trade secrets 2022 webinar series recap and takeaways

Throughout 2022, our dedicated Trade Secrets, Computer Fraud & Non-Compete practice group hosted a series of CLE webinars that addressed significant trade secret and restrictive covenant issues facing companies today. This year’s series included:

  1. 2021 Trade Secrets & Non-Competes Year in Review
  2. Protecting Trade Secrets and Enforcing Restrictive Covenants Internationally
  3. Employee Mobility & Its Effects on Trade Secrets and Non-Competes
  4. Anatomy of a Restrictive Covenant
  5. How and Why Texas Is Different When It Comes to Trade Secrets and Non-Competes
  6. How Multijurisdictional Businesses Should Approach Non-Competes
  7. Protecting Confidential Information and Client Relationships in the Financial Services Industry
  8. Overview of Non-Compete Legislation and Enforcement Issues from 2022

As a conclusion to our 2022 webinar series, we compiled a list of key takeaway points for each program. For those who missed any of the programs in this year’s series, recordings of all of our past webinars are available on the blog, or you may click on the link for each webinar below to view the recording.

Continue Reading 2022 Trade Secrets Webinar Series: Takeaways & Recordings
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In the final 2022 webinar, Seyfarth attorneys Kate Perrelli, Dan Hart, and Dallin Wilson discussed new and pending legislation and enforcement issues for non-competes.

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

  • State law on restrictive covenant agreements continues to evolve, with more states imposing compensation thresholds, notice requirements, penalties, and other obligations on employers that make enforcement of restrictive covenants more difficult. Significant changes went into effect in 2022 in Colorado, the District of Columbia, Illinois, and Oregon, with additional states likely to make significant changes in 2023.
  • Increased federal attention to restrictive covenants, including attention from the FTC and possible federal legislation, places additional risks on employers.
  • Strategies for rolling out and enforcing restrictive covenants should be carefully considered at the time of drafting.  Penalties, fee shifting provisions, and putative employee class actions add to risks that employers face.
  • Employers should revise their template agreements now if they have not been updated in the past year.

You can view a recording of the webinar and all other webinars in our Trade Secrets Webinar Series here.

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Seyfarth attorneys Joshua Salinas and Michael Wexler and digital forensic technologist James Vaughn (iDiscovery Solutions) presented a webinar on December 19, 2022, entitled, “Trade Secret Protection: Through the pandemic and beyond.” The experienced panel discussed the latest developments and trends in trade secret protection as businesses look to reestablish themselves in a post-pandemic world, including:

  • Workplace hot topics, such as the Great Resignation, Quiet Quitting, and the new Work From Home and Hybrid-Work world
  • Heightened risks and best practices for trade secret protection with a more remote workforce and digital expansion
  • Forensic preservation, collection, and presentation considerations
  • Predictions about the potential benefits and risks regarding trade secret protection with emerging technologies, such as artificial intelligence (“AI”), the metaverse, and Web3

The webinar was co-sponsored by the Federal Bar Association and myLawCLE. 

If you or your organization is interested in learning more about these topics, please feel free to contact our panelists: Joshua Salinas, Michael Wexler, and James Vaughn.

AIPLA-trade-secret-summit

The American Intellectual Property Law Association recently completed its Trade Secrets Summit in Miami, Florida. The topics for the conference included:

  • A legislative update
  • Best practices for identifying trade secrets in litigation
  • Developments in trade secret trials and changing trends
  • Arbitration of trade secret disputes
  • Recent innovations in trade secret protection technologies and forensics (Alex Meier – panelist)
  • Damages in trade secret cases (Marcus Mintz – panelist)
  • Protecting artificial intelligence generated inventions as trade secrets
  • Criminal and government investigations of trade secret theft
  • What constitutes a trade secret versus confidential information or general skills and knowledge

We always enjoy learning about how parties, lawyers, and judges are addressing novel or complex issues relating to trade secret litigation or protection. Some of our major takeaways from the conference were:

  • Increased interest in damages. Litigants are increasingly seeking monetary damages rather than injunctive relief for misappropriation. This trend is driven in no small part by some of the blockbuster damages awards generated by misappropriation cases over the last decade.
  • Strong preference for court over arbitration. Conference attendees had a near-universal preference for litigating misappropriation cases in court rather than arbitration when asserting a trade secrets misappropriation claim. While arbitration can offer increased confidentiality and more bespoke attention, limitations on discovery and the perceived lower value of injunctive relief generally make arbitration a less desirable venue than court for trade secrets plaintiffs.
  • Don’t stick with defaults for retention and monitoring. Many companies follow their default or out-of-the-box settings for network monitoring and exfiltration flags. Companies should consider whether different or longer-duration records should be kept—particularly when the companies have a largely remote workforce.
  • Engage your damages expert early. A skilled, experienced damages expert can help identify a damages theories early and assist in making necessary disclosures under applicable civil procedure rules. An expert will identify necessary discovery inquiries and identify key admissions to obtain in depositions. Testifying experience is critical because damages testimony often comes at the end of testimony and must be concise, clear and persuasive to fact finders.
  • Garden-variety misappropriation very unlikely to garner criminal attention. While misappropriation by a nation-state actor will often generate interest in a potential criminal investigation, the garden-variety case where an employee leaves a company and misappropriates information is unlikely to pique the government’s interest.

If you or your organization is interested in learning more about the AIPLA, please visit the AIPLA’s website or contact us to learn more about Seyfarth’s involvement in the AIPLA.

non-compete update for 2022

Wednesday, December 21, 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 final installment of our 2022 Trade Secrets Webinar Series, our team will focus on new legislation and the enforcement of non-competes. Any company that seeks to use non-compete and non-solicitation agreements to protect its trade secrets, confidential information, client relationships, goodwill, or work forces needs to stay informed of the varied and ever-evolving standards in each state.

Seyfarth attorneys Kate Perrelli, Dan Hart, and Dallin Wilson will address the following topics:

  • Recent state law changes related to restrictive covenants and non-competes and the potential impact of these changes
  • Proposed restrictive covenant and non-compete legislation in various states
  • Update on proposed federal non-compete legislation
  • Trends we are seeing in restrictive covenant legislation and what changes we anticipate we may see in 2023

Speakers 
Kate Perrelli, Partner, Seyfarth Shaw LLP
Dan Hart, Partner, Seyfarth Shaw LLP
Dallin Wilson, 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 December 20, 2023.

massachusetts-trade-secrets-act-four-years-on

The District of Massachusetts recently held that garden leave payments, whereby a former employee subject to a restrictive covenant is paid by the former employer for the duration of the restrictive period, do not constitute “wages” under the Massachusetts Wage Act.

Continue Reading Federal Court Determines that Garden Leave Payments Under Massachusetts Non-Compete Law Are Not Wages, Limiting Former Employees’ Leverage Under Wage Act

Seyfarth’s Trade Secrets, Computer Fraud & Non-Competes practice group is pleased to provide the 2022-2023 edition of our 50 State Desktop Reference, which surveys the most-asked questions related to restrictive covenants and trade secrets in all 50 states, plus the District of Columbia.

For the company executive, in-house counsel, or HR professional, we hope this guide will provide a starting point to answer your questions about restrictive covenants and protecting your company’s most valuable and confidential assets.

Request a Copy

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

strafford logo

On Wednesday, November 30 at 1 p.m. Eastern, Robert Milligan—Seyfarth partner and co-chair of the firm’s Trade Secrets, Computer Fraud & Non-Competes practice—is presenting the “Negotiating Enforceable Noncompetition and Nonsolicitation Agreements: Compliance with State Statutes and Case Law” webinar for Strafford.

The experienced panel will discuss current legislative and case law trends regarding noncompetition and nonsolicitation agreements, provide best practices for structuring enforceable contracts, and explain determining whether existing agreements are lawful. Included in the webinar, will be a discussion on the below topics:

  • What are the recent legislative changes impacting restrictive covenants?
  • What are the current case law decisions affecting noncompete and nonsolicitation agreements?
  • How can employers structure restrictive covenants to comply with new laws and decisions?
  • How can employment counsel analyze existing agreements for compliance?

For more information and to register for the program, visit the Strafford website.

trade secrets litigation

Many restrictive covenant agreements rely on various abbreviations to streamline the contractual language, including most notably the use of “Company” as a stand-in for the employer’s name. Additionally, these agreements often state that they inure to the benefit of the employer’s parent, subsidiaries, and other affiliates. However, a recent case in federal court demonstrates the importance of carefully defining terms to best protect the employer’s legitimate business interests.

Continue Reading “What’s in a Name?” A Shortened Restrictive Covenant Duration, Perhaps
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In Seyfarth’s seventh installment of the 2022 Trade Secrets Webinar Series, Seyfarth partners Jeremy Cohen and Kevin Mahoney focused on trade secret and client relationship considerations in the banking and financial services industry.

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

  • When it comes to protecting your secrets, “an ounce of prevention is worth a pound of cure.” Act proactively and consistently in protecting your trade secrets.
  • Create a culture of confidentiality.
  • Make sure newly-hired employees comply with their obligations to former employer as the consequences can be costly.
  • Pay attention to evolving state and federal laws affecting enforceability of restrictive covenants.
  • For financial firms and institutions, it is important to understand the interplay between FINRA and the court system. Although the ultimate decision maker will be a FINRA arbitration panel, firms and institutions can still receive significant benefits from pursuing injunctive remedies in a court of law.
  • If you are thinking about joining the Protocol for Broker Recruiting, be sure to review your existing agreements before doing so in order to understand what protections you may be giving up once you join the Protocol.

You can view the recording and the slide deck on the Seyfarth website.