Wendi S. Lazar has written one of the most thought-provoking analyses of the economic policy impact of New York noncompete law I’ve seen in the two decades I’ve been practicing in this area (“New York’s Post-Employment Restrictions Limit Mobility,” March 31). Those of us who litigate noncompetes would be wise to follow her example of thinking about the impact of our speciality on innovation and job growth in our region’s economy.
But Lazar vastly overstates her case by contending that digitization of information has outmoded common law trade secrets protection and should send enforcement of restrictive covenants off into the sunset. Indeed, she relies on a couple of cases from the late 1990s when New York courts, then-unfamiliar with the Internet, enforced noncompetes on theories that would attract greater scrutiny today from judges fully familiar with the impact of new technologies on the workplace.
The right balance between corporate proprietary information and employee freedom of mobility remains the proper function of our common law courts—and assessing the impact of that balance on the development of New York’s tech economy is a critical inquiry. But eliminating the balance and skewing the law to always favor departing employees over the sometimes legitimate protectible interests of the businesses that employ them is too rash of an answer.
The author is a partner at BakerHostetler