Although the Massachusetts noncompete bill had made substantial progress since its introduction, many more pressing issues in need of urgent legislative attention took priority, leaving the bill stalled toward the end of the legislative session (ending today, July 31). It is thus now fair to report with certainty that the bill is dead for this legislative session.
Questions have already arisen about what will happen next year. The answer: it will likely be reintroduced, but with modifications based on input that had been solicited and received from many different quarters.
Recap of the bill’s progress through last session:
Two noncompete bills were introduced in December of 2008, one by Representative Will Brownsberger and the other by Representative Lori Ehrlich. The Brownsberger Bill would have aligned Massachusetts with California, banning employee noncompetes entirely. The Ehrlich Bill took a different approach, primarily imposing certain notice requirements and an income threshold so that employees earning under a certain amount would not be subject to noncompetes at all.
By the spring of 2009, the two reps had worked extensively together – soliciting input from many people, reflecting many divergent interests – to design a compromise bill that would balance the needs of employers large and small with those of the employees, from the most highly paid and sophisticated to the least.
Over the course of the next year, the two reps and others involved in the process (I was the lead drafter of and advisor on the original Ehrlich Bill and continued in that role for the compromise bill) solicited – and received – some extremely constructive suggestions for ways to improve the bill. As the process went on, it quickly became clear that for every change that might be made, someone might want the language back the way it was. By way of example, early on, a number of the people we heard from opposed the use of garden leave clauses. Based on what we were hearing, the garden leave option was removed. Later, as we heard from more people and as people came to understand the benefits of a garden leave option – and, in particular, that their use was not mandatory, it seemed likely that the garden leave clause would make its way back in.
While that education/investigation process continued, in March of this year, the bill was favorably reported out of committee and, on May 25, was submitted to the Judiciary Committee for its consideration. Most recently, it (along with various other bills) was attached to part of an economic development bill. Although the economic bill passed in the house, several of the attached bills – including the noncompete bill – were removed. As a result, the bill would not pass this year.
Future of the bill:
The bill has received a substantial positive response. Although reports vary as to the level of opposition, most of the opposition focuses not on the bill’s fundamental purpose, but rather, on certain aspects of the bill. Those aspects are primarily the $75,000 income requirement for someone to be bound by a noncompete and the ability for a former employee to recover legal fees. Accordingly, the bill will almost certainly be reintroduced in the next session with some modifications based on the input already received and other input still being sought.
Trademark law is designed primarily to prevent consumer confusion with respect to the identification of the source of goods products. As a general rule, any word, symbol, or combination of words and symbols used to identify the source of goods or products in commerce can potentially be protected under federal trademark law (the Lanham Act). Unlike the protections afforded by copyright and patent laws, but like those afforded by trade secret law, trademark protection is potentially unlimited in duration.
eBay has reportedly been sued by EPRT Ventures for $3.8 million. The claim appears to be not only that eBay supposedly infringes on certain patents, but that eBay misappropriated trade secrets disclosed to it on a purportedly confidential basis. The lawsuit is pending in the United States District Court for the District of Delaware. Read more at 
You are planning to terminate an employee or you have an employee who is in the process of resigning – or has already resigned. The employee is not subject to a noncompete, or maybe there is some question about the enforceability of his noncompete. Can you bind the employee to a noncompete? In a word (well, two words), quite possibly.
Each time a new technology rolls out, legal decisions follow. Social media is the latest. Remember the cyberstalker? How about Facebook’s lawsuit against Power.com? Or the class action against Facebook over its privacy settings?
Lawsuits over trade secrets typically involve things like customer lists, formulas, manufacturing processes, etc. Can the location of houses for use as movie sets be a trade secret? Yep. Well, at least that’s the claim made by a company in Hollywood. (Here’s an article about it from Reuters: 
