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One More Time: Leave the Documents Behind

A recent case out of Connecticut reaffirms one of the most basic tenants of defending non-compete cases: Leave it behind.  Documents, customer lists, confidential files.  Leave all of it behind.  Do not attempt to take it with you for use at your new employer.

A radio sales executive, Kristin Okesson, quit her job at a company called Cumulus and went to work for a competitor, Cox.  Cumulus sued.  Once again, this is an example of non-compete agreements being used in industries where they should be absolutely unenforceable.  If somebody is in advertising sales, there are clearly no trade secrets.  There is no specialized or extraordinary training.  And I highly doubt there is anything that is truly confidential or proprietary.   The only legitimate business interest here is really customer relationships.

On the merits, Cumulus basically lost the case.  Okesson was not ordered to stay away from Cumulus customers.  But there was a small wrinkle:  Cumulus did succeed in getting an injunction ordering the defendant to return certain allegedly confidential materials and barring the defendant from soliciting other Cumulus employees to jump ship.  Because Cumulus prevailed in obtaining a preliminary injunction, Okesson was ordered to pay some $80,000 in attorneys fees.

The takeaway here is twofold:  First (and most significantly), leave everything behind.  Even if you do not think the files or materials are confidential, taking them with you is simply not worth the risk.  If the information truly is not confidential or proprietary, then you can re-create it or somehow obtain it again once you are at your new company.  Second, agreements not to solicit other company employees are generally subject to much less rigorous scrutiny than non-compete agreements proper.  Non-solicitation agreements technically are not a restraint of trade, they are not limited by any legitimate business interest test and they are much tougher to attack.

The case is styled as Cumulus Broadcasting LLC vOkesson, Case No. 3:10-cv-00315 (D. Conn.).

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Jonathan Pollard is a trial lawyer and litigator based in Fort Lauderdale, Florida.  He focuses his practice on employment disputes, business torts and antitrust cases.  For more information, visit www.pollardllc.com.

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