Suddenly noncompetes and trade secrets are public policy issues. Congress is moving ahead with the first federal trade secrets statute—the Defend Trade Secrets Act. Its interplay with state laws governing employment agreements will be a hot topic. Several states have adopted new noncompete statutes. Worried its tech industry is falling behind Silicon Valley, Massachusetts nearly adopted California’s prohibition on noncompetes before conceding to opposition from more traditional corporate employers. Economists and law professors are engaged in a rich theoretical and empirical exploration of the impact of noncompetes on economic growth and innovation. And New York Attorney General Eric Schneiderman is reportedly investigating employers’ use of noncompetes for junior employees in the media and food services industries.1
New York’s policy on employee mobility is set through thousands of commercial disputes involving noncompetes, trade secrets, and fiduciary duties decided on a case-by-case basis. So, how is New York’s judge-made common law of employee mobility evolving in light of the economic policy questions raised in the broader debate?
Noncompetes Are Pervasive
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