Trade Secret Attorney, Non-Compete Agreement Attorney

Is Your Non-Compete Subject to Blue-Penciling?

Blue-penciling is a term in the non-compete arena that indicates that a court or judge can modify a non-compete agreement to make it reasonable where it is otherwise unreasonable as it applies to an employee.  Many states allow judges, such as Michigan for instance, in a non-compete matter, to blue-pencil or re-write an otherwise unreasonable non-compete agreement to make it a reasonable non-compete agreement.  There are other states, such as New York, that do not generally blue-pencil a non-compete agreement and simply invalidate the agreement should it find that the terms of the Non-Compete Agreement are unreasonable.  It is important to know the limits of a court in assessing your non-compete agreement.  

The Growing Backlash Against Non-Compete Agreements

Non-compete agreements have been around for a while and because they now have an extensive history, we are beginning to see some backlash concerning the appropriateness of non-competes.  For instance, the State of Massachusetts is considering banning non-compete agreements arguing that the Uniform Trade Secret Act, which prevents employees from stealing trade secrets, is sufficient to protect employers when employees leave their employment.  Recent publicity of non-compete cases involving non-compete restrictions against employees who would not be in a position to damage their employer upon leaving employment such as camp counselors and the like have enticed the backlash against non-compete agreements.  I also see a growing trend particularly in touch economic times of judges attempting to find reasons to restrict or invalidate non-compete agreements.

What do you think? Do non-compete agreements hinder fair completion and are employers adequately protected by existing trade secret laws?  Or, are non-competes favoring competition because they encourage employers to entrust confidential information and key relationships to employees that they would otherwise not share in the absence of a non-compete agreement? 

If you have a non-compete agreement that requires enforcement, consult an experienced non-compete attorney for appropriate advice concerning the validity of your non-compete agreement. 

Who Other than the Employee Should Receive the Non-Compete Threat Letter?

Often times when an employee leaves for employment at a competing business and is under a non-compete, the question arises who other than the employee should receive the threat letter to cease and desist violation of the non-compete?  Often times, the former employer will consider sending a threat letter to the new employer.  At other times if the non-compete language is suggestive of such, customers in the industry might also receive a threat letter.  Recently, there was a case decided in the Eastern District of Michigan, Bonds v Philips Electronic North America, where the former employee sued his former employer for sending a letter to his new employer causing his termination.  The Court ultimately decided in favor of the former employer, but the analysis leaves the door open for a former employee to sue his former employer in the event that the non-compete threat letter crosses the line. 

How to Best Obtain a Non-Compete Agreement?

Employers often obtain non-compete agreements or non-competition agreements from their employees.  However, the employees are often in a position to successfully challenge the validity or reasonableness of the non-compete.  Employers often ask, “How do I best obtain a valid non-compete agreement?”  The best and most effective way to obtain a valid non-compete agreement by an employer from an employee is to do it with the offer of employment to the employee. 

There is legislation pending and being debated in Michigan that would require employers to obtain a non-complete agreement from the employer and include it with the offer of employment, otherwise it would be invalid.  Absent the passage of the legislation, the most effective way to obtain a valid non-compete is to still include it with an offer of employment.   This does several things.  It avoids the argument from the employee that the non-compete agreement was made without consideration because the employee will understand that it is a condition of the employment.  It will remove the stigma of unfairness as the employee will no longer be able to argue that he or she did not know what they were getting into in executing the non-compete agreement.  It will also go a long way towards an employee attempting to argue that the non-compete agreement is unreasonable in both scope and duration, which is otherwise a requirement for a valid a non-compete, because the employee executed the agreement at the same time he or she was offered employment, making the reasonableness argument much more difficult.  Finally, it will take the away the sympathy factor from a judge who is often moved by the fate of the employee who indicates that “I was faced with signing the non-compete or losing my existing employment”. 

What is the best way to obtain a non-compete agreement?   The best way to obtain a valid non-compete agreement is to offer the non-compete agreement at the same time you make an offer of employment to the employee.  

Non-Compete Agreement vs. Non-Disclosure Agreement

There are non-compete agreements and there are usually employment agreements that contain either non-compete agreements, or what we call the non-disclosure of trade secret clauses, or of course sometimes called confidentiality provisions in employment agreements. The difference between the two is that a non-compete seeks to restrict your employee or contractor from competing against you within a certain geographic region for a certain period of time.

Announcer: Welcome to the Trade Secret Law Radio. We bring you the best in trade secret news, legal advice, and information. From trade secret misappropriation to trade secret agreement drafting and negotiation, we cover the issues here.

Employee Non-Compete Defenses of Non Compete Agreements

In this Traverse Legal Radio Interview, Attorney Mark Clark discusses several employee defenses to the enforcement of a non-compete agreement, also known as non-competition agreement.  Listen to or read the full transcript below:

Today’s program is brought to you by the attorneys at Traverse Legal, PLC, a global law firm specializing in Internet law, Trademark infringement, Copyright Infringement, Cybersquatting, On-Line Defamation,Non-Compete & Trade Secret Law and Complex litigation.  If you have a legal matter arising on the web, contact one of Traverse Legal’s internet lawyers today.  Now here’s your host, Damien Allen.

Damien Allen:  Good morning and welcome to Traverse Legal Radio.  My name is Damien Allen, and today joining me on the phone is Mark Clark, attorney at Traverse Legal, PLC.  Good morning, and welcome to the program, Mark.

Mark Clark:  Good morning, Damien, glad to be here.

Michigan Non-Compete Laws | Our Attorneys Discuss Non-Compete Agreements

In this Traverse Legal Radio interview, Attorney Mark G. Clark discusses non-compete agreements relative to the employee and the employer in terms of its set up, reasonableness as to scope and what to expect in the event of litigation if an issue may arise.  Listen to or read the full transcript below:

Today’s non-compete law program is brought to you by the attorneys at Traverse Legal, PLC, a global law firm specializing in Internet law, Trademark infringement, Copyright Infringement, Cybersquatting, On-Line Defamation, Non-Compete & Trade Secret Law and Complex litigation. If you have a legal matter arising on the web, contact one of Traverse Legal’s internet lawyers today.

DAMIEN ALLEN:  Good afternoon and welcome to Traverse Legal Radio.  My name is Damien Allen here in studio A, and today we are on the phone with Mark Clark.  Mark litigates non-compete agreements with Traverse Legal, and we’re here to find out more about non-compete agreements.  Good afternoon Mark, welcome to the program.

Traverse Legal Trade Secret and Non-Compete News Alerts for Monday, July 21, 2008

Motorola has sued an ex-employee and now current Apple executive for violating a two-year non-compete agreement.  Motorola is claiming that the former employee cannot perform his job for Apple without disclosing Motorola trade secrets.

Non-Compete Agreement & Trade Secret Attorneys: The Employer Perspective

Non-Compete Assessment For Employers:  If you are an employer and are looking to draft, upgrade or enforce a non-compete agreement, aslo known as a non competition agreement, our attorneys can help you define a strategy which provides the greatest return on your legal dollars.  Developing a non-compete agreement or non competition agreement is the easy part. Designing a strategy which enhances the likely enforecement of your agreement in court and protects your trade secrets should be your most important business goal. Especially in this difficult economic climate, the large number of employee layoffs and terminations make is cost prohibitive to drag every employee who violates their non-compete or discloses trade secrets into court. Wouldn't it be better to put a system in place which drastically improved employee compliance with their non-compete agreements?  Our attorneys can help your company understand you to protect its assets - on a flat fee defined deliverable basis - in the following areas: 

• Drafting or updating non-compete, trade secret and patent/invention agreements which will stand up in court.
• Developing a process and audit chain to ensure that each important employee has signed a non-compete contract and, as importantly, understands their non-compete obligaitons
• Designing and updating your trade secret and invention protection internal process.
• Enforceing your non-comepte agreements against employees by threat letter or litigation if ncessary.
• helping your company understand its options and providing attorney recommendations regarding risks and strategies.  

 As importantly, we can provide you the guidance and advice you need within a budget that works for you. Don't be penny wise and pound foolish.  Contact a non-compete attorney today by calling 866.936.7447 (toll free) or sending us an email describing situation.

Attorney Mark Clark and the Traverse Legal team have included some resources below to help your company understand the intricacies of non-competition agreements and trade secret issues:

What is a Non-Compete, Non-Solicaiton and Trade Secret Agreement? A non-compete agreement is an agreement signed by an employee or contractor where he/she agrees that they will not engage in certain employment within a certain geographic area for a certain period of time after they quit or are fired. A non-solicitation contract is an agreement signed by an employee or contractor where he/she agrees that they will not contact and/or solicit an employer's customers and/or remaining employees for a certain period of time after they quit or are fired. Trade secrets are docuemtns and information owned by the company which provide competitive advantage. 

This article will address non-compete, trade secret and non-solicitation agreements from the employers point of view.

What Every Employee Should Know About Non-Compete, Non-Solicitation Agreements

Non-Compete Assessment For Employees: (Flat Fee Pricing):  If you are an employee who has signed, or is being asked to sign, a non-compete agreement, our non-compete and trade secret attorneys can help you understand your legal rights on important issues such as: 

• Whether the non-compete agreement is likely enforceable.
• Your options and our recommendations regarding risks, strategies and options.  

As importantly, we can provide you the guidance and advice you need within a budget that works for you.  We have several flat fee options for a non-compete and trade secret assessment ranging in price from $400-$1,800 (depending on how much income is at stake) so that you can make an educated decision about your next steps. Too many employees end up penny wise and pound foolish, making decisions about their employment and non-compete issues without understanding the risks involved.  

Contact a non-compete attorney today for a no-risk consultation by calling 866.936.7447 (toll free) or sending us an email describing situation.

Our attorneys have included some resources below for your review:

Non-Compete Attorney Mark Clark Explains "What is a Non-Compete Agreement?" A non-compete and trade secret agreement is a contract signed by an employee where he or she agrees that they will not engage in certain employment within a certain geographic area for a certain period of time after they quit or are fired. Likewise, a non-solicitation agreements preclude a terminated employee from contacting the employer’s customers or remaining employees after leaving employment.

These restrictive agreements have become more prevalent in Michigan, especially in the technology sector where companies believe they have legitimate business interests that need to be protected.