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BBA: 9th Symposium on Non-Compete Agreements and Trade Secrets: 190th General Court Bills, Federal Defend Trade Secrets Act “Preemption”?

From the BBA:

Since 2009 BBA has hosted this symposium bringing together drafters, sponsors, supporters and critics of state bills to reform the use of employee non-compete agreements (ENCAs) and, separately, alternatively or complementarily, to enact the Uniform Trade Secrets Act (UTSA).

In the second session of the 189th General Court, its two chambers passed differing bills for ENCA reform, each including a version of UTSA, but did not quite get over the finish line. Current bills S.840, S.988, S.1017, S.1020, H.854, H.2366, and H.2371 revisit ENCA reform and propose a version of UTSA enhanced by the BBA over the years.

In superseding the 1939 Restatement of Torts (still used by Massachusetts) requirement of continuous, actual use of “trade secrets,” the 1979/1985 UTSA (adopted by 47 other States) moved from the industrial age of “secrets of trade” to the research age of protecting valuable information not yet used or “what not to try” as well as transitory information as commercial strategies.  The BBA enhancements include (1) some pleading specificity for protected information and (2) direction as to what constitutes “confidential information” under Massachusetts common law justifying ENCAs.

The federal Defend Trade Secrets Act of 2016 (“DTSA”) among other things embraced “employee mobility” as a federal policy.  DTSA injunctions may not “prevent a person from entering into an employment relationship . . . or otherwise conflict with an applicable State [such as California] law prohibiting restraints on the practice of a lawful profession, trade, or business.”  While DTSA expressly does not preempt state trade secret law, it is silent about contract law, which arguably may be affected by these prohibitions.

Please join us for a presentation and discussion of the substance of and differences between the bills and the reasons and possible reconciliation, as well as the role of the proposed UTSA in view of the DTSA.

Following the program, attendees are invited to join us for a reception.


Registration Categories:
BBA-Member: Free. Included as part of your membership.
Non-Member - $100.00