Stephen Riden Analyzes Appeals Court Decision in Massachusetts Lawyers Weekly

A recent issue of Massachusetts Lawyers Weekly features discussion with Steve Riden in an article titled “Investor’s suit against foreign bank revived.”

The article covers a decision by the Massachusetts Appeals Court concerning whether a foreign bank had sufficient ties with Massachusetts to be subject to suit within the Commonwealth. The decision was entered in the case titled Von Schönau-Riedweg, et al. v. Rothschild Bank AG.

The decision addresses the exercise of long-arm jurisdiction by a Massachusetts court over a Swiss bank based on the conduct of an advisor that acted as the bank’s agent.

In the article, Steve Riden is quoted as follows:

Attorneys said the decision, while not breaking new ground, is helpful.

“It provides a good road map for any practitioner interested in the status of agency law in Massachusetts,” said Stephen D. Riden, co-chairman of the Boston Bar Association’s Business and Commercial Litigation Section.

***

Riden also noted the Appeals Court’s “back to basics” approach in looking at “elemental hallmarks” of the existence of an agency-principal relationship, such as the advisor’s use of the bank’s business cards, stationery and email system.

“If you are a putting together an affidavit, you should be looking for things like that,” Riden said.

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

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 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 Massachusetts Lawyer Weekly on Noncompetes for Lawyers

A recent issue of Massachusetts Lawyers Weekly features Russell Beck in an article titled “Ethical rule fails to free attorney from noncompete.”

The article covers a decision by the Business Litigation Session of the Massachusetts Superior Court that the rules of professional conduct governing the practice of law do not excuse an attorney from complying with the restrictive covenants he had agreed to when he sold his business, as the business was not engaged in the practice of law. The decision was entered in the case titled The Advocator Group, LLC, et al. v. Arruda.  The article was written by Massachusetts Lawyers Weekly reporter Kris Olson.

Massachusetts Lawyers WeeklyIn the article, Russell Beck is quoted as follows:

Boston lawyer Russell Beck said Arruda further defines the contours of Rule 5.6, which, despite a common misperception, does not prohibit all lawyer non-competition agreements.

Though the rule restricts lawyer noncompetes to a significant degree, the SJC has made clear the rule does not mean that the mere fact someone is a lawyer exempts that person from abiding by such clauses, Beck said.

By Beck’s count, there are at least five exceptions to the general proposition that lawyers cannot by bound by noncompetes. Those include an express agreement for a retirement benefit, the sale of a law practice, and a straight forfeiture agreement like the one at issue in the 1997 SJC case Pettingell v. Morrison, Mahoney & Miller, which Kaplan cited.

The exceptions also include an agreement requiring some payment to a lawyer’s soon-to-be-former firm because the lawyer’s departure jeopardizes the survival of the firm, Beck said.

Arruda fits into the fifth category, which permits non-competition agreements to the extent they apply to work other than in the capacity of a lawyer.

“Narrow restrictions that do not implicate the practice of law will be enforceable, even as applied to a lawyer,” Beck said. “That goes for in-house counsel as well.”

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; 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 2019 Chambers USA Guide, which stated that Russell Beck is a “terrific” attorney, who “is an excellent choice of counsel regarding noncompete agreements and the resolution of restrictive covenant disputes.” 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 at large law firms, 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 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.

Stephen Riden Quoted in Massachusetts Lawyers Weekly

A recent issue of Massachusetts Lawyers Weekly features Stephen Riden in an article titled “Cost of lawyer’s fraud falls on client, not third party.”

The article covers a decision by the Massachusetts Superior Court in Middlesex County concerning the impact of fraudulent conduct by an attorney, and which party must shoulder the burden of the attorney’s misdeeds. The decision was entered in the case titled Artin Service Station, Inc. v. Mitri, Lawyers Weekly No. 12-088-17. 

In the decision, the Middlesex Superior Court explained that attorney for the plaintiff Artin Service Station pocketed settlement proceeds that were supposed to be paid to a third party.  The court ruled that, even though both Artin Service Station and the third party were victims of the lawyer’s misconduct, Artin Service Station had to bear the loss.

The court reasoned that “[t]his result is plainly unsatisfying to Artin, which is a victim of its agent attorney. There is likely little comfort in the fact that Artin’s claims against the disbarred wrongdoer, Levintoff, are compelling. But where neither the principal nor the third person did anything wrong, and both are victims of Levintoff’s wrongdoing, the law requires the principal to bear the risk.”

In the article, Steve Riden is quoted as follows:

Boston attorney Stephen D. Riden said that the message from the decision is that companies and individuals shopping for legal representation need to do their homework and then monitor their lawyer’s activities.

He added that the cautionary tale extends to employers who use “agents,” i.e., their employees, whose wrongful conduct could bind and harm them.

The decision went the right way from a practical perspective, Riden said. If the decision had imposed a duty to investigate possible fraudulent conduct by an agent, it would “inject a huge amount of uncertainty into every business transaction,” potentially bringing those dealings to a halt.

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

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 Quoted in Massachusetts Lawyers Weekly

Russell Beck

A recent issue of Massachusetts Lawyers Weekly features Russell Beck in an article titled “Company acquisition leads to non-compete confusion.”

The article covers a pair of decisions by the Business Litigation Session of the Massachusetts Superior Court concerning the enforcement of a noncompete agreement following the acquisition of the employer by another company.  The decision was entered in the case titled NetScout Systems, Inc. v. Hohenstein

In the article, Russell Beck is quoted as follows:

[T]he company may never have been dragged into court at all had it taken one simple step, according to Boston attorney Lee T. Gesmer.“The way you avoid this is to have the employee execute a new agreement at the time of acquisition,” he said.

However, doing so is “fraught with its own risk,” Boston attorney Russell Beck argued.“

Any time you ask a new employee in this context to sign a non-compete, there is possibility they reject the employment and the accompanying non-compete,” he said. “If that happens, depending on how the offer is made, the prior agreement may or may not be enforceable.”

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

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. Recently, 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 sixteen years of working on trade secret, noncompete, and unfair competition matters

  • 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 750 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 2016 Chambers USA Guide, which explained that “Russell Beck of Beck Reed Riden LLP is highly praised by peers, who commend his “impeccable credentials,” in the employment arena, and identify him as an “expert in noncompetition and trade secret laws.”

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 on Noncompete Agreements in Lawyers Weekly

Russell BeckThe June 27, 2016, issue of Massachusetts Lawyers Weekly features Russell Beck in an article titled “Action on non-competes eyed before session’s end.”

The article covers the 8th annual Boston Bar Association symposium on non-compete agreements and trade secrets. Russell Beck was a speaker on the panel, which featured “drafters, sponsors, supporters and critics of state bills to reform the use of employee non-compete agreements.”

Massachusetts Lawyers WeeklyThe article discusses legislation pending in the Massachusetts State Legislature that would reform the use and enforcement of non-compete agreements. One controversial aspect of the pending legislation is the so-called “Garden Leave” clause, which would require employers to pay half the salary of employees for the duration of their noncompete period after they leave.

In the article, Russell Beck addresses the proposed Garden Leave provision as follows:

One argument against the garden-leave provision, according to Boston attorney Russell Beck, is that the employee has already been compensated for accepting his non-compete, making additional consideration, post-employment, unnecessary or unjust.

It also has been argued that garden leave “would significantly adversely disadvantage small companies, who can’t afford to pay somebody not to work,” he added.

The current legislation also contains a provision that would prevent enforcement of noncompete agreements against employees who have been terminated without cause or laid off. In the article, Russell Beck is quoted as follows on this provision:

However, Beck noted that, as a practical matter, companies typically do not seek to enforce non-competes against such employees, relying instead on non-disclosure or non-solicitation agreements to protect their interests.

Another provision evoking mixed feelings is the proposed elimination of the practice of allowing judges to “red-line” overbroad non-compete agreements. The theory is that it will incentivize companies to tailor their non-compete agreements more narrowly from the outset.

“It moves the needle and makes a company focus more on bringing the language in line with what the law requires,” Beck said, adding that employees gain the “significant benefit” of receiving clear notice about what they are restricted from doing.

Separate from the noncompete aspects of the pending Massachusetts legislation, if passed, the bill will adopt the Uniform Trade Secrets Act. The article addresses the uncertainty about the new trade secrets law, with some saying that it would make it harder to obtain triple damages and attorneys’ fees in trade secret misappropriation cases. The article quotes Russell Beck on this topic as follows:

Others are not sure the bar will be raised much, however. For one thing, there are cases on both sides of the issue of whether 93A even applies to a departing employee who misappropriates trade secrets, Beck said.

The controlling authority, the Appeals Court case Specialized Technology Resources, Inc. v. JPS Elastomerics Corp., answers that question in the affirmative. However, Superior Court Business Litigation Session Judge Janet L. Sanders suggested that Specialized Technology was wrongly decided in her decision in The Gillette Company v. Craig Provost et al. late last year.

But presuming that 93A does apply in that context, Beck thinks the same conduct that would have established a valid 93A claim will meet the UTSA’s “willful and malicious” standard.

The article was written by Massachusetts Lawyers Weekly news reporter Kris Olson.

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.

Beck Reed Riden LLPBLF 2014_Silver_Generalis 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. Recently, 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 sixteen years of working on trade secret, noncompete, and unfair competition matters

  • 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 750 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 2014 Chambers USA Guide, which explained that “Russell Beck of Beck Reed Riden LLP specializes in noncompete litigation and is a trade secrets expert. He comes highly recommended by his peers for his nationwide practice in this niche. ‘He’s fantastic,’ sources say.”

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.

Hannah Joseph Featured in Massachusetts Lawyers Weekly

Screen Shot 2016-03-09 at 9.32.09 AMScreen Shot 2016-03-09 at 9.33.24 AMA recent edition of Massachusetts Lawyers Weekly features Hannah Joseph in a story titled “Small-firm associates band together to create group of ‘colleagues’.”

The story is about the Boston Associates’ Networking Group (BANG), which was co-founded by Hannah and Jessica L. Conklin (of Laredo & Smith LLP).

Massachusetts Lawyers WeeklyThe article describes the idea behind BANG and quotes Hannah as follows:

It all started with a humor column in a bar association publication about ways to relax while waiting for bar exam results. The piece resonated with Jessica L. Conklin, so she decided to invite the author, Hannah T. Joseph, a fellow Boston College Law School alum, to coffee.

Before the two Boston associates knew it, they were bonding over their shared experience of working at a boutique law firm, both grateful for the variety of work and opportunity for informal interactions with partners.

But they also lamented that their big-firm peers had a benefit unavailable to them: a ready-made group of other associates with whom to discuss legal issues and form social ties.

So Conklin and Joseph decided to replicate the connection they had made with each other on a larger scale. Earlier this year, they formally launched the Boston Associates’ Networking Group — or BANG — for associates at small and midsize firms and in-house legal departments.

“When you’re in a room or on a floor with 15 to 20 other associates, there’s a word-of-mouth information exchange that happens naturally. We’re trying to re-create that,” says Joseph, who practices at Beck, Reed, Riden.

The article notes BANG’s growth and connection to the Boston legal community:

The group, which now includes some three dozen members from about 30 firms and companies, meets for a monthly lunch sponsored by one of the members’ firms. The willingness of those firms to host BANG “speaks volumes” about their support, according to Joseph.

“They realize that an important part of practicing law in Boston is engaging in the legal community,” she says.

The article is by Massachusetts Lawyers Weekly’s reporter, Sheri Qualters.

You can visit BANG’s website at www.bang-law.com.

BLF 2014_Silver_GeneralBeck 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 Massachusetts Lawyers Weekly

Russell BeckThe February 11, 2016, issue of Massachusetts Lawyers Weekly features Russell Beck in an article titled “In-house lawyer’s advice to competitor not barred.”

The article covers a decision by the Business Litigation Session of the Massachusetts Superior Court that an in-house lawyer could not be barred from offering advice to his new employer without evidence that the advice would breach his ethical duty to his former employer. The decision was entered in the case titled The Gillette Company v. Craig Provost, et al.Massachusetts Lawyers Weekly

In the article, Russell Beck is quoted as follows:

Russell Beck, a Boston lawyer who focuses on trade secrets and noncompete litigation, said Sanders’ ruling is one of the rare instances in which a judge delved into the circumstances under which an in-house counsel can advise a former employer’s competitor.

“It provides a little additional clarity in an area in which there have been very few cases,” Beck said.

Beck said it was significant that Sanders rejected Gillette’s inevitable disclosure argument that the in-house lawyer could not help but rely on Gillette’s confidential information when advising ShaveLogic. There is no Massachusetts appellate court ruling that affirmatively adopts or rejects the inevitable disclosure doctrine as a substitute for a noncompete agreement, and trial courts have been wrestling with the issue, according to Beck.

“As in most of the cases, the court found there would not have been a need to restrict the employee — in this case the lawyer,” Beck said.

The passage of time was another major factor in Sanders’ analysis, Beck said. The defendant left Gillette in 2006 and began working for ShaveLogic six years later.

“That’s an important thing for people to remember when considering the risk imposed by a lawyer, or any employee moving from one company to another,” he said.

The article is by Massachusetts Lawyers Weekly’s reporter, Sheri Qualters.

Beck Reed Riden LLPBLF 2014_Silver_Generalis 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.

Russell Beck’s work in this area is well recognized; it includes:

  • Over sixteen years of working on trade secret, noncompete, and unfair competition matters

  • 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 750 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 2014 Chambers USA Guide, which explained that “Russell Beck of Beck Reed Riden LLP specializes in noncompete litigation and is a trade secrets expert. He comes highly recommended by his peers for his nationwide practice in this niche. ‘He’s fantastic,’ sources say.”

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 Quoted in Massachusetts Lawyers Weekly

Russell BeckThe January 12, 2015, issue of Massachusetts Lawyers Weekly features Russell Beck in an article titled “Trade-secret plaintiff can’t audit all of rival’s computers.” Massachusetts Lawyers Weekly

The article covers a decision by the Massachusetts Superior Court that a company was not required to give an opposing party forensic access to all of its computers following allegations that its employee misappropriated trade secrets. The case is titled InVivo Therapeutic Corporation v. PixarBio Corporation.

In the article, Russell Beck is quoted as follows:

Boston attorney Russell Beck, another trade-secret expert, said the decision serves as a reminder that “the sins of the father cannot be visited on the children.”

In other words, Beck said, the mere fact that a departing employee has indisputably stolen trade secrets does not automatically mean that the new employer is equally, or even partially, culpable. Accordingly, a court is going to analyze the employer’s blameworthiness before ordering it to submit to a wholesale forensic investigation by the plaintiff’s expert.

“All too often, we forget that having a smoking gun as to one defendant does not necessarily justify tarnishing the other defendants with the same brush,” the Beck, Reed Riden partner said.

The article is by Massachusetts Lawyers Weekly’s reporter, Eric T. Berkman.

Beck Reed Riden LLPis among the leading2015_BLF_Silver_Standard 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.

Russell Beck’s work in this area is well recognized; it includes:

  • Over sixteen years of working on trade secret, noncompete, and unfair competition matters
  • Authoring the book Negotiating, Drafting, and Enforcing Noncompetition Agreements and Related Restrictive Covenants (4th ed., MCLE, Inc. 2010), used by other lawyers to help them with their noncompete cases
  • Drafting and advising on the current bill pending before 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 750 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 2014 Chambers USA Guide, which explained that “Russell Beck of Beck Reed Riden LLP specializes in noncompete litigation and is a trade secrets expert. He comes highly recommended by his peers for his nationwide practice in this niche. ‘He’s fantastic,’ sources say.”

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.

 

What if noncompete agreements are eliminated in Massachusetts?

Russell BeckThe current issue of Massachusetts Lawyers Weekly features Russell Beck’s article about potential changes to the landscape of noncompete agreements in Massachusetts. The article is called “What to do if non-competes are eliminated in Massachusetts.” Russell Beck’s articlMassachusetts Lawyers Weeklye, which appears below, can also be found on Russell’s blog, Fair Competition Law.

 

The Patrick administration has spent a great deal of time putting together comprehensive legislation designed to promote growth and opportunity in Massachusetts. Of particular note is the proposal to adopt a version of the Uniform Trade Secrets Act coupled with a California-like ban of employee non-competes.

In the interest of full disclosure, I have been working with the administration (in particular, the Office of Housing and Economic Development) on the language of Section 53, the relevant section of the bill, and with other lawmakers at the State House on other versions as well. However, I view my role purely as an advisor on the drafting to accomplish the particular policy, not on what that policy should be.

If the Patrick administration’s version is the one that succeeds, the obvious question is: What should companies do to protect their legitimate business interests without non-competes?

There are a number of steps that should be taken, many of which companies have been taking all along, though perhaps not as vigilantly as they will need to going forward.

Here are the five key steps:

FIRSTand foremost is to review all existing restrictive covenant, employee and independent contractor agreements. If the bill is adopted in its current form, the language states that it will apply to existing agreements — and not just agreements with employees, but with independent contractors as well.

That means that existing agreements are not immune and may need to be changed. If they include well-drafted non-solicitation State house strt(of customers), no-raid (of employees), and confidentiality provisions, it is possible they can be left intact, recognizing that the non-compete provision will simply be unenforceable.

However, if those other protections are missing, too limited or simply not well-drafted, they will need to be revised. If they need to be revised, the employer should consider the best timing and method to do so in order to avoid running afoul of arguments concerning notice, equity/fairness and consideration.

SECONDand equally important, proper safeguards must be in place to protect company trade secrets (which in Massachusetts include confidential information and can cover anything from the secret formula to Coke to customer lists) from the risk of misappropriation in the first place.

Accordingly, a trade secrets protection plan (sometimes called a “trade secrets audit”) will be more important now than ever before. Key elements are steps to lock down information, education of employees and others with access to trade secrets, and plans for responding to a possible misappropriation.

Instituting a proper trade secrets protection plan does not guarantee confidential information will never be misappropriated or that the employer cannot still sue if it is. (Seventy-five percent of employees admit to taking company information.) But, a proper trade secrets protection plan should help limit the number of times an employer will need to resort to litigation, while simultaneously increasing the likelihood of obtaining injunctive relief through litigation.

Note that trade secrets litigation is more costly than non-compete litigation, because there is no bright line to rely on for purposes of getting quick injunctive relief. With non-compete litigation (assuming the agreement is enforceable), it is generally clear whether the obligation has been breached or not: Either the employee is at the competitor or he is not. With trade secrets litigation, the odds are much greater that discovery will be necessary to determine whether the employer’s information is, in fact, being used and how.

THIRDLike the prophylactic protections for trade secrets, safeguards should also be put in place to protect the company’s customer goodwill from the risk of misappropriation. The most obvious is non-solicitation agreements.But other steps should be taken as well. Those include having multiple points of contact with each customer when feasible, plans for securing the relationships upon an employee’s departure, and proper mechanisms for managing social media accounts and contacts.

Screen Shot 2014-04-22 at 4.06.01 PMThe protections available for retaining talent should not be forgotten. If an employer wants to limit departing employees from poaching the remaining employees, it must have proper no-raid (or no-hire) agreements (sometimes called non-solicitation agreements or no-poach agreements) in place.In addition, the employer should take steps to give employees reason to stay — and, separately, disincentives to leave. For example, forfeiture agreements (agreements that require the forfeiture of certain benefits or payments if the employee leaves) are one tool that should be considered.

FIFTHIf litigation is necessary, move quickly. Delay can be the biggest problem for companies in these cases. And, without the protections of non-compete agreements, delay can create even greater risks of loss of trade secrets, relationships or employees.

 

Beck 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 recently featured Beck Reed Riden LLP’s noncompete agreement experience.

Russell Beck’s work in this area is well recognized; it includes:

  • Over sixteen years of working on trade secret, noncompete, and unfair competition matters
  • Authoring the book Negotiating, Drafting, and Enforcing Noncompetition Agreements and Related Restrictive Covenants (4th ed., MCLE, Inc. 2010), used by other lawyers to help them with their noncompete cases
  • Drafting and advising on the current bill pending before 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 750 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 2013 Chambers USA Guide, which included Russell in its “Notable Practitioners” section, adding that “Russell Beck of Beck Reed Riden LLP is respected by commentators for his skills as a litigator. His areas of specialty include noncompete and trade secrets matters.”

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.

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