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restrictive covenants, trade secrets & unfair competition

The soul of every company resides in its workforce.  Employers entrust their business relationships with their employees, supply them with the confidential information that secure competitive advantages, and train them to make the most of their natural skill sets.   These assets – goodwill, trade secrets, and a well-trained workforce – require protection.  Conrad O’Brien attorneys work to provide it. 

Counseling and Drafting 

Conrad O’Brien attorneys provide advice and counseling to employers to enable them to implement strategies that are designed to protect their interests in goodwill, confidential information, trade secrets, and investments in training.  Among other things, we help employers draft effective restrictive covenants and intellectual property commitments for use in employment agreements, including provisions that address the following: 

  • non-competition covenants;
  • non-solicitation covenants;
  • non-disclosure and confidentiality covenants;
  • non-recruitment covenants; and
  • innovation and intellectual property assignment agreements.

In addition to providing counseling and drafting advice to help employers protect against the risks that they will face when employees leave their companies, we also provide advice in connection with competitive hires.  Conrad O’Brien attorneys routinely help employers assess the risks that they face when they want to hire lateral candidates from competitors.  When candidates who have signed restrictive covenants or been exposed to confidential information apply for new employment, Conrad O’Brien attorneys can help new employers to assess whether the covenants are valid and enforceable, to structure the new employment so as to respect the legitimate rights of former employers, and to counsel the candidates on how to avoid miss-steps in the process of resigning that can create substantial liability exposure for their new companies.

Litigation

Conrad O’Brien attorneys regularly prosecute and defend cases raising restrictive covenant, trade secret, and unfair competition issues.  Our practice is national in scope, and we have appeared in federal and state courts from Albuquerque, New Mexico to Richmond, Virginia on behalf of employers to handle a wide range of new employment related claims, including breach of restrictive covenants, breach of fiduciary duty, tortious interference with contract, misappropriation of trade secrets, computer fraud and abuse, and unfair competition.

Success Stories 

  • When a start-up company first began making sales, it did what many new businesses do and hired its initial sales representatives from competitive employers.  The result was litigation that threatened the start-up’s existence.  After helping the company to resolve the restrictive covenant and trade secret litigation in which it found itself mired, Conrad O’Brien attorneys created a process for the start-up to evaluate systematically the restrictive covenant obligations of its lateral employment candidates and to comply with any enforceable commitments.  The process implemented assisted the company to avoid litigation exposure as it grew from its start-up phase to a multi-billion dollar enterprise.
  • A group of insurance brokers resigned on a Friday evening and began working for a competitor on the following Monday.  Conrad O’Brien attorneys filed suit on behalf of their old employer, obtained a temporary restraining order against the solicitation of customers, and helped the former employer to obtain both a substantial monetary payment and a stipulation to permanent injunctive relief.
  • When they worked for a privately owned investment company, a group of futures traders executed a particular trading strategy that netted their former employer tens of millions of dollars in one year.  When their contract ended, the traders left the company to set up their own firm and pursue the same strategy.  Conrad O’Brien attorneys helped represent the traders when they were sued by their former employer.  The traders were ultimately vindicated, defeating the claim that the trading strategy which they used was a secret owned by the former employer.
  • A medical device company hired a regional sales manager from a competitor to work as a sales representative in an adjacent territory.  The former employer sued, trying to enforce a broadly worded non-competition covenant.  Conrad O’Brien attorneys defended the new employer and lateral employee in the case.  After mounting a vigorous defense, we helped convince the former employer to drop the lawsuit without any settlement payment, to narrow the geographic scope of the non-competition covenant in issue, and to shorten its duration.  In addition, Conrad O’Brien helped the new and former employer develop a protocol for handling future lateral hires between them so that potential restrictive covenant disputes could be identified and, hopefully, resolved without the need to file any lawsuits.