The Reading List (No. 9)

Today's reading list - which is long overdue - leads with a few articles geared towards in-house counsel.

The In-House Advisor has a nice post regarding non-compete considerations for in-house counsel. I am recommending the article because it has a discussion concerning the importance of posting bond if an injunction is granted. That's not a topic I see very often. My view on bonds is that the cases are everywhere. You could see a bond imposed of several hundred thousand dollars in one case, and in a similar case, only a nominal bond imposed. Remember that in federal court Rule 65 seems to require some sort of bond, meaning all of those contracts that say "bond is waived" can't literally be followed.

Great article by Jon Hyman of the Ohio Employer's Law Blog on BYOD ("Bring Your Own Device") policies for employers. This is a very new area, and lawyers are still grasping with how to draft policies and advise clients on what to consider. Jon's focus in his article is on maintaining security, and he has excellent recommendations for in-house counsel.

Drinker Biddle's blog discusses two recent bad faith fee-shifting cases under the Uniform Trade Secrets Act. I previously wrote about one of them, the California case of SASCO v. Rosendin Electric, in this post.

John Marsh of Hahn Loeser has a nice recap of some news stories involving trade secrets theft, including a brief discussion on New York's recent arrest of ex-Goldman Sachs programmer Sergei Aleynikov. I, along with countless others, previously wrote about the Second Circuit's reversal of his federal law convication.

Not technically a "Reading List" topic, but worth mentioning, too, is the Supreme Court of Missouri's opinion in Whelan Security Co. v. Kennebrew, 2012 Mo. LEXIS 167 (2012). The Court found an unlimited customer non-solicitation covenant overbroad, given that it restricted ex-employees of a national security firm from working with any of the firm's customers or prospective customers. The Court noted that while such clauses may be reasonable for a small, localized firm, a non-solicitation restriction without any geographic or definitional parameters was overbroad. However, the Court modified the restriction to give effect to the parties' intentions and to protect the employer. It rewrote the restriction to strike any limitation on soliciting prospective customers and to restrict only solictation of customers the ex-employees dealt with during their employment. The court also upheld a 50-mile general non-competition covenant against one of the two employees - begging the question of whether that validated non-compete achieves the same purpose as the partially invalidated non-solicitation covenant.