Erika C. Birg is a partner in the Atlanta office of Nelson Mullins Riley & Scarborough LLP. Ms. Birg focuses her practice on commercial litigation, alternative dispute resolution, business torts, contract disputes, trade secrets, computer fraud and non-compete matters. She assists clients with protecting their business interests in complex commercial litigation cases involving fraud, federal and state RICO claims, defamation, breach of contract, breach of fiduciary duty and duty of loyalty, as well as trade secret misappropriation, franchise disputes, and intellectual property claims.

Ms. Birg has experience in all forms of dispute resolution, including mediation and arbitration, as well as litigation in federal and state courts across the country. She has also led complex internal investigations and State of Georgia bid protests.

Ms. Birg regularly consults on revisions to business-to-business merger and asset acquisition contracts, limited liability company agreements, employment agreements, invention assignment agreements and noncompetition agreements, as well as confidentiality and non-disclosure agreements designed to protect commercially sensitive and proprietary information.

A member of the Georgia, District of Columbia and Florida bars, Ms. Birg is admitted to practice before the U.S. Supreme Court, the U.S. Court of Appeals for the Fourth and Eleventh Circuits, the Georgia Supreme Court, and the Georgia Court of Appeals. She has been listed in Georgia Super Lawyers in 2010, 2011, and again in 2012.

Before joining the Firm, Ms. Birg was partner at another distinguished law firm in Atlanta and practiced in Washington, D.C. with Paul, Weiss, Rifkind, Wharton & Garrison LLP.  After graduating from Emory University School of Law, she clerked for the Honorable Stanley F. Birch, Jr. on the U.S. Court of Appeals for the Eleventh Circuit. Following her clerkship for Judge Birch, Ms. Birg clerked for the Honorable Willis B. Hunt, Jr., on the U.S. District Court for the Northern District of Georgia. Ms. Birg regularly presents and writes on topics related to trade secrets, restrictive covenants and RICO matters.  Ms. Birg is also a Lean Six Sigma Yellow Belt.

Publications

• "View from the Frontlines – Predictive Coding," Daily Report (Apr. 30, 2012)
• Founder and former editor-in-chief, www.tradesecretslaw.com, A law blog on Trade Secrets, Non-Competes, and Computer Fraud (2009-2011).
• Author, “Know Your Judge; Know Your Rules,” Fulton County Daily Report (May 10, 2010).
• Co-Author, “Georgia Gets Competitive,” Georgia Bar Journal (Dec. 2009).
• Co-Author, “After Bridge: RICO Class Actions at a Crossing,” Class Action Watch (May 2009).
• “Documents Don’t Talk,” Pretrial Practice & Discovery Newsletter, American Bar Association (Fall 2008).
• Co-Author, “Tribal Memory Can Lead To A Trade Secret Violation,” Executive Counsel (Jan./Feb. 2008).
• “Keeping it Safe: Staying alert to protect a company’s electronically maintained secrets,” Fulton County Daily Report (Feb. 4, 2008).
• Book Review: “David’s Hammer: The Case for an Activist Judiciary Book Review,” Georgia Bar Journal, Vol. 13 No. 2., at 66-67 (Oct. 2007).
• “Lawyers On the Road: The Unauthorized Practice of Law and the 2004 Presidential Election,” 9 Texas Review of Law & Politics 305, reprinted 3 Professional Liability Litigation @lert Newsletter 14 (ABA Section of Litigation, Summer 2005).
• “Waging War Against Binding Arbitration: Will Trial Lawyers Win the Battle?” 4 Engage 112 (May 2003), available at http://www.fedsoc.org/Publications/Engage/may03.pdf.
• “Is the Public Company Accounting Oversight Board Constitutional?” Federalist Society, Corporate Responsibility Project, Analyses of the Corporate Responsibility Legislation: Sarbanes-Oxley Act 2002 (Nov. 2002), available at http://www.fedsoc.org/Publications/Corpresp/ApptClauseFinal.pdf.
• “Application of the Inevitable Disclosure Doctrine in Georgia,” Georgia Bar Journal (Apr. 1999)
• Comment: “Redefining ‘Owner or Operator’ Under CERCLA to Preserve Traditional Notions of Corporate Law,” 43 Emory L. J. 771 (1994).

Representative Engagements

Intellectual Property, Trade Secret, and Unfair Competition Litigation:

• Prosecute claims against multiple business competitors for trade secret misappropriation, false advertising and unfair competition in federal courts in two states and defend against counterclaims alleging unfair competition and violations of the Lanham Act.
• Represent several national companies as plaintiffs’ counsel seeking to prevent misappropriation of trade secrets and breach of noncompetition agreements through injunctive relief and to recover damages through litigation.
• Defend companies against claims of misappropriation and tortious interference with business and contractual relations. Several cases have involved multiple forums, including both arbitration and litigation, and litigation in multiple states.
• Regularly assist clients with updating confidentiality agreements and restrictive covenants, particularly under Georgia law.
• Work with clients to identify and develop methods to protect trade secrets, including presenting internal seminars, engaging in trade secret audits, and revising policies and procedures.
• Consulted by Georgia’s General Assembly on Georgia’s new Restrictive Covenant Act.
• Defend national company against allegations of trademark infringement in federal court.
• Defend innovative technology company against patent and Lanham Act claims in federal court.

Business Agreement Litigation and Dispute Resolution:

• Regularly advise clients regarding contractual obligations before and after execution, regarding the enforceability of agreements, and about the duties arising by virtue of agreements, particularly the obligations of members and partners in the limited liability company and partnership arenas.
• Represent limited liability company members in various disputes involving claims of breach of fiduciary duty, conversion, and breach of the limited liability company agreement.
• Represent fifty-percent shareholder of closely held corporation against other shareholder in dispute over misappropriation of corporate funds and abuse of fiduciary duty.
• Represent major U.S.-based manufacturing company in defense of claims for breach of contract and unjust enrichment related to work being performed at Atlanta-area manufacturing facility and, in another matter, arising out of work performed at its foreign facilities (one case in federal court and another in arbitration). Defend same manufacturing company in five-day arbitration on breach of contract claims by vendor to full award in favor of the company.
• Assist real estate developer in an arbitration, prosecuting claims and defending counterclaims in breach of alleged oral contract and unjust enrichment claims relating to management of real property.
• Represent foreign manufacturer in defense of breach of contract claims brought in federal court by U.S.-based distributor and in prosecution of counterclaims for breach of fiduciary duty, conversion and breach of contract.
• Represent lenders in actions against guarantors in federal court and in arbitration, seeking recovery of outstanding loans; defend against lender liability claims, including claims asserted in the billions of dollars.
• Defend successor company for violation of merger agreement with complete victory on summary judgment and through appeal in federal court.

Internal Investigations:

• Led nearly three-month internal investigation for government contractor upon discovery of employee-created conflicts of interest with Georgia Department of Transportation personnel.
• Led internal investigation of billing practices of national engineering firm.
• Led three teams in major internal investigation of accounting practices at Fortune 50 firm spanning over 18 months.

RICO, Fraud, and Tort Actions:

• Represent national technology services provider in defense of federal class action case alleging fraud and RICO conspiracy arising out of services provided to other insurer defendants.
• Lead defense of foreign corporation and individual employee against claims of fraud and RICO conspiracy relating to terms of employment and exercise of certain stock options brought in federal court.
• Prosecute claims for factoring company against business that submitted false invoices for factoring and prosecute claims for successor liability against related business in federal court.
• Defend slander and libel claims brought in federal court against national banking association by loan guarantor.
• Defend lenders in counterclaims of lender liability, alleging breach of fiduciary duty and promissory estoppel in federal court and arbitrations.
• Represent local business in dispute with competitor over defamatory e-mails sent to actual and potential customers; resolved satisfactorily to client.

Bid Protests:

• Represent staffing company in successfully protesting Request for Proposal from Georgia Department of Administrative Services after which the State withdrew the proposal and refiled following suggestions made on behalf of client.
• Represent national employee services firm in administrative bid protest before the State of Georgia Department of Administrative Services after full-scale re-bidding of project.

Presentations

• “Managing Employee and Management Misconduct,” Georgia Society of CPA’s, Forensic Accounting Division (Aug. 5, 2011)
• “Georgia’s Restrictive Covenant Act - Update” Webinar (Jul. 28, 2011)
• “Understanding Georgia’s New Law on Restrictive Covenants,” Seyfarth Shaw Seminar (Dec. 1, 2010)
• “Georgia’s New Restrictive Covenant Legislation & Proposed Constitutional Amendment,” Panel Discussion at the State Bar of Georgia’s 29th Annual Business Law Institute (Oct. 22, 2010).
• “Georgia Gets Competitive: A Panel Discussion of the Proposed Changes to Non-Competition, Non-Solicitation and Non-Disclosure Agreements” University of Georgia Business Law and Labor and Employment Law Associations (Oct. 6, 2010)
• “Navigating Non-Compete and Other Restrictive Covenants in 2010 and Beyond,” Contract Litigation ICLE (Ga. Aug. 26, 2010)
• “Protecting Intellectual Property from Departing Employees,” Shift Worldwide VPanel (Feb. 22, 2010)
• “Trade Secret Triage and Restrictive Covenant Relief,” Webinar (Dec. 9, 2009)
• “Class Certification in RICO Litigation: Leveraging the New Reliance Standard, Strategies for Prosecuting and Defending Certification After Bridge v. Phoenix Bond,” Stafford Publications Audio Conference, (Sept. 1, 2009)
• “Effects of Regulation on Business,” Stone Mountain High School Business Program, Stone Mountain, Georgia (Apr. 24, 2009)
• “Navigating Non-Competition and Non-Solicitation Agreements: Where We Are and Where We Are Going,” Association of Corporate Counsel—Georgia Chapter (Apr. 14, 2009)
• “Keeping it Secret: Protecting Confidential Information,” Seyfarth Shaw Labor & Employment Conference (May 15, 2008)
• “Contracts and the Courts,” Stone Mountain High School Business Program, Stone Mountain, Georgia (Feb. 25, 2008)
• “To Catch A Thief: Rounding up Rogue Employees,” Atlanta, Georgia (May 16, 2007)