They spoke out against their employer. Then trade secrets law was used against them.

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Three weeks before Christmas, in 2016, Greg Robillard received an email from his lawyer. Attached was a brusque, five-page letter from an attorney representing his former employer, a tech startup named Opal Labs based in Portland, Oregon.

The company intended to sue him over his GitHub account.

The soft-spoken Portland resident had worked in the technology industry since 1999, wrangling databases and writing software for various companies over the years — a nonprofit, a healthcare startup, a marketing firm. He had signed up for GitHub in 2012, as the code management tool was becoming the industry standard, using it like tens of millions of other tech workers do — to collaborate on coding projects with colleagues, or to show a portfolio of work to prospective employers.

When he interviewed for the job at Opal Labs, a downtown marketing-tech firm, he sent an executive his GitHub profile to provide a sample of code he'd written. Once he started as a lead enterprise engineer, he followed his new colleagues' lead and published code to his public profile, using the tool to keep his manager apprised of his progress. When he left the company six months later, Robillard again used GitHub as part of his job hunt — recreating from memory a project he'd worked on at Opal derived from decades-old public code.

Now, Opal's lawyers were saying that code Robillard had posted to the platform amounted to confidential trade secrets. It was the warning shot in what would become a four-year legal nightmare.

Looking back, things soured for Robillard just a month after he joined the company, when he invited some of his new coworkers to his 42nd birthday party.

Afterward, he felt office attitudes shift. As at many tech firms, Opal's workforce skewed young; newly aware of his age, colleagues now called him "old Greg," he later testified, and the CEO mocked his use of Facebook as something "older people" did. He also said he heard a job applicant dismissed as "some old guy in his 40s."

In May 2015, after Robillard missed a scheduled meeting with a client without alerting his colleagues — he said he was looking after his son as his wife was leaving town for a funeral — he was fired.

A spot illustration of a man walking in isolation amongst shadows.

Tara Anand for BI

Opal told Robillard he was terminated for the absence and other performance issues, but Robillard recalled colleagues missing meetings without consequence. He started wondering if he'd crossed an invisible barrier — he'd become old, without even noticing — and had been discriminated against. He hired an employment lawyer and, about a year after his termination, filed suit against Opal alleging age discrimination, among other claims.

Opal's lawyers filed a response denying his allegations, and the parties began discovery. That's when the company fired back with the letter — and a countersuit against Robillard, accusing him of violating state and federal laws protecting trade secrets.

Suddenly he was being cast not as a victim of discrimination, but as an intellectual property thief.

"It was horrifying," Robillard said in an interview. "They were using this pressure, this lever that I hadn't even thought about before. And it felt like a very upside-down experience."

Across the United States, Business Insider has found, companies large and small are wielding trade secrets law as a potent legal strategy against workers who have accused them of wrongdoing.

There's the aerospace employee who was laid off after accusing colleagues of Islamophobic abuse; he filed a discrimination claim and was then countersued over documents he'd emailed himself while on the job. There was the music school director who said he was subjected to sexual harassment and a hostile work environment and was sued after leaving to start a rival business. And there was the healthcare worker who was fired after raising suspicions of Medicare fraud and sued her employer, alleging retaliation, only to be countersued over the documents she had taken to substantiate her claims.

Using trade secret law to fend off worker complaints is so far a niche strategy. In interviews, some attorneys said they'd never seen it deployed. But others have witnessed it multiple times and said its use was on the upswing. Employment law attorneys said its rise has been aided by a recent federal law, a shift to remote work that blurred personal and professional boundaries, and a growing corporate surveillance culture in which a worker's every action can be tracked and weaponized.

"Tools that were intended to help businesses protect themselves against other businesses...are now used by corporations against their own employees."

Some workers were sued after gathering evidence of perceived wrongdoing in the workplace, what some attorneys call "self-help discovery" — despite whistleblower protections in the law.

In other cases, what workers described as run-of-the-mill professional activities were reframed as trade secret misappropriation: documents printed out to review at home, a work email forwarded to a personal account for safekeeping, a computer shared with a romantic partner, a password sent to a colleague for an urgent task — or code saved to a GitHub profile.

"Tools that were intended to help businesses protect themselves against other businesses and corporate espionage are now used by corporations against their own employees, to protect the company at all costs," said Jennifer Gibson, the cofounder of Psst, a whistleblower-support group.


A beverage company's secret recipe. An innovative manufacturing process. A social media platform's proprietary feed algorithm. A sales team's closely guarded customer list.

Simply put, a trade secret is a valuable, proprietary piece of business information that a company has taken steps to keep under wraps. Allowing businesses to safeguard information, processes, prototypes, code, and other secrets from rivals is foundational to corporate law. Long governed by the states, the law was fully codified at the federal level in 2016, when President Barack Obama signed legislation called the Defend Trade Secrets Act.

The legislation didn't depart radically from existing trade secrets laws in the states, but it created a single, nationwide framework. It also made it far easier for companies to bring trade secrets claims in federal courts, which are perceived by many attorneys as favorable to companies, in part because of stricter rules and faster-moving dockets.

A spot illustration showing a mans phone with a reflection of two men shaking hands.

Tara Anand for BI

Under both state and federal law, a trade secret has been misappropriated if it was acquired or disclosed without consent or through improper means — whether or not it made its way to a rival firm. "It doesn't matter at all if it went to a competitor," said Michael Risch, a professor of law at Villanova University. "If you obtain information that you're not entitled to have, then potentially you can be liable."

It's now being deployed by employers facing claims of discrimination or wrongdoing.

Attorneys who represent workers in employment lawsuits often agree to take a case on contingency — meaning they bear the legal costs and are paid only if they win or settle. But when it comes to defending a retaliatory counterclaim, many require their clients to pay up front.

Such cases are expensive: Determining whether any particular piece of information is a trade secret is a fact-intensive question that must be decided by a court or arbitrator, an often time-consuming and costly prospect. A survey by the American Intellectual Property Law Association found that in 2022, the median cost of litigating a trade secret case with less than $1 million at stake was $750,000. (Cases that don't make it to trial, the survey found, could still run to tens or hundreds of thousands of dollars.)

"Both potential reputational costs of having that fight happening in court, and a legal bill an ordinary person simply couldn't afford," said Chris Seaman, a professor at Washington and Lee School of Law, mean "the in terrorem effect" — the fear factor — "would be very significant."

In any trade secret case, the odds are strongly against the defendant: A study by the legal analytics firm Lex Machina of all trade secret cases in US District Courts from 2021 to 2023 found that plaintiffs prevailed four times as often as defendants. Mostly, the cases settled. For an employee, a settlement might entail abandoning their discrimination or whistleblower claim, accepting a smaller payout, or even paying damages to their employer.

"Did all these lawyers go to a conference we didn't hear about?" asked Jack Moran, a Cleveland attorney who has represented multiple clients who were accused of trade secret misappropriation after raising their own claims of corporate wrongdoing. "Just one after the other is adopting: 'The best defense is a good offense,' even if the employer doesn't have particularly viable claims."


Business Insider examined dozens of federal trade secrets claims filed by companies over the past decade against current and former employees who also had filed a claim against their employer.

One such suit was filed by the United States Olympic & Paralympic Committee. Despite a dearth of competitors — the committee is the sole entity responsible for overseeing Team USA — the committee filed a trade secrets claim against a former executive after he reported allegations of wrongdoing.

Bill Moreau, a chiropractor, was promoted by the committee to vice president of sports medicine in 2017. Throughout 2018 and 2019, he repeatedly flagged what he said were troubling issues, according to court filings: first, a statutory rape claim involving a 15-year-old Paralympic athlete; and later, what he said were violations of athletes' confidential medical records and failures of care for athletes with suicidal thoughts.

In May 2019, he was fired.

The Olympic committee said Moreau was terminated so the organization could replace him with someone who had a doctor of medicine, rather than a doctor of chiropractic. But Moreau believed he was fired in retaliation for what he described as whistleblower complaints. He sued the following year alleging wrongful discharge.

His approach to document handling soon made him a target.

From time to time, he had emailed himself documents — he said he'd done so to facilitate remote work, as he preferred his personal computer's large screen — or printed them out and took them home. His lawyers said in court filings that this was common practice among the committee's employees.

He said he also saved documents to use in his push for reform at the committee and to protect himself from becoming a "scapegoat." After his termination, he let his attorneys review some of them.

To the Olympic committee's attorneys, his actions were grounds for a countersuit alleging trade secret misappropriation: they accused him of seeking to profit from the documents and said his actions damaged the committee's relationship with athletes. The case ground on for three years before reaching a settlement.

One of Moreau's attorneys, Michael Fairhurst, said he'd noticed that "employers are becoming more aggressive in lodging complaints of misappropriation and the like against workers who have blown the whistle on corruption, discrimination, or other misconduct."

These cases, he said, "can often crush employees into silence."

In the cases BI reviewed, misappropriation allegations weren't just deployed as a defense maneuver after an employee sued. In many instances, employers sued aggrieved employees proactively under trade secrets law — putting workers on the backfoot from the get-go.

These cases, one attorney said, "can often crush employees into silence."

Many of the cases hinged on methods of forensic document accounting that didn't exist just a few decades ago. Software can now track every keystroke or file opened during a worker's time with a company; every message and email can be retained for posterity. When someone speaks out against an employer, this entire digital history can be scrutinized for use against them.

Eric Bachman, the founder of Bachman Law, in Bethesda, Maryland, said he had begun checking whether prospective clients — deliberately or inadvertently — retained any files from their employment, to head off this line of attack.

"Generally speaking, you just want to be aware of the issue because we know now that companies are being more aggressive about pursuing these claims" over trade secrets, he said.

Of the various types of legal claims companies can make against workers, misappropriation allegations can be particularly damaging to an employee's professional reputation, Bachman said, because companies will often say employees "stole" proprietary information or accuse them of "theft."

"This is meant to, and does, sound like the employee committed a crime of some sort," Bachman said, "which is a far different implication than something more benign-sounding like breach of contract."


When the Defend Trade Secrets Act was being drafted, its authors were attuned to how it might be abused and attempted a remedy: a whistleblower immunity provision.

This clause sought to protect workers who take documents in an effort to prove that their employer was engaged in illegal activity, offering them immunity from prosecution for what might otherwise constitute misappropriation.

The provision is narrowly defined, applying only to workers who took documents for the sole purpose of sharing them with their attorneys or a government agency. That means employees who seek to expose discrimination or wrongdoing who preserve documents in other ways — by sharing them with the media, say, or seeking guidance from a confidant — may be left unprotected.

"You often have whistleblowers who are having to make decisions in less than ideal circumstances, when they may be emotionally impacted from what's happening," said Gibson, the whistleblower advocate. "Those aren't circumstances that lead to the best decision-making."

In practice, the provision has sometimes failed to protect even the most fastidious would-be whistleblowers.

A spot illustration of a  backpack with documents spilling out of it.

Tara Anand for BI

In one of the earliest cases to test the law, an insurance company, Unum, sued a former employee, Timothy Loftus, alleging misappropriation after he took boxes of documents to investigate what he suspected was illegal activity. The worker invoked the whistleblower exemption, but the judge rejected the motion, saying it wasn't clear that Loftus took the documents solely for the purpose of investigating whether a crime had taken place. (The case was later settled.)

Peter Menell, a UC Berkeley law professor who was a key architect of the exemption, found the court's interpretation outrageous. In a January 2017 research paper, he warned that under this reading of the law, "any trade secret owner can require a whistleblower to defend a trade secret lawsuit merely by alleging that there is a dispute over the employee's motivation for providing trade secret documents to their attorney." Unum was happier with the outcome; Emily Downing-Baer, a company spokesperson, said the decision demonstrated "the value of the Defend Trade Secrets Act."

One Georgia case appeared to be exactly what the whistleblower exemption was designed for.

Christopher Young had suspected his employer, an Alpharetta-headquartered cement company named Argos, was engaged in illegal price-fixing — coordinating with competitors to inflate cement and concrete prices for government projects. He photographed and secreted home extensive paper documents to support his suspicions and used them as the basis for a qui tam lawsuit — a suit brought by a private citizen on behalf of the US government.

Young filed his qui tam case anonymously, but after company officials discovered he was behind it, Argos sued him in 2018, alleging trade secret violations. The company claimed that not all the documents Young took were related to his qui tam lawsuit and that he gave the documents to a competitor. Young's attorney moved to have the case dismissed under the whistleblower clause. The judge denied the motion, citing Loftus, even as she agreed with Young's argument that Argos had provided no plausible evidence that he had disclosed trade secrets to another company.

It turned out Young's whistleblower claims had merit. In 2021 federal prosecutors charged Argos with price-fixing and antitrust behavior, which the company admitted, agreeing to pay a $20 million criminal penalty and cooperate with the ongoing investigation. Argos' case against Young was halted only when the Department of Justice's antitrust division intervened.

Even without whistleblower status, it is illegal for a company to retaliate against someone who engages in protected activity, such as filing a complaint over gender or racial discrimination. But again and again, courts have ruled that trade secrets claims were not tantamount to retaliation unless a defendant could prove they were unreasonable, "baseless," or "frivolous."

"You often have whistleblowers who are having to make decisions in less than ideal circumstances."

In one 2018 case that made it to the 6th Circuit Court of Appeals, an Ohio insurance worker, Steven Aday, was sued over claims of trade secrets violations after he filed a lawsuit accusing a former employer, Westfield Insurance, of age discrimination. At issue was the fact that he'd emailed himself documents; even though he said the company knew other employees had done the same thing, his claim of retaliation was rejected in court. "There are many reasons an employer would not litigate every infraction employees commit," the majority wrote. "However, after an employee has hauled an employer into court, it is entirely reasonable for the employer to file its claims for minor infractions." (Aday ultimately prevailed on the trade secret misappropriation allegations, because his employer couldn't prove he violated company policy.)

Robillard, the Oregon engineer, also accused his former employer Opal of retaliation after Opal's countersuit alleging trade secrets violations. His claim was dismissed, too.

"Even if the court assumes a retaliatory motive, Plaintiff's retaliation claims fail," Magistrate Judge John Acosta wrote, finding that Robillard had not proved the trade secret claims were baseless.


As a partner at Dhillon Law Group and head of the firm's employment law division, John-Paul Deol has sat on both sides of the table. At times, he has defended employees against trade secrets counterclaims, and at times he had filed such claims on behalf of employers himself.

"It's a huge piece of leverage over an employee," the San Francisco attorney said. "On the defense side, it's one of the first things you look at."

On multiple occasions when he's been preparing to file suit over workplace discrimination, a client's employer has threatened a trade secrets countersuit, he said. Sometimes that threat alone has been enough to prompt a worker to abandon their claim. The cost and reputational risk of defending against one of these claims, he said, is just too high.

This dynamic is why it is so difficult to estimate the true impact of trade secrets law on workers, and how much it constrains their ability to speak out about wrongdoing. Multiple attorneys told BI that the mere suggestion of a trade secrets counterclaim had been enough to persuade workers to withdraw or settle their complaints. In addition, many trade secret cases may be litigated entirely in private arbitration, out of sight.

"Even where the employee has a perfectly good defense to that claim, they know it's going to cost them money to fight it out," said Bachman, the Bethesda attorney. "It does factor into their decision about whether or not to bring a case — or to settle it before they ever even have a chance to bring it."

Carl Boja, who'd worked as a salesperson near Akron, Ohio, brought a disability claim against a former employer, a roadside services firm called TA, related to his March 2024 dismissal. In an interview, Moran, the Cleveland attorney, who represented Boja, said TA responded by telling him the company was preparing a trade secrets suit against his client over files Boja had emailed himself. If Boja would drop his claim, Moran recalled, TA would agree not to bring the case. (TA and its attorneys did not respond to requests for comment.)

"He didn't know that he was going to get fired," Moran said. "So it's not as if he took these things and then quit and then formed a competitor." Before Boja had time to consider the offer, Moran said, TA filed suit.

"I have trouble sleeping or focusing on anything else."

A mandatory arbitration agreement Boja had signed with TA as a condition of employment consigned his disability claim to private arbitration. But TA filed the trade secrets claim against him in open federal court, claiming he took the documents to a competitor — potentially risking Boja's reputation and future job opportunities. It also hurt him financially: Moran had agreed to represent Boja on contingency in the discrimination arbitration, but Boja is now paying him out-of-pocket to defend against the trade secrets claim.

"Dealing with TA's case against me has been emotionally difficult," Boja said. "I have trouble sleeping or focusing on anything else."

Jerry Talton is also battling to save his reputation after being sued over document downloads. In October 2022, while employed as an executive at the fintech firm Carta in New York City, he wrote to the company's board of directors claiming a litany of wrongdoing, including bullying by senior executives, sexually inappropriate comments by colleagues, and employees failing to disclose financial conflicts of interest.

Shortly before the company placed him on leave to investigate, Talton downloaded a raft of internal documents. An accidental email to the company's general counsel prompted a review of his IT activity, which surfaced the downloads. A filing Talton made in court said he'd offered to return the documents through counsel, but the company had declined and fired him, then filed suit claiming trade secret violations. Amanda Taggart, a Carta spokesperson, flatly denied that he'd offered to return the documents. Carta said in court filings that Talton had abused the company's trust and risked revealing business information it had spent years developing.

Court filings show that the litigation process agonizing for Talton. Carta unearthed salacious texts he had sent to sexual partners from company devices and made them public in court filings. "Talton became ridiculed around the world," his attorneys wrote in pursuing his ongoing counterclaims including retaliation, defamation, and wrongful discharge. "A good job offer was withdrawn. He has not been able to get another."

"It's very easy to use these tools — that are there for a good reason — for purposes that are not," Talton said in an interview. He described trade secrets laws as "a blunt weapon" that could be deployed against employees "because you don't like their opinions, or you don't like the manner in which they've spoken up about what they've observed."


Shortly before Thanksgiving in 2020, the chief operating officer of a Harrisburg, Pennsylvania, debt collection firm slapped Nicole Durenleau across the face. She had previously reported inappropriate sexual comments and touching by the COO, Shell Sharma, to an employee relations representative, her attorney wrote in a court filing.

Durenleau left the company, NRA Group, in February 2021 and promptly sent a demand letter complaining of sexual harassment and seeking back pay and compensation. She also reported Sharma to the police for striking her, and he was convicted of harassment that May.

The company counterattacked, suing her on hacking charges in April, and later added a trade secrets claim.

The company's claims hung on a thin thread. About a month before Durenleau quit, her manager requested a login credential for a website that tracks state licenses. Durenleau was out sick that day, so she asked a colleague, Jamie Badaczewski, to log into her account on NRA's computer network to find it. Badaczewski retrieved a spreadsheet of work logins Durenleau had created and sent it along to Durenleau's personal email address so she could share it with her manager. The company's attorneys asserted that creating the spreadsheet and having it sent to her personal email was trade secret misappropriation. The company sued Badaczewski too.

More than two years later, a federal judge ruled that because passwords don't have "independent economic value," they're not trade secrets. Counterclaims by Durenleau and Badaczewski alleging a hostile work environment and workplace retaliation remain ongoing, though Sharma died in early 2024. NRA Group has appealed the dismissal of the trade secrets claim, telling BI that the spreadsheet "contained highly sensitive trade secret information." (Durenleau and Badaczewski's attorney, Cory Iannacone, said his clients had "always maintained that NRA's claims were without merit" and would present their discrimination and retaliation claims at trial.)

A spot illustration of a woman walking alone amongst a gavel.

Tara Anand for BI

Defendants like Durenleau and Badaczewski who prevail when facing trade secrets claims will face headwinds if they seek to recoup their legal costs. The federal trade secrets law sets a high bar for defendants to be awarded fees, requiring the case to be brought in "bad faith."

Though judges sometimes find the evidence of trade secrets violations thin, they rarely find that the claims involved bad faith. In a recent case in California, a federal judge called the case before her "objectively specious," yet didn't approve the award of legal fees.

The result: Even when a company's trade secrets claim fails, it can exact financial harm.

For any trade secret case that makes it all the way to trial, Seaman, the Washington and Lee professor, said, "You're looking down the barrel of a million dollars or more in attorneys fees and expenses, and even if you win, no guarantee that you can get it back."

For Robillard, the Oregon engineer, the legal process was grueling.

His attempts to have the trade secrets claims against him dismissed through summary judgment failed. He sat for depositions and turned over reams of old files for discovery. He was fearful of talking about the case to anyone except his partner, concerned he'd be accused of another violation.

"That isolation is a big factor," he said. "Paranoia is real, because you don't know who's looking or watching."

After he was fired from Opal Labs, he took on other technology jobs but found himself experiencing panic attacks and other symptoms of post-traumatic stress disorder. He left the tech sector in 2015 and began training as a therapist, with a focus on trauma and relationship issues.

The parties finally reached a settlement in March 2021, just a few months before a trial was scheduled to begin. All claims were dismissed with prejudice. Opal agreed to pay a settlement of about $220,000.

"We understand that parties may have different recollections or perspectives on the events in question," Colin Savoy, Opal's chief legal officer, wrote by email. "Opal remains confident in our actions, our defense, and our firm belief that the facts fully supported each and every defense and claim we presented. As a technology company, protecting our intellectual property is both necessary and appropriate."

Of the settlement money, an estimated $94,000 went to pay expert witnesses, according to the office of Robillard's attorney, Courtney Angeli. Around $82,000 went to the law firm — much of which was spent on filing fees, deposition costs, and other expenses, Angeli said.

"I still believe it was 'worth it' because employers who mistreat employees make me crazy," she wrote by email. "But it was not a financially lucrative engagement in the slightest."

After five years of litigation, Robillard ended up with about $44,000, less than half his annual salary at Opal before he was fired.


Rob Price is a senior correspondent for Business Insider and writes features and investigations about the technology industry. His Signal number is +1 650-636-6268, and his email is [email protected].

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