Non-compete agreements clearly are the subject of scrutiny by the New York Attorney General’s office, which just issued guidance called “Non-Compete Agreements In New York State – Frequently Asked Questions” (“Guidance”). The Guidance, in the form of FAQs, generally describes New York common law regarding enforceability of non-competition provisions in employment contracts or standalone restrictive covenant agreements. It notes that a court has the ability to invalidate or modify an overly-broad non-compete. It also provides guidance to employees regarding whether to sign a non-compete, which it states is not a legal requirement but only a potential mandate of an employer. The Guidance includes a list of considerations for employees before they sign a non-compete. Further, it provides contact information within the New York Attorney General’s Office for individuals to obtain assistance to address unreasonable non-competes. Finally, the Guidance describes Attorney General-proposed legislation to prohibit non-competes for workers earning below $75,000 per year. The Attorney General issued the Guidance after a recent matter it handled in which it obtained prospective compliance by an employer regarding its use of non-competes. The matter is the subject of an Attorney General press release. It is imperative that employers who use restrictive covenants in employment...
Last week, in Socko v. Mid-Atlantic Systems of CPA, Inc., the Supreme Court of Pennsylvania decided that restrictive covenants not to compete are unenforceable if made during a worker’s term of employment unless supported by “new and valuable consideration, beyond mere continued employment.” That is so, according to the Court, even if the agreement contains language that would otherwise obviate the requirement of consideration pursuant to the Uniform Written Obligations Act (“UWOA”). That statute provides that “[a] written release or promise . . . shall not be invalid or unenforceable for lack of consideration, if the writing also contains an additional express statement, in any form of language, that the signer intends to be legally bound.”
The federal government continues to take aim at those who violate trade secrets rights. On December 28, 2012, the Theft of Trade Secrets Clarification Act of 2012 (S. 3642) became law, expanding the definition of trade secrets under the Economic Espionage Act (EEA). In addition, as previously reported in a Gibbons IP Law Alert blog, the President is expected to sign legislation recently passed by Congress that triples the damages for a violation of trade secrets protection laws and provides technical changes to patent applications and protections. Also worthy of note is an 82-page report from the U.S. Department of Justice issued last month detailing federal enforcement efforts concerning trade secrets theft.
New Jersey District Court Enjoins Former Financial Services Employee from Taking Customer Information
In a case to be noted by financial services entities that are signatories to the “Protocol for Broker Recruiting,” a New Jersey District Court issued a preliminary injunction to a financial services employer, Ameriprise Financial Services, Inc. (“plaintiff”) to prevent a former financial advisor employee from retaining certain client information that he downloaded from his computer prior to his departure from plaintiff. Plaintiff was a party to the “Protocol for Broker Recruiting” that prescribes a method for a departing employee to retain certain client information when leaving for another financial services institution. To grant the injunction, the Court found that plaintiff showed it likely would succeed on its underlying breach of contract claim, it would suffer immediate irreparable harm absent the injunction, defendant would not suffer harm if enjoined, and the injunction favors the public’s interest. The Court essentially decided that if the Protocol is not followed in the first instance, a departing financial representative’s subsequent compliance is tainted and insufficient to withstand subsequent legal challenge.