The California Lawyers Association 2022 IP Institute is taking place November 3-5, in Dana Point, California. Seyfarth is a silver sponsor for the conference, and Seyfarth attorneys Robert Milligan, Puya Partow-Navid, Joshua Salinas, and Sierra Chinn-Liu are attending.

Joshua Salinas—Seyfarth associate and member of the firm’s Trade Secrets, Computer Fraud & Non-Competes practice—is leading a discussion during the Lunch with Table Topics on Friday, November 4. His discussion will be focused on the latest trends in protecting trade secrets.

Robert Milligan—Seyfarth partner and co-chair of the firm’s Trade Secrets, Computer Fraud & Non-Competes practice—is presenting the “Latest Developments in Trade Secrets Litigation and Protection” session at the California Lawyers Association 2022 IP Institute on Friday, November 4, in Dana Point, California. For this panel, an experienced group of trade secret attorneys, who recently co-edited and co-authored the Trade Secret Litigation and Protection: A Practical Guide to the DTSA and CUTSA treatise, will lead the audience through a thorough discussion of the latest developments and trends in trade secrets litigation and protection. The discussion will cover updated pleading standards, tailoring requests for injunctive relief, sufficiency of trade secret identification statements, damages, effectively using forensic evidence, trade secret protection plans, and NDAs and other restrictive covenant agreements.

Find more information and register to attend the 2022 IP Institute on the California Lawyers Association website. And if you’re attending, stop by the Seyfarth table to meet our team.

webinar - financial services industry trade secrets

Wednesday, November 16, 2022
1:00 p.m. to 2:00 p.m. Eastern
12:00 p.m. to 1:00 p.m. Central
11:00 a.m. to 12:00 p.m. Mountain
10:00 a.m. to 11:00 a.m. Pacific

REGISTER HERE

In the seventh installment of the 2022 Trade Secrets Webinar Series, Seyfarth attorneys will focus on trade secret and client relationship considerations in the banking and financial services industry.

Seyfarth partners Jeremy Cohen and Kevin Mahoney will address the following topics:

  • Practical steps financial institutions can implement to protect trade secrets and client relationships
  • What to do if your trade secrets are improperly removed or disclosed or if a former employee is violating restrictive covenant agreements
  • How to prosecute a case against a former employee who is a FINRA member
  • The impact of the Protocol for Broker Recruiting on trade secrets and client relationships

Speakers
Jeremy Cohen, Partner, Seyfarth Shaw LLP
Kevin Mahoney, Partner, Seyfarth Shaw LLP

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If you have any questions, please contact Colleen Vest at cvest@seyfarth.com and reference this event. 

This webinar is accredited for CLE in CA, IL, NJ, and NY. Credit will be applied for as requested for TX, GA, WA, NC and VA. The following jurisdictions may accept reciprocal credit with these accredited states, and individuals can use the certificate they receive to gain CLE credit therein: AZ, CT, NH. The following jurisdictions do not require CLE, but attendees will receive general certificates of attendance: DC, MA, MD, MI, SD. For all other jurisdictions, a general certificate of attendance and the necessary materials will be issued that can be used in other jurisdictions for self-application. Please note that attendance must be submitted within 10 business days of the program taking place. If you have questions about jurisdictions, please email CLE@seyfarth.com. CLE credit for this recording expires on October 15, 2023.

In the sixth installment of our 2022 Trade Secrets Webinar Series, Seyfarth attorneys Dawn Mertineit and Robyn Marsh discussed tips and best practices for multijurisdictional businesses when it comes to restrictive covenants, including non-compete and non-solicitation agreements.

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

  • There is no “one-size-fits-all” way to prepare a restrictive covenants agreement for multiple jurisdictions. Employers should consider whether they want one single agreement that can be used for their entire workforce population (including across multiple jurisdictions, for both new and existing employees, and/or for various tiers of employees), or different permutations. Seyfarth attorneys can help you determine which is the best fit for your business.
  • Be wary of overbroad drafting. Even in states in which a court can judicially reform an overbroad agreement, the clear trend does not favor employers who implement extraordinarily broad covenants with an in terrorem effect.
  • New legislation is creating more and more challenging hurdles to enforcement of non-competes. Employers should be particularly mindful of fee-shifting provisions (or other financial penalties) and choice of law/forum selection requirements.

Robert Milligan—Seyfarth partner and co-chair of the firm’s Trade Secrets, Computer Fraud & Non-Compete practice—was named a 2022 Top Trade Secrets Lawyer in California by The Daily Journal. Robert is a leading voice in this intricate area of law, with a practice primarily focused on trade secret, non-compete, and data theft/protection litigation, investigations, and transactional work. Robert represents multinational companies in a variety of key industries in trade secrets and restrictive covenant litigation and routinely provides valuable transactional advice on how to best protect valuable intellectual property assets in significant business transactions and has successfully obtained and defeated temporary restraining orders, preliminary injunctions, and permanent injunctions involving trade secret and restrictive covenant matters throughout the country and prepared appropriate trade secret protection agreement/policies and programs for many Fortune 50 companies. With a focus on digital forensics, Robert has assisted clients in navigating internal investigations and litigation and leveraged “right size” forensic work and detailed witness interviews to obtain successful outcomes. In addition to earning this spot as one of California’s top trade secrets lawyers, Robert has been recognized as a Leading Lawyer by The Legal 500 for trade secrets work.

webinar - how multijurisdictional businesses should approach non-competes

Tuesday, October 18
1:00 p.m. to 2:00 p.m. Eastern
12:00 p.m. to 1:00 p.m. Central
11:00 a.m. to 12:00 p.m. Mountain
10:00 a.m. to 11:00 a.m. Pacific

REGISTER HERE

In the sixth installment in the 2022 Trade Secrets Webinar Series, Seyfarth attorneys will discuss tips and best practices for multijurisdictional businesses when it comes to restrictive covenants, including non-compete and non-solicitation agreements.

Seyfarth attorneys Dawn Mertineit and Robyn Marsh will answer the following questions during the presentation.

  • Do I need a separate non-compete agreement for each state where my company operates? Or will a single non-compete be enforceable in multiple jurisdictions?
  • Do I need a different approach to restrictive covenant agreements when I have employees who work remotely?
  • Do I need to include choice-of-law/venue provisions?
  • What states pose particular challenges for rollout of restrictive covenants agreements?

Speakers
Dawn Mertineit, Partner, Seyfarth Shaw LLP
Robyn Marsh, Associate, Seyfarth Shaw LLP

REGISTER HERE


If you have any questions, please contact Colleen Vest at cvest@seyfarth.com and reference this event. 

This webinar is accredited for CLE in CA, IL, NJ, and NY. Credit will be applied for as requested for TX, GA, WA, NC and VA. The following jurisdictions may accept reciprocal credit with these accredited states, and individuals can use the certificate they receive to gain CLE credit therein: AZ, CT, NH. The following jurisdictions do not require CLE, but attendees will receive general certificates of attendance: DC, MA, MD, MI, SD. For all other jurisdictions, a general certificate of attendance and the necessary materials will be issued that can be used in other jurisdictions for self-application. Please note that attendance must be submitted within 10 business days of the program taking place. If you have questions about jurisdictions, please email CLE@seyfarth.com. CLE credit for this recording expires on September 26, 2023.

webinar recap - texas trade secrets and non-competesIn the fifth installment of our 2022 Trade Secrets Webinar Series, Seyfarth attorneys Jesse Coleman, Matt Simmons, and Kevin Green discussed legal developments and trends in Texas trade secret and non-compete law and how it is similar to and diverse from other jurisdictions.

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

  • A restrictive covenant is a legal term for a clause in an employment contract (or a standalone agreement) that prevents an employee from doing something. Most often, restrictive covenants are designed to prevent a departing employee from competing with his/her former employer for clients or business.
  • There are four types of restrictive covenants: 1) non-competition; 2) non-solicitation of customers; 3) non-solicitation of employees; and 4) non-disclosure. Common limitations relate to time, geographic or customer restrictions, and the departing employee’s scope of activity in their new employment.
  • Trade secret can be elusive to define, but generally consists of: 1) identifiable information 2) not generally known to others (i.e. secret) 3) that is economically valuable and 4) subject to reasonable efforts to maintain secrecy. Famous example is Coca-Cola recipe, but trade secrets are not limited to products alone and can also be processes, confidential information such as business plans, and other know how.
  • In over 90% of trade secret cases, the misappropriator is someone the trade secret owner knew (former employee or business partner). Vast majority of cases involve misappropriation by electronic means.
  • Texas believes in the freedom to contract with certain statutory safeguards on the reasonableness of the restrictive covenant (non-compete, non-solicitation) as it relates to time, geographical area, and scope of activity restrained.
  • Unlike other States, Texas does not have a minimum salary for the restrictive covenant to be enforceable or differentiate enforceability of the covenant based on whether the employee was terminated or resigned.
  • Generally, Texas employee and customer non-solicitation covenants are adjudged based on the same reasonableness requirements as non-competes pursuant to Tex. Bus. & Com. Code Section 15.50(a).
  • Generally, reformation of a restrictive covenant is required under Texas law; however, the timing of the reformation (during the initial stages of litigation or upon a final trial on the merits) is still an open question.
  • In order to later revise restrictive covenant agreements, employer must provide additional consideration in Texas and it is highly recommended that such consideration is provided close in time to the employee’s execution of the new agreement.
  • Texas enacted its own trade secret statute – the Texas Uniform Trade Secrets Act- in 2013, modeled on the Uniform Trade Secrets Act (UTSA), and amended in 2017 to align more closely to the federal Defend Trade Secrets Act (DTSA) and controlling case law.
  • Minor differences exist in the definition of “trade secret” between TUTSA and DTSA, TUTSA lacks whistleblower immunity provisions and a specific mechanism for ex parte seizures, and TUTSA preempts related common law claims while the DTSA does not.
  • TUTSA provides greater scope of injunctive relief to employers in cases of trade secret theft than DTSA but will not enjoin a departing employee from using general knowledge, skill, and experience acquired during the employment relationship.
  • Texas appellate courts vary in applying the inevitable disclosure doctrine when granting injunctive relief under TUTSA, while the Texas Supreme Court recognizes that a competitive decision maker may not be able to resist acting on what they learn of a competitor’s trade secrets, even when acting in good faith.
  • TUTSA provides similar monetary relief to both DTSA and UTSA, including actual losses, unjust enrichment, reasonable royalties, exemplary damages, and attorneys’ fees, under specific circumstances.
  • Employer plaintiffs should carefully consider whether to bring DTSA and TUTSA claims or just TUTSA claims.  In addition to the differences in definitions and forms of relief, properly pleading a DTSA claim gives rise to federal jurisdiction, which allows for filing in removal to federal court and subjects the proceedings the Federal Rules of Civil Procedure instead of Texas Rules of Civil Procedure.  An analysis of the pros and cons of each set of rules should be part of any relevant litigation strategy.

We’ve written previously about Washington, DC’s non-compete bill scheduled to take effect on October 1, 2022. While DC Council has pulled back from enactment before to make last-minute revisions to the legislation—most notably in 2021 after the initially-passed bill would have barred non-competes entirely—there appear to be no such changes this time. The currently-enacted bill stands to take effect this Saturday, October 1. Any employer with workers who live in Washington, DC, or who spend more than 50% of their time working in Washington, DC regardless of where they live, should take steps now to make sure their agreements are in alignment with the new law going forward, including the prohibition on non-compete provisions for employees making less than $150,000 annually and the 1-year limit on such restrictions ($250,000 and 2 years for “medical specialists”).

Employers should also keep in mind that the new DC law applies not only to written agreements, but to “workplace policies” as well, including unwritten policies. Toward that end, even those employers who do not have restrictive covenants in place may consider implementing a written note to employees stating that there is no workplace policy, written or otherwise, imposing such restrictions.

webinar texas trade secrets and non-competes

Tuesday, September 27, 2022
1:00 p.m. to 2:00 p.m. Eastern
12:00 p.m. to 1:00 p.m. Central
11:00 a.m. to 12:00 p.m. Mountain
10:00 a.m. to 11:00 a.m. Pacific

REGISTER HERE

In the fifth installment of our 2022 Trade Secrets Webinar Series, our team will cover recent legal developments and trends in Texas trade secret and non-compete law and how it is similar to and diverse from other jurisdictions. This CLE webinar will also cover how these developments impact counseling, litigation, and deals involving companies with employees based in Texas.

Seyfarth attorneys Jesse Coleman, Matt Simmons, and Kevin Green will discuss:

  • How to define and understand trade secrets in Texas, including recent legal developments regarding the protection of ideas and confidential information
  • Texas’s policy on employee non-compete provisions and recent cases addressing non-compete, non-solicitation, and no hire agreements
  • How to effectively protect trade secrets and conduct trade secret investigations
  • Recent cases regarding alleged bad faith prosecution of trade secret claims
  • How forum selection, choice-of-law, and arbitration clauses may affect non-compete and non-disclosure agreements
  • Effectively utilizing non-compete and other restrictive covenants in business deals in Texas

Speakers
Jesse Coleman, Partner, Seyfarth Shaw LLP
Matt Simmons, Senior Counsel, Seyfarth Shaw LLP
Kevin Green, Associate, Seyfarth Shaw LLP

REGISTER HERE


If you have any questions, please contact Colleen Vest at cvest@seyfarth.com and reference this event. 

This webinar is accredited for CLE in CA, IL, NJ, and NY. Credit will be applied for as requested for TX, GA, WA, NC and VA. The following jurisdictions may accept reciprocal credit with these accredited states, and individuals can use the certificate they receive to gain CLE credit therein: AZ, CT, NH. The following jurisdictions do not require CLE, but attendees will receive general certificates of attendance: DC, MA, MD, MI, SD. For all other jurisdictions, a general certificate of attendance and the necessary materials will be issued that can be used in other jurisdictions for self-application. Please note that attendance must be submitted within 10 business days of the program taking place. If you have questions about jurisdictions, please email CLE@seyfarth.com. CLE credit for this recording expires on September 26, 2023.

federal non-compete ban legislationOn September 1, 2022, Representative Mike Garcia (CA-25) introduced H.R. 8755, titled The Restoring Workers’ Rights Act (the “RWRA”), which would effectively ban non-compete agreements for non-exempt (low-to-mid wage) employees nationwide. If enacted, the RWRA would follow similar legislation in states such as Illinois, Colorado, Washington, and others that have imposed statutory income minimums that must be met in order for employers to bind employees to post-employment restrictive covenants. Continue Reading California Representative Mike Garcia Introduces Federal Bill Barring Non-Compete Agreements

california lawyers associationRobert Milligan—Seyfarth partner and co-chair of the firm’s Trade Secrets, Computer Fraud & Non-Competes practice—is presenting the “Latest Developments in Trade Secrets Litigation and Protection” session at the California Lawyers Association 2022 IP Institute on Friday, November 4, in Dana Point, California.

For this panel, an experienced group of trade secret attorneys, who recently co-edited and co-authored the Trade Secret Litigation and Protection: A Practical Guide to the DTSA and CUTSA treatise, will lead the audience through a thorough discussion of the latest developments and trends in trade secrets litigation and protection. The discussion will cover updated pleading standards, tailoring requests for injunctive relief, sufficiency of trade secret identification statements, damages, effectively using forensic evidence, trade secret protection plans, and NDAs and other restrictive covenant agreements.

Find more information and register to attend the 2022 IP Institute on the California Lawyers Association website.