Episode 6 of Fairly Competing is out, and it’s a departure from our usual podcast.

We are making available (through this episode and the next) Trade Secret Roundtable on Developments and Emerging Issues, a program presented by NERA Economic Consulting at which Ben Fink, Russell Beck, and I were panelists, along with Dr. Stephanie Demperio and Vicki Cundiff.

The program covers emerging issues in trade secrets litigation, including what satisfies the reasonable efforts requirement for establishing a trade secret; considerations for early case assessment of trade secret cases, including when and how to involve an expert; how the COVID-19 pandemic has impacted trade secret litigation; and new developments in noncompete agreements and the expected impact of those developments on trade secrets litigation.

So, come join us on Spotify or Apple Podcasts. Or, if you’re just looking for the feed, it’s here: Fairly Competing RSS feed.

And, because this show is for you, please email BenRussell or me  with any topics you’d like to hear us discuss. While we cannot offer legal advice on the show, we can certainly discuss any issues you may be wondering about.

*And, thank you again to Erika Hahn for the intro and outro voice over, Tyler Beck for the music, and mohamed_hassan for the base image.

As he promised during the 2020 presidential campaign, President Joe Biden issued an Executive Order on Friday that directs the Federal Trade Commission (FTC) to curtail the use of unfair non-competes or other agreements that may limit employee mobility.  This Executive Order is the culmination of efforts by federal legislators to ban or limit non-competes.  A number of bills have been brought to the floor of the U.S. Senate, mostly by Democratic Senators, and none of been able to marshal sufficient bipartisan support to advance.   As those legislative efforts fizzled, several of those senators then lobbied the FTC to ban non-competes, which in turn held hearings over whether to take regulatory action early last year.

As explained in greater detail below, the Biden Executive Order is short on detail and simply encourages the FTC to take unspecified action against unfair non-competes and other agreements limiting employee mobility.  On its face, the Executive Order focuses on “unfair” agreements which have generally been understood to mean non-competes imposed on lower-wage workers.  Should, however, the FTC take a more aggressive approach to ban all non-competes, that could harm one of the key drivers of employment in the U.S. — small and medium-sized businesses that more heavily rely on non-competes to protect their companies. Continue Reading The Biden Executive Order Seeking to Curtail Non-Competes: Why It May Be Bad for Small Companies

In this episode, Ben Fink, Russell Beck, and I discuss the standards that apply and issues that arise when seeking or defending against an injunction in a trade secret or restrictive covenant case, and how they’ve been impacted by COVID. We also discuss the infamous “Unicorn Case” — a federal court decision issued in March 2020 that expressed skepticism over requests for emergency injunctions in the midst of a pandemic — and whether geographic restrictions make sense anymore.

So, come join us on Spotify or Apple Podcasts. Or, if you’re just looking for the feed, it’s here: Fairly Competing RSS feed.

And, as always, please don’t hesitate to email Ben, Russell or me with any topics you’d like to hear us discuss.  While we cannot offer legal advice on the show, we can certainly discuss any issues you interested in.

*And, thank you again to Erika Hahn for the intro and outro voice over, Tyler Beck for the music, and mohamed_hassan for the base image.

 

 

Fairly Competing, Episode 5: Litigating Trade Secret and Restrictive Covenant Injunctions, Generally and in the COVID Era

The Sedona Conference’s Working Group on Trade Secrets has just published its draft Commentary “Protecting Trade Secrets throughout the Employment Life Cycle.”  The Commentary, which I helped draft with fellow Senior Editors Russell Beck and Robert Milligan, Managing Editor Jim Ko, and Editors-in-Chief Vicki Cundiff and Jim Pooley (as well as with the help and support of many other team members too numerous to list), addresses the paradox of trade secret protection — namely, that the individuals that employers depend on most to protect their trade secrets may prove to be their future competitors.

The forward of draft Commentary better sets the stage for this tension, which primarily arises from the employer’s need to protect what it perceives to be its trade secrets and the potential mobility of the employee, who may find himself/herself working at a competitor some day:

While in most circumstances, employers and employees will be aligned in protecting trade secrets for their mutual benefit at the beginning and during the employment relationship, at the end of the relationship, there is an inherent tension between an employer’s interest in protecting its trade secrets and an employee’s interest in engaging in future employment. This tension is further complicated by the fact that, although the departing employee is at the end of one employment life cycle, they are typically simultaneously at the beginning of the next, where the former employer’s risk of loss of its trade secrets corresponds directly to the new employer’s risk of infiltration of those same trade secrets.

The Commentary addresses those tensions chronologically, starting at the recruiting and on-boarding period, then the period of employment, and finally, the during the off-boarding period.  For those interested in reading more about this Commentary, you can download the Commentary from here. Comments can be submitted through September 30, 2021, to comments@sedonaconference.org.

 

This episode covers two additional hot topics in trade secret and noncompete law, particularly during COVID-19: protecting trade secrets through technologies like Zoom (a close look at Smash Franchise Partners, LLC v. Kanda Holdings, Inc.) and the importance of exit interviews and how to manage the departure of remote workers.

You can follow us on Spotify or Apple Podcasts. Or, if you’re just looking for the feed, it’s here: Fairly Competing RSS feed.

And, as always, please don’t hesitate to email Ben, Russell or me with any topics you’d like to hear us discuss.  While we cannot offer legal advice on the show, we can certainly discuss any issues you interested in.

 

In this episode, Ben Fink, Russell Beck, and I discuss two hot topics in trade secret and noncompete law, particularly during COVID-19: employee surveillance and protecting legitimate business interests when an employee’s employment is terminated without cause.

So, come join us on Spotify or Apple Podcasts. Or, if you’re just looking for the feed, it’s here: Fairly Competing RSS feed.

And, as always, please don’t hesitate to email Ben, Russell or me with any topics you’d like to hear us discuss.  While we cannot offer legal advice on the show, we can certainly discuss any issues you interested in.

*And, thank you again to Erika Hahn for the intro and outro voice over, Tyler Beck for the music, and mohamed_hassan for the base image.

A lot has been written about the havoc that COVID-19 has wrought on courts and the changes it has caused in the way we litigate and try cases.  Unlike more conventional litigation, which ultimately seeks damages in trials that go before a jury, trade secret litigation frequently revolves around a trade secret owner’s request for an injunction, fast-moving legal proceedings that are generally decided by judges rather than juries.  So what has been the impact of COVID-19 on trade secret cases?  Perhaps the easiest way to analyze the pandemic’s impact is to break it down into three components:  (1) administrative, (2) procedural and (3) substantive.

Continue Reading How COVID-19 Is Changing the Way We Litigate Trade Secret Cases

In this episode, Ben Fink, Russell Beck, and I provide some basics on what noncompetes and other restrictive covenants are, how they are enforced, how the law involving these agreements has been changing, and the legislative and regulatory changes companies and employees can expect from state and federal levels in the near future.

Please join us on Spotify or Apple Podcasts. If you’re just looking for the feed, it’s here: Fairly Competing RSS feed.

We are always looking for new ideas and topics, so please don’t hesitate to email RussellBen, or me with any topics you’d like to hear us discuss. While we cannot offer legal advice on the show, we are very interested in discussing any issues you may be curious about.

Most trade secret lawsuits involve a request for an injunction, frequently in the form of a motion for a temporary restraining order (TRO).  TROs are high octane proceedings that move very quickly and can turn on one key fact, argument or legal doctrine.  A recent ruling in a high profile case dominating the news, Parler v. Amazon Web Services, reinforces a number of important lessons that can determine a critical ruling on a very limited evidentiary record.  While the Parler case doesn’t involve claims typically found in a trade secret injunction, the lessons described below apply with equal force in all cases involving TROs and other emergency injunctions.

Continue Reading Parler v. Amazon Web Services: Three Lessons for Trade Secret Litigators

 

Russell Beck, Ben Fink and I are delighted to announce the launch of a new podcast, Fairly Competing, that will provide our analysis and commentary on trade secret law, non-compete law, and related developments in intellectual property law.

We are planning on covering the latest trends and hot topics in these areas of the law, including legislative developments at the state and federal level, important legal decisions in different courts, practical tips for employers and employees, and other issues that commonly come up in these types of disputes.  We’ve tailored our podcasts for a broad audience, including employers, in-house counsel, employees, HR executives, business owners and lawyers of all levels of experience.

Hope you will join us on Spotify or Apple Podcasts.

*And a special thanks to Russell Beck and his team, including Erika Hahn, Tyler Beck and mohamed_hassan for their getting this up and running!