As many of our blog readers will know, the enforceability of restrictive covenants often depends on which state’s law applies to the dispute. For example, California is well known for refusing to enforce employee non-competition agreements and, recently, refusing to honor forum selection clauses in agreements with California employees without the employee first receiving legal advice. In contrast, with limited exceptions, most other states will generally enforce restrictive covenants. Consequently, for employers, controlling and choosing the correct law to apply to its restrictive covenant agreements can be critical to protection of its business interests.
Continue Reading 6th Circuit Bolsters Employer’s Right to Contract for Chosen Law
No Good Deed Goes Unpunished: Return to Work May Mean Reduced Protections for Trade Secrets and Customer Goodwill
Tens of millions of employees have been laid off or furloughed as a result of the COVID-19 pandemic. Now that the reopening process has begun in most states, many of those employees are being rehired and reactivated. For the month of May 2020, the unemployment rate actually started to decline after the massive increase over the prior few months, as businesses began the return to normal and employers who obtained relief from the Paycheck Protection Program (PPP) under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) restored their workforces to pre-pandemic levels in order to secure loan forgiveness.
One thing that employers may not be considering when they rehire laid off or furloughed employees is what impact this has on prior restrictive covenant agreements with those employees. We previously discussed whether non-competes are enforceable against employees who are laid off. But what about employees who are laid off and then rehired, or furloughed and then reactivated? Are restrictive covenant agreements signed by employees prior to the layoffs or furloughs still enforceable if they ultimately leave and join a competitor down the road? The answer depends on whether the employee was technically, even if temporarily, laid off rather than furloughed, and what state’s law applies.
Continue Reading No Good Deed Goes Unpunished: Return to Work May Mean Reduced Protections for Trade Secrets and Customer Goodwill
Courts Across the Country Continue to Address Trade Secrets Issues
The “return to normal” in courts across the country has brought with it a flurry of trade secrets decisions that address some interesting and instructive issues, both procedurally and substantively. In the last ten days alone, courts in Illinois, Massachusetts, and Texas have weighed in on issues such as the specificity necessary to assert a viable trade secrets claim, the enforceability of a restrictive covenant against an employee who is laid off temporarily but quickly finds a new role and is rehired by the same organization, and the validity of a $700,000,000 jury verdict that was based on a jury question that combined multiple theories of liability. Let’s take a look:
Continue Reading Courts Across the Country Continue to Address Trade Secrets Issues
Preventing the “Face” of Your Company from Doing an About-Face for a Competitor
We previously wrote about whether Peloton instructors are (or should be) subject to non-compete agreements owing to their prominent role as the “face” of the company. Today, we take a look at another “face” of Peloton (and other companies), as we consider the use of restrictive covenants for paid corporate spokespeople, such as actors who appear in company ads and “influencers” who use their social media popularity to promote products.
Continue Reading Preventing the “Face” of Your Company from Doing an About-Face for a Competitor
Erik Weibust, Jeremy Cohen, Marcus Mintz, and J. Scott Humphrey Published in Intellectual Property & Technology Law Journal
Seyfarth partners Erik Weibust, Jeremy Cohen, Scott Humphrey, and Marcus Mintz recently published an article entitled “Protecting Trade Secrets Without Breaking the Bank (or Even Negatively Affecting Profits)” in the Intellectual Property & Technology Law Journal. The article addresses the use of litigation funding in trade secret cases.
The Intellectual Property & Technology Law Journal helps intellectual property professionals
Continue Reading Erik Weibust, Jeremy Cohen, Marcus Mintz, and J. Scott Humphrey Published in Intellectual Property & Technology Law Journal
Jeremy Cohen, Marcus Mintz, and Erik Weibust Published in Corporate Compliance Insights
Seyfarth Partners Jeremy Cohen, Marcus Mintz, and Erik Weibust have published an article entitled “Navigating and Weathering the COVID-19 Storm with Your Trade Secrets Intact” in Corporate Compliance Insights. The article addresses several of the topics they have been blogging about over the past two months, including what constitutes “reasonable measures” to protect trade secrets with a
Continue Reading Jeremy Cohen, Marcus Mintz, and Erik Weibust Published in Corporate Compliance Insights
Avoid Spinning Your Wheels: Peloton as a Case Study in the Protection of Customer Goodwill
As the global economy falters, a fortunate few companies have seen tremendous growth as a result of the COVID-19 crisis. Among the companies benefitting from the shelter-in-place orders currently in effect is Peloton Interactive, Inc. (“Peloton”), which manufactures and distributes home exercise equipment capable of streaming live and pre-recorded classes. Since Peloton’s IPO in late 2019, its shares have jumped over 50%, largely based on its outstanding second quarter results. As people have been shut-out of their gyms, they are frequently turning to alternatives, including Peloton, to stay active (and sane). In full disclosure, that includes the authors of this article and many of our colleagues.
Continue Reading Avoid Spinning Your Wheels: Peloton as a Case Study in the Protection of Customer Goodwill
FBI and CISA Issue Joint Warning to Academic Institutions and Research Organizations About Targeting of COVID-19 Research
On May 13, 2020, the Federal Bureau of Investigation (FBI) and the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA) issued a joint Public Service Announcement (PSA) about a threat to academic institutions and business entities engaged in COVID-19-related research and development entitled People’s Republic of China (PRC) Targeting of COVID-19 Research Organizations.
Continue Reading FBI and CISA Issue Joint Warning to Academic Institutions and Research Organizations About Targeting of COVID-19 Research
Normalizing the Abnormal—Protecting Trade Secrets in a Post-COVID-19 World
On April 16, 2020, the White House issued its “Guidelines for Opening Up America Again,” and several states have begun a slow process of emerging from the shutdown. But even the most optimistic scenarios are fraught with uncertainty. Nobody can predict when the economy will fully reopen, or what that even means in the post-COVID-19 business world. Will increased remote work become the “new normal”? Will business meetings, pitches, and conferences, continue to take place by videoconference or other remote means? What about investigations, depositions, mediations, and court proceedings? And how long will all of that last? We also do not know when the next pandemic will strike, or even if COVID-19 will rear its ugly head again in the near future.
Continue Reading Normalizing the Abnormal—Protecting Trade Secrets in a Post-COVID-19 World
Upcoming Webinar! Weathering the COVID-19 Storm With Your Trade Secrets and Customer Goodwill Intact
On Thursday, April 23 at 12 p.m. Central, Seyfarth attorneys Erik Weibust, Marcus Mintz, and Jeremy Cohen are presenting Weathering the COVID-19 Storm With Your Trade Secrets and Customer Goodwill Intact, a webinar is Seyfarth’s Responding to the COVID-19 Pandemic Webinar Series.
COVID-19 has changed the way most companies are currently doing business, from requiring remote work, to using new
Continue Reading Upcoming Webinar! Weathering the COVID-19 Storm With Your Trade Secrets and Customer Goodwill Intact