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Colorado’s New HB 22-1317 Non-Compete Statute: Emerging Issues

Date: Thursday, February 9, 2023

Time: 9:00 a.m. – 5:00 p.m. MST

Location:
Sheraton Denver Downtown Hotel
1550 Court Place, Denver, CO 80202

Parking: Self-paid, self-parking available in various first come, first served area garages/lots here.

Registration Fee: Complimentary (no charge)

Join us for this conference jointly sponsored by the Colorado Association of Corporate Counsel (ACC) and Fisher Phillips.

This will not be your typical sit-and-listen-to-a-lecture conference. Rather, this will be a highly participatory gathering of experienced attorneys to discuss and generate consensus on presently unanswered questions arising out of Colorado’s newly enacted non-compete statute (“HB 22-1317”).

What type of issues will be discussed?
Examples include:

  • Does at-will employment continue to suffice as consideration?
  • Does 22-1317 (by implication) proscribe restrictive covenants contained in separation agreements?
  • Are employee nonsolicitation agreements (i.e., covenants not to recruit employees) governed by 22-1317?
  • Does the statute require notice for confidentiality agreements?

Who will attend the conference?
Seats are limited. The make-up of attendees (i.e., participants) will be designed to ensure a representative cross-section of attorneys. We want to ensure we have attorneys who typically represent employees; attorneys who typically represent employers; attorneys from big and small law firms and public interest firms; in-house lawyers from large and small companies; in-house lawyers from companies that tend to hire employees from competitors and companies that tend to require and enforce restrictive covenants; etc.

How will the conference operate?
The day will begin with an opening panel to set the context for discussion later in the day. The panel includes Representative Kerry Tipper (the primary author of 22-1317), Magistrate Judge Kristen Mix, and recently retired Colorado Court of Appeals Judge David Richman. After the opening panel, the conference will shift to a highly participatory format. Topics like those listed above will be teed up for discussion, and the attendees will be anonymously polled to determine what consensus, if any, exists. (To foster candid debate, we will require attendees to sign confidentiality agreements promising there will be no attribution of comments to participants outside the conference. This way, no one will be permitted to hold an “argument” against someone in the future.)

Will we generate any work product?
After the conference, we will prepare a written report that summarizes the discussions (without attribution to any particular participant) and results of the polls. The desire is that the work product may serve as a useful reference to courts encountering some of the unique issues discussed, and perhaps as an aid to future legislative efforts. 

Breakfast, lunch, snacks, beverages and a cocktail hour will be provided.

Fisher Phillips will make all reasonable efforts to obtain CLE credit for this program in every state that is relevant to attendee’s MCLE needs. In certain instances, some programs may not be awarded CLE credit because of content, delivery or jurisdictional restrictions.

If you have any questions, please contact Ashley Ollison.

ACC Colorado
In-House Counsel Forum
Thursday, April 20, 2023

Join ACC Colorado for an afternoon of CLE education, networking and a hosted reception at the
Four Seasons Hotel Downtown Denver

REGISTER TO HOLD YOUR SPOT!

 

ACC Member Price
Member rate extended to paralegals and contract managers.
$45.00

Non-Member Price
$75.00
 

 

12:30 Doors Open & Registration
1:00 P.M. – 1:50 P.M. – 2 Sessions (1 CLE Credit)
2:00 P.M. – 2:50 P.M. – 2 Sessions (1 CLE Credit)
3:00 P.M. – 3:50 P.M. – 2 Sessions (1 CLE Credit)

4:15 P.M. – 5:15 P.M. – General Session
5:15 P.M. – 6:30 P.M. – Reception

1:00 PM – 1:50 PM – 2 Sessions

Ogletree

Cottonwood A: Leveraging Immigration Program Management in a Changing Business World
Business conditions, including labor market shortages, real estate prices, and the post-pandemic concerns, have caused employers to re-imagine their employment models. Some companies have been essentially forced into multi-jurisdictional situations to go where the talent is. Implementing and managing flexible work arrangements to remain competitive in a tight labor market is more important than ever. In this presentation, we will discuss using immigration benefits to respond to talent and labor demand and highlight recent federal enforcement activity in the area of immigration and employment eligibility verification (or Forms I-9). 
Presenters:

Ceridwen Koski, Shareholder, Ogletree Deakins 
Chris Thomas, Shareholder, Ogletree Deakins

Lauren Polk, Senior Corporate Counsel, Oracle

-OR-

Spencer

Cottonwood B: It Takes Two to Tango: Finding Alignment Between Business Objectives and Your Legal Department
Join Spencer Fane for an evaluation of what business leaders expect from their legal departments. In a recent survey of 100 GCs and law department heads, BRYTER found that only 12% believe ‘controlling legal spend’ is what the CEO or company’s board value most from the legal department. Instead, ‘supporting business objectives’ came top at 37%. This panel will respond to this intelligence and offer insights into how they work to balance the often-competing priorities of supporting business objectives and managing legal risks.
Presenters:
Kimberly Pryor, General Counsel, JBS USA Foods
Jon Watson, Partner, Spencer Fane

 

2:00 PM – 2:50 PM – 2 Sessions

Shook

Cottonwood A: What’s the Latest from the FTC and DOJ - Be in the Know
All signs point to even more antitrust enforcement in 2023. Shook Hardy & Bacon will provide an update on the FTC and DOJ’s priorities in 2023, with a particular emphasis on: (1) Non-Compete Provisions; (2) Information-Sharing; and (3) the Right to Repair. Non-competes are in the antitrust news because the FTC announced a proposed rule that would ban almost all non-competes. There has been uproar in response to this announcement, both on procedural grounds (that the FTC lacks authority to issue this rule) and substantive grounds (that this rule would make it difficult for companies to protect their legitimate business interests, such as protecting trade secrets). The focus of this discussion will be on what companies should do in light of the present uncertainty. Information-sharing is in the news because the DOJ recently withdrew policy statements providing for certain “safe harbors” for information sharing. We will talk about what this means for healthcare and other companies. Finally, we will talk about “the right to repair,” another government enforcement priority, which imposes uncertainty and obligations on many consumer goods companies. Additionally, we will also talk about other government enforcement priorities and what they mean for antitrust compliance.
Presenters:
Ryan Sandrock, Antitrust Co-Chair and Partner, Shook, Hardy & Bacon

Ian Papendick
 

-OR-

Kilpatrick

 

Cottonwood B: Protecting Your Company's IP in China: Manufacturers, Suppliers, and Competitors and the Pitfalls to Avoid
An unfortunate common occurrence in China is that individuals and other entities file patents on your company’s inventions. The entities may be competitors, manufacturers, opportunists, or even JV partners. The intention may be nefarious or simply the result of a misunderstanding and sometimes even a misguided attempt to help protect the company’s interests. In this presentation, we will discuss these issues and how to avoid or mitigate them.
Presenters:

Bobby Dickensheets, Director of IP and Legal, BOA
Charles Gray, Shanghai Office Managing Partner and Denver Office Partner, Kilpatrick Townsend 
Clark Weight, Partner, Kilpatrick Townsen & Stockton LLP   


3:00 PM – 3:50 PM – 2 Sessions

Perkins
Cottonwood A: Public Company Update

Join Perkins Coie for an update relevant to all publicly traded companies and those considering an IPO. Hear about the recent flurry of SEC rulemakings relating to ESG, cyber security and executive compensation and learn best practice trends on SEC disclosure and corporate governance topics.
Presenters:
Jason Day, Partner & Firmwide Corporate Co-Chair, Perkins Coie

Jonathan Schulman, Partner, Perkins Coie

Eric Gunning, Deputy General Counsel & Secretary, Allegion

 

-OR-


Merchant

 

Cottonwood B: Emerging Technologies in AI and Web3
Explore the evolution of the Internet with blockchain and artificial intelligence. Blockchain technology has reinvigorated digital art in the form of non-fungible tokens, or NFTs. Cryptocurrencies are using blockchain technology to send currency without the use of banks using smart contracts. Artificial intelligence is implementing shortcuts to everyday tasks and is used to create images out of digital memory. This presentation will provide an overview of these emerging technologies and the intellectual property issues facing companies daily.
Presenter:
Will Schultz, Partner, Merchant & Gould

 

 


BAR SPONSORED BY

DISCO
4:15 PM – 5:15 PM – General Session

So, You Want to Become CLO of Your Company?

You’re a vital member of your company’s legal team. You’re challenged by the work, inspired by the company’s mission, and you have your sights set on advancing within your organization.

  • What will it take to become the Chief Legal Officer of your company? 
  • Once you move into the CLO role, how do you succeed with this broad set of responsibilities?

Join this In House Counsel Forum General Session panel of prominent Colorado C-Suite Leaders in an open discussion of their experiences serving as and working alongside successful Chief Legal Officers.

 Panelists

Jacki Cooper Melmed, Chief Legal Officer, UCHealth

Jacki Cooper Melmed currently serves as Chief Legal Officer for UCHealth. Before joining UCHealth, Ms. Cooper Melmed served as Chief Legal Counsel to Governors Jared Polis and John Hickenlooper. Prior to working for state government, Ms. Cooper Melmed practiced law at Shoemaker Ghiselli + Schwartz and Hogan & Hartson. Ms. Cooper Melmed serves on the Board of Breakthrough, Colorado, and in June 2021, she was appointed to the Scientific and Cultural Facilities Board. Ms. Cooper Melmed is an avid hiker and skier and enjoys reading, cooking, travel, and spending time with her husband and, when allowed, two adult sons.
 

Bret Richmond, General Counsel, Forgen

Bret Richmond is a family man, General Counsel and coach. As the Executive Vice President and General Counsel of Forgen, Bret is a member of the executive team and is responsible for Forgen’s legal and risk management functions. With in-house legal experience in construction (Bechtel, Weifield and Forgen), aerospace (Space Systems/Loral), and renewable energy (SolarCity/Tesla), Bret is currently in his second General Counsel position. While the primary objective of his role as General Counsel is to provide excellent legal services to his internal and external clients in support of the business goals and objectives he has a passion for guiding people to develop and maintain a strong family life over the demands of their career. In his personal life, Bret is married to Sharon, and they have two young daughters. Outside of family time, Bret enjoys mountain biking, skiing and exploring the mountains of Colorado.

 Bob Chapman, Chief People Officer, Trilon

Bob has over 20 years of experience in the human resources profession across several industries and has been the Chief People Officer of Trilon since August of 2022. With a passion for strategic human resources, Bob has a deep understanding of cultural stewardship, enterprise talent management, executive development, and organizational effectiveness. Outside of work, Bob has a passion for the outdoors, skiing, playing hockey, creating music, and spending time with his four kids.

Moderator

Sarah Burrows, Senior Lead Counsel, Cruise

Sarah Burrows is Lead Counsel at Cruise, a GM subsidiary focusing on autonomous vehicles, where she focuses on new product innovation and strategic transactions.  Previously, Sarah focused on intellectual property and complex transactions at Knobbe Martens Olson & Bear, HP, and Cognizant.  Sarah worked as a software developer prior to attending law school and is a trusted advisor in the intersection of law and technology.  Sarah grew up in Kentucky and moved to Colorado in 2012.

 


5:15 PM – 6:30 PM - Networking Reception

 


AGENDA:
  • 9:00 a.m. to 10:00 a.m. - Fisher & Phillips LLP

  • 10:00 a.m. to 10:30 a.m. - BREAK

  • 10:30 a.m. to 11:30 a.m. - Gordon Rees Scully Mansukhani, LLP

  • 11:30 a.m. to 12:00 p.m. - BREAK

  • 12:00 p.m. to 1:00 p.m. - Ogletree, Deakins, Nash, Smoak & Stewart, P.C.


Session I – AI and Predictive Analytics Are Changing HR and Recruiting: The Risks and Rewards

Amazing things can be done with AI/predictive analytics and their use has boomed in HR.  80% of companies use some form of AI/predictive analytics in their HR functions.  This collision of mathematics, psychology, and industrial relations is known as People Analytics.  

The main risks in using these tools in HR is hidden bias and disparate impact and we are starting to see some regulatory bodies taking bold steps to address the problem of bias and algorithms.  The EEOC released guidance regarding the use of AI tools in employment.  Some states proposed laws regulating the use of AI in employment.  Congress is considering the American Data Privacy and Protection Act (ADPPA).  

Our presentation will focus on the new, emerging landscape of AI, employment law, compliance with NY Local Law 144 and the copycat laws that will surely follow as well as cross-border implications for those doing business internationally.

Session II – Work from Anywhere: Remote/Hybrid Work and Nationwide Compliance

Employees are insisting on remote and hybrid work arrangements. They enjoy the flexibility, work/life balance, and even the ability to move to other states throughout the country.  These arrangements, however, are posing significant legal challenges for employers whether it is the impact of varying state laws or involving tracking overtime, family leave, or remote workforce monitoring.  This program will identify these challenges and provide strategies for handling these concerns.

Session III - It’s Time For Me to Fly!  Avoiding Nasty Restrictive Covenant Entanglements

The market is hot, people are on the move, and restrictive covenants are in play.  What can employers do during the recruiting process to avoid the potential chaos associated with restrictive covenants, trade secrets, and related employment issues? How does the FTC’s recent announcement impact the unfair competition landscape, if at all?  This session provides an FTC update and explores the strategies from both the plaintiff and defense sides, including planning and executing strategic attorney-client privileged communications, drafting critical at-hire agreements, preserving information, protecting the C-suite in potential litigation, shoring up practices and policies to ensure protection of confidential and trade secret information, preparing a coordinated exit process (especially for high-level departures), developing a communications/public relations plan, and managing litigation.

Use the red Register button to RSVP.  The Zoom link is shown below, and will also be provided with your completed registration.

 

https://accinhouse.zoom.us/j/95460083019

 

Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Charles E. McDonald, III
11 pages

The following flowchart is designed as an internal guide to assist managers in making a preliminary assessment of whether a job position may qualify for exempt status under the FLSA. This document is only designed to be a tool to assist in the implementation of new job positions. This flowchart does not take applicable state law into account which may impact the exemption analysis.

Resource Details
Audience: New to In-House, Legal Operations, Small Law Departments, Large Law Departments
Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Charles E. McDonald, III
10 pages

The following is a checklist of common policies appearing in employee handbooks. Please note that the checklist is overly inclusive and that not every policy listed within should necessarily be contained in a particular employee handbook. (That being said, the checklist also does not include every possible policy that could potentially be included in an employee handbook.) Policies included in an employee handbook vary by the employer’s preferences, size, workforce, states (and municipalities) of employment, and type of industry or business.

Resource Details
Interest Area: Employment and Labor
Audience: New to In-House, Small Law Departments, Large Law Departments
Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Christopher J. Meister, Lance R. Witcher
3 pages

Occupational Safety and Health Administration (OSHA) Investigation Checklist

Resource Details
Region: United States
Audience: New to In-House, Small Law Departments, Large Law Departments

Race to the Finish 2023

Speed into the New Year with 4.0 Hrs of CA CLE Credit including Competency Issues and Bias.
Lunch delivery included.

AGENDA

8:30am - 9:30am PT - Be it Resolved….Striving for a (Realistic) Work/Life Balance, presented by Lawyers Concerned for Lawyers of Pennsylvania (Competence Issues Credit)

9:40am - 10:40am PT - California Recycling: Keeping Up With the Chasing Arrows, presented by Farella Braun + Martel

10:50am - 11:50am PT - Oyez, Oyez, Oyez: A Look at High-Profile Cases in the Current SCOTUS Term, presented by Keker, Van Nest & Peters

11:50am PT - LUNCH DELIVERY (Order link sent to email address used to register. Order deadline: Jan 23)

12:00pm - 1:00pm PT - Implicit Bias In The Workplace: Ways to Address the Hidden Causes Underlying Known Risks, presented by Cozen O'Connor (Implicit Bias credit)

Participants must join using Zoom web link sent to the email they used to register to be eligible for CLE credit.

Dentons
2 pages

Learn about Nigeria's legal treatment of employees who resign in anticipation of disciplinary proceedings.

Resource Details
Interest Area: Employment and Labor
Region: Nigeria, Africa
Dentons
2 pages

Learn about the National Labor Relations Board's proposed rulemaking for replacement of 2020 rules for assessing joint employer status and how employers will need to manage temporary workers and contracts.

Resource Details
Region: United States, North America


Speed into the New Year with 4.0 Hrs of CA CLE Credit including Competency Issues and Bias. Lunch delivery included.

AGENDA

8:30am PT - Be it Resolved….Striving for a (Realistic) Work/Life Balance, presented by Lawyers Concerned for Lawyers of Pennsylvania (Competence Issues Credit)

9:40am PT - California Recycling: Keeping Up With the Chasing Arrows, presented by Farella Braun + Martel

10:50am PT - SCOTUS Update, presented by Keker, Van Nest & Peters

11:50am PT - LUNCH DELIVERY

12:00am PT - Labor & Employment Program, presented by Cozen O'Connor (Elimination of Bias credit)

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