Unprotected and Unpersuaded: The FCC’s Flawed Merger Review Procedures

By: Trey O’Callaghan

In CBS Corporation v. FCC, the D.C. Circuit struck down the Federal Communication Commission’s rules for protecting confidential information that it collects during certain merger proceedings. In response, the Commission released a new order, pursuant to the Charter, Time Warner, and Bright House merger proceeding, for protecting confidential information. This iBrief analyzes the policy and legal implications of the Order, arguing that the Order is unlawful because it violates the Trade Secrets Act and notice-and-comment rulemaking requirements.

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Cite: 15 Duke L. & Tech. Rev. 39

What’s It Worth to Keep a Secret?

By: Gavin C. Reid, Nicola Searle, Saurabh Vishnubhakat

This article is the first major study of protection and valuation of trade secrets under federal criminal law. Trade secrecy is more important than ever as an economic complement and substitute for other intellectual property protections, particularly patents. Accordingly, U.S. public policy correctly places a growing emphasis on characterizing the scope of trade secrets, creating incentives for their productive use, and imposing penalties for their theft. Yet amid this complex ecosystem of legal doctrine, economic policy, commercial strategy, and enforcement, there is little research or consensus on how to assign value to trade secrets. One reason for this gap is that intangible assets in general are notoriously difficult to value, and trade secrecy by its opaque nature is ill-suited to the market-signaling mechanisms that offer at least some traction in other forms of valuation. Another reason is that criminal trade secret law is relatively young, and the usual corrective approaches to valuation in civil trade secrecy are not synonymous with the greater distributive concerns of criminal law. To begin to fill this gap, we examine over a decade of trade secret protection and valuation under the U.S.