Andrew Botti Speaks on Noncompetes and the Biden Administration

McLane Middleton attorney Andrew P. Botti spoke at Mass Lawyers Weekly’s “Noncompetes and the Biden Administration: What Comes Next?” webinar on August 20, 2021 at 10:00 a.m. ET.

As part of the presentation, the panel analyzed what happens next, what steps the FTC might take, and what companies should do in the meantime, including how to evaluate your current noncompetes and what else you can do to protect your business interests.

To view the webinar replay, click here.

Non-Competes May Become a Thing of the Past Across the Nation

By: Andrew P. Botti 

On July 9, 2021, President Biden signed an Executive Order which directed the Federal Trade Commission to curtail the use of non-competes nation-wide in order to help promote competition and expand the economy. At the moment, only three states forbid the use of non-compete clauses in employment agreements: California, North Dakota and Oklahoma. Nearly one dozen states – including Massachusetts – have put tough restrictions on the use and enforcement of non-compete agreements irrespective of which employees are required to sign same.

To read the full article, click here.

The Law of Noncompetition in Massachusetts has Undergone a Sea Change

By: Andrew P. Botti 

As of October 1, 2018 the noncompetition law of Massachusetts changed dramatically with the passage of G.L. 149, §24L.  The new statute provides a series of detailed requirements and qualifiers which are now “must haves” for non-compete agreements to be enforceable in a Massachusetts Court.

The major changes are as follows:

Continue reading

The Persistence of Memory May Not Get You Off The Hook

By: Andrew P. Botti 

A new case out of the Superior Court Business Litigation Session makes clear that a former employee may not utilize information stored solely in his memory for the benefit of his new employer if that information is clearly “Confidential Information” and subject to a written employment agreement with restrictive covenants.  The case is Fidelity Brokerage Services LLC v. David Callinan and UBS Financial Services, Inc., Suffolk Superior Court CA No. 1884CV02098 – BLSI (February 7, 2019) (Davis, J). Continue reading

Noncompete “Reform” Movement Marks the Death of an Era

By Andrew P. Botti

As published in the Boston Business Journal (7/26/2018)

I have been practicing law for nearly 30 years and have handled a variety of noncompete cases in our Superior Court system.  We are very lucky in Massachusetts to have a fine, well-balanced and thoughtful judiciary.  In my experience, they take the enforcement of noncompetes very seriously, and will not hesitate to reform or change the agreement if they think it is too harsh or unfair to the departing employee.  This has been the case for well over 200 years now.

To read the full article, click here.

Massachusetts Poised to Pass Important Amendments to State Trade Secrets Law

By Nicholas F. Casolaro

As part of its seemingly annual effort to revise or limit the scope of non-competition agreements in Massachusetts, the legislature has introduced a bill for 2018 that would not only change existing non-competition agreement law but also make significant changes to Massachusetts law on trade secrets.

The bill, titled “An Act Relative to the Judicial Enforcement of Noncompetition Agreements,” is likely to pass and would become effective October 1, 2018.  The new law would apply to misappropriation of trade secrets claims that arise after the effective date.  The bill eliminates the existing limited statutory law on trade secrets claims and would effectively enact a version of the Uniform Trade Secrets Act, putting Massachusetts in line with the vast majority of states that have some version of the UTSA.

The most-significant change that the bill would make to existing law is the definition of “trade secret.”  The proposed bill contains a narrow list of categories of information or tangible things that would constitute a trade secret.  Specifically, trade secret is defined under the bill as information or things such as “a formula, pattern, compilation, program, device, method, technique, process, business strategy, customer list, invention, or scientific, technical, financial or customer data.”

The bill omits things like designs, prototypes, procedures, software code, and the catch-all category of “other business information.”  The key takeaway is that this bill will undoubtedly make it harder for businesses, employers, or trade secret owners to prove that something is in fact a trade secret.  Trade secret litigation is difficult enough under existing law.  Plaintiffs will now face an even tougher standard to successfully prove that something is a trade secret in court.

The other effect of this bill if it passes is that Massachusetts will have a different definition of trade secrets than the Federal Defend Trade Secrets Act, which was enacted in 2016.  The Federal statute has a much more detailed and comprehensive list of information or data that may constitute a trade secret.  Thus, if a business is uncertain whether its information or data meets the definition of trade secret under the new Massachusetts state law, it will have to consider whether the information or data meets the broader definition of trade secret under the Federal law.  This could lead to an increase in lawsuits filed in federal court in Massachusetts alleging violations of the Federal Defend Trade Secrets Act.

Susan Randall v. A.D. Makepeace Company

Screen Shot - MCAD Decision Lack of Probable Cause

Click the image above to read the Dismissal.

By Andrew P. Botti

On February 28, 2018, the Commonwealth of Massachusetts Commission Against Discrimination (MCAD) dismissed the case Susan Randall v. A.D. Makepeace Company.

The complainant filed this action alleging that she was discriminated against on the basis of age and sex.

The Commission issued the following determination in dismissing the case: “Based upon the Commission’s investigation, the Commission is unable to conclude that the information obtained establishes a violation of the statutes.  This does not certify that the Respondent is in compliance with the statutes.  No finding is made as to any other issues that might be construed as having been raised by this complaint.”

To read the Dismissal, click here.