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. http://www.mass.gov/legis/bills/house/186/ht01pdf/ht01794.pdf
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. http://www.mass.gov/legis/bills/house/186/ht01pdf/ht01799.pdf
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. http://www.mass.gov/legis/bills/house/186/ht00pdf/ht00329.pdf
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
http://www.boston.com/business/articles/2009/06/21/start_ups_stifled_by_noncompetes/