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Business Torts & Unfair Competition


Learn while you're on the go. Listen to the Business Torts & Unfair Competition committee's audio recordings on this archive page.

Sound Advice

Gender and the Law—We Need to Do Better
Considerations for improving the practice of law for women based on inherent gender biases.

The “Identification” Requirement in Trade Secret Misappropriation ClaimsBusiness litigator Sarah Horstmann shares highlights from the ABA Litigation Section's Business Torts & Unfair Competition Committee’s recent Roundtable on considerations and best practices for the identification of trade secrets in litigation.

The Uniform Restrictive Employment Agreement Act: An Attempt At Nationwide Consistency
Dawn Mertineit, a partner in Seyfarth's Non-Compete and Trade Secrets group, analyzes the Uniform Law Commission's newly adopted Uniform Restrictive Employment Agreement Act, and describes how the act would change the landscape of current restrictive covenants laws.

Valuation Date & Forecast in COVID-Era Fiduciary Duty Damages
When the situation changes rapidly as it has during the COVID-19 pandemic and its aftermath, the degree of precision in selecting the valuation date and the adequacy of the financial forecast may have a significant impact on the resulting quantification of valuation damages.

Can't We All Just Get Along? Tips for Avoiding Fiduciary Litigation
In this podcast, Erika Haupt and Jeremy Young address the fiduciary duties of trustees, common issues that result in litigation involving fiduciaries, and tips for avoiding those issues or resolving disputes.

Prosecuting, Defending, and Preventing Shareholder Derivative Lawsuits
Business Torts and Unfair Competition Committee subcommittee co-chair Cason Kirby interviews his law partner Todd Campbell on issues for minority shareholders, corporate officers and board members, and corporate counsel to consider when planning for, addressing, and preventing shareholder derivative lawsuits.

Enforcing Noncompetition and Nonsolicitation Agreements Against a Multi-State Workforce
Now that an increasing number of states are restricting the use of noncompetition and nonsolicitation agreements, how can companies with multi-state workforces have the best chance at being able to enforce noncompetition and nonsolicitation agreements with their employees? Business litigator Sarah Horstmann provides a five-step framework for working through this question.  

Key Considerations for Forensic Examinations
Seyfarth's Dawn Mertineit discusses the importance of forensic examination of electronic devices, as well as some key considerations to be aware of in planning and executing the analysis.

Does Remote Access Endanger Your Ability to Protect Your Trade Secrets?
Saiber LLC's Jack Losinger discusses the impact that the recent increase in remote access to sensitive business information may have upon an employer’s ability to protect its trade secrets, and provides four critical steps that companies should take in order to maintain the “protectability” of those trade secrets.

When Does Preparing to Compete Cross the Line?
Employees owe a common law duty of loyalty to their employers and often are subject to a restrictive covenants agreement. In this program, David Johnson explores the boundaries of when an employee may and may not make plans in preparation of competing with his/her employer.

Proving Lost Profits for a New Business
This piece, by Kerry Murphy of Lasky Murphy in New Orleans, discusses the varying standards applied by courts when considering lost profits claims by new businesses.

Introduction on Converting Arbitration Awards into Judgments, and Competing Actions to Vacate Awards
In this Sound Advice, Christopher Tackett provides a non-jurisdiction specific refresher/introduction on the general process for converting an arbitration award into a judgment, and provides an overview regarding the potential competing proceedings to vacate an arbitration award.

Three-Day Rule Eliminated for Electronic Service
Make sure to correctly calendar your response deadlines under the most recent edits to the Federal Rules of Civil Procedure. You no longer get three extra days for electronic service.

Benefits of Using a Jury or Graphics Consultant
Mock trials can be very expensive. Jury consultant Dr. Kelloir Smith discusses many of the benefits of hiring consultants—including cost savings vs. a mock trial. (06:25 min)

Creating a Marketing Plan: Tips and Strategies
Marketing oneself is a must to build business. Maria Kreiter gives some best practices aimed at young lawyers to help develop their marketing plans. (07:12 min)

When Associates Gain Trial Experience, Everyone Wins
Trial experience is one of the most critical areas needed to effectively represent clients in litigation. More seasoned lawyers should encourage young lawyers to participate in trial as much as possible. Here are a few tips on how to do so. (06:25 min)

A Call to Arms on Judicial Scrutiny of Attorney Fee Awards in Class Action Settlements
Wendi Berkowitz examines recent cases where Justice Posner takes a renewed view of attorney fees in class actions.


Tips for Handling Non-Competes and Employment Issues in Today’s Antitrust Climate
Antitrust enforcers are increasingly scrutinizing labor and employment practices for possible antitrust violations. From criminal prosecutions and class actions for restricting employee mobility to regulatory action by the Federal Trade Commission to try to eliminate common employment arrangements, the neo-Brandeisians are pushing out the traditional boundaries of antitrust law. In this roundtable, a former Department of Justice antitrust prosecutor and a panel of defense lawyers make sense of the new antitrust regime, discuss what issues and arrangements are most likely to invite antitrust enforcement, give tips on how to avoid such scrutiny, and discuss what the future may hold at the intersection of antitrust and employment law.

Navigating an Expert Witness Deposition
This practical workshop-style program will cover key strategies for deposing expert witnesses in federal court (while highlighting Florida specific nuances) and how to effectively employ these strategies with an eye toward Daubert motions and trial. The goal of this presentation is to provide young lawyers with the foundational knowledge to feel confident when deposing an expert witness.

Identification of Trade Secret Claims—Conundrums and Solution
This Roundtable will cover considerations and best practices for the identification of trade secrets in litigation. Topics will include the timing, specificity, and amendment of identification of trade secrets, including a discussion of relevant guidelines from the Sedona Conference Commentary on the Proper Identification of Asserted Trade Secrets in Misappropriation Cases, published by the Sedona Conference’s Working Group on Trade Secrets. The Roundtable will also provide practical, strategic tips on the issue of identification of trade secrets for litigators on both the plaintiff and defense sides of trade secret misappropriation claims.

Complex Discovery Issues and Corporate Assertions of Privilege
This program will explore complex discovery issues arising out of corporate communications with its in-house counsel. The panel will discuss assertions of privilege in the corporate context, how a corporation can protect its privileged communications, the dual roles often played by in-house counsel and how an in-house counsel’s dual roles can impact a corporation’s ability to successfully assert privilege and withstand privilege challenges in litigation.

Effectively Using Experts Early in Business Litigation
Retired New Jersey Superior Court Judge Deanne Wilson, IP damages and valuation expert, Abel Teshome, and trial lawyers Brian Esler (Miller Nash Graham & Dunn LLP) and Brandon Lewis (Reid Collins), discuss the strategic advantages of retaining and actively using an expert from the outset of your case.

Zoom Trial Advocacy: Avoiding Cat Filters
Over the last year, lawyers have learned how to navigate remote proceedings. As we head into another year, this roundtable will discuss how to not only survive a Zoom trial, but how to improve your trial advocacy by embracing and understanding this new virtual environment.

Outreach Best Practices: Staying "Virtually" Connected To The People Who Matter
The market disruption caused by the pandemic will not last forever, and may likely result in an uptick in litigation that will keep law firms incredibly busy in the upcoming year. So, now is the time for "sharpening the saw" as it relates to maintaining and building valued relationships. In this Roundtable, you will hear from General Counsel (Kiran Nagulapalli, Assistant General Counsel at SGS and Kelly Vickers, Associate General Counsel at Kimberly Clark) on ways that their trusted advisors have been keeping their relationships thriving during the pandemic. Also, Bruce Alltop, a principal at LawVision, will offer some best practices related to how you can deepen existing relationships and build new ones given the current constraints on in-person meetings.

Forensic Analysis of Electronic Devices for Litigation
The panel will discuss the importance of forensic analysis of electronic devices, both pre-litigation and during litigation. Topics covered will include scenarios in which forensic analysis will be necessary or helpful, types of evidence you can uncover using forensic analysis, how the analysis will be conducted, and best practices for choosing an examiner and formulating a plan for the scope of the analysis.

Making an ABA Conference Work for Business Development
Learn how to expand your network by taking part in ABA conferences and other ABA leadership opportunities from these litigation leaders. This roundtable will discuss the best ways to network, meet others, and follow-up after your interaction with lawyers from across the country that you meet at various ABA conferences. Through this entertaining roundtable, you will be able to learn how to make your attendance at ABA conferences work for you and your business development efforts to expand your referral network in the most effective way while having fun at these events. (58:17 min.)

Update on Proportionality of Discovery Following the Amendments to the FRCP
One of the major changes to the Federal Rules of Civil Procedure was to limit discovery to the proportional needs of the case. Join District Judge Paul Grimm, Chief Magistrate Judge Karen Roby, and Magistrate Judge Kristen Mix to discuss awareness amongst litigation counsel of this shift regarding discoverability and the practical effect of this change to the rules and their experience in confronting issues regarding proportionality in the scope of discovery. (55:07 min.)