Category Archives: Litigation Issues

Quirky Question #281: Deploying the DTSA

Question: We believe our former employee recently stole some of our trade secrets and went to a competitor.  Can we rely on the Defend Trade Secrets Act to bring suit in federal court?


Question #273: Crafting a Concrete Non-Compete

Question: Our company uses non-compete and non-solicit agreements that bar former employees from having contact with any client of our company after they leave. One former employee who recently left is now claiming the agreement is invalid because it is “overly broad” in that it bars him from soliciting not only those clients of ours he used to work with, but clients he never had any dealings with.  I can see his point, but at the same time, how are we supposed to know when he signs the agreement which of our clients he will end up working with?


Quirky Question #268: E-Sign Away!

Question: We have our electronic handbook and arbitration agreement online, and all employees sign both electronically.  I saw a news blurb that a California court last year refused to enforce an arbitration agreement that was electronically signed.  Can’t we use electronic signatures in California?


Quirky Question #200, Reporting Payments Under Settlement Agreements


We try and settle threatened lawsuits with lump sum settlements which include wages, tort damages, reimbursement of medical costs and attorneys’ fees. We pay the lump sum to the employees’ attorneys (Trust fund), issue a 1099 to the employee for the amounts paid, not including attorney fees, and a 1099 to the attorney for the attorney fees. We require the ex-employee to indemnify us in the event taxes are not paid. Is that a best practice? Answer→

Quirky Question # 196, Obligation to Indemnify Executive Accused of Criminal Conduct


I am the general counsel of a corporation in the medical device industry. Our company has its corporate headquarters in Minnesota, but we are incorporated in Delaware and have operations in 30 of the 50 states. Recently, I received a grand jury subpoena to produce documents — and learned that the Food and Drug Administration, the FBI, and the Department of Justice are each investigating whether our company violated criminal laws by shipping a medical device that the government believes had not been approved for use by the FDA.

After contacting the Assistant United States Attorney handling the case, I learned that one of our executives is a subject of the investigation. The government has contacted that executive and wants to interview her. She intends to retain counsel to represent her interests. She asked me whether the corporation will pay for her counsel. Does the company have to pay for her counsel? Even if the company does not have to pay, may the company do so anyway? If so, under what terms and conditions? If we decide not to pay for the attorney’s fees, can the executive challenge our decision? Is there anything else I should consider before we make a final decision? Answer→

Quirky Question # 195, Uniform Policies for Nationwide Employer — Which State’s Law Applies?


Our company does business in all 50 states. To the greatest extent possible, we like to have uniform employment policies for our employees, wherever they may be located. As you know, this goal is frustrated somewhat by the differences among state employment laws.

We have been considering using a standard employment agreement for all of our exempt employees. Our plan is to include a choice of law provision identifying Minnesota as the state whose law applies. We also want to make Hennepin County our choice of venue. It strikes us that the inconvenience of litigating in Minnesota may deter some disgruntled ex-employee from bringing suit. Will this approach fly? We’d appreciate any guidance you can provide. Answer→