Noncompetition Agreements and Trade Secrets

One of the challenges facing companies today is how to protect competitive business interests and preserve confidential business information. The challenge is particularly acute in knowledge-driven or relationship-driven industries where employee turnover is high.

Robinson+Cole lawyers are frequently called upon to advise businesses in the drafting and negotiating of noncompetition agreements and other restrictive covenants. We also help companies protect their valuable intellectual property and trade secrets through proactive counseling and training. Some of the services we provide include the following:

  • helping to identify an organization's competitive business interests and tailoring a program for protection
  • determining what is, and what is not, a "trade secret" and identifying reasonable measures to ensure protection
  • helping companies decide whether restrictive covenants are right for the business and drafting appropriate agreements as needed (e.g., noncompete agreements, nonsolicitation agreements, confidentiality agreements, etc.)
  • dealing with implementation issues and other practical concerns (e.g., how to implement a new program for existing employees)
  • advising companies concerning the hiring of candidates who have restrictive covenants with their former employers

If litigation becomes necessary, our experienced lawyers are well prepared to move quickly to protect our clients' interests. Often, we must obtain immediate injunctive relief or defend against such an effort by an opposing party. Our litigators are recognized in the field, and we are proud of our record of success.

    • Experience
      • Represented three defendants, including two former sales-related employees and their new employer. Plaintiff’s motion for preliminary injunction was granted in a very limited part and denied in part. Essentially, the former employees were enjoined from soliciting any prospective client of the plaintiff as to which the former employee helped to prepare a response to a Response for Proposal. After extensive discovery, and in response to our threat to file a motion for summary judgment, the case settled.
      • Successfully represented a territory manager on behalf of his new employer, a major industrial chemical developer and manufacturer. Our client’s former employer — who had summarily discharged him after less than a year on the job — was aggressively pursuing a noncompete enforcement action in Massachusetts state court. The case presented numerous complexities, including the application of another jurisdiction’s law, various potential counterclaims, and the operation of a mandatory arbitration agreement requiring the parties to arbitrate disputes in another state. We ultimately defeated the former employer’s motion for a preliminary injunction via utilization of the single-justice appeal process of the Massachusetts Appeals Court. Based on our successful appeal, we were able to engineer a very favorable resolution of the matter for our client.
      • Represented a national limousine company and several of its individual employees in the defense of a noncompetition enforcement action in New York state court. We maintained a vigorous defense against the former employer pursuing the matter – a major competitor of our client — including the prosecution of various counterclaims. The case generated significant media attention favorable to our client, being the subject of articles in both The Boston Globe and Boston Magazine.
      • Successfully prosecuted a noncompetition enforcement action on behalf of an online mortgage broker against a former loan officer who left our client’s employer to join a competitor. We aggressively pursued expedited discovery, which enabled us to engineer an early favorable resolution of the matter.
      • Represented plaintiff, a uniform and linen rental company. Sued to enforce a noncompete against a former employee, a driver/sales representative. Obtained a preliminary order enjoining former employee from working for a competitor in two states and all but two counties in a third state.
      • Represented defendant, a subcontractor for a coin manufacturer. Subcontract between plaintiff and client contained a noncompetition provision that precluded plaintiff from soliciting clients of the plaintiff. Court denied plaintiff’s motion for a preliminary injunction. The case settled, and the parties effectively just walked away.
      • Represented defendant, a publishing company and three new employees. Plaintiff did not file a motion for a preliminary injunction. On behalf of two former employees, we answered the complaint and asserted counterclaims for tortious interference with contractual relations. We moved to dismiss claims against the third employee and the employer. While awaiting a hearing on that motion, plaintiff agreed to dismissal of the suit.
      • Represented defendant company and two new employees; sued for breach on noncompetition agreement and misappropriation of trade secrets. After exchange of discovery, case settled.
      • Represented defendants, employee and new employer. Plaintiff did not move for preliminary injunction. After extensive discovery and in response to our threat to file summary judgment motion, plaintiff agreed to dismiss the case.
      • Represented a defendant former employee who was sued for breaching a noncompetition agreement. Even before we answered, we informed plaintiff’s counsel that the noncompete at issue had been superseded by a subsequent employment agreement that did not contain a noncompetition agreement and by significant changes in employment. When plaintiff did not voluntarily dismiss the case, we answered and served summary judgment, which we won. We then won our motion for reimbursement of attorneys' fees under M.G.L. c. 231, § 6F. The c. 231, § 6F award was upheld by a single justice.
      • Represent a former employee being sued for breach of a noncompetition agreement. Plaintiff did not file motion for preliminary injunction. After plaintiff’s refused to identify trade secrets with specificity, we moved to compel discovery. Waiting for court to schedule hearing.
      • Served as counsel to the defendant in a highly publicized and frequently cited noncompetition case brought by a company that operates an information technology Web site. Our attorneys shielded our client from the plaintiff's repeated motions to prevent the employee from working as director of content for our client. The case raised novel issues of fact and law, including the applicability of the so-called "inevitable disclosure doctrine" and the interpretation of noncompetition and trade secret restrictions in a high-tech setting. The firm was victorious for our client in the lower court action and on appeal to the Second Circuit Court of Appeals.
      • Provide regular advice and representation to a national information technology consulting and research company on various noncompetition and trade secret matters, including evaluating risks associated with hiring employees who are subject to non-compete agreements with their former employer, defense of claims and threatening and pursuing legal action against employees who violate their noncompete agreement and/or misappropriate the company's trade secrets and confidential information.
      • Investigated and prosecuted former president, vice president, and plant manager in claims alleging misappropriation of trade secrets, theft, and breach of fiduciary duties for establishing and running a competitive manufacturing business using our client's employees.
      • Investigated and prosecuted physician in claims alleging breach of noncompetition agreement and misappropriation of trade secrets for medical group, resulting in settlement agreement during trial of preliminary injunction.
      • Defended HMO and its managers and assisted defense counsel for current employee who was defending that employee from claims for breach of a noncompete, nonsolicitation, and nondisclosure agreement by his former employer. With our assistance, our current employee defeated his former employer's application for a temporary injunction.
      • Investigated and prosecuted former mortgage broker in claims alleging breach of a noncompetition agreement, breach of a duty of loyalty, tortious interference, misappropriation of trade secrets, unfair trade practices, and conversion. Resulted in stipulated judgment enforcing the agreement.
      • Investigated and prosecuted former home care managers who left to form a competing business in claims alleging breach of a noncompete agreement, breach of a duty of loyalty, tortious interference, misappropriation of trade secrets, unfair trade practices, and conversion. Resulted in stipulated judgment enforcing the agreement.
      • Investigated and prosecuted former building supply salesperson in claims alleging breach of a noncompete agreement, tortious interference, and unfair trade practices. Converted to case seeking damages rather than injunctive relief and fashioned favorable monetary settlement.
      • Investigated and prosecuted former insurance salesperson in claims alleging breach of a noncompete agreement, breach of a duty of loyalty, tortious interference, misappropriation of trade secrets, and unfair trade practices. Resulted in stipulated judgment enforcing the agreement.
      • Advised and drafted variety of agreements for noncompete, nonsolicitation, confidentiality, etc. for clients in the health care, insurance, limousine, banking, food manufacturing, retail, and other industries.
      • Negotiated a successful nonmonetary resolution to claims against a Fortune 100 company that alleged raiding and hiring employees subject to noncompetition agreements.

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    • News
      • October 14, 2016

        Robinson+Cole Lawyers Write Article for Lexis Practice Advisor

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    • Publications + Presentations
    • "Prelitigation Steps for Trade Secret and Noncompete Cases," published in Lexis Practice Advisor, co-authored by Matthew T. Miklave, Ian T. Clarke-Fisher and Sandra Marin Lautier (9/27/2016)
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      • View article

      "Can You Keep a Secret? Why Now Is the Time for a Trade Secrets Audit," published in Connections: Cambridge Chamber of Commerce Newsletter (2/2010)

      "Massachusetts Trade Secret Law: 2007," published in Massachusetts Continuing Legal Education (4/11/2007)

      "Is an Employer Liable When Its Sales Employee Breaches a Noncompetition or Nonsolicitation Agreement with a Former Employer?" published in Massachusetts Continuing Legal Education (2007)

      "Enforcing Noncompetition Agreements Against Out-of-State Employees," published in Connections: Cambridge Chamber of Commerce Newsletter (12/2006)
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      "Will New England Courts Adopt the 'Inevitable Disclosure' Doctrine?" published in New England In-House (4/2004)

      "Noncompetition Agreements and Other Restrictive Covenants: Are They Right for Your Business?" published in Mass High Tech Magazine (2/2/2004)

      "Criminalization of Trade Secret Theft: On the Second Anniversary of the Economic Espionage Act," published in Currents: International Trade Law Journal, authored by Joseph F. Savage (Summer 1999)

      "The Next War? Federal Prosecutors Focus on Intellectual Property Crimes," published in Boston Bar Journal, authored by Joseph F. Savage (Nov/Dec 1997)

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