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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

    Intermediate

  • work Practice Area

    Employment and Workers Comp

Date & Time
  • event Date

    Tuesday, November 21, 2023

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    90 minutes

Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.

$297.00
CLE
ALL

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.

Faculty

Daniel R. Saeedi
Miscellaneous

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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Justin Beyer
Partner
Seyfarth Shaw LLP

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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Description

When a current or former employee breaches restrictive covenants in an employment agreement, such as a noncompetition, non-solicitation, or nondisclosure agreement, the employer may often, depending on the jurisdiction, pursue injunctive relief, damages, and other forms of relief against the employee.

Threshold questions for employers before pursuing any enforcement action are whether and how to seek recovery for restrictive covenant breaches given increased federal and state scrutiny, jurisdictional considerations, and the often narrow parameters under which such actions may be pursued. Additionally, quantifying the harms and finding the right kind of recovery for the breach can be challenging.

Listen as our authoritative panel discusses strategies and best practices for counsel on whether and how to pursue damages against a current or former employee and their new employer following a breach of a covenant not to compete, solicit, or disclose confidential information taking into account increased government scrutiny. Our panel will also offer drafting strategies to give companies the most robust platform for enforcing their contractual and fiduciary rights.

Outline

  1. Overview of increased federal and government scrutiny of restrictive covenants in employment
    1. FTC
    2. NLRB
    3. State laws
  2. Threshold considerations for determining whether and how to take a restrictive covenant enforcement action
  3. Potential causes of action following the breach of a restrictive covenant
    1. Breach of covenant
    2. Breach of the fiduciary duty of loyalty
  4. Pursing injunctive relief
  5. Pursuing damages from the employee and new employer
    1. Lost profits damages
    2. Clawback compensation
    3. Restitution
    4. Goodwill impairment damages
    5. Liquidated damages
    6. Royalties
  6. Pursuing other forms of relief
  7. Recovery under the Defend Trade Secrets Act of 2016
  8. 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?