Last summer, New York Governor Andrew Cuomo signed into law the Stop Hacks and Improve Electronic Data Security (SHIELD) Act. The SHIELD Act’s data breach notification requirements are already effective and the law’s data security requirements go into effect on March 21. Any company that does business in New York or has customers in New York needs to understand what the law requires.

New York, like many other states, has a data breach notification law that requires businesses to notify consumers when a breach occurs. The SHIELD Act goes further than New York’s previous law, both in its definition of what type of information is covered and in reaching companies that may not have any connection to New York except for having information about New York residents in their database. The SHIELD Act:

  • Expanded the scope of information subject to New York’s previous data breach notification law. Previously, the law covered “personal information,” meaning information which, because of name, number, personal mark, or other identifier, can be used to identify a person. The scope of information has been expanded to include what the law now calls “private information,” which also includes biometric information, email addresses and their corresponding passwords or security questions and answers, and protected health information as defined under HIPAA.
  • Broadened the definition of a data breach to include unauthorized access to private information. Previously, information had to be “acquired” in order for a data breach to occur, now only “access” is necessary. In determining whether information has been “accessed” without valid authorization, businesses may consider, among other factors, indications that the information was viewed, communicated with, used, or altered.
  • Updated the notification procedures companies must follow when there has been a breach. Importantly, the law applies the notification requirement to any person or entity with the private information of a New York resident, not just to persons or entities that conduct business in New York. Notice is not required if the exposure of private information was an inadvertent disclosure by persons authorized to access private information, and the person or business reasonably determines such exposure will not likely result in misuse of the information. If a determination that notice is not required is made, the determination must be documented in writing and maintained for at least five years, and if the incident affects over five hundred residents of New York, the written determination must be provided to the state attorney general.
  • Requires businesses to enact “reasonable” security practices. The law creates data security requirements tailored to the size of a business. For instance, a small business (based on revenues and number of employees) will be deemed to have reasonable security practices in place if its security program “contains reasonable administrative, technical and physical safeguards that are appropriate for the size and complexity of the small business, the nature and scope of the small business’s activities, and the sensitivity of the personal information the small business collects from or about consumers.” Businesses that are not small businesses must implement a data security program that includes reasonable administrative safeguards (including risk identification and assessment, employee training, and monitoring), reasonable technical safeguards, and reasonable physical safeguards. A business that is subject to and meets the data security requirements of other federal or New York laws that include cybersecurity protections (including HIPAA-HITECH and Gramm-Leach-Bliley) is deemed to have met the data security requirements of the SHIELD Act.

Like the EU’s General Data Protection Regulation (GDPR) and like the California Consumer Privacy Act (CCPA), the SHIELD Act has extraterritorial effect—if you have private data of a New York resident, you have to comply with the law. Given the size of the state of New York, companies that do business on any but the most hyperlocal level need to evaluate whether they must comply.

On Feb. 5, 2020, the United States Patent and Trademark Office (USPTO) announced that U.S. Secretary of Commerce Wilbur Ross had appointed David Gooder as the new commissioner for trademarks. Gooder replaces Mary Boney Denison who retired from the position with the agency on Dec. 31, 2019.

To read the full law bulletin on this topic, click here.

Ever wonder how so many devices can operate together on a unified network like 4G or Wi-Fi? Ever stop to think about why you can send a selfie from your iPhone to someone else’s Galaxy halfway across the world without distorting your smile?

Smartphones can operate together with other smartphones because hundreds of the inventions powering those smartphones are covered by Standard-Essential Patents (SEPs).

And on Dec. 19, 2019, the United States Patent and Trademark Office (USPTO) joined the Department of Justice’s (DOJ) new policy permitting injunctive relief in SEP cases, giving SEP owners a lot more leverage when licensing their inventions to other companies.

To read the full law bulletin authored by Minneapolis associate Joey Balthazor, click here.

Over the years, we have written quite a bit about the many “train wrecks” that seem to plague a disturbing number of ERP software systems. We have also litigated many of these disputes on behalf of companies whose systems did not meet the promises made by software vendors or integrators during the software sales process.

But litigation is a costly, time-consuming, energy-draining and lengthy process. Receiving compensation for a failure years after it occurs does not replace anything that was lost in the meantime.

In our decades-long career of negotiating, drafting and litigating contracts for ERP software systems, we have come to understand how and why many of the train wrecks occurred. In fact, there are definite signs that an ERP software implementation or digital transformation is running into trouble. Knowing the signs and acting quickly to remedy it can keep a bad situation from spinning totally out of control.

Below are six common signs that indicate an organization’s ERP software system might be heading for trouble:

1 – Difficulty billing customers. Often, the invoicing process is the first to encounter difficulties. Either invoices can’t be generated in a timely fashion or they are inaccurate and customers start contacting suppliers because they are confused or angry.

2 – The supply chain is interrupted. An extreme example of this came when Revlon was unable to ship to retailers because it was getting late deliveries from suppliers. Shareholders filed three separate class action suits to recover the money they lost when Revlon’s stock price took a hit. If there are supply chain issues, it’s very likely rooted in an ERP problem.

3 – Inventory control is uncontrollable. When there are supply chain issues, it usually spills over into inventory control. Managing inventory is tricky at best: too much inventory and inventory is tied up; too little and production is slowed, meaning shipments are delayed. If inventory controls are not functioning properly, it is often a sign the ERP software system is not performing as needed.

4 – Problems moving data between divisions. The great strength of ERP is it assembles actionable data across many functions and facilitates management decisions. However, if silos begin to appear, or are not removed, it greatly inhibits comparing data streams. A business also loses the ability to spot correlations and patterns that can produce key insights. If this becomes a problem for the c-suite, they need to look for the root issue in their ERP.

5 – ERP isn’t integrating smoothly. For any ERP software system to generate value it must integrate seamlessly with an organization’s other systems, especially those involving payroll and finance. When this does not happen, it quickly snowballs into widespread inefficiency, to say nothing of employees’ irritation with incorrect paychecks.

6 – System agility is awkward. Because ERP technology is rapidly changing, the introduction of enhancements can happen before they are fully mature and bug-free. If an upgraded ERP software system does not integrate smoothly, it becomes more disruptive than beneficial. Difficulties loom when the system is not agile.

Benefits and Challenges

An ERP software system is a challenge to maintain due to its integrated nature. In a worst-case scenario, an undetected problem may cause it to shut down entirely, causing a massive disruption that ripples through an entire organization.

A system that does not integrate properly will create more disadvantages than advantages for an organization. Preventing a train wreck is possible, but senior people in a private or public sector business need to spot any early warning signals that trouble is brewing. Don’t rely on your vendor or integrator to do it for you.

Whether you are installing ERP for the first time, are upgrading a legacy system, or simply have concerns about what might be happening with your ERP software system, feel free to contact us. We’ve devoted our careers to working with clients on ERP-related matters and will be happy to share what we have learned.

When Elizabeth Kubler-Ross first described the five stages of grief, she was exploring how people deal with the death of a loved one. When she wrote her definitive work, ERP software systems were not even a gleam in anyone’s eye.

Yet as attorneys who have spent our careers working with ERP software systems and litigating many of the disputes that arise when the transformation goes haywire, we’ve seen clients go through many of Kubler-Ross’ stages of grief as they come to grips with their ERP loss.

Anyone who took an undergraduate sociology course at university probably remembers the stages: denial, anger, bargaining, depression and acceptance. We’ve seen many company executives go through each of these stages as a result of a digital transformation failure. But don’t despair. There is a way for the bereaved ERP user to cope with their loss and, more importantly, create a strategy that sidesteps having to deal with the five stages of grief, whether you are upgrading or just beginning the process of acquiring an ERP software system.

Denial and Anger in ERP Failures

By its very nature, every ERP transformation is a huge, complicated, time-consuming and expensive project that may involve reviewing proposals, selecting a vendor and integrator and preparing the organization for the massive changes that will be coming. Implementation can often take more than a year.

When the first hints of a problem appear, like a family member confronting the imminent death of someone close, often a company will first deny it is happening, and then believe the integrator who utters comforting words that things will get better. Yet the condition continues to deteriorate, as time, productivity and money are lost.

Disbelief turns to anger. Consultants are brought in and phone calls are made to attorneys. The user tries to bargain with their vendor and integrator. Yet the reality of the situation begins to sink in and anger turns to depression – which psychiatrists say often is the result of anger turned inward.

As we have written about frequently – most recently here and here – far too many ERP projects run into massive problems where acceptance is all that remains. Litigation is a last resort because users seldom get a second chance to get it right. The real answer is to have a strategy from the outset that will enable you to avoid coping with the five stages of grief.

A Strategy to Avoid Coping with ERP Grief

Whether you are undertaking your first ERP project or upgrading a legacy system, any public or private organization can undertake the following eight-step strategy. These are general guidelines and specific situations may require additional safeguards, but this list can help ward off Kubler-Ross’ grief and grieving stages.

1 – Senior management must own the project from the outset. An ERP software system is a management tool, not simply a tech solution. Do not sign the contract and then leave implementation to the IT department, even if you have a Chief Technology Officer. ERP is about how the business operates and runs just as your accounting system is a management tool rather than a technology matter. The likelihood of integrators telling you about an incipient problem are small so the CEO and COO need to stay on top of how the project is proceeding.

2 – Retain an independent consultant upfront. A qualified ERP consultant will help a user identify the key things the organization needs the ERP software system to do. They can also assist in writing a RFP and reviewing responses. A good consultant will also know when a vendor and integrator is being honest about his or her experience in your industry. Consultants are not inexpensive but can save millions of dollars down the road.

3 – Meet the entire team from the other side. For many large-scale ERP projects, it is entirely likely the vendor and integrator will be employing sub-contractors on different parts of the project. It is wise to interview sub-contractors to ensure what you were told they have done or can do is, in fact, within their expertise and background. If you decide they don’t fit with your needs or even your culture, ask the suppliers to find other candidates.

4 – Don’t sign the template contract. The contract given to you by the vendor and integrator you select is written entirely in their favor. Negotiate and redraft terms and conditions so the agreement works to the benefit of both parties. As lawyers who have spent several decades working on negotiating ERP contracts for clients from both the vendor and user side of the table, we know where there is flexibility on the part of the seller.

5 – Include sales material in the contract. Vendors and integrators are notorious for making assertions about their expertise and experience in a given industry because the goal of the sales team is to get the order. Along with the proposal response, the contracts need to include any written material given to a user in the course of their discussions with the vendor and integrator. In the event of an ERP train wreck, this will help document for a court what the user relied upon in making a buying decision.

6 – Specify roles and responsibilities. Template contracts are deliberately vague about what the vendor or integrator will be responsible for as the project unfolds. To protect all sides, the contract needs to be very specific about precisely what the user will be responsible for doing, as well as what your suppliers will be responsible for handling. This also helps short-circuit “scope creep” down the road because only designated individuals are authorized to modify what is detailed in the contract.

7 – Include an internal change management initiative. Adding or upgrading ERP makes a significant difference to how a company operates. It is nothing like uploading a new version of Windows to everyone’s computer. Many things inside the organization will have to be done differently for the system to add value. Jobs and roles are likely to change, or at least be different than they were prior to ERP. People need to understand what will happen and how it will affect what they do. We’ve seen transformations where the technical side went smoothly but the lack of a change management program failed the people side.

8 – Senior management must own the project. An ERP software system is a management tool, not simply a technology solution. Do not sign the contract and then leave oversight of the implementation to the vendor or integrator.

If your public or private sector organization is considering acquiring an ERP software system for the first time, or are on the threshold of upgrading a legacy system and don’t want to resort to grief counselling because of the death of the project, feel free to contact us. We’ve worked with ERP for a long time and can advise you on the contractual pitfalls to avoid. We can also refer you to independent consultants familiar with ERP who can work with you.

It seems a growing number of companies are coming to us to negotiate and draft contracts for an upgraded ERP software system. As part of understanding what we need to include in the contract, we ask the company’s CEO, COO, CTO or General Counsel why they are making the upgrade.

Frequently, the answer revolves around the following: “our vendor told us we are falling behind in technology and need to upgrade to stay current.”

While we appreciate companies’ confidence in asking us to handle the legal components of upgrades, a pattern seems to be emerging among ERP vendors and integrators: convince users to spend millions on an upgrade that may not be necessary. When this happens, it is being done not because the upgrade is in the best interests of the user but of the vendor and the integrator.

Yet many of the newer ERP software systems are not yet mature enough to work as well as a lot of legacy installations. Before succumbing to the siren call of the vendor, users in companies of every size need to conduct a thorough due diligence inside their organization to determine whether the enhanced system will actually benefit their organization.

ERP Upgrade Precautions

For companies opting to upgrade their ERP software system, there are some things the contract needs to include. Prime among these is a specific detailing of the stated or implied promises being made by the vendor and integrator as to the functionality and performance of the newer model.

If either the vendor or the integrator are reluctant or unwilling to include these warranties in the contract, it’s best to walk away from the deal. They’re signalling they know something you don’t. Yet if there is a problem down the line, these written assertions will become your best argument should the dispute end up in litigation.

Here is the crux of the issue.

Despite their largely successful track records with more mature systems, there is a legitimate question whether the newest generation of ERP software systems are up to the task. SAP’s S4/HANA, Oracle’s ERP cloud and Microsoft’s D365 lack the track record of their predecessor systems of supporting the complex needs of many businesses and other organizations in the private and public sectors.

Until they have demonstrated their ability to seamlessly take over from a more mature ERP software system, a user being urged to upgrade needs to proceed cautiously. If a careful, internal analysis makes a business case for upgrading, then do so. Just remember to include in the contract all of the specificity in the agreement for your legacy system.

Along with language that spells out the improvements an upgraded system will bring, some other points to cover include:

1 – Outlining all sales material as an appendix to the new contract.

2 – Detailing the specific responsibilities of the vendor, integrator and the user

3 – Drafting provisions that prevent “scope creep” without a senior person’s authorization.

4 – Removing or limiting binding arbitration clauses that may reduce your ability to recover damages from the vendor or the integrator if there is a problem.

There is an unfortunate history of ERP “train wrecks.” Take steps upfront to reduce the likelihood of your organization being involved in another one.

Buy the Steak, Not the Sizzle

In nearly every aspect of running their organization, executives and senior managers are incredibly disciplined. Yet when it comes to their ERP software system – often, the engine that is driving the entire business – we’ve seen too many decisions made for the wrong reason. Most common seems to be viewing ERP software systems as a technology tool, not a management solution.

This is likely to result in the transformation heading straight for the rocks, similar to where the Sirens lured Circes and his entire crew to their demise.

If you are looking at upgrading your ERP software system and want to discuss the pros and cons of the legal aspects, feel free to contact us. We’re happy to share our experience and knowledge, as well as refer you to highly respected independent ERP consultants who can help senior management navigate what can often be treacherous waters.

While the spread of Artificial Intelligence (AI) in the construction sector is expected to be modest in the immediate future, a shift is coming. Stakeholders can no longer afford to see AI as pertinent only to other industries – engineering and construction will need to catch up with AI applications. This is the only way to contend with incoming market competitors and remain relevant.

To read the full law bulletin authored by Cincinnati partner Joseph Cleves, Jr., click here.

Technology companies are notorious for believing the solutions they propose to a potential user’s pain points are the best possible answer. When it comes to ERP software systems, however, too often many developers, vendors and integrators ignore or overlook the reality that the technology they sell is actually a business solution, not simply a technology tool.

In the process of reviewing pitches and proposals from sellers, C-suite executives – including chief technology officers – need to remember that SAP, Oracle, Microsoft and all the rest are in the technology business – this is what they focus on selling. For an ERP software system to have a measurable, positive impact on an organization, whether it is installed in the private or public sector, it is important to remember that no matter how the sophisticated the software, it will still be used by people.

It is a company’s responsibility to ensure it has a plan to accommodate all of the change management aspects of an ERP software project so people are not only trained in how to use the new system, but also to understand how this system will change their jobs. This is important so that both the system and your people succeed.

However, this does not absolve the vendor and integrator from helping with the human aspect of their product.

ERP Means Change Management

As complex as an ERP software system may be, if the vendor and integrator understand the user’s business it is possible for everything to go smoothly (from a technical point of view) on the day the system goes live.

However, this is only half of the problem. The other half is understanding that the data being collected and distributed will be going to people. Since ERP means a major shift in an organization’s management, it also means a major shift in how employees work.

In many respects, the user experience with ERP is at least as important or perhaps more so than all of the coding that sits behind a terminal in someone’s office. This does not just mean easy-to-understand screens; it also means easy-to-understand work processes.

ERP change management can’t simply be handed off to Human Resources. It requires an effort that involves the vendor and integrator, as much as it does HR.

As a result, it is necessary for the contract with both the vendor and integrator of the ERP software system to specify what each entity’s role in the change management process will be. The contract provisions need to be specific, including detailing the seller’s experience in handling change management in similar organizations and sectors. If direct experience is weak in this area, it may signal a warning of other problems with the solution they are proposing you buy.

Serious Implications

Regardless of whether an organization is updating a legacy system or implementing an ERP software system for the first time, it needs to recognize it is acquiring a management solution that happens to use technology.

User experience and understanding of the human factors associated with digital transformation are as important to achieving success as is integrating the system with the organization’s existing processes and infrastructure.

As attorneys whose legal careers have focused on negotiating and drafting contracts for ERP software systems, we have advised clients on ensuring that change management is part of the process and should be incorporated into the agreement with a vendor and integrator. Executives and senior managers cannot lull themselves into thinking that the purchase decision is the end-goal of the process. Nor can they allow employees to undermine the use and effectiveness of the ERP software system because they do not grasp the changes it brings to their job or the organization.

If you have questions about the role of change management in a successful ERP software integration, feel free to call us. We would be happy to share our experience and offer suggestions.

It seems as if nearly every week, a major business or technology publication carries an article about migrating processes to the cloud. In many circumstances, this makes sense for a range of good reasons. However, for users of ERP software systems, migrating a very complicated and sophisticated management tool with countless “moving parts” to the cloud can easily become a nightmare.

This is becoming a serious issue, as some of the large software vendors and integrators are making a push to get users to move their ERP from a company’s private servers to the cloud.

For instance, SAP will require all S4/HANA users to do so by 2025. SAP says the migration will take users only three years, but many independent ERP consultants insist it will take much longer for large users, with many far-flung operating divisions, to make the transition without causing massive disruptions to their businesses.

Why the Rush?

A growing number of ERP software systems users face pressure by vendors and the large integrators to migrate to the cloud, even if doing so is not in the user’s best interests.

Users should not be in a rush, especially if they have built an extensive infrastructure that is secure, serviceable and well-suited to run ERP software. It strikes us that the real motivation is not what is best for the user, but what is best for the software vendor and integrator. Migrating to the cloud can be a complex proposition, which means big fees for service suppliers.

To complicate the issue when making a sales pitch, companies such as SAP, Oracle, Microsoft, Accenture and other large vendors talk about “best practices,” “next generation” and “good for your company” in an effort to convince executives that if they do not sign up, they’re somehow being negligent.

Much of the time, this is nonsense uttered because customers want to hear it. What is good for a supplier is not necessarily what is best for a user.

Beyond the sales pitch, the reality is that many of the new generation of ERP software systems have their own functional issues and problems. Migrating an immature system to an immature cloud risks compounding the potential for difficulty.

Pitfalls in Migrating ERP to the Cloud

There are a number of traps waiting for the unwary or the rushed. In negotiating and drafting contracts where a user of an ERP software system wants to migrate to the cloud, or is facing pressure to do so, we are seeing a number of places where clients are at risk of falling victim to sales pitches. Before you go too far down the road, keep these five points in mind.

1 – There’s more sizzle than steak. Do not get caught up in the hype about cloud migration. It is not an appropriate solution for every ERP user and despite what a sales team or account manager will tell you, few of the current generation of ERP software systems are ready to go in the cloud. As we do with an ERP contract, we always try to include all of the cloud-related sales material in the contract in case promises are not fulfilled.

2 – Don’t underestimate the costs. There are both hard and soft costs in migrating an ERP software system to the cloud. The hard costs are obvious, although we are seeing clients underestimate the downstream expense. The soft costs are more difficult because they involve a change management strategy that could take a year or more to rollout, depending on the size of the organization and the complexity of its ERP system.

3 – Specify security responsibilities in the contract. Since the user will not be operating or controlling the cloud infrastructure, the contract must specify in great detail the obligations and responsibilities of each party to maintain the security of the data being stored. It is one thing if a user’s employee forgets a tablet with access to your ERP system on a bus; it is another thing entirely if there is a breach of cloud files due to lax protections or security by the software vendor. The provider must ensure the safety of the data, protect it from being corrupted, hacked or otherwise accessed without authorization, and have experts on hand to react immediately if something goes wrong.

4 – Ensure there is an out. If the architecture of the provider’s cloud is not a clean fit with the ERP software system being migrated, it is vital to be able to step away from the contract when the problem appears and cannot be resolved to your satisfaction. Another deal breaker should be contract language that protects against cost overruns and completion delays – all too common with ERP.

5 – Before signing, ensure the system being migrated is cloud-ready. Despite what a vendor may say, few of the new generation ERP systems are cloud ready. Legacy systems may create issues for a user when they are migrated to the cloud. The cloud contract should include an assurance from the vendor that the ERP software system being migrated will, once completed, perform as it does now.

The bottom line? Be as careful with your cloud contract as you were with the contract for your ERP software system.

Implications of ERP Cloud Migration

The cloud offers many advantages, but it is not a magic potion – it is not right for every ERP user, despite what a vendor or integrator will say. Business decisions around cloud migration are as important to the future of your organization as was the impact of first acquiring ERP. The key to success is to remember that a cloud migration is a technology solution. Answer management questions first, before deciding to float in a cloud.

If you get calls from your vendor or integrator about migrating to the cloud and are unsure how to proceed, feel free to contact us. We will be happy to answer the questions you may have, as well as refer you to recognized independent consultants who can provide you with technical expertise when dealing with vendors.

The U.S. Supreme Court has granted certiorari for Romag Fasteners Inc. v. Fossil Inc., No. 18-1233, and trademark practitioners are hopeful that the ruling will finally adjudicate the long-standing issue of whether a plaintiff must prove willfulness in order to obtain an award of a trademark infringer’s profits for violating 15 U.S.C. § 1125(a) of the Lanham Act.

In Romag Fasteners Inc., Plaintiff Romag succeeded on its trademark infringement claim against Defendant Fossil for the infringing use of the ROMAG mark. Although Romag and Fossil had previously entered into an agreement to use Romag’s fasteners—which bore the ROMAG mark—on Fossil’s products, Romag discovered that Fossil had been using counterfeit fasteners bearing the mark on Fossil’s handbags. The jury verdict in the ensuing trial awarded Romag nearly $6.8 million based on Fossil’s profits. However, the district court struck the jury’s award, since Romag had not shown Fossil committed willful infringement and that “a finding of willfulness remains a requirement for an award of defendants’ profits in this Circuit.” Romag Fasteners, Inc. v. Fossil, Inc., 29 F. Supp. 3d 85, 109 (D. Conn. 2014).

The Federal Circuit affirmed the District Court’s holding on appeal, determining that willfulness was a prerequisite for an award of profits in the Second Circuit. Romag Fasteners, Inc. v. Fossil, Inc., 817 F.3d 782 (Fed. Cir. 2016). The Federal Circuit held that since Romag could not prove that Fossil had “willfully” infringed, an award of Fossil’s profits was unwarranted. However, the Court also acknowledged the split in Circuit authority, noting that “the willfulness requirement was not uniformly adopted” and that “the Fifth Circuit held that whether the defendant had the intent to confuse or deceive is simply a relevant factor to the court’s determination of whether an award of profits is appropriate.” Id. at 787 (internal citations omitted).

Along with the Second Circuit, the First[1], Eighth, Ninth, Tenth, and D.C. Circuits all require that “willful” infringement must occur before an award of the infringer’s profits is available for the plaintiff. By contrast, the Third, Fourth, Fifth, Sixth, Seventh and Eleventh Circuits do not require a showing of willfulness for the plaintiff to recover an award of the infringer’s profits.

Recovery under the Lanham Act seeks to combine and balance theories of compensation (i.e. assessing profits) and deterrence (i.e. assessing damage). See 15 U.S.C. § 1117. However, trademark monetary awards are challenging to establish due to the difficulty in assessing the actual damage to a brand. Through disgorgement of the infringer’s profits and by awarding the infringer’s profits that the infringer would not have earned but for the wrongful acts, trademark awards may be reasonably calculated.

The Supreme Court’s ruling, if it were to resolve the circuit split, will change the state of the law for several circuits by standardizing whether willfulness is a prerequisite for an award of damages based on the defendant’s profits. The ruling may also have far-reaching effects on other actions under the Lanham Act, since 15 U.S.C. § 1117 of the Lanham Act impacts recovery for other tangential areas of law such as claims for false advertising.

[1] The First Circuit only requires a showing of willfulness where the parties do not directly compete.  See Fishman Transducers, Inc. v. Paul, 684 F.3d 187, 196 (1st Cir. 2012).