Russell Beck and Nicole Corvini Daly to Speak at PLI Noncompete Agreement Program

On Wednesday, May 17, 2023, Russell Beck and Nicole Corvini Daly will be speaking at Practising Law Institute’s program on noncompete agreements. Russell is the Chairperson of the event.

The program, which will be held in New York City and is also available online, is titled “Fundamentals of Noncompetes 2023.”

The program starts at 1:30 p.m. ET on May 17, 2023. More information and registration is available here.

Speakers will “provide all of the essential information you need to know about restrictive covenant law, including understanding the types of restrictive covenants, the interests they can protect, and the rules for their use.”

In addition, according to the course description, attendees will learn how to:

  • Identify the key issues concerning restrictive covenant law and the various kinds of restrictive covenant agreements
  • Understand the basics of trade secrets, goodwill, and other protectable business interests
  • Evaluate and update agreements to protect your company’s business interests from departing employees
  • Manage through the common issues in litigation concerning noncompetes and other restrictive covenants

The presentation is for any “lawyer or human resources personnel that will be assisting companies or individuals in evaluating, enforcing, and defending against noncompetes and other restrictive covenants, anyone involved in the hiring of employees, and anyone else responsible for an organization’s internal hiring policies.”

Russell will be giving the opening remarks for the program. Nicole will be speaking on a panel titled “Soup to Nuts: The Basics of Restrictive Covenant Litigation.” This panel will discuss the basic components and strategies of litigating matters concerning restrictive covenants. The panelists will provide:


For up-to-the-minute analysis of legal issues concerning noncompete agreements in Massachusetts and across the United States, read Russell Beck’s blog, Fair Competition Law.

eck Reed Riden LLP is among the leading authorities in trade secret, noncompete, and unfair competition law, and our experience handling these matters is backed by our extensive employment law and business litigation experience. Our hand-picked team combines attorneys with complementary expertise and practical experience.

The Wall Street Journal featured Beck Reed Riden LLP’s noncompete agreement experience. In 2016, the White House issued a report entitled, “Non-Compete Agreements: Analysis of the Usage, Potential Issues, and State Responses,” relying in part on Beck Reed Riden LLP’s research and analysis, including its 50 State Noncompete Survey.

Russell Beck’s work in this area is well recognized, and includes:

  • Over thirty years of experience working on trade secret, noncompete, and unfair competition matters
  • Assisting the Obama White House as part of a small working group to develop President Obama’s Noncompete Call to Action
  • Authoring the book Negotiating, Drafting, and Enforcing Noncompetition Agreements and Related Restrictive Covenants (6th ed., MCLE, Inc. 2021), used by other lawyers to help them with their noncompete matters
  • Authoring the book Trade Secrets Law for the Massachusetts Practitioner (1st ed. MCLE 2019), covering trade secrets nationally, with a focus on Massachusetts law
  • Drafting and advising on legislation for the Massachusetts Legislature to define, codify, and improve noncompetition law
  • Teaching Trade Secrets and Restrictive Covenants at Boston University School of Law
  • Founding and administering the award-winning blog, Fair Competition Law
  • Establishing and administering the Noncompete Lawyers and Trade Secret Protection groups on LinkedIn, with over 1,660 and 870 members, respectively, around the world
  • Founded and chaired the Trade Secret / Noncompete Practice for an AmLaw 100 firm

In addition, Russell was honored for his work in this area of law in the 2020 Chambers USA Guide, which stated that Russell Beck is “an expert in the field of trade secret and restrictive covenant law,” and is also noted for his “ability to adjust and come up with successful solutions.” Chambers noted that Russell “basically wrote the new Massachusetts statute on noncompetes” and that “he’s an expert in employee mobility and nonrestrictive covenants.”

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and employment.

We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

Russell Beck to Speak at AIPLA’s 2023 Spring Meeting

Russell Beck will be a speaker at this year’s American Intellectual Property Law Association Spring Meeting. The AIPLA’s Spring Meeting will take place on May 10-12, 2023, in Seattle.

Russell Beck will be giving a presentation on May 10th, titled “Non-Competition Covenants in the Age of Remote and Hybrid Work.”

The AIPLA is a bar association of lawyers in private and corporate practice, government service, and the academic community. AIPLA represents individuals, companies and institutions involved in the practice of patent, trademark, copyright, and unfair competition law, as well as other fields of law affecting intellectual property.


For up-to-the-minute analysis of legal issues concerning trade secrets and noncompete agreements in Massachusetts and across the United States, read Russell Beck’s blog, Fair Competition Law.

Russell frequently writes and speaks about current efforts to regulate noncompete agreements. He was featured on NPR and quoted in the New York Times discussing federal regulatory efforts targeting noncompete agreements. In January 2023, Russell was quoted in a Bloomberg Law article about the FTC’s proposed rule, and he wrote an article for Law360 called “Companies Must Brace For FTC’s Overbroad Noncompete Rule.” In April 2020, Russell Beck and Erika Hahn’s article about the FTC’s investigation about whether it should regulate noncompetes was published by Law360. In July 2019, Law360 published Russell Beck’s analysis of misconceptions in the noncompete debate.

eck Reed Riden LLP is among the leading authorities in trade secret, noncompete, and unfair competition law, and our experience handling these matters is backed by our extensive employment law and business litigation experience. Our hand-picked team combines attorneys with complementary expertise and practical experience.

The Wall Street Journal featured Beck Reed Riden LLP’s noncompete agreement experience. In 2016, the White House issued a report entitled, “Non-Compete Agreements: Analysis of the Usage, Potential Issues, and State Responses,” relying in part on Beck Reed Riden LLP’s research and analysis, including its 50 State Noncompete Survey.

Russell Beck’s work in this area is well recognized, and includes:

  • Over thirty years of experience working on trade secret, noncompete, and unfair competition matters
  • Assisting the Obama White House as part of a small working group to develop President Obama’s Noncompete Call to Action
  • Authoring the book Negotiating, Drafting, and Enforcing Noncompetition Agreements and Related Restrictive Covenants (6th ed., MCLE, Inc. 2021), used by other lawyers to help them with their noncompete matters
  • Authoring the book Trade Secrets Law for the Massachusetts Practitioner (1st ed. MCLE 2019), covering trade secrets nationally, with a focus on Massachusetts law
  • Drafting and advising on legislation for the Massachusetts Legislature to define, codify, and improve noncompetition law
  • Teaching Trade Secrets and Restrictive Covenants at Boston University School of Law
  • Founding and administering the award-winning blog, Fair Competition Law
  • Establishing and administering the Noncompete Lawyers and Trade Secret Protection groups on LinkedIn, with over 1,660 and 870 members, respectively, around the world
  • Founded and chaired the Trade Secret / Noncompete Practice for an AmLaw 100 firm

In addition, Russell was honored for his work in this area of law in the 2020 Chambers USA Guide, which stated that Russell Beck is “an expert in the field of trade secret and restrictive covenant law,” and is also noted for his “ability to adjust and come up with successful solutions.” Chambers noted that Russell “basically wrote the new Massachusetts statute on noncompetes” and that “he’s an expert in employee mobility and nonrestrictive covenants.”

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and employment.

We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

Russell Beck to Speak at DRI’s Business and Intellectual Property Litigation Conference

On Thursday, April 27, 2023, Russell Beck will be speaking at DRI’s 2023 Business and Intellectual Property Litigation Super Conference. The event will be held in New Orleans.

Russell’s presentation is titled “Hold onto Your Trade Secrets: The Winds of Change are Howling Around Employee Noncompete Agreements.

The three-day, in-person program starts on April 26, 2023. More details are available here.

According to the event’s description, at DRI’s Business Litigation and Intellectual Property Super Conference, among other things, attendees will learn about generational differences impacting the practice of law, issues in front of the Supreme Court and the anticipated effects of future rulings, the sweeping changes affecting restrictive covenants.

Russell’s presentation on noncompete agreements is described as follows:

Nearly sixty percent of employees who change jobs admit to stealing trade secrets on their way out the door. The harm to the economy and innovation caused by the misappropriation is so great that it led to the near unanimous passage of the Defend Trade Secrets Act of 2016, establishing a federal private right of action for trade secret misappropriation. Yet, in the name of enhancing employee mobility, the key agreements designed to protect trade secrets — employee noncompete and nondisclosure agreements — are under attack in legislatures across the country, in Congress, and at the Federal Trade Commission. This presentation will explore this dilemma and the steps companies can take to protect their trade secrets in the face of recent and anticipated regulation favoring employee mobility over the protection of trade secrets.

DRI is the largest international membership organization of attorneys defending the interests of business and individuals in civil litigation.


For up-to-the-minute analysis of legal issues concerning trade secrets and noncompete agreements in Massachusetts and across the United States, read Russell Beck’s blog, Fair Competition Law.

Russell frequently writes and speaks about current efforts to regulate noncompete agreements. He was featured on NPR and quoted in the New York Times discussing federal regulatory efforts targeting noncompete agreements. In January 2023, Russell was quoted in a Bloomberg Law article about the FTC’s proposed rule, and he wrote an article for Law360 called “Companies Must Brace For FTC’s Overbroad Noncompete Rule.” In April 2020, Russell Beck and Erika Hahn’s article about the FTC’s investigation about whether it should regulate noncompetes was published by Law360. In July 2019, Law360 published Russell Beck’s analysis of misconceptions in the noncompete debate.

eck Reed Riden LLP is among the leading authorities in trade secret, noncompete, and unfair competition law, and our experience handling these matters is backed by our extensive employment law and business litigation experience. Our hand-picked team combines attorneys with complementary expertise and practical experience.

The Wall Street Journal featured Beck Reed Riden LLP’s noncompete agreement experience. In 2016, the White House issued a report entitled, “Non-Compete Agreements: Analysis of the Usage, Potential Issues, and State Responses,” relying in part on Beck Reed Riden LLP’s research and analysis, including its 50 State Noncompete Survey.

Russell Beck’s work in this area is well recognized, and includes:

  • Over thirty years of experience working on trade secret, noncompete, and unfair competition matters
  • Assisting the Obama White House as part of a small working group to develop President Obama’s Noncompete Call to Action
  • Authoring the book Negotiating, Drafting, and Enforcing Noncompetition Agreements and Related Restrictive Covenants (6th ed., MCLE, Inc. 2021), used by other lawyers to help them with their noncompete matters
  • Authoring the book Trade Secrets Law for the Massachusetts Practitioner (1st ed. MCLE 2019), covering trade secrets nationally, with a focus on Massachusetts law
  • Drafting and advising on legislation for the Massachusetts Legislature to define, codify, and improve noncompetition law
  • Teaching Trade Secrets and Restrictive Covenants at Boston University School of Law
  • Founding and administering the award-winning blog, Fair Competition Law
  • Establishing and administering the Noncompete Lawyers and Trade Secret Protection groups on LinkedIn, with over 1,660 and 870 members, respectively, around the world
  • Founded and chaired the Trade Secret / Noncompete Practice for an AmLaw 100 firm

In addition, Russell was honored for his work in this area of law in the 2020 Chambers USA Guide, which stated that Russell Beck is “an expert in the field of trade secret and restrictive covenant law,” and is also noted for his “ability to adjust and come up with successful solutions.” Chambers noted that Russell “basically wrote the new Massachusetts statute on noncompetes” and that “he’s an expert in employee mobility and nonrestrictive covenants.”

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and employment.

We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

Russell Beck Speaks at MCLE About Trade Secrets

On April 25, 2023, Russell Beck spoke about trade secrets at the Massachusetts Continuing Legal Education’s seminar on intellectual property.

Russell’s trade secrets presentation was part of a program titled “What Every Business Lawyer Must Know About Intellectual Property Law Pitfalls & Opportunities.” The webcast will be rebroadcast on May 10 and May 18, and a recording is available found here.

Russell’s presentation focused on the sources of trade secret law, the impact of restrictive covenants, and the changing regulatory landscape. He also addressed the importance of establishing a proper trade secret protection program, and the basics of bringing and defending a misappropriation case.

_____

For up-to-the-minute analysis of legal issues concerning trade secrets and noncompete agreements in Massachusetts and across the United States, read Russell Beck’s blog, Fair Competition Law.

eck Reed Riden LLP is among the leading authorities in trade secret, noncompete, and unfair competition law, and our experience handling these matters is backed by our extensive employment law and business litigation experience. Our hand-picked team combines attorneys with complementary expertise and practical experience.

The Wall Street Journal featured Beck Reed Riden LLP’s noncompete agreement experience. In 2016, the White House issued a report entitled, “Non-Compete Agreements: Analysis of the Usage, Potential Issues, and State Responses,” relying in part on Beck Reed Riden LLP’s research and analysis, including its 50 State Noncompete Survey.

Russell Beck’s work in this area is well recognized, and includes:

  • Over thirty years of experience working on trade secret, noncompete, and unfair competition matters
  • Assisting the Obama White House as part of a small working group to develop President Obama’s Noncompete Call to Action
  • Authoring the book Negotiating, Drafting, and Enforcing Noncompetition Agreements and Related Restrictive Covenants (6th ed., MCLE, Inc. 2021), used by other lawyers to help them with their noncompete matters
  • Authoring the book Trade Secrets Law for the Massachusetts Practitioner (1st ed. MCLE 2019), covering trade secrets nationally, with a focus on Massachusetts law
  • Drafting and advising on legislation for the Massachusetts Legislature to define, codify, and improve noncompetition law
  • Teaching Trade Secrets and Restrictive Covenants at Boston University School of Law
  • Founding and administering the award-winning blog, Fair Competition Law
  • Establishing and administering the Noncompete Lawyers and Trade Secret Protection groups on LinkedIn, with over 1,660 and 870 members, respectively, around the world
  • Founded and chaired the Trade Secret / Noncompete Practice for an AmLaw 100 firm

In addition, Russell was honored for his work in this area of law in the 2020 Chambers USA Guide, which stated that Russell Beck is “an expert in the field of trade secret and restrictive covenant law,” and is also noted for his “ability to adjust and come up with successful solutions.” Chambers noted that Russell “basically wrote the new Massachusetts statute on noncompetes” and that “he’s an expert in employee mobility and nonrestrictive covenants.”

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and employment.

We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

Stephen Riden Quoted in Massachusetts Lawyers Weekly

A recent issue of Massachusetts Lawyers Weekly features discussion with Steve Riden in an article titled “In family business dispute, appraisal right deemed waived.”

The article covers a decision by a Massachusetts Superior Court judge concerning a close corporation dispute. The decision was entered in the case titled Szawlowski Potato Farms, Inc., et al. v. Szawlowski, et al.

The decision addresses a situation involving a dispute among family members in a close corporation. The estate of one family member sought to exercise certain rights under the owners’ shareholder stock redemption agreement. However, after undertaking a close analysis of the parties’ agreements and communications, the court ruled that the estate waived its contractual right to seek an appraisal of the decedent’s ownership interest in the company.

In the article, Steve Riden is quoted as follows:

Boston attorney Stephen D. Riden said apparently it was particularly helpful to the companies that, in the notice of their intent to repurchase the decedent’s interest, they had flagged the trustee’s deadline to request the appraisal, which made it easier for the judge to find waiver of that right.

For his part, the trustee seemed to have treated the notice as an invitation to negotiate a settlement of all disputes between the parties, which Riden called “a completely appropriate strategy.”

But at the same time, the trustee needed to expressly exercise his appraisal rights under the contract.

“The lesson there is to still keep your eye on the ball and make sure that you’re sticking to the terms of the contract in case the effort to negotiate fails,” Riden said.

The article is by Massachusetts Lawyers Weekly’s reporter, Kris Olson.

Steve has substantial experience representing owners involved in intra-corporate disputes, including shareholder litigation and close-corporation control matters.


Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and employment.

We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

A “Possible” Case of the Mandela Effect? The Duty to Preserve in Massachusetts Following JFF Cecilia

The duty to preserve evidence is an important obligation in the context of litigation. And such a duty can arise prior to the filing of a lawsuit. As a result, a critical question for potential litigants and their counsel is: exactly when does this important duty arise?

The answer to this question is important, as a misstep may lead to the imposition of sanctions. In January the Massachusetts Superior Court Business Litigation Session issued a decision that appeared to set a new standard for when the duty to preserve evidence arises. The decision states that a potential litigant is duty bound to take affirmative steps to preserve evidence not only when it seems that litigation is likely, but “if a litigant or its expert knows or reasonably should know that the evidence might be relevant to a possible action” (emphasis added).[1]

A Discovery Dispute

The JFF Cecilia v. Weiner Ventures LLC, et. al. case involves a dispute between business partners on a construction project in Boston. According to an order issued on January 6, 2023, after the defendants backed out of the project, counsel for one of the plaintiffs sent a dispute notice on August 20, 2019, as required by the terms of the parties’ agreement. The letter specifically reserved plaintiff’s legal and equitable rights but made no mention of pending litigation. Counsel for the parties continued to communicate. The plaintiff sent another letter on October 1, 2019, proposing terms for resolution, “or [plaintiff] would be compelled to recover through other mechanisms. . .” A complaint was ultimately filed on October 23, 2019, and the parties proceeded to discovery.

After discovering large gaps in defendants’ document productions, plaintiffs were informed that two defendants had not preserved, or had affirmatively destroyed a series of text messages, email correspondence, and voicemails citing routine practice. These items were from the time that the parties were partnering on the project, as well as the period following defendants’ withdrawal from the project. Plaintiffs filed a motion for sanctions on September 30, 2022, alleging that defendants were reasonably on notice of the likelihood of litigation from August 20, 2019, until the filing of the lawsuit on October 23, 2019, and that defendants had failed to preserve, or affirmatively destroyed, potentially relevant evidence.

The Possible Action Standard: A Forgotten Standard?

In his original ruling, Judge Salinger denied Plaintiffs’ motion for sanctions finding that Plaintiffs had not shown that a reasonable person, before October 1, 2019, would have thought it very likely that they would be sued. Judge Salinger also found that Plaintiffs were not prejudiced by the alleged spoliation of evidence.

Plaintiffs appealed the denial. A single justice on the Appeals Court (Henry, J.) issued an order remanding the decision for clarification of the appropriate standard. Justice Henry specifically inquired whether the standard set forth in a 2009 Supreme Judicial Court case controlled. In that case, the SJC explained that “[t]he doctrine of spoliation permits the imposition of sanctions and remedies where a litigant or its expert negligently or intentionally loses or destroys evidence that the litigant (or expert) knows or reasonably should know might be relevant to a possible action, even when the spoliation occurs before an action has been commenced.” Scott v. Garfield, 454 Mass. 790, 798 (2009) (emphasis added). For the purposes of this article, this standard will be referred to as the “possible action standard.”

n remand, Judge Salinger reversed his earlier decision and noted that the remand order required him to interpret the possible action standard differently than he had the first time – “something materially different than ‘likely litigation.’” Citing the dictionary definitions of “possible” and “likely,” Judge Salinger determined that “[a] future lawsuit is ‘possible’ if it is ‘within the limits of ability, capacity, or realization.’ Webster’s Ninth New Collegiate Dictionary at 918 (1991). In contrast, litigation is ‘likely’ only if it has ‘a high probability of occurring.’ Id. at 692.”

As a result, lawyers are asking whether this decision created a new standard for the duty to preserve evidence – namely if a defendant would have reasonably thought litigation was possible. Looking more closely, however, it may be that rather than creating a new standard, this case has uncovered a collective misremembering of Massachusetts law surrounding the duty to preserve and spoliation of evidence.

The Mandela Effect

In 2009, American writer, Fiona Broome coined the term the “Mandela Effect” to describe the phenomenon of collective false memories. A commonly used anecdote of the Mandela Effect is the spelling and pronunciation of the bear family from the popular children’s books the Berenstein Bears. . . or is it the Berenstain Bears? If you thought it was the Berenstein Bears, you’re in company of the likely (and incorrect) majority. Similarly, you wouldn’t be alone in assuming that the duty to preserve evidence arose when the threat of litigation was likely or probable. So, did the JFF Cecilia case change the threshold for when the duty to preserve commences, or has it always been when “a litigant or its expert knows or reasonably should know that the evidence might be relevant to a possible action”?

Unlike the Berenstain Bears, the answer here is not clear: it may be both. The original case using the possible action language cited by Judge Henry is Kippenhan v. Chaulk Servs., Inc., 428 Mass. 124, 127 (1998) (“[s]anctions may be appropriate for the spoliation of evidence that occurs even before an action has been commenced, if a litigant or its expert knows or reasonably should know that the evidence might be relevant to a possible action”) (emphasis added).

The “likelihood standard,” – distinguished in Judge Salinger’s January 30, 2023 ruling and probably the most recognizable to Massachusetts lawyers – seems to have appeared for the first time in Fletcher v. Dorchester Mut. Ins. Co., 437 Mass. 544, 549–50, (2002) (“[w]e have implicitly recognized that persons who are actually involved in litigation (or know that they will likely be involved) have a duty to preserve evidence for use by others who will also be involved in that litigation”) (emphasis added). Yet less than three sentences later, the Fletcher court cites Kippenhan and the possible action standard. The question remains, what is the standard?

What is the standard for the duty to preserve in Massachusetts?

Although the possible action standard laid out in Kippenhan remains good law,[2] it seems that somewhere along the way, the standard got conflated with a narrower probability or likelihood standard. This was not by imagination or mistake. While it seems to be a case of the Mandela Effect, it was likely a result of the more nuanced language used by Massachusetts courts since 1998, which often appear alongside the possible action standard.

Courts in Massachusetts have performed fact-sensitive inquiries into cases involving disputed instances of spoliation to discern what is really possible between two parties. In many of the cases that discuss and apply the possible action standard, the standard is qualified by explaining more nuanced, narrow scenarios when litigation is deemed to be possible. “Possible,” then, is a term of art. As such, the law is left with various synonymous standards cited alongside the possible action standard. Courts use words such as “likely,” “potential,”[3] “forthcoming,”[4] “upcoming,”[5] and “probable,”[6] among others to describe when a defendant should have anticipated the litigation for which evidence has allegedly been spoliated.[7]

hen discussing spoliation, courts look at the facts surrounding the dispute, the timing of the parties’ knowledge regarding the dispute, as well as factors that may mitigate a party’s reasonable expectation of litigation, to determine whether spoliation occurred. This ad hoc inquiry, while seemingly negating the utility of a spoliation standard, is in fact useful in better understanding the context in which the possible action standard is implemented. Indeed, in Kippenhan, the court sharpened the focus of when litigation may be deemed possible:

The threat of a lawsuit must be sufficiently apparent, however, that a reasonable person in the spoliator’s position would realize, at the time of spoliation, the possible importance of the evidence to the resolution of the potential dispute. . .

Kippenhan, at 127 (emphasis added).

As a result, Massachusetts courts seem to have relied on Kippenhan as a starting point for fact-sensitive inquiries. This further suggests that the long-held likelihood or probability standards are quite possibly a result of a collectively accepted, intuitive short-hand within which the standards for the duty to preserve and the spoliation of evidence have evolved from the simple possibility of future legal action to something more apparent.

However, as the courts work to clarify the bounds of the duty to preserve, lawyers should err on the side of preservation, as the simple act of questioning whether to preserve could be construed as knowledge of the possibility of such evidence being relevant to a possible action.


 

Jillian Carson and Puneet Dhaliwal are the co-authors of this article.

Jillian is a commercial litigation associate at Beck Reed Riden LLP. Her work focuses on trade secret and restrictive covenant law. She has represented clients on matters concerning, among other things, the enforceability of noncompete, nondisclosure, and nonsolicit agreements

Puneet is an associate at Beck Reed Riden LLP. She represents companies and individuals in a wide array of business disputes, including litigation concerning the enforcement of noncompete agreements and confidentiality restrictions.


eck Reed Riden LLP is among the leading authorities in trade secret, noncompete, and unfair competition law, and our experience handling these matters is backed by our extensive employment law and business litigation experience. Our hand-picked team combines attorneys with complementary expertise and practical experience.

The Wall Street Journal featured Beck Reed Riden LLP’s noncompete agreement experience. In 2016, the White House issued a report entitled, “Non-Compete Agreements: Analysis of the Usage, Potential Issues, and State Responses,” relying in part on Beck Reed Riden LLP’s research and analysis, including its 50 State Noncompete Survey.

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and employment.

We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.


[1] JFF Cecilia LLC v. Weiner Ventures, LLC, et al., No. 1984CV03317-BLS2, 2023 WL 1804375 (Mass. Super. Ct. Jan. 30, 2023).

[2] Indeed, even the Mass Guide to Evidence, Section 1102 cites the possible action standard from Kippenhan.

[3] See, e.g., Keene v. Brigham & Women’s Hosp., Inc., 439 Mass. 223, 234 (2003) (“. . .defendant should have been aware of a likely claim at least as early as May 1, 1987, the time that it filed a notice with RMF of a potential claim based on the plaintiff’s injuries”); MacLellan v. Shaw’s Supermarket, Inc., 2008 WL 2889921, at *1 (Mass. Super. June 23, 2008) (“[p]ersons who are actually involved in litigation (or know that they will likely be involved) have a duty to preserve evidence for use by others who will also be involved in that litigation”).

[4] See, e.g., Reliance Ins. Co. v. Total Tech. Servs., Inc., 72 Mass. App. Ct. 1116 (2008) (“Sanctions may be appropriate for spoliation that occurs even before the commencement of an action if a party knows or reasonably should know that litigation is forthcoming and that the evidence will be relevant to that litigation”).

[5] See, e.g., Westover v. Leiserv, Inc., 64 Mass. App. Ct. 109, 112–13 (2005) (“The doctrine of spoliation ‘is based on the premise that a party who has negligently or intentionally lost or destroyed evidence known to be relevant for an upcoming legal proceeding should be held accountable for any unfair prejudice that results’”).

[6] Order of Sanctions for Spoliation of Evidence, Maclellan, (Mass. Super. June 23, 2008) (imposing sanctions where Defendant was “on notice of probable litigation” when alleged spoliation occurred).

[7] Notably, the cases that use these synonymous terms also cite to Kippenhan in their analysis of the law surrounding the duty to preserve evidence.

Steve Riden Speaking About Tortious Interference for Federal Bar Association

On Thursday, March 16, 2023, Steve Riden will give a presentation for the Federal Bar Association titled “Tortious Interference With Contracts: Proving and Defending Claims.”

The presentation will be conducted via webinar on March 16, 2023, from 2 to 3 p.m. ET. Registration information and other details are available here.

According to the program summary:

Commercial relationships and contracts are both susceptible to interference by others. Former employees and competitors sometimes resort to improper tactics to gain an unfair advantage. Business litigators need to be aware of the variety of fact patterns that can support a claim for tortious interference. This versatile tort is an essential tool to address a wide range of commercial misconduct and unfair competition.

This course is co-sponsored with myLawCLE.Key topics to be discussed:

  • What must plaintiffs prove to establish a tortious interference claim?
  • What are the potential defenses to defeat tortious interference claims?
  • What damages are available to prevailing plaintiffs in tortious interference cases?
  • How do tortious interference claims overlap with related employment, unfair competition, and defamation claims?

teve’s practice is in commercial litigation, and he represents corporate and individual clients in a wide array of commercial disputes across the country, and his primary focus is litigating trade secrets related matters. Over the past year, he has worked on myriad actions in state and federal courts involving trade secret issues, including representing several key witnesses in a jury trial that resulted in an award of more than $2 billion in damages for trade secret misappropriation.

Steve was the 2020 President of the Board of Directors for the Boston College Law School Alumni Association. He is an editorial board member of the Boston Bar Journal, following serving a two-year term as its chair, and a one-year term as its co-chair. Previously, Steve was the Co-Chair of the Boston Bar Association’s Business and Commercial Litigation Section.

eck Reed Riden LLP is among the leading authorities in trade secret, noncompete, and unfair competition law, and our experience handling these matters is backed by our extensive employment law and business litigation experience. Our hand-picked team combines attorneys with complementary expertise and practical experience.

The Wall Street Journal featured Beck Reed Riden LLP’s noncompete agreement experience. In 2016, the White House issued a report entitled, “Non-Compete Agreements: Analysis of the Usage, Potential Issues, and State Responses,” relying in part on Beck Reed Riden LLP’s research and analysis, including its 50 State Noncompete Survey.

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and employment.

We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

 

Boston Magazine’s Top Lawyers List Names Beck Reed Riden LLP Attorneys

2022 Top Lawyers Winner - Boston MagazineBoston Magazine has included four Beck Reed Riden LLP attorneys in the publication’s “Top Lawyers” list, which recognizes the top law professionals in Greater Boston.

Published as part of the magazine’s December 2022 issue, the 2022 “Top Lawyers” list includes the following Beck Reed Riden LLP attorneys:

Boston Magazine’s editorial team researched and selected lawyers based on peer nominations and credentials. The complete list is available here.

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and employment.

We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

Nicole Gage Recognized as Leading Trademark Lawyer

Nicole Gage has been recognized as one of the world’s leading trademark lawyers by the World Trademark Review’s “WTR 1000” for the ninth consecutive year. She has received recognition in two separate categories: Enforcement and Litigation, and Prosecution and Strategy.

WTR 1000 shines a spotlight on the firms and individuals that are deemed outstanding in the areas of trademark prosecution, counseling and enforcement. Nicole counsels companies of all sizes and partners with her clients to safeguard their brands.

he WTR 1000 is the only standalone publication to recommend individual practitioners and their firms exclusively in the trademark field, and identifies the leading players based on exhaustive research including client and peer feedback. More details about WTR and the methodology for its survey can be found here.

Nicole Gage has over 20 years of experience advising clients with respect to intellectual property matters. Her practice focuses on all areas of trademark and unfair competition law including clearance, portfolio management, prosecution, enforcement, litigation, due diligence, false advertising, licensing, trademark use and misuse, and use in connection with social media. She has significant experience in the Federal Courts and at the Trademark Trial and Appeal Board (TTAB).

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and employment.

We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

Stephen Riden Featured in The National Law Journal on Noncompetes

A recent issue of The National Law Journal features discussion with Steve Riden in an article titled “Legal Industry Is Split on FTC’s Proposed Ban on Non-Competes.”

The article covers the Federal Trade Commission’s proposed Noncompete Clause Rule, which would essentially ban all employee noncompete agreements. The report was written by Christine Schiffner, Bureau Chief for the National Law Journal in Washington, D.C.

In the article, attorneys discuss a variety of viewpoints about the value of noncompete agreements, and assess the FTC’s proposal to restrict such provisions. Steve Riden is quoted as follows:

“We would suggest that the FTC reconsider an outright ban of non-compete agreements,” said Boston-based Beck Reed & Riden partner Stephen Riden. He and the firm’s other name partner Russell Beck spearheaded the publication of an open letter signed by 59 attorneys underscoring the effectiveness of non-compete agreements to protect trade secrets and “stealing confidential company information” when employees leave their jobs. His firm is also planning to actively weigh in during the FTC’s public comment period.

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While 47 U.S. states currently permit non-competes and three states have enacted bans, Riden points out that “there are measures that can be taken to soften the impacts of non-competes,” including clear disclosures and more transparency during the hiring process. “Companies could provide notice of the non-compete agreements before the employee accepts the job,” Riden said—“so employees start a new role with their eyes wide open.”

***

While the FTC argues that the new rule would promote “greater dynamism, healthy competition, and innovation,” defense attorneys disagree. Particularly in circumstances of employees handling confidential or even trade secret information, non-compete clauses “give the old employer the opportunity to protect and further capitalize on the confidential information,” Riden said.

Steve has substantial experience representing companies and individuals in trade secret, noncompete, and unfair competition matters.

eck Reed Riden LLP is among the leading authorities in trade secret, noncompete, and unfair competition law, and our experience handling these matters is backed by our extensive employment law and business litigation experience. Our hand-picked team combines attorneys with complementary expertise and practical experience.

The Wall Street Journal featured Beck Reed Riden LLP’s noncompete agreement experience. In 2016, the White House issued a report entitled, “Non-Compete Agreements: Analysis of the Usage, Potential Issues, and State Responses,” relying in part on Beck Reed Riden LLP’s research and analysis, including its 50 State Noncompete Survey.

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and employment.

We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

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