Kenneth Vanko at Clingen Callow & McLean, LLC

Proposed Non-Compete Legislation in Connecticut Follows Legislative Trend

So far, 2013 has been active for proposed non-compete legislation. At the beginning of any calendar year, it's not surprising to see a number of bills introduced in state assemblies or legislatures - many of which have...more

5/16/2013 - Non-Compete Agreements Proposed Legislation

You Can't Reverse Blue-Pencil a Non-Compete

By now, I hope readers of this blog would be aware that the title of this post simply reinforces the obvious....more

5/14/2013 - Non-Compete Agreements Non-Solicitation Agreements Restrictive Covenants

Supreme Court of Georgia Rejects Independent Claim for "Inevitable Disclosure"

The "inevitable disclosure" doctrine is one of the most discussed, controversial topics in unfair competition law. The commentary among academics and bloggers reminds me of the ongoing debate over the proper scope of the...more

5/8/2013 - CFAA Non-Compete Agreements Restrictive Covenants Trade Secrets

Fracking and Trade Secrets: An Introduction

This is the first in a multi-part installment on the impact of trade secrets law on hydraulic fracturing. Fracking. If you've read the newspaper over the past year or so, fracking suddenly has become a household...more

5/3/2013 - Fracking Trade Secrets

Settlements Redux: A Brief Follow-Up From My Bankruptcy Post

I received a number of e-mails on my three-part series on settlements, which ran over the past few weeks. Of those e-mails, several dealt with a topic I raised in Part 3 - accounting for the possibility of a settling...more

4/30/2013 - Dischargeable Debts Fiduciary Duty Settlement

When a Restriction on Soliciting "Prospective" Customers Is Unreasonable (and How to Fix It)

One of the most common drafting errors in non-solicitation covenants - clauses that limit customers to whom competitive services may be offered - is the reach to whom it applies. In concept, the idea of a customer...more

4/26/2013 - Contract Drafting Non-Solicitation Agreements

New Jersey Non-Compete Bill Follows Maryland Lead - And Then Takes It a Step Further

In January, I discussed Maryland's proposed Senate Bill 51, which (if passed) would ban certain non-compete agreements if an employee was deemed eligible to receive unemployment benefits....more

4/23/2013 - Non-Compete Agreements Proposed Legislation Unemployment Benefits

Settlements (Part 3 of 3): Dealing With a Defendant's Bankruptcy in Non-Compete Litigation

This is largely a plaintiff-centric column, offering some practical points to consider when assessing the risk of bankruptcy in connection with non-compete (or other competition) litigation. Though many non-compete suits...more

4/17/2013 - Fiduciary Duty Fraud Non-Compete Agreements Restrictive Covenants Settlement

Settlements (Part 2 of 3): 5 Reasons Non-Compete Cases Should (and Do) Settle

On Monday, I offered several reasons why non-compete cases don't settle. Today I flip this concept around. It is true most non-compete cases do settle, a reflection that business cases get resolved for pure economic...more

4/12/2013 - Non-Compete Agreements Settlement

Settlements (Part 1 of 3): 5 Reasons Non-Compete Cases Shouldn't (and Don't) Settle

Every judge, lawyer, and litigant is probably familiar with the maxim that most civil cases settle. That's undoubtedly true. But some classes of suits are better positioned to settle than others. In non-compete and other...more

4/9/2013 - Competition Litigation Strategies Non-Compete Agreements Settlement

Practice Tip: Don't Call Your Liquidated Damages Clause a "Penalty" In the Contract

Readers of this blog know that I am an advocate of using liquidated damages clauses in non-compete agreements. Though not for every situation, they can help avoid the knotty problem of proving lost profits damages through...more

4/3/2013 - Breach of Contract Contract Drafting Discovery Expert Testimony Liquidated Damages Non-Compete Agreements

Another Court Construes the CFAA Narrowly and More of My Thoughts on the Statute

After last year's important Ninth Circuit decision from U.S. v. Nosal, I discussed my take on the ongoing debate within our federal courts over how to interpret the Computer Fraud and Abuse Act - and in particular, whether...more

3/28/2013 - CFAA Cybersecurity Data Protection Sensitive Business Information US v Nosal

Plaintiffs' Attorneys, Rest Easy: Cease and Desist Letters Likely Aren't Defamatory

Non-compete disputes often follow a similar pattern. And part of that pattern involves the dreaded "cease-and-desist" letter. These letters are precursors to litigation, and they can be either effective or damaging,...more

3/26/2013 - Cease and Desist Orders Defamation Litigation Privilege Non-Compete Agreements

U.S. v. Nosal: Back In the District Court, the Defendant Isn't as Fortunate

One of 2012's most important competition law cases involved the Ninth Circuit's decision in United States v. Nosal, which narrowly construed the Computer Fraud and Abuse Act. Nosal determined that an employee did not violate...more

3/19/2013 - CFAA Competition Data Protection Data Use Policies Passwords US v Nosal

A Brief Commentary on Illinois' Proposed Noncompete Agreement Act

As readers of this blog may know, a few years ago I drafted Illinois' proposed Covenants Not to Compete Act. Several legislators had determined, at that time, that a bill was necessary to regulate the use and...more

3/13/2013 - Non-Compete Agreements Proposed Legislation

Minnesota Legislation Would Ban Most Non-Competes

About a month ago, a proposed bill was introduced in the Minnesota House of Representatives that would dramatically impact non-compete law in that state. ...more

3/7/2013 - Non-Compete Agreements Non-Solicitation Agreements Proposed Legislation

Trade Secrets Injunction Order Demonstrates Difficulty of Balancing Competing Interests

One of the more difficult aspects of trade secrets law is determining how long to enjoin competitive conduct that infringes trade secret rights of the owner....more

3/4/2013 - Injunctions Non-Compete Agreements PepsiCo v Redmond Sensitive Business Information Trade Secrets

My Thoughts on Michigan's Proposed Non-Compete Legislation

What do Michigan and New Hampshire have in common, besides being two more states Mitt Romney couldn't carry? They have proposed or enacted legislation that restricts the use of so-called "afterthought" non-competes. This...more

2/27/2013 - Employment Contract Non-Compete Agreements Proposed Legislation

Broad Federal Policy Favors Arbitration Agreements, Can Extend to Non-Parties

With the Supreme Court last year strengthening the case for the arbitratrion of non-compete disputes, count me in as one who is fairly confident we're going to see businesses utilizing such clauses more in employment and...more

2/25/2013 - Arbitration Agreements Employment Contract Federal Arbitration Act Motion to Compel Non-Compete Agreements Non-Parties Third-Party

Some Thoughts On Pursuing Expedited Discovery

Most non-compete (and some trade secrets) cases are effectively decided at the preliminary injunction stages. For counsel, this means that a significant part of the lawsuit must be tried quickly and with great efficiency....more

2/21/2013 - Discovery Expedited Discovery Non-Compete Agreements Preliminary Injunctions Protective Orders Trade Secrets

Ninth Circuit Vacates MGA's Trade Secrets Counterclaim Award

The long-running dispute between Mattel and MGA Entertainment is one of the most notable, costly competition cases of the last decade. As most readers probably know, Mattel makes the popular Barbie line of dolls and sued its...more

2/18/2013 - Anti-Kickback Statute Appeals Assignment of Inventions Bratz Counterclaims Mattel MGA Entertainment Reversal Trade Secrets Uniform Trade Secrets Acts

Non-Compete Case Law Update: The Mildly Interesting, But Useful, Edition

The new year is off to a pretty big start. We've already seen significant decisions from federal appellate courts on criminal trade secrets prosecutions and the epic Mattel/MGA "Bratz" dolls dispute. We have a looming debate...more

2/12/2013 - Dischargeable Debts Injunction Bonds Injunctions Non-Compete Agreements Preemption Trade Secrets Uniform Trade Secrets Acts

Sixth Circuit Reverses Sentence of Engineers' Convicted of Trade Secrets Theft

In December of 2011, Clark Roberts and Sean Howley, two engineers at Wyko Tire Technology, were convicted by a jury for stealing trade secrets, a crime under the federal Economic Espionage Act (EEA). The trade secrets related...more

2/6/2013 - Criminal Prosecution Economic Espionage Act Goodyear Resentencing Reversal Theft Trade Secrets

Once Again, Selective Enforcement Defense Is Unconvincing

I've written in the past why the "selective enforcement" defense rarely - if ever - seems to work in non-compete litigation. For those who don't recall, the defense is based on the idea that if a company does not enforce a...more

2/4/2013 - Non-Compete Agreements Selective Enforcement Defense Waivers

IBM Suit Over Corporate Raiding Illustrates Use of Social Media Evidence

IBM has launched an assault against Virginia-based competitor, Computer Sciences Corporation, charging it with instituting a raid on its Finance Department through a departed IBM executive, Christopher Greiner. ...more

2/1/2013 - Computer Science Corporation Evidence IBM Non-Compete Agreements Non-Solicitation Agreements Social Media Unfair or Deceptive Trade Practices

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Kenneth Vanko

Clingen Callow & McLean, LLC

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