This post originally appeared on the Workplace Class Action blog

Seyfarth Synopsis: On February 1, 2018, the U.S. District Court for the Middle District of North Carolina entered an order granting in part, and denying in part, the plaintiff’s motion for class certification in a no-hire antitrust case entitled Seaman v. Duke University, 1:15-CV-462, at 1-2 (M.D.N.C. Feb. 1, 2018) (A copy of the decision can be found here.) The case was brought against Duke University, Duke University Health System (collectively “Duke”), and various University of North Carolina entities and one of its executives (collectively “UNC”). The complaint alleged that the defendants had entered into an agreement not to hire each other’s medical faculty employees in violation of federal antitrust laws. With some notable exceptions it has been difficult for plaintiffs to achieve class certification in wage suppression cases such as Seaman. The ruling is a “must read” for employers, as the Court’s reasoning and conclusions make it difficult to predict whether this case will be helpful to the plaintiffs’ bar in other cases.

Background To The Case

Seaman, an Assistant Professor of Radiology at Duke, contended that she applied for a position at UNC in 2015. She alleged that she was denied consideration due to an agreement among the Duke and UNC defendants that they would not hire each another’s medical faculty employees unless the hire involved a promotion. Seaman alleged that this agreement not only suppressed the compensation of defendants’ medical faculty members, but also their other skilled medical employees. Thus, Seaman sought to certify a class consisting not only of defendants’ medical faculty members, but also their physicians, nurses, and skilled medical staff. Id. at 1-2. Continue Reading Court Certifies Class In Duke-UNC No-Hire Workplace Antitrust Lawsuit

On March 1–2, 2018, five Seyfarth attorneys will be attending the American Intellectual Property Law Association’s annual Trade Secret Law Summit in San Diego, California, one of the preeminent events for trade secret practitioners in the nation. Erik Weibust is on the planning committee for the Summit and will be moderating a panel entitled “The Ethics of Law Firm Cybersecurity,” featuring Seyfarth’s own John Tomaszewski; National Litigation Department chair Kate Perrelli will be participating in a facilitated discussion regarding various problems all trade secret and noncompete practitioners face; and Seyfarth attorneys Dawn Mertineit and Eric Barton will be in attendance as well.  Other topics will include:

  • The Trade Secret Landscape
  • Trade Secrets and Noncompetes, with a focus on the California conundrum
  • Professors Panel
  • The DTSA—Was it worth it?
  • The FBI—What is the threat?
  • The International Dimension and Extraterritoriality
  • Corporate Best Practices
  • Judges Panel
  • A case study of Waymo v. Uber

Please join us at the Trade Secret Law Summit!  Register here.

On December 6-8, the inaugural Sedona Conference on trade secrets took place in Scottsdale, Arizona. The invitation-only conference brought together outside counsel, in-house counsel, and experts to have an in-depth discussion of developments in trade secrets law.

The conference provided us with some great insights into the issues on practitioners’ and companies’ minds. After a post-conference debrief, a few common notes emerged, and we have prepared a short summary of what we consider to be a few key takeaways.  Continue Reading Report on Sedona Conference on Trade Secrets

Robert B. Milligan, Partner and Co-Chair of Seyfarth’s National Trade Secret, Computer Fraud, and Non-Compete practice group, just finished co-editing and co-authoring a prominent new California trade secret treatise.

This Supplement to the Third Edition practice guide addresses the Defend Trade Secrets Act (DTSA ), which was enacted in 2016.  This Supplement includes additional practical tips and strategies related to the DTSA. This is one of the first books on the new law.

This supplement addresses:

  • A general overview of the DTSA, including its history and impact.
  • The DTSA’s scope and remedies afforded by it.
  • Analysis of recent case law discussing the DTSA’s whistleblower immunity provision and employer compliance with the DTSA’s whistleblower immunity notice provision.
  • A comparison of the DTSA to the California Uniform Trade Secrets Act (CUTSA or the CUTSA), the Economic Espionage Act (EEA), the Computer Fraud and Abuse Act (CFAA), and Section 337 of the Federal Tariff Act of 1930 (Section 337).

The treatise can be purchased by State Bar IP Section Members for $25 and by Non-Members for $30.

For more information, click here.

On Monday, January 29th, Faraday & Future Inc., the electric car manufacturer founded by Chinese billionaire and entrepreneur Jia Yueting, filed a one-count Defend Trade Secrets Act complaint against Evelozcity, Inc., an electric car manufacturer that was recently created by Faraday & Future’s former CFO and CTO.  The case is Faraday & Future Inc. v. Evelozcity Inc., 18-cv-00737, U.S. District Court, Central District of California (Western Division). Continue Reading Start-Up Car Companies Clash in Electrifying Trade Secrets Case

The United States Attorneys’ Offices in Wisconsin criminally prosecuted two trade secret theft cases last week. In the Eastern District of Wisconsin (United States of America v. Tan Liu), the United States charged a former employee, Tan Liu, with 12 counts of stealing trade secrets from his former employer, Rockwell Automation, Inc. According to the government, in the last few weeks of his Rockwell employment, and in anticipation of leaving Rockwell for a new employer, Liu downloaded 2,500 files that contained the proprietary software and source code Rockwell uses to operate various systems and controllers. Continue Reading Wisconsin U.S. Attorneys Actively Prosecuting Trade Secret Theft—With Mixed Results

The Protocol for Broker Recruiting (“Protocol”) allows for reciprocal poaching of brokers. More specifically, if a broker leaves one Protocol firm for another Protocol firm, the broker can a) take certain account information (client names, addresses, telephone numbers, e-mail addresses, and account title information) to his/her new firm and b) solicit the clients he/she serviced at his/her former firm. Naturally then, the Protocol’s requirements conflict with confidentiality and restrictive covenant provisions that are commonly found in broker employment agreements and firm policies.  Continue Reading Are Financial Services Firms Reconsidering the Protocol?

In Seyfarth’s first webinar in its 2018 Trade Secrets Webinar Series, Seyfarth attorneys Michael Wexler, Robert Milligan, and Joshua Salinas presented 2017 National Year In Review: What You Need to Know About the Recent Cases/Developments in Trade Secrets, Non-Compete, and Computer Fraud Law. The panel reviewed noteworthy cases and other legal developments from across the nation over the last year in the areas of trade secrets and data theft, non-competes and other restrictive covenants, and computer fraud. Plus, they provided their predictions for what to watch for in 2018.

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

  • While the Defend Trade Secrets Act provides for an ex parte seizure order, courts have been very unwilling to provide such relief except in extraordinary circumstances.
  • In light of recent state laws and appellate court decisions at both the federal and state level in 2017, choice of venue and choice of law provisions must be carefully considered and strategically implemented.
  • The ABA’s May 4, 2017, Ethics Opinion encourages lawyers to have an open exchange of communication with their clients about the securities measures their firms are taking to safeguard the clients’ confidential information.

Seyfarth Synopsis:  Criminal prosecution of “no-poaching/no-hire” agreements appears imminent.  Employers should investigate their hiring and compensation practices to ensure compliance with recent antitrust pronouncements.


In October 2016, the Department of Justice (“DOJ”) and the Federal Trade Commission (“FTC”) under the Obama Administration issued a joint Antitrust Guidance for Human Resource Professionals (“HR Guidance,” available here).  Among other things, the HR Guidance announced that so-called “naked” agreements among employers not to recruit employees or not to compete on employee compensation would be considered per se violations of the antitrust laws and prosecuted criminally.  Continue Reading DOJ to Announce Criminal Enforcement Actions for “No-Poach” Agreements

On January 25th at 12:00 p.m. Central Time, in Seyfarth’s first installment of its 2018 Trade Secrets Webinar series, Seyfarth attorneys will review noteworthy cases and other legal developments from across the nation over the last year in the areas of trade secrets and data theft, non-competes and other restrictive covenants, and computer fraud. Plus, they will provide their predictions for what to watch for in 2018.

Seyfarth attorneys Robert Milligan, Michael Wexler, and Joshua Salinas will address the following topics:

  • Significant new federal and state court decisions and legislation on non-compete and other restrictive covenants that may impact their enforcement;
  • The Defend Trade Secrets Act and tips for navigating the law and updating trade secret protection agreements to comply with the statute;
  • Discussion of recent trade secret misappropriation decisions;
  • Noteworthy data breaches and criminal prosecutions and criminal sentences for trade secret misappropriation, data theft, and computer fraud matters and discussion of lessons learned;
  • Best practices for updating agreements and policies to adequately protect company assets and trade secrets.