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New Jersey Trade Secrets Act Does Not Preempt Common Law Claims for Misappropriation of Confidential Information

Authors: Mark Diana (Morristown), Evan J. Shenkman (Morristown)

Published Date: February 1, 2013

In SCS Healthcare Marketing, LLC v. Allergan USA, Inc., et al., 2012 N.J. Super. Unpub. LEXIS 2704 (N.J. Super., Dec. 7, 2012), the New Jersey Chancery division held that the newly enacted New Jersey Trade Secrets Act (N.J.S.A. 56:15-1 et seq.) does not preempt common law claims of misappropriation of confidential information, notwithstanding statutory language seemingly to the contrary. Conceding that the statute was not a model of clarity, the court concluded that sections 56:15-9(a) and (b) of the Act must be read in conjunction, which reflected the New Jersey Legislature’s intent that the rights and remedies afforded under the Trade Secrets Act be cumulative, rather than restrictive, of the rights and remedies provided under the common law. As a result, the plaintiff’s claims withstood the defendants’ motion to dismiss on preemption grounds.

Note: This article was published in the February 2013 issue of the New Jersey eAuthority.

Mark Diana  (Morristown)

Mark Diana
Mark has a diverse litigation and counseling practice representing both private and public sector employers. For more than 25 years he has been defending employers in discrimination, harassment, wrongful termination, retaliation, breach of contract, wage and hour, and other employment-related cases before state and federal courts, administrative agencies and arbitration tribunals. Mark also provides counseling and compliance advice to employers with respect to the full spectrum of employment...

Evan J. Shenkman  (Morristown)

Evan J. Shenkman
Evan J. Shenkman is a member of Ogletree Deakins’ Knowledge Management Department, serving as the firm’s Senior Manager of Knowledge Management Counsel and Research. In his role, Mr. Shenkman is responsible creating processes, practices, and software to allow firm attorneys to work smarter, faster, and more in sync; creating internal and client-facing collaborative tools; and managing the firm's team of Knowledge Management Counsel and the firm's Legal Researchers. He also manages...