On March 3, 2020, Massachusetts Premier Soccer LLC, doing business as Global Premier Soccer (“GPS”), filed a complaint in the US District Court for the District of Massachusetts, alleging that two of its former management-level employees engaged in a scheme to divert business away from GPS to a competitor, Surf Club. GPS asserts claims for false advertising and promotion under the Lanham Act, tortious interference with contractual relations and prospective economic advantage, breach of non-competition and non-solicitation agreements, civil conspiracy, unfair and deceptive practices under Massachusetts and South Carolina law, and common law unfair competition.
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Top 10 Developments and Headlines in Trade Secret, Non-Compete, and Computer Fraud Law for 2019 & 2020
Continuing our annual tradition, we have compiled our top developments and headlines for 2019 & 2020 in trade secret, non-compete, and computer fraud law. Here’s what you need to know to keep abreast of the ever-changing law in this area.
1. Another Year, Another Attempt in Congress to Ban Non-Competes Nationwide
Senators Chris Murphy (D-Conn.) and Todd Young (R-Ind.) introduced legislation in 2019 entitled the Workforce Mobility Act (“WMA”). The WMA seeks to ban non-compete agreements outside of the sale of a business or dissolution of a partnership.
Not only would the WMA abolish covenants not to compete nationwide, outside of the extremely narrow exceptions highlighted above, but it would also provide the Department of Labor (DOL) and Federal Trade Commission (FTC) with broad enforcement power. If enacted, the legislation would empower the FTC and DOL to enforce the ban through fines on employers who either fail to notify employees that non-compete agreements are illegal or who require employees to sign covenants not to compete. Additionally, the WMA establishes a private right of action for all employees allegedly aggrieved by a violation of the WMA.
The WMA contains a carve out for parties to enter into an agreement to protect trade secrets. As currently drafted, the WMA does not abrogate the scope of protections provided by the Defend Trade Secrets Act.
Presently, there are no generally applicable federal restrictions on non-compete agreements, and enacting such a law would have to pass Constitutional muster. We expect to see continued activity at the federal legislative level to attempt to ban or limit the use of non-competes.
2. New State Legislation Regarding Restrictive Covenants
Massachusetts’ High Court Pumps the Brakes on Equitable Tolling of Restrictive Covenant
For the first time in 15 years, the Supreme Judicial Court (“SJC”), Massachusetts’ highest court, issued a decision analyzing the enforceability of non-solicitation covenants, the distinction between such covenants in the context of the sale of a business versus employment, and equitable tolling of restrictive covenants. As set forth below, this decision serves as an important reminder to businesses who impose restrictive covenants governed by Massachusetts law.
Factual Background
While the factual background of the case is long and twisty, only a few key details are necessary to rehash here. The defendant Matthew McGovern (“McGovern”) entered into a restrictive covenants agreement with his former co-shareholders of the Prime Motor Group (“Prime”), in exchange for plaintiffs’ agreement to buy out McGovern’s minority share in Prime with no discount. The agreement, which was made a year after McGovern had been terminated as an employee and as part of a resolution of the parties’ dispute concerning McGovern’s alleged violation of an earlier restrictive covenants agreement, prohibited McGovern from hiring, soliciting, or encouraging Prime employees to leave Prime for 18 months. The agreement contained no tolling provision, but provided that plaintiffs would be entitled to injunctive relief if McGovern breached, without needing to prove irreparable harm.
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That Was Quick—Massachusetts Legislature Seeks to Clarify 2018 Non-Compete Law, and to Exempt Physician Assistants
Last summer, after a decade of fits and starts, and just minutes before the end of the 2018 legislative session, the Massachusetts legislature finally passed comprehensive non-compete reform, which went into effect on October 1, 2018. It had become almost a sport watching what the legislature would do at the end of each year with that current year’s version of non-compete reform, which ranged from all out bans to merely codifying the common law. (For a recap of the many twists and turns over the years, here is just a smattering of blog posts on the topic)
If you assumed that we would get 2019 off, you would be mistaken. As we pointed out in the pages of Massachusetts Lawyers Weekly and Law360, the 2018 law caused as much confusion as it did clarity, and we predicted that amendments and clarifications would be necessary. And it didn’t take long for the first such clarification to be proposed.
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State Attorneys General Keep Pressure on FTC to Regulate Non-Competes
As we previously covered, a group of 18 state attorneys general in July filed comments with the Federal Trade Commission (“FTC”), asking the FTC to incorporate labor concerns when reviewing corporate mergers and to use its enforcement powers under the Sherman Act to stop the use of non-compete, non-solicit, and no-poach agreements in many situations. Many of those same attorneys general recently sent another letter to the FTC, this time urging it to use its rulemaking authority “to bring an end to the abusive use of non-compete clauses in employment contracts.”
In the most recent letter, the attorneys general endorsed the arguments presented in a March 20, 2019, petition submitted to the FTC by various labor unions, public interest groups, and legal advocates, requesting that the FTC initiate rulemaking to classify abusive worker non-compete clauses as an unfair method of competition and per se illegal under the FTC Act for low wage workers or where the clause is not explicitly negotiated. As they did in their previous letter, the attorneys general contend that non-competes “deprive workers of the right to pursue their ambitions and can lock them into hostile or unsafe working environments.” The attorneys general also argue that the arguments in support of non-compete clauses are unpersuasive and that employers can use other “less draconian” ways to recoup their investment in job training, methods of business, and other intangibles. The attorneys general further argued that non-competes burden businesses seeking to hire new employees, which in turn inhibits innovation and drives up consumer costs by suppressing competition.
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Fettucine Al Fraudo—New York Pizzaiolo in Hot Water After Alleged Theft of Secret Pasta Recipe
Manhattan restaurant Sottolio, Inc., d/b/a Norma Gastronomia Siciliana hired Giuseppe Manco—“a noted Italian pizza chef, or pizzaiolo”—to consult on its menu. At the same time, Manco and his wife purchased a 9% interest in the restaurant, becoming co-owners of the business. Manco signed a non-compete and non-disclosure agreement in connection with his hiring, under which Manco agreed, for ten years, to not replicate, copy, or duplicate Plaintiff’s confidential information, including its “signature recipes” for arancine, pasta alla norma, caponata, anelletti al forno, and carbonara di mare, or to use the signature recipes within a ten mile radius of Sottolio’s Manhattan restaurant.
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Maryland Low-Wage Workers Are Exempt from Non-Compete Clauses
Joining the wave of jurisdictions limiting the competitive restraints employers may place on low-wage employees is Maryland. Maryland’s Noncompete and Conflict of Interest Clauses Act (the “Act”)―which passed without Governor Larry Hogan’s signature on May 28, 2019―will take effect on October 1, 2019. Recognizing that certain non-compete and conflict-of-interest clauses violate Maryland’s public policy and are therefore null and void, the Act prohibits employers from mandating that certain employees not join another employer or become self-employed in a same or similar business area. The covered employees are those who earn equal to or less than $15 per hour or $31,200 annually. This prohibition applies even if the parties entered into the employment agreement outside of Maryland and is not restricted to only post-employment actions. That is, a qualified employee may work for a competitor even during the term of employment.
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Maine Governor Restricts Restrictive Covenants
On June 28, 2019, Governor Mills signed LD 733, An Act To Promote Keeping Workers in Maine, into law. The Act places limits on non-compete agreements and bans restrictive employment agreements.
Non-Compete Agreements
The Act defines a non-compete agreement as one restricting the employee “from working in the same or similar profession or in a specified geographic area for a certain period of time following termination of employment.”
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Upcoming Webinar! Enforcement of Non-Competes: Increasing Difficulty Depending on State
On Tuesday, August 20, 2019, at 12:00 p.m. Central Time, in Seyfarth’s fourth installment of its 2019 Trade Secrets Webinar Series, Seyfarth attorneys will focus on the enforcement of non-competes and how the difficulty of enforcement of these restrictive covenants vary by state. Any company that seeks to use non-compete and non-solicitation agreements to protect
First UK Supreme Court Decision on Restrictive Covenants for 100 years
The Supreme Court in the UK, the highest court in the country, last week ruled on a restrictive covenant case for the first time in 100 years [Tillman v Egon Zehnder Ltd [2019] UKSC 32 (3 July 2019)]. It has clarified important points on interpretation, the key takeaway being it will now be easier for employers to enforce covenants against departing employees.
Covenants Must Be Necessary to Protect Employer’s Interests
It has long been established in the UK, that restrictive covenants are an unlawful restraint of trade unless they go no further than is necessary to protect the employer’s legitimate proprietary interests. The Supreme Court recognized as such in quoting the colorful language of a court decision from the 15th century criticizing a plaintiff employer looking to enforce a covenant:
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