by Lee Gesmer | Nov 7, 2011 | Noncompete Agreements
Earlier this year Massachusetts Continuing Legal Education (MCLE) asked me to update my 2009 chapter on Employee Noncompetition Agreements. The revised chapter, part of the 2-volume Massachusetts Employment Law series, was published in June.
Below are links to the cases I added to this chapter. I’ve also included a sentence or two regarding each case. However, I did not make an effort to describe every legally significant aspects of each case.
- Ethicon Endo-Surgery, Inc. v. Pemberton, 27 Mass. L. Rptr. 541 (Super. Ct. 2010). This case, decided by Judge Peter Lauriat in the Suffolk Business Litigation Session, applies New Jersey non-compete law, but Massachusetts procedural law for purposes of ruling on a preliminary injunction. The former employee filed suit in California first, but Judge Lauriat refused to dismiss this case based on the “first filed” rule. The court enforced an 18 month covenant not to compete against the former employee.
- Inner-Tite Corp. v. Brozowski, No. 2010-0156 (Worcester Super. Ct. 2010). This lenghy decision was written by Judge Janet Kenton-Walker, sitting in Worcester County, following a bench trial. The judge enforced a one year convenant not to compete against an employee who had worked for Inner-Tite in Georgia. Given Brozowski’s relatively low salary, and the fact that he was asked to sign the non-compete after beginning work for Inner-Tite, this contract would not have been enforceable under the various proposed Massachusetts non-compete statutes. Either ground would have invalidated the agreement. This was a tough outcome for the former employee, and one which might have had a different outcome in Suffolk, Middlesex or Norfolk counties, which tend to have more liberal leanings in these cases.
- Rohm & Haas Elec. Materials, LLC v. Elec. Circuits Supplies, Inc., 2010 U.S. Dist. LEXIS 136080 (D. Mass., Dec. 22, 2010). In this case, brought against a corporate distributor of Rohm, Judge Joseph Tauro denied a preliminary injunction for a variety of reasons, including Rohm’s failure to prove the distributor possessed trade secrets or confidential information, and because Rohm’s damages were quantifiable and relatively small,
by Lee Gesmer | May 26, 2011 | Trials
I was interested to read the The Wall Street Journal’s report that Raj Rajaratnam spent $300,000 on jury consultants before the trial in which he was convicted on all 14 counts of securities law violations. As my teenage daughter might say, “fail”!
OK, I admit that I’m being a bit unfair. From everything I read in the press regarding this trial it would have been astounding if Mr. Rajaratnam had been acquitted. After all, the government had something quite rare in insider trading cases: audiotapes of the defendant, convicting him with his own words. A jury consultant “fantasy team” comprised of Sigmund Freud and a certified psychic probably wouldn’t have been able to help in this case.
Nevertheless, it’s no great surprise that Raj’s attorneys chose to use jury consultants in this case. $300,000 was a drop in the bucket given the “spare no expense” approach taken by defense counsel in this case. Mr. Rajaratnam”s lawyers undoubtedly concluded that jury consultants might help, and couldn’t hurt. The decision to utilize jury consultants probably was a prudent step in minimizing future regret. (“If only we had used a jury consultant our client might not have been convicted! Darn.”).
Trial lawyers have long been deeply divided on the question of whether jury consultants are “worth it.” Some of the consultants’ recommendations in this case (as reported in the WSJ), are so obvious that it your lawyer doesn’t know them without a jury consultant’s advice, get a new lawyer. For example, the Journal reports that the consultantants concluded that jurors who were members of ethnic minority groups were more sympathetic to Mr. Rajaratnam, who was born in Sri Lanka. Hmm . . . . did OJ’s lawyers need jury consultants to tell them that people of color might be more favorably disposed to OJ than whites? I hope not. Lawyers shouldn’t need jury consultants to tell them that people are predisposed to like people like themselves. If my client is an ultra orthodox Jew, I want a jury of the same. If my client is a native American . . . . well, you get it. (more…)
by Lee Gesmer | May 20, 2011 | Courts
“I’m sorry this letter is so long, I didn’t have time to make it shorter.”
— George Bernard Shaw
Non-lawyers see lawyers arguing before judges on television and in the movies, and they get the mistaken impression that oral argument is the heart and soul of lawyering. In fact, it’s not. Most judges based their decision on a careful reading of the legal briefs submitted to them. That’s particularly true of the Supreme Court, where each side to a case may spend hundreds or thousands of hours preparing their written briefs, and get all of 30 minutes per side for oral argument. This wasn’t always the case – until the mid-1800’s the time for argument was unrestricted, and could go for days. In 1849 the time per side was limited to two hours. This was reduced to one hour in 1925, and 30 minutes in 1970. And, as Justice Alito recently noted, half of the words spoken during those 30 minutes are spoken by the Justices themselves, while questioning the lawyers.
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by Lee Gesmer | May 14, 2011 | Trials
One of the oldest, most hoary rules of the trial practice is this: if you have a bad fact, reveal it to the jury before your opponent does. Otherwise, the theory goes, the jury (or judge) will think you are trying to hide it from them, and will count it against you. Worst case, you will lose credibility as an advocate – if this lawyer will try to hide a significant fact from me this time, what else is he or she hiding? Why should I trust this attorney?
Disclosing the bad fact is OK, but even better, figure out some way to turn the “bad” fact to your advantage – “if you can’t fix it, feature it.” For example, “my client was convicted of criminal fraud ten years ago. We want you to know about this, jurors, and to know that he has paid his price to society, and been free of any allegations of wrong doing since. Since then he has married, he is the father of triplets, and he hasn’t gotten into trouble since. We all make mistakes – don’t hold this one against him.”
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by Lee Gesmer | Oct 1, 2010 | Employment, Noncompete Agreements
While the debate over whether Massachusetts should adopt a law restricting the enforceability of non-compete agreements rages on (well, at least among a group of maybe 100 economists, lawyers and business people), California proudly observes that noncompete agreements are unenforceable in that state (except under very limited circumstances). And, economists argue, that is one reason why the high-tech industry in Silicon Valley is more successful than its counterpart Massachusetts.
Now, come to learn, things were not quite what they seemed. I’m sure that 99% of California companies are in fact impacted by the California law — that is, they cannot impose covenants not to compete on their employees. But a few companies — Google, Apple, Pixar, Adobe, Intuit and Intel — figured out an end-run around this law. Apparently, the Federal Trade Commission tumbled to the fact that each of these companies agreed, with one or more of the others, not to solicit that company’s employees. For example, according to the FTC Apple and Google put each others employees on “Do Not Call” lists.
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