You take the pieces of the dreams that you have
cause you don't like the way they seem to be going
You cut them up and spread them out on the floor
You're full of hope as you begin rearranging
Put it all back together
but anyway you look at things and try
The lovers are losing
-- "The Lovers Are Losing" (Keane, 2009)
What do the lyrics from a (great) song by British alt-rock group Keane and the ridiculous LeBron James fiasco of last week have to do with non-compete law?
Well, it all has to do with hope, expectations and loyalty.
When an employee departs from one firm and jumps ship to a competitor, the motivations for doing so are almost always noble and altruistic - at least from that employee's perspective. She may be trying to raise her pay, service her clients better, or provide for long-term security. No shame, that. Along the way, she may make mistakes, but it is rare that such mistakes are the product of anything more than negligence.
However, from the perspective of the jilted employer, the feelings are always more personal. Perhaps it has to do with the training and investment made in employees, the lack of respect an employer has for its competitor, or an inflated sense of the employer's importance.
Witness the comments from Cleveland Cavaliers majority owner Dan Gilbert after LeBron James left to take his talents to South Beach:
"This shocking act of disloyalty from our home grown chosen one sends the exact opposite of the lesson we would want our children to learn. And who we would want them to grow up to become."
Gilbert peppered his open letter to Cavs fans with other inflammatory screed, calling James' move a "cowardly betrayal" and describing his decision (or perhaps the presentation of it) as "heartless and callous."
Clearly, Gilbert felt like he, his fellow owners, co-workers and fans were personally scorned. As over-the-top as his letter was, this is not at all unlike what occurs during litigation between competitors. Under the pressure to save clients or protect proprietary information, employers have to make fast decisions - and sometimes the decisions made in the heat of the moment are emotional and not particularly well-considered.
Gilbert spoke of "disloyalty", which is a word often invoked against employees when they leave to compete. LeBron, for all his self-indulgence, was not disloyal - at least from a lawyer's perspective. He didn't breach any contract, demand to be traded, or renege on a promise.
But competitives decisions - like the Decision - frequently inflame passions and evoke feelings that Gilbert expressed so inartfully.
I have written before about cease-and-desist letters gone haywire. Letters that employers would like to claw back. There are a small number of cases where those letters, clearly not thought out at all, actually result in substantial liability for interference or defamation.
Emotions run high - understandably so - when employees leave to compete. Often times, lawsuits are not thought out particularly well. We see this often when filing a complaint seems like the right thing to do, but it ends up alienating the very customers who have to testify in court. This is a hidden cost of litigation that usually is considered after the first shot has been fired.
This is just a guess, but I highly doubt LeBron James thought of the poignant lyrics Tom Chaplin wrote when he decided to ponder his basketball future. What seemed like the right decision may still turn out to be just that. Those hard feelings that Dan Gilbert has probably will subside over time and other emotions will settle in.
This evolution of emotion is extremely common in unfair competition suits, and employees who find themselves making the jump across the street will have to deal with the confrontation and discomfort that we all saw on TV last week. Individuals who are sales-driven, type-A personalities tend to do better in dealing with litigation and the confrontation that comes with it.
But it is not for everyone. It may be very difficult to deal with inflammatory rhetoric that is tossed around in non-compete or fiduciary litigation, and it can be so distracting that the employee who is sued simply is unable to perform the very skills that made her a valued asset to begin with.
The comforting thought for most of us, though, is that we don't have to go to work and get booed - like LeBron certainly will.