Our Non-Compete, Non-Solicit, and Trade Secrets Practice is tailored towards protecting your interests on termination of an employer-employee relation or other contractual engagements. Whether you are an employer who may face competition by a departing employee or an employee seeking to set up shop or work for a competitor, you require sound legal counsel or representation.
Invariably, key customer relationships, talented employment, and vital intellectual property and expertise (including trade secrets, proprietary business information, and corporate technology) lie at the core of successful businesses. Accordingly, it has become commonplace for businesses to use agreements that prohibit competition, or that limit the solicitation of customers, in an effort to protect their commercial interest and unwarranted disclosure of confidential information or data.
From the employer’s perspective, the business can be exposed to risk or litigation when a departing employee diverge vital business assets belonging to their former employer. With the current labour mobility, the employer’s most valuable assets can be jeopardized through theft or unwarranted disclosure for commercial exploitation.
From the perspective of the departing employee (or his or her new employer), the ability to work and compete can be unfairly hampered or restrictive by an unreasonable restraint of trade provisions or overbroad or unduly burdensome non-competition or non-solicitation agreement that goes far beyond protecting the former employer’s legally protectable interests. If left unchecked, the employee may be unfairly deprived of the ability to earn a livelihood.
The attorneys in our Non-Compete, Non-Solicit, and Trade Secrets Practice are we strive to promote fair business practices, safeguard vital business assets and facilitate the lawful transition of employees or contractors subject to post-engagement restrictive covenants.
a. Preventive Measures
Our lawyers develop, draft, and review key documents that are pivotal to setting the stage for the transition of employees through the post-employment restrictive period. Covenants typically contained within non-solicitation, non-competition, and confidentiality agreements can be useful, effective tools, but they must be carefully drafted so as not to be construed as an unenforceable restraint on trade and lawful competition.
Restraint of Trade or Non-Compete Agreements – Chiefly contained in the employment contract, these covenants seek to prevent a former employee from working for a competitor within a certain geographic area for a specified period of time after departure from his or her previous employment.
- Confidentiality Agreements – These agreements require employees to acknowledge the sensitivity of corporate information (such as trade secrets, proprietary information, intellectual property, and information technology), and to create a binding obligation on the employee not to use or disclose that information during the currency of the contract as well as after expiry of contract or termination of employment.
- Non-Solicitation Agreements – When properly drafted, these covenants prohibit departing employees from soliciting key customers that resulted from the investment of time, resources, and goodwill by the employer. These are also common in connection with the sale of a business, along with its goodwill.
- Anti-Poaching or Anti-Raiding Agreements – It is common for a former employee, especially a manager, to poach or solicit good employees from their former work place. Besides increasing the costs of training, this can cause huge disruptions to the former employer. Such predatory practices can be prevented through the usage of appropriate anti-poaching or anti-raiding agreement, which prevents a former employee from soliciting his or her former coworkers.
b. Litigation – When Needed
Often times, a departing employee or his or her new employer will choose to disregard even a properly drafted restrictive covenant. Conversely, in order to achieve some ulterior motives, former employers may seek to enforce covenants that are unreasonable or overbroad. Our Dispute Resolution team has huge experience fighting to protect our clients’ interests in court of law or through arbitration. We employ our expertise to aggressively pursue negotiation and litigation strategies tailored to the needs of the people and businesses we serve.