On Wednesday, November 30 at 1 p.m. Eastern, Robert Milligan—Seyfarth partner and co-chair of the firm’s Trade Secrets, Computer Fraud & Non-Competes practice—is presenting the “Negotiating Enforceable Noncompetition and Nonsolicitation Agreements: Compliance with State Statutes and Case Law” webinar for Strafford.

The experienced panel will discuss current legislative and case law trends regarding noncompetition and nonsolicitation agreements, provide best practices for structuring enforceable contracts, and explain determining whether existing agreements are lawful. Included in the webinar, will be a discussion on the below topics:

  • What are the recent legislative changes impacting restrictive covenants?
  • What are the current case law decisions affecting noncompete and nonsolicitation agreements?
  • How can employers structure restrictive covenants to comply with new laws and decisions?
  • How can employment counsel analyze existing agreements for compliance?

For more information and to register for the program, visit the Strafford website.

Many restrictive covenant agreements rely on various abbreviations to streamline the contractual language, including most notably the use of “Company” as a stand-in for the employer’s name. Additionally, these agreements often state that they inure to the benefit of the employer’s parent, subsidiaries, and other affiliates. However, a recent case in federal court demonstrates the importance of carefully defining terms to best protect the employer’s legitimate business interests.

Continue Reading “What’s in a Name?” A Shortened Restrictive Covenant Duration, Perhaps

In Seyfarth’s seventh installment of the 2022 Trade Secrets Webinar Series, Seyfarth partners Jeremy Cohen and Kevin Mahoney focused on trade secret and client relationship considerations in the banking and financial services industry.

As a conclusion to this webinar, we compiled a summary of takeaways:

  • When it comes to protecting your secrets, “an ounce of prevention is worth a pound of cure.” Act proactively and consistently in protecting your trade secrets.
  • Create a culture of confidentiality.
  • Make sure newly-hired employees comply with their obligations to former employer as the consequences can be costly.
  • Pay attention to evolving state and federal laws affecting enforceability of restrictive covenants.
  • For financial firms and institutions, it is important to understand the interplay between FINRA and the court system. Although the ultimate decision maker will be a FINRA arbitration panel, firms and institutions can still receive significant benefits from pursuing injunctive remedies in a court of law.
  • If you are thinking about joining the Protocol for Broker Recruiting, be sure to review your existing agreements before doing so in order to understand what protections you may be giving up once you join the Protocol.

You can view the recording and the slide deck on the Seyfarth website.

Seyfarth is sponsoring the American Intellectual Property Law Association (AIPLA) 2022 Trade Secret Summit, which is taking place December 8-9 in Miami, Florida. The AIPLA Trade Secret Summit is one of the preeminent trade secret conferences, with speakers including private practitioners, in-house counsel, government, and academia.

Seyfarth partner Marcus Mintz is presenting the “Damages in Trade Secret Cases” panel. The panel will discuss the engagement of expert witnesses, best practices for working with your expert, and complex problems in the computation of damages in trade secret actions.

Seyfarth associate Alex Meier is presenting the “Recent Innovations in Trade Secret Protection Technologies and Forensics” panel. The panel, which also includes Jim Vaughn from iDiscovery Solutions, will discuss the latest trends and developments in trade secret protection, including forensic preservation considerations, ethereal messaging, and text message collection and presentation.

Find more information and register for the 2022 Trade Secret Summit on the AIPLA website.

We are pleased to announce that our Trading Secrets blog was included as the top blog in FeedSpot’s Top 10 Trade Secrets Blogs. According to FeedSpot, the list was created “from thousands of blogs on the web and ranked by traffic, social media followers, domain authority & freshness.”  FeedSpot listed Robert Milligan, Dawn Mertineit, Alex Meier, Eric Barton, Justin Beyer, James Yu, Jesse Coleman, Owen Wolfe, Kevin Green, Dallin Wilson, Dan Hart, Caitlin Lane, Kate Perrelli, Matt Simmons, Robyn Marsh, and Marcus Mintz as top trade secrets bloggers.

Edited by Robert Milligan and Dawn Mertineit, Seyfarth’s Trading Secrets blog features timely updates on trade secrets, computer fraud, and non-compete laws and trends.

This article was originally published in the Boston Bar Association’s Fall 2022 Boston Bar Journal.

Just over four years ago, the Massachusetts legislature finally passed a bill long in the works addressing non-compete agreements and replacing the Commonwealth’s trade secret misappropriation statute with a version of the Uniform Trade Secrets Act (the “UTSA”), referred to herein as “MUTSA.” See M. G. L. c. 93, § 42-42G. While the Commonwealth’s “new” non-compete law has received the most attention, the adoption of the UTSA was also notable. Even though Massachusetts is the 49th state to adopt the UTSA, MUTSA differs from other states’ versions of the UTSA. This piece will discuss the differences in pre- and post-MUTSA jurisprudence and what issues may be implicated by the law.

Continue Reading The Massachusetts Trade Secrets Act, Four Years On: What to know

Cases don’t try very often. Doubly so in trade secret/non-compete litigation. So many of these disputes get resolved at the injunctive relief phase of the proceeding that, when one goes the distance, it is almost always worth peeking under the hood.

In MWK Recruiting, Inc. v. Jowers, No. 1:18-cv-444-RP (W.D. Tex.), a federal district court judge recently entered a judgment for $3.6 million—before fees and costs—against a former external law firm recruiter. The facts are not complex. A recruiter left his employer and joined a competitor. But before the recruiter left his former employer, he began using his personal email for candidate submissions and allegedly laundered six lateral candidates through the founder of his new employer. His former employer sued him and alleged that he misappropriated trade secrets and breached non-compete and non-solicitation covenants in his employment agreement. At trial, the district judge found in the plaintiff/employer’s favor on both claims and entered a $3.6 million damages award, with about $500,000 awarded under the misappropriation claim and $3 million under the breach of contract claim.

Continue Reading Lessons from a Staffing Misappropriation and Non-Compete Trial

Join us for a Seyfarth & Association of Corporate Counsel Southern California in-person event for in-house counsel!

REGISTER HERE

seyfarth and ACC socal event

Wednesday, November 16, 2022
Registration: 3:00 p.m. to 3:30 p.m.
Program: 3:30 p.m. to 4:30 p.m.
Reception: 4:30 p.m. to 5:30 p.m.

Location
Seyfarth Shaw LLP – Century City
2029 Century Park East, Suite 3500
Los Angeles, CA 90067-3021

About the Program

The pandemic, the normalization of remote work, a multi-generational workforce and “the Great Resignation” has made this one of the most transformative times in the history of work.  Business as usual has been upended, and employers across the board are revisiting strategies for retaining top talent and managing under-performers. Join us for a panel discussion on the nuances of performance management, discipline, and separations while staying true to your corporate culture, mitigating legal risk and avoiding reputational harm. Topics to be discussed include:

  • Best practices for protecting trade secrets and issue-spotting restrictive covenants when on-boarding and off-boarding employees;
  • Performance management do’s and don’ts;
  • Strategies for counseling and disciplining employees; 
  • Appropriately managing terminations and reductions in force; and,
  • Securing the return of company data.

Speakers
Holger Besch, Partner, Seyfarth Shaw LLP
Robert Milligan, Partner, Seyfarth Shaw LLP
Dana Peterson, Partner, Seyfarth Shaw LLP

REGISTER HERE


If you have any questions, please contact Christian Pourreau at cpourreau@seyfarth.com and reference this event.

M&A attorneys representing buyers, and their private equity and strategic clients, have long felt comfortable that the courts would uphold restrictive covenants in an acquisition. Even if the restrictive covenant at hand was perhaps somewhat broader than necessary, buyers and their counsel believed that the courts would judiciously apply their “blue pencil” to reform an overbroad covenant to make it enforceable. They also believed that by picking Delaware law and Delaware courts to hear any dispute, their restrictive covenants would be upheld by a court that has a well-deserved reputation for enforcing contracts.

Continue Reading A Delaware Surprise: Busting the Limits of Enforceability of Non-Competes in an M&A Transaction under Delaware Law

The California Lawyers Association 2022 IP Institute is taking place November 3-5, in Dana Point, California. Seyfarth is a silver sponsor for the conference, and Seyfarth attorneys Robert Milligan, Puya Partow-Navid, Joshua Salinas, and Sierra Chinn-Liu are attending.

Joshua Salinas—Seyfarth associate and member of the firm’s Trade Secrets, Computer Fraud & Non-Competes practice—is leading a discussion during the Lunch with Table Topics on Friday, November 4. His discussion will be focused on the latest trends in protecting trade secrets.

Robert Milligan—Seyfarth partner and co-chair of the firm’s Trade Secrets, Computer Fraud & Non-Competes practice—is presenting the “Latest Developments in Trade Secrets Litigation and Protection” session at the California Lawyers Association 2022 IP Institute on Friday, November 4, in Dana Point, California. For this panel, an experienced group of trade secret attorneys, who recently co-edited and co-authored the Trade Secret Litigation and Protection: A Practical Guide to the DTSA and CUTSA treatise, will lead the audience through a thorough discussion of the latest developments and trends in trade secrets litigation and protection. The discussion will cover updated pleading standards, tailoring requests for injunctive relief, sufficiency of trade secret identification statements, damages, effectively using forensic evidence, trade secret protection plans, and NDAs and other restrictive covenant agreements.

Find more information and register to attend the 2022 IP Institute on the California Lawyers Association website. And if you’re attending, stop by the Seyfarth table to meet our team.