Non-Compete Agreements: Leveling Up Trial Techniques and Litigation Strategies
Over the past years, the use of non-compete agreement provision between an employer and its employee has tremendously proliferated since the threat of trade secret interest and client relationship attack from other competitive companies has rigorously increased. However, companies are in the midst of facing potential risk and pitfalls due to a variety of changes in the landscape of restrictive covenant that resulted in a more complex, time-consuming, and expensive litigation process.
It is therefore important for companies and their counsel to proactively be in the know of the advance litigation practices and strategies in order to avoid potential risks and pitfalls.
In this LIVE Webcast, a seasoned panel of thought leaders and professionals brought together by The Knowledge Group will provide and present to the audience an in-depth analysis of the fundamentals of non-compete agreements. Speakers will also provide practical trial techniques and best litigation strategies as a preventive advantage against underlying risks and pitfalls.
Some of the major topics that will be covered in this course are:
- Non-Compete Agreements – The Fundamentals
- Recent Trends and Developments
- Opportunities and Challenges
- Best Litigation Techniques and Strategies
- What Lies Ahead
Kelsi Stayart White , Associate
Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C.
- Litigating non-compete agreements is about context. Most states that permit non-compete agreements require them to be reasonable, and that rule inevitably means their enforceability is tied to particular facts of the case. It’s critical on in to develop as many facts as you can early in the case about the particular employee’s job, its geographic reach, the confidential information he or she knew, how that information was protected, how she or he accessed it, the terms on which the employee left, the communications and conduct prior to the lawsuit, the business of the former employer, and the industry itself. Prior case law provides trial counsel guidance, but most non-compete cases are unique to their particular facts.
- Keep an eye out for common overbreadth pitfalls. There are some recurring areas where non-compete agreements end up overbroad as to scope, particularly once you develop the facts. Defendants should keep an eye out for facts that support overbreadth arguments concerning: (1) which entities’ business the agreement covers; (2) the agreement’s definition of the business; (3) the agreement’s geographic areas; and (4) the employee’s restricted roles and duties.
- Non-compete agreements can masquerade as non-solicitation or non-disclosure agreements. There is some developing case law that treats non-solicitation or non-disclosure agreements as subject to the same requirements as non-compete agreements. As a defendant, you can create serious litigation hurdles for a plaintiff-employer by arguing that even non-solicitation agreements or non-disclosure agreements should be treated as non-compete agreements depending on their text and how the plaintiff-employer is enforcing them.
- Employers with overbroad non-compete agreements must plan ahead. Once you are enforcing a non-compete agreement against a former employee, you are stuck with the agreement the employee signed. If that agreement is overbroad under applicable law, the employer must tread carefully in its early litigation strategies. Some state laws contain procedures, such as fee-shifting, that penalize employers who try to enforce overbroad non-compete agreements or enforce them in a way that is more aggressive than necessary. Prior to initiating litigation, the employer’s counsel should assess the best, achievable result for an employer-client when the applicable non-compete agreement is technically overbroad, and sometimes that result is most easily obtained outside of litigation.
Travis S. Hunter, Director
Richards, Layton & Finger, P.A.
- Beware of Public Policy Concerns: In drafting non-competes, it is important to remember where the employer and the employee are located. Although parties often try to include favorable choice of law provisions in non-compete agreements, courts have held such provisions unenforceable where the employee’s home state has strong public policy concerns against enforcement of non-compete provisions.
- Alternatives to Non-Compete Provisions: Non-compete provisions are subject to certain restrictions. Before including non-compete provisions in employment agreements, employers should consider whether there are other options available to promote employee retention such as the use of forfeiture provisions.
- Non-Competes Are Best Used with Key Executives: To the extent a company wants to have non-compete provisions, it should consider to whom such restrictions apply. While courts are inclined to enforce non-competes against key executives with significant bargaining power, they are less likely to enforce non-compete provisions against lower level employees.
- Act Fast to Enforce Non-Competes: If a non-compete provision ultimately results in litigation, an employer must act fast to enforce the provision; otherwise there is a risk the provision will not be enforced due to delay.
SEGMENT 3: Abraham Skoff, Partner
Moses & Singer LLP
Speaker talking points to be added soon.
Who Should Attend:
- Labor and Employment Law Attorneys
- Litigation Attorneys
- In-House Counsel
Travis Hunter is a director of Richards, Layton & Finger, Delaware's largest law firm. Mr. Hunter litigates complex disputes involving business acquisitions, trade secrets, insurance, products liability, and intellectual property. His practice involves cases in all of Delaware’s state and federal courts, and he has represented clients in numerous large commercial disputes in the Delaware Superior Court’s Complex Commercial Litigation Division. Mr. Hunter also represents clients in alternative dispute resolution proceedings before the American Arbitration Association. He received a B.A. from Davidson College and a J.D., summa cum laude, from the Dickinson School of Law at Pennsylvania State University.
Travis Hunter is a director of Richards, Layton & Finger, Delaware's largest law firm. Mr. Hunter litigates complex disputes involving …
Kelsi Stayart White is an associate at Houston trial firm AZA or Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C. She focuses on commercial litigation on both sides of the docket, including disputes involving trade secrets, non-compete agreements, employment, and commercial lending. She prides herself in connecting with her clients and their legal needs and enjoys solving challenging problems for them. In her first year at AZA, she tried two cases to jury verdict. In her most recent federal jury trial, she and another associate obtained a complete victory for the client in a case involving complex commercial lending in the financial services industry. She also has experience in motions practice in both state and federal court, including summary judgment, post-trial, and post-judgment motions.
Kelsi Stayart White is an associate at Houston trial firm AZA or Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C. She …
Abraham Y. (Avi) Skoff is Co-chair of Moses & Singer's Litigation practice and has over twenty-five years’ experience in practicing law, including involvement in a number of major, newsworthy cases. He served as Assistant U.S. Attorney and Deputy Chief of the Civil Division, U.S. Attorney's Office, Eastern District of New York, and has litigated cases in courts throughout the country. Avi focuses his practice on complex civil litigation. He is an experienced trial lawyer and has significant experience in an unusually broad range of practice areas, including unfair competition, restrictive covenants and trade secrets. Avi has represented parties before the Judicial Panel on Multi- District Litigation and coordinated the defense of nationwide class action claims. He recently obtained key injunctive relief under the newly enacted Defense of Trade Secrets Acts. He is admitted in New York and New Jersey and has a national practice. Avi is rated AV Preeminent™ by Martindale-Hubbell and has been listed in New York Super Lawyers® since 2006.
Abraham Y. (Avi) Skoff is Co-chair of Moses & Singer's Litigation practice and has over twenty-five years’ experience in practicing …
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Method of Presentation:
General knowledge of labor and employment laws
NY Category of CLE Credit:
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About Richards, Layton & Finger, P.A.
Richards, Layton & Finger, Delaware’s largest law firm, has been committed from its founding to helping clients navigate complex issues and the intricacies of Delaware law. The firm has participated in many of the groundbreaking cases defining Delaware corporate law, and its lawyers have long played crucial roles in drafting and amending the state’s influential business statutes. Clients, including local businesses, global law firms, and Fortune 500 companies, count on the firm’s exceptional service and deep, practical understanding of Delaware law.
About Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C.
AZA, or Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C., is first and foremost a trial firm. Our nearly 50 lawyers have been in a trial roughly every month since 2016, despite courthouse closures because of Hurricane Harvey. We tried 15 cases in 2018. Our courtroom experience, our knowledge of what will matter to a jury or judge, and our command of trial technology permit us to do this efficiently. Being trial-ready also strongly influences settlement. Opponents recognize that with more than 225 trials under our belts, we have confidence in our position and our ability to advocate that position. In fact, AZA is often hired on the eve of trial, once it has become clear that the case must be tried.
About Moses & Singer LLP
Moses & Singer has a reputation for cutting edge, hands-on representation, integrity and the highest quality legal work, established over the many years since the firm was founded by Henry Moses and Henry Singer in 1919, to serve both Public National Bank and their private clients. The firm has played a central role in landmark cases and major transactions ever since, and is known for skill, creativity and aggressiveness, in representing banks, institutions and corporations, closely held businesses, start-ups, entrepreneurs, individuals and families, in a wide range of industries, transactions, disputes and counseling. Moses & Singer is known for providing the close attention and direct involvement of its key partners to client matters, which can result in cost effective, result-oriented representation, and aggressive, highly effective, focused problem solving and legal representation.