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Protecting Trade Secrets in an Anti-Noncompete Era

Original air date: 3.2.21.
The program is not eligible for CLE.

Noncompetition agreements have historically offered powerful protection against misappropriation of trade secrets. While a departing employee may have legal and contractual obligations to refrain from disclosing trade secrets to a subsequent competing employer, an enforceable noncompete means that the employer need not blindly trust that its former employee will remain faithful to these obligations. Removing the employee from the competitor effectively removes the threat. But noncompetes have fallen out of favor with many judges, state legislators, and even our new President, all of whom decry these agreements as being unfair to workers and improperly restrictive of their mobility in the labor market. Many states have enacted statutes limiting or prohibiting the enforcement of noncompetes, and the Biden Administration has forewarned of his intention to abolish them. In light of these challenges, noncompetes have become a less reliable tool, and businesses need to find alternative means to protect and secure their trade secrets. In this seminar, Tom McNulty, an intellectual property attorney at Lando & Anastasi, and Max Perlman an employment and trade secret litigator at Hirsch Roberts Weinstein LLP, will address the challenges and potential solutions through a discussion of the following topics:

  • A Powerful Tool: Protecting Trade Secrets with Noncompetes
    • Using noncompetes to protect trade secrets
    • Unique protection offered by noncompetes
  • Challenges to the Enforceability (and Existence, Even) of Noncompetes
    • Recent court decisions
    • State legislative efforts
    • President Biden’s warnings
  • Optimizing the Prospects for Enforcement of Noncompetes
    • Reasonableness in scope and target
    • Reasonableness in enforcement efforts
    • Statutory compliance / adherence to presumptions
  • Plan B: Protecting Trade Secrets in the Absence of Noncompetes
    • Other restrictive covenants
    • DTSA / UTSA / Inevitable disclosure
    • Practical / technological solutions
    • Special considerations for protecting trade secrets in a remote working environment
Presented by: Tom McNulty of Lando & Anastasi and Max Perlman of Hirsch Roberts Weinstein LLP.