shutterstock_345999860Throughout 2015, Seyfarth Shaw’s dedicated Trade Secrets, Computer Fraud & Non-Competes Practice Group hosted a series of CLE webinars that addressed significant issues facing clients today in this important and ever-changing area of law. The series consisted of nine webinars:

  1. 2014 National Year in Review: What You Need to Know About the Recent Cases/Developments in Trade Secrets, Non-Compete and Computer Fraud Law
  2. Protecting Confidential Information and Client Relationships in the Financial Services Industry
  3. International Trade Secrets and Non-Compete Law Update
  4. Employee Social Networking: Protecting Your Trade Secrets in Social Media
  5. How and Why California is Different When It Comes to Trade Secrets and Non-Competes
  6. State Specific Non-Compete Oddities Employers Should Be Aware Of
  7. So You Want An Injunction in A Non-Compete or Trade Secret Case?
  8. Social Media Privacy Legislation Update
  9. Enforcing Non-Compete Provisions in Franchise Agreements

As a conclusion to this well-received 2015 webinar series, we compiled a list of key takeaway points for each program, which are listed below. For those clients who missed any of the programs in this year’s series, the webinars are available on CD upon request, or you may click on the title below each webinar for the online recording. We are pleased to announce that Seyfarth will continue its trade secrets webinar programming in 2016, and we will release the 2016 trade secrets webinar series topics in the coming weeks.

2014 National Year in Review: What You Need to Know About the Recent Cases/Developments in Trade Secrets, Non-Compete and Computer Fraud Law

The first webinar of the year, led by Michael Wexler, Robert Milligan and Daniel Hart, reviewed noteworthy cases and other legal developments from across the nation in the areas of trade secret and data theft, non-compete enforceability, computer fraud, and the interplay between restrictive covenant agreements and social media activity, and provided predictions for what to watch for in 2015.

  • As demonstrated by high-profile hacking attacks and criminal prosecutions for trade secrets theft, companies’ trade secrets are at greater risk today than ever before. To mitigate the risk of trade secrets theft, companies should review their security procedures, policies on IT resources and email usage, and employee exit interview/termination processes to ensure that the company’s assets are adequately protected.
  • Use of social media continues to generate disputes. As more and more states adopt social media privacy laws, companies increasingly seek to assert an ownership interest in work-related social media accounts. Additionally, as the NLRB cracks down on social media policies that prohibited employees from engaging in protected activities, employers should periodically review their policies regarding use of social media in the workplace.
  • Courts and regulatory agencies continue to scrutinize non-competes and other restrictive covenants.  In light of these and other continuing developments in non-compete law, employers should periodically review their existing agreements and on-boarding procedures to maximize the likelihood that their agreements will be upheld. To learn more, please see our 50 State Non-Compete and Trade Secrets Desktop Reference.

Protecting Confidential Information and Client Relationships in the Financial Services Industry

The second installment, led by Scott Humphrey, Jason Stiehl and James Yu, focused on trade secret and client relationship considerations in the banking and finance industry, with a particular focus on a firm’s relationship with its FINRA members.

  • Enforcement of restrictive covenants and confidentiality obligations for FINRA and non-FINRA members are different. Although FINRA allows a former employer to initially file an injunction action before both the Court and FINRA, FINRA—not the Court—will ultimately decide whether to enter a permanent injunction and/or whether the former employer is entitled to damages as a result of the former employee’s illegal conduct.
  • Address restrictive covenant enforcement and trade secret protection before a crisis situation arises. An early understanding of the viability of your company’s restrictive covenants and the steps your company has taken to ensure that its confidential information remains confidential will allow your company to successfully and swiftly evaluate its legal options when a crisis arises.
  • Understand the Protocol for Broker Recruiting’s impact on your restrictive covenant and confidentially requirements. The Protocol significantly limits the use of restrictive covenants and allows departing brokers to take client and account information with them to their new firm.

International Trade Secret and Non-Compete Law Update

In the third installment, attorneys Wan Li, Ming Henderson and Daniel Hart focused on non-compete and trade secret considerations from an international perspective. Specifically, the webinar involved a discussion of non-compete and trade secret issues in Europe and China as compared to the United States. This webinar provided valuable insight for companies who compete in the global economy and must navigate the legal landscape in these countries to ensure protection of their trade secrets and confidential information, including the effective use of non-compete and non-disclosure agreements.

International…Local Law Compliance is Key

  • One size does not fit all! Requirements for enforceable restrictive covenants vary dramatically from jurisdiction to jurisdiction. However, there are some common requirements and issues regarding enforceability based on the region (e.g., in Europe; see below). Bearing in mind non-compete covenants across the world may be unlawful in certain countries or heavily restricted, employers should carefully tailor agreements to satisfy local legal requirements and appropriately apply local drafting nuances to aid enforceability of any restrictive covenants.
  • The general approach to restrictive covenants in Europe is that the restrictions should not go further than is reasonably necessary to protect the employer’s legitimate business interests. This restrictive approach is a continuing trend across Europe. For example, there is a recent prohibition in the Netherlands on non-compete clauses in fixed-term contracts unless justified by the special interests of the company. In practice, this means that employers should particularly focus on the duration and scope (in terms of geographical coverage and the employee’s own personal activities) of the restrictions and be mindful of any local payment obligations when preparing restrictive covenants (e.g., in France and in Germany). Europe is also making an attempt to remedy the uneven levels of protection and remedies in relation to trade secrets. The draft EU Directive for trade secret protection is currently making its way through the legislative process with no firm timeline for adoption.
  • In addition to local or regional nuances, employers should take advantage of other contractual and/or tactical mechanisms as a “belt-and braces” approach, such as claw-backs and forfeiture of deferred compensation (where permitted), use of garden leave provisions, and strategic use of forum selection and choice-of-law provisions. Employers operating in the U.S. should also consider strategic use of mandatory forum selection and choice-of-law provisions in restrictive covenant agreements with U.S.-based employees.
  • Practical measures should also be taken to protect confidential information and trade secrets, including limiting access to sensitive information, using exit interviews, and (provided that applicable privacy laws are followed) monitoring use of company IT resources and conducting forensic investigations of departing employees’ computer devices.

France…Do Not Miss the Deadline

  • Drafting a non-compete clause under French labor law requires specific care as courts are particularly critical of the following: duration, the geographical and activities scope, the conditions in which the employer releases the employee from such obligation, the employee’s role, the interests of the company, and the financial compensation provided by the clause.
  • Recent case law shows that French courts are strict when it comes to the interpretation of the non-compete clauses and the possibility to waive the non-compete clause. If an employer misses the relevant contractual deadline to release an employee from her/his non-compete, the financial compensation will be due for the entire period. Similarly, if the employer waives the non-compete prematurely, the courts will consider the waiver as invalid.
  • During employment, an employee is subject to a general obligation of confidentiality and breach may be subject to civil and criminal sanctions. Only “trade secrets,” however, are protected post-termination under certain circumstances. Employers should therefore automatically include a confidentiality clause in employment agreements to strengthen the protection of the company’s data post-termination. Good news for employers: the French High Court recently confirmed that, unlike non-compete covenants, a confidentiality clause does not require any financial compensation.

United Kingdom…Less is NOT More

  • Restrictive covenants are potentially void as an unlawful restraint of trade. In practical terms, this means that such covenants are only likely to be enforceable where they are fairly short in duration, the restriction is narrowly focused on the employee’s own personal activities (e.g., by geographical scope), and is specific to the commercial environment. Unlike in some European jurisdictions, payment will not “rescue” an unenforceable restriction. In addition, the English courts tend to have an unforgiving nature when it comes to poor drafting even if the intention of the parties is obvious. Employers should therefore also consider other creative and acceptable ways to aid enforceability, such as deferring remuneration and varying and reaffirming covenants.
  • Absent any agreement, only “trade secrets,” which are narrowly defined, will be protected after employment. Employers should therefore ensure that employment contracts and/or other free-standing binding agreements provide full coverage for the protection of confidential and other valuable business information post-termination. Often the physical protection of confidential information is underestimated (e.g., encrypting data, installing passwords, secure storage, etc.), which can be a more effective and less costly approach for employers in the long-term. Employers should therefore also seek to retain physical control of such information in order to reduce and limit unwanted disclosure and misuse.

China….Stay ON TOP of An Evolving Regulatory System

  • In China, employers should ensure that they have a non-compete agreement with the employee at the time of employment, so that the employer can decide whether to enforce or not to enforce the non-compete agreement for a period of post-employment.
  • In addition, employers should ensure that documents are marked with “confidential,” or that other measures are taken to protect confidential information. Otherwise, remedies may not be available under the Chinese law for breach of confidential obligations. Employers should also review and update rules and policies regarding confidentiality and security arrangements. Pre-employment vetting of R&D staff is also essential to prevent unexpected breach or non-compliance with trade secret and intellectual property rights.
  • As a notable (and relatively recent) development, injunctive relief for trade secret misappropriation is available in Shanghai and Anhui.

Employee Social Networking: Protecting Your Trade Secrets in Social Media

The fourth installment, presented by John Tomaszewski, Eric Barton and Joshua Salinas, addressed the relationship between trade secrets, social media, and privacy.

Social Media Privacy Laws are on the Rise

  • At least 20 states now have laws prohibiting employers from requiring or even asking for access to employees’ or job applicants’ personal social media accounts. Penalties for violations range from nominal administrative fines to much larger damages, including punitive damages and attorneys’ fees. Many of the laws, however, have broad exceptions and loopholes, including required employer access of “nonpersonal” accounts and on suspected data theft or workplace misconduct. To learn more, please see our Social Media Privacy Legislation Desktop Reference.

Safeguard Your Trade Secrets

  • Protecting your company’s valuable confidential information and trade secrets from disloyal employees is a very different exercise than keeping strangers and competitors locked-out. This exercise is further complicated by inconsistent privacy legislation, which can vary wildly from state to state. For example, a disloyal employee secretly copies a confidential employer customer list onto his personal LinkedIn account. The employee works in a state that has adopted the new privacy legislation, which has an exemption for suspected data theft. The employer hears unsubstantiated gossip about that list copying, but does not investigate based on the flimsy evidence and for fear of violating the privacy law. The employee later resigns, and uses that list for a competitor. Did the former employer waive a trade secrets claim against the employee because it decided not to investigate, even though it could have? Did that decision amount to an unreasonably insufficient effort to protect its trade secrets?

Social Media and Bring Your Own Device (BYOD)

  • Social media is an extension of the trend to combine work, and non-work related activities within the same platform. Just like smartphones allow you to engage in both work and non-work related emailing, the social media platforms continue to drive the conflation of personal and employee activity. As a result, a holistic approach needs to be taken in managing the employee. Otherwise, what was once considered a reasonable policy at work may get applied to private or protected activity and thereby become at a minimum, unreasonable; and in some cases, illegal.

How and Why California is Different When it Comes to Trade Secrets and Non-Competes

The fifth installment, directed by Robert Milligan, James McNairy and Joshua Salinas, focused on recent legal developments in California trade secret and non-compete law and how it is similar to and diverse from other jurisdictions, including: a discussion of the California Uniform Trade Secrets Act; the interplay between trade secret law and Business and Professions Code Section 16600 (which codifies California’s general prohibition of employee non-compete agreements), and recent case developments regarding non-compete agreements and trade secret investigations. The panel discussed how these latest developments impact counseling, litigation and deals involving California companies.

  • Broad “no re-hire” provisions in settlement agreements may, under certain circumstances, constitute unlawful restraints of trade under California law, as reflected in Golden v. California Emergency Physicians Medical Group (9th Cir. Apr. 8, 2015).
  • Alone, voluntary dismissal of a trade secret claim is not a safe harbor to liability for attorneys’ fees if the claim otherwise meets the criteria for having been brought or maintained in bad faith.
  • The preemptive scope of California’s Uniform Trade Secrets Act is very broad. As a result, tort or conversion claims that might be viable in other states may be preempted when pleaded in California with a trade secret claim, provided independent unlawful acts are not alleged.

State Specific Non-Compete Oddities Employers Should Be Aware Of

In Seyfarth’s sixth installment, attorneys Michael Baniak and Paul Freehling discussed the significant statutory changes to several jurisdictions’ laws regarding trade secrets and restrictive covenants and pending legislation proposed in additional jurisdictions over the past year. As trade secrets and non-compete laws continue to evolve from state to state in piecemeal fashion, companies should continually revisit their trade secrets and non-compete strategies in light of the evolving legal landscape and legislative trends.

  • Enforceability of non-compete, non-solicit, and confidentiality covenants in employment agreements depends primarily on the applicable statutes, and pertinent judicial decisions and conflict of laws principles, regarding (a) the acceptable breadth of such covenants, and (b) appropriate balancing of the legitimate business interests of employers, employees, and the public. Enforceability requires constant vigilance in updating the covenants because the law, business, and employment evolves often very rapidly.
  • Because each jurisdiction’s version of the Uniform Trade Secrets Act as enacted (it has been adopted in one form or another in the District of Columbia and each of the 50 states except New York and Massachusetts) is unique, all relevant jurisdictions’ versions must be analyzed.
  • Oddities in the law of restrictive covenants include: (a) hostility in a few states to non-competes and/or non-solicit covenants in general; (b) in some states (whether by statutory provision or judicial fiat); certain employees are exempt from such covenants; (c) there are disparities in various courts’ willingness to “blue pencil,” reform, or invalidate covenants deemed overbroad as written; and (d) there are variations in different courts’ views as to whether only actual disclosure, or also threatened or inevitable disclosure, of trade secret or confidential information will be enjoined.

So You Want An Injunction in A Non-Compete or Trade Secret Case?

In Seyfarth’s seventh installment, attorneys Justin Beyer, Eric Barton and Bob Stevens focused on the issues confronting plaintiffs in preparing for and prosecuting trade secret cases and the various ins and outs of seeking both temporary restraining orders and preliminary injunctions.

  • Employers can best protect their trade secrets by instituting robust training, policies and procedures aimed at educating its work force as to what constitutes confidential information, and that this information belongs to the employer, not the employee. By utilizing confidentiality, invention assignment and reasonable restrictive covenants, as well as implementing onboarding and off-boarding protocols, educating employees on non-disclosure obligations, educating employees on that data which the employer considers confidential, clearly marking the most sensitive data, and restricting access to confidential information, both systemically and through hardware and software blocks, employers can both educate and prevent misappropriation.
  • If an employee voluntarily resigns his or her employment with the company, the employer should already have in place a specific protocol to ensure that the employee does not misappropriate company trade secrets. Such steps include questioning the employee on where he intends to go, evaluating whether to shut off access to emails and company systems prior to the expiration of the notice period, requesting a return of company property, including if the company utilizes a BYOD policy, and reminding the employee of his or her continuing obligations to the company. Likewise, companies should have robust onboarding policies in place to help avoid suit, such as attorney review of restrictive covenants, offer letters that specifically disclaim any desire to receive confidential information from competitors, and monitoring of the employee after hire to ensure that they are not breaching any confidentiality or non-solicitation obligations to the former employer.
  • If a company finds itself embroiled in litigation based on either theft of its trade secrets or allegations that it either stole or received stolen trade secrets, it is important to take swift action, including interviewing the players, preserving the evidence, and utilizing forensic resources to ascertain the actual theft or infection (if you are on the defense side). Companies defending against trade secret litigation also need to analyze and consider whether an agreed injunction is in its best interests, while it investigates the allegations. These types of cases tend to be fast and furious and the internal business must be made aware of the impact this could have on its customer base and internal resources.

Social Media Privacy Legislation Update

In Seyfarth’s eighth installment, Seyfarth attorneys Robert Milligan, Daniel Hart and Joshua Salinas discussed their recently released Social Media Privacy Legislation Desktop Reference and addressed the relationship between trade secrets, social media, and privacy legislation. We compiled a list of brief summaries of the more significant cases that were discussed during the webinar:

  • In KNF&T Staffing Inc. v. Muller, No. 13-3676 (Mass. Super. Oct. 24, 2013), a Massachusetts court held that updating a LinkedIn account to identify one’s new employer and listing generic skills does not constitute solicitation. The court did not address whether a LinkedIn post could ever violate a restrictive covenant.
  • Outside of the employment context, the Indiana Court of Appeals in Enhanced Network Solutions Group Inc. v. Hypersonic Technologies Corp., No. 951 N.E.2d 265 (Ind. Ct. App. 2011) held that a non-solicitation agreement between a company and its vendor was not violated when the vendor posted a job on LinkedIn and an employee of the company applied and was hired for the position, because the employee initiated all major steps that led to the employment.
  • In the context of Facebook, a Massachusetts court ruled in Invidia LLC v. DiFonzo, No. 2012 WL 5576406 (Mass. Super. Oct. 22, 2012) that a hairstylist did not violate her non-solicitation provision by “friending” her former employer’s customers on Facebook because “one can be Facebook friends with others without soliciting those friends to change hair salons, and [plaintiff] has presented no evidence of any communications, through Facebook or otherwise, in which [defendant] has suggested to these Facebook friends that they should take their business to her chair.”
  • Similarly, in Pre-Paid Legal Services, Inc. v. Cahill, No. CIV-12-346-JHP, 2013 U.S. Dist. LEXIS 19323 (E.D. Okla., Jan. 22, 2013), a former employee posted information about his new employer on his Facebook page “touting both the benefits of [its] products and his professional satisfaction with [it]” and sent general requests to his former co-employees to join Twitter. A federal court in Oklahoma denied his former employer’s request for a preliminary injunction, holding that communications were neither solicitations nor impermissible conduct under the terms of his restrictive covenants
  • The Virginia Supreme Court in Allied Concrete Co. v. Lester, 285 Va. 295 (2013) upheld a decision sanctioning a plaintiff and his attorney a combined $722,000 for deleting a Facebook account and associated photographs that undermined the plaintiff’s claim for damages stemming from the wrongful death of his wife in a car accident. The deleted photographs showed plaintiff holding a beer while wearing a T-shirt with the message “I Love Hot Moms.” Subsequent testimony revealed that the plaintiff’s attorney had instructed his paralegal to tell the plaintiff to “clean up” his Facebook entries because “[they did] not want blowups of [that] stuff at trial.”
  • PhoneDog v. Noah Kravitz, No. C11-03474 MEJ, 2011 U.S. Dist. LEXIS 129229 (N.D. Cal. 2012) involved a dispute over whether a Twitter account’s followers constitute trade secrets even when they are publically visible. The court denied the defendant’s motion to dismiss and ruled that PhoneDog, an interactive mobile news and reviews web resource, could proceed with its lawsuit against Noah Kravitz, a former employee, who PhoneDog claimed unlawfully continued using the company’s Twitter account after he quit. The court held that PhoneDog had described the subject matter of the trade secret with “sufficient particularity” and satisfied its pleading burden as to Kravitz’s alleged misappropriation by alleging that it had demanded that Kravitz relinquish use of the password and Twitter account, but that he refused to do so. With respect to Kravitz’s challenge to PhoneDog’s assertion that the password and the Account followers do, in fact, constitute trade secrets—and whether Kravitz’s conduct constitutes misappropriation, the court ruled that such determinations require the consideration of evidence outside the scope of the pleading and should, therefore, be raised at summary judgment, rather than on a motion to dismiss. The parties ultimately resolved the dispute.
  • The Second Circuit Court of Appeals in Triple Play v. National Labor Relations Board, No. 14-3284 (2d. Cir. Oct. 21, 2015) affirmed an NLRB decision that a Facebook discussion regarding an employer’s tax withholding calculations and an employee’s “Like” of the discussion constituted concerted activities protected by Section 7 of the National Labor Relations Act. The Facebook activity at issue involved a former employee posting to Facebook, “[m]aybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money . . . Wtf!!!!” A current employee “Liked” the post and another current employee posted, “I owe too. Such an asshole.” The employer terminated the two employees for their Facebook activity. The Second Circuit affirmed the NLRB’s decision that the employer’s termination of the two employees mentioned Facebook activity was unlawful.

Enforcing Non-Compete Provisions in Franchise Agreements

In Seyfarth’s ninth and final installment, attorneys John Skelton, Erik Weibust and Anne Dunne focused on how to implement and enforce covenants against competition in the franchise context. A franchisor’s trade secrets, confidential information, and goodwill are often among its core assets, and implementing and enforcing covenants against competition are a common, and effective, means of protecting such business interests.

  • For franchisors, non-compete provisions, especially post-termination restrictive covenants, are an important part of the franchise relationship because franchisees are given access to a franchisor’s confidential information and trade secrets. Upon the termination, expiration or non-renewal of the franchise agreements, franchisors have a vested interest in preventing the use of such information in a competitive business and in protecting the integrity of the franchise network and their goodwill.
  • The enforceability of non-compete provisions is most often litigated in the context of a request for a preliminary injunction, and thus franchisors need to be able present evidence to establish: (1) all of the necessary elements, especially that the franchisor will suffer irreparable harm to its legitimate business interests and goodwill if the franchisee violates the terms of the agreed upon non-compete; and (2) that the restrictions are reasonable in time and scope.
  • The enforceability of non-compete provisions varies significantly by state, so national franchisors must ensure that restrictive covenants are drafted to comply with the various definitions of legitimate business interests and protected goodwill, and the different blue pencil, red pencil and reformation rules.

2016 Trade Secret Webinar Series

Beginning in January 2016, we will begin another series of trade secret webinars. The first webinar of 2016 will be “2015 National Year in Review: What You Need to Know About the Recent Cases/Developments in Trade Secrets, Non-Compete, and Computer Fraud Law” on January 28. To receive an invitation to this webinar or any of our future webinars, please sign up for our Trade Secrets, Computer Fraud & Non-Competes mailing list by clicking here. We are also tracking the latest on the movement to federalize trade secrets law. Please visit our dedicated page on the blog.

Seyfarth Trade Secrets, Computer Fraud & Non-Compete attorneys are happy to discuss presenting similar presentations remotely or in person to your groups for CLE credit.

shutterstock_276783140We are pleased to announce the webinar “Social Media Privacy Legislation Update” is now available as a podcast and webinar recording.

In Seyfarth’s eighth installment in its series of Trade Secrets Webinars, Seyfarth social media attorneys discussed their recently released Social Media Privacy Legislation Desktop Reference and addressed the relationship between trade secrets, social media, and privacy legislation.

As a conclusion to this well-received webinar, we compiled a list of  brief summaries of the more significant cases that were discussed during the  webinar:

  • In KNF&T Staffing Inc. v. Muller, Case No. 13-3676 (Mass. Super. Oct. 24, 2013) a Massachusetts court held that updating a LinkedIn account to identify one’s new employer and listing generic skills does not constitute solicitation. The court did not address whether a LinkedIn post could ever violate a restrictive covenant.
  • Outside of the employment context, the Indiana Court of Appeals in Enhanced Network Solutions Group Inc. v. Hypersonic Technologies Corp., 951 N.E.2d 265 (Ind. Ct. App. 2011) held that a nonsolicitation agreement between a company and its vendor was not violated when the vendor posted a job on LinkedIn and an employee of the company applied and was hired for the position, because the employee initiated all major steps that led to the employment.
  • In the context of Facebook, a Massachusetts court ruled in Invidia LLC v. DiFonzo, 2012 WL 5576406 (Mass. Super. Oct. 22, 2012) that a hairstylist did not violate her nonsolicitation provision by “friending” her former employer’s customers on Facebook because “one can be Facebook friends with others without soliciting those friends to change hair salons, and [plaintiff] has presented no evidence of any communications, through Facebook or otherwise, in which [defendant] has suggested to these Facebook friends that they should take their business to her chair.”
  • Similarly, in Pre-Paid Legal Services, Inc. v. Cahill, Case No. CIV-12-346-JHP, 2013 U.S. Dist. LEXIS 19323 (E.D. Okla., Jan. 22, 2013) a former employee posted information about his new employer on his Facebook page “touting both the benefits of [its] products and his professional satisfaction with [it]” and sent general requests to his former co-employees to join Twitter. A federal court in Oklahoma denied his former employer’s request for a preliminary injunction, holding that communications were neither solicitations nor impermissible conduct under the terms of his restrictive covenants
  • The Virginia Supreme Court in Allied Concrete Co. v. Lester, 285 Va. 295 (2013) upheld a decision sanctioning a plaintiff and his attorney a combined $722,000 for deleting a Facebook account and associated photographs that undermined the plaintiff’s claim for damages stemming from the wrongful death of his wife in an car accident. The deleted photographs showed plaintiff holding a beer while wearing a T-shirt with the message, “I Love hot moms.” Subsequent testimony revealed that the plaintiff’s attorney had instructed his paralegal to tell the plaintiff to “clean up” his Facebook entries because “we do not want blowups of this stuff at trial.”
  • PhoneDog v. Noah Kravitz, No. C11-03474 MEJ, 2011 U.S. Dist. LEXIS 129229 (N.D. Cal., 2012) involved a dispute over whether a Twitter account’s followers constitute trade secrets even when they are publically visible. The court denied the defendant’s motion to dismiss and ruled that PhoneDog, an interactive mobile news and reviews web resource, could proceed with its lawsuit against Noah Kravitz, a former employee, who PhoneDog claimed unlawfully continued using the company’s Twitter account after he quit.  The court held that PhoneDog had described the subject matter of the trade secret with “sufficient particularity” and satisfied its pleading burden as to Kravitz’s alleged misappropriation by alleging that it had demanded that Kravitz relinquish use of the password and Twitter account, but that he has refused to do so.  With respect to Kravitz’s challenge to PhoneDog’s assertion that the password and the Account followers do, in fact, constitute trade secrets — and whether Kravitz’s conduct constitutes misappropriation, the court ruled that the such determinations require the consideration of evidence outside the scope of the pleading and should, therefore, be raised at summary judgment, rather than on a motion to dismiss.  The parties ultimately resolved the dispute.
  • The Second Circuit Court of Appeals in Triple Play v. National Labor Relations Board, No. 14-3284 (2d. Cir. Oct. 21, 2015) affirmed an NLRB decision that a Facebook discussion regarding an employer’s tax withholding calculations and an employee’s “like” of the discussion constituted concerted activities protected by Section 7 of the National Labor Relations Act. The Facebook activity at issued involved a former employee posting to Facebook, “[m]aybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money . . . Wtf!!!!” A current employee “liked” the post and another current employee posted, “I owe too. Such an asshole.” The employer terminated the two employees for their Facebook activity. The 2nd Circuit affirmed the NLRB’s decision that the employer’s termination of the two employees for their aforementioned Facebook activity was unlawful.

The following is a collection of social media policies that have been implemented by various companies:  http://socialmediagovernance.com/policies/. While these policies can serve as a helpful guide, companies should tailor their own social media policies and consult with counsel.

For more information, please contact your Seyfarth Shaw LLP attorney, Robert B. Milligan at rmilligan@seyfarth.com, Daniel P. Hart at dhart@seyfarth.com or Joshua Salinas at jsalinas@seyfarth.com.

WebinarSocial media and related issues in the workplace can be a headache for employers. There is no denying that social media has transformed the way that companies conduct business. In light of the rapid evolution of social media, companies today face significant legal challenges on a variety of issues ranging from employee privacy and protected activity to data practices, identity theft, cybersecurity, and protection of intellectual property.

On Tuesday, October 27, 2015 at 10:00 a.m. Central, Robert B. Milligan, Daniel P. Hart and Joshua Salinas will present the eighth installment in its series of Trade Secrets Webinars. They will discuss their recently released Social Media Privacy Legislation Desktop Reference and address the relationship between trade secrets, social media, and privacy legislation.

The Seyfarth panel will specifically address the following topics:

  • ​​Discussing recent and proposed employee privacy legislation, and how it may impact policies dictating mandatory turnover of social networking passwords and employee privacy concerns.
  • Discussing the National Labor Relations Board’s (NLRB) treatment of employer social media policies, whether it applies to you, and what steps should be taken to avoid potential penalties for violating NLRB rulings.
  • Discussing the interplay between social medial privacy laws and workplace investigations, and how developing internal company policy and/or contracts can protect companies’ assets.
  • Defining, understanding, and protecting trade secrets in social media.
  • How courts are interpreting ownership of social media accounts and whether social media sites constitute property and preventing trade secret misappropriation or distribution through social media channels.
  • Discussing the interplay between protection of company information and ownership of company accounts in the social media age.

register

There is no cost to attend this program, however, registration is required.

*CLE Credit for this webinar has been awarded in the following states: CA, IL, NJ and NY. CLE Credit is pending for GA, TX and VA. Please note that in order to receive full credit for attending this webinar, the registrant must be present for the entire session.

If you have any questions, please contact events@seyfarth.com.

Social Media Privacy Legislation Desktop Reference
What Employers Need to Know

There is no denying that social media has transformed the way that companies conduct business. In light of thSMPLe rapid evolution of social media, companies today face significant legal challenges on a variety of issues ranging from employee privacy and protected activity to data practices, identity theft, cybersecurity, and protection of intellectual property.

Seyfarth’s Social Media practice group has prepared an easy-to-use “Social Media Privacy Legislation Desktop Reference,” as a starting point to formulating guidance when these issues arise.

The Desktop Reference:

  • Describes the content and purpose of the various states’ new social media privacy laws.
  • Delivers a detailed state-by-state description of each law, listing a general overview, what is prohibited, what is allowed, the remedies for violations, and special notes for each statute.
  • Provides an easy-to-use chart summarizing existing social media privacy laws by state.
  • Offers our thoughts on the implications of this legislation in other areas, including technological advances in the workplace, trade secret misappropriation, bring your own device (BYOD) issues and concerns, social media discovery, and federal law implications.
  • Concludes with some best practices to assist companies in navigating this challenging area.

We hope that you find its content useful.

How to get your Desktop Reference:

This publication may be requested from your Seyfarth contact in hard copy or is available as an eBook, which is compatible with PCs, Macs and most major mobile devices*. The eBook format is fully searchable and offers the ability to bookmark useful sections for easy future reference and make notes within the eBook.

To request the 2015-2016 Edition of the Social Media Privacy Legislation Desktop Reference in eBook or hard copy, please click the button below:

BUTTON

shutterstock_275396996Eric Barton authored the following article on August 20, 2015 in Intellectual Property Watch summarizing several recent cases addressing trade secret claims involving social media issues, as well as providing some suggested takeaways for employers based on the limited information presently available.

There is no question that social media privacy issues now permeate the workplace. In an attempt to provide further guidance and regulation in this area, since April 2012, a growing number of state legislatures in the United States have passed various forms of social media privacy legislation. In fact, to date, nearly all state legislatures, as well as the United States Congress, have considered or are considering some kind of social media privacy legislation.

The precise impact that these new social media privacy laws have on existing trade secret law is still very much in its infancy. Compounding matters, the plain language of several recently enacted privacy laws directly conflicts with judicial decisions regarding “company vs. employee” ownership of social media content that may otherwise constitute protectable trade secrets, including contact lists and business relationships. Moreover, very few court decisions have yet to interpret any of the new social media privacy laws.

In light of this uncertainty, the following is a summary of several recent cases addressing trade secret claims involving social media issues, as well as some suggested takeaways for employers based on the limited information presently available.

A. Definition of a Trade Secret – Brief Summary

In the simplest terms, under the Uniform Trade Secrets Act, which is in effect in 48 states, information and data may qualify for statutory protection if the valuable information is a secret, and its owner keeps it a secret. Though there are no bright lines for whether information is a protectable trade secret, it is likely to be found protectable if it is the result of a substantial investment of time, effort, and expense, generates independent economic value for its owner, is not generally known in the relevant industry, cannot easily be accessed by legitimate means, and cannot be independently reverse engineered without significant development efforts and expense. Experience shows that in many cases, the more egregious a defendant’s theft of an alleged secret, the more likely the court will find that the stolen data qualifies as a trade secret. Not merely to punish, but also because an employee’s theft and subsequent use of the stolen data or information itself tends to show (i) the independent economic value of the stolen information, and (ii) the information was not available publicly.

Information is kept secret if its owner takes affirmative measures to prevent its unauthorized disclosure, such as, but not limited to, non-disclosure, restricted-use, and mandatory-return agreements, confidentiality stamps, limited internal distribution and access permissions, and password protection of computers. Those efforts need only be “reasonable under the circumstances,” and “absolute” secrecy is not required.

B. The New Laws’ Potential Impact on Account-Content Ownership

The new privacy laws appear to be penetrating trade-secret-ownership lawsuits between companies and their former employees regarding who owns the latters’ social media relationships (i.e. LinkedIn contacts). For example, in PhoneDog v. Noah Kravitz, No. C11-03474 MEJ, 2011 U.S. Dist. LEXIS 129229 (N.D.Cal.) (Nov. 8, 2011) and Eagle v. Morgan, No. 11-4303, 2011 WL 6739448 (E.D.Pa.) (Dec. 22, 2011), held that the company’s Twitter feeds (PhoneDog) and the employee’s LinkedIn account (Eagle) may “belong to” the employer, due to the employer’s prior investment of time and expense in developing and maintaining those accounts. Further, in Ardis Health, LLC v. Nankivell, 2011 WL 4965172 (S.D.N.Y. Oct. 19, 2011), the court held that the employer owned its employee’s account content, due to the employment agreement’s spelling that out.

With the onset of social media privacy laws, however, will employees have ammunition to argue that they own their social-media relationships, especially in states where personal andnon-personal accounts are not clearly defined? Employees in trade secrets cases may argue that the new laws imply a degree of ownership of their social media accounts, even where they use them in part to advertise their employers’ businesses.

C. Whether the New Laws Will Affect the Protective-Measure Analyses in Trade Secrets Cases

Further, some might argue that unless employers investigate their employees’ social-media activities and any related data theft, employers will lose trade secret protection for that data due to their alleged failure to use “reasonable” efforts to protect its secrecy. Recall that under the Uniform Trade Secrets Act section 1(4)(ii), trade secret owners must have employed “efforts that are reasonable under the circumstances to maintain its secrecy.” The “reasonable under the circumstances” requirement is often the key disputed issue in trade secrets litigation – the owner claiming that it used reasonable efforts; the alleged thief claiming that plaintiff was too willy-nilly in handling its so-called secrets. Under the new laws, the question presented is whether an employer which could, but does not, investigate an employee’s suspected data theft involving his social networking account, has failed to use “reasonable efforts” to protect the data’s secrecy.

On the one hand, information that falls into the public domain, or becomes generally known to the relevant industry, usually loses its trade secret status. See, e.g. Newark Morning Ledger Co. v. New Jersey Sports & Exposition Authority, 31 A.3d 623, 641 (N.J. App. 2011) (trade secrets’ “only value consists in their being kept private…if they are disclosed or revealed, they are destroyed”). Similarly, information whose owner intentionally discloses it without imposing a confidentiality obligation on the recipient is at high risk of losing any secrecy protection. Seng-Tiong Ho v. Taflove, 648 F.3d 489, 504 (7th Cir. 2011) (plaintiff’s publishing its alleged secrets in trade journals destroyed any trade secret status that information had). An employee’s posting confidential employer data on his or her social networking account would pose a significant risk that the data would lose its trade secret protection, especially if the employer was authorized by the applicable privacy law to demand access to the employee’s account to investigate, but for whatever reason did not or had policies which did not prohibit such social media activities.

On the other hand, “absolute” secrecy is not required to maintain trade secrecy, but only reasonable efforts to maintain confidentiality. See, e.g., Avidair Helicopter Supply, Inc. v. Rolls-Royce Corp., 663 F.3d 966, 974 (8th Cir. 2011) (efforts to maintain secrecy “need not be overly extravagant, and absolute secrecy is not required”). Indeed, two relevant features of many privacy laws are (i) employer immunity for not investigating suspected misconduct (seeMichigan, Utah), and (ii) no duty to monitor employee account activity. (Id.). Employers faced with a waiver argument may cite these statutory provisions to counter the argument that they were required to investigate reports of employee-account-related data theft, lest they lose statutory protection for that data.

D. Takeaways

Issues related to social media privacy in the workplace are not going away, and we expect to see more litigation and legislation to define acceptable practices in this area. As detailed above, one’s ability to differentiate between personal and business ownership of information is often extremely difficult. In light of this uncertainty, employers should at a minimum consider doing the following:

  1. Determine whether your company has employees in any of the states that have adopted or are planning to adopt social media privacy laws.
  1. Review existing policies and agreements regarding employees’ use of social media and computer resources for business purposes to ensure that those policies and agreements clearly define ownership and access rights for such accounts.
  1. Social media policies should be narrowly tailored and provide examples of protected confidential information.
  1. Consider whether to block access to social networking sites not used for business purposes, as well as to other categories of potentially problematic Internet web sites that might be protected under some states’ statutes, such as file-sharing and internet-mail sites.
  1. Provide recurring training on the company’s social media policy confidentiality policies and agreements as well as evaluate the company’s computer network in order to reduce the opportunities for incidents of employee misconduct and network security breaches. Remind employees that the same confidentiality policies and agreements that apply in the workplace also apply in their social media activities.
  1. Evaluate whether the benefits of a bring your own device policy outweighs the risks to data security confidentiality, and employee privacy.

shutterstock_142248280The defendants in a case pending in Chicago federal court were accused of contravening Facebook’s terms of use by accessing its computers in order to create a phony page and then using it to ridicule someone. In Bittman v. Fox, Case No. 14 C 8191 (N.D.Ill., June 1, 2015) (Holderman, J.), the court held that those allegations do not state a cause of action under the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, or the Stored Communications Act, 18 U.S.C. § 2707.

Summary of the case. In 2013, several persons began voicing complaints to the staff and board of trustees of a public library which permitted patrons to view pornography on the library’s computers. The objectors’ increasingly strident efforts to persuade library personnel to install filters on the computers were unsuccessful. Moreover, allegedly in response to those efforts, library personnel engaged in what the objectors viewed as violations of the Illinois Open Meetings Act and as harassment. The objectors retaliated by creating a Facebook page on which they mocked the library’s spokesperson. She filed a multi-count complaint alleging, among other causes of action, CFAA and SCA violations. The objectors’ motion to dismiss the CFAA and SCA counts, and a few other claims, was granted. The remaining counts will be heard by a different judge (because Judge Holderman retired the day the opinion was issued).

Actions by and against the objectors. The objectors attempted to make their views heard at board meetings. The board responded by committing what the objectors viewed as Open Meetings Act violations (in at least one instance, the Illinois Attorney General agreed that the Act had been violated) and refusing in other ways to let the objectors speak their minds. On one occasion, library personnel accused the objectors of illegally disrupting board meetings and summoned the police, but no arrests were made. When the objectors began receiving harassing emails and phone calls at home, which they attributed to library personnel (acting directly or indirectly), the objectors created the fake Facebook page and used it to ridicule the library spokesperson and her floral arrangement business. She sued.

Dismissal of the CFAA and SCA claims. The CFAA and SCA counts allege that the plaintiff was injured by the defendants’ violation of Facebook’s terms of use, and that the violation constitutes unauthorized access to Facebook’s computer. Her allegations were imaginative, but there appears to be scant authority supporting the view that she stated justiciable causes of action.

In his ruling on the Rule 12(b)(6) motion, Judge Holderman reasoned that the statutes were enacted to protect against hacking, or tampering with, computerized personal and proprietary information. The defendants here “did not access a computer to damage, steal or tamper with” the plaintiff’s data. Further, noting that the CFAA is a criminal statute, he cited the rule of lenity and the decision in U.S. v. Drew, 259 F.R.D. 449 (C.D. Cal. 2009), a somewhat similar California case. The court there ruled for the defendant, holding that criminalizing “the conscious violation of a website’s terms of service runs afoul of the void-for-vagueness doctrine.” Judge Holderman also cited Matot v. CH, 975 F. Supp. 2d 1191 (D. Ore. 2013), a decision reaching the same result in a civil lawsuit.

Takeaways. According to Matot, the fabrication of fake social media accounts and phony profiles is not uncommon, and sometimes they even have been created by law enforcement personnel. Moreover, users of electronic media have been known to include lies and other fictions in their postings. Judge Holderman cited Drew for the proposition that prosecuting someone for accessing social media computers in violation of the media’s rules, even as part of a vindictive campaign or one intended to embarrass, “affords too much discretion to the police and too little notice to citizens who wish to use the Internet.” Judge Holderman did not mention U.S. v. Morris, 928 F.2d 504 (2d Cir. 1991), where the use of electronic media in a manner unrelated to its intended function contributed to a CFAA criminal conviction for unauthorized access to a public website.

In Bittman v. Fox, in addition to the dismissed CFAA and SCA claims, several common law causes of action were alleged. The defendants still are charged with defamation, intentional infliction of emotional distress, and interference with prospective economic advantage. The defendants in Bittman were not alleged to have achieved a monetary gain by violating an electronic media’s rules. If there were such a claim in a different case, that claim might state a cause of action for fraud.

shutterstock_134112389As we have frequently reported in this blog, social media privacy issues increasingly permeate the workplace.  For example, earlier this year, Montana and Virginia joined a growing number of states in enacting laws restricting employer access to the social media accounts of applicants and employees.  With Governor Dannell Malloy’s approval of similar legislation in Connecticut on May 21, the Constitution State has now become the latest state to follow this trend.

Connecticut’s law (Public Act 15-6) becomes effective October 1, 2015 and is generally similar to social media privacy laws enacted in other states.  Under the new Connecticut law, employers may not:

  • Request or require that an employee or applicant provide such employer with a user name and password, password or any other authentication means for accessing a personal online account;
  • Request or require that an employee or applicant authenticate or access a personal online account in the presence of such employer;
  • Require that an employee or applicant invite such employer or accept an invitation from the employer to join a group affiliated with any personal online account of the employee or applicant; or
  • Fail or refuse to hire any applicant as a result of his or her refusal to (A) provide such employer with a user name and password, password or any other authentication means for accessing a personal online account, (B) authenticate or access a personal online account in the presence of such employer, or (C) invite such employer or accept an invitation from the employer to join a group affiliated with any personal online account of the applicant.
  • In addition, like social media privacy laws in other states, the new Connecticut law has an anti-retaliation provision stating that employers may not “discharge, discipline, discriminate against, retaliate against or otherwise penalize any employee who (A) refuses to provide such employer with a user name and password, password or any other authentication means for accessing his or her personal online account, (B) refuses to authenticate or access a personal online account in the presence of such employer, (C) refuses to invite such employer or accept an invitation from the employer to join a group affiliated with any personal online account of the employee, or (D) files, or causes to be filed, any complaint, whether verbally or in writing, with a public or private body or court concerning such employer’s violation of [the law].”
  • The new law authorizes aggrieved employees and applicants to file complaints with the Connecticut Labor Commissioner, who is required to conduct an investigation and may hold an evidentiary hearing.  Remedies and penalties for violation of the statute include recovery of attorneys’ fees and costs by the aggrieved employee or applicant, back pay, rehiring or reinstatement, reestablishment of employee benefits, and civil penalties.
  • Despite the somewhat onerous penalties that employers can face for violations of the statute, the new law does contain some important exceptions.  Under the statute, employers are not prevented from:
  • Conducting an investigation for the purpose of ensuring compliance with applicable state or federal laws, regulatory requirements or prohibitions against work-related employee misconduct based on the receipt of specific information about activity on an employee or applicant’s personal online account,
  • Conducting an investigation based on the receipt of specific information about an employee or applicant’s unauthorized transfer of the employer’s proprietary information, confidential information or financial data to or from a personal online account operated by an employee, applicant or other source;
  • Monitoring, reviewing, accessing or blocking electronic data stored on an electronic communications device paid for, in whole or in part, by an employer, or traveling through or stored on an employer’s network, in compliance with state and federal law; or
  • Complying with the requirements of state or federal statutes, rules or regulations, case law or rules of self-regulatory organizations.

As other states join the growing chorus of states enacting social media privacy laws, we will continue to report of the latest developments.  In the meantime, employers should review their policies and procedures to ensure that they are up-to-date with the latest legislative enactments.

shutterstock_186292982In Illinois federal court, a plaintiff alleged aspects of their LinkedIn group were trade secrets misappropriated by the defendant. The defendant moved to dismiss for failure to state a claim. The court denied the motion in part and granted in part, ruling that portions of social media groups may be protectable under the state’s trade secret law. CDM Media USA, Inc. v. Simms, Case No. 14-cv-9111 (N.D. Il., Mar. 25, 2015) (Shah, J.).

Summary of the case. This case concerns the ownership rights to private social media groups. The plaintiff, CDM Media USA, created a private LinkedIn group for CIOs and other IT executives interested in CDM events. The defendant, Robert Simms, was the point person for this group while he was employed at CDM. When Simms resigned from CDM, he allegedly refused to return the group’s membership list and communications to CDM and later allegedly used the materials to compete against CDM by attempting to solicit CDM’s current and potential customers and vendors. CDM filed suit alleging, among other things, violation of the Illinois Trade Secrets Act. Simms filed a motion to dismiss for failure to state a claim. The court denied the motion with respect to the group’s membership list but granted the motion with respect to “confidential information” contained in the group.

Legal standards under the Illinois Trade Secrets Act. A claim under the Illinois Trade Secrets Act requires the plaintiff allege (1) they have a trade secret (2) that was misappropriated (3) using the defendant’s business. “Trade secret” under the act requires the information sought to be protection derive economic value from its secrecy and that the information be subject to reasonable efforts of secrecy and confidentiality.

The Court’s ruling. Regarding the group’s membership list, the Court denied the motion to dismiss stating there was too little known about the contents, etc. of the group at the present stage of litigation to rule on the issue as a matter of law, without further factual inquiry. However, the Court granted the motion to dismiss regarding the “confidential information” contained in the group stating CDM’s blanket allegations, i.e., that the LinkedIn group contained confidential information, were insufficient. According to the Court, the plaintiff must allege certain messages or classes of messages contain trade secrets and what it is about the messages that satisfy the trade secrets definition.

Takeaways. Whether or not membership lists of private social media groups are protectable under Illinois trade secret law will likely depend on the privacy/confidentiality measures employed to protect to information and whether the information economic value from its secrecy. Regardless, it is safe to say that in no circumstances will a public group’s membership list be protectable because they lack a fundamental tenet of trade secret law, i.e., the information must be “secret.” Moreover, information contained within a private social media group, such as messages, may be protectable. However, for protection to exist, information within the group desired to be protected must be identified with some specificity and have independent economic value. For more on this topic, please join us for today’s webinar Employee Social Networking: Protecting Your Trade Secrets in Social Media

shutterstock_272870042By Adam Vergne and Chuck Walters

Following a national trend, Montana and Virginia have become the nineteenth and twentieth states to enact laws restricting employer access to the social media accounts of applicants and employees.[1]

Virginia’s law, which takes effect on July 1, 2015, prohibits requesting (or requiring) the disclosure of usernames and/or passwords to an individual’s social media account.  In addition, the law prohibits any requirement to change privacy settings or add a manager to the “friend” or contact list associated with a particular social media account.  In addition to prohibiting the disclosure of usernames and passwords, under Montana’s new law, which took effect April 23, 2015, an employer is prohibited from requiring the disclosure of any information associated with a social media account or requesting an employee or applicant access a social media account in the presence of the employer.  As is common with such legislation, both statutes contain an anti-retaliation provision that prohibits an employer from taking any adverse actions against individual that exercise his or her rights under the law.

Notably, these statutes apply only to personal social media accounts meaning accounts opened on behalf or at the request of the employer are not protected. Employers are also still free to view information contained in personal social media accounts that is publically available.  Virginia’s law also includes an exception that permits employers to request login information if the employer has a “reasonable belief” the account is “relevant” to a “formal investigation or related proceeding” concerning the violation of a federal, state, or local law.

As the legal landscape associated with social media accounts continues to evolve, employers should review their policies and procedures to ensure compliance with all relevant statutory provisions.

[1] In 2012, Maryland became the first state to enact social media privacy legislation.  Since that time, Arkansas, California, Colorado, Illinois, Louisiana, Michigan, Nevada, New Hampshire, New Jersey, New Mexico, Oklahoma, Oregon, Rhode Island, Tennessee, Utah, Washington, and Wisconsin have enacted similar legislation.

WebinarOn Thursday, May 28, 2015 at 12:00 p.m. Central, in the fourth installment of our 2015 Trade Secret Webinars, Seyfarth attorneys John Tomaszewski, Eric Barton and Joshua Salinas will address the relationship between trade secrets, social media, and privacy.

The Seyfarth panel will specifically address the following topics:

  • Defining, understanding, and protecting trade secrets in social media, including a deeper dive into how courts are interpreting ownership of social media accounts and whether social media sites constitute property and preventing trade secret misappropriation or distribution through social media channels.
  • Discussing the National Labor Relations Board’s treatment of employer social media policies, whether it applies to you, and what steps should be taken to avoid potential penalties for violating NLRB rulings.
  • Analyzing judicial treatment of ownership of social media handles, pages, and accounts, and how developing internal company policy and/or contracts can obviate expensive litigation.
  • Discussion and analysis of recent and proposed employee privacy legislation, and how it may impact policies dictating mandatory turnover of social networking passwords and employee privacy concerns.
  • Addressing cyberbullying in social media by employees, particularly where there is a disclosure of trade secrets or confidential information.

register

If you have any questions, please contact events@seyfarth.com.

Registration: there is no cost to attend this program, however, registration is required.

*CLE Credit for this webinar has been awarded in the following states: CA, IL, NJ and NY. CLE Credit is pending for GA, TX and VA. Please note that in order to receive full credit for attending this webinar, the registrant must be present for the entire session.