In the current highly competitive, knowledge-driven global marketplace, a company’s ability to protect its intellectual property, human capital and important client relationships has become even more critical to both its success and survival. The members of Proskauer’s Non-Compete & Trade Secrets Group (NCTS Group) are among the best at handling these complex matters involving once-independent disciplines—employment, trade secrets, executive compensation, IP—that are now intertwined, and which once required only knowledge of local law but now require national and international breadth.
The NCTS Group is an interdisciplinary, global practice with lawyers located in our offices across the United States (New York, New Jersey, California, Florida, Massachusetts, Illinois and Louisiana), Europe (London and Paris), Asia (Hong Kong) and South America (São Paulo). Our geographic reach, however, is far beyond our footprint. In the U.S., for example, our lawyers have provided counsel and litigated cases in virtually every state. Most recently, these have included cases and disputes in New Jersey, New York, Connecticut, Pennsylvania, Ohio, Virginia, Colorado, Massachusetts, California, Utah, Illinois, Texas, Maryland, Florida, Georgia, Washington, Rhode Island, New Hampshire, Mississippi and North Carolina. We have also handled matters with international implications, such as those involving the interaction of laws in the U.S. with those in countries in South America, Europe and Asia. Globally, we have leading practitioners in our London, Paris and Hong Kong offices. And those lawyers likewise have provided advice and counsel across all of Europe and into Asia.
We assist clients in both litigated matters (in court or in various ADR settings) and non-litigated matters. On the non-litigation front, we provide advice and counsel concerning the many pressure points associated with hiring and firing employees who possess confidential information or otherwise have restrictive covenants. We also draft confidentiality, non-compete, non-solicit, pre-invention assignment, and equity-based compensation arrangements and agreements, along with policy manuals on information ownership and protection.
As to litigation, we approach (and oppose) applications for injunctive relief. Indeed, as these cases usually “explode” from the outset, they require lawyers who are familiar with the pressure points of such litigation and those who know how to capitalize on those pressure points. Our NCTS litigators have that extensive experience and deliver results. Indeed, many of the litigators in our practice devote 60 percent or more of their practice to NCTS-related cases and disputes.
Furthermore, our lawyers are accomplished authors and regular speakers in the field. Three of our co-heads, John Barry, Steven Kayman and Michael Album, recently updated their extensive chapter, “Non-Competes and Related Issues," in the latest edition of Executive Compensation, a leading treatise co-edited by Michael Sirkin, a Partner at Proskauer who is a recognized leader in the area. Our group also regularly publishes articles in a range of legal and professional publications and conducts client seminars. Most recently, members of the NCTS Group presented on the Topic of “Non-Competes 2.0—High Level Issues in the Protection of Trade Secrets and Confidential Information.”
We have also dedicated considerable time and resources to knowledge management. Over the years we have developed and maintained an “e-room” that contains, among other things, templates for litigation in all jurisdictions, research organized by topic and jurisdiction and databases that track litigation from around the globe. This e-room allows us to access data, draft papers and respond to client matters in a timely and cost-efficient manner.
Areas of Focus
Non-Compete/Trade Secret Litigation
Pre-Invention Assignment Agreements
Jurisdictional Disputes (National and International)
“Golden Handcuff” Compensation/Equity/Retention Arrangements
Sientra, Inc. in defending 15 recently hired employees in 13 lawsuits simultaneously filed by the employees’ former employer in an attempt to enforce non-compete, non-solicit, and confidentiality agreements and effectively stop the employees from working for Sientra. These lawsuits, filed on the same day in Colorado, Illinois, Indiana, Georgia, Massachusetts, Minnesota, New Jersey, Oklahoma, Oregon, and Texas, also included seven emergency motions for temporary and preliminary injunctive relief which, if successful, would have severely impacted Sientra’s nascent ability to gain traction in the market space. In less than one month, Proskauer attorneys successfully defeated all seven applications for injunctive relief, persuading courts in each different jurisdiction that the restrictive covenants at issue are legally unenforceable and that the former employer had little likelihood of succeeding on the merits of its claims.
SIF ICAP SA de C.V. and SIF ICAP Chile SA, inter-dealer brokerage firms with a significant presence throughout Latin America, along with several brokers, in the dismissal, in its entirety, of a case brought against by competitor Tradition Chile SA and its parent, Tradition North America, seeking damages for the brokers' departure from Tradition to SIF ICAP in violation of their non-compete agreements.
Newedge USA, LLC in a significant victory when the New York Supreme Court granted a temporary restraining order, which led to an extremely favorable settlement. Specifically, Newedge sought to prohibit the manager in question from:
continuing his employment relationship with the new employer
exploiting his knowledge of confidential information for his new employer's benefit
soliciting customers or otherwise disrupting employee and customer relationships
The court granted Newedge's TRO in its entirety pending an application for a preliminary injunction before a FINRA panel.
Comtech Aero Astro, Inc. in an emergent lawsuit against two former executives and their new employer, Sierra Nevada Corporation, for violations of restrictive covenants and non-disclosure agreements.
Avisena in an action to enforce a non-compete agreement against the former CEO of our client. The dispute centers on the duration of his restrictive covenant, which he claims is only one year and Avisena is two. After expedited discovery and denial of a motion for a preliminary injunction, the case is on appeal.
Honeywell International in a lawsuit that challenged pre-invention assignment agreements on two different fronts: first, the agreements were alleged to be void as a matter of New Jersey law and, second, they were alleged to discriminate against older workers in violation of the New Jersey Law Against Discrimination. Proskauer attorneys persuaded the court that the agreement’s ambiguities did not make it unenforceable, but rather it could be reformed to reflect its ordinary and expected meaning which protected Honeywell’s interests in the inventions. The court further found that Plaintiff’s allegations of discrimination were unfounded and dismissed the complaint. Plaintiff appealed to the New Jersey Appellate Division, which affirmed the lower court’s findings.
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