Introduction - Litigation Bio

Emily Duke is a commercial litigator who helps businesses enforce their contracts, protect their trade secrets, and resolve distribution disputes efficiently and effectively. Emily also enforces and defends against non-compete and restrictive covenants in employment, distribution, and other commercial agreements. Some of Emily’s most successful cases involve disputes where the ability to distill the key facts and legal issues involved in a situation, anticipate the opponent’s strategy, and take quick action through expedited court procedures are critical to resolving matters favorably to her clients. Emily provides general business and compliance advice to an array of clients including those in the life sciences, financial services, franchise, food service and fitness industries.

Emily is also the Co-Chair of Fredrikson & Byron’s Electronic Discovery Resources Group and Franchise Group. Emily is well-versed in all aspects of e-discovery and uses a practical approach to e-discovery to manage costs and drive efficiency so her clients don’t break the bank. She covers the gamut of business issues for franchisors in situations including: disputes with franchisees, enforcement of non-competes, enforcement of contractual franchise requirements, advice on supply contracts, and advice on host retailer arrangements.

Education

• Harvard Law School, J.D., 1994, cum laude
• Yale University, B.A., Economics, 1988, magna cum laude with honors in Economics

Bar Admissions

• Minnesota, 1994
• U.S. District Court for the District of Minnesota, 1994
• U.S. Court of Appeals for the Eighth Circuit, 1996
• U.S. Supreme Court, 2009

Practice Areas

• Franchise, Chair
• Electronic Discovery Resources, Co-Chair
• Litigation
• Alternative Dispute Resolution
• Shareholder Disputes
• Securities
• Non-Competes & Trade Secrets
• Commercial Law
• Life Sciences
• Energy
• Renewable Energy
• Bankruptcy, Restructuring & Workouts

Representative Experience

• Employer vs. Group of Former Employees (Texas Federal Court, Minnesota State Court, AAA Arbitration): Represented employer in multi-jurisdictional corporate raiding claim. Obtained injunctive relief against executive who violated non-compete and took trade secret information to a competitor before hiring away numerous other employees, who also took trade secret information with them to the competitor. Successfully resolved case after winning key motions in various jurisdictions. Case involved forensic analysis of over a dozen computers.
• Former Employer vs. Employee (Minnesota State Court): Successfully defended employee who was sued by former employer for allegedly violating an unenforceable non-compete.
• Trade Secrets and Shareholder Litigation (Minnesota State Court): Successfully represented company in litigation against one of its co-founders who resigned and took reams of confidential and trade secret information, and successfully enforced restrictive covenants in co-founder’s employment agreement. Negotiated resolution of asserted counterclaims. Case involved voluminous e-discovery data and computer forensics.
• Manufacturer vs. Supply Vendor (Minnesota State Court): Sued component manufacturer for damages resulting from defective component and effectively negotiated resolution of case during discovery phase of case.

• Employer vs. Former Employee (California Federal Court): Obtained preliminary injunction, to protect trade secrets of employer, against former employee who stole customer information when he resigned.

• Buyer vs. Seller of Company (Florida State Court and Minnesota Federal Court): Represented Buyer of a business defending breach of contract and fraud claims brought by Seller. When Seller initially sued out-of-state, we sought and obtained enforcement of venue selection provision requiring suit to be brought in Minnesota. Successfully obtained dismissal of Breach of Duty of Good Faith and Fair Dealing claim prior to discovery. Obtained dismissal of all contract and fraud claims on summary judgment, thus avoiding lengthy jury trial.

• Buyer vs. Seller of Company: Represented Buyer of a business in exercising a “material adverse change” clause in an asset purchase agreement. Successfully avoided litigation while obtaining concessions on purchase price due to material adverse changes in the target business.

• Employer vs. Employee (Missouri Federal Court): Investigated claim of employee theft of trade secrets, counseled employer through termination process, brought suit to enforce non-compete, and successfully negotiated entry of stipulated permanent injunction against employee.
• Founder vs. Company (Minnesota State Court): Represented founder of Company in a 2-week jury trial involving officer and director indemnification. The case involved a novel issue of Minnesota law as to whether a former officer, who pleads guilty to a misdemeanor for Medicare fraud, can qualify for indemnification under Minnesota corporate statutes. Case also involved contract interpretation of payment formula under a phantom stock agreement.
• Medical Clinic vs. Former Employee (Minnesota State Court): Obtained ex parte TRO against disgruntled health clinic employee who threatened to shoot herself and clinic manager at one of several medical clinics owned by the client. Obtained relief for all clinic locations, the clinic manager, and the clinic’s employees. After obtaining TRO, successfully negotiated voluntary entry of 2-year harassment restraining order against the former employee.
• Seller vs. Buyer of Business Assets (Nevada Federal Court): Obtained prejudgment attachment order of all assets located in four stores on behalf of a secured creditor in case involving default on promissory note used to pay for business in sale of assets transaction. Prejudgment attachment enabled secured creditor to obtain control over the assets and prevent debtor from absconding with them.
• Franchisor vs. Defaulting Franchisee (California): Counseled franchisor on audit and immediate termination rights against franchisee who sold non-system branded goods but passed them off as being the franchisor’s goods in violation of trademark license and franchise agreement.

Selected Publications & Presentations

• “Administration Releases Strategy to Prevent Theft of U.S. Trade Secrets,” FredALERT: Trade Secrets, April 2013
• “Watershed 9th Circuit Opinion is Protective of Privacy on Electronic Devices,” FredALERT: Electronic Discovery Resources, April 2013
• “Say ‘Hello’ to the Elephant in the Living Room: Recognizing the E-Discovery Realities in Your Case,” co-presented with Hon. Jerome Abrams, Hon. Mary Vasaly, John Degnan and Heidi Fessler at the Annual Conference of Judges (Minnesota District and Appellate Court Judges), December 6, 2012
• “Avoiding the Storms that Lurk in the Cloud: Cloud Computing Is Changing the Face of Business,” co-authored with Asmah Tareen, as it appeared in the Star Tribune’s Business Forum, August 13, 2012
• Panelist, “The 2012 E-Discovery Briefing: How to Respond to Increasing Costs,” The Huron Legal Institute, June 5, 2012
• Panelist, “Cost Effective Review & Production Technologies,” Early Data Assessment Module, MSBA Civil Litigation Section, May 15, 2012
• “Taxation of E-Discovery Costs – What Might You Be On the Hook for at the End of the Case?,” FredALERT: Electronic Discovery Resources, May 2, 2012
• Presenter, “Thumbdrives, Emails and iPhones: Protecting Your Data When an Employee Leaves the Company,” Non-Competes & Trade Secrets Webinar, April 30, 2012
• Presenter, “Thumbdrives, Emails and iPhones: Protecting Your Data When an Employee Leaves the Company,” February 23, 2012
• “A Short Course on Contracts,” co-presented with Rhona E. Shwaid, Minnesota CLE Small Business Conference, November 30, 2011
• “Privacy in the Cloud – Who is Protected by the Electronic Communications Privacy Act?,” FredALERT: Electronic Discovery Resources, October 2011
• “Pitfalls of Electronic Privilege Review,” October 2011
• “Document Preservation: Toeing the Attorney-Client Privilege Line,” October 2011
• “When Your Facebook ‘Wall’ Comes Tumbling Down,” April 2011
• “E-Discovery Preservation and Production: Sanctions Are on the Rise – Plan Well, or Watch Out!,” March 2011
• “Cloud Computing – Where’s My Data?,” March 2011
• Co author, “Spoliation of Electronic Evidence: A Judicial Boiling Point?”, Pretrial Practice & Discovery, Volume 18, Number 4, Summer 2010, American Bar Association
• “Minnesota Contracts Update,” co-presented with John Satorius and Leah Janus, Minnesota CLE Webinar, June 22, 2010
• Minnesota Contracts Deskbook (Minnesota CLE), 2010 co-Editor with John Satorius
• “Covering Your Assets in the Age of Employee Mobility – Steps Employers Can Take To Keep Trade Secrets a Secret,” Fredrikson & Byron Trade Secrets Seminar, February 17, 2010
• Presenter, “The Life of a Lawsuit: Session 2, Discovery Phase,” MNACCA Series, July 16, 2009
• “Tips for Disputes Involving the Valuation of a Closely-Held Company,” co-authored with Jim Dorsey, May 2009
• “Creating Enforceable Noncompete Agreements with Bank Officers and Other Key Employees,” co-authored with Mary Krakow and Sarah Gibbs, Summer Associate, Banking & Law Journal, March 2009
• “Creating Enforceable Noncompete Agreements with Bank Officers and Other Key Employees,” co-authored with Mary Krakow and Sarah Gibbs, Summer Associate, FredNEWS: Bank & Finance, September 2008
• “E-Discovery: Myth, Monster or Both?,” Legal Link, June 2008
• “Long Awaited FTC Rule: Highlights of the Revisions,” co-authored with David P. Weber, Fredrikson & Byron Flash Focus, June 2007
• “Discovery in Shareholder Litigation: What’s Fair Game? (Getting the Goods While Defending Your Honor),” co-authored with Sten-Erik Hoidal, MSBA Continuing Legal Education 2007 Business Law Institute, May 2007
• “Discovery Strategies and Tactics in Shareholder Litigation: What’s the Game Plan?” co-authored with Sten-Erik Hoidal, Minnesota State Bar Association Continuing Legal Education, December 2005

Professional Activities

• Minnesota CLE: Contracts Deskbook, co-editor, 2010-present
• Minnesota State Bar Association: Civil Litigation Section – Governing Council (2003-2008) and current Member
• American Bar Association: Litigation Section, Pretrial Practice & Discovery Committee, Franchise Forum Member
• Ramsey County Bar Association: Member
• Minnesota Women Lawyers: Member
• Children’s Law Center: Foster Care Advocacy Project
• Project for Pride in Living: Board of Directors (July 2011-present); Budget and Audit Committee Member (April 2010-present)
• Prior to practicing law, Emily worked in corporate finance for a Fortune 100 company. Her experience included exposure to all aspects of finance for two of the company’s heavy manufacturing businesses.

Honors & Distinctions

• Named a Rising Star, Minnesota Law & Politics, 2003-2007
• NAWBO Women of Achievement winner, 2003
• Harvard Law School Ames Moot Court Competition, winner and oralist, 1993