Seeking Recovery for Breach of Restrictive Covenants Under Increased Government Scrutiny
Threshold Considerations, Causes of Action, Damages, Injunctive Relief
Recording of a 90-minute CLE video webinar with Q&A
This CLE course will guide employment counsel in whether and how to seek recovery after a current or former employee breaches a restrictive covenant--whether that is a covenant not to compete with the employer, a non-solicitation of the employer's employees or customers, or a nondisclosure agreement regarding the employer's trade secrets or other confidential information--especially given the increased government scrutiny of the use of restrictive covenants by employers. The panel will also discuss circumstances in which the breach of a restrictive covenant implicates the fiduciary duty of loyalty and potential resulting harms from which the employer can recover.
Outline
- Overview of increased federal and government scrutiny of restrictive covenants in employment
- FTC
- NLRB
- State laws
- Threshold considerations for determining whether and how to take a restrictive covenant enforcement action
- Potential causes of action following the breach of a restrictive covenant
- Breach of covenant
- Breach of the fiduciary duty of loyalty
- Pursing injunctive relief
- Pursuing damages from the employee and new employer
- Lost profits damages
- Clawback compensation
- Restitution
- Goodwill impairment damages
- Liquidated damages
- Royalties
- Pursuing other forms of relief
- Recovery under the Defend Trade Secrets Act of 2016
- Tips on drafting enforceable restrictive covenants
Benefits
The panel will review these and other high priority issues:
- What federal and state law considerations should counsel be aware of when determining whether and how to pursue a restrictive covenant enforcement action?
- What types of damages may employers pursue when a current or former employee breaches a restrictive covenant?
- How does the Defend Trade Secrets Act of 2016 address damages for disclosing trade secrets?
- What are the methodologies to establish damages? How are they different from jurisdiction to jurisdiction?
- When can and should an employer go after a former employee's new employer for damages for breach of a restrictive covenant?
- What remedies and damages are available when the wrongdoing occurs outside the U.S.?
- How can employers draft enforceable covenants to maximize potential damages and equitable remedies given increased federal and state government scrutiny?
Faculty
Justin Beyer
Partner
Seyfarth Shaw
With a nationwide practice in trade secret and noncompete issues, Mr. Beyer helps clients to develop state-specific,... | Read More
With a nationwide practice in trade secret and noncompete issues, Mr. Beyer helps clients to develop state-specific, national, or worldwide trade secret and noncompete programs and onboarding and offboarding procedures,to ensure that their information remains secret and their business thrives. With more than 15 years of litigation experience, including significant trial experience, Mr. Beyer guides clients through the litigation process--whether as a plaintiff seeking to protect or reacquire misappropriated information, or as a defendant looking to hire a competitor's former employee--to likewise ensure trade secrets are protected and that businesses compete fairly. He has also worked with employers across a diverse spectrum of industries to develop or update their trade secret and noncompete programs.
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Daniel R. Saeedi
Partner
Taft Stettinius & Hollister
Mr. Saeedi’s principal practice areas are labor and employment law and corporate litigation. He has represented... | Read More
Mr. Saeedi’s principal practice areas are labor and employment law and corporate litigation. He has represented governmental and private clients in workplace discrimination litigation, class action defense, policy formulation and litigation regarding employment agreements. In his corporate practice, Mr. Saeedi has represented directors, officers and shareholders in a wide range of corporate and securities-related disputes. He is a frequent speaker and writer on corporate and employment matters.
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