Mark Terman, Sujata Wiese and Shamar Toms-Anthony updated their article authored with Practical Law titled “Confidentiality and Nondisclosure Agreements (CA).” In their article, Mark, Sujata and Shamar discuss how companies can protect their information, including the use of confidentiality agreements and related practices, under California law.
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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).
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.
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?
Continue reading “Part 19 of “The Restricting Covenant” Series: Clickwrap 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.
At least once a month I receive a postcard in the mail from a local, regional or national realtor about homes sold recently in my neighborhood. These glossy postcards typically feature a specific real estate agent with his or her photo, name and telephone number. What these postcards don’t tell you, however, is whether the agent is subject to a non-compete agreement. Because I’m always looking for interesting topics to discuss related to restrictive covenants, this seventeenth article in The Restricting Covenant series explores realtors, real estate agents and non-compete disputes.