In This Presentation:
..Recently, The Amount Of Non-Compete Litigation Has Increased While Litigation Generally Has Decreased In Recent Years. Why?
- Threshold Considerations Regarding Enforcement Via Litigation:
..Potential counterclaims by ex-employee
..Potential claims by current employer of ex-employee
..Competitive costs -- deployment of resources to lawsuit vs. marketplace
- Enforcement Considerations:
..Is the non-compete permissible under applicable state law?
..Does adequate consideration, if required, support the non-compete?
..Is the non-compete narrowly tailored for the specific ex-employee’s particular prior employment?
- Establishing A Violation:
..Can you establish that the ex-employee copied or downloaded competitive information while working?
..Can you establish that the ex-employee is currently utilizing your resources?
..Can you evidence that the ex-employee was forming or working for a competitive business while working for you?
..Have employees been advised that emails and voice mails are company property which are monitored?
..Has the company taken steps to treat the information involved in the lawsuit as confidential, or is the information generally discussed or disseminated rather than maintained confidentially?
- Litigation Risks:
..Litigation is expensive and time-consuming
..Non-compete litigation ordinarily is fast-paced and immediate.
..Attorneys’ fees – ordinarily, the prevailing party in non-compete litigation recovers its’ attorneys’ fees pursuant to state law – what does your particular state law say about enforcement costs and prevailing party attorneys’ fees?
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