From Non-Competes to the Inevitable Disclosure Doctrine: The Departing Texas Employee

(152 Ratings)

Produced on: June 07, 2018

Course Format On Demand Audio

Taught by

Categories:

Course Description

Time 92 minutes
Difficulty Intermediate

In Texas, there has been an explosion of highly contentious litigation between employers and their departing employees over alleged breaches of non-compete agreements, trade secret misappropriation, and breaches of fiduciary duties. The law in all three areas is rapidly changing in significant ways and Texas lawyers who don’t stay on the cutting edge are at a real disadvantage. This program aims to arm lawyers with the advanced legal tools and substantive knowledge they need to fight and win these cases. Join attorney Mark Oberti to discuss how overbroad non-compete agreements may be reformed and enforced, and how having an overbroad non-compete may: (1) significantly limit the recovery of damages for breach of the non-compete; and (2) potentially lead to a large attorneys’ fee award against the employer.

Additionally, address the status of the controversial “inevitable disclosure” doctrine in Texas, the Federal Defend Trade Secrets Act of 2016 and the Texas Uniform Trade Secrets Act, including one court's recent interpretation of the law that could largely negate the law’s application to departing employees. Mr. Oberti will also visit the complexities of temporary injunction practice, including: (1) the effect of contractual stipulations of irreparable harm; (2) the effect of delay on an employer’s ability to obtain a temporary injunction; (3) the unclean hands defense to entry of temporary injunction; and (4) whether an ex-employee’s new employer is a necessary party to a temporary injunction action.   


Learning Objectives:

  1. Address several cases, including:
    • A recent case analyzing alleged “specialized training” as such consideration
    • Southwestern Energy Production Co.
    • GlobeRanger Corp.
    • A 2018 Texas Uniform Trade Secrets Act case where the employer was awarded reasonable royalty damages of $4 million and a permanent injunctive, despite  only suffering $10,500 in lost profits from the misappropriation of its trade secrets
    • Drennan and the impact on the latest on choice of law and choice of forum clauses in non-compete agreements and similar agreements
  2. Confidently navigate the legal thicket regarding the permissible scope of geographic limitations and restrictions on the scope of activities in non-compete agreements
  3. Address the split between state and federal courts concerning when an overbroad non-compete may be reformed, and see how the difference can dramatically impact whether or not a temporary injunction can be entered, as well as the ultimate recovery of damages
  4. Identify how courts analyze contractual provisions that do not bar competition, but instead exact a monetary penalty if the employee leaves and competes
  5. Gain insight into the actions an employee may lawfully take to prepare to compete against their current employer, and the actions that cross the line into an illegal breach of fiduciary duty



Faculty

Mark Oberti

Oberti Sullivan LLP

Mark is intense and unrelenting. He’s always been that way. When he was 17 years old, Mark graduated from high school early to join the U.S. Army. He served three years in the Army, and was awarded two Army Achievement Medals and the Good Conduct Medal. After that, Mark earned his college degree from Wayne State University in Detroit in less than three years. Then, he attended the University of Houston Law Center, where he graduated in 1994, cum laude, Order of the Coif, and was in the top 10% of his graduating class. Mark is Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization.

Mark is a highly effective advocate. His focus is always to get results for his clients. On behalf of employees, Mark has settled many cases for high six-figures and seven-figures. Mark has won more than fifty summary judgments and jury trials for both employees and employers (see Mark's Relevant Texas and Other Employment Law Experience). In 2013, Texas Lawyer magazine named him “Litigator of the Week,” after he won a $2.9 million jury verdict in an age discrimination case. In 2016, he and his partner won a significant jury verdict in an FLSA retaliation case. Mark has also argued and won numerous appeals. In 2017, he argued and won an appeal to the U.S. Court of Appeals for the Fifth Circuit in an ERISA severance benefits case, and his client was awarded $255,000.00, plus attorneys’ fees.

Mark’s peers have recognized him for practicing employment law at the highest level of the profession. Based on high feedback from his peers in the Houston legal community, the publication Best Lawyersawarded Mark the honor of 2018 Lawyer of the Year for Houston Litigation - Labor and Employment. Furthermore, every year since 2009 Mark has been recognized as a Super Lawyer, a Thompson Reuters service printed in Texas Monthly. In addition, each year since 2015, the same publication has recognized Mark as a “Top 100 Houston Super Lawyer,” and in 2017 the publication named him a "Top 100 Texas Super Lawyer."

Mark regularly handles claims for race discrimination, retaliation, sex discrimination, sex harassment, age discrimination, disability discrimination (ADA), whistleblower, FLSA (unpaid overtime and minimum wage), Sarbanes-Oxley Act retaliation, Dodd-Frank Act retaliation, trade secrets and covenants not to compete, breach of contract, and many other types of employment law claims. For an overview of Mark's employment law experience click here.

Mark is a prolific speaker on a wide variety of employment law topics. Mark regularly speaks at seminars across the country on retaliation and whistleblowing for a preeminent CLE provider, the National Employment Law Institute. More than 10,000 people have viewed Mark’s on-line employment law classes for Lawline, and given him very high “course ratings.” Mark is also a frequent commentator on employment law issues in The Houston Chronicle, and many of the cases he has handled have been covered by media outlets throughout America.

Reviews

JB
Jim B.

Fantastically relevant material and excellent presentation/presenter - thank you!

FC
Frank C.

Excellent

KM
kay m.

Excellent update.

LD
Lisa D.

Great content.

BB
Bryan B.

Very timely information

MD
Marty D.

Very thorough. Good anecdotes.

RW
Rufus W.

Very thorough and understandable

FG
Fabian G.

Thank you for making the time to upload this informative video.

MA
Mattie A.

Excellent

LC
Loree C.

Scholarly and thorough.

DS
David L S.

Extremely will done presentation!

KL
Kirk L.

great

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