson have been threatened with lawsuits by former employers who say they have violated non-competition agreements. Tilson provides counsel to the new employees so they can focus on their work, and no claim has ever gone to court. But the DTSA's federal venue makes that prospect more intimidating. Conversely, the DTSA also prohibits former employers from trying to enjoin former employees from working for another company. e reality, says Broder, is there are far fewer trade secrets than the lay public might think. Although information technology might evoke a trade-secret-rich image, Tilson has few such secrets. "Very few things are actually trade secrets," Broder says. "Yes, if you're Coca- Cola, the recipe is a trade secret. But in telecom, if I put out a bid, my pricing isn't secret, because I just shared it with the federal government. Is the way we do construction a secret? No, it's know- how. Is the way we develop software a secret? No, that's know-how." Trade secret cases could have higher profi le Whatever the bandwidth, access to the federal court system is likely to expedite trade secret cases because the federal courts typically have more resources to devote to complex matters than the state courts do, says Bernstein Shur attorney Ned Sackman, an expert in trade secret law. Trade secrets are "the lifeblood" of manufacturing, technology and other growth sectors, anything from secret recipes to unique manufacturing tech- niques, Sackman says. Primary kinds of intellectual property include patents, copyrights, trademarks and trade secrets. e fi rst three were already protected under federal law and alleged violations could be taken up in federal court. "Up until May 11, 2016, you could not do that for trade secrets," says Sackman. "Part of the impetus for this law was to put trade secrets on equal footing with the other three." However, trade secrets were pro- tected by state laws and continue to enjoy state protection. So why does the new federal law matter? Federal courts are simply less inundated than state courts, and have better resources to investigate trade secret lawsuits, which are often complicated. "For example, if you have a case involving software and you have to spend signifi cant time explaining what the software is and why it's important and how you believe the secrets have been misappropriated, the conven- tional wisdom is you're better off doing that in federal court because it has more time and resources to devote to a complex inquiry," Sackman says. In addition, there's a benefi t to having a uniform federal law. "Even though almost every state has its own trade secret law, there are diff er- ences, and sometimes those diff erences are signifi cant depending on the specifi cs of the lawsuit," he says. "For example, businesses in Maine that have com- mercial relationships with businesses in Massachusetts, Connecticut and Rhode Island might have to litigate under another state's act rather than the Maine act. With a uniform law, you can go to federal court anywhere, and the same law applies in all of those courts. It gives everyone a better ability to assess the litigation and make appropriate business decisions about how to proceed." F I L E P H O T O / T I M G R E E N WAY Trade secrets Companies going to greater lengths to protect proprietary data B y L a u r i e S c h r e i b e r F O C U S Joshua Broder, president and CEO of Tilson Technology Management, says questions often arise just about what qualifi es as a trade secret. C O R P O R AT E P R I VA C Y & S E C U R I T Y

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