ARTICLE
28 August 2018

Webinar Recap! 2018 Massachusetts Non-Compete And Trade Secrets Reform

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Seyfarth Shaw LLP

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With more than 900 lawyers across 18 offices, Seyfarth Shaw LLP provides advisory, litigation, and transactional legal services to clients worldwide. Our high-caliber legal representation and advanced delivery capabilities allow us to take on our clients’ unique challenges and opportunities-no matter the scale or complexity. Whether navigating complex litigation, negotiating transformational deals, or advising on cross-border projects, our attorneys achieve exceptional legal outcomes. Our drive for excellence leads us to seek out better ways to work with our clients and each other. We have been first-to-market on many legal service delivery innovations-and we continue to break new ground with our clients every day. This long history of excellence and innovation has created a culture with a sense of purpose and belonging for all. In turn, our culture drives our commitment to the growth of our clients, the diversity of our people, and the resilience of our workforce.
In Seyfarth's fifth installment in its 2018 Trade Secrets Webinar Series, Seyfarth attorneys Kate Perrelli, Erik Weibust, and Dawn Mertineit focused on Massachusetts non-compete and trade secrets reform.
United States Intellectual Property

In Seyfarth's fifth installment in its 2018 Trade Secrets Webinar Series, Seyfarth attorneys Kate Perrelli, Erik Weibust, and Dawn Mertineit focused on Massachusetts non-compete and trade secrets reform. At long last, Massachusetts Governor Charlie Baker signed a Non-Compete Reform Bill into law on August 10. The presenters focused on what businesses should understand about the impacts of the changes, what to expect next, and how to safeguard assets and maintain an advantage over competitors.

As a conclusion to this well-received webinar, we compiled a summary of takeaways:

  • Non-competes must be limited to one year, but can be extended to two if the employee breaches his or her fiduciary duty or steals company property.
  • Must be in writing and signed by both parties; at least 10 days' notice must be provided to employees/candidates; and the right to counsel must be explicit in the agreement.
  • Garden leave is not required.  "Other mutually agreed-upon consideration" is adequate.  But what that means, and whether the court will even assess the adequacy of consideration, is left to the courts to determine.
  • Continued employment is no longer sufficient consideration.  Something more, that is "fair and reasonable" must be provided.  Again, what that means is left to the courts to determine.
  • Choice of law and venue requirements are likely unenforceable in other states and in federal court.  Nevertheless, comply with the law in case an employee files a declaratory judgment action in Massachusetts.
  • Bottom line:  Be clear in your agreements.  All the law really does is establish what must, may, and may not be included in private agreements.

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.

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