Determining whether non-compete litigation is on the rise or declining is a tough question to answer. There is certainly anecdotal information – a lot of people have called me about enforcing a non-compete, but that’s not accurate. A lawyer from Boston named Russell Beck puts together a nationwide chart every year that addresses this issue based on decisions from state and federal that involve non-compete and trade secret cases. Without getting into how his analysis works, his conclusion is that non-compete litigation has remained about the same the last few years and trade secret litigation has continued to increase. Of course there is a mix between the two types of cases so there is some overlap.
Russell’s review is the closest thing I have seen to a real analysis of this issue. We’ll never really know because a significant amount of cases are resolved without and opinion and could be decided at the temporary restraining or temporary injunction level or may just settle. But Russell’s approach at least gives us some information in terms of trends.
So to answer the question, non-comepte litigation is not on the rise on a national basis.