If You Fire Me Without Cause, Can I Ignore My Non-Compete And Steal Your Clients?

In the decades since Post v. Merrill Lynch, Pierce, Fenner & Smith, 48 N.Y.2d 84 (1979), in which the New York Court of Appeals concluded it would be unreasonable to enforce a non-competition agreement requiring forfeiture of compensation against an employee terminated without cause, New York courts have struggled with articulating a clear rule as to whether an employee’s post-employment restrictive covenants are enforceable upon a termination without cause and, if so, when. Read More

President Obama Signs into Law the Theft of Trade Secrets Clarification Act

On December 28, 2012, President Obama signed into law the Theft of Trade Secrets Clarification Act. The Act amends the Economic Espionage Act of 1996 (EEA) and expands the jurisdiction of federal courts over cases concerning misappropriation of trade secrets. It was enacted in response to a recent Second Circuit decision that arguably narrowed the jurisdictional scope of the Economic Espionage Act of 1996.

The passage of the EEA (18 U.S.C. §§ 1831-39) marked the first major federal legislation aimed specifically at granting federal courts jurisdiction over claims of trade secret misappropriation. With the enactment of the EEA, Congress gave federal prosecutors a vehicle to bring criminal charges against individuals who knowingly misappropriate trade secrets. 18 U.S.C. § 1832(a). The EEA also provided the federal government the ability to seek injunctive relief for trade secret theft in a civil action under the statute. Id. § 1836.

Prior to the EEA, trade secrets were the subject of state law protections, largely under state-adopted versions of the Uniform Trade Secrets Act. Under that regime, federal courts obtained jurisdiction over such claims solely by means of diversity jurisdiction or through charges under federal criminal statutes stretched to cover trade secret misappropriation. Read More

Supreme Court Reaffirms Enforceability of Arbitration Agreement in Noncompetition Dispute

In a succinct opinion issued on November 26, 2012, the Supreme Court delivered a stern warning to state courts that fail to enforce arbitration clauses accompanying noncompetition agreements. In Nitro-Lift Technologies, L.L.C. v. Howard, 568 U.S. ____ (2012), the employment contracts between two energy-sector employees and their employer contained a two-year noncompetition provision and a mandatory arbitration clause. After the employees joined a competitor, the employer commenced an arbitration proceeding, prompting the employees to bring suit in Oklahoma state court seeking an injunction preventing enforcement of the noncompetition agreements. Despite the mandatory arbitration clauses, Oklahoma’s highest court declared the noncompetition agreements unenforceable under a state law prohibiting restraints on an employee’s ability to work in the same industry. Read More