Russell Beck in Reuters on Noncompete Litigation

A recent article published by Reuters features Russell Beck in a story titled “IBM lawsuit casts diversity in starkly competitive terms.”

The article discusses a lawsuit filed by IBM against its former chief diversity officer. In the lawsuit, IBM alleges that its former employee violated her noncompete agreement by working for Microsoft, and that IBM’s recruiting efforts are protected trade secrets.

The article was written by Reuters reporter Jan Wolfe.

According to the story, IBM alleges in its lawsuit that its diversity data and strategy are economically valuable. The article describes Russell Beck’s reaction to IBM’s argument:

Russell Beck, a lawyer specializing in trade secrets law, said he was surprised to see IBM make such nakedly economic arguments about diversity, noting that corporations more typically cast their efforts as benefiting society as a whole.

For up-to-the-minute analysis of legal issues concerning noncompete agreements in Massachusetts and across the United States, read Russell Beck’s blog, Fair Competition Law.

eck Reed Riden LLP is among the leading authorities in trade secret, noncompete, and unfair competition law, and our experience handling these matters is backed by our extensive employment law and business litigation experience. Our hand-picked team combines attorneys with complementary expertise and practical experience.

The Wall Street Journal featured Beck Reed Riden LLP’s noncompete agreement experience. In 2016, the White House issued a report entitled, “Non-Compete Agreements: Analysis of the Usage, Potential Issues, and State Responses,” relying in part on Beck Reed Riden LLP’s research and analysis, including its 50 State Noncompete Survey.

Russell Beck’s work in this area is well recognized; it includes:

  • Over twenty two years of working on trade secret, noncompete, and unfair competition matters
  • Assisting the Obama White House as part of a small working group to develop President Obama’s Noncompete Call to Action
  • Authoring the book Negotiating, Drafting, and Enforcing Noncompetition Agreements and Related Restrictive Covenants (5th ed., MCLE, Inc. 2015), used by other lawyers to help them with their noncompete cases
  • Drafting and advising on legislation for the Massachusetts Legislature to define, codify, and improve noncompetition law
  • Teaching Trade Secrets and Restrictive Covenants at Boston University School of Law
  • Founding and administrating the award-winning blog, Fair Competition Law
  • Establishing and administrating the Noncompete Lawyers and Trade Secret Protection groups on LinkedIn, with over 1,600 members around the world
  • Founded and chaired the Trade Secret / Noncompete Practice for an AmLaw 100 firm

In addition, Russell was honored for his work in this area of law in the 2017 Chambers USA Guide, which stated, “‘Excellent attorney‘ Russell Beck of Beck Reed Riden LLP is a ‘terrific noncompete specialist,’ according to industry commentators. He is a skilled litigator with experience representing clients ranging from individuals to large corporations at both trial and appellate levels.”

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience at large law firms, working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and labor and employment. We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

Russell Beck in Ars Technica

Russell Beck was quoted by Ars Technica in a recent article about the so-called trade secrets case of the century: Waymo v. Uber.

The article, “Quest to dominate self-driving cars is at the heart of Waymo v. Uber trial,” focuses on the background to the case and the upcoming trial.

Russell is quoted in the article as follows:

“Waymo will need to prove that Levandowski stole its information, that Uber knew it, and that Uber incorporated [the information] into its self-driving car technology,” Russell Beck, a veteran trade secrets lawyer, told Ars. He also noted that usually such lawsuits settle rather than go to trial.

“Uber will need to show that, even if there was some wrongful conduct, it is not using Waymo’s technology and, therefore, no harm, no foul.”

The article was published on February 4, 2018.

For up-to-the-minute analysis of legal issues concerning noncompete agreements in Massachusetts and across the United States, read Russell Beck’s blog, Fair Competition Law.

eck Reed Riden LLP is among the leading authorities in trade secret, noncompete, and unfair competition law, and our experience handling these matters is backed by our extensive employment law and business litigation experience. Our hand-picked team combines attorneys with complementary expertise and practical experience.

The Wall Street Journal featured Beck Reed Riden LLP’s noncompete agreement experience. In 2016, the White House issued a report entitled, “Non-Compete Agreements: Analysis of the Usage, Potential Issues, and State Responses,” relying in part on Beck Reed Riden LLP’s research and analysis, including its 50 State Noncompete Survey.

Russell Beck’s work in this area is well recognized; it includes:

  • Over twenty two years of working on trade secret, noncompete, and unfair competition matters
  • Assisting the Obama White House as part of a small working group to develop President Obama’s Noncompete Call to Action
  • Authoring the book Negotiating, Drafting, and Enforcing Noncompetition Agreements and Related Restrictive Covenants (5th ed., MCLE, Inc. 2015), used by other lawyers to help them with their noncompete cases
  • Drafting and advising on legislation for the Massachusetts Legislature to define, codify, and improve noncompetition law
  • Teaching Trade Secrets and Restrictive Covenants at Boston University School of Law
  • Founding and administrating the award-winning blog, Fair Competition Law
  • Establishing and administrating the Noncompete Lawyers and Trade Secret Protection groups on LinkedIn, with over 1,600 members around the world
  • Founded and chaired the Trade Secret / Noncompete Practice for an AmLaw 100 firm

In addition, Russell was honored for his work in this area of law in the 2017 Chambers USA Guide, which stated, “‘Excellent attorney‘ Russell Beck of Beck Reed Riden LLP is a ‘terrific noncompete specialist,’ according to industry commentators. He is a skilled litigator with experience representing clients ranging from individuals to large corporations at both trial and appellate levels.”

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience at large law firms, working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and labor and employment. We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

Russell Beck Invited to Speak at the Inaugural Sedona Conference on Trade Secrets

The Sedona Conference held its Inaugural Conference on Developing Best Practices for Trade Secrets Issues on December 7 and 8 in Scottsdale, Arizona.

The Sedona Conference is “a PowerPoint-free, marketing-free assembly of thought leaders in trade secrets law. . . .  Attendance is by invitation only to ensure a proper balance of participants, and is limited in size to ensure that we have an intimate environment for meaningful dialogue.”

Russell Beck was invited to be a panelist (on the panel entitled, “Investigating the Facts”) and a participant in the program overall.

The program resulted in the establishment of a working group to develop best practices for the protection of trade secrets. Russell will be participating in that effort.

For up-to-the-minute analysis of legal issues concerning noncompete agreements in Massachusetts and across the United States, read Russell Beck’s blog, Fair Competition Law.

eck Reed Riden LLP is among the leading authorities in trade secret, noncompete, and unfair competition law, and our experience handling these matters is backed by our extensive employment law and business litigation experience. Our hand-picked team combines attorneys with complementary expertise and practical experience.

The Wall Street Journal featured Beck Reed Riden LLP’s noncompete agreement experience. In 2016, the White House issued a report entitled, “Non-Compete Agreements: Analysis of the Usage, Potential Issues, and State Responses,” relying in part on Beck Reed Riden LLP’s research and analysis, including its 50 State Noncompete Survey.

Russell Beck’s work in this area is well recognized; it includes:

  • Over twenty two years of working on trade secret, noncompete, and unfair competition matters

  • Assisting the Obama White House through a small working group to develop President Obama’s Noncompete Call to Action
  • Authoring the book Negotiating, Drafting, and Enforcing Noncompetition Agreements and Related Restrictive Covenants (5th ed., MCLE, Inc. 2015), used by other lawyers to help them with their noncompete cases

  • Drafting and advising on legislation for the Massachusetts Legislature to define, codify, and improve noncompetition law

  • Teaching Trade Secrets and Restrictive Covenants at Boston University School of Law

  • Founding and administrating the award-winning blog, Fair Competition Law

  • Establishing and administrating the Noncompete Lawyers and Trade Secret Protection groups on LinkedIn, with over 750 members around the world

  • Founded and chaired the Trade Secret / Noncompete Practice for an AmLaw 100 firm

In addition, Russell was honored for his work in this area of law in the 2017 Chambers USA Guide, which stated, “‘Excellent attorney‘ Russell Beck of Beck Reed Riden LLP is a ‘terrific noncompete specialist,’ according to industry commentators. He is a skilled litigator with experience representing clients ranging from individuals to large corporations at both trial and appellate levels.”

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience at large law firms, working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and labor and employment. We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

The Associated Press Features Beck Reed Riden LLP’s Noncompete Survey

Beck Reed Riden LLP’s 50-State Noncompete Chart, authored by Russell Beck, was featured by the Associated Press in a recent article about noncompete agreements. The article is titled “State lawmakers again seek deal on noncompetes, trade secrets.”

The story, which ran in the Worcester Telegram and other outlets, focuses on ongoing efforts in the Massachusetts legislature to reform noncompete agreements.

The article references Beck Reed Riden LLP’s 50-State Noncompete survey as follows:

Employers often require employees to enter into agreements that they will not go to work for a potential competitor in the same industry. Noncompetes vary in scope and duration and may apply to all or just certain workers within a company.

According to a survey by Beck Reed Riden, a Boston law firm that specializes in noncompete and trade secret litigation, only a handful of U.S. states ban noncompetes, most notably California.

The article was published on November 4, 2017.

For up-to-the-minute analysis of legal issues concerning noncompete agreements in Massachusetts and across the United States, read Russell Beck’s blog, Fair Competition Law.

eck Reed Riden LLP is among the leading authorities in trade secret, noncompete, and unfair competition law, and our experience handling these matters is backed by our extensive employment law and business litigation experience. Our hand-picked team combines attorneys with complementary expertise and practical experience.

The Wall Street Journal featured Beck Reed Riden LLP’s noncompete agreement experience. In 2016, the White House issued a report entitled, “Non-Compete Agreements: Analysis of the Usage, Potential Issues, and State Responses,” relying in part on Beck Reed Riden LLP’s research and analysis, including its 50 State Noncompete Survey.

Russell Beck’s work in this area is well recognized; it includes:

  • Over sixteen years of working on trade secret, noncompete, and unfair competition matters

  • Authoring the book Negotiating, Drafting, and Enforcing Noncompetition Agreements and Related Restrictive Covenants (5th ed., MCLE, Inc. 2015), used by other lawyers to help them with their noncompete cases

  • Drafting and advising on legislation for the Massachusetts Legislature to define, codify, and improve noncompetition law

  • Teaching Trade Secrets and Restrictive Covenants at Boston University School of Law

  • Founding and administrating the award-winning blog, Fair Competition Law

  • Establishing and administrating the Noncompete Lawyers and Trade Secret Protection groups on LinkedIn, with over 750 members around the world

  • Founded and chaired the Trade Secret / Noncompete Practice for an AmLaw 100 firm

In addition, Russell was honored for his work in this area of law in the 2016 Chambers USA Guide, which explained that “Russell Beck of Beck Reed Riden LLP is highly praised by peers, who commend his “impeccable credentials,” in the employment arena, and identify him as an “expert in noncompetition and trade secret laws.”

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience at large law firms, working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and labor and employment. We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

BBC World Service Features Interview with Russell Beck on Noncompetes

The British Broadcasting Company recently featured Russell Beck as an expert for a BBC World Service broadcast on noncompete agreements in the United States. The story is entitled, “American Jobs: The Ties that Bind.”

The broadcast opens with Russell Beck providing a summary of how non-compete agreements work, and their widespread use.

The balance of the story explores the impacts of noncompetition agreements on companies and individuals through interviews with people affected by noncompetes, companies that use them, and a professor, Matt Marx, who studies their impacts on the economy.

The BBC describes the story as follows:

Why are so many US workers forced into job contracts that make it hard for them to leave? Employers routinely ask new recruits to agree to “non-compete” clauses when they start work. This means they might be unable to work for a competitor company, or to set up on their own. Is this a good way to protect intellectual property or an unnecessary infringement of workers’ rights? Claire Bolderson goes to Massachusetts to explore the personal and economic impact of the legislation and asks if reform might, finally, be a possibility.

The broadcast, available here, was produced by BBC Senior Producer Rosamund Jones and reported by BBC reporter Claire Bolderson.

For up-to-the-minute analysis of legal issues concerning noncompete agreements in Massachusetts and across the United States, read Russell Beck’s blog, Fair Competition Law.

eck Reed Riden LLP is among the leading authorities in trade secret, noncompete, and unfair competition law, and our experience handling these matters is backed by our extensive employment law and business litigation experience. Our hand-picked team combines attorneys with complementary expertise and practical experience.

The Wall Street Journal featured Beck Reed Riden LLP’s noncompete agreement experience. In 2016, the White House issued a report entitled, “Non-Compete Agreements: Analysis of the Usage, Potential Issues, and State Responses,” relying in part on Beck Reed Riden LLP’s research and analysis, including its 50 State Noncompete Survey.

Russell Beck’s work in this area is well recognized; it includes:

  • Over sixteen years of working on trade secret, noncompete, and unfair competition matters

  • Authoring the book Negotiating, Drafting, and Enforcing Noncompetition Agreements and Related Restrictive Covenants (5th ed., MCLE, Inc. 2015), used by other lawyers to help them with their noncompete cases

  • Drafting and advising on legislation for the Massachusetts Legislature to define, codify, and improve noncompetition law

  • Teaching Trade Secrets and Restrictive Covenants at Boston University School of Law

  • Founding and administrating the award-winning blog, Fair Competition Law

  • Establishing and administrating the Noncompete Lawyers and Trade Secret Protection groups on LinkedIn, with over 750 members around the world

  • Founded and chaired the Trade Secret / Noncompete Practice for an AmLaw 100 firm

In addition, Russell was honored for his work in this area of law in the 2016 Chambers USA Guide, which explained that “Russell Beck of Beck Reed Riden LLP is highly praised by peers, who commend his “impeccable credentials,” in the employment arena, and identify him as an “expert in noncompetition and trade secret laws.”

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience at large law firms, working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and labor and employment. We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

Super Lawyers Interview with Stephen Reed about Noncompete Agreements

Stephen Reed is featured in a recent article about the enforcement of noncompete agreements. The article, published online by Super Lawyers, provides a roadmap to the negotiation and enforcement of noncompete agreements.  The article focuses on the employee’s perspective of noncompete agreements, including avoiding conflict with a former employer. The article was written by Trevor Kupfer.

In the article, Attorney Reed explains how many employees first encounter a noncompete agreement:

“You get a stack of benefits documents, sign-up sheets, applications and sometimes the noncompete is tucked in there,” says Stephen B. Reed, an employment and business litigator in Boston.

Steve Reed explained how he advises parties who are entering into non-competition agreements:

“Employees have to start thinking about their restrictions, obligations and limitations from the moment a noncompete is put in front of them,” says Reed, whose firm, Beck Reed Riden, is known for its noncompete and trade secret practice. In situations where an employee emails Reed a copy of a noncompete ahead of signing, he tries to tell them what it means and gives his best opinion as to whether or not it’s enforceable. As with most things, catching it early is key. “The number of people who don’t understand them or appreciate what they mean is surprising,” he adds.

he article concludes with a discussion with Steve Reed about the process of resolving — and avoiding — disputes over non-compete agreements.

The most common outcome of these disputes is an out-of-court resolution “through creative solutions where all sides can go forward,” Reed says. These are often a win for all, since it avoids the costs of litigation and everyone gets something they want. Sometimes all it takes is everyone sitting down at a table and hashing it out, so long as all parties are willing to be flexible.

“For the old employer, it may be better to have an agreement with everyone to stay away from some key accounts than to risk the court saying, ‘No, Billy can do whatever he wants,’” Smith-Lee says. “You can negotiate anything, assuming the old employer is truly worried about something. If they’re just being vindictive, then all bets are off.”

“It’s hard to know what their philosophy is when it comes to enforcing,” Reed agrees. “Some will slap it on everybody, but never have the intent of enforcing it—it’s used as a tool to keep people from leaving. Others will not hesitate to run into court the second someone walks out the door.” Even worse: The old employer may threaten to sue the new one, Smith-Lee says, leading to a withdrawn job offer.

The attorneys estimate that the average noncompete dispute is resolved in a month or two and takes about 40 hours of a lawyer’s time. At a billing rate of $300 per hour, that would be $12,000. Litigation is another story. “These cases, unlike other civil litigation, move extremely fast,” Reed says, “but the amount of work that needs to be done in a short amount of time is tremendous, and it costs a lot of money.” While it may be done in a few weeks, it may cost $50,000 or more.

Reaching out to an attorney early is “the best tip for either side,” Reed says.

The full text of the article is here.

eck Reed Riden LLP is among the leading authorities in trade secret, noncompete, and unfair competition law, and our experience handling these matters is backed by our extensive employment law and business litigation experience. Our hand-picked team combines attorneys with complementary expertise and practical experience.

The Wall Street Journal featured Beck Reed Riden LLP’s noncompete agreement experience. In 2016, the White House issued a report entitled, “Non-Compete Agreements: Analysis of the Usage, Potential Issues, and State Responses,” relying in part on Beck Reed Riden LLP’s research and analysis, including its 50 State Noncompete Survey.

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience at large law firms, working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and labor and employment. We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

Beck Reed Riden LLP in Le Monde

Russell Beck was quoted by Le Monde in a recent article about noncompete agreements. The article is titled “Des clauses de non-concurrence imposées aux employés,” which translates to “Non-competition clauses imposed on employees.”

The story focuses on the proliferation of noncompete agreements for workers across the income spectrum, and analyzes the impact of such covenants on worker mobility. A translated version of the article (which is written in French), describes Russell Beck’s work in this area as follows:

The non-competition clauses added to contracts of employment were formerly reserved for very senior managers to prevent them from revealing the secrets of the company or to leave with the valuable contacts of the big customers. But today, the number of signatories of such clauses has widened. Attorney Russell Beck of Beck, Reed, Riden, spends 70% of his time dealing with this type of matter for employees and employers.

Russell is quoted in the article as follows:

Mr. Beck, who is from time to time on the employer side at the courthouse, understands their point of view. We live in an information economy. These secrets that move so easily from a computer to the phone and the cloud are more difficult to protect,” he explains. The lawyer acknowledged, however, that certain staff should be spared. It would be better, said the lawyer, to propose a simple clause of non-solicitation of former clients, or even non-solicitation of ex-colleagues. “It gives employees a lot more freedom, says Beck.

The article was published on June 26, 2017.

For up-to-the-minute analysis of legal issues concerning noncompete agreements in Massachusetts and across the United States, read Russell Beck’s blog, Fair Competition Law.

eck Reed Riden LLP is among the leading authorities in trade secret, noncompete, and unfair competition law, and our experience handling these matters is backed by our extensive employment law and business litigation experience. Our hand-picked team combines attorneys with complementary expertise and practical experience.

The Wall Street Journal featured Beck Reed Riden LLP’s noncompete agreement experience. In 2016, the White House issued a report entitled, “Non-Compete Agreements: Analysis of the Usage, Potential Issues, and State Responses,” relying in part on Beck Reed Riden LLP’s research and analysis, including its 50 State Noncompete Survey.

Russell Beck’s work in this area is well recognized; it includes:

  • Over sixteen years of working on trade secret, noncompete, and unfair competition matters

  • Authoring the book Negotiating, Drafting, and Enforcing Noncompetition Agreements and Related Restrictive Covenants (5th ed., MCLE, Inc. 2015), used by other lawyers to help them with their noncompete cases

  • Drafting and advising on legislation for the Massachusetts Legislature to define, codify, and improve noncompetition law

  • Teaching Trade Secrets and Restrictive Covenants at Boston University School of Law

  • Founding and administrating the award-winning blog, Fair Competition Law

  • Establishing and administrating the Noncompete Lawyers and Trade Secret Protection groups on LinkedIn, with over 750 members around the world

  • Founded and chaired the Trade Secret / Noncompete Practice for an AmLaw 100 firm

In addition, Russell was honored for his work in this area of law in the 2016 Chambers USA Guide, which explained that “Russell Beck of Beck Reed Riden LLP is highly praised by peers, who commend his “impeccable credentials,” in the employment arena, and identify him as an “expert in noncompetition and trade secret laws.”

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience at large law firms, working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and labor and employment. We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

Massachusetts Court Warns Employers Not to Coast on Forum Selection Clause

he Business Litigation Session of the Massachusetts Superior Court recently dismissed a noncompete case against a California employee on the basis of forum non conveniens, notwithstanding a Massachusetts forum selection clause and a Massachusetts choice-of-law provision in the defendant’s employment agreement. The case is titled Oxford Global Resources, LLC v. Hernandezand it was issued on June 9, 2017.

This decision calls into question the enforceability of forum selection and choice-of-law provisions in employment agreements with California employees. The decision also characterizes employment agreements (especially with low-level employees) as “contracts of adhesion” that may be subject to more careful judicial scrutiny. Finally, as discussed below, the Hernandez opinion takes a dim view of what constitutes an employer’s “confidential information,” highlighting existing tension in Massachusetts case law.

Background

efendant Jeremy Hernandez was a California resident who was recruited, hired, and employed by Plaintiff Oxford Global Resources, LLC, in California. Hernandez’s employment with Oxford was conditioned on his signing a “protective covenants agreement,” which contained confidentiality, noncompete, and nonsolicitation obligations, as well as a Massachusetts choice-of-law provision and a Massachusetts forum selection clause. Oxford filed the case claiming that Hernandez breached his agreement when he used Oxford’s confidential information to solicit its clients on behalf of a competitor. Hernandez moved to dismiss the case on the basis of forum non conveniens.

As an initial matter, the Court found that because Hernandez had no meaningful opportunity to negotiate the terms of his employment agreement, it was a contract of adhesion that was subject to careful scrutiny. The Court based its finding on the following facts:

  1. Oxford would not have hired Hernandez if he did not sign the agreement.
  2. Oxford did not allege or offer any evidence suggesting that the parties negotiated the choice-of-law or forum selection provisions, or that Oxford had even demonstrated a willingness to discuss the issues.
  3. Hernandez started as an entry-level employee at $50,000 annual salary.
  4. Hernandez possessed no prior industry skill or experience that would have given him bargaining power to negotiate the agreement.

Notably, the Court did not give any weight to “boilerplate language” in the agreement stating that Hernandez had read the agreement and had the opportunity to have his own lawyer review it.

The Court next found that enforcing the agreement’s Massachusetts choice-of-law provision would result in “substantial injustice” to Hernandez. Because Hernandez was a California resident who was recruited, hired, and employed there, California law (generally voiding noncompetes) would otherwise govern the dispute absent a choice-of-law provision. The court ruled that enforcing the provision would deny Hernandez the protections of California law and subject him to a noncompete.

Although some California courts recognize a trade secret exception that permits the enforcement of agreements that are “necessary to protect the employer’s trade secrets,” the Court nevertheless found that the agreement, which provided that Hernandez could not compete against Oxford using its trade secret information, was not enforceable because it defined confidential information so broadly as to include the identities of Oxford’s customers, prospective customers, and consultants. The Court stated:

The non-competition restriction that Oxford seeks to enforce therefore goes far beyond what is permitted under California law or, for that matter, under Massachusetts law.

An employee is free to carry away his own memory of customers’ names, needs, and habits and use that information, even to serve or to solicit business from those very customers. Such “remembered information” is not confidential because the information itself, as distinguished from an employer’s compilation of such information into a list or database, is known to the customers and thus not kept secret by the employer

The Court concluded that:

Since the mere identity of customers is not confidential, the Agreement that Oxford seeks to enforce is the kind of non-competition agreement that is void under California law. Accordingly, the Court held that the choice-of-law provision was not enforceable.

Finding that it was evident that Oxford sought to include a Massachusetts forum selection clause in order to avoid the application of California law, the Court also held that the forum selection clause was not enforceable under California law.

Ultimately, the Court dismissed the case on grounds of forum non conveniens, finding that it would be unfair to compel Hernandez to defend in Massachusetts and that California had a stronger interest in the case.

Import of the Hernandez Decision

ernandez not only underscores the difficulty of enforcing restrictive covenants against California residents, but also generally calls into question the validity of choice-of-law and forum selection clauses, especially where the employee has had no meaningful opportunity to negotiate the terms of his employment agreement.

Notably, in characterizing the employment agreement as a “contract of adhesion,” the Court in Hernandez gave no weight to the affirmative representations in the agreement (stating that the employee had read and had opportunity to have his attorney review the agreement). Historically, the Superior Court has given varying degrees of weight to these types of affirmative representations.

Moreover, Hernandez adds to the argument that (in some instances) employees are permitted to use their employer’s confidential information concerning client names, needs, and habits, as long as that information is “remembered” rather than compiled into a list or database. In this respect, Hernandez highlights the tension that exists in Massachusetts case law regarding confidential information that is stored in an employee’s memory.

Given the evolving case law on these issues, businesses seeking to protect their confidential information should consult with their attorneys before drafting or enforcing these types of agreements.

***

Hannah T. Joseph, the author of this article, is a lawyer in the firm’s litigation practice, whose work in intellectual property has been recognized by, among others, the Boston Bar Association (where she serves as Co-Chair of the Boston Bar Association’s Intellectual Property Committee). Thank you to Monika Zarski for contributing to this article.

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience at large law firms, working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and labor and employment. We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

Russell Beck Speaks at Noncompete and Trade Secrets Symposium

On June 13, 2017, Russell Beck was a panelist at the 9th Annual Symposium on Non-Compete Agreements and Trade Secrets in Boston, Massachusetts.

BBARussell BeckThe Boston Bar Association sponsored the Symposium.

The Symposium featured discussion and debate about the legal landscape of noncompete agreements and the protection of trade secrets.

The Boston Bar Association describes the event as follows:

Since 2009 BBA has hosted this symposium bringing together drafters, sponsors, supporters and critics of state bills to reform the use of employee non-compete agreements (ENCAs) and, separately, alternatively or complementarily, to enact the Uniform Trade Secrets Act (UTSA).

In the second session of the 189th General Court, its two chambers passed differing bills for ENCA reform, each including a version of UTSA, but did not quite get over the finish line. Current bills S.840, S.988, S.1017, S.1020, H.854, H.2366, and H.2371 revisit ENCA reform and propose a version of UTSA enhanced by the BBA over the years.

***

The federal Defend Trade Secrets Act of 2016 (“DTSA”) among other things embraced “employee mobility” as a federal policy.  DTSA injunctions may not “prevent a person from entering into an employment relationship . . . or otherwise conflict with an applicable State [such as California] law prohibiting restraints on the practice of a lawful profession, trade, or business.”  While DTSA expressly does not preempt state trade secret law, it is silent about contract law, which arguably may be affected by these prohibitions.

In addition to Russell Beck, the panel included the following speakers:

  • State Senator William N. Brownsberger
  • State Senator Eileen M. Donoghue
  • State Senator Jason M. Lewis
  • State Representative Lori Ehrlich
  • State Representative Paul A. Brodeur
  • Katherine E. Perrelli, Seyfarth Shaw LLP
  • Stephen Y. Chow, Burns & Levinson LLP

For up-to-the-minute analysis of legal issues concerning noncompete agreements in Massachusetts and across the United States, read Russell Beck’s blog, Fair Competition Law.

eck Reed Riden LLP is among the leading authorities in trade secret, noncompete, and unfair competition law, and our experience handling these matters is backed by our extensive employment law and business litigation experience. Our hand-picked team combines attorneys with complementary expertise and practical experience.

The Wall Street Journal featured Beck Reed Riden LLP’s noncompete agreement experience. In 2016, the White House issued a report entitled, “Non-Compete Agreements: Analysis of the Usage, Potential Issues, and State Responses,” relying in part on Beck Reed Riden LLP’s research and analysis, including its 50 State Noncompete Survey.

Russell Beck’s work in this area is well recognized; it includes:

  • Over sixteen years of working on trade secret, noncompete, and unfair competition matters

  • Authoring the book Negotiating, Drafting, and Enforcing Noncompetition Agreements and Related Restrictive Covenants (5th ed., MCLE, Inc. 2015), used by other lawyers to help them with their noncompete cases

  • Drafting and advising on legislation for the Massachusetts Legislature to define, codify, and improve noncompetition law

  • Teaching Trade Secrets and Restrictive Covenants at Boston University School of Law

  • Founding and administrating the award-winning blog, Fair Competition Law

  • Establishing and administrating the Noncompete Lawyers and Trade Secret Protection groups on LinkedIn, with over 750 members around the world

  • Founded and chaired the Trade Secret / Noncompete Practice for an AmLaw 100 firm

In addition, Russell was honored for his work in this area of law in the 2016 Chambers USA Guide, which explained that “Russell Beck of Beck Reed Riden LLP is highly praised by peers, who commend his “impeccable credentials,” in the employment arena, and identify him as an “expert in noncompetition and trade secret laws.”

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience at large law firms, working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and labor and employment. We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

 

Chambers USA Ranks Russell Beck

Russell Beck‘s experience with noncompete matters is lauded in the 2017 Chambers USA Guide.

According to Chambers:

“Excellent attorney” Russell Beck of Beck Reed Riden LLP is a “terrific noncompete specialist,” according to industry commentators. He is a skilled litigator with experience representing clients ranging from individuals to large corporations at both trial and appellate levels.

Russell was first ranked by Chambers USA in its 2010 guide.

For up-to-the-minute analysis of legal issues concerning non-compete agreements in Massachusetts and across the United States, read Russell Beck’s blog, Fair Competition Law.

eck Reed Riden LLP is among the leading authorities in trade secret, noncompete, and unfair competition law, and our experience handling these matters is backed by our extensive employment law and business litigation experience. Our hand-picked team combines attorneys with complementary expertise and practical experience.

The Wall Street Journal featured Beck Reed Riden LLP’s noncompete agreement experience. In 2016, the White House issued a report entitled, “Non-Compete Agreements: Analysis of the Usage, Potential Issues, and State Responses,” relying in part on Beck Reed Riden LLP’s research and analysis, including its 50 State Noncompete Survey.

Russell Beck’s work in this area is well recognized; it includes:

  • Over sixteen years of working on trade secret, noncompete, and unfair competition matters

  • Authoring the book Negotiating, Drafting, and Enforcing Noncompetition Agreements and Related Restrictive Covenants (5th ed., MCLE, Inc. 2015), used by other lawyers to help them with their noncompete cases

  • Drafting and advising on legislation for the Massachusetts Legislature to define, codify, and improve noncompetition law

  • Teaching Trade Secrets and Restrictive Covenants at Boston University School of Law

  • Founding and administrating the award-winning blog, Fair Competition Law

  • Establishing and administrating the Noncompete Lawyers and Trade Secret Protection groups on LinkedIn, with over 750 members around the world

  • Founded and chaired the Trade Secret / Noncompete Practice for an AmLaw 100 firm

In addition, Russell was honored for his work in this area of law in the 2016 Chambers USA Guide, which explained that “Russell Beck of Beck Reed Riden LLP is highly praised by peers, who commend his “impeccable credentials,” in the employment arena, and identify him as an “expert in noncompetition and trade secret laws.”

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience at large law firms, working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and labor and employment. We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

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