In this eleventh article in the continuing series “The Restricting Covenant,” I discuss the “Restatements of the Law,” which, while not law per se, are important secondary legal sources that should not be overlooked when tackling thorny restrictive covenant disputes.
Relevance of the Restatements in Non-Compete Cases
In many states, decisions regarding the validity and enforceability of non-compete agreements are made pursuant to the “common law.” The common law is a body of law developed over a course of time from judicial decisions and rulings. The Restatements of the Law attempt to “restate,” organize, and explain the common law of the United States. They are organized into 15 different areas of law, including Agency, Conflict of Laws, Contracts, Judgments, Property, Restitution, Torts and Trusts. They are published by the American Law Institute (ALI) and written by professors, judges and private attorneys. Each “statement of law” has a specific section, and each section is accompanied by “Comments,” “Illustrations” (with hypos), and “Reporter’s Notes” (with case citations).
Continue reading “Part XI of “The Restricting Covenant” Series: Restatements of the Law and Restrictive Covenant Disputes”
In this tenth article in the continuing series “The Restricting Covenant,” I discuss non-competition issues that arise in the orthopedic medical device industry.
I would venture to say that, in the past 20 years, the orthopedic medical device and equipment industry is at the top of the charts for high-stakes litigation and precedent-setting rulings with respect to non-competition and non-solicitation disputes. Many orthopedic medical device and equipment companies have sued each other and their former employees, sales representatives, independent contractors, vendors, consultants or distributors for violating the terms of their restrictive covenants. These companies have sought injunctive relief and money damages.
Continue reading “Part X of “The Restricting Covenant” Series: Orthopedic Medical Devices and Non-Competes”
As allegations of sexual misconduct continue to surface almost daily against high-profile individuals, some legislators have responded by proposing legislation curtailing the use of non-disclosure (NDA) and confidentiality agreements. Critics have opined that such agreements (particularly as used by Harvey Weinstein) have enabled victimizers to conceal and continue long-running patterns of sexual misconduct, in that they prevented discussion of the accusations among both the victims and others, such as co-workers, who knew of the victimization.
In October, California State Senator Connie Leyva announced that she would introduce “legislation to ban secret settlements (confidentiality provisions in settlement agreements) in sexual assault, sexual harassment and sex discrimination cases” when the California Senate reconvenes in early January 2018. On November 15, Pennsylvania State Senator Judy Schwank stated in a press conference that she would introduce a bill that prospectively bans contractual provisions “prohibit[ing] a person from revealing the identity of a person who committed sexual misconduct” and voids any such provisions entered into under duress or incapacity, or by a minor, prior to the law’s enactment.
Continue reading “Amid Continuing Sexual Misconduct Scandals, Legislators Target NDAs and Confidentiality Agreements”
This year’s Halloween festivities, my recent binge watching of “Stranger Things 2,” and Harry Potter’s invisibility cloak, inspired the topic of this ninth article in “The Restricting Covenant” Series, which discusses tolling provisions in non-compete agreements and restrictive covenant cases. Specifically, can a tolling provision provide judicial relief to an employer if its former employee hid under the cover of darkness and concealed violations during the restricted period? What relief do employers have in this situation?
Continue reading “Part IX of “The Restricting Covenant” Series: Tolling and Technicians”
Mark Terman and Sujata Wiese authored a practice note for Practical Law titled “Confidentiality and Nondisclosure Agreements (CA).” In their note, Mark and Sujata discuss how companies can protect their information, including the use of confidentiality agreements, under California law.
Mark and Sujata address considerations involved in safeguarding a company’s confidential information, and substantive provisions and issues common to many commercial confidentiality agreements. They state that “having effective confidentiality agreements in place with other parties is necessary but not sufficient to protect an organization’s confidential information and data. Comprehensive protection requires the participation and coordination of management and staff at all levels across all functions, from finance and administration to marketing and sales. It often falls to the legal department, working closely with the information technology (IT) function and with the support of senior executives, to lead the company-wide information management and protection program.”
Topics addressed in the note include: company-wide information and data security policies; compliance with contractual obligations governing others’ confidential information; trade secrets; privacy and data security laws and regulations; and form, structure and key provisions of confidentiality agreements.
Read “Confidentiality and Nondisclosure Agreements (CA).”
This eighth article in “The Restricting Covenant” Series discusses some recent trends in the evolving area of restrictive covenant law, non-solicitation agreements, and Internet social media networking, including sales representatives’ use of LinkedIn to contact and communicate with customers and other business relationships.
A decade or so ago, social media networking platforms on the Internet were new to me. I had just heard of this thing called “LinkedIn” as a new way to connect with my former classmates and other acquaintances. It was touted as an easy, cost-free way to communicate with them about my professional accomplishments and career developments. In many ways, your LinkedIn profile is your virtual resume to the world. Therefore, like millions of others, I created a LinkedIn profile, sent and received connection requests, and made posts.
Continue reading “Part VIII of “The Restricting Covenant” Series: (Non) Solicitation, Social Media Networking, and Sales Representatives”