Orrick Herrington & Sutcliffe

Firm overview:

Orrick, Herrington & Sutcliffe is a US firm which has grown to offer a broad global presence. With roots in California’s Gold Rush era, Orrick has grown to become a respected, full-service firm with a modern outlook.

The firm focuses on representing clients in technology, financial services, energy, life sciences and healthcare sectors—and its trade secrets practice interweaves through all of these sectors.

A financial services client reported “good results and thoughtful representation from Orrick”.

Placing an emphasis on avoiding the courtroom where possible for clients, Orrick encourages clients to be constantly vigilant and check their forensic records. Orrick works with forensic technology to check computer systems and employees’ laptops and take a ‘forensic sleuth’ approach to determine what individuals have done with the trade secrets of the firm’s clients.

Where necessary, however, the firm is well placed to litigate, with experience on evidentiary hearings for preliminary injunction hearings all the way to jury trials. Orrick’s lawyers are trial practitioners with several notable cases that have not settled at the beginning and have gone the distance in state and federal court.

Team overview:

Orrick’s Trade Secrets Litigation practice works on an interdisciplinary basis with five other practice areas: Employment Law & Litigation, Intellectual Property, Complex Litigation & Dispute Resolution, White Collar and Criminal Defense and Cybersecurity.

Rob Schwarts is a first chair trial lawyer and chair of Orrick's Global Trade Secrets Practice Group. He represents plaintiffs and defendants in complex trade secret misappropriation cases, and has tried or arbitrated many cases in commercial litigation, employment and intellectual property.

Widely recognised in the US for his trade secrets acumen, the San Francisco-based partner is a contributing author to the Orrick trade secrets blog, Trade Secrets Watch.

Partners Josh Rosenkranz, Eric Shumsky and Chris Cariello received plaudits for overturning a record $2 billion judgment in a trade secrets case for software company Pegasystems.

Key matters:

• Pegasystems v Appian Corporation, Court of Appeals Virginia, Record No. 1399-22-4

Orrick partners Joshua Rosenkranz led an Orrick team (including Eric Shumsky and Chris Cariello) to represent software company Pegasystems in this high-profile trade secrets case.

Following a record $2 billion judgment in 2022, the Virginia Court of Appeal reversed this verdict on appeal in a July 2024 decision, wiping out the largest trade secrets judgment in history as well as the largest damages award ever in the Virginia courts.

Pegasystems (Pega) hired Orrick’s appellate team after the 2022 trial verdict, which sided with competitor Appian’s trade secrets claims. Rosenkrantz, Shumsky and Cariello identified flaws in the original trial and crafted the arguments that prevailed in the appeals court.

The appellate court found that the trial judge had mishandled the case, particularly by excluding crucial evidence from Pega—which could have disproven Appian’s claims of trade secret misappropriation. The court also criticised the calculation of damages, which were based on Pega’s total sales rather than specific damages related to the alleged trade secrets.

The appellate court’s evidentiary rulings will make the expected retrial “an entirely different case”, according to Orrick. Indeed, Appian announced plans to appeal and reinstate the original decision, again accusing Pega of wilful and malicious trade secret theft.

And in a filing submitted to the US District Court for the District of Massachusetts in August 2024, Pega builds on its original defamation claims to accuse Appian of distorting Pega’s position “to create the false impression that Pega is resisting discovery and to hide Appian’s overreach”.

The case raises questions about trade secrets, corporate espionage, and the proper measure of unjust enrichment damages for such offenses under the Virginia Uniform Trade Secrets Act (VUTSA).

Gentry Locke represented Pegasystems, on brief. Appellee Appian was represented by Adeel Mangi and fellow counsel from Patterson Belknap Webb & Tyler; along with McGuireWoods and Holmes Costin & Marcus, on brief.

• Secured a victory for Microsoft in an unusual trade secrets case that sparked public debate as to whether diversity-related information can be a protectable trade secret. Microsoft hired IBM’s global head of diversity, after which IBM sought a preliminary injunction and accused the executive of violating a one-year non-compete agreement.

Orrick successfully resolved the litigation, and the executive was permitted to join Microsoft. The team included lawyers from our Employment practice.

• Represented wearable fitness device maker, Fitbit, and six former Jawbone employees in a trade secrets dispute with its rival, Jawbone. Jawbone alleged its former employees misappropriated information on Jawbone’s supply chain, product line-up, revenue, and product costs. After the civil matter settled, the federal government indicted the employees.

Orrick represented the first employee to be tried. After a two-week jury trial, the team secured her full exoneration. The government then dropped the charges against the additional defendants. The team included lawyers from Orrick’s Employment, Intellectual Property, and White Collar practices.

Clients:

Pegasystems, Fitbit, Microsoft, Advice Interactive Group, Advanced Technology & Materials, AQR Capital Management, Couchbase, 10X Genomics, ExamWorks, Desktop Metal, Teknor Apex Company.