Trade Secrets & Employee Mobility

Employers seeking to enjoin a departing employee in Massachusetts from using or disclosing their trade secrets face a higher evidentiary bar than what previously seemed available. In Daikin Applied Americas Inc. v. Russo, SJC-13881 (Mass. Oct. 14, 2026), the Supreme Judicial Court (SJC) held that a plaintiff who shows a likelihood of success on a trade secret misappropriation claim is not entitled to a presumption of irreparable harm, and trade secret plaintiffs must prove irreparable harm like any other plaintiff.

In a bombshell ruling last year that upended longstanding Delaware law, the Delaware Chancery Court ruled in Ainslie v. Cantor Fitzgerald, L.P., 2023 WL 106924 (Del. Ch. Jan. 4, 2023), that forfeiture-for-competition clauses, under which departing employees must forfeit certain long-term incentive compensation if they join a competitor, are akin to post-employment noncompetes and other restraints of trade.  As a result, the Chancery Court determined these forfeiture provisions should be analyzed under a reasonableness standard rather than the employee choice doctrine ...