Stephen Riden Featured in Massachusetts Lawyers Weekly on Arbitration

A recent issue of Massachusetts Lawyers Weekly features extensive discussion with Steve Riden in an article titled “Benefits of business-to-business arbitration on trial.”

The article covers a decision by U.S. District Court Judge William G. Young concerning the use of arbitration clauses in commercial transactions. The decision was entered in the case titled Cellinfo, LLC v. American Tower Corporation, 18-cv-11250, United States District Court, District of Massachsuetts.

Procedurally, the decision addresses a motion to dismiss based on the defendants’ argument that a dispute resolution clause in the parties’ contract required the matter to be submitted to private arbitration. After addressing the merits of the motion, Judge Young concludes his opinion with a lengthy analysis of private arbitration in general, titled “Whatever Were They Thinking? Myths and Realities Concerning Courts and Arbitration.”

The court introduces its analysis of arbitration as follows: “How could an otherwise sophisticated agreement have made such a hash out of the parties’ intentions concerning the interplay of arbitration and court processes? It appears that in this ‘big law’ era, the drafters operated under the myth that arbitration is cheaper, faster, and more confidential than litigation (only one of these is true) without talking to trial lawyers who understand the reality that while people may not want trials, what they do want is a firm and reasonably prompt trial date before an impartial fact-finder as the best chance for a fairly negotiated settlement.” Judge Young’s analysis proceeds with in-depth discussion of the pros and cons of arbitration, and comparisons to court proceedings.

In the article, Steve Riden is quoted as follows:

Boston commercial litigator Stephen D. Riden says Young made some very good points in CellInfo, points that he himself has raised with his corporate clients.

“In dealing with companies, there’s a perception that arbitration is always going to be faster, cheaper and more confidential than a federal court proceeding,” Riden says. “That’s not always right.”

***

The judge acknowledged that federal litigation is “expensive as well — too expensive.” However, he concluded it was plainly a myth that arbitration is always a bargain by comparison. . . . Noting a typical arbitrator might charge $400 an hour, Riden says Young made one of his better points on the issue of up-front costs.

“For arbitration, it’s going to cost thousands of dollars up front, and it can cost tens of thousands of dollars just to pay for the arbitration over the course of the case,” Riden says. “Compare that to federal court where you put a few hundred dollars on your credit card and you’re off to the races.”

***

Riden acknowledges the popular perception that the costs of discovery in litigation far outweigh the costs of discovery in arbitration. However, he says his experience has shown that the costs tend to be comparable.

“I don’t see much of a difference in terms of cost between conducting discovery in federal court as opposed to conducting discovery in arbitration,” he says. “You’re still going to have to pay for the same forensic experts in both cases.”

***

According to Riden, a main benefit of litigation is that a party can start “pulling levers” to get rulings from a judge on dispositive motions much faster than parties can get decisions on the merits from an arbitrator.

“Typically, an arbitrator is not going to issue a decision on the merits in a case until the very end of the dispute,” Riden says. “Whereas in a federal or state court case, you ask for dispositive rulings up front or move for a preliminary injunction. Then you will have input from a decision-maker at the outset of a case.”

***

Riden says he typically advises clients to insert arbitration clauses in their contracts when he knows the client cares more about the confidentiality as opposed to the cost of a proceeding.

“Absolute confidentiality can be provided in an arbitration, but it certainly comes at a cost,” Riden says.

The article is by Massachusetts Lawyers Weekly’s reporter, Pat Murphy.

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

U.S. News Includes Beck Reed Riden LLP in 2019 Best Law Firms Ranking

Beck Reed Riden LLP has again received national recognition in U.S News & World Report’s “Best Law Firms” publication for 2019.

For the first time, Beck Reed Riden LLP received a national ranking in addition to several regional rankings. Specifically, U.S. News & World Report designated Beck Reed Riden LLP as a Tier 3 firm nationally in the category of Litigation – Labor & Employment.

The complete list of Beck Reed Riden LLP’s rankings is as follows:

National rankings:
Regional rankings:

The 2019 rankings are based on peer reviews and client input. To be eligible for a ranking, a firm must have a lawyer listed in The Best Lawyers in America. Russell Beck, Stephen Reed, and Stephen Riden were recently selected by their peers for inclusion in The Best Lawyers in America® 2019.

Ranked firms, presented in tiers, are listed on a national and/or metropolitan scale. Receiving a tier designation reflects the high level of respect a firm has earned among other leading lawyers and clients in the same communities and the same practice areas for their abilities, their professionalism and their integrity. The 2018 “Best Law Firms” rankings can be seen in their entirety by visiting bestlawfirms.usnews.com.

U.S. News & World Report is a registered trademark of U.S. News & World Report, L.P. Best Lawyers is a registered trademark of Woodward/White, Inc.

Beck Reed Riden LLPis Boston’s innovative litigation boutique. Our lawyers have years of experience at large law firms, working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and labor 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.

Beck Reed Riden LLP Attorneys Named to 2019 Best Lawyers in America List

Beck Reed Riden LLP is pleased to announce that three of its lawyers have again been named to the 2019 Edition of Best Lawyers.

Russell Beck, Stephen Reed, and Stephen Riden were named to the 2019 Best Lawyers in America list in the following categories:

  • Russell BeckCommercial Litigation
  • Steve ReedCommercial Litigation, Employment Law – Management, Litigation – Labor and Employment
  • Steve RidenCommercial Litigation

Best Lawyers has published their list for over three decades. Its first international list was published in 2006 and since then has grown to provide lists in over 65 countries.

Best Lawyers Award BadgeLawyers on the Best Lawyers in America list are divided by geographic region and practice areas. They are reviewed by their peers on the basis of professional expertise, and undergo an authentication process to make sure they are in current practice and in good standing.

Beck Reed Riden LLPis Boston’s innovative litigation boutique. Our lawyers have years of experience at large law firms, working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and labor 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.

Beck Reed Riden LLP Attorneys Named Super Lawyers

Russell Beck, Stephen ReedStephen Riden, and Barry Guryan have been recognized as Super Lawyers by the 2018 issue of Massachusetts Super Lawyers Magazine. In addition, Hannah Joseph has been recognized as a Rising Star by the Magazine.

In addition, Super Lawyers Magazine has selected Russell Beck and Stephen Riden as two of the Top 100 Super Lawyers in Massachusetts for 2018. Russell Beck has also been named as one of the Top 100 Super Lawyers in New England for 2018.

Super Lawyers

The title of Super Lawyer is given to 5% of the lawyers in the Commonwealth while the Rising Star designation recognizes 2.5% of lawyers under 40.  The Super Lawyers selection process is described in detail here.

Beck Reed Riden LLPis Boston’s innovative litigation boutique. Our lawyers have years of experience at large law firms, working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and labor 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 Quoted in Associated Press Article on Noncompete Law

Russell Beck was quoted by the Associated Press in a recent article titled “Garden Clause in New Law Requires Pay During Noncompete” that discusses the new Massachusetts noncompete law. The story also ran in the Washington Post, among other outlets.

The article describes how the new Massaschusetts noncompete law requires either garden leave, which is payment of a portion of an employee’s salary during the post-employment noncompete period, or payment of “mutually-agreed upon consideration,” instead.

In the story, Russell describes the compromise between legislators who wanted garden leave in the new law, and those who did not, as follows:

“It’s absolutely a middle ground,” said Russell Beck, a partner with the Boston firm of Beck Reed Riden and an expert on intellectual property law.

Some Democratic legislators, Beck noted, wanted a more stringent garden leave clause that would pay workers their full previous salary during the restricted period, while others wanted an outright ban on noncompetes.

Most companies “will fall back on the mutually-agreed upon consideration,” rather than pay garden leave, he predicted.

In addition, the article cites Russell’s research on noncompete laws around the country, and references Beck Reed Riden LLP’s 50 State Noncompete Survey:

Laws surrounding noncompetes and trade are a state-by-state patchwork, according to a recent survey by Beck’s firm. In addition to California, North Dakota and Oklahoma do not recognize the agreements and other states use language requiring them to be “reasonable,” or serve a “legitimate business interest.” Changes have been weighed by legislatures in other states, but it’s too soon to know if any will follow Massachusetts’ lead and make garden leave part of their approach, Beck said.

For the past nine years, Russell Beck has been advising various members of the Massachusetts Legislature (primarily Senator Will Brownsberger and Representative Lori Ehrlich) and he has been the lead drafter of their noncompete bills. Most of the language in the current noncompete law is language that Russell Beck drafted or is based on language that he drafted, though a number of the provisions (such as garden leave) were added by others or significantly modified by others.

For up-to-the-minute analysis of legal issues concerning non-compete 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; it includes:

  • Over twenty two years of 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 (5th ed., MCLE, Inc. 2015), used by other lawyers to help them with their noncompete cases
  • 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 administrating the award-winning blog, Fair Competition Law
  • Establishing and administrating the Noncompete Lawyers and Trade Secret Protection groups on LinkedIn, with over 1,600 members 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 2017 Chambers USA Guide, which stated, “‘Excellent attorney‘ Russell Beck of Beck Reed Riden LLP is a ‘terrific noncompete specialist,’ according to industry commentators. He is a skilled litigator with experience representing clients ranging from individuals to large corporations at both trial and appellate levels.”

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience at large law firms, working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and labor 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 CEO Connection Mid-Market Convention

On September 24, 2018, Russell Beck spoke on a panel at the CEO Connection Mid-Market Convention in Philadelphia titled “Cyber-Security and Protecting Your Trade Secrets.” The presentation focused on best practices for protecting trade secrets and mitigating losses in the event of misappropriation or cyberattack.

According to the CEO Connection, the Mid-Market Convention is the premier annual gathering of mid-market CEOs. The event, held at the Wharton School of the University of Pennsylvania, brings together prominent leaders from diverse industries, along with select government officials, prominent academic figures, subject matter experts and media personalities for a three-day program designed to benefit their companies, the mid-market and the greater society.

The other panelists for the cybersecurity presentation were:

  • Special Agent Benjamin R.P. Stone with the FBI’s Philadelphia Field Office
  • Daimon Geopfert – Principal, National Leader of Security and Privacy Risk Consulting, RSM US LLP
  • Jim Vaughn, Managing Director for iDiscovery Solutions, Inc.

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; it includes:

  • Over twenty two years of 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 (5th ed., MCLE, Inc. 2015), used by other lawyers to help them with their noncompete cases
  • 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 administrating the award-winning blog, Fair Competition Law
  • Establishing and administrating the Noncompete Lawyers and Trade Secret Protection groups on LinkedIn, with over 1,600 members 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 2017 Chambers USA Guide, which stated, “‘Excellent attorney‘ Russell Beck of Beck Reed Riden LLP is a ‘terrific noncompete specialist,’ according to industry commentators. He is a skilled litigator with experience representing clients ranging from individuals to large corporations at both trial and appellate levels.”

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

Quick Guide to Massachusetts Noncompete Law

On August 10, 2018, Governor Charlie Baker signed into law a bill governing noncompetition agreements. The new law, G.L. c. 149, S. 24L, is officially titled the “Massachusetts Noncompetition Agreement Act.”

This guide discusses the new law and provides helpful practice tips for employers.

FAQs

  1. Does the new law apply to all restrictive covenants?
  2. What workers can and cannot be covered by noncompetes under the new law?
  3. Are independent contractors covered by the law?
  4. When may an employer provide a noncompete to a new hire?
  5. When may an employer provide a noncompete to a current employee?
  6. Is there any specific language that must be included in the agreement?
  7. What consideration must the employer provide in order to support a noncompete?
  8. Does the new law place any limits on the duration, geographic reach, or scope of enforceable noncompetes?
  9. Does the law change Massachusetts’ status as a permissive “reformation state”?
  10. Can employers contract around the new law using choice of law and choice of venue provisions?

Answers & Discussion

1. Does the new law apply to all restrictive covenants?

No. The new noncompete law only applies to noncompete agreements (including forfeiture for competition agreements) entered into in the employment context on or after October 1, 2018.

The law does not apply to:

  • nonsolicitation agreements
  • no-hire agreements
  • noncompete agreements made with owners in connection with the sale of a business
  • forfeiture agreements
  • nondisclosure or confidentiality agreements
  • invention assignment agreements
  • garden leave clauses
  • noncompetes made in connection with the separation of employment, if the employee is given seven (7) business days to rescind acceptance
  • agreements by which the employee agrees not to reapply for employment after termination
  • any agreement entered into before October 1, 2018

Common law will continue to govern those agreements.

Statutory referenceG.L. c. 149, S. 24L(a).

Practice Tip

As referenced above, the new law does not apply to noncompete agreements made by owners in connection with the sale of a business. The law does this by defining noncompetition agreements to exclude:

“noncompetition agreements made in connection with the sale of a business entity or substantially all of the operating assets of a business entity or partnership, or otherwise disposing of the ownership interest of a business entity or partnership, or division or subsidiary thereof, when the party restricted by the noncompetition agreement is a significant owner of, or member or partner in, the business entity who will receive significant consideration or benefit from the sale or disposal[.]”


An employer entering into a noncompete agreement with an employee in connection with a sale of business should carefully and expressly tie the noncompete to the sale transaction (not the employment relationship) if it wants to avoid the requirements and restrictions imposed by the new law, including its 12-month cap on noncompetes.

2. What workers can and cannot be covered by noncompetes under the new law?

The new law expressly states that noncompetes shall not be enforceable against the following types of workers:

  • employees who are classified as nonexempt under the Fair Labor Standards Act
  • undergraduate or graduate students working in an internship or are otherwise in a short-term employment relationship with the employer
  • employees who have been terminated without cause or laid off
  • employees who are 18 or younger

An agreement containing an unenforceable noncompete may be enforceable as to its other terms.

In addition, a court may impose noncompete restraints on any protected worker (listed above) through preliminary or permanent injunctive relief or otherwise as a remedy for a breach of another agreement or statutory or common law duty.

Statutory referenceG.L. c. 149, S. 24L(c).

Practice Tips

Public policy considerations as to protected workers: Although the law applies only to noncompete agreements entered into on or after October 1, 2018, it may affect courts’ willingness to enforce noncompetes against low-wage earners and other protected workers as a matter of public policy. Employers should consider possible public policy arguments when deciding whether to litigate their existing noncompetes against these types of workers.

Springing noncompetes as a judicial remedy: The law permits courts to impose noncompete restrictions against protected workers who have breached their other contractual, statutory, or common law duties. Employers should therefore consider including language in their employment agreements that expressly provides for the judicial remedy of a noncompete in the event of a breach of the employee’s other restrictive covenants (e.g., nonsolicitation, no-hire, and nondisclosure agreements).

Layoffs and other terminations not “for cause”: With respect to layoffs and other terminations not “for cause,” employers may elect to include noncompetes in their severance agreements (in which case they will likely have to negotiate a severance payment). In this case, the employer may avoid application of the noncompete law by providing the employee with seven (7) days to rescind acceptance of the noncompete (in which case, common law will apply).

3. Are independent contractors covered by the law?

Yes, the law defines “employee” to include independent contractors.

Statutory referenceG.L. c. 149, S. 24L(a).

Practice Tip

Because of the expansive application to independent contractors, workers should review any form service contracts that include noncompetes.

4.When may an employer provide a noncompete to a new hire?

With respect to new hires, an employer must provide the noncompete at the earlier of either: (a) at or before the time of a formal offer or (b) 10 business days before the commencement of employment.

Statutory referenceG.L. c. 149, S. 24L(b)(i).

5. When may an employer provide a noncompete to a current employee?

With respect to current employees (not in the context of a separation of employment), an employer must provide 10 business days’ notice before the agreement is to be effective.  Additionally, the new noncompete must be supported by “fair and reasonable consideration independent from the continuation of employment[.]”

Statutory referenceG.L. c. 149, S. 24L(b)(ii).

6. Is there any specific language that must be included in the agreement?

The new law sets forth some specific requirements for a noncompete agreement:

    • The agreement must be in writing
    • It must be signed by both the employer and employee
    • The agreement must expressly state that the employee has the right to consult with counsel prior to signing

 

Statutory referenceG.L. c. 149, S. 24L(b)(i)&(ii).

7. What consideration must the employer provide in order to support a noncompete?

The law states that noncompetes shall be supported by garden leave (continued salary payment during the noncompete period) orother mutually-agreed upon consideration between the employer and the employee, provided that such consideration is specified in the noncompetition agreement.”

The law is silent as to what constitutes “mutually-agreed upon consideration between the employer and employee.”

For employers that choose the garden leave option, the law specifies that garden leave: (a) must be paid on a pro-rata basis for the duration of the noncompete period; (b) must comprise at least 50 percent of the employee’s highest annualized base salary paid by the employer during the last two years of the employee’s employment; and (c) may not be unilaterally discontinued by the employer absent a breach by the employee. Additionally, the law provides that, in the event the restricted period is extended because the employee has breached his or her fiduciary duty to the employer or unlawfully taken the employer’s property, the employer is not required to pay garden leave during the extension of the restricted period.

With respect to noncompetes executed during the course of employment (after hire), the law requires that the noncompete be supported by “fair and reasonable consideration independent from the continuation of employment.” The law, however, is silent as to what “fair and reasonable” means.

Statutory referenceG.L. c. 149, S. 24L(b)(ii)&(vii).

Practitioner’s Note

Because the law is silent as to what (besides garden leave) would be sufficient to support a noncompete, the issue is poised to become a hot-button topic in litigation.

For current employees, continued employment, alone, is no longer sufficient to support a noncompete. What is “fair and reasonable,” however, is open for interpretation by the courts. For now, employers should consider expressly pairing their noncompetes with a promotion or some other benefit (e.g., a bonus) for current employees.

With respect to new hires, there is some ambiguity in the statute as to what comprises consideration to support a noncompete. Noncompete agreements for new hires should expressly state that the employee’s employment and the benefits that come with employment (i.e., compensation, bonus(es), stock options, receipt of employer’s trade secrets) are made in consideration for the employee’s noncompete. Employers might also consider expressly pairing the noncompete with a sign-on bonus.

8. Does the new law place any limits on the duration, geographic reach, and scope of enforceable noncompetes?

Yes. The new law places a 12-month cap on noncompetes (subject to an extension up to one year to address instances in which the employee has breached his or her fiduciary duty to the employer or unlawfully taken the employer’s property).

The law also creates a presumption of reasonableness for noncompetes that: (a) are limited to only the geographic areas in which the employee, during the last two years of employment, provided services or had a material presence or influence; and (b) are limited to the specific types of services provided by the employee during the last two years of employment.

Additionally, as it was under the common law, noncompetes must be no broader than necessary to protect the employer’s legitimate business interests (trade secrets, confidential information, and goodwill). The law creates a presumption of necessity where the legitimate business interests at stake cannot be adequately protected through an alternative restrictive covenant.

Statutory referenceG.L. c. 149, S. 24L(b)(iii)-(vi).

Practitioner’s Note

Aside from imposing a 12-month cap, the law does not substantially change common law requirement that noncompetes must be reasonable in duration, geography, and scope.

9. Does the law change Massachusetts’ status as a permissive “reformation state?”

No. The law expressly preserves courts’ ability to, in their discretion, “reform or otherwise revise a noncompetition agreement so as to render it valid and enforceable to the extent necessary to protect the applicable legitimate business interests.”

Statutory referenceG.L. c. 149, S. 24L(d).

10. Can employers contract around the new law using choice of law and choice of venue provisions?

No. The new law specifically limits the ability of employers to restrict the application of the new law by using more favorable choice of law or choice of venue provisions. The law states:

No choice of law provision that would have the effect of avoiding the requirements of this section will be enforceable if the employee is, and has been for at least 30 days immediately preceding his or her cessation of employment, a resident of or employed in Massachusetts at the time of his or her termination of employment.

All civil actions relating to employee noncompetition agreements subject to this section shall be brought in the county where the employee resides or, if mutually agreed upon by the employer and employee, in Suffolk county; provided that, in any such action brought in Suffolk county, the superior court or the business litigation session of the superior court shall have exclusive jurisdiction.

Statutory referenceG.L. c. 149, S. 24L(e)&(f).

For up-to-the-minute analysis of legal issues concerning non-compete 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 Noncompete Agreement Analysis Featured in The Boston Globe

Russell Beck was quoted by the The Boston Globe in a recent story about the brand new Massachusetts Noncompete Law, which was largely drafted by Attorney Beck. The story is titled “Five ways the state’s revised noncompete rules could affect you.” The article was written by Globe correspondent .

The story discusses various workplace scenarios that may be affected by the new statute.

In the article, Russell provides analysis of the following scenario:

A sales representative who signed a two-year noncompete this month decides to leave her job in November. She assumes the new law means that two-year noncompete agreements will no longer be enforced by Massachusetts courts. She waits one year and a day before joining a rival of her former employer.

Russell Beck, a partner at the Boston law firm Beck Reed Riden who helped draft the new legislation, says the sales person would still be at risk of being taken to court by the first employer. “I don’t think the new legislation will have any immediate impact on noncompetes entered into prior to Oct. 1.”

In another hypothetical scenario, Russell analyzes the application of the new noncompete law as follows:

A marketing consultant working for a new apparel company in Boston is not an employee, but an independent contractor billing the client at $100 per hour. Despite that, her client asks her to sign a noncompete agreement that will last for one year, and she does. The agreement says the client will pay her a $5,000 fee if it wants to enforce the noncompete. After three months of consulting, she decides to stop working for the company, it pays her $5,000, and asks her not to consult for other apparel companies for a year.

That’s probably acceptable under the new law, Beck says. While in the past independent contractors haven’t typically been asked to sign noncompetes, he says, the new legislation creates the possibility. “This almost suggests to employers, ‘Think about doing it — it’s available to you,’” he says.

For the past nine years, Russell Beck has been advising various members of the Massachusetts Legislature (primarily Senator Will Brownsberger and Representative Lori Ehrlich) and he was the lead drafter of their bills. Most of the language in the current noncompete law is language that Russell Beck drafted or is based on language that he drafted, though a number of the provisions (such as garden leave) were added by others or significantly modified by others.

For up-to-the-minute analysis of legal issues concerning non-compete 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; it includes:

  • Over twenty two years of 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 (5th ed., MCLE, Inc. 2015), used by other lawyers to help them with their noncompete cases
  • 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 administrating the award-winning blog, Fair Competition Law
  • Establishing and administrating the Noncompete Lawyers and Trade Secret Protection groups on LinkedIn, with over 1,600 members 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 2017 Chambers USA Guide, which stated, “‘Excellent attorney‘ Russell Beck of Beck Reed Riden LLP is a ‘terrific noncompete specialist,’ according to industry commentators. He is a skilled litigator with experience representing clients ranging from individuals to large corporations at both trial and appellate levels.”

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

Beck Reed Riden LLP Recommended By The Legal 500 United States

The Legal 500 - The Clients Guide to Law FirmsBeck Reed Riden LLP has been recognized by The Legal 500 United States 2018, an analysis of law firms based on surveys and interviews of more than 300,000 clients. The firm has been recommended in the category of “Intellectual property – Trade secrets (litigation and non-contentious matters).”

Russell Beck was specifically recommended in The Legal 500 United States 2018 editorial

The following is the independent editorial write up from The Legal 500 on the firm’s ranking:

A ‘highly sought-after gem of a firm’, Beck Reed Riden LLP in Boston is renowned for its restrictive covenants expertise and ‘does not shy away from a court fight in order to enforce clients’ rights’. ‘Terrific’ practice head and ‘top-notch strategist’ Russell Beck (who is also ‘extremely effective and incredibly professional, with deep substantive knowledge’) led a team . . . representing Nuvectra Corporation against unfair competition and trade secrets misappropriation claims filed by Boston Scientific.

Russell Beck is a business and intellectual property litigator, nationally recognized for his trade secrets and noncompete experience. He’s been cited as an expert on trade secrets and noncompetes by The New York Times, The Wall Street Journal, the White House, the Treasury Department, National Public Radio, PBS, the BBC World News Service, and many others, and was invited to the White House to help develop guidelines for the proper use of noncompetes.

The Legal 500 is the world’s largest legal referral guide with over 4 million visitors in the last 12 months.

The Legal 500 US provides impartial, third-party opinions on leading lawyers and law firms across the country. The Legal 500 relies upon a sophisticated methodology to determine which firms and attorneys are included in its list.

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

Beck Reed Riden LLP is among the leading authorities in trade secret, noncompete, and unfair competition law. 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.

Massachusetts Raises Minimum Wage in “Grand Bargain”

On June 28, 2018, Massachusetts Governor Charlie Baker signed into law the “Grand Bargain” bill, that, over the next five years, will gradually raise the minimum wage to $15.00 per hour, require paid family and medical leave for Massachusetts employees, and phase-out Sunday and holiday time-and-a half pay for certain retail employees.

Minimum Wage Increase

The first minimum wage increase will take effect on January 1, 2019, at which time the minimum wage will increase from its current rate of $11.00 per hour to $12.00 per hour.  Thereafter, it will increase by 75 cents on January 1st of each year until it reaches $15.00 per hour in 2023.  Over the same five-year period, the minimum cash wage applicable to tipped workers will increase from $3.75 per hour to $6.75 per hour, with the rate of pay increasing by 60 cents each January 1st from 2019 to 2023.

Paid Family and Medical Leave

The new law also establishes one of the most generous family and medical leave programs in the nation, which will be phased in over several years.  While administrative regulations from a newly-created state agency, the Department of Family and Medical Leave, will be forthcoming and will provide more specific guidance to employers with regard to implementation of the law and obligations regarding family and medical leave, the key provisions are evident.

Effective July 1, 2019, employers must post a notice of benefits available under the act and provide employees with a similar written notice of the benefits within 30 days of the employee’s date of hire.  As of July 1, 2019, employers will also start contributing to the Family and Employment Security Trust Fund, which will fund the leave program, at a contribution rate of 0.63 % of each employee’s wages, which is subject to annual adjustment.  Employers may require employees to pay a portion of the contributions.  Employers with fewer than 25 employees in Massachusetts are not required to pay the employer share of the contributions.

Effective January 1, 2021, eligible employees will be able to take up to 12 weeks of paid family leave per benefit year and up to 20 weeks of paid medical leave per benefit year, with a maximum of 26 total weeks of paid leave per benefit year.  Employees are eligible for medical leave if they have a serious health condition.  Employees are eligible for family leave:

  1. To care for a family member with a serious health condition;
  2. To bond with a child during the first 12 months after the child’s birth or placement for adoption or foster care; or
  3. To attend to exigent circumstances arising out of a family member’s active military duty or impending call to active military duty.

Note that if leave is taken to care for a family member with a serious illness arising out of military service, up to 26 weeks of leave may be taken in a benefit year.  Paid family or medical leave under the law will run concurrently with any leave available to the employee under the Family Medical Leave Act or the Massachusetts Parental Leave Act.

After a seven-day waiting period (during which an employee can use accrued sick or vacation time), the employee will be entitled to wage replacement from the Family and Employment Security Trust Fund equal to 80% of their wages, up to a maximum of 50% of the state average weekly wage, and 50% of their wages above that amount, up to a maximum of $850 per week or an adjusted amount that equals 64% of the state average weekly wage.

The law also includes a notable anti-retaliation provision.  Retaliation against employees for exercising their rights under the new law is prohibited.  Significantly, any negative change in the terms or conditions of employment that occurs during a leave or within six months of the leave creates a presumption of retaliation.  Employer can rebut this presumption only by clear and convincing evidence of a non-retaliatory and independent justification for the change.  The law also provides for a private right of action with a three-year statute of limitations.  Available remedies include reinstatement, payment of three times the employee’s lost wages and benefits, and reasonable attorneys’ fees and costs.

Gradual Elimination of Sunday Premium Pay

Currently, the Massachusetts “blue laws” require that most non-exempt employees who work in retail establishments must be paid time-and-a-half  on Sundays and certain holidays.  This requirement will be gradually phased out over the coming years.  On January 1, 2019, the premium rate will decrease to 1.4 times the regular rate of pay.  Thereafter, it will decrease by 0.1 each January 1, until it is eliminated altogether on January 1, 2023.

Next Steps

As a result of the “Grand Bargain,” Massachusetts employers will want to prepare for the wage adjustments to minimum wage and Sunday premium pay that begin to take effect on January 1, 2019 and will continue annually until 2023.  Although the law’s provisions regarding paid family and medical leave are not fully effective until 2021, regulatory guidance is expected in 2019 and certain provisions are effective in July 2019 as well.  Employers are well advised to review their current leave policies, explore and anticipate procedures and practices to meet the leave law requirements, and remain abreast of any forthcoming guidance and regulations.

eck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience at large law firms, working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and labor 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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