Our legal system is far from perfect. And, unfortunately, it frequently permits abuses. In the context of restrictive covenants and trade secret claims, oftentimes it’s an overly-aggressive former employer bringing to bear resources far greater than the defendant’s to achieve some improper competitive purpose. For example, sometimes an employer may try to crush a fledgling … Continue reading New Massachusetts noncompete decision offers hope to employees subject to overreaching claims
Episode 15 of Fairly Competing is out! In this episode, John, Ben, and Russell discuss what to do when you receive a cease and desist letter, including how to prepare for it and how to respond to it. And, because this show is for you, please email John, Ben, or me with any topics you’d like … Continue reading Fairly Competing, Episode 15: Cease and Desist Letters
The thought of trade secrets tends to conjure up images of cloak and dagger operations, secret laboratories, the secret formula to Coca-Cola, Google’s search algorithm, and the like. But trade secrets are a much broader category of information. In fact, it’s been said that every patent starts as a trade secret. Whatever the particular information, … Continue reading Fair Competition Law Basics: What is a trade secret?
Legislative activity is picking up again, and therefore so are we. This year, there have been a total of 67 noncompete bills in 22 states,1 plus four pending federal noncompete bills and a bill to rein in D.C’s new law before it becomes effective (which is anticipated to be in April 2022). And, of course, the FTC … Continue reading 21 States with 66 Pending Noncompete Bills: Florida
As you will recall, 37 states — i.e., more than 3/4 of all states — have been taking a hard look at their noncompete laws in the past several years, with 24 states, plus D.C., making changes. As you may also recall, in December, we reminded you that the compensation thresholds (below which noncompetes cannot be used … Continue reading What2Watch4: Two More Upcoming Noncompete Law Changes — Colorado and D.C.
Starting on January 1, the compensation thresholds below which noncompetes cannot be used for employees in each of Illinois, Oregon, and Washington will increase. Specifically, in Illinois noncompetes will no longer be useable for employees earning (or who are expected to earn) under $75,000 (up from $13 per hour). Also, Illinois went even further and created … Continue reading Happy New Year! Are your noncompetes ready?
As noted in our post, Ask 70 Trade Secret Lawyers and Paralegals about Noncompetes and Get One Opinion, the FTC and DOJ encouraged the submission of public comments following the “Making Competition Work: Promoting Competition in Labor Markets” workshop (the “December 2021 Workshop”). No surprise, we were not the only ones to submit comments. In total, there … Continue reading We’re not the only ones: 26 other submissions to the FTC/DOJ about noncompetes and other agreements
Happy holidays! Episode 13 of Fairly Competing is out! In this episode, John, Ben, and Russell take a look back on some of the more significant developments in trade secret and restrictive covenant law over the past year, and try to give some insight into what to expect in the coming year. And, because this … Continue reading Fairly Competing, Episode 13: Year in Review
The FTC’s and DOJ’s December 6 and 7 Virtual Public Workshop Exploring Competition in Labor Markets is almost here, and the agenda has been released. While it’s quite possible that noncompetes (and other restrictive covenants) will be discussed at any point (as happened in last year’s workshop), the following panels appear to be the most likely segments … Continue reading The FTC’s and DOJ’s Competition Workshop is Next Week: What to Expect
Thanksgiving seemed like a good time to address civility. Yes, I know the topic seems a bit unrelated to the subject matter I usually cover here, but bear with me, it is directly relevant. In fact, John Marsh, Ben Fink, and I discuss this topic in Episode 9 of our Fairly Competing podcast because it tends to … Continue reading A (Renewed) Plea for Civility
As we await the FTC and DOJ’s December 6 and 7 Virtual Public Workshop Exploring Competition in Labor Markets, it’s important to know that on November 12, the FTC posted a draft Strategic Plan for Fiscal years 2022-2026. The 30-page document contains two express references to noncompetes. Under the framework of “[I]improv[ing] compliance” with FTC orders … Continue reading The FTC’s Draft Strategic Plan: What it says about noncompetes and other restrictive covenants
The fun never ends. Apparently two days ago (November 3, 2021), a bill (the “Employment Freedom for All Act”) was introduced in the House by U.S. Congresswoman Claudia Tenney to “void existing non-compete agreements for any employee who is fired for not complying with an employer’s COVID-19 vaccine mandate, and for other purposes.” The text of … Continue reading A New Federal Bill Pits Covid Vaccines Against Noncompetes (you heard that right)
As regular readers of this blog know, I focus on providing content and rarely suggest educational programs to attend. However, given that CLE programs are still remote and can be hard to identify, I thought I’d take a moment to call out a few upcoming, content-rich programs that I and leading practitioners, in-house counsel, experts, and scholars … Continue reading Upcoming Trade Secret and Restrictive Covenant Law Learning (Fall 2021)
Misconceptions about noncompetes abound. And, as noncompete agreements are increasingly in the cross-hairs of the media and legislators, it has become increasingly clear that some of the most vocal detractors are (as Sam Harris would say) aggressively misinformed. More troubling, the mistaken beliefs are often on foundational points, and they are repeated so often that they … Continue reading 15 Common Myths About Noncompetes Debunked
Ask two lawyers for their opinion and you’ll get three opinions. But I asked almost 60 lawyers (and paralegals) and got only one opinion — consistent with the last time, when I asked 21 lawyers and a paralegal and got the same opinion. The opinion is set out in a July 14 letter we collectively submitted … Continue reading Ask 59 Trade Secret Lawyers and Paralegals About Noncompetes and Get One Opinion
Oregon is back in the news! New Hampshire’s bills, which were supposed to be next in this series, will have to wait. About three weeks ago, I told you that Oregon had three pending noncompete bills this year. Well, that’s not true anymore. As of last Friday (May 21, 2021), Oregon has yet one more amendment … Continue reading 20 States with 59 Noncompete Bills: Oregon – Update – One Bill Becomes Law
Episode 7 of Fairly Competing is out, and it’s a departure from our usual. We are making available (through this episode and the last) Trade Secret Roundtable on Developments and Emerging Issues, a program presented by NERA Economic Consulting at which Ben Fink, John Marsh, and I were panelists, along with Dr. Stephanie Demperio and Vicki Cundiff. The … Continue reading Fairly Competing, Episode 7: Trade Secret Roundtable on Developments and Emerging Issues (NERA Economic Consulting Program, Part 2)
Are you sure your company is taking reasonable measures to protect the information it claims is a trade secret? Vicki Cundiff (of Paul Hastings), Mark Whitaker (of Morrison & Foerster), and Gabe Ramsey (of Crowell & Moring) gave a nice presentation today at the AIPLA Spring Meeting, during the trade secret segment, moderated by Neal Weinrich (of … Continue reading What do tugboats and radios have to do with trade secrets?
If you’ve been following along, you know that there have been 65 noncompete bills in 25 states so far this year1 — excluding the two pending federal noncompete bills, D.C.’s new law to ban most noncompetes, and any proposed bills that may be circulating, but have not yet been filed. Five bills (one in each of five states2) have … Continue reading 21 States with 60 Pending Noncompete Bills: Nevada
Missouri at last! But, before turning to it, for those keeping count, there have been 65 noncompete bills in 25 states so far this year1 — excluding the two pending federal noncompete bills, D.C.’s new law to ban most noncompetes, and any proposed bills that may be circulating, but have not yet been filed. Five bills (one in … Continue reading 21 States with 60 Pending Noncompete Bills: Missouri
Episode 2 of Fairly Competing is out! In this episode, Ben Fink, John Marsh, and I explain what noncompetes and other restrictive covenants are, how they are enforced, how the laws have been changing, and what legislative and regulatory changes companies and employees can expect to see on both the state and federal levels in the near … Continue reading Fairly Competing – Episode 2: The Basics of Noncompete Law, and What Lies Ahead
![As set forth in the Massachusetts Noncompetition Agreement Act, G.L. c. 149, § 24L, “[a] noncompetition agreement [entered into on or after October 1, 2018] shall not be enforceable against . . . employees that have been terminated without cause or laid off . . . .” Id. at § 24L(c).
“Without cause” is not defined in the statute. Worse, its meaning – particularly when juxtaposed against the category of “laid-off” workers – is unclear.](https://faircompetitionlaw.com/wp-content/uploads/2020/11/farewell-3258939-Time-to-Say-Goodbye-copy-canvass-1024x814.jpg)
Fall starts today. Happy fall! Below are the latest additions to “Stuck at Home Doesn’t Have to Mean Bored at Home.” The purpose of the original post and these updates was to provide ideas for maintaining some quality of life while on lock down. The original post has been updated continually to contain all of the … Continue reading Stuck at Home Doesn’t Have to Mean Bored at Home (Start of Fall Update)
Happy Labor Day weekend! Below are the latest additions to “Stuck at Home Doesn’t Have to Mean Bored at Home.” The purpose of the original post and these updates was to provide ideas for maintaining some quality of life while on lock down. The original post has been updated continually to contain all of the suggestions, … Continue reading Stuck at Home Doesn’t Have to Mean Bored at Home (Labor Day Weekend update)
Below are the latest additions to “Stuck at Home Doesn’t Have to Mean Bored at Home.” The purpose of the original post and these updates was to provide ideas for maintaining some quality of life while on lock down. The original post has been updated continually to contain all of the suggestions, whereas the separate update … Continue reading Stuck at Home Doesn’t Have to Mean Bored at Home (August 23 update)
As many of you know, I am very involved with the American Intellectual Property Law Association’s Trade Secret Law Committee. And, as you may also know, each year, we hold a multi-day, in-depth program dedicated to advanced issues and hot topics in trade secret law. It is truly one of the premier trade secret programs. In light … Continue reading AIPLA Trade Secret Law Summit is Coming Up, and It’s Accessible From Your Couch
California has long been hostile to employee restrictive covenants. But, its stance on B2B covenants has been less clear. Yesterday (August 3, 2020), we got the answer. Spoiler alert: B2B noncompetes are permitted and will be judged by a reasonableness standard. The questions answered by the California Supreme Court In Ixchel Pharma, LLC v. Biogen, Inc. … Continue reading California Takes a Reasonable(ness) Approach to B2B Noncompetes
Once again, Senators Elizabeth Warren and Chris Murphy are pushing for federal regulation of noncompetes. By way of background, starting in 2015, a few U.S. Senators (Senators Warren and Murphy included) began trying to convince the federal government to wrest power over the appropriate regulation of noncompetes from the states. Having been unable to convince Congress … Continue reading Senators Warren and Murphy Again Push the FTC to Regulate Noncompetes
Below are the latest additions to “Stuck at Home Doesn’t Have to Mean Bored at Home.” The purpose of the original post and these updates was to provide ideas for maintaining some quality of life while on lock down. The original post has been updated continually to contain all of the suggestions, whereas the separate update … Continue reading Stuck at Home Doesn’t Have to Mean Bored at Home – Bi-Weekly Update (July 18)
For the long holiday weekend, here are the latest additions to “Stuck at Home Doesn’t Have to Mean Bored at Home.” But first, Happy Fourth! And, for the holidays, don’t forget that today is the long-awaited online debut of Hamilton! The purpose of the original post and these updates is to provide ideas for maintaining some quality … Continue reading Stuck at Home Doesn’t Have to Mean Bored at Home – Bi-Weekly Update (July 3)
Given the recent changes to Indiana law and Virginia law, both of which take effect on July 1, I have again updated my 50 State Noncompete Chart. The chart is now current through June 27, 2020. And remember that since last year, the chart is more searchable (so, for example, you can search by state, as opposed … Continue reading 50 State Noncompete Chart Updated (June 27, 2020)
As we start the weekend, here are the latest additions to “Stuck at Home Doesn’t Have to Mean Bored at Home.” But first, Happy Father’s Day to all the dad celebrating Father’s Day in quarantine! (See below for some ideas.) The purpose of the original post and these updates is to provide ideas for maintaining some quality … Continue reading Stuck at Home Doesn’t Have to Mean Bored at Home – Weekly Update (June 20)
We recently prepared a “Ten Minute Training” video for companies to distribute to their employees to help minimize the risks posed to trade secrets as a result of so much of the workforce working from home – especially given the very slow return to “normal.” Like the other practical resources we publish, including our 50 state noncompete chart (which will … Continue reading PSA: Employee Trade Secret Training Video Now Available
As we head into the weekend, here is a short supplement to Wednesday’s additions to “Stuck at Home Doesn’t Have to Mean Bored at Home.” The purpose of the original post and these updates is to provide ideas for maintaining some quality of life while on lock down. Note that the original post is updated … Continue reading Stuck at Home Doesn’t Have to Mean Bored at Home – Weekly Update (June 13)
With all that is going on, I paused updates to “Stuck at Home Doesn’t Have to Mean Bored at Home.” But, now that I am going to resume, I want to take a moment before I do to acknowledge the pain and suffering around our country and to express my solidarity with those standing for equal … Continue reading Stuck at Home Doesn’t Have to Mean Bored at Home – Weekly Update (June 10)
About twice a year, I update my chart of reported noncompete and trade secrets decisions. Here is the latest. As regular readers of this blog know, several years ago, I became curious to see how many reported trade secret and noncompete decisions were issued each year in all of the federal and state courts around the … Continue reading New Trade Secret and Noncompete Case Growth Graph (Updated June 7, 2020)
As we are just starting our Memorial Day Weekend, below are the latest additions to “Stuck at Home Doesn’t Have to Mean Bored at Home.” The purpose of the original post and these updates is to provide ideas for maintaining some quality of life while on lock down. Note that the original post is updated … Continue reading Stuck at Home Doesn’t Have to Mean Bored at Home – Weekly Update (May 23)
Hope for the best, plan for the worst. – John Jay The ability to protect trade secrets (and other legitimate business interests, including customer goodwill) has been hit by a perfect storm caused by the current coronavirus pandemic: Loss of Control. So much of the workforce is now working from home; consequently, it can be … Continue reading A primer and checklist for protecting trade secrets and other legitimate business interests before, during, and after lockdown and stay-at-home orders
The identification of trade secrets in misappropriation litigation is a critically important and evolving area of trade secret law. Not surprisingly, it is the subject of widely divergent and conflicting approaches taken in different states and by different courts and judges. The Sedona Conference’s working group on trade secrets has created a draft Commentary on the Proper … Continue reading The Sedona Conference Seeks Public Comment on the Identification of Asserted Trade Secrets in Misappropriation Cases
As we head into the weekend, below are the latest additions to “Stuck at Home Doesn’t Have to Mean Bored at Home.” The purpose of the original post and these updates is to provide ideas for maintaining some quality of life while on lock down. Note that the original post is updated regularly to contain all … Continue reading Stuck at Home Doesn’t Have to Mean Bored at Home – Weekly Update (May 15)
As we head into the weekend, below are the latest additions to “Stuck at Home Doesn’t Have to Mean Bored at Home.” But first, Happy Mother’s Day to all the moms celebrating Mother’s Day in quarantine! (See below for some ideas.) The purpose of the original post and these updates is to provide ideas for maintaining some … Continue reading Stuck at Home Doesn’t Have to Mean Bored at Home – Weekly Update (May 8)
As we start to think about the weekend, I discovered a time-sensitive addition to “Stuck at Home Doesn’t Have to Mean Bored at Home.” Accordingly to Rolling Stone, “Over 200 celebrities, entertainers, artists and leaders will appear on The Call to Unite,” which will stream live on unite.us, Facebook, YouTube, Twitter, and elsewhere for 24 hours starting today, Friday, May … Continue reading Stuck at Home Doesn’t Have to Mean Bored at Home – Supplement (May 1)
As we start to think about the weekend, below are the latest additions to “Stuck at Home Doesn’t Have to Mean Bored at Home.” The purpose of the original post and these updates is to provide ideas for maintaining some quality of life while on lock down. Note that the original post is updated regularly … Continue reading Stuck at Home Doesn’t Have to Mean Bored at Home – Weekly Update (April 30)
The Computer Fraud and Abuse Act deems certain uses of a computer to be unlawful (civilly and criminally). But, the Act is not the picture of clarity. The language that has created the most significant confusion is the prohibition on accessing a computer “without authorization or exceeding authorized access.” The 9th circuit summarized the problem … Continue reading Supreme Court to Resolve CFAA Circuit Split
As we head into the weekend, below are the latest additions to “Stuck at Home Doesn’t Have to Mean Bored at Home.” The purpose of the original post and these updates is to provide ideas for maintaining some quality of life while on lock down. Note that the original post is updated regularly to contain all … Continue reading Stuck at Home Doesn’t Have to Mean Bored at Home – Weekly Update (April 24)
As quiet as Virginia was in passing its noncompete for low wage (read “average wage”) employees, Indiana was even more quiet in passing legislation to restrict physician noncompetes. What it says… Buried in a 32-page public law entitled “AN ACT to amend the Indiana Code concerning health” is the following: SECTION 8. IC 25-22.5-5.5 Chapter … Continue reading Indiana Quietly Passes New Physician Noncompete Legislation
This seems to be the month for unicorns. In the past 30 days, we have had three. First, there was the trademark case – literally about unicorns. Then, the First Circuit gave us rare insight into its approach to the enforceability of forum selection clauses in restrictive covenants. And now we’ve been given rare insight into … Continue reading Attorneys’ Fees, Costs, Statutory Interest, and Remittitur in Trade Secrets Cases: Covidien LP v Esch
The Massachusetts Noncompetition Agreement Act (the “NAA”) does not impose on a “garden leave clause” the same requirements it imposes on a noncompetition agreement. The NAA states that, “[t]o be valid and enforceable, a noncompetition agreement must meet the minimum requirements of paragraphs (i) through (viii).” G.L. c. 149 § 24L(b) (emphasis added). The last … Continue reading Garden Leave Is Not a Nonconcompete under Massachusetts Law
Below are the latest additions to “Stuck at Home Doesn’t Have to Mean Bored at Home.” The purpose of the original post and these updates is to provide ideas for maintaining some quality of life while on lock down. Note that the original post is updated regularly to contain all of the suggestions, including the updates; these … Continue reading Stuck at Home Doesn’t Have to Mean Bored at Home – “Daily” Update (April 17)
Virginia is the latest state to follow the trend of imposing a ban on the use of noncompetes for low-wage workers (however defined) and rejecting a California/Oklahoma/North Dakota-style wholesale ban on all employee noncompetes. (For a summary of recent changes and legislative and regulatory efforts, see “Federal Noncompete Initiatives: When you can’t convince the states, ask … Continue reading Virginia Quietly Passes New Noncompete Legislation
Below are the latest additions to “Stuck at Home Doesn’t Have to Mean Bored at Home.” The purpose of the original post and these updates is to provide ideas for maintaining some quality of life while on lock down. Note that the original post is updated regularly to contain all of the suggestions, including the updates; these … Continue reading Stuck at Home Doesn’t Have to Mean Bored at Home – Daily Update (April 13)
Below are the latest additions to “Stuck at Home Doesn’t Have to Mean Bored at Home.” The purpose of the original post and these updates is to provide ideas for maintaining some quality of life while on lock down. Note that the original post is updated regularly to contain all updates; these separate update posts are … Continue reading Stuck at Home Doesn’t Have to Mean Bored at Home – Daily Update (April 10)
The First Circuit’s long-awaited decision in NuVasive v. Day has finally arrived! And, it’s a big nothing burger: nothing new about the new Massachusetts Noncompetition Agreement Act, G.L. c. 149, § 24L (the “MNCA,” as the court calls it). But, that’s not surprising. The case was really an appeal of a preliminary injunction issued in … Continue reading New First Circuit Noncompete Case Sheds No Light on Massachusetts Noncompetition Agreement Act
Below are the latest additions to “Stuck at Home Doesn’t Have to Mean Bored at Home.” (No, this post is not an accident! 🙂 ) The purpose of the original post and these updates is to provide ideas for maintaining some quality of life while on lock down. Note that the original post is updated regularly … Continue reading Stuck at Home Doesn’t Have to Mean Bored at Home – Daily Update (April 6)
With the continuing unfolding of the COVID19 pandemic, I remain particularly focused on identifying resources that I hope will be helpful to people while they try to cope with the new reality (hence the regular updates, now as separate posts, to “Stuck at Home Doesn’t Have to Mean Bored at Home”). However, noncompete and trade … Continue reading Recent Articles on Noncompetes
Below are this weekend’s additions to “Stuck at Home Doesn’t Have to Mean Bored at Home.” Enjoy . . . Home Not Alone (with Kids) If you’re in need of some more ideas for entertaining kids, have a look at “COVID-19: Games and activities using typical household items.” Really out of ideas? How about a homemade teddy … Continue reading Stuck at Home Doesn’t Have to Mean Bored at Home – Daily Update (April 4)
On March 21, I posted, “Stuck at Home Doesn’t Have to Mean Bored at Home.” (The picture is Hugo Gernsback’s “The Isolator,” which was a device to aid in concentration when working home.) The purpose of the post was to provide ideas for maintaining some quality of life while on lock down. Since then, I … Continue reading Stuck at Home Doesn’t Have to Mean Bored at Home – Daily Update (April 2)
As we all try to (optimistically) plan for a resumed in-person world, please mark your calendars for the rescheduled AIPLA 2020 Trade Secret Law Summit. It is truly one of the premier trade secrets programs. We have rescheduled it for Monday, August 31, and Tuesday, September 1, in San Francisco. You can register here. There will be … Continue reading RESCHEDULED Trade Secrets Program: AIPLA Trade Secret Law Summit
You can often can tell where a decision is headed just by its opening line. In Peggy Lawton Kitchens, Inc. v. Hogan (a seminal trade secret case in Massachusetts about the theft of a beloved secret chocolate chip cookie recipe), the Court starts its decision stating, “Nothing is sacred.” If you’re the defendant, you know … Continue reading Preliminary Injunctions, Rainbows, and Unicorns During a National Emergency
Apparently Hugo Gernsback knew this day would come. (Well, maybe not this day.) The Isolator aside, these are certainly crazy times. Whether on full lockdown working from home or something short of that (for now), my guess is that soon enough we’ll all acclimate to the “new normal.” That said, it’s hard to believe that … Continue reading Stuck at Home Doesn’t Have to Mean Bored at Home
Ask two lawyers for their opinion, and you’ll get three opinions. But I asked 21 lawyers and a paralegal and got only one opinion. That opinion that is set out in a letter we collectively submitted to the FTC in response to questions posed by the FTC in connection with its Workshop, “Non-Compete Clauses in … Continue reading FTC Noncompete Workshop – Update on Our Submission
Before posting anything more, I wanted to take a moment to send my thoughts to all of those affected – directly and indirectly – by COVID-19. COVID-19 has had, and will continue to have, increasingly wide-reaching, sometimes devastating, impacts on individuals, families, communities, businesses, and the global economy. I hope that everyone is taking active … Continue reading COVID-19
I have updated my 50 State Noncompete Chart to add statutory references for the recent developments. Click here to get the latest version of the 50 State Noncompete Chart. (The chart is current through March 12, 2020.) Though a stand-alone resource, the noncompete chart works as a companion to our 50 state and federal survey chart of trade secret laws, … Continue reading 50 State Noncompete Chart Updated (Statutory References Added)
The FTC conducted its first workshop on noncompetes on January 9, 2020. An opportunity for the public to submit comments remains open until March 11, which is only two weeks away. I attended the workshop and plan to submit written comments. If you’re thinking about making your own submission or just want to know what … Continue reading What you need to know about the FTC Workshop on Noncompetes
Hello all, just a quick note, we are just under a month away from the AIPLA’s 2020 Trade Secret Law Summit, truly one of the premier trade secrets programs. The Summit is scheduled for Monday, March 16, and Tuesday, March 17, at in San Francisco. You can register here. There will be a great group of … Continue reading Upcoming Trade Secrets Program: AIPLA Trade Secret Law Summit
*This post was originally published by Erika Hahn and me on Massachusetts Lawyers Weekly under the title, “Consideration happens, but not during garden leave.” The 2018 Massachusetts noncompete law made many significant improvements to preexisting law, but garden leave is not one of them. In October, Erika Hahn and I wrote an article, “The new noncompete … Continue reading Massachusetts Noncompete: Consideration Happens, But Not During Garden Leave
New year, new laws, new issues: First, at the state level… A number of states have modified their noncompete laws last year: Florida: banned noncompetes for specialist physicians in certain underserved communities Maine: banned noncompetes for workers earning less than approximately $50,000, required advance notice that a noncompete will be required and a six-month minimum … Continue reading Quick Tips for the New Year: What to Know About The Recent and Upcoming Changes in Noncompete Laws Around the Country
Thursday is approaching! As mentioned in our last post on the subject, the FTC will be holding a hearing on January 9, 2020 (at 8:30 a.m. at its Headquarters Building, 600 Pennsylvania Avenue, NW, Washington, DC) “to examine whether there is a sufficient legal basis and empirical economic support to promulgate a Commission Rule that would … Continue reading New Details about the FTC Workshop on Noncompetes
Happy New Year! On January 9, 2020, the FTC will be holding a hearing (at 8:30 a.m. at the FTC’s Headquarters Building, 600 Pennsylvania Avenue, NW, Washington, DC) “to examine whether there is a sufficient legal basis and empirical economic support to promulgate a Commission Rule that would restrict the use of non-compete clauses in … Continue reading Next up at the feds: The FTC holds its next hearing on noncompetes
*This post was originally published by Erika Hahn and me on Law360 under the title, “Noncompete Misconceptions May Be Inhibiting Reform.” Federalism is alive and well. For about 200 years, employee noncompetes have been governed by state law. While the first noncompete case in the United States was in Massachusetts, all but three states allow … Continue reading Federal Noncompete Initiatives: When you can’t convince the states, ask the feds.
Earlier this year, Senator Bruce Tarr introduced a bill to address one of the open issues under the new noncompete law. Specifically, the new noncompete law prohibits the enforcement of noncompetes against (among others) people “terminated without cause.” But “cause” is not defined in the statute. So, questions have arisen about what “cause” means. Does it … Continue reading Massachusetts Legislature Considers It’s First Clarification Of Its New Noncompete Law
Since the beginning of this year (2019), the Massachusetts legislature has been quietly considering adding another exemption to its noncompete laws. This one would be for physician assistants (PAs). Two related bills (H.1686 and S.1050) provide for the following language to be added to G.L. c. 112: Section 9L. Any contract or agreement which creates or … Continue reading Massachusetts Is Considering a New Noncompete Exemption for Physician Assistants
Leaving your job? No problem. Going to a competitor? No problem (maybe). Taking stuff that doesn’t belong to you? Problem – definitely. Companies are particularly sensitive the misappropriation of information, as they should be. As discussed in a bit more detail in Just out: Another proposed ban on noncompetes, up to 72 percent of employees take … Continue reading Leaving your job? Don’t take anything… anything! New employers take note.
In the past, I tried something a bit different, and I’m going to try again. It’s a bit of a take-off on what I do each year in the first class of the Trade Secrets and Restrictive Covenants course that I teach at Boston University School of Law. Here it is: This blog is for you. … Continue reading You tell us!
Having recently completed my second roundup of new noncompete legislation, I have updated my 50 State Noncompete Chart to reflect the changes since the April update. (See Legislative Update: Recent Changes to Florida, Maine, New Hampshire, and Rhode Island Noncompete Laws – and D.C.’s New Noncompete Bill for the background.) And remember that in the last iteration, I made … Continue reading 50 State Noncompete Chart Updated – Lots of Developments!
It’s just over a year since the “new” Massachusetts Noncompetition Agreement Act took effect, and it already has had some very tangible, positive effects. However, one aspect of the new law — namely, what consideration is required to support a noncompete — continues to create significant uncertainty. In short, while the new “fair and reasonable … Continue reading Consideration under the New Massachusetts Noncompete Law: Compromise Happens
It’s Thursday, so it must be time for another bill to ban noncompetes. This one comes from Senator Chris Murphy (D-CT) and Senator Todd Young (R-IN), and is a federal bill. (As many of you know, there have already been seven states that have changed their noncompete laws just this year alone, and there are many more state … Continue reading Just out: Another proposed ban on noncompetes
It’s hard these days to keep up with the the changing noncompete laws around the country. My most recent post covering recent updates, from not even quite six months ago, is already outdated. Just by early June, three states (each covered in a separate post) had already enacted new noncompete legislation this year alone: Maryland (banning … Continue reading Legislative Update: Recent Changes to Florida, Maine, New Hampshire, and Rhode Island Noncompete Laws – and D.C.’s New Noncompete Bill
About twice a year, I update my chart of reported noncomepte and trade secrets decisions. Here is the latest. As regular readers of this blog know, several years ago, I became curious to see how many reported trade secret and noncompete decisions were issued each year in all of the federal and state courts around the … Continue reading New Trade Secret and Noncompete Case Growth Graph (Updated September 29, 2019)
With three-plus years of Defend Trade Secrets Act (the “DTSA”) law under our belts and almost a year of the “new” Massachusetts new trade secrets law, my new book, Trade Secrets Law for the Massachusetts Practitioner (1st ed., MCLE 2019), provides a detailed review of the law of trade secrets nationally, but with a focus on Massachusetts law. … Continue reading Trade Secrets Law for the Massachusetts Practitioner (my new book)
The other day, I was listening to 1970’s and 80’s music (which I am wont to do, much to my wife’s chagrin). The music, as music often does, evoked memories of the past. Think what you will, but one of those memories was of a decision issued by U.S. District Court Judge O’Toole (for those not familiar … Continue reading Trade Secrets and Noncompetes – Music to My Ears: The Cease and Desist Letter
It turns out that global climate change is caused by a decrease in the number of pirates. Don’t believe it? See the chart to the right. This is an example of mistaking correlation for causation. Correlation does not imply causation. A Developing Problem of Presumed Causation The assumption that correlation implies causation arises often in … Continue reading Correlation Does Not Imply Causation: The False Comparison of Silicon Valley and Boston’s Route 128
On June 24, 2019, the United States Supreme Court issued its much-awaited decision in Food Marketing Institute v. Argus Leader Media, addressing the intersection of trade secrets law and the Freedom of Information Act (FOIA). In short, the Supreme Court held that confidential information is exempt from disclosure under FOIA, regardless of whether (or not) its … Continue reading New SCOTUS Decision on the Intersection of FOIA and Trade Secrets
Who controls what’s in your brain? When a former employee knows his or her former employer’s trade secrets, the former employer may be able to obtain injunctive relief preventing the employee, not just from disclosing such information, but from working for a competitor under the so-called “inevitable disclosure doctrine.” Alternatively stated, “where an employee’s work … Continue reading Inevitable Disclosure Doctrine – A Brief History and Summary
Oregon’s noncompete law has been a work-in-progress for more than a decade, and the legislature is at it again: A new change to Oregon’s already progressive noncompete law. What it says… On May 14, 2019, Oregon Governor Kate Brown signed HB 2992 (“Relating to noncompetition agreements; creating new provisions; and amending ORS 653.295“). Effective January 1, … Continue reading Legislative Update: Oregon modifies its noncompete law – again!
In the continuing stream of states reviewing and modifying their noncompete and trade secrets laws, another state – Maryland – has taken the approach of banning noncompetes for low-wage workers – as suggested by the Obama Administration’s Call to Action. (For earlier developments this year, see New trade secret and noncompete legislation: What’s already happened … Continue reading Legislative Update: Maryland Eliminates Noncompetes for “Low Wage” Workers
On May 8, 2019, HB 1450 (“An Act Relating to restraints, including noncompetition covenants, on persons engaging in lawful professions, trades, or businesses; adding a new chapter to Title 49 RCW; and providing an effective date”) was signed by Governor Inslee. The new law will be effective on January 1, 2020. As explained in New trade … Continue reading Washington State Overhauls Its Noncompete Law
Having just completed my most-recent review of every state’s pending and recently enacted noncompete legislation, I have updated the BRR 50 State Noncompete Chart today (April 27, 2019) to reflect those changes. (See “New trade secret and noncompete legislation: What’s already happened and what you can expect for the rest of the year in every state“ for the background.) … Continue reading 50 State Noncompete Chart Updated
It’s been a while since I’ve had the time to update the Changing Trade Secrets | Noncompete Laws page. Lots has happened in the interim – see below for all of the updates so far this year. I will also be updating the main Changing Trade Secrets | Noncompete Laws page in the very near … Continue reading New trade secret and noncompete legislation: What’s already happened and what you can expect for the rest of the year in every state
Over the past few years, there have been a few bills at the federal level that would ban or limit the use of noncompetes. (I will be updating the Changing Trade Secrets | Noncompete page soon to reflect the more recent of those and some other recent developments, so stay tuned. In the meantime…) This … Continue reading Another Federal Noncompete Bill
In preparation for the start of my class (I teach Trade Secrets and Restrictive Covenants at my old law school, Boston University School of Law), I re-ran my chart of reported noncomepte and trade secrets decisions. As regular readers of this blog know, several years ago, I became curious to see how many reported trade secret … Continue reading New Trade Secret and Noncompete Survey – National Case Graph (Updated January 13, 2019)
It was only a matter of time… we now have a decision. For years, we’ve wrestled with how to handle enforcement or defense of a noncompete agreement between a California employee and an out-of-state employer. It frequently involved a race to the courthouse. Then, in 2013, the United States Supreme Court gave us Atlantic Marine, and … Continue reading It was only a matter of time…
Back in July, I posted a story about how courts and lawyers frequently assess whether a noncompete is overly broad by asking whether the restriction would prevent the employee from working as a janitor. If it can, the agreement is generally considered to be overly broad. See Cleaning up overly broad noncompetes: the “Janitor Rule.” The test has … Continue reading Do we need a replacement for the janitor rule?
The BRR 50 State Noncompete Chart has been updated today to reflect a new laws in Idaho, Massachusetts, and Utah (and a few additional tweaks in other states). (See “Changing Trade Secrets | Noncompete Laws” for the background.) In sum, Idaho removed a presumption that it created in 2016, Massachusetts passed its first noncompete statute, making … Continue reading 50 State Noncompete Chart Updated (Idaho, Massachusetts, Utah)
This is an update to reflect the adoption by Massachusetts of its own version of the Uniform Trade Secrets Act. The background: Until now, every state but Massachusetts and New York had adopted the Uniform Trade Secrets Act (the UTSA) in one form or another – though some may quibble with whether Alabama or North Carolina actually adopted … Continue reading Trade Secrets Laws and the UTSA – A 50 State and Federal Law Survey Chart (updated for Massachusetts)
Last week, I posted an article explaining the new noncompete and trade secrets law reform legislation passed by the Massachusetts Legislature. See Massachusetts noncompete and trade secret reform has arrived: What you need to know. Governor Charlie Baker is expected to sign it into law (by the August 10 deadline). The article above will tell you what … Continue reading Massachusetts’ New Noncompete Law: the Text
Last week, I posted an article explaining the new noncompete and trade secrets law reform legislation passed by the Massachusetts Legislature. See Massachusetts noncompete and trade secret reform has arrived: What you need to know. Governor Charlie Baker is expected to sign it into law (by the August 10 deadline). The article above will tell you what … Continue reading Massachusetts’ New Trade Secrets Law (MUTSA): the Text
Almost a decade in the making, the Massachusetts legislature has today (July 31 – at 11:57 PM) finally passed noncompete reform. Unheralded, however, is the companion updating of Massachusetts trade secrets law. The reform is a significant step in the right direction: The bill (if signed by Governor Baker) largely codifies existing law, while making … Continue reading Massachusetts noncompete and trade secret reform has arrived: What you need to know.
Despite the lack of headlines, the Massachusetts Legislature has continued to move closer and closer toward noncompete and trade secret reform. It now looks potentially imminent. On January 23, 2017, Representative Lori Ehrlich and Senator Will Brownsberger submitted companion bills entitled, “An Act relative to the judicial enforcement of noncompetition agreements.” The House bill (H. 2366) and Senate … Continue reading Quick Update: The rumors of Massachusetts noncompete reform’s death have been greatly exaggerated
The “janitor rule,” as it’s come to be known, is the rule of thumb in restrictive covenant law that if a noncompetition agreement (or other restrictive covenant) restricts the scope of a former employee’s future employment indiscriminately, untethered to the legitimate business interests properly protected by the noncompete, the restriction is overly broad. The test … Continue reading Cleaning up overly broad noncompetes: the “Janitor Rule”
Yesterday, I posted about the bills to ban noncompetes at the federal level: Federal Legislators Propose Noncompete Ban. Only the House bill was available on line; the Senate bill was not. While the Senate bill remains unavailable online, I have the text and am posting it here. Below are some of the key provisions: The prohibition … Continue reading Federal Legislators Propose Noncompete Ban – UPDATE
On April 26, Senators Elizabeth Warren (D-MA), Chris Murphy (D-CT), and Ron Wyden (D-OR) introduced the Workforce Mobility Act to impose a federal ban on the use of employee noncompetes. A companion bill was introduced in the House by Representatives Joseph Crowley (D-NY), Linda Sanchez (D-CA), Mark Pocan (D-WI), Keith Ellison (D-MN), Jerrold Nadler (D-NY), and David Cicilline (D-RI), who have since … Continue reading Federal Legislators Propose Noncompete Ban
On Tuesday, April 17, the Massachusetts legislature’s Joint Committee on Labor and Workforce Development favorably reported H.4419 to the House Steering, Policy and Scheduling. The new bill – which covers both trade secrets and noncompetes – is a compilation of S840, S988, S1017, S1020, H43, H854, H2366 and H2371. Accordingly, much of the language is from bills that we … Continue reading Quick Update: Massachusetts Legislature Reports Out Noncompete Bill
This was a busy week for noncompete laws. Two of the states that have actually made changes to their noncompete laws in the past two years – Idaho and Utah (see Changing Trade Secrets | Noncompete Laws) – are at it again. Idaho has now repealed the law that it adopted in 2016. See Governor vetoes 1 … Continue reading Quick Update: Idaho and Utah Modify Their Noncompete Laws
Proposed legislation banning noncompetes has become de rigueur. Two more states – Vermont and New Hampshire – have introduced noncompete bills in just the past two weeks. Vermont’s bill would ban all employee noncompete agreements following the example set by California in 1872 (yes, 1872 – that is not a typo). Since then, only two others … Continue reading Vermont and New Hampshire Introduce Bills to Limit Noncompetes
Early this year, Pennsylvania joined the bandwagon of states considering modifying their noncompete laws. (For a comprehensive list and on-going updates, see Changing Trade Secrets | Noncompete Laws.) At that time, it was considering relatively modest changes. As of November 27, however, some Pennsylvania legislators have moved to the most extreme position: banning employee noncompetes in … Continue reading Pennsylvania Legislators Propose Noncompete Ban
The New Jersey legislature is considering noncompete reform. The current bill, Senate Bill 3518, largely tracks the concepts – and, in some instances, the language – of the Massachusetts bills that I drafted for Representative Ehrlich and Senator Brownsberger. That said, it certainly does not fully track the Massachusetts noncompete bills, and some of the … Continue reading New Jersey Takes a Page Out of Massachusetts Noncompete Reform Book
Today, the Massachusetts Joint Committee on Labor and Workforce Development held a hearing on the 8 bills involving noncompetes or trade secrets currently pending at the State House. As many of you will remember, this process started in 2009 and has continued in every legislative session since. Last year, the legislative session ended without final agreement … Continue reading Taking AIM at the Hearing on Massachusetts Trade Secrets and Noncompete Bills
In preparation for an upcoming discussion of trade secrets law for PLI in San Francisco (Trade Secrets 2017: What Every Lawyer Should Know), I reran my chart of noncomepte and trade secrets decisions. As regular readers of this blog know, several years ago, I became curious to see how many reported trade secret and noncompete decisions … Continue reading Trade Secret and Noncompete Survey – National Case Graph (Updated 10-29-2017)
It turns out that I missed a few bills! New York: Two identical bills (one in the Assembly (A 6419) and one in the Senate (S 4688)) to adopt the Uniform Trade Secrets Act; and one (S 1204) that provides a procedural mechanism for dealing with information filed under the public officers law that a public … Continue reading More updates to the Changing Noncompete | Trade Secrets Laws Page
For those following noncompete and trade secrets legislative activity around the country, I just updated our Changing Trade Secrets | Noncompete Laws page. (This is a never-ending task with so many states thinking about changing – or actually changing – their noncompete and trade secrets laws, so check back regularly.) The updates to the page include … Continue reading Our Changing Trade Secrets | Noncompete Laws – Updates
Almost nine years in the making, Massachusetts is on the cusp of noncompete reform. And, decades in the making (yes, decades, thanks to Steve Chow‘s extraordinary efforts), Massachusetts is also poised to update its trade secrets laws. On October 31, the Joint Committee on Labor and Workforce Development will hold a hearing on the eight pending … Continue reading Massachusetts Noncompete Reform: What you need to know – by October 31
This is an update to reflect statutory revisions to Texas’ version of its Uniform Trade Secrets Act statute, which will become effective on September 1. For more on the changes, see Texas Updates Its Uniform Trade Secrets Act. The background: Every state but Massachusetts and New York has adopted the Uniform Trade Secrets Act (the UTSA) in one … Continue reading Trade Secrets Laws and the UTSA – A 50 State and Federal Law Survey Chart (updated for Texas)
The BRR 50 State Noncompete Chart has been updated today to reflect a few developments in various states and to make a few tweaks since the last draft. Most significantly, Nevada adopted a brand new noncompete law, effective June 3. That new law not only modified the law generally, but it rejected the Nevada Supreme Court’s recent announcement that … Continue reading 50-State Noncompete Chart Updated
Two important reports on trade secrets protection were recently issued: one by Baker McKenzie and Euromoney Institutional Investor Thought Leadership and the other by the Office of the Intellectual Property Enforcement Coordinator (IPEC). Issued in June, the Baker McKenzie and Euromoney Institutional Investor Thought Leadership report “look[ed] at the rising importance of safeguarding trade secrets during a time … Continue reading New Reports on Trade Secret Theft
Noncompete agreements have for about a decade been the focus of legislative efforts around the country. Some states seek to strengthen enforcement of them, while others seek to scale them back or eliminate them altogether. (For recent developments, see The Changing Landscape of Trade Secrets Laws and Noncompete Laws Around the Country.) While some have have … Continue reading California Trade Secrets Litigation Supplants Noncompete Litigation
On June 3, 2017, Nevada enacted a new law that made significant changes to Nevada noncompete law. Contrary to the recent developments and indications, the new law made enforcement of noncompetes in easier in some ways and in some ways arguably harder. Specifically, the new law provides in relevant part as follows: 1. A noncompetition … Continue reading Nevada Updated Noncompete Law
Please re-subscribe or “re-follow” us. (If you don’t, your notifications of new posts may stop going forward.) Sorry for any inconvenience! After 7 years with blog designs that I have never liked, it was time to make a change. The new design – which is easier to read, search, and scroll through – is rolling … Continue reading Same Blog, Different Look – Questionable Notice
Noncompetes are intended to protect legitimate business interests in appropriate circumstances, including when necessary for the protection of a company’s trade secrets, confidential information, or customer relationships (and sometimes other less-common legitimate interests as well). However, as the White House noncompete working group and many others have recognized, noncompetes are also oftentimes used in inappropriate circumstances, including … Continue reading Recent News on the Abuse of Noncompetes
As more people flowed from to Washington from California than anywhere else in the country (thank you William Molinski and Andrew Arranger of Orrik), Washington has over the past few years introduced various bills relating to noncompetes. None passed. This year may be different. This legislative session, there is a scaled-back bill: HB 1967 (as amended). The bill codifies … Continue reading Washington State’s Efforts to Reform Its Noncompete Laws
On May 19, 2017, Texas passed An Act Relating to the Texas Uniform Trade Secrets Act. The Act defines “clear and convincing” (which is the standard for showing willfulness under the Texas Uniform Trade Secrets Act (UTSA)) and what type of conduct constitutes “willful and malicious misappropriation.” The Act also harmonizes Texas’ UTSA with the Defend Trade Secrets Act (DTSA) language, … Continue reading Texas Updates Its Uniform Trade Secrets Act
