Part 23 of “The Restricting Covenant” Series: Legislative Limitations

This latest installment of The Restricting Covenant series highlights the significant changes coming to Washington State regarding non-compete agreements (it’s a game changer), as well as similar legislation (passed and proposed) in other states including Massachusetts and New Jersey. Employers surely will feel the ripple effect of Washington’s new sweeping law on non-competes. Is this a sign of things to come for significant non-compete reform in other states coast to coast (“Winter is Coming,” anyone?).

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Part 22 of “The Restricting Covenant” Series: No-Poaching Agreements

Not too many topics related to restrictive covenants gain buzzworthy status. However, when state and federal governmental agencies and class action attorneys start filing lawsuits nationwide, and Fortune 500 companies in various industries start settling and agreeing to change the way they do business, well, that usually generates some buzz and attention. It seems that not a week goes by lately without a new headline discussing the latest hot-bottom issue in the world of restrictive covenants – “no-poaching” agreements.

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Part 21 of “The Restricting Covenant” Series: The Economic Loss Doctrine and Non-Competes

In this article I discuss a lesser known judicially created doctrine that is equal parts confusing in application and sweeping in scope for litigants involved in restrictive covenant disputes – the Economic Loss Doctrine (ELD).

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Part 20 of “The Restricting Covenant” Series: Radius, The Raven, and Restrictive Covenants

You’re probably reading the title of this article and saying, “He’s gone bonkers! What does ‘radius’ and Edgar Allan Poe’s poem ‘The Raven’ have to do with restrictive covenants?”

This article is for all you inner mathematicians and geometry aficionados. More to the point, it is for those who draft, interpret and litigate non-compete agreements that contain geographic restrictions. When I heard that Google Earth had launched a new tool to measure distance and area, it sparked memories yonder of an esoteric, but very important, issue that is litigated occasionally in non-compete cases, and now the subject of the twentieth article of this Series.

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Part 19 of “The Restricting Covenant” Series: Clickwrap Covenants Not to Compete

If you are one of the billions of smartphone users worldwide, I bet you recently downloaded a mobile app and clicked “I agree” to the app’s terms of use or service. Did you actually read all (any) of the terms before you agreed? Courts typically call these contracts (yes, they can be enforceable contracts) “clickwrap agreements.” A clickwrap agreement is formed when a user affirmatively clicks a button or checks a box that explicitly indicates that the user has accepted or agreed to the terms of an agreement upon viewing its terms.

It is becoming commonplace for employers to use web-based clickwrap agreements with their employees either as part of onboarding (e.g., employment agreements) or during the course of employment (e.g., stock award agreements). These clickwrap agreements can include important post-employment restrictive covenants. Are these covenants enforceable?

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Part 18 of “The Restricting Covenant” Series: Court Reporters and Covenants Not to Compete

Most litigators will attest that court reporters and transcribers are essential to the litigation process because they provide a verbatim record of depositions and other court proceedings. Court reporters are extremely patient, courteous, and obviously great listeners. Often times, we lawyers tend to have our “favorites” – you know, the court reporters who you work with repeatedly because they pick up your preferences and other linguistic quirks. I typically think of court reporters as “independent contractors” who would not be bound by traditional non-competition agreements. But when I learned about cases in some jurisdictions enforcing restrictive covenants involving court reporters, I had to write about a few of them in this eighteenth article of the Series.

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