Opinion from @Proskauer Rose: Urges More Consistency in Non-Competes. Federalization?

@Proskauer Rose Attorney Steve Kayman and Judicial Law Clerk Lauren Davis published this opinion piece on Law 360 to all of whom we acknowledge their copyright protection. http://tinyurl.com/yaaonlmd  “A Call for Nationwide Consistency on Noncompetes” rightly urges for more consistency in the construction and application of laws on Restrictive Covenants and Non-Competes in employment agreements and in the workplace. The authors correctly point out the difficulty that lawyers have in advising corporations, particularly large ones, about the enforceability of restrictive covenants especially when the business and/or employee have interstate commerce. Some states are essentially outlawing non-competes and if an employee leaves one state to work in another, the choice of law and jurisdiction issues generally erupt in any litigation. Kayman rightly points out that courts are looking to extra contractual facts to assist in making a breach of contract decision in lawsuits over these agreements. Finally – Kayman and Davis suggest a possible parallel between this issue and the Defend Trade Secrets Act (DTSA) which has now created a federal remedy for misappropriation of trade secrets. Trade secret claims are often paired with non-compete claims so this parallel, and new federal legislation might be the solution. The law on these issues is clearly in a state of flux. We thank Kayman and Davis for this opinion piece.

Posted by Henry M. Sneath, Esquire Co-Chair Litigation Practice Group and Chair of the IP Practice Group: Houston Harbaugh, P.C.  401 Liberty Avenue, Pittsburgh, Pa. 15222. Sneath is also an Adjunct Professor of  Law teaching two courses; Trade Secret Law and the Law of Trademarks and Unfair Competition at Duquesne University School of Law. Please contact Mr. Sneath at 412-288-4013 or sneathhm@hh-law.com.