Richard J. Frey

Latest Articles

Non-compete agreements are currently exclusively regulated by a panoply of state laws. Coextensive with recent scrutiny over anti-competitive business practices relating to non-compete use, federal interest in non-compete regulation has heightened, culminating in a White House “Call to Action” urging certain state reforms. While there appears to be room for a limited level of federal regulation, such regulation should focus on bridging the information gap between employers and employees rather than blessing an overtly pro-employer…
Just in late last week: Netflix counters the Fox lawsuit with a jab of its own – Netflix claims that the employment agreements that Fox utilizes and its practices concerning those term agreements run afoul of California law. Since neither former Fox employee was bound for more than 7 years under an employment agreement (and therefore California’s Seven Year Rule doesn’t apply), Netflix relies on Section 16600 (the California prohibition against non-competes) as its rationale…
At first glance, you wouldn’t believe Netflix (formerly known as a distributor) would be a competitor of 20th Century Fox (known as a producer). If anything, they should be doing business with one another. But times change, and in this situation, the transforming entertainment industry pits Netflix (now alleged to be “an internet-based television and film producer”) against Fox (still a traditional TV and film producer). The dispute? Employee mobility and whether Netflix has violated…
On May 11, 2016, President Obama signed the Defend Trade Secrets Act of 2016 into law, effective immediately (DTSA; Amending 18 U.S.C. §§ 1832–1839). The DTSA creates a federal cause of action for trade secret misappropriation whereby aggrieved employers may now seek injunctive relief (including civil seizure orders), compensatory damages, exemplary damages, and attorneys’ fees arising from a party’s willful and malicious misappropriation of trade secrets in federal court.…
As we reported over the last few weeks, the Defend Trade Secrets Act of 2016 (DTSA) was close to becoming the first civil, federal law designed to provide a remedy for the theft of trade secrets. Yesterday, as expected, President Obama signed the DTSA into law. What does this mean for companies with valuable trade secrets to protect, and how will the DTSA impact trade secret law? The DTSA creates a private, civil cause of…
Update: Just a couple of weeks ago, we reported that the Defend Trade Secrets Act of 2016 had been passed in the Senate by a vote of 87-0. The House passed the DTSA by a vote of 410-2 on April 27, 2016. Enactment of the DTSA is a near certainty now, as President Obama has previously expressed support for the bill and is expected to sign it. Besides allowing access to federal courts for trade…
States have long provided protection for trade secrets, with most having enacted a version of the Uniform Trade Secrets Act (“UTSA”). The UTSA supplies a framework for imposing liability with respect to the misappropriation of trade secrets. Now, after several years of attempts, the federal government is close to enacting its own version of civil trade secret protection: the Defend Trade Secrets Act of 2016 (“DTSA”). The DTSA was introduced in the Senate with three…
A topic has repeatedly come up over the years that I wanted to address – is an enforceable non-compete in California required to be reasonable in duration?  Surprisingly, the answer is “NO”. Assuming you are in a situation where you can properly obtain an agreement not to compete (see Bus. Prof. Code 16600-16602.5), the only time limitation that the California requires is “for so long as … [the business] is carried on”. This means that…
With merger and acquisition activity on the rise among physician practices and hospitals, the big question the medical groups, hospitals, and physicians are asking is: Does a physician leaving a medical group/hospital have the right to inform his or her patients of that fact? Departing physicians argue that they have an ethical obligation, based upon patient rights, to inform their former patients of their departure so that those patients can decide whether to remain with…
Unauthorized access to electronic information can give rise to liability under The Computer Fraud and Abuse Act (the “CFAA”). In addition to state law causes of action that may be asserted, such as trade secret misappropriation, the CFAA provides a private right of action against unauthorized users who access a computer “without authorization” or who “exceed authorized access.” The CFAA is often the federal question that creates a basis for federal court jurisdiction over a…