TMB shareholder V. John Ella is scheduled to participate in a panel discussion on the topic of employee duty-of-loyalty litigation at the 2021 Biennial Conference of the Labor and Employment Law Section of the Federal Bar Association on February 26, 2021. This year the conference is being held virtually.

The breach of an employee’s duty of loyalty is an increasingly common claim asserted by employers concerned about unfair competition. With the passage of the Defend Trade Secrets Act (“DTSA”), more of these types of cases are being filed in federal court by employers against former employees. The law regarding duty of loyalty differs from state to state, but in most jurisdictions an employee cannot compete with their employer while still employed but may prepare to compete. There can be confusion as to whether a duty of loyalty exists in the absence of any fiduciary duty. There is also uncertainty as to available remedies, including damages, disgorgement, and the ability to seek injunctive relief.

This presentation will survey the law of various states and how they differ, including recent federal and state court decisions in this area. The panelists will also discuss topics particular to federal practice, such as which state’s laws apply for common law claims in conjunction with a breach of contract claim containing a choice-of-law provision; whether the DTSA preempts certain duty-of-loyalty claims; and whether a claimed breach of the duty of loyalty can be a “faithless servant” defense to a wage claim under the Fair Labor Standards Act. This seminar will provide an overview of duty of loyalty litigation across the country and tips for litigating them from both the plaintiff and defendant standpoint.

Other participants on the panel are Victoria Cundiff, a partner at Paul Hastings in New York; Laura O’Donnell, a partner and Co-chair of Litigation Practice Group at Haynes Boone in San Antonio; and Stephen Riden, a partner at the Beck Reed Riden LLP firm in Boston.

V. John Ella is an employment and wrongful competition law attorney based in Minneapolis, Minnesota. He has litigated many breach of duty-of-loyalty cases and often writes and speaks on this topic.