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Business Torts & Unfair Competition

Practice Points

What you need to know in a quick-to-read format. Find all of the Business Torts & Unfair Competition Committee's Practice Points in this archive.


How Employers Can Protect Confidential Information and Trade Secrets Following the NLRB’s Recent Guidance on Severance Agreements
By Alex C. Weinstein – May 11, 2023
Key steps to avoid scrutiny after the McLaren Macomb decision.

Three Tips for Working with a Damages Expert in a Trade Secrets Misappropriation Matter
By Marcus L. Mintz – January 26, 2023
Whether you are on offense or defense, in litigation involving economic damages, it helps to engage an expert early, vet the expert carefully, and be flexible.

Forum Selection and Choice of Law Provisions in Employment Agreements
By Gabrielle A. Giombetti – January 26, 2023
Considerations for national employers seeking to enforce restrictive covenants.


Fighting Back on Cyberattacks
By Brian A. Hill and Cody Marden – December 30, 2022
The perpetrators of such attacks are frequently anonymous and undiscoverable, several plaintiffs have recently advanced civil claims against their alleged attackers seeking monetary compensation for injuries inflicted by cyberattacks.

Do Not Assume Your Usernames and Passwords Are Protected Trade Secrets
By Paul D. Burgin – December 30, 2022
A growing line of cases have held that usernames and passwords do not qualify as trade secrets because they do not have independent economic value.

Six Bits of Advice for the New Class of Lawyers
By Andrew Farrington – September 19, 2022
A young lawyer offers brand-new lawyers guidance after his first year as an associate.

Watch Out for Pitfalls in Forensic Discovery
By Alex Meier – September 19, 2022
Initial preparation and analysis of forensic discovery can create efficiency and avoid problems from arising later.

Discovery Concerning the Date on Which a Trade Secret Was Incorporated into a Product and How it Might Inform Actual Loss Damages
By Abel Teshome – August 24, 2022
How trade secret incorporation dates might be relevant to lost profits and loss of business value damages theories.

A Quick Guide to Legal Project Management in Litigation
By Sarah Horstmann and Jill Sonnesyn – August 23, 2022
Litigation is notoriously unpredictable, but effective matter management can minimize unpredictability and improve results for lawyers and clients.

SCOTUS Closes the Door on Section 1782 Discovery for Private Arbitration
By Brian A. Hill and Rachel Mendelson – July 26, 2022
Practitioners should consider the impact of forum selection on the availability of U.S.-based third-party discovery under section 1782 both when drafting arbitration provisions and making a forum selection after a dispute has arisen.

An Analytical Approach to Overdraft Fee Litigation
By Tom Hermanek and Heather Koo – July 12, 2022
How to leverage complex data analytics to assist in settlement negotiations of overdraft fee class actions.

Is Your Non-Compete Enforceable?
By Parker E. Thoeni – June 23, 2022
It may depend on whether the employment or sale of business standard applies.

Lessons in E-Discovery Practice
By Robyn E. Marsh – May 20, 2022
Learn how to be proactive and not reactive.

No Agreement Among Federal Courts on What Entitles Misappropriation Defendants to Attorney Fees for “Bad Faith” Misappropriation Claim
By Emily Kesler – May 20, 2022
The burden to establish entitlement to attorney fees may be high but can vary significantly depending on the jurisdiction.

Issues in Post-Employment Solicitation and Social Media
By Jeffrey M. Csercsevits – May 19, 2022
Courts analyze new job posts, friend requests, and tagging when employees are subject to non-solicitation agreements.

Regression Analysis for Trade Secrets Misappropriation
By Steele French – April 21, 2022
What are the possible uses of this method to construct a monetary claim for damages?

What to Know About No-Poach Agreements
By Jade Jorgenson – April 21, 2022
Penalties for getting these wrong can be severe. Learn some background to ensure you get them right.

Healthcare Litigation Concerns for Business Litigation Lawyers
By David J. Cross and T.L. Summerville – March 29, 2022
Consequences for HIPAA violations can be severe, and a covered entity’s compliance obligations extend to its business associates and subcontractors.

Directors Beware: Caremark Claims Are Coming
By Brian A. Hill and Jesse Schwab – February 28, 2022
Recent Delaware decisions have put the spotlight on directors’ fiduciary duties to properly oversee mission critical corporate functions. Here’s what lawyers need to know to keep their clients out of the limelight.

MFW: Past, Present, and Future
By James An and Gabriel Rossman – February 23, 2022
Delaware courts have issued several decisions applying—and greatly expanding—the framework stemming from this case.

Pleading Trade Secret Misappropriation Claims
By Gabrielle Giombetti – February 4, 2022
There is a delicate balance between specificity and secrecy.

Prohibitions on Non-Compete Agreements for Low-Wage Workers
By Ivy Waisbord – February 4, 2022
What employers of these and commission-based employees need to know.

Tips for the Identification of Trade Secrets
By Sarah A. Horstmann and Terrance C. Newby – January 24, 2022
Learn best practices for this task that is essential to proving a trade secret misappropriation claim.


Accounting of Defendant’s Profits Under the Defend Trade Secrets Act
By Kevin Arst – December 14, 2021
This Practice Point focuses on accounting considerations relevant to unjust enrichment damages.

Haling Foreign Defendants into Court
By Minyao Wang – October 27, 2021
Does due process have the same meaning under the Fifth and Fourteenth Amendments?

Tips for Using Excel to Stand Out as an Associate
By Kelly Trout – October 19, 2021
Knowing when and how to use spreadsheet software will make any associate faster and better at their job and keep partners and clients coming back for more.

Restricting the Restrictive Covenant
By Sarah Brewerton-Palmer – October 6, 2021
Recent state legislation reflects growing limitations on non-competition agreements.

Cryptocurrencies and Fraud Claims: A Short Primer
By George F. Ritchie and Alex Harmon – September 30, 2021
Pleading a plausible claim for fraud requires attention to the details, and failure to provide those details in the complaint will be fatal to those claims.

Quick Tips for Pleading “Fraud” with Particularity
By Brian W. Esler – September 28, 2021
Pleading a plausible claim for fraud requires attention to the details, and failure to provide those details in the complaint will be fatal to those claims.

What You and Your Clients Should Know About President Biden’s Executive Order Regarding Non-Competes
By Jeremy A. Cohen, Marcus L. Mintz, and Erik Weibust – August 26, 2021
Employers should pay close attention to recently enacted laws and pending legislation in the states where they do business.

What You and Your Clients Should Know About President Biden’s Executive Order Regarding Non-Competes
By Jeremy A. Cohen, Marcus L. Mintz, and Erik Weibust – August 26, 2021
Employers should pay close attention to recently enacted laws and pending legislation in the states where they do business.

Ministers & Missionaries Benefit Board v. Snow: Holding Parties to Their Bargain When It Comes to Contractual Choice-of-Law Provisions
By John T. Duffey – July 28, 2021
Given the widespread prevalence of contractual choice-of-law provisions, this five-year-old case warrants much greater attention from courts, practitioners, and litigants alike.

Unjust Enrichment and Reasonable Royalty: Alternative, But Not Incompatible, Measures of Monetary Relief for Trade Secret Misappropriation
By Abel Teshome – July 9, 2021
Learn more about recent cases involving the pursuit of these measures in the alternative.

American (Discovery) Abroad: 28 U.S.C. § 1782
By Brian A. Hill and Connor W. Farrell – July 7, 2021
Section 1782 serves as a powerful mechanism for coercing American-style discovery in foreign proceedings.

Supreme Court Poised to Resolve Split Regarding Federal Courts’ Jurisdiction to Confirm or Vacate Arbitration Awards
By Jeremy K. Beecher – June 25, 2021
By the end of next term, there should be a single standard for determining federal question jurisdiction in post-arbitration proceedings under the FAA.

Hybrid In-Person and Remote Arbitrations in a Post-COVID-19 World
By Ashley C. Brown – May 27, 2021
Conducting at least some portions of a final arbitration hearing virtually can be an efficient way to streamline the hearing and save your client costs in the process.

Tips on Using Management Information Systems to Create Clarity and Context for Investigators
By Robert Bird, Brad Lohmeyer, and Patricia Rodriguez – May 13, 2021
How to effectively identify, extract and analyze the structured data from these highly structured databases.

Nevada Supreme Court Changes Course on “Blue Penciling” Non-Competition Agreements
By Greg Grisham – April 22, 2021
The court’s decision is instructive not only for Silver State employers but also for all businesses that operate in states with similar statutory structures.

Forensic Examination of Electronic Devices: Part 2
By Sarah Horstmann, Dawn Mertineit, and Antonio Rega – April 19, 2021
Four important considerations, from determining scope to analyzing the examination's results.

Forensic Examination of Electronic Devices: Part 1
By Sarah Horstmann, Dawn Mertineit, and Antonio Rega – March 18, 2021
While it may seem that thinking about forensic examinations is only necessary when a company is preparing to litigate, familiarity with forensics can help position your client before the need for a forensic examination arises.

Tips for Leveraging the Cost Approach When Quantifying Damages in Trade Secret Litigation
By Jim Pampinella and Chris Schulte – March 16, 2021
This method can inform the determination of a defendant’s unjust enrichment and serve as a starting point for determining a reasonable royalty.

10 Questions Companies Should Address for a Remote Work Environment
By Mark Clews, John F. Stark, Luke Tenery, and Shannon Murphy – March 11, 2021
The proliferation of remote work has created risks for trade-secret protection. While trade secrets may not be front of mind today, actions companies take now can significantly decrease the chance that secrets are stolen.

Tips for New Attorneys to Position Themselves for Elusive Opportunities
By Mariah Fairley, Afshin Najafi, Chris Pulido, and Maytak Chin – February 10, 2021
It is important for allied practitioners to foster opportunities that provide diverse and women attorneys with greater access to courtroom experiences.

How to Avoid Corporate Depositions by Adopting Prior Testimony
By Jeremy K. Beecher – February 9, 2021
In appropriate cases, a corporation can avoid the time and expense of an organizational deposition under Federal Rule of Civil Procedure 30(b)(6) by adopting its employees’ prior testimony.

Thole v. U.S. Bank, N.A: Don’t Forget About Standing
By Brian A. Hill and Joshuah R. Turner – January 25, 2021
The Supreme Court reminds us that not all beneficiaries have standing to sue fiduciaries when duties are breached, and that counsel should choose their plaintiffs accordingly.

Practical Considerations for the Preservation of Electronically Stored Information
By Matthew Christoff – January 12, 2021
Taking reasonable action early on will ensure useful evidence is preserved and spoliation issues are avoided.


How to Avoid Potential Trade Secret Claims When Hiring New Employees
By Sarah Horstmann – November 19, 2020
Tips to guide employers and their counsel though the process of interviewing new employees to confirm they have not retained trade secrets of a former employer.

Centripetal Networks v. Cisco: A Perspective on Ongoing Royalty Awards for Patent Infringement
By Philip Kline – November 19, 2020
Since a 2006 Supreme Court ruling, ongoing royalties are one of four ways in which a court can address future infringement.

Beware of Delaware Forum-Selection Provisions When Litigating in the Golden State
By Jeremy K. Beecher – October 28, 2020
A recent California Superior Court decision has potential ramifications for practitioners nationwide.

A Guide to the Proper Use of Motions in Limine in Civil Litigation
By John M. Losinger and Cynthia M. Vera – September 30, 2020
To avoid some unenviable results, practitioners must understand what this motion is—and what it is not.

Questions for Navigating Statutes of Limitations in Fraud Claims
By Cason M. Kirby – September 30, 2020
Calculating the applicable statute is trickier than one might think.

Tips for Working Remotely as an Associate, Part 1
By Aaron Chibli and Brantley Smith – August 26, 2020
There is little doubt that an associate’s growth has been impacted by this pandemic, but there are ways to navigate the uncertainties of practicing law in the COVID-19 world.

Tips for Working Remotely as an Associate, Part 2
By Aaron Chibli and Brantley Smith – August 26, 2020
More pointers on how associates can navigate remote work during quarantine.

Stipulated Deposition Protocols to Consider During COVID-19
By Maria L. Kreiter – July 27, 2020
A few tips for before, during, and after a pandemic-era deposition.

Can You Pay Your Expert That Way?
By Emily Bridges – July 27, 2020
Litigants may look for alternative ways to pay for experts rather than simply on an hourly basis.

Considering Fraud and Arbitrability While Drafting Arbitration Clauses Can Save Litigation Headaches
By Jeremy Heep and Sam Harrison – June 30, 2020
Distractions can be minimized with careful wording of a clause that makes it unmistakable that all disputes under a contract are to be arbitrated.

Tips for Remote Video Hearings and Trials: Technology, Witnesses, Evidence, and Etiquette
By Fritz Riesmeyer and Curry Sexton – June 5, 2020
Don’t be that lawyer with “low bandwidth disease.”

New Data Regarding Litigating Trade Secret Cases
By Michael Shepherd – June 5, 2020
The information is particularly relevant to the Defend Trade Secrets Act.

Tips for Handling Non-Compete Agreements During Times of High Unemployment
By Erik Weibust, Jeremy Cohen, Marcus Mintz, and Jasmine Stanzick – April 30, 2020
In light of the unprecedented COVID-19 crisis, many employers are asking whether they can enforce non-compete agreements against employees who are laid off as a result of the pandemic.

Six Tips for Drafting Binding Term Sheets at Mediation
By Sarah Brewerton-Palmer – March 19, 2020
Learn how to avoid being bound by an incomplete agreement or undoing a settlement altogether.

How to Ensure Confidentiality Agreements Comply with the Illinois Workplace Transparency Act
By Maria Kreiter – March 19, 2020
Counsel should be aware of new laws such as the WTA and consider their impact on choice of law and overall litigation strategy.

Practical Tips for Employers to Increase the Chances of Enforcing Restrictive Covenants
By Erik Weibust, Jasmine Stanzick, James Billings-Kang – February 6, 2020
Recent nationwide legal developments should encourage employers to scrutinize their restrictive covenants, focusing on necessary modifications to ensure enforceability.

Rooker-Feldman’s Narrow Fraud Exception
By Samuel D. Harrison – February 4, 2020
Litigants should be vigilant whenever this doctrine rears its head.


Five Tips for Requesting Expedited Discovery When Moving for an Injunction
By Susan Guerette – December 23, 2019
Three tips for drafting more effective briefs (and other filings) in our tech-driven era.

Drafting in the Age of Screens
By Sara Ann Brown – December 10, 2019
Three tips for drafting more effective briefs (and other filings) in our tech-driven era.

A Quick Guide to the Multiple Paths for Obtaining Books and Records
By Emily Bridges – November 27, 2019
This type of demand can be a powerful tool to overcome the information imbalance that is often present in company disputes between majority and minority shareholders.

Why Identifying Your Trade Secrets Is Essential in Joint Ventures
By Nicole D. Galli – October 30, 2019
Having a clear understanding of the trade secrets you are trying to protect and making sure the other side knows they are receiving them makes good business sense.

Employment Law Update: Tread Carefully When Requesting Information about Past Pay
By Ashley C. Brown – October 30, 2019
The purpose of “salary history bans” is to break the cycle of discriminatory pay practices.

How to Choose the Best Way to Choose
By John A. Stone – September 30, 2019
Tips regarding choice of law provisions in trade secret litigation

Tips on Filing for Preliminary Injunction in Trade Secret Cases
By Christopher W. Tackett – September 30, 2019
Considerations when seeking an emergency injunction

Four Tips for Mining Social Media Evidence
By Amanda P. Parker – June 4, 2019
Learn how to use various online platforms to investigate or defend claims.

What Constitutes “Wrongful Conduct” in Interference with Contractual or Economic Relations?
By Jamie Maggard, Chris Tillery, Fritz Riesmeyer – May 6, 2019
Courts have struggled with the question of when competition for business or employees crosses the line into an actionable tort.

Lack of Personal Jurisdiction: The Underutilized Defense Tactic
By Andrew Bossory – May 6, 2019
Your client has no assets or presence in the United States and is certainly not prepared for drawn out and expensive federal litigation. What do you do?

District Court Assesses Interstate Commerce Nexus Under Defend Trade Secrets Act
By Jarred A. Klorfein – April 8, 2019
The decision serves as a good reminder that practitioners seeking to bring claims under the DTSA in federal court must be careful to allege a sufficient nexus between the trade secret at issue and a product or service used in interstate commerce.

Do Fiduciaries of Fiduciaries Owe Duties?
By Ben Barnes – April 1, 2019
The most important thing to consider in answering this question is whether the case involves an abuse of control by the potential fiduciary over the underlying entity’s property.

Issues in the Imposition of Fiduciary Duties on Departing LLC Members
By Cole Schlabach – March 27, 2019
As a growing number of states adopt default fiduciary obligations between members of LLCs, issues may arise in the context of departing members.

Second Circuit Rules in Insurance Warranty Case
By Jennifer Loyd – January 30, 2019
Coverage determination relies on the terms of an insurance warranty, rather than the policy, to find no excess coverage for an investment firm’s SEC investigation.

Tips to Prevent ICOs from Becoming IOUs
By Nicole Ponziani and Teddy Brown – January 29, 2019
An exploration of principles to ensure that your investment does not turn sour.


Overreaching Covenants Not to Compete Under Attack from All Sides
By Jamie Maggard and John Vering – December 26, 2018
In recent years, non-competes have affected a wide range of workers with no knowledge of trade secrets and no effective ability to entice a customer to leave the former employer.

The Eleventh Circuit Clarifies Rule 23’s Notice Requirements for Approval of Class Settlements
By James W. Cobb – November 20, 2018
The takeaway from this decision is straightforward and simple: When planning out the process for moving to approve a class-action settlement agreement, the motion for fees must be submitted before the deadline for class members to object.

D&O Fiduciary Duties During Insolvency
By Sara Ann Brown – August 30, 2018
Where available, derivative actions are a powerful tool that allow creditors to look beyond their debtor, when insolvency has left them holding the bag.

Tips for Protecting Your Trade Secrets When Dealing with the Government
By Christian L. Hawthorne – August 10, 2018
We've all been there. Learn how to deal with the fallout.

Best Practices for Missing a Filing Deadline in Federal Court
By Daniel R. Cooper – July 11, 2018
We've all been there. Learn how to deal with the fallout.

Tips for Addressing Crime-Fraud Exception to the Attorney-Client Privilege in Civil Cases
By Fritz Riesmeyer and Emily Crane – June 24, 2018
It is important to understand the reasoning behind this exception to the privilege, using federal law as a guide.

Tips for Determining Damages for Breach of Fiduciary Duty
By Christina M. Carroll – April 30, 2018
Assessing the damages available for a claim for breach of fiduciary duty requires that a litigant carefully consider the question of which state’s law will apply to a breach of fiduciary duty claim.

Finding Needles in the Haystack: E-Discovery Search Technologies and How to Use Them, Part II
By Charles-Theodore Zerner and Andrew R. Lee – March 29, 2018
The second of two parts about how to use technology to create better e-discovery plans.

Finding Needles in the Haystack: E-Discovery Search Technologies and How to Use Them, Part I
By Charles-Theodore Zerner and Andrew R. Lee – March 29, 2018
The first of two parts about how to use technology to create better e-discovery plans.

A Recent Lesson in Expert Selection for MDL Cases from the Second Circuit
By Jennifer Loyd – February 28, 2018
An excellent reminder to practitioners to remember the fundamentals of witness selection and presentation.

Top 8 Legal Implications of Self-Driving Vehicle Technology
By Sarah J. Simkin – February 21, 2018
Every new shade of increased artificial intelligence participation in vehicle operation poses potential legal questions.

The Dangers of Recycling: When Using Old Pleadings and Papers Can Cause Unforeseen—and Costly—Litigation
By Andrew M. Bossory – January 31, 2018
Learn how to save yourself—and your client—time, money, and frustration.


Tenth Circuit Update: Statutory Violations Don’t Prove Irreparable Harm and “Bad Faith” Gives Rise to Misappropriation Claims
By Brian W. Esler – December 11, 2017
Learn about two opinions of interest to trade-secret practitioners.

District Court Considers Whether Customer Lists are Trade Secrets under the Federal Defend Trade Secrets Act and the Adequacy of Protective Measures
By Benjamin W. Cheesbro – December 7, 2017
Art & Cook, Inc. v. Haber sheds light on two common issues in trade secrets litigation.

Tips for Filing a Trade Secret Action after Enactment of the DTSA
By Abraham Y. Skoff – July 31, 2017
Opting for a DTSA claim in federal court is not necessarily the automatic choice that many thought it would be.

Keyword Advertising and Trademark Infringement
By Brooke Clason Smith – July 31, 2017
Recent trends may influence when and how trademark owners attempt to protect their property from use by their competitors in keyword advertising.

A Cautionary Tale When Agreeing to an Informal Settlement Agreement
By Anthony Marcum – May 30, 2017
A handwritten agreement on the back of a napkin could inadvertently become the most impactful document in a civil case.

Aiding and Abetting Breach of Fiduciary Duty: Lawyer Beware
By Sarah Schiferl – May 23, 2017
Lawyers representing other professionals must contend not only with their clients’ fiduciary obligations but also with their own potential liability in connection with the underlying claims.

Anything but General: Pleading Scienter in Rule 9(b) Claims
By Hannah Ruth Roberts – May 23, 2017
Courts have increased the standard for pleading scienter under Rule 9(b), but not in a consistent fashion.

How to Lose Attorney-Client Privilege
By Steven D. Ginsburg – March 16, 2017
Be fully familiar with the scope of the privilege from the first time the issue arises in a matter, and not when it is too late.

$500 Million Fraud Case Against UBS Dismissed Due to Lack of Jurisdiction
By Kerry Gabrielson – January 4, 2017
It is critical that counsel consider a jurisdictional challenge, even in complex and sophisticated disputes.


Three-Day Rule Eliminated for Electronic Service
By Erin M. (Maggie) Cook – December 20, 2016
To avoid an untimely filing due to miscalculation, counsel should be aware of the recent amendment to Rule 6(d).

New York Court of Appeals Rules in Case Involving Common Interest Doctrine
By Michael Apfeld – July 28, 2016
Ambac Assurance Corporation v. Countrywide Home Loans, Inc. should interest all commercial litigators for a number of reasons.

Non-Compete Agreements: What Every Company and Employee Should Know
By Catherine Pastrikos Kelly – July 26, 2016
We pull back the curtain on how various states handle these important contracts.

What You Should Know about the Implied Duty of Good Faith and Fair Dealing
By Catherine Pastrikos Kelly – July 26, 2016
Be aware of what you're getting into before signing a large-chain franchise contract.

How to Distinguish Lay and Expert Witness Testimony
By Maria L. Kreiter – February 2, 2016
Why does the distinction matter?

Seventh Circuit Rules in In re Sentinel Management Group, Inc.
By Maria L. Kreiter, John Kirtley, and Kerry Gabrielson – January 21, 2016
When suspicion arises as to a customer’s potentially fraudulent conduct, a lender must conduct due diligence and thoroughly investigate—or risk losing its secured position.


Delaware Rapid Arbitration Act Rules Now Effective
By Elizabeth S. Fenton – July 30, 2015
Enacted earlier this year, the intent of the DRAA is to serve as an alternative, confidential, and cost-effective forum for binding arbitrations involving Delaware corporations, LLCs, and other business entities.

MA Superior Court Rules in TIBCO Software v. Zephyr Health, Inc.
By Christopher Lindstrom and Robin Morse – June 3, 2015
The decision has broad implications for non-compete cases involving arbitration clauses.

Third Circuit Makes It Easier for Unregistered Foreign Businesses to Enforce Arbitration Awards in PA
By Brian Berkley – March 10, 2015
The case is Generational Equity LLC v. Schomaker.

Fabricated Evidence Forces Plaintiff to Walk Away from $1.3 Billion Lawsuit
By Daniel Elms – March 10, 2015
Successfully exposing falsified evidence can dramatically change the landscape of a case. Failure to guard against it can result in years of wasted effort.