Trade Secrets: The Last Minute Asset in an M&A Transaction

In an article published in the September 2015 issue of the ACC Docket, Lori-Ann Johnson and Barry D. Biddle, assistant general counsel and chief intellectual property counsel at Graphic Packaging International, Inc., provide guidance on trade secrets and how they factor into an M&A transaction. Johnson and Biddle detail the importance of confidential information, and whether it is considered a trade secret or just proprietary information, including a flow chart to help in determining this. The article also explains how to value a trade secret when considering an M&A transaction, as well as the considerations to keep in mind regarding personnel and who is privy to a trade secret. In conclusion, Johnson and Biddle explain, “Trade secret misappropriation is estimated to be as high as one to three percent of U.S. gross domestic product. An early understanding of the key players, the buyer’s intended use of the trade secrets, and the policies and positions regarding the trade secrets is fundamental to structuring the correct questions to undertake a thorough and informative due diligence process.”