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.

Latest Legislative Session on Beacon Hill

Screen Shot - Legislative Session on Beacon Hill - 2-5-18

Click the image above to read the Act.

By Andrew P. Botti

In this latest Legislative session on Beacon Hill it appears that the House and the Senate have reached certain compromises concerning non-compete legislation which would alter considerably the existing non-compete legal landscape in Massachusetts. The new version of the bill – HO 4434 – would alter Chapter 149 of the General Laws and provide generally as follows:

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