United States: Protecting Your Companies Competitive Edge'

Last Updated: July 2 2018
Article by Benjamin I. Fink and Neal F. Weinrich

You might not think about non-competes, employee and customer non-solicits or trade secrets and confidential information very often. But we do. They are core to your business and help maintain your competitive edge. And we're proud to play a key role in shaping this area of the law through our practice and thought leadership.

All companies, regardless of size, have sensitive information and valuable customer and employee relationships. There are simple measures that every business owner and manager can take to protect these assets. For that reason, we've compiled this update to share with you practical steps you can take to prevent departing employees from competing unfairly or using confidential information or trade secrets.

We encourage you to take a few minutes to review this update. We're proud of this content and believe you will find it to be helpful. In fact, many days a year, you can find us on the road, leading and participating in industry and professional conferences addressing these important topics. This is what we do.

Protect Your Business: Trade Secrets & Confidential Information

In the trade secret world, the American Intellectual Property Law Association's Trade Secret Summit is a premier conference that Benjamin Fink and Neal Weinrich are fortunate to attend and help organize every year. The information shared and thought-provoking conversations with industry peers make this conference an annual highlight for Ben and Neal. A few conference insights and take-aways on this subject include:

  1. Implement appropriate measures to protect company trade secrets. There are lots of steps companies can take to protect information that is valuable to their business. The following motto is a simple way to help companies think about how to protect their trade secrets: "State it, Stamp it, Secure it, Shred it, Sign it, Supplement it, and Substantiate it." A knowledgeable legal advisor will counsel his or her clients to take these proactive measures.
  2. Create a formal trade secret protection plan. This can be more complicated than it seems. For that reason, you should involve in-house counsel, business decision-makers and outside counsel in the process.
  3. Lastly, carefully consider where you store your company's confidential information and trade secrets. A recent BFV blog post, " Be Wary of Storing your Trade Secrets in the Cloud," highlights an important consideration relating to where you store proprietary information.

WATCH OUR VIDEO, "What is a Trade Secret?"

Yes, Even Your Business has Confidential Information

Nearly all businesses have valuable information that can be considered confidential. Think about your ordinary course of business. A typical day likely involves sharing and receiving confidential information with employees, customers and suppliers and during other commercial engagements where confidential information is exchanged.

As a business owner or manager, steps should be taken to protect confidential information within your organization. It should be a business priority. Below are some valuable tips, as excerpted from a series of articles authored by Ben and Neal in "Practical Law Commercial Transactions," Georgia series (Thomson Reuters, 2018):

  • Limit access to confidential information and trade secrets to employees with a need-to-know.
  • Implement computer, e-mail and internet policies that govern employees' access and use of company systems.
  • Train employees to prevent the inadvertent disclosure of sensitive information.
  • Implement robust physical and electronic security measures.
  • Have contingency plans and procedures to address when any leaks are detected.

CLICK HERE for additional tips and sample contract provisions ("Practical Law Commercial Transactions," Georgia series).

Tips when Hiring from a Competitor

Many times, the most qualified and experienced candidates for positions you are seeking to fill in your business are those who are currently working for your competitors. If you are not careful, the hiring of an employee from a competitor can be fraught with peril.

While much of the decision as to whether to hire someone from a competitor may be driven by the types of restrictive covenants the person has signed (non-compete, customer non-solicit, employee non-recruitment and non-disclosure/confidentiality), there are certain steps you can take to minimize the risk of any litigation or liability regardless of whether of any restrictive covenants are involved. Here are a few of those steps:

  1. During the interview process, be sure to advise candidates that you expect them to comply with their legal and contractual obligations before and after the end of their employment with their current employer. This should include ensuring that employees comply with any fiduciary duty or duty of loyalty they may have to their current employer. The parameters and scope of this duty are state specific, so you need to be sure to know the law of the state or states involved.
  2. If the candidate is customer facing in his or her current position, you should be sure that you and the candidate are on the same page as it relates to notifying customers of the transition and/or soliciting clients once the employee has joined your company. How this is handled will be dictated by the nature of the restrictive covenants, if any, the candidate has signed and the applicable state law regarding the employee's fiduciary duty and duty of loyalty.
  3. During the interview process, candidates should be reminded of their obligation not to take any information that constitutes confidential information or trade secrets of their current employer.


The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions