Eric Akira Tate

Tate co-chairs Morrison & Foerster's global employment and labor group, representing technology and other companies in trade secrets and employee mobility cases and in other types of litigation. He was in the thick of a major fight over trade secrets in the autonomous vehicle industry, defending Uber Technologies Inc. against Alphabet Inc.-owned Google's Waymo LLC. Tate knocked down Waymo's unfair competition claim. The case settled in 2018, averting the risk that Uber at trial would make admissions about trade secrets theft.

Now Tate is closely monitoring trade secrets and employee mobility developments amid the job market chaos of the Covid era. "Some judges are balancing competing interests in employment mobility cases," he said. "They're saying the job prospects are so dire there's not a compelling concern to crackdown on breaches of non-compete contracts that prevent defendants from getting a job."

He pointed to a federal judge in Indiana who, in an April 2020 ruling in a terminated worker's trade secrets case, noted that the worker had also lost her job with a competitor. That mitigated the risk of trade secrets misappropriation, U.S. District Judge Sarah Evans Barker of Indianapolis said in declining to tighten a preliminary injunction she'd issued earlier.

The judge added, "We take judicial notice of the broadscale economic disruptions caused by the Covid-19 pandemic that cast doubt on [the defendant's] employment prospects, as it does for the vast majority of Americans during these challenging times." BioConvergence LLC v. Attariwala, 1:19-cv-01745 (S.D. Ind., filed April 30, 2019).

Two federal judges in Pennsylvania, citing Covid-19, have cut similar breaks for defendants in non-compete cases, Tate's research showed. "Courts can often find case law going either way, and they sometimes decide depending on who is the bad actor in a case," he said. "We haven't seen it yet in California, but it's something I'm keeping my eye on. I live and breathe this stuff."

Tate represented nutrition products distributor Shaklee Corp. in state and federal court in Idaho when competitor Melaleuca Inc. sought a TRO based on Shaklee's hiring of a Melaleuca executive to head Shaklee's operations in China. He removed the case to federal court and had the TRO set aside. Melaleuca Inc. v. Shan, 4:18-cv-00036 (D. Idaho, filed Jan. 25, 2018).

Then Tate persuaded the court to dismiss the claim against the executive so that part of the case--in which the defendant had signed a non-compete agreement under Chinese law--could be litigated in China. "Getting the case back to China was critical, because Chinese law is more favorable to employees," Tate said. The entire matter was resolved in 2019 on terms favorable to Shaklee, he added.

-- John Roemer