i2023 was a banner year for trade secrets, non-competes, and other restrictive covenants. Employee non-competes continued to garner attention at the federal agency level, drawing commentary and action from the Federal Trade Commission, the National Labor Relations Board, and the US Department of Justice.
Despite this, very little was done at the federal level to move the needle in terms of enforcement or rule enactment. By contrast, several state legislatures enacted new statutes materially limiting or effectively prohibiting most employee non-competes.
The number of reported trade secrets cases across the country also remained high in 2023, with courts focused on the technical requirements for identification and protection of trade secret information, and overturning significant damages awards when litigants fell short of those requirements. Against this background, and particularly in light of the growing hostility to employee non-compete provisions, companies heading into 2024 will be well advised to be proactive on implementing effective trade secret protection plans and monitoring their application.
Alexander H. Spiegler, Ari Asher, Alexandra M. Romero, Andrew Baskin, Mariam Chamilova, Nicholas L. Collins, James D. Cromley, Nicole M. Curtis, Oscar A. Figueroa, J. Maxwell Heckendorn, Morgan R. Pankow, Sara J. (Hickey) Wiseman, Trevor M. Jorgensen, Roberto Martinez, Pascal Naples, and Stella T. Oyalabu also contributed to this report.
