Friday, December 8, 2017

38 Minutes of Hell

I've represented defendants in some pretty stupid lawsuits. But 2017 is proving a banner year.

Earlier this year, I had client get served with a claim for inevitable disclosure of trade secrets. From the outset, the case was a pure head-scratcher because there were no facts that so much as hinted at trade secret misappropriation. And, here's one for ya, my client had a non-compete agreement. In point of fact, he did leave his job to go work for a company in the same industry.

So why on earth would the plaintiff not sue on its non-compete and proceed on the inevitable disclosure claim?


The Illinois Appellate Court previously had found this company's non-compete unenforceable as a matter of law. It turns out the company learned nothing and never altered its void non-compete in any meaningful way. So, quite obviously, a contract-based claim would have gone nowhere.

So enter inevitable disclosure - the Kim Jong Un of legal claims. The theory was that my client couldn't work for a competitor on the grounds that he inevitably would disclose his former employer's trade secrets - in effect a diabolical work-around to a non-compete that the employer knew it couldn't enforce.

We had none of it, filed a motion to dismiss, and won. It was not close.

The plaintiff's lead attorneys - probably operating under directions from their client to abuse the legal process and prevent competition - then filed a bad-faith, frivolous amended complaint trying to add facts that would suggest some plausible risk that my client might disclose trade secrets.

The facts in this new complaint were so hopelessly convoluted they took about 3 pages of allegations to explain the theory, an ersatz diatribe laden with a cloak-and-dagger reference to a "Customer 1" (as if this is some sealed indictment). The logic was tortured and made no sense, due in large part to the fact that my client had no contact with "Customer 1" and the sequence of events was totally fucked up.

Luckily for the plaintiff, they had another attorney. A really good one, kind of a local counsel, who had common sense. And I feel this attorney must have put the brakes on all the dicking around after I notified everyone that Complaint 2.0 sucked just as badly as the first version.

So the case settled. The plaintiff released us from the non-compete it had and got zero out of the case except a bunch of obvious representations from my client that he had done nothing wrong. (This, I am quite certain, the plaintiff knew. But who the fuck cares about the truth when your client pays your padded bills?) There's no doubt the plaintiff dodged a sanctions motion (which I would have taken up to the appellate court for free in the unlikely event we lost).

But what did law firm insist on in the settlement agreement? A deposition of my client. That's right - a deposition after the case settled, after the claims had been released, and after the action had been dismissed with prejudice.

Who thinks of this garbage? Is this part of orientation day, where you get schooled on how to maximize the billing opportunities in your file? Or is this client-driven, an attempt to show that, frivolous suits be damned, I'll have the last word by golly!?!?

So the purpose of the deposition? To confirm my client was telling the truth in the settlement agreement when he represented he didn't take anything and wasn't soliciting his former clients. As if he would do that. In yet another epic move, the plaintiff's lawyer calls me and tells me he does this sort of deposition all the time.

By that, I now assume he meant that he files a bunch of stupid cases, dismisses them, and then bills for more work after the case is over. We agreed because we had nothing to hide and just wanted this over.

The deposition went forward yesterday. And that's where the title of this post - "38 Minutes of Hell" - comes in.

It wasn't 38 minutes of hell for me. And it damn sure wasn't 38 minutes of hell for my client. It was 38 minutes of hell for them. Because big law firm (two lawyers) and big corporation got to sit across the table from me and my client and see how utterly fucking stupid their lawsuit was. I hope it was as humiliating as it felt. I know it was.

Why do I share this story?

For all the non-compete apologists out there, another story needs to be told. This kind of bullshit that I just told in this blog post goes on every day. Lawyers who file and maintain frivolous anti-competitive suits need to know that it will not end well. It could be a big fee judgment. Or it may be an appellate court telling them their clients' non-compete is awful.

Or it could be just as satisfying - 38 minutes of hell, pure and utter humiliation, watching a replay of your crappy work before your very eyes.

No comments:

Post a Comment