From vials smuggled in trench coats to briefcases stuffed with confidential files, trade secrets disputes conjure images straight out of a corporate espionage thriller. But the stakes couldn’t be more real for companies involved in these cases.
Unlike patent, copyright or trademark litigation, trade secrets cases center on allegations of “theft,” which carry significant reputational risks for both defendants and plaintiffs. These claims can also provoke visceral reactions from the public and draw intense media scrutiny, placing an unparalleled spotlight on every move in the case.
This combination of legal, reputational and public pressures makes trade secrets litigation uniquely challenging – and demands a specialized set of communications considerations and best practices to protect reputation, shape outcomes and mitigate risks.
1. To get ahead or to react?
The first communications consideration is a simple yet important one: when to communicate to the media and other audiences.
With some exceptions, the usual answer for plaintiffs is to take a proactive approach. This allows them to leverage their first-mover advantage, frame the public narrative on their terms and even potentially secure a quick settlement. Plus, in the stakeholder age, employees, customers and investors demand transparency; they will expect the company to explain the grounds for the case and justify its claims. Failing to do so is more likely to intensify the fallout of a case than contain it.
How the plaintiff communicates is also tremendously important. Plaintiffs should be sure to consider which stakeholders will need to be engaged, what messages will they care most about and what channels should be leveraged to reach them effectively.
Defendants, on the other hand, should usually opt for a low-profile, reactive stance to minimize attention. After all, these individuals and sometimes their companies are accused of stealing. That said, proactive communications can help the defendant beat plaintiffs to the press, giving them the opportunity to frame the narrative first. This can be especially important in trade secrets cases, as the plaintiff will seek to paint the defendants as thieves or cheaters. Getting ahead with strong messaging can negate those accusations and is worth considering to protect the company’s (or individual's) reputation from the outset of the case.
2. Aligning communications with legal goals
Both sides should also see communications as a way to aid and expedite good legal outcomes.
For plaintiffs, that can take several forms – are they looking for a quick, favorable settlement or intending to bury their adversary through ongoing, grinding litigation? Considering what the ideal outcome is will dictate exactly which tactical levers to pull and buttons to press and how aggressively to do so.
Likewise, defendants should consider how communications can be used on the defensive. Smart messaging may neutralize a lot of the plaintiff’s leverage at the settlement table. It can also take the pressure off to settle at all, giving defendants more control. Additionally, defendants can use careful communications to flip the script in the court of public opinion – a narrative that helps calm employees, investors and shareholders means that, regardless of how the case itself plays out, the defendant’s business retains a better position. Again, defendants should consider what success looks like to them and craft a communications plan accordingly.
Best practices
Still, the devil is in the details with trade secrets litigation. For each side to successfully execute the plans they’ve now carefully crafted, they’ll need to follow a few specific best practices.
The first is to employ milestone-based communications. The media need a hook, like a complaint, a significant motion, an order or the trial. Tying communications to a litigation development ensures that the message reaches as wide an audience as possible and makes a greater impact across the stakeholders who matter most.
Other best practices include:
Integrating litigation and business communications calendars: Legal teams and communications advisors need to be in lockstep. Every significant point in the case should be supported by a clear narrative and communications gameplan. For plaintiffs, this will include a press release announcing the complaint, where for defendants, it may require just a pared back statement or a reactive press release to be issued only as and when needed. The working group must also have visibility on significant events in the life of the business where the litigation may arise, such as earnings calls. Bringing in communications partners who can advise on how to anticipate and balance all this activity is essential to effective communications.
Tailoring stakeholder communications: Teams should take the time before a case kicks off, or, in the defendant’s case, as soon as the complaint comes to light, to assemble Q&A documents, internal memos and customer-facing materials that address the primary concerns of each stakeholder group. While messaging should largely be consistent across groups, having different materials that dive into the most relevant points each audience will want clarity on can mitigate confusion, reduce panic and ensure the overall communications plan lands.
Developing a microsite: A standalone, litigation-focused website unconnected to a corporate site can go a long way for parties in litigation, especially trade secrets situations that rouse a lot of interest. Microsites provide a dedicated place to house statements and updates on the litigation straight from the source, providing an ongoing repository of evidence, arguments and points of view to help control of the narrative.
Backgrounding reporters: Both sides will benefit from building relationships with key journalists to provide context and shape coverage. This can be a way defendants can get out ahead of the narrative from the outset, or for plaintiffs, can ensure that coverage throughout the life of the case is as favorable as possible.
Garnering third-party support: Assembling a list of allies, experts or influencers who can provide credibility and amplify messaging is helpful for all parties. As the case plays out, these additional spokespeople may be key to influencing audiences and protecting public perception.
The spotlight on parties in trade secret litigation is bright – which can be a risk or an opportunity. Success hinges on recognizing the power of communication as a pivotal strategy rather than a mere afterthought. By adopting a proactive, well-coordinated approach to messaging, companies can protect their reputation and help support good legal outcomes.