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Trade Secrets & Restrictive Covenants: 2025 Recap, 2026 Outlook (Fairly Competing, Episode 28)
In this episode of the Fairly Competing podcast, recorded on December 19, 2025, John, Ben, and Russell take a look back on some of the significant developments in trade secret and restrictive covenant law in 2025, make some predictions about what to expect in 2026, and provide some practical takeaways.
The episode covers the sharp shift in federal noncompete policy, highlighting how the FTC and NLRB moved from pursuing sweeping nationwide bans to a strategy of individualized enforcement actions, with the FTC particularly targeting the healthcare and staffing industries. At the state level, John, Ben, and Russell identify the continuing wave of new legislation — most notably Florida’s “CHOICE Act,” which dramatically strengthened noncompete enforceability, contrasting sharply with stricter trends in states like California, Wyoming, and many others. The discussion then turns to a deep dive into AI-driven trade secret litigation with guest Sarah Tishler, and concludes with a review of high-profile and high-stakes trade secret disputes and their implications for litigation moving forward.
So, come join us on Spotify or Apple Podcasts or YouTube.
Trade Secrets & Restrictive Covenants: 2024 Recap, 2025 Outlook (Fairly Competing, Episode 27)
In this episode, recorded on January 3, 2025, John, Ben, and Russell take a look back on some of the more significant developments in trade secret and restrictive covenant law in 2024, and try to give some insight into what to expect in 2025. We discuss the FTC’s noncompete ban, extraterritoriality of the Defend Trade Secrets Act, damages in trade secret cases, legislative changes to state noncompete laws, noteworthy cases from various states and the Third Circuit, and other issues and predictions.
So, come join us on Spotify or Apple Podcasts. Or, if you’re just looking for the feed, it’s here: Fairly Competing RSS feed.
FTC’s noncompete ban is no more. Now what?
On April 23, 2024, the FTC adopted a rule to ban virtually all employee noncompetes. The rule was scheduled to go into effect on September 4, 2024. But 15 days before – on August 20, 2024 – the United States District Court for the Northern District of Texas vacated the rule.
Companies and employees have a reprieve, but they should not let their guard down.
Join John, Ben, and Russell for a discussion of what happened, what to expect going forward, and what companies should do now to protect their trade secrets, confidential information, customer goodwill, and the integrity of their workforce.
Listen to us on Spotify or Apple Podcasts. Or, if you’re just looking for the feed, it’s here: Fairly Competing RSS feed.
FTC to ban noncompetes: What you need to know
On April 23, 2024, the FTC adopted a rule that bans virtually all employee noncompetes. The rule is scheduled to go into effect on September 4, 2024. If that happens, how will companies protect their trade secrets, confidential information, customer goodwill, and the integrity of their workforce?
Join John, Ben, and Russell for a discussion of what the FTC’s noncompete rule will do, when it will go into effect, legal challenges to the rule, and what companies can do to limit the impact of the new rule.
Listen to us on Spotify or Apple Podcasts. Or, if you’re just looking for the feed, it’s here: Fairly Competing RSS feed.
Guest Starr Discusses The Research Behind the FTC’s Proposed Noncompete Ban (Fairly Competing, Episode 21)
The FTC’s proposed ban on noncompete agreements (and other “de facto” noncompetes) relies in large part of the research of University of Maryland’s Robert H. Smith School of Business Professor Evan Starr — one of the leading scholars in the field.
Join John, Ben, and Russell as they talk with Professor Starr about the strengths and weakness of his research, key insights he has into other research in the field, and an important working paper of HEC Paris Professor Jessica Jeffers, The Impact of Restricting Labor Mobility on Corporate Investment and Entrepreneurship.
So, come join us on Spotify or Apple Podcasts. Or, if you’re just looking for the feed, it’s here: Fairly Competing RSS feed.
Exploring the FTC’s Proposed Ban on Noncompetes (Fairly Competing, Episode 20)
The FTC just proposed a ban on noncompetes with virtually no exceptions. And, they have placed nondisclosure agreements and other restrictive covenants squarely in the crosshairs.
Join John, Ben, and Russell as they take a look at the FTC’s proposed ban on noncompetes, how we got here, what the proposed rule would do and when, the potential practical and legal problems with it, the opportunity to provide comments to the FTC about it, what employers should do in the interim to protect their trade secrets and customer goodwill, and predictions on where this all goes.
So, come join us on Spotify or Apple Podcasts. Or, if you’re just looking for the feed, it’s here: Fairly Competing RSS feed.
Don’t go too far when investigating trade secret misappropriation by an employee (Fairly Competing, Episode 17)
When an employee leaves for a competitor, it’s not uncommon for the former employer to investigate whether the employee took information on the way out the door. But, a recent case from the Georgia Court of Appeals, Patel v. Duke Hospitality LLC, highlights some limits on what the former employer can do.
As Ben discusses in a recent article about the case, “Employers often assume they are empowered to exercise broad discretion when investigating employee computer misconduct, especially when employees are suspected of using company emails or computers to engage in the misconduct. However, employers should be aware of potential liability that could arise from their digital investigations and monitoring of employee computer and email use.”
In this episode, John, Ben, and Russell discuss how the teachings of the Patel v. Duke Hospitality LLC case affect what employers can and cannot do when they suspect misappropriation by a departing employee.
So, come join us on Spotify or Apple Podcasts. Or, if you’re just looking for the feed, it’s here: Fairly Competing RSS feed.
Fairly Competing, Episode 10: The Supreme Court’s Decision in Van Buren v. U.S. (Computer Fraud and Abuse Act)
In this episode, John, Ben, and Russell explore the Supreme Court’s decision in Van Buren v. U.S., narrowly interpreting the Computer Fraud and Abuse Act, 18 U.S.C. § 1030 — and what it means for protecting proprietary electronic materials.
So, come join us on Spotify or Apple Podcasts. Or, if you’re just looking for the feed, it’s here: Fairly Competing RSS feed.
Fairly Competing, Episode 7: Trade Secret Roundtable on Developments and Emerging Issues (NERA Economic Consulting Program, Part 2)
This episode is a departure from our usual. We are making available (through this episode and the last) Trade Secret Roundtable on Developments and Emerging Issues, a program presented by NERA Economic Consulting at which John, Ben, and Russell were panelists, along with Dr. Stephanie Demperio and Vicki Cundiff.
In our last episode, part one of the program, we covered what satisfies the reasonable efforts requirement and considerations in early case assessment, including when and how to involve an expert.
In today’s episode, part two of the program, we cover how the COVID-19 pandemic has impacted trade secret litigation and new developments in noncompete legislation and the expected impact on trade secrets litigation.
You can follow us on Spotify or Apple Podcasts. Or, if you’re just looking for the feed, it’s here: Fairly Competing RSS feed.
Fairly Competing, Episode 6: Trade Secret Roundtable on Developments and Emerging Issues (NERA Economic Consulting Program)
This episode is a departure from our usual. We are making available (through this episode and the next) Trade Secret Roundtable on Developments and Emerging Issues, a program presented by NERA Economic Consulting at which John, Ben, and Russell were panelists, along with Dr. Stephanie Demperio and Vicki Cundiff.
The program covers emerging issues in trade secrets litigation, including what satisfies the reasonable efforts requirement; considerations in early case assessment, including when and how to involve an expert; how the COVID-19 pandemic has impacted trade secret litigation; and new developments in noncompete agreements and the expected impact on trade secrets litigation.
You can follow us on Spotify or Apple Podcasts. Or, if you’re just looking for the feed, it’s here: Fairly Competing RSS feed.
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