Restrictive Covenants

Non-compete, non-solicit, and non-disclosure clauses often play a key role in disputes between competitors. Courts evaluating restrictive covenants aim to strike a delicate balance between the employer’s competitive business interests and the employee’s interests in his own mobility. It is within this framework that the firm’s practice thrives.

As applications and data move seamlessly to the cloud, the way employees access, store, and share business information changes almost daily. Many companies have failed to adapt their policies and procedures to account for this paradigm shift and, as a result, are suffering the consequences. According to a recent survey conducted by Symantec, half of employees who recently left their jobs retained confidential information from their former employer, and 40% planned to use such information in their new jobs.

That’s where the firm comes in. A number of the world’s leading technology companies have engaged Dave to ensure that (a) their policies and procedures adequately safeguard the company’s core intellectual property, (b) their departing employees understand and abide by their post-employment obligations, and (c) their new hires are adequately counseled not to do anything stupid on their way out the door. Employers also engage Dave for guidance in evaluating and mitigating the risks associated with competitive hires, including hires from jurisdictions where non-compete clauses are more routinely enforced. Dave also advises entrepreneurs and executives with questions about their restrictive covenants, and often helps them formulate smooth departure plans from their current employer.

Experience Matters

Dave has focused on this area of law for nearly 15 years. Here are some of his more recent restrictive covenant engagements:

  • Represented co-founder of private space exploration company; successfully invalidated former employer’s non-compete agreement at preliminary injunction stage (King County Superior)
  • Represented cloud computing start-up/ new executive in multi-state litigation to invalidate former employer’s non-compete; case resolved favorably after court denied former employer’s request for injunctive relief (San Mateo Superior/King County Superior)
  • Advising online flash-sales leader on hiring non-California executives bound by non-compete clauses
  • Advised start-up IT security company concerning non-solicitation obligations as it built leadership team
  • Advised president of leading online gambling site in negotiations to narrow scope of post-termination restrictive covenants in severance context
  • Represented audio processing software leader threatened with litigation for inducing breach of employee non-solicitation obligation
  • Represented Fortune 100 technology company executives sued for breaching employee non-solicitation and non-disclosure obligations (Santa Clara County Superior)
  • Advised numerous executives from leading technology companies concerning enforceability of post-termination and/or post-sale restrictive covenants
  • Represented purchaser of west coast apparel company in dispute with company’s founder concerning compliance with purchase agreement’s non-compete clause
  • Advised internet radio leader concerning enforceability of restrictive covenants binding executive candidates nationwide
  • Represented online home improvement retailer threatened with out-of-state non-compete litigation for hiring sales executive to work in California
  • Advised product developer concerning scope and enforceability of employer’s sweeping “anti-moonlighting” and invention assignment provisions
  • Represented sales manager in lawsuit filed by former employer (leading networking company) for breach of acquisition-related non-compete
  • Defended manager of Massachusetts-based security company in lawsuit concerning new competitive employment in California (Suffolk County Superior Court)
  • Advised founder of online LED retailer in negotiations concerning scope of post-departure non-compete obligations
  • Represented web analytics company in its successful effort to hire sales executive bound by restrictive covenants under Utah law
  • Represented defendant web analytics company sued for inducing breach of non-solicitation agreements while staffing its California office; plaintiff dismissed case with sanctions motion pending for frivolous litigation (Santa Barbara Superior Court)
  • Advised Associate Dean of leading private research university concerning nature and scope of employer’s inventions assignment provision
  • Advised cloud-based security company in dispute with former engineering manager concerning compliance with ongoing non-solicitation obligation
  • Advised biotechnology leader in dispute with former CEO concerning ongoing compliance with non-solicitation obligations