Bilski, KSR, uncertainty about patent protection, and a changing economy are among the factors that have increased the focus on using trade secrets law to protect intellectual property. One conundrum of trade secrets law is that the trade secrets owner must take reasonable measures to protect trade secrets, but generally also must disclose its secrets to employees or business partners to fully exploit them. To prevent diversion of trade secrets by former trusted insiders, one of the most commonly used protective measures is some form of competitive restraint—whether a non-disclosure agreement that builds in the concept of “inevitable disclosure”; a customer non-solicitation agreement; or a limited ban on competition after the relationship, whether commercial or employment, comes to an end. Non-compete agreements implicate at least two fundamental policies—the need to protect trade secrets (and business relationships), on the one hand, and the need to protect employee and business mobility on the other. The law balancing those public policies is jurisdiction specific and varies widely throughout the United States (and, indeed, throughout the world). Further, the balance can change: non-compete law is currently undergoing significant transformation in many states, both in the courts and in pending legislation. Colorado is in the vanguard of states that have addressed some of the conflicting policy concerns relating to non-compete agreements through legislation. The Colorado model is gaining an increasing following throughout the country.
In her presentation, Victoria Cundiff will consider emerging trends in non-compete law as seen in the courts and in the legislatures; examine some of the key litigation themes evolving in litigating non-compete, inevitable disclosure, and trade secrets cases throughout the country; and discuss best practices for organizations that may find themselves focusing on trade secret protection and non-compete issues in multiple jurisdictions. She will also address some of the ethical issues arising in non-compete litigation.
Presenter: Victoria Cundiff chairs the global trade secrets practice at Paul, Hastings, Janofsky & Walker LLP (ranked in the top tier by Legal 500), where she is based in New York. She has litigated non-compete, inevitable disclosure, and non-solicitation agreements throughout the country and has helped organizations establish agreements and policies to protect trade secrets across multiple jurisdictions. She has also written widely on non-compete and trade secrets issues, including Reasonable Measures to Protect Trade Secrets in a Digital Environment, 49 IDEA 359 (2009) and Preventing the Inevitable: How Thinking About What Might Happen Can Help Insure That It Won’t, 12 N.Y.Bus. L. J. Vol. 2 (Fall 2008). She is a Visiting Lecturer in Law at Yale Law School, a graduate of the University of Denver and of the Yale Law School, and is admitted to practice in New York, Colorado, and the District of Columbia.
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