This is a first for this attorney – learning that the government had charged a man for WIRE FRAUD in connection with his apparently trumping up a fake employment agreement to show his former employer such that they wouldn’t become suspicious that he would be violating his noncompete in China. This so story is so weird that for the first time in my blogging life I am telling you – take this story with a grain of salt until I find out more about what’s going on here.
Newsroom America is reporting that Tung Pham, 48, has pleaded guilty to seven counts of an indictment that charged him with wire fraud and theft of solar technology trade secrets. Mr. Pham pled guilty to the wire fraud charges and agreed that when calculating his sentence, the court could consider the theft of trade secret charges.
Mr Pham worked as a research scientist in the solar technology field. The wire fraud charges involved an attempt by Mr. Pham to escape a non-compete clause in his employment contract that prevented him from working for any competitor for a period of one year. Prosecutors said Mr. Pham signed an agreement with a Chinese startup to work in the same job field in which he was already employed and attempted to conceal his violation by creating a fake employment contract. But apparently that’s not the agreement he showed to his employer.
The wire fraud charges involved his efforts to create a fake employment contract that he could show to his employer to get out of the non-compete agreement. The theft of trade secret charges involved his taking the product formulas for existing, successful solar technology products from his employer. At the time that the FBI executed a search warrant on Mr. Pham’s home and found the trade secrets, he was planning to leave a few days later for China to start working for his new employer.
EDITOR’S NOTE: There are two things fascinating about this report, at least to me. First, the government catches this guy with the solar technology in his possession after he left and just before he’s going to China – and the major charge is wire fraud? Second, the news report says he faces 140 years in prison. Can that be correct? I need to read up on wire fraud. Top sentence for this guy as a trade secret theft matter is ten years. What attorney was advising this guy to plead to a charge that could get him over 100 years? I guess I should say, third: it’s jaw-dropping to learn that the DOJ walks away from a number solid trade secret theft cases and in this one they threaten to prosecute the internet transmission of a fake employment agreement and convince this guy to plead to wire fraud but the clear trade secret theft becomes window dressing to the wire fraud claim. Wow.
About Todd Sullivan
Todd has a niche practice focusing on employee departures and defections, including the litigation of injunctions and trials in cases involving noncompete and nonsolicitation covenants, trade secret misappropriation, allegations of unfair competition, duty of loyalty breaches, inevitable disclosure, and employee raiding. His clients are companies and key employees who seek his advice regarding the retention and separation process; he routinely drafts, reviews, and negotiates employment retention and separation agreements. As lead counsel, Todd has litigated more than 100 employee defection matters in federal and state trial and appellate courts and has arbitrated others throughout the United States. His clients span every industry sector — banking, insurance, biotechnology, manufacturing, life sciences, computer services, computer software, personnel placement, securities brokerage, advertising, radio and television broadcasting, legal medical and architectural professional services, government contracting, and even NASCAR. Todd recently served as lead defense counsel in one of the most significant broker defection cases ever tried before FINRA and also as lead plaintiff’s counsel in the largest-ever case of trade secrets theft in North Carolina.