A. Criminal penalties
General Laws chapter 266, section 30(4) provides that "[w]hoever steals, or with intent to defraud obtains by a false pretense, or whoever unlawfully, and with intent to steal or embezzle, converts, secretes, unlawfully takes, carries away, conceals or copies with intent to convert any trade secret of another, regardless of value, whether such trade secret is or is not in his possession at the time of such conversion or secreting, shall be guilty of larceny…."
A person convicted of violating this statute can be punished by imprisonment for not more than five years or a fine of not more than twenty-five thousand dollars and imprisonment for not more than two years.
Although this statute provides for severe penalties for the theft of trade secrets, it does not appear to be widely used in comparison to the number of civil case involving allegations concerning misuse of trade secrets. The reasons for the relative lack of use of this statue may include: the higher standards required to obtain a criminal conviction as opposed to a civil judgment; the length of time involved in the criminal process; and the reluctance of businesses and prosecutors to utilize the criminal system for what appear to be civil business disputes.
The criminal process may be a useful route in situations where there is a theft or embezzlement in the traditional sense, such as when a third person literally steals or obtains by false pretence secret information of a company and the civil process may not provide a sufficient deterrent or remedy.
A corporation that decides to seek criminal redress should be careful to ensure that it has a solid case. Furthermore, counsel for the corporation in such a situation must take particular care not to violate Disciplinary Rule 3.4(h), which states that a lawyer shall not "present, participate in presenting, or threaten to present criminal or disciplinary charges solely to obtain an advantage in a private civil matter…."
