John F. Birmingham, Jr.

John F. Birmingham, Jr. is a non-compete, trade secret and labor and employment lawyer, a former member of Foley’s Management Committee, former chair of the firm’s national Labor & Employment Practice and a partner in the Detroit office. John concentrates on noncompetition, trade secret matters and business torts, class actions, employment-related litigation, appellate law, investigations and labor law. He is a trusted advisor on high-level and day-to-day labor and employment issues and develops problem prevention and resolution strategies. He performs and counsels clients through sensitive investigations and counsels boards and executives on crisis management and disaster mitigation. In addition, he is a member of the Privacy, Security & Information Management and Immigration, Nationality & Consular Law Practices and the Automotive and Manufacturing Industry Teams.

John has successfully represented clients in several class actions, trials and arbitrations. He has argued many appellate cases including those before the Michigan Supreme Court, Michigan Court of Appeals and U.S. Court of Appeals for the Sixth Circuit and drafted a Writ of Certiorari to the United States Supreme Court. He has also represented clients on unfair labor practice charges before the National Labor Relations Board and the United States Court of Appeals. John represents clients at trial, administrative tribunals, arbitration or other ADR format involving a wide variety of cases (EEO, ADA, ERISA, FMLA, common law contract and torts and several other areas).

John has negotiated several union contracts and arbitrated over 50 union grievances including collective matters involving health care, vacations, holidays, retirement and other high exposure subjects.

John also is a fair housing expert, counseling and representing clients in the agency and court proceedings.

He has acted as a neutral case evaluator, arbitrator and mediator.

John is an adjunct professor at Michigan State University College of Law. His primary academic concentration is in Trade Secrets, Restrictive Covenants, and Unfair Competition.

Representative Trade Secret/Non-Compete Cases

• Lead lawyer in defending trade secret, breach of contract, fiduciary duty and business tort case, involving international conglomerate’s business process tool, securing opinion dismissing majority of claims, leading to voluntary dismissal
• Led corporate employee raiding case against competitor of Tier 1 auto supplier and after securing reversal at the Michigan Supreme Court, negotiated very favorable settlement
• Represented Fortune 50 pharmacy benefits management company in large tortious interference/corporate raiding/trade-secret/non-compete case resolved favorably in 2012 after extensive litigation
• Defeated injunctive relief request in representing propane engine manufacturer in trade secret and non-compete case involving engine control units
• Secured injunction for automotive manufacturer in non-compete/trade secret matter involving solicitation
• Represented information technology firm in non-compete/trade secret matter, secured court order prohibiting certain competition for one year
• Represented medical care provider in defense of employee corporate raiding matter involving 25 plus medical professionals, negotiating a favorable outcome
• Designed non-compete and trade secret process for multiple Fortune 500 companies
• Obtained preliminary injunction for auto supplier precluding work for a competitor after hearing
• Represented HVAC company in non-compete matter resulting in a preliminary injunction precluding Plaintiffs from working in industry
• Represented battery manufacturer in non-solicitation case involving corporate raiding claim with favorable resolution negotiated after discovery
• Selected and served as a case evaluator and mediator in multiple trade secrets/non-solicitation cases

Representative Class Actions and Other Cases

• Defense of HVAC manufacturer and distributor in ERISA pension calculation class action
• Represented Tier I automotive supplier in age discrimination and promotion class action, resulting in a denial of class certification
• Represented Tier I automotive supplier in age discrimination and reduction in force collective action
• Represented a large packaging company in wage and hour “off the clock” collective action
• Defense of automotive supplier in a class action involving ERISA pension accrual claim
• Represented automotive supplier in 11 Plaintiff harassment case
• Represented auto supplier in WARN class action
• Represented homebuilder in FLSA wage and hour action resulting in a denial of class certification and dismissal
• Represented homebuilder in union corporate campaign involving sabotage through appeal establishing new law with respect to the violation of Computer Fraud & Abuse Act
• Defense of OEM in nationwide consumer fraud class action involving OnStar technology

Representative Appellate Cases

• Pulte Homes, Inc. v. Laborers' Int'l Union, 648 F.3d 295 (6th Cir. 2011) (establishing a cause of action for email barrage under the Computer Fraud and Abuse Act)
• Walton v. Ford Motor Company, 424 F. 3d 481 (6th Cir. 2006) (validating call-in procedure for FMLA)
• Nexteer v Mando Corporation, et al, 314 Mich. App. 391 (2017) (secured reversal of order mandating arbitration in trade secret matter, which was sustained, after oral argument, by Michigan Supreme Court)
• Santomauro v Pultegroup, Inc, 2016 Mich.App. Lexis 2323 (2016) (court of appeals confirmed arbitrator’s award dismissing matter based on spoliation of evidence)

Thought Leadership

John frequently presents seminars for clients, chambers of commerce, industry groups and other organizations. He authored a chapter in the book Resolving Employee Disputes & Litigation titled, "A Strategic Approach to Achieving the Best Results in Resolving Employment Disputes."

Recognition

John has been peer review rated as AV Preeminent®, the highest performance rating in Martindale-Hubbell® Peer Review Ratings™ system and has been selected by his peers for inclusion in The Best Lawyers in America© since 2011 in the fields of Employment Law – Management, Labor Law – Management and Litigation – Labor and Employment. He was named the Best Lawyers® 2016 Labor Law–Management and 2023 Litigation-Labor and Employment “Lawyer of the Year” in Detroit. In addition, he was selected for inclusion in the list of Michigan Super Lawyers® (2006, 2010 - 2021).

John was named one of the “Leaders in the Law” for 2014 by Michigan Lawyers Weekly. He was named to DBusiness magazine’s 2022 lists of Top Lawyers, a list that draws nominations from over 21,000 attorneys.

Admissions and Professional Memberships

John is a member of the American Bar Association, Detroit Bar Association, Oakland County Bar Association, the State Bar of Michigan, the Federal Bar Association as well as the Rochester Chamber of Commerce, and the USDC Local Rules Advisory Committee. He is also admitted to practice in the United States Court of Appeals for the Sixth Circuit and the United States District Court for the Eastern and Western District of Michigan.

John is an arbitrator in the American Arbitration Association.

Education

John obtained his J.D., magna cum laude, and Order of the Coif, from the University of Michigan Law School, and received his B.A., with honors, at Michigan State University.

Community Activities

John serves on the advisory board at New Day Foundation.

Selected Presentations and Publications

• Co-author, “The Tools Used in Modern Business---Such As Videoconferencing---and the Social Media Culture Create Real Challenges to Protecting Trade Secrets,” Foley Insights: Labor & Employment Law Perspectives (February 16, 2021)
• Interviewed, “Retail Workers Without Masks May Be Breaking the Law,” WDET, NPR Detroit Station, MichMash Podcast (May 29, 2020)
• Featured, "John Birmingham – Managing Labor Law With Great Confidence," Leading Lawyers Magazine, Michigan Edition (June 2017)
• "Increasing Legal Scrutiny of Website Accessibility in the Real Estate Industry," CFSL Bulletin (June 2, 2016)
• "The Dirty Little Secret about Trade Secrets," Industry Week (March 4, 2014)
• "It’s Time to Reinvest in Michigan Manufacturing," Detroit Free Press (October 31, 2013)
• "Next-Generation Manufacturers Must Protect Secrets," Law360 (September 24, 2013)
• "If You Want Your Employees to be Accessible 24-7: Be Prepared to Pay," Michigan Lawyers Weekly (November 2011)
• "Social Media and the Workplace: Twittering Away Trade Secret and Confidential Information," Supply Management (March 2011)
• "Preserving the Attorney-Client Privilege in the Employment Environment," Michigan Bar Journal (January 2009)
• "The Interactive Accommodation Process: Cooperate or Pay the Price," Michigan Bar Journal (October 1998)
• "After ‘After-Acquired Evidence’: Current Status and Issues," Labor and Employment Law Notes (Spring 1997)