Recent Blog Posts
- Massachusetts Legislature Makes Another Attempt to Pass a Non-Compete Law Barry A. Guryan
Over the last several years, I have blogged about the Massachusetts Legislature’s many unsuccessful attempts to pass a statute establishing guidelines applicable to non-competes. (See my latest blog posted last March “Proposed Legislation to Place Limits on Enforcement of Non-Competes in Massachusetts.”) Former proposed bills have contained several types of provisions to accomplish this including ones that: a) prohibited the enforcement of all non-competes following California’s approach; b) created presumptions of reasonableness regarding the time and geographic scope; and c) banned the enforcement of non-competes... More
- Proposed Legislation to Place Limits on the Enforcement of Non-Competes in Massachusetts Barry A. Guryan
The Speaker of the Massachusetts House of Representatives, Robert DeLeo, announced last week that he will introduce a compromise bill this session to place limits on the enforcement of non-competes in Massachusetts.
The Speaker’s stated motive is to find a balance between the goal of protecting businesses in Massachusetts and fostering a business environment that encourages the incubation for talent. The proposed bill would place a 12-month limit on non-compete agreements, require prior notice to workers, and ban non-competes for low wage workers.
- Massachusetts Court Denies Gillette’s Motion to Enjoin Former in House Counsel Who Became General Counsel of Competitor Barry A. Guryan
In a recent case decided by the Massachusetts Superior Court’s Business Litigation Session (which typically handles restrictive covenant cases), Gillette lost its attempt to obtain a broad injunction against a former in-house counsel who became the General Counsel at a competitor, Shavelogic. In THE GILLETTE COMPANY v. CRAIG PROVOST, ET AL., Civil Action No. 15-0149 BLS 2 (Dec. 22, 2015), the Court found Gillette unlikely to succeed on its claims that the General Counsel, who left Gillette ten... More
- Massachusetts Court Defers Non-Compete Case To Arbitration Even Though Competitor Is Not A Signatory To Former Employee’s Employment Agreement In a recent case in Massachusetts, a Superior Court Judge denied a former employer’s motion for a restraining order in a case alleging a violation of a non-compete agreement and granted the cross motion of the former employee and current employer to compel arbitration even though the current employer was not a party to the arbitration clause which was included in the former employee’s Employment Agreement.
In Tibco Software, Inc. v Zephyr Health, Inc. and Kevin Willoe, Civil Action No 2015-844-BLS1 (Mass.... More
- A New Bill is Proposed in Massachusetts Legislature to Adopt the Uniform Trade Secrets Act A new Uniform Trade Secrets Act bill has been proposed by the Massachusetts Board of Commissioners on Uniform State Laws for the Massachusetts Legislature to consider in its 2015 legislative session. The proposed bill represents another effort to bring Massachusetts law protecting trade secrets in line with that of the vast majority of other states. As discussed here last August, previous efforts to reform Massachusetts law on trade secrets and non-compete agreements have failed, including Governor Patrick’s efforts in the... More
- Massachusetts Legislature Fails to Pass Any Proposed Bills on Non-Compete or Trade Secret Law For years, I have been writing about the continuing efforts of legislators and others to reform the Massachusetts trade secret and non-compete law (see, e.g., my previous blog posts here and here). In this legislative session, Governor Patrick surprised many by submitting a bill that would, with some exceptions, make non-competes unenforceable in Massachusetts (much like the law in California), in an effort to encourage spin-offs, primarily in the high tech area, to compete more effectively with competitors in other... More
- “Material Change” Defense To Enforcement Of A Non-Compete In Massachusetts Still Alive And Well, But There Remain Unanswered Questions For some time, I have been following the evolution of the “material change” defense to enforcement of a non-compete agreement in Massachusetts. Recently, it has been gaining traction, but there are still unanswered questions.
The doctrine was first introduced in F.A. Bartlett Tree Expert Co. v. Barrington by the Massachusetts Supreme Judicial Court in 1968. However, it was not applied with any consistency by Massachusetts courts until very recently when a number of trial level courts and a Massachusetts Federal District... More
- Failure To Follow The Court’s Preliminary Injunction In A Trade Secrets Case Results In Default In what turned out to be a disastrous result for defendants, a Massachusetts Court issued a default judgment against certain salespeople who left their former company to form the new competing company. The default judgment was based on the defendants’ conduct during the discovery phase of the case, in which they failed to follow the terms of the Court’s Preliminary Injunction, including misrepresenting their compliance to the Court, destroying evidence, and using confidential information to sell products to certain businesses,... More
- The Courts Continue To Wrestle With The Interpretation Of The Computer Fraud And Abuse Act On November 13, 2013, my partner Jim Goodman and I presented a national webinar discussing recent developments in Trade Secrets and Non-Competes. In that webinar, I discussed the split in the Circuits’ interpretation of the Computer Fraud and Abuse Act (CFAA). (Access to the recording and presentation is by request only.) I have also blogged on the most recent case that had been decided in the District of Massachusetts dealing with the interpretation of the CFAA, Advanced Micro Devices, Inc.... More
- Massachusetts Federal Court Weighs In On Computer Fraud And Abuse Act In a recent case, the United States District Court for the District of Massachusetts issued the latest opinion regarding whether former employees violated the Computer Fraud and Abuse Act (“CFAA” or the “Act”) before they joined a competitor by downloading electronic information without authorized access. The CFAA, 18 U.S.C. §1030, makes it unlawful to take information from a protected computer of an employer by unlawful means.
In Advanced Micro Devices, Inc. v. Robert Feldstein, et al., USDC (D.Mass.), Civil Action No.... More