Restrictive Covenants and Trade Secrets

When trusted employees walk out the door to join a competitor or start a new business, what are they taking with them?  Technical data?  Trade secrets?  Valuable customer information? With the proper precautions in place, companies can move quickly and decisively to enforce their restrictive covenants and prevent the loss of valuable intellectual property as well as protect valuable customer relationships from unwarranted interference.  Yet without those precautions in place, few options exist as once-trusted employees can put companies on the defensive.

Whether defending against or prosecuting trade-secret and non-competition claims, Freeborn’s Non-Competition, Trade Secret and Restrictive Covenants Practice Group is experienced in the applicable statutory and common law that governs restrictive-covenant disputes.  We pay particular attention to new developments in the field, often contributing to the growing body of law through briefs and arguments that lead to published opinions.

Our services include:

  • Counseling employers regarding effective employment policies designed to inform employees of their duties and obligations, including maintaining the confidentiality of valuable company information. 
  • Creation of enforceable non-competition, non-solicitation, and confidentiality agreements for key employees and executives.
  • Evaluating the enforceability of existing agreements on behalf of companies and executives.
  • Pre-litigation investigation and counseling related to possible trade-secret or breach-of-fiduciary-duty claims, including use of computer forensics and other methods to obtain critical evidence.
  • Prosecuting and defending claims for injunctive relief and damages, including on an emergency basis, where a claim or defense must be prepared in a matter of days, if not hours. 

Representing Current Employers

We help companies develop and enforce employment agreements, policies and strategies to provide the maximum possible protection for valuable corporate information and customer relationships.  We have successfully counseled and litigated on behalf of a wide variety of clients with assets to protect -- ranging from large, publicly traded companies with multiple offices around the country to small locally based businesses.  Our experience includes handling employment and trade-secret cases spanning a range of industries, including software and wireless technology, chemicals, insurance and financial brokerage, orthopedic sales, title insurance, food products, and printing.  In addition, we have handled matters in jurisdictions across the country – experience that is critical because employment laws vary considerably from state to state.

We advocate and assist with pro-active strategy and planning to prevent the catastrophic damage that can result from employee defections.  We help clients draft and implement effective and enforceable non-competition, non-solicitation and confidentiality agreements. These agreements are essential in the competitive marketplace for human capital, where employee mobility is constant and electronic access makes proprietary information more vulnerable than ever to theft or misuse.  

But planning alone is not enough.  Companies must be prepared to act quickly to enforce employment agreements and protect proprietary trade secrets and confidential business information before lasting damage is done.  As experienced executives know, the first few days of a fledgling competitive effort can be the most damaging to a former employer and the our experience provides efficiencies that allow swift action and response.

Representing Departing Employees and New Employers

New hires subject to restrictive covenants with a former employer often bring the risk of potential liability, not only for themselves but for new employers as well.  Freeborn attorneys counsel departing employees and their new employers in response to former employers’ threats of litigation over restrictive covenants.  Just as surely as restrictive covenants can be used reasonably and fairly to protect a company’s valuable assets and customer relationships, they can be as easily misused to stifle fair competition, particularly when they are oppressive, overbroad, and foisted upon the employee under threat of losing a job. 

Our experience on both sides of these disputes helps us effectively evaluate the risks of restrictive-covenant litigation against former employers.  We assist clients with reviewing potential new hires’ employment agreements with their former employers and also defend them against unanticipated claims.