Kathleen M. Mahan is a business litigator specializing in complex commercial disputes. Kate works closely with her clients to resolve matters pertaining to contract, intellectual property, and other professional disagreements, and, when necessary, pursue effective litigation action. Here Kate explains how she works with clients to navigate these challenging issues and why she favors a practical approach to problem-solving.
Why did you decide to become an attorney?
Growing up in Manchester, New Hampshire, I was intrigued by my father’s job as a police officer, particularly as a detective. I loved the idea of the investigative process – using bits of isolated information to build a complete picture. I was fortunate enough to spend a summer interning with then Assistant Attorney General Kelly Ayotte. I was able to see firsthand how the pieces could come together in a courtroom through detailed investigation and strong advocacy. After that summer, I knew I would pursue a career in the law. Even though I decided not to go into criminal law, that investigative process still is a big part of what I do.
What attracted you to Hinckley Allen?
There are so many things I could point to here, but one that I was particularly impressed by was the emphasis on collaboration to achieve the best result for the client. That culture of collaboration is important to me and I’m glad to have found it here at Hinckley Allen.
There is a lot of interaction taking place between the various practice groups and the regional offices – leveraging the knowledge available from the collective group rather than lawyers working as independent silos. In my short time here, I’ve now seen Hinckley’s team approach in action – and I am thrilled to be able to offer this wealth of knowledge to my clients.
What do you focus on in your practice?
I specialize in complex commercial litigation. I am most often dealing with sophisticated contract disputes between businesses or arising from a business relationship, such as a noncompete issue, but I also spend a fair amount of time dealing with intellectual property disputes. I have experience as a mediator as well, and I do tend to bring that lens into the cases I work on.
I approach my cases pragmatically and work to cut through the facts to get to the heart of the issues. From there, I can better assess what an achievable resolution might look like. There are times when a dispute simply cannot be resolved without proceeding to trial, but many times that is not the case. More often, a negotiated resolution where the client can retain a level of control over the outcome – rather than placing it into the hands of a judge or jury– is the better course.
How do you work through a complex commercial dispute with a client?
Every new matter begins with a review of the pertinent contracts and understanding the circumstances surrounding the dispute. This is my due diligence – I need to assess what the issues are, identify potential claims and defenses and their respective merits, as well as the dollars at issue or other available remedies. This allows me to provide an early assessment of what I see as the strengths of the case, potential pitfalls, and possible outcomes in discussing available options with a potential client, and the benefits and drawback of each option.
Family businesses can have some pretty complex commercial disputes and they are some of the biggest cases that I have worked on. Families will work together for years and think they do not need to have proper documentation or policies in place, and that works fine until it does not. I advise clients to treat their family businesses like any other business and to protect them as such. Regardless of who is involved, proper documentation is to everyone’s benefit. We can work with clients to set things up properly and avoid or mitigate future disputes.
What should employers and employees know about non-compete agreements?
When companies are looking to draft non-compete agreements, they need to know the boundaries of what a non-compete can do depending, in large part, upon the applicable state law. I am often approached by companies that have secured broad non-compete agreements that make it impossible for former employees to compete in the state and are surprised to find out the state law does not support that stance. My advice is to evaluate what its legitimate business interest is, what is truly necessary to protect that interest with respect to the particular position or individual, and only require restrictions necessary for that purpose.
If an employee is looking for advice regarding a non-compete agreement they signed, I start by reviewing the validity of the non-compete document itself – is it overbroad? Is it reasonably tailored to what is necessary to protect a legitimate business interest? Does it effectively prevent the person from working within a particular region or industry? My analysis also involves a review of the broader circumstances– for example, is this a type of position or an industry where imposing a noncompete is not proper, even if the language looks okay? There also may be circumstances surrounding the signing of the agreement that would make it invalid – for example, had the person already accepted and left a former job before being told of the non-compete obligation? That analysis then instructs the options available to the client, so we can have a discussion of the most strategic way forward to achieve the end goal.
Tell us about your work in trade secrets.
Trade secret issues are something that routinely come up in the context of business disputes. Maintaining the secrecy of that information is mission critical to a client claiming misappropriation – once the secrecy is lost, that information is no longer a “trade secret” and the business loses the protection, and competitive advantage it would otherwise enjoy. A litigator approached with a potential misappropriation event must work quickly to analyze the trade secret, assess the circumstances, and determine the best course of action to prevent use and/or disclosure by a potential misappropriator. My work in trade secret cases has spanned both New Hampshire and Massachusetts state and federal courts, where I have at different times represented plaintiffs and defendants facing trade secret misappropriation issues. I also would emphasize the importance of working with companies well ahead of any dispute to educate clients on what qualifies as a trade secret, and what should be done to protect them so that if a misappropriation does unfortunately occur, that business is in the best position possible to act immediately and do so successfully.