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.

Last month, the United States District Court for the Northern District of New York granted an employer’s application for a preliminary injunction based on the former employee’s breach of his noncompete.  In granting the preliminary injunction, the court in Plug Power, Inc. v. Shokrian, No. 1:26-cv-01277 (N.D.N.Y. Jul. 24, 2026), held that the employee’s access to confidential information, combined with other acts evidencing an intention to compete, was sufficient to establish irreparable harm without evidence that the former employee used or disclosed any of the employer’s confidential information.  The court further ruled that the employer established a likelihood of success on the merits even though the employee was involuntarily terminated because the termination was for cause. 

Employee restrictive covenant agreements often contain fee-shifting provisions entitling the employer to recover its attorneys’ fees if it “prevails” against the employee. But “prevailing” is a term of art in this context. Obtaining a TRO or preliminary injunction is not a final decision on the merits, so does obtaining a TRO or preliminary injunction trigger a fee-shifting provision? A recent case illustrates that an employer can sidestep this potentially thorny issue by using careful and thoughtful drafting.

In Kelly Services, Inc. v. De Steno, 2019 U.S. App. LEXIS ...