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Matt: Hi, it’s Matt Plessner, and welcome back to Trademark Law Radio. Today’s subject is non-compete litigation and the importance of knowing your Judge. To talk with us about that today, we welcome back Attorney at Law Mark Clark from Traverse Legal Office of Traverse City, Michigan. Mark, it’s nice to have you back.
Mark: Good morning, Matt.
Matt: Well, good morning to you. Let’s start off by talking about what is non-compete litigation, Mark?
Mark: Well Matt, non-compete litigation is the situation where, either as an employer or an employee, a lawsuit is initiated concerning what we call a non-compete agreement. A non-compete agreement is an agreement signed by an employee, where the employee agrees for a period of time and in a geographic region not to offer competitive goods or services to a competitor for a period time. These are popular tools anymore for employers to be able to protect some of their business interests, client and customer lists, as well as trade secrets, in the event they lose an employee to a competitor. When the employee leaves, if the employee ends up at a competitor, often times if there is a non-compete in place and the employee persists in their employment with the competitor, we end up with non-compete litigation.
Matt: And so, if you find yourself in such a situation, you know, the subject of today is to know your judge. Let’s talk about what that means exactly. How do you go about, I guess, getting to know who the judge is and, I guess, kind of feeling out what they think of non-compete stuff … how do you go about doing this, Mark?
Mark: Whether you are an employee that ends up in non-compete litigation or an employer that ends up in non-compete litigation, it is important to know the tendencies and propensities of your judge, so that you can make realistic goals and expectations with respect to where you want to end up in litigation. In most states, a non-compete will only be found to be valid if it is both reasonable in terms of geographic scope and time duration. Whenever you interject the component of reasonableness into a Court’s analysis, it provides the judge with more discretion than in some cases to decide the case. I have personally been involved in non-compete cases where judges have expressly advised their views where the judge says, “I am not a big fan of non-competes”. In other cases I have been involved in, judges take the view that, “A contract is a contract and it may seem unfair but too bad.” In most non-compete cases, there is usually the issue of a preliminary injunction, which is always decided in a non-compete case by the judge up front. It often decides the case at an early stage or has the practical effect of deciding your non-compete case at an early stage. So knowing your judges’ tendencies and propensities are important up front. Now, there are several ways to do this. Often times, a judge by reputation will telegraph their tendencies or their views concerning non-competes. The other good way to do this, since non-competes have been around for a while, is to go online to see and review the judge’s reported decisions in non-compete cases. Those, as I say, are often available online. Often when you read the non-compete cases authored by the judge, you’ll get a good sense where the judge stands and what the judge’s views are relative to the whole issue of the enforcement of non-competes.
Matt: And it sounds like this has been beneficial, not just to the person in at trial, but also the lawyer involved in how to conduct the case, right?
Mark: Absolutely, knowing your judge up front assists a non-compete lawyer in setting reasonable expectations for the client with respect to what the goals of the litigation should be. It is very important to have an experienced non-compete lawyer who can help you do your research and find out where your judge stands so that you can have a good outcome in the end, whether you are afforded all of the relief you are seeking or you are afforded a reasonable amount of the relief that you are seeking in light of the judge that you draw. It is always advisable to know up front what your reasonable expectations and goals should be so that you can achieve the most that you can, whether it be as an employee or an employer in any non-compete litigation. So it is important to have an experienced non-compete lawyer assist you in the event you end up in non-compete litigation.
Matt: Mark, as always, I want to thank you for coming by, and, of course, talking about to us about non-compete litigation.
Mark: Matt, it is as always a pleasure. Thank you very much for having me.
Matt: Not a problem and we will see you next time on Trademark Law Radio. I am Matt Plessner.
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