Kevin M. Cloutier

Kevin Cloutier is a partner in the Labor and Employment and Business Trials Practice Groups and Leader of the firm's Non-Compete and Trade Secrets Team. He acts as the hiring partner for the firm's Chicago office and is a member of the Diversity and Inclusion and Compensation Committees.

Areas of Practice

Kevin's national practice focuses on all areas of labor and employment law and business litigation, with an emphasis on high-stakes, employment-related litigation and proactive counseling of management-side clients. He is consistently recognized by his peers as one of the leading lawyers in Illinois and nationally, and has been named a Labor and Employment Star by Benchmark Litigation. On several occasions, former adversaries (both former adverse party companies and former opposing counsel who have moved in-house) have retained Kevin and his team following the conclusion of litigation due to the outstanding results they’ve achieved for their clients.

Kevin is an experienced trial lawyer with first-chair trial experience before state and federal trial and appellate courts all over the country, arbitrators, FINRA, the National Labor Relations Board and administrative agencies. He has successfully argued multiple law-changing and precedent-setting federal appeals on behalf of his clients. Kevin has represented clients in more than 25 states.

Kevin is widely recognized as one of the nation's leading unfair competition, non-compete and trade secrets lawyers and often prosecutes and defends actions involving the enforcement of restrictive covenants and non-competes, deceptive trade practices, trade secret claims, the Lanham Act, unfair competition and employee raiding claims. Kevin and his team brought one of the first lawsuits invoking the federal Defend Trade Secrets Act in 2016. He also assists clients with partnership dissolutions, deceptive trade practices and business “break-ups.”

In addition, Kevin manages class and collective actions, related to all forms of wage and hour disputes, including overtime and independent contractor issues. He regularly designs and then leads creative and successful defense strategies for complex class and collective actions. Most recently, he defeated conditional certification of an “off-the-clock” claim in federal court in Florida, gutting a collective of over 80,000 class members.

Kevin defends employers of all sizes in class and collective actions, multi-plaintiff and single-plaintiff cases, including statutory discrimination and harassment claims, wage and hour claims, whistleblower actions, antitrust, deceptive trade practices, retaliatory discharge, white-collar criminal matters, traditional labor law, employee privacy, tort and contract claims and ERISA benefits claims.

Kevin regularly conducts internal investigations for employers, boards of directors and special committees. He is an experienced and skilled investigator, handling investigatory matters involving whistleblower claims, harassment and workplace misconduct, code of conduct violation claims, conflicts of interest and other workplace claims. He has also worked with governmental agencies such as the OIG, DOJ and DOL in connection with such investigations.

Kevin is a member of the firm’s Private Equity Team and routinely represents funds and their portfolio companies in a variety of litigation and counseling matters. He also performs due diligence for fund clients in connection with acquisitions and regularly counsels them in connection with post-acquisition restructuring issues. Kevin also regularly prepares employment agreements, non-disclosure and confidentiality agreements, employee handbooks and human resources policies. He also counsels clients on the employment-related aspects of mergers, acquisitions and other corporate transactions.

In addition to his litigation and investigative experience, Kevin operates as a general employment and trade practices counselor to his clients and regularly advises and coaches human resource professionals and other business executives on how to comply with various human resources and employment laws. He counsels his clients and frequently presents training sessions on critical employment issues, such as harassment prevention and investigation, independent contractor classification, restrictive covenant, trade secret and non-compete situations, trade practices, unfair competition wage, payment and overtime FLSA compliance, employee privacy and biometrics, conducting effective workplace investigations, union avoidance and awareness, FMLA and time-off issues, reductions-in-force, labor disputes and general human resources strategies.

Further, Kevin assists multinational clients, primarily Canadian-based entities, in cross-border labor and employment issues in the U.S. He partners with multinational clients on strategic planning, compliance, global movement of employees and employee compensation and benefits issues. In addition, Kevin has established strong relationships with local counsel in many countries and frequently partners with foreign counsel to assist clients.

Kevin's client base is broad and geographically diverse and includes employers in private equity, venture capital, investment services, construction services, transportation, food and beverage, security services, eBusiness, energy, logistics, financial services, retail, healthcare, pharmaceuticals, software development, insurance and manufacturing.

In addition to his corporate work, Kevin is committed to pro bono work and has successfully represented several prisoner and of-need clients in important federal court litigation. He also regularly counsels non-profit social services agencies on a wide range of employment matters.

Honors

Labor and Employment Star - Midwest, Benchmark Litigation, 2019-2020

Illinois Super Lawyer, Super Lawyers, 2013-2020

Best Lawyer in America, Best Lawyers, 2014-2020

Rising Star, Illinois Super Lawyers, 2010-2012

Insights

Articles

•Three new laws slated for summer will require employers to be ready
Chicago Daily Law Bulletin, 02.20.2020
•New marijuana law has ins, outs employers should be aware of
Chicago Daily Law Bulletin, 02.13.2020
•Employers must pay attention to new laws, impact on workplace
Chicago Daily Law Bulletin, 02.06.2020
•Deposition Questions in a Trade Secret Misappropriation and Breach of Restrictive Covenant Action
Lexis Practice Advisor, 01.2020
•Discovery on Behalf of Plaintiffs in Trade Secret Misappropriation andBreach of Restrictive Covenant Actions
Lexis Practice Advisor, 01.2020
•Employment issues to consider when expanding in the United States
Financier Worldwide, 05.15.2019
•Trade Secret Litigation
IP Litigator, 12.2017
•More Legal Employment Traps to Avoid When Expanding South of the Border (Part 2)
The Lawyer's Daily, 07.20.2017
•Legal Employment Traps to Avoid When Expanding South of the Border (Part 1)
The Lawyer’s Daily, 07.10.2017
•Cybersecurity Measures to Protect Employers’ Confidential Informationand Trade Secrets
Lexis Practice Advisor, 05.11.2017
•Engaging in Discovery on Behalf of Plaintiffs in Trade Secret Misappropriation and Breach of Restrictive Covenant Actions
Lexis Practice Advisor, 05.2017
•Noncompete Agreements as Varied as Number of States, Courts
Chicago Daily Law Bulletin, 05.04.2017
• Engaging in Discovery on Behalf of Plaintiffs in Trade Secret Misappropriation and Breach of Restrictive Covenant Actions, Lexis Practice Advisor, January 27, 2017
• What Organizations Need to Know When Facing Conditional Certification Under Section 216(B) of the FLSA, Thomas Reuters, August 2016
•Co-Author with C.T. Oblander and K. Zeabart, “EPLI, Invasion of Privacy, and Identity Theft,” The John Liner Review, Vol. 19, No. 3, 21-35, Fall 2005
•He also has previously published articles in the Employment Law Strategist .

Labor & Employment Law Blog Posts

• Employers: Do Not Forget Your Sexual Harassment Prevention Training Requirement, May 4, 2020
• U.S. Supreme Court Case Preview-Van Buren v. United States: Does Use of a Computer for an “Improper Purpose” Violate the Computer Fraud and Abuse Act?, April 30, 2020
• DOJ and FTC Issue Joint Statement Regarding COVID-19 and Antitrust Violations, April 22, 2020
• The CARES Act: A Comprehensive Overview for Employers, March 31, 2020
• Illinois Statewide Stay at Home Order: What Employers Need to Know, March 20, 2020
• Proposed Bill Would Ban Employee Non-Compete Agreements in Illinois, February 19, 2020
• The Time Is Now for Employers in Illinois to Abide by New Laws, January 9, 2020
• Salary History Off-Limits Under New Illinois Equal Pay Law, August 2, 2019
• Actual Injury Unnecessary to Sue Under Illinois Biometric Law, February 5, 2019
• Lessons Learned: Tips on How to Allege and Argue Trade Secret Misappropriation at a Preliminary Injunction Hearing, August 30, 2017
• For Your Consideration: Recent State-to-State Developments on Sufficient Consideration for Employee Non-Compete Agreements, March 27, 2017
• New Guidance for HR Professionals Regarding Wage-Fixing and No-Poaching Agreements Highlights New Focus on Criminal Prosecutions and Raises New Concerns for Employer, December 5, 2016
• Illinois Limits Non-Compete Agreements Yet Again, September 7, 2016
• The Defend Trade Secrets Act - Coming to a Federal Court Near You, May 9, 2016
• An In-Depth Analysis of the NLRB’s Decision to Permit Employees to Use Employer Email Systems for Union Organizing and Other Non-Work Purposes, December 12, 2014

Media Mentions

•Noncompete Developments To Watch For In 2020
Law360, 01.14.2020
•Sub Shop Settlement Shines Light on Law
Chicago Daily Law Bulletin, 12.08.2016
•Non-compete Agreements Banned for Low-Wage Employees in Illinois
Cook County Record, 10.04.2016
•7 Important Noncompete Rulings From The 1st Half Of 2015
Law360, 07.16.2015
•Noncompete Ruling Means Headaches For Ill. Employers
Law360, 08.01.2013
•6 Tips To Maximize Noncompetes' Enforceability
Law360, 07.26.2013

Speaking Engagements

•Kevin is often invited to present at professional associations and industry seminars. He has presented a number of seminars on the interplay of the American with Disabilities Act, the Family and Medical Leave Act and Workers’ Compensation laws. In addition, he recently delivered a presentation regarding employment issues facing private equity firms and their portfolio companies and common employment issues arising in corporate transactions. He has also presented on employee (mis)classification issues under wage and hour laws and on emerging issues in trade secrets laws and noncompetes.

Events

•Labor and Employment Law Update
Sheppard Mullin Chicago, 11.28.2018

•Labor & Employment Law Update - New York
Spring 2017, 05.23.2017

•CLE Credits and Cocktails
Sheppard Mullin Chicago, 05.18.2017

•Labor & Employment Breakfast Briefing - Chicago
09.10.2015

•Sheppard Mullin's Labor & Employment Breakfast Briefing Series - Chicago
Labor & Employment Update, 06.25.2015

•Protecting Trade Secrets and Confidential Information: The Threat From Within
06.17.2015

•9th Annual Employment Law Conference
Hosted by Law Bulletin Seminars, 09.17.2014

•What Keeps You Up at Night?
Hot Topics in Domestic & International Labor & Employment Law, 06.21.2013

•2012 Labor and Employment Year in Review
How the U.S. Presidential Election and the Current Economy Will Impact Labor and Employment Laws in 2013 and Beyond, Grand Hyatt New York, 11.15.2012