Friday, June 16, 2017

The Return of the Fourth Justice: My Concurring Opinion in BHB Investment Holdings v. Ogg

My dear readers may not realize that, despite not being a Michigan attorney, I recently sat as the Fourth Justice on the Court of Appeals of Michigan for the case of BHB Investment Holdings, LLC v. Ogg, or as it should be known for eternity the "Goldfish Swim School Case."

For reasons I haven't quite figured out, my concurring opinion is not available online. Nor does the official reporter appear to recognize my contribution to the Court. So I thought I'd repost my concurrence here.

BHG Investment Holdings, LLC
d/b/a Goldfish Swim School of Farmington Hills


Steven Ogg and Aqua Tots Canton, LLC

No. 330045

Court of Appeals of Michigan

February 21, 2017

Vanko, J., concurring in the judgment and ruminating about other stuff.

"You know, we're living in a society !"
-- George Costanza (Seinfeld, multiple episodes)

I have an Uncle Frank (doesn't everybody?), who is as salt-of-the-earth as you can get. He built his own house, tinkers with small engines, and drinks beer at the Moose Lodge on Sundays. Uncle Frank understands things viscerally and intuitively, in a way that speaks to a man's soul. In other words, you can't bullshit the old curmudgeon. When I see him at family gatherings, he always wants to hear what "the bastard lawyers" are up to. But he says it somewhat in jest.

The analysis of this case is no more difficult than asking a simple question: What would Uncle Frank do?


I know of two people named Steven Ogg. One is a character actor in TV serial dramas like The Walking Dead and Better Call Saul. The other - the defendant in this case - is a kid who works a job that pays him just enough that one day, if he's frugal, he might be able to buy a used scooter or rent a cheap apartment.

Ogg, a former competitive swimmer, teaches little urchins how to swim at a quaint little place called Aqua-Tots. I mean, seriously, how cute is that name? Unfortunately for Ogg, he used to work at Goldfish Swim School doing basically the same thing. For his work as an instructor, Ogg netted $10.50 per hour. At some point, Goldfish promoted him to a position called "deck supervisor," which sounds more walking around than swimming. For this step up the corporate food-chain, Goldfish upped Ogg's pay by $1.50 per hour. He must have celebrated with a small Slurpee.

Aside from paying Ogg what amounts to minimum-wage work, Goldfish had him sign a one-year non-compete agreement that said he couldn't teach tots to swim within a 20-mile radius. Goldfish later terminated Ogg - apparently deciding he wasn't valued enough. Ogg did what most enterprising young adults do. He found another job.

It was at that point that Goldfish lost its proverbial shit. Ogg did not - it turns out - earn his next meager paycheck by flipping burgers at McDonald's, folding shirts at the Gap, or futzing around with neighborhood landscape projects. He took the job at Aqua-Tots, which technically put him in "breach" of the 20-mile restriction Goldfish had him sign. The record does not reveal any dickering over terms or conventional contract negotiation.

For reasons that confound and amaze, Goldfish decided it was worth the money to sue and keep Ogg from working at Aqua-Tots. It was at this point that the clerk's office should have read the complaint and sent it to my Uncle Frank. He would have called up the courthouse and demanded someone toss the whole file in the shredder. No one would have been worse off had this occurred.

True, this sounds a bit third-world, but these are the times in which we live. Autocrats are celebrated these days. And a hell of a lot of lawyers' fees could have been saved. We'd end up at exactly the same place. Since Goldfish admitted that Ogg hadn't taken anything and hadn't tried to solicit parents of the kids he taught, this third-world approach would have made no difference. I could end my analysis right there.

But I won't. I'll go beyond the framework we should use - WWUFD? - and ruminate some more.


The majority's opinion is kind of a boring, hackneyed read. Ultimately, it reaches the right result, but whatever happened to snark and sarcasm? Has it no place in appellate jurisprudence?

I give the majority some credit. It at least engages Goldfish's arguments and tries to reason through its motivations for filing suit. I would like to have seen some acknowledgment that Goldfish filed this suit not because Ogg was some grave competitive threat, but because it wanted to send a message to other competitors to stay away from its employees. In other words, I just would have liked to have seen more skepticism through the process of judicial engagement.

So I shall be that skeptic.

Goldfish claims that by using this non-compete agreement for instructors like Ogg it was trying to protect its "techniques and ways in which we do things in our curriculum." I've seen more specificity in a Trump policy proposal. What exactly is Goldfish talking about? Ogg, again a competitive swimmer, obtained the same kind of training and knowledge that any worker anywhere would gain just by working. Every business has "techniques" and "ways in which [they] do things." That hardly justifies the need to claim secrecy over everything or to prevent the movement of labor.

Goldfish even lets the parents observe these "techniques." True, most parents these days dick around on their cellphones while Little Johnny or Jane thrashes around in the water. I mean, what's more important than checking out what Aunt Judy has to say about planting her begonias? But Goldfish wants parents to know these techniques, presumably so they can work with their kids and help them learn. Without this transparency, the whole swim class would be kind of pointless. The curriculum is built on the opposite of secrecy.

The majority also skirts over an obvious point. Goldfish paid Ogg in such a way that undercuts any argument that it "invested" in some proprietary training. So we know that can't be what Goldfish is trying to protect. To be sure, there are a number of municipalities where Ogg earned less than the legal minimum wage. And the 20-mile restriction is awfully significant given that Ogg's pay scale may not have allowed him to cover the cost of driving outside the red zone. If I made as much as Ogg, I'd be eating bologna sandwiches and drinking Natural Light.

I am quite troubled by the majority's statement that it was "reasonable to prevent Ogg from using specific Goldfish methods for a one-year period." That doesn't at all square with its comment that those same instructional methods were not proprietary since they were displayed "in front of hundreds of people daily." The majority seems perfectly willing to accept the contract language for what it is, without evaluating whether the restriction itself protected anything the law deems reasonable. Since when was economic protectionism a legitimate business interest that warranted the court's indulgence?


We could have made short work of this case. This whole proceeding is uncomfortable and annoying, like water in the ears or that lingering chlorine smell that won't go away. For its part, I hope Goldfish is embarrassed by this. We should have issued a more straightforward ruling that said its non-compete is categorically unenforceable against retail employees who can't possibly cause damage or further a corporate espionage scheme.

I fear we are entering a new realm in which employers will use restrictive covenants by asserting broad, vague interests that are wholly disconnected from the realities of the environment in which they operate. And by doing so, they can tie up competitors and employee in expensive litigation, the cost of which is disproportionate to any conceivable economic gain they ever could possibly obtain through a victory.

We have a name for this in the law: abuse of process. Uncle Frank has a name for this at the Moose Lodge: a pile of crap.


For these reasons, I concur in the judgment and remain deeply skeptical that we live in an ordered, civilized society.

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