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8th Symposium on Non-Compete Agreements and Trade Secrets: 2016 Legislative Compromise or Defend Trade Secrets Act Preemption?

Monday, June 13, 2016 4:00 PM to 6:30 PM
Boston Bar Association - 16 Beacon Street, Boston, MA


Since 2009 BBA has hosted this symposium bringing together drafters, sponsors, supporters and critics of state bills to reform the use of employee non-compete agreements (ENCAs) and, separately, alternatively or complementarily, to enact the Uniform Trade Secrets Act (UTSA) adopted by 48 other States.

Last session, the Massachusetts Senate overwhelmingly approved a BBA-tweaked UTSA, as part of a bill that also included what was intended as a compromise mechanism to discourage overreaching ENCAs.  That measure failed to get through the House.  However, on March 2, 2016, House Speaker Robert DeLeo announced that he would support certain limitations of ENCA enforcement, which are expected to be negotiated in these final months of the current session. On May 19, the Joint Committee on Labor and Workforce Development reported out a redraft, H. 4323 .

Meanwhile, Congress voted in April nearly unanimously (Senate 87-0, House 410-2, signed May 11) to enact the Defend Trade Secrets Act of 2016 (“DTSA”), creating a federal private right of action for UTSA “misappropriation” of Economic Espionage Act “trade secrets” that are “related to a product or service used in, or intended for use, in interstate or foreign commerce.”

DTSA embraces “employee mobility” (a la California) as a federal policy, and injunctions under it expressly may not:

  • prevent a person from entering into an employment relationship, and that conditions placed on such employment shall be based on evidence of threatened misappropriation and not merely on the information the person knows; or
  • otherwise conflict with an applicable State law prohibiting restraints on the practice of a lawful profession, trade, or business.

We will explore the possible preemptive effects of DTSA on Massachusetts law and possible responses, including whether suits against misappropriation of trade secrets not currently used or merely threatened (e.g., “inevitable disclosure”), rejected by some Massachusetts courts under the 1939 Restatement of Torts formulation, should be enabled by enactment of the UTSA.


BBA Members: FREE
Non-Members: $50

Sponsoring Section/Committee(s):




Cassandra Shavney


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