Michael J. Bettinger

Bettinger heads Sidley Austin’s West Coast intellectual property litigation practice. In September 2019 his team settled on the eve of trial two cases for which they had recently been retained involving dueling claims over property management software for real estate professionals.

“We had to get up to speed in a hurry for those cases,” Bettinger said. “It comes with the turf.”

The issues included trade secrets, copyright infringement, antitrust and breach of contract. Yardi Systems Inc. v. Property Solutions International, 13-cv-07764 (C.D. Cal., filed Oct. 21, 2013); Entrata Inc. [formerly Property Solutions International] v. Yardi Systems Inc., 15-cv-00102 (D. Utah, filed Feb. 12, 2015).

Trade secret cases are different from most IP disputes.

“In trade secrets, there’s good and bad, right and wrong,” Bettinger said. “Patent cases, with the Markman process and all, are mostly a legal exercise. With trade secrets you get a moral narrative: ‘I’ve got code and you took it.’”

Trade secrets cases often require detective skills. “There’s a cat and mouse, cops and robbers aspect to the forensics,” Bettinger said. “We try to make stories out of the patent cases, but it’s a lot harder.”

Last year he represented The RealReal Inc., a San Francisco-based online luxury goods consignor, in its trade secrets misappropriation claims against French competitor Vestiaire Collective USA Inc. The case turned on a former RealReal employee’s downloads of proprietary RealReal information to a personal computer prior to exiting the company to join Vestiaire. From a review of computer records, Bettinger said he and his team were able to identify the improper downloads and establish that the proprietary material was used to compete directly with The RealReal.

With a key hearing approaching, Bettinger confronted opposing counsel and Vestiaire officials with the evidence. “I laid out the forensics. We had the goods we needed for the hearing, so we had the leverage—and it wasn’t good for them. You knew they couldn’t deny it. I found it fun, almost like being a prosecutor,” Bettinger said.

Vestiaire agreed to return the proprietary information and reimburse The RealReal for a portion of its attorney fees. Following the settlement, the case was dismissed in May 2018. The RealReal Inc. v. Vestiaire Collective USA Inc., 2:2017cv09293 (C.D. Ca., filed Dec. 29, 2017).

“When they saw that the hearing was coming and I was going to be able to lay all this out in court, the dollars flew our way, Bettinger said. “The timing worked for us.”

— John Roemer