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, legal marketing and development.

Still, we, here at Miletti Law®, feel obligated to enlighten, educate, and create awareness, free of charge, 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, & distinctive content. 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 that, the ball is in your court and you have 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 feel the positive impact of the knowledge bombs that we drop here!

As the authoritative force in Employment Law, it only seemed right to introduce one of the many upcoming series in which we introduce a variety of topics that looks to educate and deliver in a manner that only Miletti Law® can. In this regard, this blog is Part III of our new series on “Trade Secret Misappropriation & Restrictive Covenant Claims.” In Part II, we provided you with an overview of “Strategies for Determining Whom to Sue” and mentioned that depending on the initial investigation, evidence gathered, and several other factors, the former employee, the new employer, and/or other potential individuals may be named the defendant(s) in a trade secret misappropriation and/or breach of restrictive covenant litigation.

As a way of continuing the discussion, we have provided you, in this blog and Part III of the series, with a hands-on guide regarding “How to Determine Where to Sue/Choosing Your Forum” when it comes to litigating for trade secret misappropriation and/or breach of a restrictive covenant.

How to Determine Where to Sue/Choosing Your Forum

At times, employers may find themselves in a dilemma concerning the most appropriate place to have their litigations. Any employer requires knowing what factors and/or issues to consider to make such a decision. For instance, while an employer may just need to check an agreement and then decide, such an employer may also require analyzing a number of strategic and practical considerations and a thorough review of state laws. In this regard, here are some of the key issues and factors an employer may consider as a way of determining where to sue or choosing the forum for litigation:

  1. Relevant clauses in the agreement between employer and employee – in most cases, restrictive covenants contain provisions that address the forum, dispute resolution procedures, and venues. This goes without saying that employers should ensure that restrictive covenants signed between them and their employees should have such provisions. This is because such a provision would be a direct answer to the employer’s question, “where should I sue.” For example, such a provision may indicate that the forum for all claims will be a specific jurisdiction (e.g., New York State’s state or federal courts) or be a particular venue (e.g., the U.S. District Court for the District of New Jersey). However, employers should also understand that no matter how ironclad they might appear on paper, courts do not always enforce forum and venue clauses.
  2. The favorability of a given forum and venue compared to another– at times, some forums tend to be more favorable than others. For example, because of state variations in the enforcement of some statutes, an employer might want to consider whether the judges in the forum of consideration have shown a propensity for denying or granting injunctive relief requests. Further, employers should also factor in the issue of relative docket speed, which implies the period a judge might take to rule on one’s claims in a particular venue. Finally, it is also crucial to consider emerging issues, such as COVID-19, which has significantly affected the choice of forums and venues in many states, particularly as it concerns the presentation of witness testimony and/or evidence.
  3. The location of witnesses and/or parties – in order to decide where to file a complaint, an employer should always consider the facts on the ground irrespective of whether or not a covenant provides guidance regarding the choice of forum. Examples of crucial factors to consider include, but are not limited to:
  • The location of both the former and new employers’ offices.
  • The current place of residence of the former employee and/or their supervisor(s).
  • The location where the former employee resided while working for the former employer-and-
  • The location of the clients the former employee may have solicited contrary to the restrictive covenant.

After considering these factors, the employer should remain compliant with court venue rules and establish proper jurisdiction over all the defendants named. The employer should then determine the availability and appropriateness (whether within a forum’s subpoena power) of relevant documents and/or witnesses. Finally, every employer should know that courts in most states tend to enforce an existing clause on the choice of the forum only if such a forum does not offend public policy and bears a sufficiently close relationship to the transaction at issue, given that the agreement contains such a clause.

In Part IV of this series, we shall move the discussion forward and hammer on “Drafting a Complaint & Asserting Cause of Action: Considerations,” as it concerns trade secret misappropriation and/or a breach of a restrictive covenant.

In the meantime, stay tuned for more legal guidance, training, and education. In the interim, if there are any questions or comments, please let us know at the Contact Us page!

Always rising above the bar,

Isaac T.,

Legal Writer & Author.