The Washington PostDemocracy Dies in Darkness

Criminal prosecutors to drop trade secret charges against former Fitbit employees

The former FitBit employees were accused of stealing trade secrets from their former employer.

Fitbit Charge 3 fitness trackers with sport bands are displayed in New York. (AP Photo/Richard Drew, File)

San Francisco — Prosecutors in Northern California plan to drop charges against several former FitBit employees accused of receiving stolen trade secrets from their former employer, according to a person familiar with the matter, raising new questions about how fiercely law enforcement will continue to prosecute tech industry employees for alleged theft of trade secrets.

Prosecutors charged six former Jawbone employees nearly two years ago for allegedly absconding with confidential documents when they left the company for rival Fitbit. Jawbone, which had sued Fitbit over the allegations, has since filed for bankruptcy and ceased operations. Fitbit agreed to be acquired by search engine giant Google in November for $2.1 billion.

Jawbone launched its first fitness bracelet in 2011, while rival Fitbit came out with its first version in 2013. The two companies’ products competed head-to-head, but Fitbit was able to win a larger share of the market, parlaying the success into a successful initial public offering in 2015. Jawbone accused Fitbit that same year of stealing its intellectual property and violating its patents, charges Fitbit vehemently denied. Jawbone filed for bankruptcy in 2017 and the case settled.

Google to acquire Fitbit

Federal prosecutors brought criminal charges against the former Jawbone employees the following year. The evidence against the employees centered around Jawbone company documents that had been housed on their personal computers.

In a statement, attorneys Miles Ehrlich and Amy Craig, who represent defendant Patrick Narron, said they were grateful prosecutors “finally ended this injustice." Narron and his colleagues “suffered through a five-year nightmare,” the statement said, set off by Jawbone’s initial civil litigation. “Before launching a criminal case against anyone, the government must make absolutely certain that it isn’t being manipulated into doing one tech company’s bidding against a competitor.”

Last week, a federal jury acquitted Katherine Mogal, one of the six former Jawbone employees charged in the trade secrets cases, handing prosecutors a rare and resounding defeat. Prosecutors also quietly dropped charges against one other employee charged in the prosecutions. “These charges should never have been brought,” said Orrick partner Melinda Haag, who defended Mogal and once served as U.S. Attorney in the Northern District of California. “We are gratified that the outcome caused the U.S. Attorney’s office to re-examine its case and do the right thing," she said in a written statement.

The case has some similarities to the prosecution of Anthony Levandowski, the former Google employee who left the company to start an autonomous trucking company called Otto. When Otto was acquired by Uber, Levandowski’s former employer sued the ride hailing company for alleged theft of trade secrets. That lawsuit settled out of court in February 2018. But prosecutors in the Northern district brought criminal charges against Levandowski in August of last year, accusing him of taking confidential information from Google. If the case goes to trial, he could face ten years in prison.

Cases brought against employees like Aleynikov and Levandowski have been controversial, in part because the nature of the modern workplace often necessitates the transfer of company information to personal computing devices like iPads and home computers during the normal course of work. When an employee leaves, it’s difficult to determine whether that employee purposely stole information or simply possessed it.

Google allowed Levandowski, for instance, to work on a personal start-up while also working on Google’s top-secret self-driving car division.

Former Google self-driving engineer, who prompted a lawsuit against Uber, gets hit with criminal charges

Silicon Valley has a rich tradition of employees leaving large companies to start smaller ones, often in competition with their former employers. That tradition goes back at least as far as the 1950s, when the “traitorous eight” left Shockley Semiconductor to form Fairchild Semiconductor, fueling an explosion of innovation and new companies, such as Intel and Advanced Micro Devices.

California law prohibits the enforcement of “non compete” clauses in employment contracts. In other states, those clauses prevent employees from leaving and creating start-ups. While the inability to enforce non competes is at times an annoyance to large employers in California, the law has helped spur growth in the innovation economy.

The former Fitbit employees and Levandowski were charged under the Economic Espionage Act, passed by Congress in 1996 in part to combat state-sponsored industrial espionage. While the law has been used to help curb countries like China from stealing secrets from U.S. companies, it has also been used to punish employees who leave one U.S. company for another, allegedly taking proprietary information with them.

One of the most famous cases was the prosecution of Sergey Aleynikov, a Goldman Sachs employee sentenced in 2011 to eight years in federal prison for taking computer code to a high frequency trading start-up. Aleynikov’s conviction was overturned on appeal.

Attorneys Ed Swanson and August Gugelmann, who represented former Fitbit employee Ana Rosario, said in a statement that their client sat down with Jawbone’s head of information technology before leaving the company for Fitbit to review her electronic devices and “remove anything Jawbone didn’t want her to have.” Despite that, she was prosecuted, they said, for “stealing documents Jawbone let her keep and documents she didn’t even have.”

In a separate statement, attorneys Angela Machala, David Scheper and Peggy Dayton, said their client, Patricio Romano, can get on with his life now that the charges have been dropped. “The government didn’t have a weak case; it had no case,” the wrote.