Last month, the Illinois Bar Journal published a feature article I wrote called "Non-Traditional Non-Competes: Designing Non-Competition Agreements to Hold Up in Court."...more
One of the defining characteristics of a state's non-compete law is its application of the blue-pencil rule. Although several variations of the rule exist, states generally fall into one of two camps: those that readily...more
Although the Computer Fraud and Abuse Act frequently has been described as extremely broad in reach, it's also important to recognize its limitations.
One of the most substantive, sweeping limitations involves...more
One of the most frequently asked questions I get when advising clients is deceptively complex:
What does it mean to solicit a client?...more
When the Appellate Court of Illinois ruled in Fifield v. Premier Dealer Services, Inc. that an employer needed to provide consideration beyond mere employment itself to validate a non-compete, most business (read:...more
When the Georgia General Assembly passed the Restrictive Covenant Act in 2009, it substantially changed the playing field between employers and employees. Under the common law, it was exceedingly difficult for employers to...more
When construction staffing industry titan Tradesmen International lost its appeal in the Seventh Circuit, it suffered more than just a defeat in a particular lawsuit that (in my opinion) it had no expectation of winning....more
This is a case I know a little something about.
When Tradesmen International sued my clients in May of 2010 , the outcome was already clear. The claims were garden-variety; the facts weren't. ...more
For the most part, I am deferring extended discussion of the proposed new trade secrets law to my (friendly) competitors, John Marsh of Hahn Loeser and Robert Milligan/Josh Salinas of Seyfarth Shaw. Their posts are excellent...more
Many thanks to all the readers who've e-mailed me or posted links to my "dissenting opinion" in Fifield v. Premier Dealer Services. I'd like all of you to know I'm in the process of recovering. Your words of support and...more
Although many commentators are discussing the Appellate Court of Illinois' opinion in Fifield v. Premier Dealer Services, Inc., you may not realize that I sat in on that case as the fourth justice. Unfortunately, my...more
One exceedingly difficult message to convey to clients is this: A judge may not view your case as importantly as you do....more
By the time you read this blog post, it's like to be outdated. Such is the fast-paced world of professional sports, and the insane coaching carousel we see every year (but particularly this year in the National Basketball...more
Hat-tip to Josh Salinas at Seyfarth Shaw for his fine analysis of new Oklahoma legislation that chips away at some prohibitions on restrictive covenants.
Oklahoma is one of three red-flag states that generally prohibit...more
I am taking a little bit of a different approach with this post, with a focus on representing employee clients in competition litigation.
When I first talk to a new client who has a legal problem involving a...more
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
By now, I hope readers of this blog would be aware that the title of this post simply reinforces the obvious....more
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
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
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
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
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
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
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
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