On June 10, 2020, at 2:00 p.m. Eastern, Erik Weibust and Michael Kippins will be presenting a free webinar for the Boston Bar Association entitled “Protecting Trade Secrets in the Face of Remote Workforces, New Technology, and Laid Off Employees.”.

As a result of the COVID-19 pandemic and in response to what many are calling

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

The Department of Justice recently announced that it had charged one of the largest independent oncology groups in the country, Florida Cancer Specialists & Research Institute LLC (“FCS”), with antitrust violations under the Sherman Act, an incredibly rare antitrust action against a health care provider and the first in 25 years. The DOJ’s investigation into criminal antitrust violations amongst oncology providers has led to the defendant’s agreement to pay a whopping $100M fine in exchange for the DOJ’s agreement to defer prosecution on the antitrust charges until 2023.
Continue Reading First, Do No Harm: Oncology Group Agrees to $100M Fine Following Criminal Antitrust Investigation

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

Late last spring we reported on the second published decision out of the District of Massachusetts citing the Massachusetts Noncompetition Agreement Act (“MNCA”), NuVasive, Inc. v. Day. On April 8, 2020, the First Circuit issued a decision on the defendant’s appeal, upholding the lower court’s ruling. While the First Circuit’s decision does not directly analyze an agreement that is subject to the MNCA, it is still instructive for out-of-state employers with personnel who may be subject to that law.
Continue Reading The First Circuit Weighs in on the Applicability of Massachusetts’ Non-Compete Law

On April 13, 2020, the Department of Justice’s Antitrust Division and the Federal Trade Commission’s Bureau of Competition released a joint statement and press release regarding “competition in labor markets” and potential agency actions in the face of the COVID-19 crisis. While the agencies’ joint statement appears to be focused on collusion between employers entering into horizontal “no-hire” or “no-poach” agreements, employers in certain industries affected by the crisis should also exercise reasonable care in enforcing vertical restrictive covenants, including non-competition and non-solicitation agreements.
Continue Reading The DOJ and FTC Issue Joint Statement on Competition in Labor Markets in Light of COVID-19: What Effect, If Any, Does This Have on Non-Competes?

As we recently reported, Virginia recently joined Maine, Maryland, Massachusetts, New Hampshire, and Washington in passing a new law restricting the use of non-competes against low-wage earners (DC legislators made a similar attempt last year, but there has been no movement on those efforts). Now, Indiana has joined the growing number of states that have recently enacted legislation to restrict the permissible scope of non-compete agreements, although Indiana’s new non-compete law ignores the low-wage issue and instead focuses on a particular occupation: physicians.
Continue Reading A Check-Up on Non-Competes: Indiana Legislature Passes Law to Facilitate Physician Mobility

Legislators in the Commonwealth of Virginia, the site of Patrick Henry’s infamous “Give me liberty, or give me death” speech, have enacted legislation that gives more liberty to low-wage workers looking to leave for greener pastures, joining the ranks of many other states that have passed similar restrictions (stay tuned for a post soon on Indiana’s own recently passed non-compete legislation application to physicians). While the new law was passed quietly, it’s not particularly surprising that the Commonwealth sought to join the trend of restricting non-competes for low earners (see for example similar efforts in DC, Maryland, Maine, New Hampshire, Washington, and Massachusetts)—especially in light of the COVID-19 pandemic that is sending unemployment rates soaring.
Continue Reading “Give Me Liberty”: Virginia Legislature Passes Law to Exempt Low-Wage Workers from Employment Restrictions

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

One of the first things a company should do when it suspects that its trade secrets have been compromised or that an employee has violated post-employment restrictive covenants is to conduct an investigation. Doing so will identify and ensure preservation of evidence supporting any claims, and is critical to the ability to demonstrate the need for emergency injunctive relief, especially at a time when courts are taking a rigorous approach to what constitutes a “litigation emergency.” Conducting a prompt investigation also helps to avoid any potential defenses of delay, bad faith, or a failure to investigate.
Continue Reading Conducting Trade Secret and Restrictive Covenant Investigations Remotely