Russell Beck and Hannah Joseph’s article about the doctrine of inevitable disclosure was recently published by the Boston Bar Journal.
Their article, titled “The Inevitable Disclosure Doctrine In Employment Litigation: Two Perspectives” explores the reasons for and against adopting the inevitable disclosure doctrine in Massachusetts. The article is written in a point / counterpoint format, with Russell and Hannah taking the side that the inevitable disclosure doctrine should be adopted in Massachusetts, and Josh Davis and Andrew O’Connor of Goulston & Storrs in Boston writing for the view that the doctrine should not be adopted.
By way of background, as described in the article’s introduction, the inevitable disclosure doctrine can be summarized as follows:
Where an employee’s work for a new employer substantially overlaps with work for a former employer, based on the same role, industry, and geographic region, a court may conclude that the employee would likely use confidential information to the former employer’s detriment. The doctrine allows the court to enjoin a former employee from working at a competitor of the employer, even if the former employee never entered into a non-competition agreement, if the court finds that such employment would inevitably lead to a disclosure of the trade secret.
In the article, Russell and Hannah provide in-depth analysis of the inevitable disclosure doctrine (IDD), and explain how it ties into other methods of protecting trade secrets:
Prior to October 1, 2018, no Massachusetts appellate court had embraced or rejected the IDD. However, when Massachusetts enacted the Massachusetts Uniform Trade Secrets Act, G.L. c. 93, §§ 42–42G (“MUTSA”) in 2018, it “most likely” adopted the IDD.
It is well-settled that an employee may not go from one company to another and use the former company’s trade secrets for the benefit of new company. Accordingly, the IDD “is really just a common sense response to a common dilemma: an employee who leaves to join a competitor can be tempted to gain an unfair head start by drawing upon proprietary information belonging to a past employer, and once the secret is disclosed, it may be forever lost.” While we know that employees do not come to their jobs with a “tabula rasa” (a clean slate), we also do not allow them to bring and use others’ trade secrets
The IDD appropriately balances the interests in protecting companies’ trade secrets against employees’ job mobility. Absent employee misconduct, mobility will rarely be impacted.
The Boston Bar Journal is a peer-reviewed, online publication of the Boston Bar Association. It presents timely information, analysis, and opinions to more than 10,000 lawyers in nearly every practice area. The Boston Bar Journal is governed by a volunteer Board of Editors dedicated to publishing outstanding articles that reflect their authors’ independent thought.
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.”
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