Saturday, December 15, 2018

Thank You, and Good-Bye

Today, I reach the end.

Ten years to the day I first started this blog, 651 posts later, I have decided this is the last one.


I have a number of reasons why I've decided to call it a day. Not one of them, though, reflects any desire to move on from this area of practice. It has been richly rewarding and intellectually challenging. I am so glad I started this journey.

Over the past 10 years, I've met wonderful clients who have become friends. I think of Tom Christofilis, Paul Ruedi, John Black, Danielle Harrison, and so many others. I hope each is glad they met me and hope they feel as though I've done my very best for them. I certainly am better for having met them.

I've also met terrific attorneys, who perhaps wouldn't know me but for my writing on here. John Marsh, Russell Beck, Victoria Cundiff, Ben Fink are a few that come to mind immediately. These too are great relationships that I owe, at least in some part, to the work set out on this blog.

And my writing itself. I wrote 651 posts. That is somewhere between 620 and 640 more than one of my partners said I'd be able to churn out. Ha! Not bad. Most law blogs fizzle out, understandably so. People get busy. They get frustrated if they see no immediate return. But I never set out to do this to obtain something back. Writing this blog was satisfaction enough.

I had someone ask me earlier this week how I found the time. Well, if you really like something, you make the time. I don't suppose I have time to re-read Ayn Rand novels, but I'm doing it. I don't really have time to coach my kid's softball but I sure as f**k want to do that too. I don't have time to read any more about politics, but regrettably I get sucked into that vortex pretty regularly.

For years now, I've heard people say the blogosphere is too crowded and that I'm swimming upstream. Probably, but who cares? The thing is, I think people can tell when someone likes what they do. And those who read this know I am just not goin' through the motions. I've always tried to make this useful, interesting, fresh, and lively. Some days I don't have it, but I think the majority of them I do.

As for my writing itself, I posted mock opinions on cases that were weird or just outrageous. I've changed my mind on big topics. I've recounted war stories. Said goodbye and paid tribute to the most famous circuit court judge in my lifetime. It was a lot of fun. I left no stone unturned, covering topics wide and deep.

But now it's time. I just have said all that I've wanted to say. And for me that's a sign that I should be done. I don't know what is next, but I have tons of ideas. Whatever I decide to embark on next, I hope I do it as well as I did this, even if for not nearly as long.

And for those of you who read, I simply say thanks!

Thursday, December 13, 2018

The Meaning of "Not Less Than"

This week, I lost an appeal.

It sucks. It really does. Losing is never fun, and I occasionally take things too personally. The case was an interlocutory appeal, meaning it's not over. Meaning that I appealed early. Meaning that in cases like this sometimes you must swing for the fences. Meaning that trying to hit home runs isgood, even if it means striking out on occasion. (Ask any baseball geek GM; he'll concur).

So the Appellate Court of Illinois' opinion can be found here, but the case was simple in terms of the legal issue presented. It is thus stated as follows:

Does a non-compete that lasts for "not less than" five years mean that it lasts for five years?

That is the issue I appealed under a procedural rule that allows for discretionary interlocutory appeals. Basically you get to ask the appellate court a question and see what they seay. The Third District Appellate Court answered my question and said "yes." I said no. I was wrong. Judges are right when they rule, even if you don't like the result.

I will say that this experience of arguing in the Third District (site of the Lincoln-Douglas debates for you folks who live in lower-taxed States) was fantastic and the appellate justices were highly engaged throughout this argument, not to mention exceedingly likeable. I have appeared here before with success (in another non-compete case, before the same exact panel) and found the court equally engaged then.

I just happen to disagree with what they said. I don't think a covenant lasting "not less than" five years means that it lasts five years, and so the covenant for now at least sets forth some ascertainable time limit, which means that for now I head back to the trial court and attempt to hit singles, doubles, steal bases, and eventually win the game through my typical plodding around.

I am posting this because I felt my side needed to be heard. Links to both of my briefs are embedded here in this post. The court adopted my opponents' arguments in full. So no need to post what he wrote! He is a terrifically nice guy and effective lawyer, and I congratulate him. Well done. But, sorry bruh, I'm not posting your brief!

My opening brief is below

My reply brief follows.

Friday, December 7, 2018

Reading Round-Up and Some Thoughts on Wrapping Up Another Non-Compete Case

As the year comes to close, I've come across a few recent articles that merit some brief mention.


A prominent early voice in the call for non-compete reform is current Boston University Professor Matt Marx. He drafted a policy paper for The Hamilton Project, titled Reforming Non-Competes to Support Workers, which you can access here.

Professor Marx's paper is worth a read for a number of reasons, including its very informative discussion on the history of non-competes and recent legislative trends. More helpful, though, is Marx's discussion of statistics regarding the ubiquity of non-competes and the impact of contractual restraints on job mobility.

One proposal Marx discusses, which hasn't received as much scholarly attention, is incenting state attorneys general to use general consumer protection or unfair trade practices law to undertake litigation efforts over abusive non-compete practices. Though this has occurred a bit in the low-wage worker context, there's no reason why it couldn't extend outward to address troubling practices directed at additional categories of employees.


Speaking of low-wage workers, the Troutman Sanders firm published a short piece entitled The Potential Pitfalls of Using Non-Competes for Low-Wage Workers, to which my reply simply is "yes." If you really feel the need to be persuaded or convinced on this topic, then click here. But I understand if you take a hard pass...

(The Washington Examiner also explores the increasing backlash against non-competes and horizontal no-poaching pacts, particularly in the fast-food industry, in this September piece.)


Moving on to other controversial topics, Venable authors Tom Wallerstein and William Abramovitz write that the Defend Trade Secrets Act's ex parte seizure provision is, indeed, constitutional. They appear to have written in response to a New York University Law Review article suggesting otherwise. That article is available for download here.

The Venable folks are correct. In fact, the DTSA provision, which allows for the seizure of instrumentalities used to steal trade secrets without notice to the party in possession of those instrumentalities, is modeled on a similar trademark statutory provision. That provision allows for the seizure of counterfeited goods on an ex parte basis. The procedural requirements built into the DTSA and the Lanham Act specifically address the Fourth Amendment concerns that attend property grabs.

I will repeat what I've said before. The ex parte seizure tool is more interesting from an academic, rather than a practical, standpoint. Some variant of this process was around long before the DTSA was ever law. Let's move on, folks.


Now on to another bad non-compete case, just concluded.

Let me start with this. My 6 year-old daughter reads a series of chapter books by author Ron Roy, which are called the A to Z Mysteries. In this series, a trio of aspiring gumshoes (named Dink, Josh, and Ruth Rose) investigate a number of weird mysteries in a fictional Connecticut town. Think of it as a much less violent version of Cabot Cove, Maine. Two things are notable about this A to Z trio of sleuths. First, they most certainly have free-range parents, who are almost never seen and impose little to no restriction on what their kids do. And second, the kids are relentless in their pursuit of understanding facts.

At this point, you're likely asking "what's the point?" Well, I have one.

I just finished yet another case in which a defendant was wrongfully sued for violating a non-compete clause and stealing employer trade secrets. It was immediately clear when I got the case that the plaintiff's attorney made no attempt to discover any basic facts that were alleged uniformly on "information and belief." And to make matters worse, it was even more clear that my client's own attorney was uninterested in investigating these same basic facts.

Instead, as it turned out, counsel both were perfectly content to follow some kind of odd litigation playbook, filing motions, responses, and other filings that did little to address my client's concerns. And let me state this again. Her concern was that the plaintiff got the facts wrong.

It turns out that four months into this case, no one had talked to the two witnesses who knew precisely what facts to confirm and dispel. I was hired, called them the next day, and within literally within hours, the case was dismissed with prejudice. The plaintiff knew it was cooked when it saw my disclosures, because it knew these witnesses would undercut the entire case. We then sought our fees. This matter is now over with a great result for a client who never should have been sued.

This is not to suggest I am great. All I did was what my client had asked. All I did was what the kids in the A to Z Mysteries series did. All I did was call people who knew what happened. Practicing law is not supposed to be some mysterious quest into the abyss, where lawyers operate in a parallel universe from their clients.

What's the lesson? Maybe attorneys should listen more to their clients. Mine had been begging for someone to validate her story, and she had the witnesses ready to do this. The problem is that her former attorneys told her they had a different strategy. Guess what? It was a costly one, despite its patent ineffectiveness. It got them fired.

This anecdote is, unfortunately, far too common in competition cases. Many cases that appear flimsy are in fact flimsy. Attorneys can pick up the phone and call witnesses. Their first reaction should not be to jump on Westlaw and see if a case with a similar non-compete somewhere was dismissed for on some obscure legal basis that does not interest the client and will not interest a judge.