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.

Hannah T. Joseph to Speak at BBA’s IP Year in Review

Hannah T. Joseph will be speaking on a panel about trade secrets at the Boston Bar Association’s 20th Annual Intellectual Property Year in Review. The event will be held at the Boston Bar Association on January 23, 2020, from 12:00 to 5:45 p.m., with a reception to follow. More information is available here.

The 20th Annual IP Year in Review is sponsored by the BBA’s Intellectual Property Section.

This year’s Trade Secrets panel also includes the following speakers:

Hannah Joseph 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. She has counseled both corporate and individual clients on the use and enforceability of noncompete, nonsolicitation, and nondisclosure agreements, and successfully litigated cases on both sides regarding the enforcement of such agreements. Hannah also represents corporate and individual clients in disputes involving breach of contract, breach of fiduciary duty, and intra-corporate matters.

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.

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.

Hannah Joseph and Kyle Vieira Give Presentation on Electronic Discovery

On January 6, 2020, Hannah T. Joseph and Kyle Vieira gave a presentation at the Boston Bar Association on electronic discovery. The program was titled E-Discovery Basics: Who, What, Where, When, WHY!

According to the description of the program, “E-Discovery has become a critical component to any litigation. This program will provide tips and tricks for how to develop an e-discovery strategy, how to engage and manage the vendor relationship, and how to satisfy your discovery obligations.”

Hannah and Kyle recently co-authored an article titled “A Conversation that Every Employer Should Have with Its eDiscovery Vendor.” In their article, Kyle and Hannah offer practical advice to employers about working with eDiscovery vendors.

According to their article, “eDiscovery, which encompasses the collection, preservation, analysis, review, and production of electronically-stored information (ESI), is a necessary and often critical component of litigation. Indeed, eDiscovery is not only expected in most cases, but can also determine litigation strategy and outcomes. Given the sheer volume of potentially-relevant ESI in any given matter, as well as the evolving nature of legal disputes (a ‘small’ matter can quickly balloon into full-blown litigation involving multiple custodians) the appropriate management of eDiscovery is often key to litigating effectively and controlling costs. In most instances, this will mean partnering with the right eDiscovery vendor.”

Hannah Joseph 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. She has counseled both corporate and individual clients on the use and enforceability of noncompete, nonsolicitation, and nondisclosure agreements, and successfully litigated cases on both sides regarding the enforcement of such agreements. Hannah also represents corporate and individual clients in disputes involving breach of contract, breach of fiduciary duty, and intra-corporate matters.

Kyle Vieira is also an attorney with the firm’s litigation group, and he has worked on various noncompete and trade secrets matters since he started working for Beck Reed Riden LLP in 2019. Kyle graduated from Boston University School of Law in 2019. He was a member of Boston University’s Intellectual Property Society and participated in Moot Court.

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.

Beck Reed Riden LLP Attorneys Named Super Lawyers

Russell Beck, Stephen ReedStephen Riden, and Barry Guryan have been recognized as Super Lawyers by the 2019 issue of Massachusetts Super Lawyers Magazine. In addition, Nicole Daly and Hannah Joseph have been recognized as Rising Stars by the Magazine.

Super Lawyers Magazine has also selected Russell Beck and Stephen Riden as two of the Top 100 Super Lawyers in Massachusetts and two of the Top 100 Super Lawyers in New England for 2019.

The title of Super Lawyer is given to 5% of the lawyers in the Commonwealth while the Rising Star designation recognizes 2.5% of lawyers under 40.  The Super Lawyers selection process is described in detail here.

 

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.

A Conversation that Every Employer Should Have with Its eDiscovery Vendor

eDiscovery, which encompasses the collection, preservation, analysis, review, and production of electronically-stored information (ESI), is a necessary and often critical component of litigation.

Indeed, eDiscovery is not only expected in most cases, but can also determine litigation strategy and outcomes. Given the sheer volume of potentially-relevant ESI in any given matter, as well as the evolving nature of legal disputes (a “small” matter can quickly balloon into full-blown litigation involving multiple custodians) the appropriate management of eDiscovery is often key to litigating effectively and controlling costs. In most instances, this will mean partnering with the right eDiscovery vendor.

Oftentimes, eDiscovery vendors will offer volume-discount pricing and other perks in order to earn a spot on an employer’s coveted preferred vendor list. For those employers who are involved with the vetting of their eDiscovery vendors, below are some considerations to keep in mind.

  1. Your vendor’s capabilities – starting the conversation

 When it comes to capabilities, not all vendors are built the same. It is important, at the outset of your matter, to anticipate the needs of your case and select a vendor who can best meet them. Consider whether your vendor can provide the following:

  • Collection and preservation of data;
  • Forensics analysis;
  • A review platform (and related support and technologies);
  • A managed review of documents; and
  • Expert testimony

Some cases (such as, for example, a large-scale trade secrets litigation) may require the full gamut of services. In those instances, it may be best to retain a vendor that can perform each of the above-listed functions effectively, so as to streamline processes. (In this regard, you can trust – but should verify – vendors’ representations about their capabilities. More on this, below.) In other cases, it may suffice to select a vendor who specializes in only some of these processes. In either instance, it is important to pick the right vendor early in the process; switching vendors mid-case can create myriad issues (including chain-of-custody problems) and complicate expert testimony.

Once you have started the conversation, how do you determine whether your vendor can perform the functions it says it can, and at the speed and with the efficiency and accuracy that you need? Having an informed conversation about each of the above-listed functions will be key.

  1. Forensics analysis – a vendor can be a roadblock or an E-ZPass

When it comes to forensics, partnering with a vendor that is responsive and can produce detailed, accurate reports within an expedited timeframe is essential. Moreover, the vendor should be able to produce the reports that you will need and in a format that is sufficiently user-friendly. (A report that provides in-depth analysis can be much more helpful than a series of Excel spreadsheets containing raw data, although – in most cases – you will want both.) Finally, if you anticipate that your matter might become litigation, you will want to ensure that the person performing the forensics analysis has testified successfully before and can meet the Daubert standard.

With these in mind, here are some questions that you may consider asking your vendor:

  • How long does it take you to image a computer? An iPhone?
  • What is your typical turnaround for providing forensics analysis?
  • How much notice do you need to expedite a forensic review?
  • How big is your forensic team?
  • How many dedicated computers do you have within your forensics department?
  • Do you provide 24-hour and weekend support? If so, is there an upcharge?
  • Will there be a case manager assigned to my matter to ensure continuity?
  • What kinds of forensics reports can you produce? (Standard reports include connectivity, cloud activity, file access, internet activity, and among others.)
  • What do your reports look like? How user-friendly are they?
  • Do you have people who can provide expert testimony?

Don’t be afraid to ask for (scrubbed) examples of forensics reports and expert CVs. You can even request to interview the person who will be testifying about the forensics analysis to get a sense of how he or she might perform during examination. By thoroughly vetting your forensics vendor, in addition to getting the information you need, you will begin to get a sense of how responsive the vendor is and how comfortable you are with them.

  1. Document review – managing costs and litigating effectively

Document review and production can drive up the costs of a litigation significantly. Vendors who are savvy in facilitating large-scale reviews should be able to offer a suite of services designed to help make your document review effective, relatively cost-efficient, and accurate (such as, e.g., predictive coding and AI). Moreover, your vendor should be able to offer early case assessment and help you to select the tools that will help you litigate your case most effectively.

For cases that involve large-scale document reviews, companies should also consider partnering with a vendor that can provide a managed review (i.e., document review that is performed by a team of dedicated contracted reviewers and is supervised by an in-house manager to ensure accuracy and consistency). Partnering with one vendor that can provide smart review tools and a managed review will enable you to streamline and coordinate efforts, likely making review and production a faster and more cost-effective process.

Finally, your vendor should have policies and methodologies in place that are designed to ensure that your production is internally consistent and defensible in court. (And your vendor should be prepared to testify as to its policies and methodologies if needed.)

Accordingly, here are some questions that you might ask your vendor.

  • What review platform(s) do you use?
  • What assistive technology do you offer?
  • Do you offer early case assessment?
  • Can you offer managed review? (If so, is the managed review contracted or in-house? What is the selection process for your managers and reviewers?)
  • Will there be a case manager assigned to my matter to ensure continuity?
  • Do you offer 24-hour and weekend support?
  • If needed, are there individuals at your company who can provide testimony regarding your policies and methodologies?

With respect to review platforms and assistive technology, it’s important to note that some are simply better than others. (A clunky platform or ineffective AI can result in dozens or hundreds of additional wasted billable hours.) And, when it comes to large-scale document reviews, a vendor’s approach to case management is of utmost importance, so it will be important to have a case manager staffed to your matter who you can trust.

  1. Choosing the right partner – seeing is believing

Having an initial conversation with a vendor may tell you about its capabilities, approaches, and experience. Some of the most important qualities, however – responsiveness, speed, accuracy, competence, continuity, and your vendor’s ability to take a proactive role in your matter – can only be determined through experience. Consider trying out a few vendors, and asking others who have worked with them (e.g., outside counsel) about their experience and recommendations.

Hannah T. Joseph and Kyle Vieira, the co-authors of this article, are attorneys with the firm’s litigation group, where they focus their practices on trade secrets law, restrictive covenants, employee mobility, and unfair competition.

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our hand-picked team of 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, and are recognized as a leading authority in trade secret, noncompete, and unfair competition law. 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.

 

Hannah T. Joseph Promoted to Senior Counsel at Beck Reed Riden LLP

Beck Reed Riden LLP is pleased to announce the elevation of Hannah T. Joseph to Senior Counsel status, effective August 1, 2019.

Hannah T. Joseph focuses her practice in the areas of complex commercial litigation, specializing in trade secrets law, restrictive covenants, and matters of employee mobility. She represents both corporate and individual clients on the use and enforceability of noncompete, nonsolicitation, and nondisclosure agreements, and has successfully litigated cases on both sides regarding the enforcement of such agreements.

Hannah also represents corporate and individual clients in disputes involving breach of contract, breach of fiduciary duty, and intra-corporate matters.

“Hannah is a terrific advocate for her clients,” said Stephen Riden. “She is a diligent and creative attorney, and we are proud to have her as an integral member of our team,” Riden added.

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.

Hannah Joseph Speaks about Protecting IP for Startups

Hannah Joseph recently spoke about strategies for protecting trade secrets at startup companies at the Boston Bar Association. Hannah’s April 23, 2019, presentation focused on some of the key issues facing startup companies, including the protection of trade secrets and the use of noncompete and nonsolicitation agreements.

Hannah Joseph is a member of the Boston Bar Association’s Intellectual Property Law Committee.

Hannah 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. She has counseled both corporate and individual clients on the use and enforceability of noncompete, nonsolicitation, and nondisclosure agreements, and successfully litigated cases on both sides regarding the enforcement of such agreements. Hannah also represents corporate and individual clients in disputes involving breach of contract, breach of fiduciary duty, and intra-corporate matters.

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 Attorneys Named Super Lawyers

Russell Beck, Stephen ReedStephen Riden, and Barry Guryan have been recognized as Super Lawyers by the 2018 issue of Massachusetts Super Lawyers Magazine. In addition, Hannah Joseph has been recognized as a Rising Star by the Magazine.

In addition, Super Lawyers Magazine has selected Russell Beck and Stephen Riden as two of the Top 100 Super Lawyers in Massachusetts for 2018. Russell Beck has also been named as one of the Top 100 Super Lawyers in New England for 2018.

Super Lawyers

The title of Super Lawyer is given to 5% of the lawyers in the Commonwealth while the Rising Star designation recognizes 2.5% of lawyers under 40.  The Super Lawyers selection process is described in detail here.

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 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.

Hannah Joseph Quoted in The Boston Globe

Hannah Joseph was quoted by the The Boston Globe in a recent story about the President’s ability to trademark his infamous neologism: “covfefe.” The story is titled “Can you trademark ‘covfefe’? These people and companies are trying.”

The article discusses various attempts to trademark the word covfefe after the President coined the word on Twitter.

In the article, Hannah analyzes whether a single word can be trademarked as follows:

So who really has the right to call “covfefe” his or her own?

“The question really that is interesting is who is going to get the right to it first, and whether Trump has any trademark rights at all,” said Hannah T. Joseph, an attorney who practices intellectual property law.

“If Trump or his campaign was using ‘covfefe’ in conjunction with any products or services, they’d arguably have some rights to the word,” Joseph said. “But assuming that’s not the case, it’s open season for everybody else.”

The article was written by Boston Globe correspondent, Claire Parker.

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.

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