Peloton has come out on top of the litigation leaderboard yet again. As we previously blogged about here, Peloton is no stranger to trade secret litigation. Peloton recently won dismissal of a “mirror image” declaratory judgment counterclaim asserted against it by rival ICON Health (“ICON”) in a Defend Trade Secrets Act (“DTSA”) matter pending in the United States District Court for the District of Delaware.
Continue Reading Mirroring Peloton Won’t Result in Victory

As changes in restrictive covenants laws sweep the nation, Nevada is one of the latest jurisdictions to update its non-compete statute. Last month, the state legislature amended the Nevada Unfair Trade Practices Act to add new requirements for enforceability of non-competes.

The amendment makes the following changes in Nevada law:
Continue Reading Nevada Amends Non-Compete Statute Protecting Low-Wage Workers and Imposing Award of Attorneys’ Fees for Certain Violations

Next Thursday, June 24, at 12:00 a.m. Eastern/9:00 a.m. Pacific, Seyfarth partner Dawn Mertineit will present a live webcast discussing Lex Machina’s Trade Secret Litigation Report for 2021. Dawn will join Morgan Lewis’s Seth Gerber and one of Lex Machina’s legal content associates and co-author of the report, Gloria Huang, to discuss the key trends in the report, including the
Continue Reading Dawn Mertineit to Present Lex Machina’s 2021 Trade Secret Litigation Report

With unemployment levels reaching a new high during the global pandemic, courts across the country have become increasingly reluctant to enforce non-compete agreements in employment contracts. As an example, a recent district court case, Robert Garcia v. USA Industries, Inc., demonstrates what may be a shift in Texas’ formerly lenient approach to non-competes. There, the court granted the plaintiff’s request for a temporary restraining order against the non-compete clause in his severance agreement, finding not only that there was inadequate consideration to enforce the non-compete provision, but that the provision itself was unreasonable. While this is only one case, in light of this shift in the interpretation of non-compete agreements as reflected in this decision, companies should ensure that their non-competes are reasonable as to scope and time, supported by adequate consideration, and narrowly tailored to protect the company’s legitimate business interests so as to increase the chances of the agreement being upheld. This will only become more important as more and more states pass restrictive covenants legislation limiting what is permissible.
Continue Reading Texas Decision Highlights Concerns Regarding Limiting Enforceability of Non-Compete Agreements During COVID-19 Pandemic

The 2021 edition of The Legal 500 United States recommends Seyfarth Shaw’s Trade Secrets group as one of the best in the country. Nationally, for the sixth consecutive year, our Trade Secrets practice earned Top Tier.

Based on feedback from corporate counsel, Seyfarth partners Michael Wexler, Robert Milligan, and Kate Perrelli are ranked in the editorial’s “Leading Lawyers,” Joshua Salinas
Continue Reading Seyfarth’s Trade Secrets Group Earns Top Tier Ranking from Legal 500 for Sixth Consecutive Year

This coming Wednesday, June 9, 2021, Seyfarth partners Kate Perrelli and Dawn Mertineit will participate in panel discussions at the Boston Bar Association’s 2021 Virtual Trade Secrets & Restrictive Covenants Conference. At 9:00 AM Eastern, Dawn will be a panelist in the session regarding “The Implications of the Massachusetts Noncompetition Agreement Act and Other State and Federal Legislative Developments,” along
Continue Reading Kate Perrelli and Dawn Mertineit to Present at the Boston Bar Association’s Virtual Trade Secrets & Restrictive Covenants Conference

In a long-awaited decision, the Supreme Court resolved a circuit split about whether an individual with access to a computer system violates the Computer Fraud and Abuse Act (“CFAA”) by accessing information for an improper purpose. By a 6-3 decision authored by Justice Barrett, the Court held that an individual does not “exceed authorized access” within the meaning of the CFAA by misusing access to obtain information that is otherwise available to that person. While the case heard by the high court was a criminal case involving a former law enforcement officer’s criminal conviction, the decision nonetheless has broad ramifications for trade secrets and restrictive covenant litigation, as CFAA claims were often brought against employees who misused access rights to misappropriate information. The CFAA is a criminal statute that also provides a civil remedy, and CFAA claims were commonly raised to acquire federal subject matter jurisdiction, especially prior to the enactment of the Defend Trade Secrets Act in 2016, which provided an independent private cause of action in federal court for trade secret misappropriation.
Continue Reading Supreme Court Resolves Circuit Split on Access Under Computer Fraud and Abuse Act

For the fourth time in six years, Oregon is in the news again for an update to its non-compete laws.

Prior Oregon Law

Oregon last updated its non-compete laws just two years ago, with a statute that requires employers to provide terminated employees with a signed, written copy of their non-compete within 30 days of termination. That new obligation was in addition to other Oregon-specific requirements, including:

  1. Similar to Massachusetts’ 2018 law, the employer must inform the employee that a non-compete is a condition of employment in a written employment offer received at least two weeks before the employee’s first day, or the agreement must entered into upon a “bona fide” promotion;
  2. The employee must be engaged in administrative, executive, or professional work and must (a) perform predominantly intellectual, managerial or creative tasks, (b) exercise discretion and independent judgment, and (c) be salaried;
  3. The employee’s gross annual salary and commissions at the time of termination exceeds the median family income for a four-person family; and
  4. The duration of non-compete duration could not exceed 18 months.


Continue Reading Oregon Blazes a Trail of Non-Compete Amendments

As we have previously blogged about, in 2016 the Nevada Supreme Court refused to adopt the “blue pencil” doctrine and held that Nevada courts could not modify over-broad restrictive covenants. The following year, we alerted readers that the Nevada legislature amended Nevada Revised Statute 613, governing non-competition agreements. Among other things, the amendment granted courts the authority to “blue-pencil” non-competition agreements, overturning the Nevada Supreme Court’s 2016 decision in Golden Road Motor Inn, Inc. v. Islam.
Continue Reading The Silver State Grips the Blue Pencil

We want to share some exciting news with our blog followers. Dawn Mertineit, Seyfarth partner and member of the firm’s Trade Secrets, Computer Fraud & Non-Competes group, is co-editor of our Trading Secrets blog. She joins Robert Milligan, Trading Secrets editor, Seyfarth partner, and co-chair of the Trade Secrets, Computer Fraud & Non-Compete group. We’re thrilled to have Dawn’s
Continue Reading Dawn Mertineit Named Co-Editor of Trading Secrets Blog