USA Law and Practice Contributed by: Claudia Ray, Joseph Loy, Brandon R. Weber and Andrew (Keum Yong) Lee, Kirkland & Ellis LLP
number) of the judges of the circuit court. En banc hearings are typically reserved for novel questions of law or issues of exceptional impor - tance and are more likely to be granted if the panel decision conflicts with those of other pan - els or circuits. A decision of a regional circuit court of appeals or of the Federal Circuit may be appealed by filing a petition for certiorari with the United States Supreme Court, which has broad discre - tion to hear appeals and generally grants fewer than 100 out of the several thousand it receives annually. The civil court systems in each of the states con - sist of trial courts, intermediate courts of appeal and a highest court of appeal, which is often, but not always, called the state Supreme Court. As with the federal judicial system, the intermediate court of appeal’s decision may be appealed to the highest court of the state, which has discre - tion to hear the case. Even if a case begins in state court, an out-of-state defendant may be able to “ remove ” the case to federal court at the outset if federal jurisdictional requirements are met. 8.2 Factual or Legal Review Issues on appeal are limited to those properly raised in the district court proceedings – claims, defences, and/or arguments not raised in the district court may be deemed “ waived ”, and the appeals court will ordinarily refuse to consider them. A court of appeals defers to the district court’s factual findings unless they are clearly erroneous, which only requires the district court’s account of the evidence to be plausible in light of the record. Conclusions of law are reviewed de novo, which means the appellate court reviews the issues with no deference to the district court’s legal analysis. This also enables a
court of appeals to uphold or overturn a district court’s ruling on alternative legal grounds that were not considered by the district court. 9. Criminal Offences 9.1 Prosecution Process, Penalties and Defences Civil trade secret misappropriation claims often involve conduct that overlaps not only with the federal EEA but also with state and federal statutes related to criminal mail and wire fraud, digital theft or unauthorised access to protected computers. Trade secret owners should consid - er whether to reach out to the Department of Justice or state investigative agencies in cases of suspected or known misappropriation, espe - cially since the trade secret owner is likely to have conducted a thorough investigation and will have access to unique information regarding its own trade secrets that would not be appar - ent to government authorities initiating their own investigation. The involvement of state or federal authori - ties may offer the benefit of bringing addition - al resources to bear, although there may be some loss of control over the investigation and the timeline of the case. For a defendant in a civil trade secret misappropriation action, it is important to evaluate the likelihood that a paral - lel criminal case could be initiated, which may affect the strategy for responding to discovery requests and could increase the potential for self-incrimination during depositions.
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