Tag Archives: trade secret

Once again, we have resounding unanimity on the issues and recommendations to the FTC and DOJ, as they consider whether to regulate (and if so, how) noncompetes, nondisclosure agreements, and other restrictive covenants. 70 lawyers who practice extensively in the area of trade secret and restrictive covenant law agree: federal regulation is likely inappropriate, definitely premature, and, in any event, should be limited.
Episode 12 of Fairly Competing is out! In this episode, Ben Fink, John Marsh, and I explore Wisk Aero LLC v. Archer Aviation Inc., an extremely well-reasoned decision offering an object lesson about preliminary injunctions in trade secret cases, highlighting that it’s no longer safe to assume you will get a preliminary injunction simply because a former employee downloaded 5,000 documents — even if he invokes the 5th Amendment.
If you’ve been following along with this series of posts, you know that there have been 66 noncompete bills pending in 25 states this year — plus three pending federal noncompete bills, D.C.’s new law to ban most noncompetes, and a bill to rein in D.C’s new law before it becomes effective (which is anticipated to be in April 2022). Today’s post discusses New Jersey’s proposed noncompete legislation.
The Supreme Court’s decision in Van Buren is out. The Court took a narrow view on the scope of the CFAA, resolving key aspects of the circuit split, and eliminating the concern that every breach of fiduciary duties by an employee or violation by an employee of the terms of their employer’s computer use policy can be a criminal act.
With all of the changes at the state level (45 bills in 21 states, plus D.C.’s near-total ban, which is, as of yesterday, now officially adopted and pending funding, likely in the fall, it seems), the federal efforts — spearheaded by Senator Chris Murphy — continue to inch forward. During the Senate the confirmation hearing of Julie Su (currently the Secretary of the California Labor and Workforce Development Agency) for the position the Deputy Labor Secretary, Senator Chris Murphy reminds us that his bill to ban noncompetes is still in the works — and that, ultimately, he expects the FTC to regulate noncompetes.
About twice a year, I update my chart of reported noncompete and trade secrets decisions. As regular readers of this blog know, a little over a decade 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 country. So, I did a “back of the envelope” calculation. I have performed similar calculations every year since. Here is the latest.
What concept did President Obama, President-elect Biden, and 47 states – including every single state to consider the issue in the past decade – reject? A ban on noncompetes.

What bill did the Council of the District of Columbia Committee on Labor & Workforce Development just vote to approve? Yep: a ban on noncompetes.
Protecting trade secrets, confidential business information, goodwill, and any other recognized legitimate business interests does not happen by accident. Companies need to plan. And, when one of the key tools is taken away (i.e., noncompetes), they need to look more closely at the remaining options to ensure they have the protections they need and that fit their circumstances. We discuss them in this post.
As regular readers of this blog know, I focus on providing content, and don’t often suggest programs to attend. However, it just so happens that over the course of the next week, there are three programs that all provide some helpful insights, each in a different way. Take a look.