Thursday, March 12, 2009, 3/12/2009 11:17:00 AM

Are There Risks in Publishing Allegations of Trade Secrets Theft?

By Todd

If you click on the link above, you'll see that Atrua has published a press release regarding its allegation that one of its competitors, a company called Authentec, has misappropriated Atrua trade secrets on multiple occasions. The press release was apparently made by Atrua's Director of Marketing and is published via a site called "WebWire." Atrua doesn't exactly couch their claims as claims - they refer to "the trade secret theft" and "their misappropriation of Atrua's trade secrets."

Many of you know that allegations contained in legal pleadings filed in court are entitled to judicial immunity - “immunity” from lawsuits for defamation based upon statements made in the filed documents, regardless of the intent in making the statements.

But what if the company publishes, outside of the legal/judicial process, their claims that someone else wronged them in some way - is that also entitled to judicial immunity? That issue is not so clear. We admit to not having briefed or researched this issue but we believe that publishing statements or contentions from a legal pleading and airing it outside of the courtroom is a risky endeavor.

Atrua has now published outside of its legal pleadings its statement that Authentec has stolen its trade secrets. The published report doesn't say "Atrua claims this . . . " or "Atrua believes that . . . " it says Authentec misappropriated trade secrets. The world can read this published statement - as is evidence by the fact that we read it in North Carolina.

Atrua may ultimately prove its claims that Authentec DID misappropriate its trade secrets. Truth is a defense to a defamation claim. But if Atrua doesn't ultimately prove its claims, it might have just subjected itself to a claim for defamation by publishing the report outside of the judicial process in a way that presumably takes the statements outside of the shield/cloak of absolute immunity.

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