Here at the Law Office of Vincent Miletti, Esq. and the home of the #UnusuallyMotivated movement, we take pride as a resilient and dependable legal services firm, providing such services in both a traditional and online, web-based environment. With mastered specialization in areas such as Employment and Labor Law, Intellectual Property (IP) (trademark, copyright, patent), Entertainment Law, and e-Commerce (Supply Chain, Distribution, Fulfillment, Standard Legal & Regulatory), we provide a range of legal services including, but not limited to traditional legal representation (litigation, mediation, arbitration, opinion letters and advisory), non-litigated business legal representation and legal counsel, and unique, online legal services such as smart forms, mobile training, and legal marketing & development.

Still, here at Miletti Law®, we feel obligated to enlighten, educate, and create awareness about how these issues and many others affect our unusually motivated® readers and/or their businesses. Accordingly, to achieve this goal, we have committed ourselves to creating authoritative, trustworthy, and distinctive content that looks to educate and deliver in a manner that only Miletti Law® can. Usually, this content is featured as videos posted on our YouTube Channel https://www.youtube.com/channel/UCtvUryqkkMAJLwrLu2BBt6w and blogs that are published on our website WWW.MILETTILAW.COM. With the ball in your court, yours is an effortless obligation to subscribe to the channel and sign up for the Newsletter on the website, which encompasses the best way to ensure that you stay in the loop and benefit from the knowledge bombs we drop here!

As the authoritative force in Employment Law, we are committed to providing you with authoritative, up-to-date, and trustworthy content through which you can draw enlightening information to stay ahead of the game in your business. In this regard, this blog, titled “Breach of Restrictive Covenant Claims under the DTSA & UTSA,” is Part XVI of our multi-part series on the “Enforcement of the Protection of Employers’ Confidential Information & Trade Secrets.” In Part XV, we hammered on the “Tortious Interference Claims under the DTSA and/or UTSA” and mentioned that whenever a former employee misappropriates and/or uses confidential information or trade secrets to benefit a competitor, the former employer should consider making tortious interference claims with prospective economic advantage, business relationships, and contractual relationships. However, we added that it is crucial to note that courts will require an employer, as the plaintiff alleging tortious interference, to show that the defendant(s) used certain improper means or motives to act tortiously, as opposed to demonstrating that the defendant(s) engaged in legitimate competitive activity.

Having exhausted our discussion on “Common Law Tort Claims,” we have now switched gears to focus on “Common Law Contract Claims” in our blog and Part XVI of the series titled “Breach of Restrictive Covenant Claims under the DTSA & UTSA.”

Breach of Restrictive Covenant Claims under the DTSA & UTSA

The breach of restrictive covenant claim is one of the most common law contract claims brought by employers against employees who have engaged in the misappropriation of trade secrets and/or confidential information. Employers should assert a breach of contract claim in a complaint against a departing employee who, while still subject to one or more restrictive covenants, such as non-compete or non-solicit agreements, concerning using the former employer’s privileged information, engaged in unlawful theft, misappropriation, and/or use of such trade secrets and confidential information.

However, in order to avoid dismissal and/or enhance the success of litigation, every employer should consider a number of issues when bringing a breach of restrictive contract claim in a court of law. Such issues include, but are not limited to:

  • Practical and legal considerations under state law
  • Strategies and techniques for succeeding in a lawsuit and how to ensure restrictive covenants between the employer and former employee have been restored and enforced
  • Steps and process of conducting discovery of a breach of restrictive covenant incidents, including, but not limited to taking depositions, serving written discovery, and expedited discovery
  • The feasibility and appropriateness of seeking injunctive reliefs (preliminary injunctions or temporary restrictive orders (TRO)) to bar the former employee (and their new employer) from utilizing the misappropriated trade secrets and/or confidential information to obtain a competitive advantage-and-
  • The process and steps to be taken in the preparation of a restrictive covenant lawsuit, including issuing litigation hold notices and drafting desist and cease letters.

In Part XVII of this series, we will switch gears and hammer on the issue of “employee raiding” and the steps employers may take to prevent it from happening in our blog titled “Legal Considerations for Employee Raiding under the DTSA & UTSA.”

Until then, stay tuned for more education, training, and legal guidance. In the interim, reach out to us with questions and/or comments on our website at the Contact Us page!

Always rising above the bar,

Isaac T.,

Legal Writer & Author.