Russell Beck Presenting on Massachusetts Noncompete Law

On May 29, 2020, Russell Beck will give a presentation titled “MA Noncompetes More Than a Year Later: The 60-Minute Lawyer.” The presentation will be livestreamed at noon this Friday by Massachusetts Continuing Legal Education, Inc. 

Registration information and other details about this MCLE program are available here.

As described by the program notes:

It has been over a year since the “new” Massachusetts Noncompetition Agreement Act took effect, and it has already had some very tangible consequences. Several aspects of the law continue, however, to create significant uncertainty. Hear the latest thinking on how to navigate those uncertainties and best advise your clients.

What have the effects been? What updates to the law may be on the horizon?

What practical advice can you give to clients concerning interpreting the laws?

The other speaker for the presentation is Katherine E. Perrelli, Esq., of Seyfarth Shaw LLP.

Russell and Kate Perrelli will cover several key topics concerning the 2018 Massachusetts Noncompete Law, including following items:

  • Legislative Process (how we got here)
  • Scope of the Statute (what/how it covers and what/who it doesn’t cover)
  • The Basic Standards (reasonableness in time, space, scope) and the Presumptions
  • Consideration
  • Fairness Aspects of the Law (advance notice, right to counsel)
  • Reformation Approach Retained
  • Signature Requirement
  • Venue/ Choice of Law
  • Springing Noncompetes
  • Areas of Confusion (and How to Advise Clients)
  • Consideration
  • Massachusetts Pending Amendments
  • Potential Impact of Federal Legislation

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, and includes:

  • Over twenty five 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 matters
  • Authoring the book Trade Secrets Law for the Massachusetts Practitioner (1st ed. MCLE 2019), covering trade secrets nationally, with a focus on Massachusetts law
  • 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 2019 Chambers USA Guide, which stated that Russell Beck is a “terrific” attorney, who “is an excellent choice of counsel regarding noncompete agreements and the resolution of restrictive covenant disputes.” Chambers noted that Russell “basically wrote the new Massachusetts statute on noncompetes” and that “he’s an expert in employee mobility and nonrestrictive covenants.”

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation 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 Celebrates 10th Anniversary

On May 24, 2010, Russell Beck, Stephen B. Reed, and Steve Riden opened their own litigation firm based on principles of integrity, collaboration, and service. Since then, Beck Reed Riden LLP has emerged as a premier boutique law firm known for its expertise and thought leadership in the areas of restrictive covenants and trade secrets law, employment law, and business disputes.

In commemoration and celebration of the firm’s 10th anniversary, the founding partners sat for an interview with the firm’s first junior associate (now senior counsel), Hannah Joseph, to discuss the early days of Beck Reed Riden, the firm’s milestones, and where the firm is headed. Here is what they had to say:

Hannah Joseph: We can start with a softball question. What made you want to open your own firm?

Stephen D. Riden: Russell, do you want to take this one?

Russell Beck: Sure. I was working in the Boston office of a large international firm, which was a terrific experience. But, ultimately, I realized that my practice would work better in a smaller environment. I happened to be talking to Steve Riden, who put the bug in my ear about starting a firm, which he said he would do with me. I then reached out to my former colleague, Steve Reed, who was interested in a new opportunity. So, the three of us started Beck Reed Riden.

Stephen B. Reed: Russell and I had previously worked together, so I was excited when he first proposed the idea. At the time that he reached out, I also felt that I was ready to take on the challenge of starting a business. So, the timing was perfect.

HJ: So, Steve Riden, you put the bug in Russell’s ear?

SDR: I guess I must have! I remember that we had several conversations about how exciting it would be to hang our own shingle. Plus, Russell and I had worked together for nine years by then, give or take. We worked well together, and I knew that we both shared a client-centered approach to practicing law and a desire to promote a collegial working environment. I knew pretty early on in our conversations that I was on board.

HJ: I joined the firm in 2013, so I missed BRR’s early days. What were they like?

SBR: It was just the three of us in a tight subleased space with a few established clients.

RB: We were a true start up! Back then, we were purely focused on efficiency, to get the firm up and running. We wanted to make sure that we were set up to maintain the same quality and effectiveness that clients had come to expect from us. We spent a lot of late nights mapping out how the firm would look.

SDR: That’s right. We were a complete bootstrap operation. It was also so exciting to build something from scratch: to figure out what we were as a law firm and exactly how we wanted to practice the law. We built the firm around a platform of efficiency. On top of practicing law, we spent a lot of time figuring out all the bits and pieces that go into running a business.

HJ: You have come a long way since then.

SDR: It’s incredible. We went from subleasing office space from another law firm to eventually having our own space with a thriving hive of activity and a roster of clients that I never would have dreamed of when we started out. And, when there’s no global pandemic, we still have lunch together every day.

SBR: We spent a lot of time on marketing efforts, which greatly helped us to grow our client base. Now we are nine attorneys plus support staff and, as Steve mentioned, we have a steady stream of challenging work.

RB: I would say that we’ve far exceeded our initial expectations for the firm.

HJ: Was there an “a-ha” moment when you knew that BRR might succeed?

SBR: I never doubted that BRR would succeed, so I’m not sure that there was an “a-ha” moment for me. When we were comfortable enough to leave our sublease “nest” and venture out into our own space – that was a particularly memorable milestone.

SDR: For me, the “a-ha” moment came after our first year of operation when we had grown our book of business enough to hire others to work with us. At the same time, we were continuing to get more and more work from an expanding client base.

RB: I’ve had a series of “a-ha” moments – “a-ha,” we survived our first year, “a-ha,” we can sustain incremental growth, “a-ha,” we will thrive as a boutique firm in Boston – which we have done now for a decade – and “a-ha,” our work with restrictive covenants and trade secrets has reached a national platform. I would say that some of my bigger “a-ha” moments were when our 50 State Noncompete Chart was cited by The Wall Street Journal, and then by The New York Times, and ultimately relied on by both the U.S. Department of Treasury and the Obama Administration. That’s when I felt like we’d really made it.

HJ: For readers who might be unfamiliar with our 50 State Noncompete Chart, it’s a comprehensive chart that tracks the noncompete laws of each state, and indicates – for each state – whether the state permits the use of noncompetes in the context of employment, which business interests are deemed protectable by noncompetes, the standard for analyzing the enforceability of a noncompete, whether the state exempts certain professions or industries from noncompetes, whether continued employment is sufficient consideration to support a noncompete, and whether the state is a reformation, “blue pencil,” or “red pencil” state.

RB: That’s exactly correct. I’m really proud of our 50-state chart. Nothing like it existed at the time we started putting it together. Now, we update it throughout the year. We have poured hundreds of hours into drafting and updating the chart and, in turn, it has helped to distinguish BRR as a leader in noncompete law nationally. We have also created a companion 50 State Trade Secrets Survey that provides a comparison of every state’s trade secret law and the federal trade secret law.

HJ: Speaking of accomplishments, what are you most proud of with respect to the firm?

SBR: Certainly Russell’s accomplishment in becoming a national thought leader on noncompetes and trade secrets. I’m also very proud of the fact that we’ve reached a high level of sophistication across all our practice areas, while maintaining a close working relationship with each of our clients, big and small. Our clients come to us knowing that we will provide fully customized solutions that take into consideration not only the legal issues at play, but also our clients’ individual goals and needs. Our approach is very practical, which is important.

SDR: I echo Steve’s sentiments. In addition, I’m very proud of the team that we have put together. We have this great team that combines senior attorneys, new lawyers, and staff at every experience level. Seeing new lawyers develop over the years is really gratifying and it speaks to the culture of mentorship that we have created at BRR.

HJ: I’m an example of that – I joined BRR right after law school and have grown up at the firm. I think we have a very strong culture of mentorship. In fact, we’re just about to launch a new internal training program designed to help junior associates develop practical skills and exercise best practices. Our culture of promoting open dialogue is one of the things I appreciate most about the firm – in addition to the many, many free snacks that we normally have on stock.

SDR: And because we don’t impose minimum billable hours requirements, we can set aside time to have those more general discussions that, in turn, inform our practice of law and ultimately lead to better work product. And, it’s true, we are usually very well-stocked in terms of snacks.

RB: I am also extremely proud of the environment that we have built at BRR. We have managed to do precisely what we set out to do: provide top quality legal work in an environment that has the closeness and cohesiveness of a family.

HJ: Would you say that these characteristics distinguish BRR from other law firms?

SDR: Certainly, at least with respect to our approach to minimum billable requirements. Because we don’t have minimum requirements, we are able to collaborate and work with efficiency. Our ethos is to get the work done, and to do it well – our steady stream of business and healthy appetite for being involved in the community ensures that we stay busy.

SBR: I completely agree.

RB: Me too.

HJ: So. We’ve made it 10 years. Congratulations! Where do you see BRR 10 years from now?

RB: These questions are hard. Probably largely the same as it is now, albeit a little larger. I always thought that somewhere between 10 and 20 attorneys is good for a firm’s long-term stability. We’re just about there, and I’d expect that we’ll continue to grow strategically, in ways that make sense. For instance, you won’t see us picking up a med-mal practice. We’re going to stay true to the areas in which we practice – trade secrets, restrictive covenants, employment, and complex business disputes – and possibly grow into areas that are complementary. We have also spent a good deal of effort making sure that we maintain a strong culture of collaboration and collegiality. So, any future growth will be a result of finding other like-minded people.

SBR: Hear, hear. I also expect that we will continue to elevate our profile as a national leader in restrictive covenants and trade secrets law.

SDR: As long as we get to continue doing what we are doing with a great team, I’ll be happy.

HJ: Good answers. Okay, last question. If you had only three words to describe BRR, what would they be? Mine are community-oriented, expert, and collaborative, so you can’t use those.

SBR: “Caring,” “dependable,” and “sophisticated.”

SDR: I’m also using “sophisticated.” Also, “lean” and “boutique.”

RB: I’ll also go with “sophisticated.” And “integrity” and “home.”

HJ: Congratulations on Beck Reed Riden’s 10th anniversary. We have come a long way and I can’t wait to see what the future holds in store. Thank you for your time today.

SBR: Thank you.

SDR: Thanks, Hannah.

RB: Thanks!

Russell Beck is a litigation attorney with over 30 years of experience, nationally known for his work representing employees and employers (from Fortune 500 companies to “mom and pop” shops to individuals) in trade secret and noncompete matters. For the past decade, he has also taught the course, Trade Secrets and Restrictive Covenants, at Boston University School of Law. He was the lead advisor and drafter of the new Massachusetts noncompete law, and assisted several legislators with, and revised some of the language in, the new Massachusetts trade secrets law.

In 2016, he was invited to the White House to participate in the working group discussions that led to the development by the Obama Administration of a Call to Action on noncompetes. He authored the book, Trade Secrets Law for the Massachusetts Practitioner (1st ed. MCLE, Inc. 2019) (covering trade secrets nationally, with a focus on Massachusetts law), and the book, Negotiating, Drafting, and Enforcing Noncompetition Agreements and Related Restrictive Covenants (5th ed., MCLE, Inc. 2015) (covering Massachusetts noncompete law).

In addition, he created the widely-used 50 State Noncompete Survey (Employee Noncompetes, A State By State Survey) and 50 State Trade Secrets Comparison Chart (state and federal trade secrets acts compared to the UTSA), the former of which was relied upon by the United States Department of the Treasury Office of Economic Policy’s report, “Non-compete Contracts: Economic Effects and Policy Implications,” and by the White House in connection with the Call to Action and related report. He also monitors changes to noncompete and trade secrets laws around the country, as detailed on his award-winning blog, FairCompetitionLaw.com. In his free time, Russell enjoys photography with a focus on cityscapes. His favorite photographer is Ansel Adams, whose work he has seen on exhibition countless times.

Stephen B. Reed focuses on the defense of discrimination, retaliation, harassment, wrongful termination, wage and hour, and related claims. He has successfully litigated and tried cases in state and federal court, as well as before the Massachusetts Commission Against Discrimination, the Maine Human Rights Commission, the Connecticut Commission on Human Rights and Opportunities, the New Jersey Division on Civil Rights, the Pennsylvania Human Relations Commission, and the Equal Employment Opportunity Commission. A large portion of Steve’s practice involves advising employers on issues involving the Fair Labor Standards Act, the Family and Medical Leave Act, the Americans With Disabilities Act, and other state and federal employment statutes that affect the employment relationship on a daily basis.

Steve has reviewed and drafted countless employment and workplace policies since beginning his practice in 1992. Steve also advises clients on unfair competition issues, including the use and enforceability of noncompete, nonsolicitation, and nondisclosure agreements. He has successfully litigated cases on behalf of both employers and employees to either enforce or overcome such agreements. Steve also has extensive experience in traditional labor law. He has tried cases before the National Labor Relations Board and arbitrated numerous cases on behalf of employers. He has counseled employers on union avoidance issues and represented management at the collective bargaining table.

Steve has lectured and written on employment law subjects for continuing legal education and various business organizations. He is a frequent panelist on employment law issues at Massachusetts Continuing Legal Education. He was a member of the Massachusetts Bar Association subcommittee responsible for drafting the MCAD Sexual Harassment Guidelines. In addition to his family, Steve is passionate about international travel, wake surfing, and the musical Hamilton, which he has seen five times … so far.

Stephen D. Riden has extensive experience litigating business disputes involving breach of contract, fraud, unfair competition, trade secrets, and noncompete agreements. He has represented companies in a variety of governmental investigations. Steve also has substantial experience representing owners involved in intra-corporate disputes, including shareholder litigation and close-corporation control matters. Steve was selected as one of the Top 100 Lawyers in New England and Top 100 Lawyers in Massachusetts.

Steve is the President of the Board of Directors for the Boston College Law School Alumni Association. He is also the current Chair of the Board of Editors for the Boston Bar Journal. Previously, Steve was the Co-Chair of the Boston Bar Association’s Business and Commercial Litigation Section. Steve is the author of the first chapter in the book Damages, Interest, and Attorney Fees in Massachusetts Litigation. The chapter, supplemented in 2019, is titled “General Law of Damages in Massachusetts.” Steve is originally from the Lone Star State, and has perfected the art of making Texas Nachos.

Hannah Joseph is Senior Counsel at Beck Reed Riden LLP, where she focuses her practice on complex commercial litigation. Specializing in the areas of trade secrets law, restrictive covenants, employee mobility, and unfair competition, she regularly litigates issues concerning the use and enforceability of noncompetition, nonsolicitation, and nondisclosure agreements, and counsels employers and employees regarding the same. Hannah has been named Super Lawyers’ Rising Star in Massachusetts consecutively since 2016.

In 2015, she pioneered the Boston Bar Association’s Intellectual Property Basics Workshop Series (a program that continues today). Hannah regularly publishes and speaks on the topics of intellectual property law and restrictive covenants, including at the American Intellectual Property Law Association, Boston Bar Association, and Practising Law Institute. In addition, Hannah co-teaches the course Trade Secrets and Restrictive Covenants at Boston University School of Law alongside Russell Beck. Hannah graduated from Binghamton University in 2007 and Boston College Law School in 2013. When there is not a global pandemic, Hannah is an avid traveler and most recently visited Prague and Budapest.

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation 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.

Steve Riden Giving Presentation About Raising Your Profile As A New Lawyer

On May 21, 2020, Steve Riden will be a panelist for a Boston Bar Association presentation titled “How To Increase Your Visibility As A New Lawyer.”

The focus of the presentation will be how new lawyers can raise their professional profiles by contributing to journals and publications such as Mass Lawyers Weekly, volunteering in the legal community, planning and speaking at educational events, presenting at bar association events and more.

The other panelists for the presentation are:

The presentation will take place on Thursday, May 21st at noon via webinar. Registration information and other details are available here.

teve Riden is the President of the Board of Directors for the Boston College Law School Alumni Association. He is the current Chair of the Board of Editors for the Boston Bar Journal. Previously, Steve was the Co-Chair of the Boston Bar Association’s Business and Commercial Litigation Section.

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation 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’s Stay-At-Home Survival Guide Featured in Massachusetts Lawyers Weekly

A recent issue of Massachusetts Lawyers Weekly features Russell Beck in an article titled “Boston attorney’s blog hosts stay-at-home survival guide.”

The article covers a recent series of blog posts penned by Russell, titled “Stuck at Home Doesn’t Have to Mean Bored at Home.” The article was written by Massachusetts Lawyers Weekly reporter Kris Olson.

In the article, Russell Beck discusses the topical diversions he has been writing about in his blog, Fair Competition Law. Since the onset of the Covid-19 crisis, Russell has written a series of posts containing helpful suggestions for staying engaged and entertained while staying at home.

The article discusses Russell’s work as follows:

Typically, one would visit the Fair Competition Law blog to read Boston attorney Russell Beck’s insights on recent developments in noncompete or trade secret litigation.

But, of course, these are not typical times.

So, on March 21, Beck repurposed his blog to host a post titled, “Stuck at Home Doesn’t Have to Mean Bored at Home.” The post contains a compendium of dozens of links, some suggested by friends and family, pointing to online resources to pass the time while social distancing.

“After about one week of lockdown, it seemed so surreal at the time,” Beck says. “I was having non-stop conversations, where it seemed like it was the end of the world as we know it.”

As he thought about what might be helpful, he decided the blog could be a force for “maintaining some semblance of normalcy.”

The positive reaction to the initial post led to a second one on April 13 and then, a few days later, a third. The posts have been passed around on LinkedIn and Facebook, reaching new audiences.

“It seems people are at least finding it valuable enough to look at it, share it, and ‘like’ it,” Beck says

Russell’s blog typically provides up-to-the-minute analysis of legal issues concerning noncompete agreements in Massachusetts and across the United States.

As described by Massachusetts Lawyers Weekly, Russell’s “Stuck at Home” series of articles cover a wide array of topics:

Beck’s links are separated by category, and he happily shares some of his personal favorites.

***

Under “Cooking, Cookies, and Other Food Options,” Beck says the banana bread recipe he has shared is “pretty amazing,” and in terms of procuring the requisite bananas, Beck has a link to what he says is a helpful Boston Magazine post on “innovative ways to buy fresh produce and groceries.”

***

Within the “Exercise” category, Beck makes room to promote one of his firm’s own, litigation paralegal Paula Astl, who also owns and operates a business offering a personal training program she created, called “The Fix.”

Beck says Astl is “in the best shape of anybody I’ve ever known,” and suggests that if anyone can whip one’s suddenly sedentary body into shape, it would be her.

The article concludes with a reflection by Russell about how the coronavirus shut down has affected Beck Reed Riden LLP:

As for his professional life, Beck says that his office had been a “very collaborative environment,” where open doors and impromptu brainstorming had been the norm, prior to the coronavirus. With a bit of planning, he and his colleagues have salvaged at least some of that spirit.

“But I miss the ability to walk down the hall,” he says.

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, and includes:

  • Over twenty five 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 matters
  • Authoring the book Trade Secrets Law for the Massachusetts Practitioner (1st ed. MCLE 2019), covering trade secrets nationally, with a focus on Massachusetts law
  • 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 2019 Chambers USA Guide, which stated that Russell Beck is a “terrific” attorney, who “is an excellent choice of counsel regarding noncompete agreements and the resolution of restrictive covenant disputes.” Chambers noted that Russell “basically wrote the new Massachusetts statute on noncompetes” and that “he’s an expert in employee mobility and nonrestrictive covenants.”

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation 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 Featured in Massachusetts Lawyers Weekly on Nonsolicit Case

A recent issue of Massachusetts Lawyers Weekly features Russell Beck in an article titled “1st Circuit affirms injunction in non-solicitation case.”

The article covers a decision by the United States Court of Appeals for the First Circuit concerning the enforcement of a non-solicitation agreement against a former sales employee who went to work for a competitor. The court rejected the employee’s argument that the Massachusetts Noncompetition Agreement Act applied to the dispute because the restrictive covenant predated the effective date of the law, and the law does not govern non-solicit (as opposed to noncompete) restrictions.

The decision was entered in the case titled NuVasive, Inc. v. Day.  The article was written by Massachusetts Lawyers Weekly reporter Eric T. Berkman.

In the article, Russell Beck is quoted as follows:

Russell Beck, a Boston attorney and leading expert on noncompete law, said the decision was “unsurprisingly disappointing” in terms of providing any new insight into the substance of the new noncompete law.

Still, he said, any 1st Circuit decision in a non-solicitation preliminary injunction case will have important takeaways, and NuVasive is no exception.

For one thing, he said, the decision indicates that in the context of a choice-of-law analysis, the fact that a company is incorporated in Delaware is enough to apply Delaware law to a Massachusetts resident subject to a restrictive covenant.

At the same time, the case involved a non-solicitation agreement in a contract that pre-dated the MNCA’s effective date, Beck said.

“So whether the 1st Circuit’s decision will continue to permit application of another state’s law to noncompetes signed on or after Oct. 1, 2018, remains to be seen,” he said. “I expect the court will apply Massachusetts law notwithstanding any other choice-of-law provision in the agreement.”

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, and includes:

  • Over twenty four 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 matters
  • 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 2019 Chambers USA Guide, which stated that Russell Beck is a “terrific” attorney, who “is an excellent choice of counsel regarding noncompete agreements and the resolution of restrictive covenant disputes.” Chambers noted that Russell “basically wrote the new Massachusetts statute on noncompetes” and that “he’s an expert in employee mobility and nonrestrictive covenants.”

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation 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 and Erika Hahn Featured in Law360 on FTC Regulation of Noncompete Agreements

Russell Beck and Erika Hahn‘s response to the Federal Trade Commission’s investigation whether it should regulate noncompete agreements was published by Law360 under the title, “FTC Should Leave Regulation of Noncompetes to States.”

Russell’s response to the FTC’s inquiry can also be found at Fair Competition Law as “FTC Noncompete Workshop – Update on Our Submission.”

The analysis reflects the testimony submitted by 22 lawyers from around the country (including Russell Beck) to the FTC.  In sum, the testimony asserts that

noncompetes have been regulated by the states for over 200 years, and all 50 states have made policy decisions that make sense for their citizens and their economies. In more than 30 of those states, legislatures have recently been reevaluating their law, with different outcomes that balance competing interests in a way that reflects the economic realities of the particular state.

Nevertheless, in no state does the law permit unfettered use of noncompetes, nor has any state banned noncompetes wholesale since 1890. Rather, each of the 47 states permitting noncompetes allows them to be used, to a greater or lesser extent, only as necessary to protect companies from certain types of unfair competition.

Russell and Erika’s article further contends that the FTC should refrain from regulating noncompete agreements, as follows:

The FTC should not use its rulemaking authority to address noncompete clauses. Rather, the states should be left to evaluate and regulate their own economies as they see fit — as they have done for over 200 years. There is no gap to fill. All 50 states have made policy choices — and more than 30 of them have recently or are currently reevaluating those choices, choosing outcomes that make sense for their unique circumstances.

To the extent that the FTC has authority to promulgate a rule and chooses to exercise it, the FTC should be judicious. Before considering any regulatory action, it is important to understand the potential unintended consequences of significant changes in the law, including, for example, significantly increasing the likelihood that trade secrets will be unlawfully taken to a competitor and increasing the volume of more costly trade secret litigation.

The article concludes that,

While the laws are certainly in a state of flux and should remain the purview of the states, any changes should be made only with a proper factual basis — not on misplaced assumptions.

In July 2019, Law360 published Russell Beck’s analysis of misconceptions in the noncompete debate. In December 2019, Law360 also published an article by Russell Beck and Erika Hahn about federal noncompete reform efforts.

____

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, and includes:

  • Over twenty four 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 matters
  • 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 2019 Chambers USA Guide, which stated that Russell Beck is a “terrific” attorney, who “is an excellent choice of counsel regarding noncompete agreements and the resolution of restrictive covenant disputes.” Chambers noted that Russell “basically wrote the new Massachusetts statute on noncompetes” and that “he’s an expert in employee mobility and nonrestrictive covenants.”

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation 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.

 

State and Federal COVID-19 Resources

Beck Reed Riden LLP is gathering resources on recent state and federal action in response to the spread of COVID-19. Below are some recent updates.

Federal government enacts legislation regarding COVID-19 affecting employment (March 18):

  • Congress passed and the President signed H.R. 6201, the Families First Coronavirus Response Act, on March 18, 2020, with provisions effective within 15 days.  The Act includes expanded FMLA for eligible employees who are unable to work (or telework) due to a need to care for a minor child if the child’s school or place of childcare is closed or unavailable due to a COVID-19 emergency, and provides for two weeks of paid sick leave in many COVID-19 related circumstances.

Governmental Resources and Guidance:

Federal Guidance

National resources

Massachusetts Guidance

Connecticut Guidance

Rhode Island Guidance

New Hampshire Guidance

Maine Guidance

Vermont Guidance

New York Guidance

California Guidance

 

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 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.

Phone Call to Employer to Enforce Noncompete Agreement Leads to Lawsuit

An employer accused of trying to have its former employee fired from her new job faces a lawsuit for defamation and tortious interference.

In Eaton v. Veterans Inc., Laurel Eaton filed suit in the United States District Court for the District of Massachusetts against her former employer, Veterans Inc. In her lawsuit, Ms. Eaton claimed that Veterans called her new employer and asserted that Ms. Eaton’s noncompete agreement with Veterans prevented her employment with the new company.  Ms. Eaton alleged that, during that phone call, Veterans threatened litigation to enforce the noncompete agreement (which Veterans never pursued), and demanded that the new employer fire Ms. Eaton – which it did. Based on these facts, Ms. Eaton claimed that Veterans defamed her and tortiously interfered with her new employment.

In response to Ms. Eaton’s complaint, Veterans moved to dismiss the tortious interference and defamation claims, arguing that its communications to Ms. Eaton’s new employer could not form the basis for liability because they were protected by the litigation privilege, which “extends to communications made preliminary to proposed judicial proceedings if judicial proceedings are contemplated in good faith and under serious consideration.”

On January 16, 2020, the court (Hillman, J.) denied Veterans’ motion to dismiss Ms. Eaton’s complaint. The court accepted as true (as it must at the motion to dismiss stage) Ms. Eaton’s allegations in her Amended Complaint that

(1) Defendant [Veterans] knew or should have known that it lacked any legitimate business reason to enforce the Non-Compete Agreement; (2) Defendant knew or should have known that the Non-Compete Agreement was unenforceable; (3) Defendant knew or should have known that its statements to [the new employer] regarding the enforceability of the Non-Compete Agreement were false; and (4) Defendant made these statements with the malicious intent of getting [Ms. Eaton] fired.

The court concluded that these allegations “create the reasonable inference that Defendant threatened legal action in bad faith and did not seriously consider initiating any judicial proceeding against Plaintiff or” the new employer. Accordingly, the court declined to determine at this early stage whether the litigation privilege applies to Veterans’ statements and denied the motion to dismiss.

The court’s decision highlights a risk of trying to enforce a noncompete agreement. The decision also serves as a reminder that efforts to enforce a noncompete must be tied to legitimate business interests, and that the litigation privilege is not necessarily an impenetrable shield. In light of this decision, practitioners and parties alike should keep in mind the value in analyzing the risks and rewards associated with whether to enforce a noncompete agreement, and how to go about pursuing enforcement.

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 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.

A Shakeup in Copyright Law: Ninth Circuit Signals Swift Shift in Music IP Litigation

On Sunday, January 26th, the Recording Academy hosted its 62nd Annual GRAMMY Awards. Dubbed “Music’s Biggest Night,” the GRAMMY Awards is a high-profile event dedicated to recognizing outstanding achievements in the music industry. Often absent from the spotlight, however, are those songwriters whose original works have been “borrowed” by award-winning compositions without license or credit.

According to the complaint in Hall v. Swift, this was the case in 2014, when Taylor Swift won two GRAMMY Awards for her song, Shake It Off, and took home Record of the Year for her album, also titled “Shake It Off.” Claiming that Swift had impermissibly copied lyrics from their 2001 hit song, Playas Gon’ Play, co-authors Sean Hall and Nathan Butler sued Swift for copyright infringement in February 2018.

The U.S. District Court for the Central District of California found that the lyrics at issue were “too brief, unoriginal, and uncreative to warrant protection under the Copyright Act” and dismissed the case.

On appeal, however, the Ninth Circuit reversed the lower court’s decision and remanded the case back to district court, holding that the “complaint still plausibly alleged originality.” The appellate court’s decision not only revived the case against Swift, but also signals a possible shift in the Ninth Circuit towards a more hands-off approach to analyzing “originality” at the motion to dismiss stage.

The Standard

To succeed on a claim for copyright infringement, a claimant must demonstrate (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original. A work is original when it “was independently created by the author” and “possesses some minimal degree of creativity.” While “[w]ords and short phrases such as names, titles, and slogans” are “not subject to copyright,” there may be an exception to the rule where the short phrase is sufficiently creative.

In the music industry—which has a long tradition of copyright litigation—copyright claims that are based on short phrases often fail for lack of originality. This is especially true when the phrase at issue is rooted in history or popular vernacular. Indeed, pop hits such as Whitney Houston’s “My Love is Your Love,” Jay-Z’s “Made in America,” and Migos’s “Walk It Talk It” have all been the targets of failed copyright infringement claims.

The Case

Sean Hall (d.b.a. Gimme Some Hot Sauce Music) and Nathan Butler (d.b.a. Faith Force Music) are co-authors and copyright owners of the song titled Playas Gon’ Play. The song, which was performed by the all-girl pop group 3LW, was released in May 2001. The chorus of Playas Gon’ Play contains the following lyrics: “Playas, they gonna play / And haters, they gonna hate . . . .”

In 2014, Taylor Swift co-authored the song Shake It Off, which was released the same year. By the time the case was filed, more than nine million copies of the award-winning song had been sold. The chorus of Shake It Off contains the lyrics: “‘Cause the players gonna play, play, play, play, play and the haters gonna hate, hate, hate, hate, hate . . . .”

On February 13, 2018, Hall and Butler brought suit against Swift and others, claiming that Swift’s Shake It Off impermissibly copied lyrics from Playas Gon’ Play. Notably, Plaintiffs’ single copyright infringement claim was premised solely upon the lyrical similarities between the two songs—Plaintiffs did not contend that the two songs shared “any significant rhythmic, melodic, harmonic, or other musical similarities.”

Defendants moved to dismiss the case, arguing that the lyrics in question were “merely a short phrase . . . not afforded protection under the Copyright Act.” Plaintiffs countered that their short phrase was sufficiently creative to justify protection (as an exception to the general rule). The court rejected Plaintiffs’ argument, noting that “by 2001, American popular culture was heavily steeped in the concepts of players, haters, and player haters” and that “[t]he concept of actors acting in accordance with their essential nature is not at all creative; it is banal.” (Emphasis added.) The court also found that Plaintiffs’ combination of “playas, they gonna play” and “haters, they gonna hate” was not entitled to protection. In this regard, the court stated:

It is hardly surprising that Plaintiffs, hoping to convey the notion that one should persist regardless of others’ thoughts or actions, focused on both players playing and haters hating when numerous recent popular songs had each addressed the subjects of players, haters, and player haters, albeit to convey different messages than Plaintiffs were trying to convey. In short, combining two truisms about playas and haters, both well-warn notions as of 2001, is simply not enough.

(Emphasis added.)

The district court concluded: “the lyrics at issue . . . are too brief, unoriginal, and uncreative to warrant protection under the Copyright Act.” Based on this finding, the court granted Defendants’ motion to dismiss, and provided Plaintiffs leave to amend their complaint.

On appeal, the U.S. Court of Appeals for the Ninth Circuit reviewed the district court’s dismissal de novo and found: “Even taking into account the matters of which the district court took judicial notice . . . Hall’s complaint still plausibly alleged originality.” Based on this finding, it reversed the lower court’s decision and remanded the case back to district court.

Since issuing its order, the Court of Appeals has stricken substantive text from its decision and issued an amended memorandum of opinion. The amended opinion omits the statement that “Originality, as we have long recognized, is normally a question of fact,” and a warning by the court that courts should not act as “the final judge of the worth of an expressive work.”

The Takeaway

Following Swift, defendants may now have a harder time dismissing copyright infringement claims based on the argument that the work sought to be protected lacks originality. This has the potential effect of allowing weaker copyright claims to live on for longer, thereby costing defendant artists more money and reputational harm. And, while speculative, it would not be surprising if Swift has the ultimate effect of emboldening copyright trolls and triggering an uptick in strategic litigation.

As to the ultimate merits of Hall’s claims, what a court does (or the courts do) at the summary judgment stage will be even more illuminative. For now, all we can do is sit back and watch as the “playas” and “haters” continue to fight it out.

***

Hannah T. Joseph, the author of this article, is an attorney with the firm’s litigation group, focusing her practice on the growing areas of trade secrets law, restrictive covenants, employee mobility, and unfair competition. Hannah’s work in intellectual property has been recognized at the American Intellectual Property Law Association, the Boston Bar Association, and Practising Law Institute. Hannah is also the editor of the firm’s monthly e-newsletter.

Thank you to Yetunde Buraimoh for her contributions to this article, which were significant.

Beck Reed Riden LLPis 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 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 to Chair PLI Noncompete and Restrictive Covenants Program

Russell Beck will be the chairperson of Practising Law Institute’s inaugural program on noncompete agreements and other restrictive covenants. The program, which will be held in San Francisco, is titled “Noncompetes and Restrictive Covenants 2020: What Every Lawyer, Human Resources Professional, and Key Strategic Decisionmaker Should Know.”

In addition, Hannah T. Joseph will be speaking on a panel with Russell Beck about noncompete agrements at the PLI program. Their panel, titled “Level-Setting Noncompetes from Soup to Nuts,” will provide an overview of the patchwork of noncompete laws across the country, issues surrounding proof of causation and damages in noncompete cases, as well as recent developments in noncompete law.

The program will take place on January 31, 2020, at Practising Law Institute in San Francisco. The program, which runs from 9 a.m. to 5:30 PT will also be available online. Complete details are available here.

Speakers at the conference include a wide array of in-house and outside counsel, as well as a Commissioner on the Federal Trade Commission, Noah Joshua Phillips.

According to PLI, the program will help attendees:

  • Understand the basics of noncompete agreements
  • Discover how to use state of the art computer forensics to bolster your case for enforcement, and what it means for the defense
  • Find out advanced practices for seeking and defending against temporary restraining orders, preliminary injunctions, and related preliminary orders
  • Learn how to prove causation and damages
  • Get the latest legislative developments regarding noncompete agreements and best practices from practitioners
  • Hear differing perspectives on noncompete policy from in-house counsel, academics, and others
  • Gain insight into judges’ approaches to the practical aspects of enforcing noncompetes

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, and includes:

  • Over twenty four 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 matters
  • 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 2019 Chambers USA Guide, which stated that Russell Beck is a “terrific” attorney, who “is an excellent choice of counsel regarding noncompete agreements and the resolution of restrictive covenant disputes.” Chambers noted that Russell “basically wrote the new Massachusetts statute on noncompetes” and that “he’s an expert in employee mobility and nonrestrictive covenants.”

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 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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