I recently wrote an article for the International Association of Defense Counsel committee newsletter on Ethical Issues for Defense Counsel in Employment Practices Liability Insurance Litigation. The article addresses: (1) identifying the client; (2) determining who controls the selection of defense counsel; (3) analyzing whether a reservation of rights changes who controls the selection of counsel; (4) complying with litigation management guidelines; (5) determining who manages the litigation; and (6) analyzing who controls the decision to settle. To read the full article, click here.
Your best sales representative tells you at 5:00 p.m. on a Friday that she is quitting immediately and going to work for your direct competitor. “But you have a non-compete agreement,” you sputter. “That won’t hold up,” she retorts. “It’s been real, it’s been fun, but not real fun,” she exclaims, then walks out.
Is the sales representative right about the non-compete agreement not holding up? That depends on the facts. But contrary to myth, Minnesota courts enforce non-compete agreements routinely. They can and will hold up. What should you do to protect your business? Contact an attorney experienced in enforcing non-compete agreements in court.
The attorney will ask you threshold questions to test the validity of the agreement. Was the non-compete agreement made ancillary to the sales representative’s initial employment with your company or, if not, was independent consideration paid? Is there a legitimate interest to protect through enforcement – for example, the former employee’s ability to deflect customer business to the competitor or to use or disclose of confidential information? Are the temporal, geographic, or customer-based restrictions in the non-compete covenants reasonable?
If a good faith basis exists to seek judicial enforcement of the non-compete, and you choose to do so, you and your attorney have got a lot of work to do in a short amount of time. The longer a party waits to seek enforcement, the less likely a court will enforce the agreement. You will need the following:
- Complaint – A pleading that states the general factual allegations and lists the legal causes of action.
- Affidavit(s) – A formal, sworn witness statement, verifying facts based on personal knowledge.
- Motion for Temporary Restraining Order – A formal request for a temporary restraining order (or “TRO” for short).
- Notice of Hearing – A short document stating the date, time, and place of the hearing on the motion.
- Memorandum of Law – A brief applying applicable law to the facts.
- Proposed TRO – The factual findings and conclusions of law that you want the court to make.
- Attorney Affidavit – Your attorney’s affidavit addressing any necessary information, such as whether the opposing party was served or notified.
- Summons – A formal document to serve on the opposing party with a copy of Complaint.
- Court Forms
- Filing Fee Check
- Cover Letters
A TRO request may be necessary to protect your business from irreparable harm. Reasonable non-compete agreements can be, and will be, enforced through this process.
*This post was originally written by Steve Wilson.
I recently published an article entitled “Electronic Privacy Concerns in Single-Plaintiff Employment Litigation and Employment Class Actions” in the Summer 2011 issue of Federation of Defense and Corporate Counsel Quarterly. The article addresses issues such as:
- Whether employee emails are protected by the attorney-client privilege;
- Compliance with state and federal laws regarding electronic communications; and
- Recent case law regarding the unauthorized interception of emails.
The article is available online here.
On October 19, 2011, Briggs and Morgan and Marsh will present an Employment Practices Liability Insurance (EPLI) Seminar at Briggs and Morgan’s Minneapolis office in the IDS Center. Topics discussed at the seminar will include:
Emerging Trends in EPLI from the Perspective of the Underwriter and the Broker: Learn about timely EPLI trends, including how market trends affect pricing and coverage for social media and workplace bullying claims.
EPLI Claims Attorney Panel Discussion: EPLI claims attorneys will discuss and analyze the difficult issues EPLI policyholders experience when defending employment claims, such as panel counsel/outside corporate counsel challenges, and control and valuation of employment claims.
EPLI Litigation Strategies – Perspective from Plaintiff’s Counsel and Defense Counsel: Veteran plaintiff’s and defense employment attorneys will discuss the mistakes employers make that lead to claims, and share their strategies on how to best prosecute and defend these claims.
How to Avoid the EEOC Knocking on Your Door: Learn about EEOC trends and initiatives and how your company can stay in compliance.
Presenters at the seminar will include:
- Lisa Chonarzewski – Senior Claims Attorney, Monitor Liability Managers, LLC;
- Steve Cox – Regional Underwriting Manager, Chartis;
- Kerry Evensen – Vice President, Claims, OneBeacon Insurance Group;
- Paul Lukas – Attorney, Nichols Kaster, PLLP;
- Jessica A. Palmer-Denig – Trial Attorney, U.S. Equal Employment Opportunity Commission;
- Sharon Scharf – Senior Vice President, Marsh FINPRO;
- David Schooler – Attorney, Briggs and Morgan, P.A.; and
- Aaron Stone – Technical Director and Claims Counsel, Employment Practices Liability Claims, The Travelers Indemnity Company.
Registration and continental breakfast will begin at 8 a.m. on October 19, 2011. The seminar will run from 8:30 a.m. to 12 p.m., and will include lunch. For more information on how to register for this seminar, click here.