10-04-2003 03:19									#31
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quote: Originally posted by rah Yep, disgusting. This crap would never fly in my family, thank god. You have my sympathy.

Your family isn't filled with sociopaths.

(Insert Ming joke here.)



But seriously, thanks for the sympathy.

	10-04-2003 03:26									#32
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quote: Originally posted by Flubber Hang in there Johnt . Its becoming obvious they are tring to shaft you. Your two chices are to take it or to fight back. I would fight. I would also stop meeting with your Dad. He might even want to be reasonable on some level but then evil stepmom probably twists things, gets inside his head and convinces him you are the bad guy ( my perception is that she "runs" him. ) Any future meetings should be with the person in authority. I never negotiate with a person that does not have the authority to make a decision. Oh and 185 an hour for the lawyer is peanuts if they can get it straightened out. EVERYBODY knows that lawyers are not paid enough LOL Flubber LLB (member of the law society of Alberta)

The meetings with my father are past, an attempt to rectify the situation w/o having to resort to lawyers and lawsuits.

Your perception is spot-on. Regardless, the fact that she runs him does not obviate the fact that he, as an officer and agent of Acme inc, has the authority to enter into agreements (he obviously had the authority to sign the non-compete), nor does it obviate their responsibility to fulfill that agreement.

Given that the company made $900,000+ in pretax profit, and, in addition, their salaries were over $200k, there is no shortage of funds to make me whole again.

Imagine making $1.2 million pre-tax and then screwing your son out of $17,000 and your granddaughter out of her health care! (BTW, the $17k figure factors in the bennies that I was to receive, so it isn't $17k + benefits, it's $17k with benefits. The actual cash portion of the agreement came to just over $12k.)

	10-04-2003 03:28									#33
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quote: Originally posted by Imran Siddiqui Damn, John! I'm sorry, man. But, on the bright side, there is no way they are going to win jack in court.

Well, they can't squeeze blood from a turnip.

I can't see how they can win this either if it goes to court. I will allow that you all are only seeing my side to this, but for the life of me I cannot figure out what their side is other than pure cussedness.

	10-04-2003 03:29									#34
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quote: Originally posted by MichaeltheGreat Don't let the "family" crap get in the way. It's emotional and psychological blackmail - your "antagonistic" tone, blah blah blah. You ingrate, all those times we bought you diapers and didn't charge you for it. You have to treat this objectively as a business and financial issue, and let them treat it emotionally. When it's done with and disposed of, then you can deal with the emotional issues, etc. Meanwhile, stick it to them, hard, every way you can. (BTW, non-compete agreements are also generally argued against on violating Federal anti-trust laws. Been there, done that.)

Really? I've only explored their viability under Tennessee law. Can you explicate a little, please?

	10-04-2003 03:39									#35
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quote: Originally posted by Japher I think it really suks that your daughter has to suffer (or at least not be able to see her gps) because of their actions. I am sure your laywer has looked for loop holes in the contracts... As, for the letter your lawyer wrote, I think they are stalling, just dickin' with you some more. I would begin the paper work to file suit now, and not waste any more time than is necessary.

Well, the fact is I don't want to sue. Far better to write off the $17k and the relationship than to get involved in a lawsuit that will cost me a minimum of $50,000, regardless of how much I may "win."

Having said that, the letter is necessary for laying the groundwork for a more-complete lawsuit in the future as it warns Acme "No more!"

quote: From this day forward, any attempt by Acme Inc. or its agents to misrepresent or otherwise prevent my client from earning a living based upon this document may result in legal action, including the seeking of all potential lost wages or income that my client may have incurred. Also, we respectfully submit that Acme Inc. purposefully defrauded my client by illegally denying him his lawfully-earned restitution in an agreement he made with the President of the Company. I am aware that Acme Inc. takes the position that the President lacked authority to enter into the referenced compensation agreement. If that is true, please advise what authority the President has to enter into other contractual agreements. It appears that Acme is attempting to “have its cake and eat it too”.

1. Don't bring the non-compete up again to potential employers/clients.

2. To do so, you will be sued for all potential future wages that my client may lose. (This could be a freakin' huge sum, btw).

3. Oh, by the way, we're also notifying you that you defrauded our client.

4. For a really stupid reason, especially given that Mr. Doesn't-Have-the-Authority signed the non-compete as Acme's representative.

The letter is also an attempt to collect the money w/o going to court, as evidenced by the final paragraph:

quote: Please advise when my client will be paid the monies owed to him by Acme Inc.

This request will likely be ignored (actually, the letter might be totally ignored.) Doesn't matter - they are warned that they are now playing by my rules, not theirs.

	10-04-2003 03:51									#36
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GP!!!! Clean out your inbox!!!!

	10-04-2003 03:55									#37
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Yeah, you are definitly in the right... a lot of sticky buisness.

I looked a round a little on non-compete covenants in Tennessee and found this paper seems to be well researched..

Link to Paper

I think you got a case. Though you'd have to cut the 17,000 but would void that contract.

I would consider what time reference was given on the contract, compensation that was to be given for that contract, and the inability of you father to enter into a contract with employees. Though I am no law expert, or even close, the code that they stated at the beginning of the Tenn. portion of the paper (pp. 36) seems to say it all.

	10-04-2003 03:59									#38
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Thanks, Japher!!!

	10-04-2003 04:03									#39
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quote: Originally posted by JohnT Really? I've only explored their viability under Tennessee law. Can you explicate a little, please?

First, you want to stick with the position that the non-compete is a forgery, not a valid agreement which you ever executed. (IIRC, that's the situation as you've described it?) There IS no non-compete.

Then as a fallback position, you argue it's not valid.

The general anti-trust argument is that any agreement in restraint of trade is contrary to public policy, and affects an interest in interstate commerce, thus making it a Federal law issue.

What you can and can't do, or more precisely, what a non-compete can and can't require of you, is very dependent on circumstances.

The company I consult for does them with other companies and some sales people, as a condition of receiving confidential data about a specific project, and only to the extent of their attempting to take that project with a competing offering. This is bundled into a confidentiality agreement, in which they admit they had no prior knowledge of the project or the client, and they had done no work on it. In other words, we're gonna give you access to something very specific and confidential, and you promise not to screw us on that, but otherwise, we may well be competing on other things. It's focused enough and limited enough that it doesn't really affect their ability to work.

Conflict-of-interest laws can make non-competes valid, but only if there's a real conflict of interest - i.e. if you're a contracting officer responsible for bid evaluations, you don't work for someone you just gave a fat contract too, for some limited time period.

Generally, to be enforceable in an anti-trust and restraint of trade context, these agreements have to be limited in scope, limited in time, and geared toward protecting some intellectual property or similar interest of the employer.

The more general the agreement, particularly if it prohibits you from working for any company in the industry, the more it becomes clearly a matter of restraint of trade.

Rather than litigate, you may have an advantage in going after injunctive relief to prevent them from trying to enforce the supposed non-compete, by first seeking declaratory relief that it's a forgery, and then enjoining any attempt to "enforce" it by claiming it's existence to companies you may work for or clients you may work with.

	10-04-2003 04:08									#40
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Listen to MtG, he sounds like he knows what he's talking about...

quote: these agreements have to be limited in scope, limited in time, and geared toward protecting some intellectual property or similar interest of the employer.

not sure what is meant by "scope", but I would also add that the agreement has to be limited in geography, since most of the boring law crap I have read this afternoon also mention that.

	10-04-2003 04:14									#41
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Good advice, MtG!!! In regards to what you say here:

quote: The more general the agreement, particularly if it prohibits you from working for any company in the industry, the more it becomes clearly a matter of restraint of trade.

How would you evaluate the following language?

quote: 4. The Employee hereby acknowledges and agrees that he/she will likely be exposed toa significant amount of confidential information concerning Acme's business methods, operations and customers while employed under this Agreement, that such information might be retained by the Employee in tangible form or simply retained in the Employees memory, and that the protection of Acme's exclusive rights to such confidential information and trade secrets can best be ensured by means of a restriction on the Employee's activities after termination of employment. Therefore, the Employee agrees that for a one-year period following employment termination (whether voluntary or involuntary and with or without cause), he/she will not, directly or indirectly, either for himself/herself, or through any kind of ownership or relationship as a director, agent, employee, or consutant, for any other person, firm, or corporation, act in any manner as such as to take away, or cause the loss of business of Acme.

I italicized the choice bits.

My lawyer laughed when he read this, btw, and then made the comment about making this a 13th amendment case. I really like the phrase "directly or indirectly."

	10-04-2003 04:15									#42
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"Not sure what is meant by "scope", but I would also add that the agreement has to be limited in geography, since most of the boring law crap I have read this afternoon also mention that."

No, as written it is supposedly in effect nationwide.

	10-04-2003 04:22									#43
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By scope, I mean the scope of prohibited / permissible actions.

Let's say for example you work for a pharmaceutical company in a late stage of development of a drug being submitted for FDA approval for some nasty condition, for which there is no currently approved treatment, and for which you have a competitor doing the same thing.

You can't require someone who is NOT working on that development they can't work for that competitor.

You can't issue a blanket prohibition that people working on that project can't work elsewhere in the pharmaceutical field.

You can, as a condition of having access to proprietary data, prohibit someone from working for that competitor on related developments for a limited period of time, say six months, or until you submit your FDA application, whichever comes first.

However, if your ex-employee wants to take a job with that competitor, and they've offered some different position in a different site (say an overseas subsidiary management job), then you have problems with enforcement.

The geographic limitations are two-fold - one is a matter of which law governs the agreement, and the other is whether the nature of the commerce interests and protectable interests of the employer have some geographic scope.

For example, if you run a statewide soft-drink distributorship, there may be an issue with you leaving for your main competitor in the same state, but there's clearly none with taking a job where you head up your competitors distribution in another state, or where you move up and manage an overall regional distribution that includes several other states besides the one you're in.

	10-04-2003 04:35									#44
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quote: Originally posted by JohnT quote: 4. The Employee hereby acknowledges and agrees that he/she will likely be exposed toa significant amount of confidential information concerning Acme's business methods, operations and customers while employed under this Agreement, that such information might be retained by the Employee in tangible form or simply retained in the Employees memory, and that the protection of Acme's exclusive rights to such confidential information and trade secrets can best be ensured by means of a restriction on the Employee's activities after termination of employment. Therefore, the Employee agrees that for a one-year period following employment termination (whether voluntary or involuntary and with or without cause), he/she will not, directly or indirectly, either for himself/herself, or through any kind of ownership or relationship as a director, agent, employee, or consutant, for any other person, firm, or corporation, act in any manner as such as to take away, or cause the loss of business of Acme. I italicized the choice bits. My lawyer laughed when he read this, btw, and then made the comment about making this a 13th amendment case. I really like the phrase "directly or indirectly."

If they had a supposed lawyer write that ****, they should get their money back.

The "retained in memory" bit is laughable, but only because it's redundant and poor legal drafting. If you actually steal some protected rights or property, it doesn't matter how you got it or how you stole it.

The two big problems are the termination bit - employment is at will, so an agreement that prohibits you from seeking other employment even if you are terminated by the employer is really problematic. I don't recall off the top of my head if you told them to shove it and quit, or if they canned you, but if they were the acting party, even an otherwise enforceable agreement becomes extremely problematic.

The second problem is the complete vagueness of the last paragraph. Agreeing that you won't use confidential data and that you can be sued and enjoined for misuse of it is perfectly legal. Here, in theory, if you took a job as a delivery driver for FedEx, and you delivered a package to a supplier of a competitor, you could be claimed to be in violation of this "agreement."

That in itself is a fatal flaw, since there has to be enough specificity in an agreement for a reasonable party to know what his or her rights and obligations are under the agreement.

The appropriate remedy for the misuse of trade secrets, confidential data, etc., is injunction of the behavior going forward, and money damages for breaches that have already occured.

Have they spelled out any purported remedies if you "violate" this nonsense?

	10-04-2003 05:50									#45
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"I don't recall off the top of my head if you told them to shove it and quit, or if they canned you, but if they were the acting party, even an otherwise enforceable agreement becomes extremely problematic."

The details of my leaving was in one of those long posts on the first page. I resigned. My father then made the agreement for me to stay an extra month to train my replacement, I agreed and worked that extra month in accordance with our agreement, which they then declared null on my last day of employment.

The non-compete spells out that injunctive relief is the remedy that will be applied by Acme if I act against the non-compete. Nothing more specified than that.

	10-04-2003 05:54									#46
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I thought you might like this too

House Bill 890, amendment to Title 47, Chapter 25

	10-04-2003 05:56									#47
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"If they had a supposed lawyer write that ****, they should get their money back."

What I think happened was this: my stepmother got some legal software package that had this agreement in it. Deciding that the one in the package was "a good start", she (who literally thinks she knows everything*) added words and phrases to "strengthen" the agreement. I am pretty sure of this because certain sections sound just like her, even down to using favorite words and phrases.

*Especially when it comes to law. Her experience? She was a clerk one summer in a courthouse in Rhea County, TN when she was a teenager.

	10-04-2003 06:04									#48
	Inflate your Upload Space

Interesting Japher, but unfortunately I'm not a licensed or certified professional.

	10-04-2003 06:10									#49
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quote: Originally posted by JohnT The non-compete spells out that injunctive relief is the remedy that will be applied by Acme if I act against the non-compete. Nothing more specified than that.

California at least, and I think this is standard, has a very high bar on injunctive relief. You have to prove "irreparable harm" would occur if the injunction wasn't granted - in other words, something so grave or so unique that money damages wouldn't be enough, or the value of money damages couldn't be reasonably proved.

Generally, things like transfer of a unique asset to a third party, or some destruction of an intangible right or interest, for example, by failing to secure a copyright or other legal claim.

The onus is on them to enforce the "agreement." They can't sue someone else for employing you, because they have neither a contract relationship with the other party, nor is there an action or inaction by the other party against them that creates a tort. I mean, they "can" sue, but not unless they want to commit legal suicide - dismissal of their complaint, sanctions from the court, suit from the party they sued for malicious prosecution, and you have a tort claim against them for contract interference and interference with a prospective economic advantage.

The only thing they can do in the legal system is attempt to enjoin you from accepting or remaining in employment, and then they have to prove to a judge they have a valid agreement, and a legal basis for preventing you from remaining employed.

Now practically speaking, they may do **** like say they have a non-compete agreement, or otherwise slander you if a prospective employer happens to call to verify references. That's hard to prove if folks are not inclined to testify, but that's something that can always be gotten around - at least with a little help you can do some fishing and see what they try to pull along those lines.

	10-04-2003 17:57									#50
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Isnt the crux of the matter whether you do indeed have information from working at 'Acme' that is confidential and would unfairly hurt their business if you competed with them?

If you swept the floors at Acme but are starting a software company that will produce similar products then the answer is no. If you produced software for Acme and/or had relationships with Acme clients then the answer may be yes. It looks to me from the link (that Japher provided) that the law in the Alabama-Tenn is inclined against non-compete agreements but that they do enforce them with the right conditions. Do you think that you had access to information/customers/secrets that would in fact allow you to unfairly compete with Acme? Given that you are the son of the company President and had a position of some responsibility, I think you may have at least a strike against you.

	10-04-2003 20:48									#51
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Give 'em hell, John!

	10-04-2003 20:59									#52
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SpencerH: That's assuming that he did sign the agreement, which JohnT says he didn't. Even so, he should address it first as he did not, but be prepared to argue the legalities of the contract.

Personally, I think the conflict of interest runs pretty deep, in that the president was his father. Thus, JohnT was probably learning from a pretty young age all things to become a successful buisness man, and not just once he was highered. These matter would get tough to distinguish and would not hold up in a court of law (advantage John). John does have an understanding of the inner workings of the company (advantage Acme). He could of learned these things from his dad, even without being an employee (advantage John). Still, Acme is hindering his right to earn a living (fraudulently or not), and is thus violating free trade (advantage John). Acme has a supposed non-compete contract (advantage Acme). That contract is a bunch of crap, and is written (as MtG has pointed out) by someone with no more knowledge of the law than I do (advantage John). The contract is cosigned by his father, who apparently has no right to enter contracts with employees without his wicked step-mothers approval (advantage John). How she approves of such contract is unknown to anyone, so it could be assumed that if she does not sign the contracts herself that the contract is void (advantage John). It is dangerous to assume...

At least it will be all over in Aug. either way, but it is more the mean time that is a concern. This whole mess has saddened me, and makes me wonder what things I have signed in the past for my company.

	10-04-2003 21:09									#53
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Pretty busy right now so I'll talk more later, but I did want to address this:

"Thus, JohnT was probably learning from a pretty young age all things to become a successful buisness man, and not just once he was highered. "

My father got into this industry when I was (checks calendar) 14 years old, and didn't start his own company into this industry until I was 17 (barriers of entry are pretty low).

Being a typical teenager, I had no concern about what Dad did, thinking it "boring and stupid." I did occassional work for them, but at the most basic of levels. It wasn't until I was out of college for a few years that I was approached by my father to take a position in the company (I was 24).

My parents had a combined 5 years experience in this industry before they started Acme. I currently have 13.

	10-04-2003 21:14									#54
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I do not remember signing the document, though the thing did not look entirely unfamiliar when I received a copy from Controller #18. This is why I am not, currently, arguing that it is a forgery rather arguing it based upon its merits. But when/if this goes to court, we will demand the original and if they can't produce one, well then forgery it will be.

As mentioned by others in this thread and by my lawyer, the thing is pretty laughable in and of itself and no court will uphold the language contained within.

	11-04-2003 07:27									#55
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Go JohnT Teach them a lesson !
You can't let these *******s get away with it.

	11-04-2003 07:34									#56
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Good luck John

	18-04-2003 09:09									#57
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The 15 days have passed with no reply to the above letter from my lawyer, meaning... what, exactly?

Well, the ball is in my court. They didn't send a reply, so now, for the first time since this all started, I have nothing new to react to.

I accused them of defrauding me, and they let it go with no denial. I demand my money, and they, again, refused to give it to me. I rebut their accusal of being a thief, and throw it back at them.

Over the past few days I have recieved commitments of... witnesses, testimony, incriminating paperwork and the like (including the most obvious, my wife ). There are a fair number of people who, prior to I, feel as if they've got shafted by my parents and they are rooting for me to sue... as are a number of you.

Thing is, any lawsuit I would hurl against them would be... well, worth my while. I wouldn't, couldn't sue them for a mere $75k - they'd probably fight it leaving me with nothing at best. I'd have to hit with a figure that will make them say "WTF?!" There has been a lot of pain here, and that will have to be accounted for as well.

Shiite. Am I just talking myself into a lawsuit? Or is this the rational, next step in defending my professional reputation and future livelihood?

Advice would be welcome. Danke.

Btw, before you say it, I am not talking to my stepmother until all this is resolved - I am not resolving it through her.

	18-04-2003 11:47									#58
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Well if I were in your shoes I'd probably just want to clean my hands of the matter and never deal with them again. If you can avoid the issue going to court, that may be best since you never know what may happen there; you could have an "old fashioned" jury that may just see this as a son being disrespectful. Of course that would be stupid of them, but there is no guarantee that a jury wouldn't be dumb.

	18-04-2003 12:22									#59
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wow! this all sounds incredibly unpleasent. You have my prayers John. The one good thing about coming from the proletarion is that you don't have to worry about your parents sueing you.

I wish you the best, whatever course of action you take!

	18-04-2003 17:26									#60
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"The one good thing about coming from the proletarion is that you don't have to worry about your parents sueing you."

Actually, they could. Wouldn't matter if they had standing (let the judge figure that one out), they could do it just to waste my time and resources.