The more non-compete matters I review and litigate the more certain I am that geographically based non-competition covenants should be per se unenforceable.
In Bimbo Sues the Muffin Man, I briefly discussed the inevitable disclosure case filed by Bimbo Bakeries against a former…
“In his 37-page opinion in Bimbo Bakeries USA Inc. v. Botticella, U.S. District Judge R. Barclay Surrick granted a preliminary injunction, ruling that Chris Botticella, a former senior vice president at Bimbo, cannot start to work for Hostess Inc.
An inevitable disclosure case recently filed in federal court in Pennsylvania. To prevent disclosure of its trade secrets, Bimbo Bakeries asked a judge to keep the former manager from working for a competitor. Although, he had not even signed a noncompete.
In Southwest Stainless, the U.S. Court of Appeals for the Tenth Circuit held that although pricing generally may be protectable, a court needs look at the specific pricing at issue in the case to determine whether the company protected that pricing. Ultimately, the Court in Southwest Stainless held that sharing pricing with a customer, without restriction, removes any claim of confidentiality that may have existed.
Conceptually, there is something disturbing about creating a rule out of thin air that an employer loading its information onto…
The doctrine of inevitable disclosure represents another phase in the evolution of the common law’s permissive attitude toward covenants not to compete, since the doctrine permits a court to prohibit an employee from competing with his former employer even in the absence of any contract.
A recurring issue in my practice is whether information known by a former employee is a “trade secret.” Many times the information at issue is a client list or simply the identify of clients and/or customers. The South Carolina Supreme Court considered this issue in the case of Atwood Agency v. Black, 374 S.C. 68, 646 S.E.2d 882 (S.C. 2007).
E-discovery is the new trend in litigation; it is here to stay. Every lawsuit involves discovery, now, because many documents exist in electronic form on computer hard drives, electronic files are also subjects for discovery.
In Carolina Chemical Equipment Company v. Muckenfuss, 322 S.C. 289, 471 S.E.2d 721 (S.C. Ct. App. 1996), the South Carolina Court of Appeals held that when a broad trade secret provision “basically has the effect of a covenant to to compete, [the Court] must subject it to the same scrutiny as a covenant not to compete.” Although the South Carolina legislature attempted to limit the holding of Muckenfuss the following year, the case remains important for several reasons: It began the difficult task of culling “trade secrets” from general business information as well as because it did so in the defense of an employee’s right to work.