As valuable talent moves from job to job, companies are rightly concerned over materials that might leave with a departing employee or arrive with a new one. Our Trade Secrets & Employee Mobility practice group regularly handles the myriad business and legal issues surrounding the movement of personnel and the potential misappropriation of trade secrets.
Employers in every industry rely on our attorneys to help them minimize the risk of both hiring people from, and losing people to, their competitors.
Assessing Hiring Decisions
In the interest of avoiding costly litigation, our clients trust us to weigh in on all important hires and dismissals. We assess their hiring practices in a holistic, risk-managed way. We scrutinize their policies and procedures—their restrictive covenants, non-disclosure and non-solicitation agreements, training programs, protection of trade secrets, IT protocols, and all other potential areas of vulnerability—to weigh risks and recommend ways of mitigating them.
Pursuing Rogue Departures
When former employees breach their contractual or fiduciary obligations, clients turn to us for recourse. From cease-and-desist letters to temporary restraining orders, to preliminary injunction hearings, to full-blown trials, we have both the substantive legal knowledge and the extensive courtroom experience to litigate effectively trade secret and employee mobility cases in all federal and state jurisdictions.
Our long experience with trade secrets and employee mobility makes us unusually sensitive to the raw feelings that sometimes accompany important hiring or firing situations. We help clients deal with the emotional component of these situations—rancor, suspicion, betrayal—in a professional manner that prioritizes business imperatives while heading off counterproductive antipathies.
- Persuaded the New Jersey Supreme Court that non-compete agreements for physicians are valid, enforceable, and consistent with, rather than contrary to, public policy. We also convinced the court that our client, an employer-hospital, had a legitimate interest in “protecting [the] investment in the training of a physician,” in addition to traditionally recognized interests in confidential business information, patient lists, and referral sources. This ruling has since been followed in at least five other states.
- Persuaded a court, after a four-day preliminary injunction hearing, not to prohibit our clients (three individuals) from working for their new employer (a laboratory co-defendant). Had the three defendants been barred from working for their new employer, the new employer would have experienced a significant business disruption.
- Convinced the Illinois Court of Appeals to affirm the dismissal of a five-count complaint against two former employees and their new employer for alleged violations of restrictive covenants, alleged tortious interference, and alleged trade secret misappropriation.
- Obtained a default judgment in a trade secret misappropriation case as a sanction for evidence spoliation and lying under oath, and an award to our client of nearly $298,000 in attorney’s fees and costs.
- Convinced a court, after a two-and-a-half week jury/bench trial, to enter a directed finding or directed verdict in favor of two individuals and two corporations on all counts of the case—breach of contract, breach of fiduciary duty, fraudulent concealment, and tortious interference.
- Obtained a grant of summary judgment on behalf of a corporate defendant and an individual defendant in a case involving an alleged theft of trade secrets and an alleged breach of contract. A direct competitor of the corporate defendant brought the case, and we served as lead counsel for both defendants.
- Obtained a temporary restraining order prohibiting a former sales manager and his new employer from disclosing or using confidential information, as well as prohibiting the sales manager from soliciting customers or prospective customers or even contacting them.
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A sampling of recent publications includes:
- “Non-Compete Laws: Illinois,” Thomson Reuters Practical Law (Oct. 2023)
- "Non-Compete Laws: Massachusetts," Thomson Reuters Practical Law (Sept. 2023)
- “Trade Secret Laws: Illinois,” Thomson Reuters Practical Law (Aug. 2023)
- “Lights, Camera … Trade Secrets Action,” Thomson Reuters Westlaw Today (April 2023)
- “Trade Secrets Litigation," Thomson Reuters Practical Law (Feb. 2023)
- “Preparing for Non-Compete Litigation,” Thomson Reuters Practical Law (Feb. 2023)
- “Garden Leave Provisions in Employment Agreements," Thomson Reuters Practical Law (Feb. 2023)
- "Expert Q&A on the FTC’s Proposed Rule Banning Employee Non-Competes," Thomson Reuters Practical Law (Feb. 2023)
- "Non-Compete Laws: Connecticut – 2022 Update," Thomson Reuters Practical Law (Dec. 2022)
- "Trade Secret Laws: Connecticut," Thomson Reuters Practical Law (Aug. 2022)
- “Ethical Issues for Attorneys Related to Restrictive Covenants," Thomson Reuters Practical Law (Aug. 2022)
- "A Vaccine for ‘Normal,’ but Legal Issues to Consider for Employers," Chicago Daily Law Bulletin (April 26, 2021)
- "Trade Secrets Law 25 Years After PepsiCo Disclosure Case," Law360 (Jan. 2021)
- “Hiring from a Competitor: Practical Tips to Minimize Litigation Risk," Thomson Reuters Practical Law (May 2020)
- "The Future of Force Majeure in Employment Contracts," Law360 (April 2020)
- “Expert Q&A on Biometrics in the Workplace: Recent Developments and Trends," Thomson Reuters Practical Law (Feb. 2018)
- “Developing a Plan for Employee Departures in California,” IPWatchdog (June 27, 2017)