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A Symposium on Bills Affecting Employee Non-Compete Agreements

Wednesday, July 22, 2009 4:00 PM to 6:00 PM
Boston Bar Association - 16 Beacon Street, Boston, MA


Sponsored by Intellectual Property Section, Labor & Employment Law Section, and Litigation Section

Freedom To Compete? A Symposium on Bills Affecting Employee Non-Compete Agreements

Reception to follow

It is argued that employee non-compete agreements have chilled the spawning of new enterprises in Massachusetts compared to California where such agreements are generally unenforceable under a statute first enacted in 1872. It is countered that businesses large and small need these agreements enforced to protect their investments and that failure to do so will give rise to protracted trade secret litigation.

State Representative William N. Brownsberger, with 25 co-sponsors, filed H. 1794, which would institute a rule similar to the California statute.

State Representative Lori Ehrlich, with seven co-sponsors, filed H. 1799, which would require, among other things, establish minimum thresholds for the enforceability of noncompetes, including advance notice of noncompetes to new employees, and provide a presumption of enforceability where "garden leave" compensation is paid to certain employees restricted by non-competition agreements.

Under Anglo-American common law, servitudes were disfavored and non-competition agreements were enforceable only to protect goodwill in the sale of a business or trade secrets. Massachusetts has extended enforceability to protect "confidential information" that does not meet the restrictive requirements for a trade secret under the 1939 Restatement of Torts. The Massachusetts Uniform Law Commission filed H. 87, and State Representative Daniel E. Bosley and State Senator John A. Hart, Jr., filed H. 329, which would expand Massachusetts protection for trade secrets as more broadly defined under the Uniform Trade Secrets Act adopted by 45 other states and the District of Columbia.

Please join proponents of these bills and the alternative status quo in a discussion of law and policy:

William N. Brownsberger, Esq., Sponsor of H. 1794
Russell Beck, Esq., Foley & Lardner, LLP, Drafter of H. 1799
Stephen Y. Chow, Esq., Burns & Levinson LLP, Massachusetts Uniform Law Commission, Drafter of H. 87, Symposium organizer
Michael L. Rosen, Esq., Foley Hoag LLP, Author of the Massachusetts Noncompete Law Blog, Speaking for the status quo
Hon. Gordon L. Doerfer (Ret.), JAMS, Moderator
Dr. Matthew Marx, MIT Sloan School, Investigator on longitudinal study of electrical engineer parties to non-compete agreements

We will also be joined by Mr. Scott Kirsner, "Innovation Economy" columnist, Boston Globe, who recently wrote on this issue. See



Christine Cheung


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