Earlier this year, Berman Fink Van Horn participated in the 2025 Georgia ICLE Restrictive Covenants and Trade Secrets Seminar, and I had the pleasure of being a panelist—and even more fun getting to stick around for the rest of the day’s events. From Georgia-specific nuances to broader federal trends, each panel offered valuable information and fresh perspectives.
Here are 10 key takeaways that I found particularly impactful and useful for navigating practice in this area:
1. Georgia’s Restrictive Covenant Statute Sets a Permissible and Flexible Standard
Don’t be fooled by job titles alone. Georgia courts dig deeper than surface-level labels when determining who is excluded from or covered by the state’s noncompete statute. They evaluate the broader implications of how one interpretation can impact the statute’s application on a broader scope of the restraint of trade. It’s a reminder that there are no hard and fast rules.
2. Georgia’s Statute Lacks Clear Guidance on Non-Recruitment Covenants
Although Georgia’s restrictive covenant statute doesn’t explicitly mention non-recruitment clauses, courts have wrestled recently with how the statute’s rules apply to this particular type of covenant. The Georgia Supreme Court recently held that no express geographic term is required for a non-recruitment covenant to be deemed reasonable. The statute was interpreted to permit the geographic scope in a non-recruit to be described in non-geographic terms.
3. Georgia’s Blue Pencil Rule Isn’t a Magic Wand
Georgia courts likely won’t rewrite a poorly drafted covenant. Instead, they’ll likely only strike or narrow overly broad provisions. Want to avoid problems? Draft precisely and anticipate judicial scrutiny. The more tailored the better.
4. Trade Secrets Must Actually Be… Secret
Under the Georgia Trade Secrets Act (GTSA), it’s not enough for information to be valuable—it must derive that value from its secrecy. If the secret’s already out (or easily reverse-engineered), it likely won’t qualify. Secrecy isn’t just a box to check; it’s a key element for protection.
5. The Inevitable Disclosure Doctrine as a Noncompete
The inevitable disclosure doctrine could become a judicially imposed noncompete used to protect the inevitable disclosure of trade secrets. Courts may use the inevitable disclosure doctrine as a way to protect an employer’s business interests when a noncompete doesn’t exist or is difficult to enforce. But it is a controversial doctrine that many states reject or only apply in limited circumstances.
6. Forum Selection and Filing First Can Make or Break Your Case
The procedural side of restrictive covenant litigation is just as important as the substance. Draft clear forum selection clauses to avoid confusion and be strategic about filing first. The “first-to-file” rule could give your client home-court advantage.
7. Avoid Surprises: Screen for Restrictive Covenants Before You Hire
When bringing on a new hire, it’s crucial to ask about any existing noncompetes or other restrictive covenants. This helps avoid litigation surprises down the road—and could be the difference between a successful strategic hire and a PR disaster.
8. Forensic Investigations Go Beyond Laptops
Trade secret theft isn’t limited to laptops and emails anymore. Think Slack, project management tools, key card logs, video feeds—even AI systems. Forensic protocols must account for the full digital (and physical) ecosystem in which sensitive information lives.
9. For the Associates: Maintain Open Communication and Think Creatively
Associates facing time-sensitive restrictive covenant or trade secret litigation should keep open lines of communication with partners and help manage expectations. Use each case to dive into the specific industry and get creative. Dig deep into calendars, task lists, and obscure documents—because the “smoking gun” might not be in plain sight.
10. The Federal Assault on Noncompetes Isn’t Over
While the FTC’s sweeping rule may be on shaky ground, the push to curtail noncompetes isn’t going away. With California expanding protections even for out-of-state employees of California companies, and bipartisan interest in reform at the federal level, it may be time to reassess how (and with whom) you use noncompetes in your agreements.
Final Thoughts
Restrictive covenant and trade secret law is a moving target. From recent developments to creative applications and work arounds, this year’s CLE made one thing clear: the best defense is a well-informed offense. Whether you’re drafting a clause, defending a client, or navigating a complex departure, keeping up with these developments is essential.