Trade Secrets & Employee Mobility

Perhaps we were wrong. Or perhaps we were just not thinking creatively enough. After President Biden issued his “Executive Order on Promoting Competition in the American Economy,” in which he “encourage[d]” the Federal Trade Commission (FTC) to “consider” exercising its statutory rulemaking authority “to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility,” we assumed that Lina Khan, the 33-year-old Biden-appointed Chair of the FTC (and a vocal opponent of noncompetes), would take the torch and propose a Rule prohibiting, or at the very least severely limiting, the use of noncompetes. And she may still do so.

Now on Spilling Secrets, our podcast series on the future of non-compete and trade secrets law:

When faced with trade secret misappropriation, employers must decide how to proceed. In this episode, hear some tips on how and why employers might choose to refer the matter for criminal investigation.

Thomson Reuters Practical Law has released an update to “Trade Secret Laws: Connecticut,” a Q&A guide to state law on trade secrets and confidentiality for private employers in Connecticut, co-authored by our colleagues David S. Poppick and Carol J. Faherty, attorneys at Epstein Becker Green.

Thomson Reuters Practical Law has released the 2022 update to “Non-Compete Laws: Massachusetts,” a Q&A guide to non-compete agreements between employers and employees for private employers in Massachusetts, authored by our colleagues David J. Clark and Erik Weibust, attorneys at Epstein Becker Green.

It is no secret that the Department of Justice (DOJ) has been largely unsuccessful in the criminal no poach cases it has brought to trial to date. Its most public loss came with the acquittals earlier this year of DaVita, a dialysis company, and certain of its executives in the District of Colorado. DOJ also lost at trial in another high-profile case in the Eastern District of Texas involving a physical therapy staffing company (although it secured a conviction against a company executive for obstruction of justice). But DOJ has pressed on, claiming victories at the motion to dismiss stage. Indeed, following its recent trial losses, Assistant Attorney General Jonathan Kanter, who leads the DOJ’s antitrust division, had this to say:

Employers with employees in the District of Columbia have until Monday, October 31, 2022, to comply with a specific notice provision contained in the D.C. Non-Compete Clarification Amendment Act of 2022 (B24-0256) (the “Amendment”).

Epstein Becker Green is proud to sponsor the American Intellectual Property Law Association’s (AIPLA) 2022 Trade Secret Summit in Miami, FL on December 8-9, 2022. The AIPLA Trade Secret Summit is the leading trade secret conference in the nation, with speakers from across the spectrum of private practitioners, in-house counsel, government, and academia, as well as fantastic networking opportunities.

Erik Weibust, Member of the Firm, is the outgoing-Chair of the AIPLA Trade Secret Committee and will speak on a panel entitled “Protecting AI-generated Inventions as Trade ...

Now on Spilling Secrets, our podcast series on the future of non-compete and trade secrets law:

Non-compete agreements are generally unenforceable against lawyers, but there are some exceptions. In this episode, hear about employer options for restrictive covenants, including non-competes, non-solicits, and confidentiality agreements, for both in-house and outside lawyers.

It’s no secret that the U.S. Postal Service (USPS) has been struggling financially for well over a decade. One means of combatting its struggles has been to contract with third-party resellers to market USPS services and drive customers to it. Indeed, just one of those resellers, Express One, delivered over $3 billion in revenue to the USPS in the past 12 months alone. Although the annual operating budget of the USPS is $77 billion, $3 billion is still real money—especially since the USPS suffered losses of $6.9 billion last year.

“The law is not a game, and . . . civil discovery is not a game of hide and seek. The decision in this case should encourage litigants to understand that it is risky business to recklessly or deliberately fail to produce documents, and perilous to disobey court orders to review and, if necessary, supplement prior productions. It is in the interests of the administration of justice to default [defendants] to send those messages.”

So said United States District Judge Mark L. Wolf in a 72-page decision in which he entered a default judgment as a sanction in a trade secret case against the defendants for what he referred to as “extreme misconduct.” Memorandum and Order on Plaintiff’s Motion for Sanctions, Red Wolf Energy Trading, LLC v. BIA Capital Mgmt., LLC, et al., C.A. No. 19-10119-MLW (D. Mass. Sept. 8, 2022).