Law Tips: Non-Compete Case

Efficient Resolution of the Non-Compete Case

“Evaluate all options for efficient resolution:”  Kathleen Hart, chair of ICLEF’s recent “Covenants Not To Compete” seminar reminds fellow practitioners.  She advises that, both from the plaintiff’s and defendant’s side, there are many critical aspects that should be studied.  Contractual and legal obligations…employer’s interest and interpretation…relevant protectable interest or goodwill…ancillary claims for damages…trade secret misappropriation…unfair competition…computer trespass…cost of injunctive relief litigation…historical employer/employee relationship…first breaching party…unclean hands….her list of  possible issues with bearing on the case is lengthy. Considering the possible complications involved in the Non-Compete Case, Kathleen’s advice on bringing the case to an efficient resolution are offered for your contemplation in the following excerpt from her CLE materials:

Like any dispute, the prospects for early or reasonable resolution depend upon the parties and their counsel to recognize their relative weaknesses, the cost and uncertainty of litigation, and cooperative communications. Even with irreparable harm, it is quicker to make a phone call or deliver a demand letter with a short deadline before, or concurrent with, preparation of the papers necessary to initiate suit. Often times it is discovered that the employee was never provided a copy of the signed non-compete agreement or there was no formal communication respecting ongoing obligations owed each other before the employee departed. Consequently, counsel’s role for both parties is to cover these bases.

Misunderstandings can be quickly rectified. If the employee wasn’t asked to return anything and still has everything in a box carried home, the employee’s counsel can save a lot of fees and worries by immediately returning the employer’s property along with an affidavit that nothing else is in the employee’s possession but if any is found in the future it will not be used or disclosed and promptly returned.

Other good faith measures include affidavits from the new employer proclaiming that the newly hired employee is forbidden from using or disclosing the prior company’s information and a similar one by the employee that he/she will not do so.

Good counsel can exchange facts and applicable case law to debate the points and reach resolution – even exchanging a few rounds of correspondence has successfully avoided suit between sophisticated counsel who gave practical advice to their deferential clients.

About our Law Tips faculty member:
Kathleen Hart, Riley Bennett & Egloff, LLP, Indianapolis concentrates her practice in civil and commercial litigation. She helps clients evaluate the strengths and weaknesses of their claims and defenses in order to position themselves to resolve disputes.  She regularly consults with clients on ways to avoid litigation. We appreciate her contribution to Law Tips and as the chair of “Covenants Not To Compete“.  You can gain further from her advice and the panel of experts presenting this program

To view the upcoming Video Replays, the Online/On Demand Video or purchase the e-Publication of Covenants Not To Compete, Click Here


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Nancy Hurley, Law Tips blogger, has long-standing connections with Indiana lawyers.  She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We plan to utilize her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs.  When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook page, Twittering and other places her legal experience lends itself.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN


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