Call Me, Maybe. Discovery of Employee Identities

Delaware’s Court of Chancery is the North Star of the noncompete-litigation universe in the State and, in many respects, in jursidctions around the country. It can also be a tricky galaxy to traverse due to the speed of litigation, the equitable principles that control procedural rules and, on an even more basic level, the fact that many of the court’s opinions are not reported. As a result, transcripts of rulings from the bench are commonly cited as binding authority. Continue reading

Social-Media Round Up (and other miscellany)

Discovery of Social-Media Evidence is the topic that I’ll be presenting today at the annual Office & Trial Practice seminar. Despite my far-reaching popularity (kidding, just kidding), the real celebrity at today’s event will be U.S. Supreme Court Justice Scalia. Because I probably should be practicing my presentation instead of writing a blog post today, I’ll try to keep this brief, adopting the weekly-round-up approach used by Jon Hyman. Continue reading

Enforceability of Noncompete Agreements Post-Merger

The enforceability of a noncompete agreement can vary greatly by State. When drafting a noncompete agreement or restrictive covenant, a critical decision will be which State’s law should apply in an enforcement dispute. Delaware employers have very favorable law on their side, as noncompete agreements are enforced here to a much greater extent than many others. Here’s an example. Continue reading

3d Cir.: Enforceability of Non-Competes Where Employee Misclassified

approved-stamp_3The Third Circuit gave employers new reasons to worry about misclassifying their employees in its decision in Figueroa v. Precision Surgical, Inc., (PDF), C.A. No. 10-4449.  A former employee brought suit seeking to invalidate the non-competition provision in his independent-contractor agreement (“ICA”).  The plaintiff alleged that his former employer had materially breached the contract and, therefore, could not enforce it against him. Continue reading

Whac-A-Mole Maker Gets Whacked By Employee Sabotage

Errors_thumbEmployee sabotage can take many forms. Employees can take documents with them when they leave to work for a competitor, for example. More insidious examples can involve employee destruction of files, causing enormous harm to the employer. Here’s one unfortunate story involving both kinds of sabotage committed by an employee of Bob’s Space Racers, the manufacturer of the classic arcade game, Whac-A-Mole. Continue reading

The DOJ Doesn’t Like Employers Who Agree to Play Nice

DOJAll employers want to protect the investment they make in their employees.   One strategy used to accomplish this goal is the use of non-competition and non-solicitation agreements. In closely integrated industries, some businesses have all but abandoned these agreements in favor of reaching a pact with competitors not to hire away one another employees.  This has been especially pertinent in California, where non-compete agreements are unenforceable. But a recent lawsuit brought by the Department of Justice’s Anti-Trust Division has called this strategy into question, as well as the idea of non-compete agreements as a whole. Continue reading