The 2020 edition of The Legal 500 United States recommends Seyfarth Shaw’s Trade Secrets group as one of the best in the country. Nationally, for the fifth consecutive year, our Trade Secrets practice earned Top Tier.

Based on feedback from corporate counsel, Seyfarth partner Michael Wexler was ranked in the editorial’s “Leading Lawyers,” and Robert Milligan, Katherine Perrelli, Erik Weibust, and J. Scott Humphrey were also recommended in the editorial.

The Legal 500 United States is an independent guide providing comprehensive coverage on legal services and is widely referenced for its definitive judgment of law firm capabilities. The Legal 500 United States recognizes and rewards the best in-house and private practice teams and individuals over the past 12 months. The awards are given to the elite legal practitioners, based on comprehensive research into the US legal market.

Tens of millions of employees have been laid off or furloughed as a result of the COVID-19 pandemic. Now that the reopening process has begun in most states, many of those employees are being rehired and reactivated. For the month of May 2020, the unemployment rate actually started to decline after the massive increase over the prior few months, as businesses began the return to normal and employers who obtained relief from the Paycheck Protection Program (PPP) under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) restored their workforces to pre-pandemic levels in order to secure loan forgiveness.

One thing that employers may not be considering when they rehire laid off or furloughed employees is what impact this has on prior restrictive covenant agreements with those employees. We previously discussed whether non-competes are enforceable against employees who are laid off. But what about employees who are laid off and then rehired, or furloughed and then reactivated? Are restrictive covenant agreements signed by employees prior to the layoffs or furloughs still enforceable if they ultimately leave and join a competitor down the road? The answer depends on whether the employee was technically, even if temporarily, laid off rather than furloughed, and what state’s law applies. Continue Reading No Good Deed Goes Unpunished: Return to Work May Mean Reduced Protections for Trade Secrets and Customer Goodwill

On Tuesday, July 14th at 1 p.m. Eastern, Seyfarth partner Robert Milligan is presenting a 90-minute Strafford CLE webinar, “Noncompetes Under New State Law Restrictions: Wage Requirements, Notice, Time, Layoffs, Proposed Federal Legislation.”

The program will discuss recent state legislative changes and case law trends regarding non-compete agreements and other restrictive covenants in New York, California, Illinois, Washington, and other states, as well as look at the proposed changes to federal labor law. The panel will offer best practices for structuring enforceable contracts and explain how to determine whether existing agreements are lawful.

The panel will review these and other issues:

  • What caused the growth in the use of non-competition provisions in employment contracts?
  • How and why are states restricting the use of non-competition agreements?
  • How can a non-competition provision be implemented properly in non-employment situations?

For more information or to register for this webinar, visit the Strafford website.

The American Intellectual Property Law Association’s Trade Secret Summit will be held virtually this year. The Summit will consist of two 45-minute presentations every Wednesday beginning on August 12 and ending on September 2. Erik Weibust is Vice Chair of the AIPLA’s Trade Secret Committee, which hosts the Summit each year, and Scott Humphrey will be moderating a panel this year entitled “The Use of Litigation Funding in Trade Secret Cases,” with panelists from two major litigation funders, Longford Capital and Omni Bridgeway. This panel discussion will cover several of the topics discussed in our April 13th blog post, “Protecting Trade Secrets Without Breaking the Bank (Or even Negatively Affecting Profits),” which was subsequently republished in the Intellectual Property & Technology Law Journal. After each session, there will be 30 minutes of virtual networking complete with breakout rooms to make the networking more fun and effective. Participants will be able to register for the entire series or for individual days. More information to follow, including registration, when it is available.

 

Seyfarth attorneys Erik Weibust, Alison Eggers, and Anne Dunne recently published an article entitled “Why It’s Important to Bake Restrictive Covenants into Food and Beverage Industry Agreements” in Retail & Food Best Practices, an industry publication for the retail and food industry.

Recipes, ingredients, formulas, and processes are sometimes kept secret for generations in the food and beverage industry, and protecting these secrets can be essential to a company’s survival. Threats to trade secrets are not only limited to high-tech companies and defense contractors, nor is trade secret misappropriation solely the provenance of hackers and hostile foreign actors. Indeed, most misappropriation is carried out by employees and business partners, either intentionally or because of a basic lack of understanding of one’s obligations. But once a secret is out, it is no longer a secret, even if the disclosure was not malicious or intentional. Likewise, customer and vendor relationships are paramount in the food and beverage industry, and a brand or a relationship that took years to cultivate can be destroyed in an instant. One relatively simple way for companies in this industry to protect their trade secrets and goodwill is to include restrictive covenants in their agreements with employees, franchisees, distributors, vendors and other business partners. In their article, Erik, Alison, and Anne discuss how best to bake these types of provisions into food and beverage industry agreements.

 

As a special feature of our blog—guest postings by experts, clients, and other professionals—please enjoy this blog entry from Rachel Bailey, a Legal Data Expert for Lex Machina. 

You may have previously read Seyfarth Shaw’s excellent analysis of Lex Machina’s Trade Secret Litigation Report. There are some big picture trends in the report that reflect the trade secret litigation landscape in the federal district courts. A common misconception is that Lex Machina is a reports company. While we do create reports using our data, ultimately we are a platform that updates daily with analytics that allow users to make data-driven decisions for litigation strategy, business development, risk assessment, and other uses. Continue Reading A Deeper Dive into Trade Secret Legal Analytics

The “return to normal” in courts across the country has brought with it a flurry of trade secrets decisions that address some interesting and instructive issues, both procedurally and substantively. In the last ten days alone, courts in Illinois, Massachusetts, and Texas have weighed in on issues such as the specificity necessary to assert a viable trade secrets claim, the enforceability of a restrictive covenant against an employee who is laid off temporarily but quickly finds a new role and is rehired by the same organization, and the validity of a $700,000,000 jury verdict that was based on a jury question that combined multiple theories of liability. Let’s take a look: Continue Reading Courts Across the Country Continue to Address Trade Secrets Issues

Webinar
3:00 p.m. to 4:00 p.m. Eastern
2:00 p.m. to 3:00 p.m. Central
1:00 p.m. to 2:00 p.m. Mountain
12:00 p.m. to 1:00 p.m. Pacific

REGISTER HERE

Join Seyfarth attorneys Dean Fanelli, Dawn Mertineit, and Kate Perrelli, along with in-house counsel Julie McCarthy, General Counsel and Vice-President of Legal Genomics Institute of the Novartis Research Foundation, for a webinar about defining and protecting trade secrets in the pharmaceutical industry.

Even in “normal” times, pharmaceutical companies can easily spend in excess of $1 billion for the discovery and development of a new pharmaceutical product. Trade secrets are an invaluable intangible asset that, in conjunction with a pharmaceutical company’s patents and trademarks, form the foundation of a company’s overall intellectual property strategy. In a world racing to find an effective and safe vaccine for COVID-19 (as well as in the midst of R&D on other products/therapies), while simultaneously having a substantial portion of the workforce working from home, the stakes are even higher. Proper implementation of a sound trade secret strategy at an early stage is essential for both large and small pharmaceutical companies to protect their confidential proprietary information, especially in light of the current pandemic and in preparation for any future pandemics.

The panel will address the following topics, among others:

  • Defining and understanding trade secrets in the pharmaceutical market, including how federal and state trade secrets statutes and decisions may impact the protection of trade secrets
  • How work from home policies and “return to work” plans can increase risk, and best practices for protection of trade secrets in light of these risks
  • How best to protect trade secrets in light of increased collaboration and competition in the fight against COVID-19
  • The in-house counsel perspective on protection of trade secrets in light of the current pandemic
  • Our panel has significant experience advising clients in the pharmaceutical industry on trade secret issues, litigating trade secret cases, and drafting protection agreements

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

*CLE Credit for this webinar is approved in the following states: CA, IL, NJ, and NY. CLE Credit is pending for GA, TX, and VA. Credit will be applied for, but cannot be guaranteed, in all other eligible jurisdictions. Please note that in order to receive full credit for attending each webinar, the registrant must be present for the entire session.

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

As a result of the COVID-19 pandemic and in response to what many are calling the “new normal,” companies have rolled out new (and often unsecure) technology, and have relaxed existing security measures in the name of efficiency and convenience. As companies continue to adapt to these rapidly changing circumstances, they may inadvertently place the protection of their trade secrets on the backburner. However, if companies want to maintain control over their most important intangible assets, they must affirmatively act to protect their trade secrets during the pandemic and as the economy continues to reopen.

During this webinar, Erik and Michael will discuss heightened threats to trade secrets as a result of COVID-19; what constitutes “reasonable measures” to protect trade secrets in this new environment; enforcing non-competes during times of high unemployment; preparing for and pursuing trade secret litigation while courts are largely shut down; and succeeding in a post-pandemic world.

Additional information and registration can be found here.

We previously wrote about whether Peloton instructors are (or should be) subject to non-compete agreements owing to their prominent role as the “face” of the company. Today, we take a look at another “face” of Peloton (and other companies), as we consider the use of restrictive covenants for paid corporate spokespeople, such as actors who appear in company ads and “influencers” who use their social media popularity to promote products. Continue Reading Preventing the “Face” of Your Company from Doing an About-Face for a Competitor