Tesla Sues Ex-Employee (Whistleblower?) for Theft of Trade Secrets

Tesla has sued a former employee in Nevada federal court alleging theft of trade secrets. That employee - in turn - claims that he's a whistleblower. Let’s take a look. Martin Tripp joined Tesla’s Nevada operation as a process technician in October 2017. And apparently, Tripp was a problem from the jump. He complained that the role wasn’t “sufficiently senior” for his level of experience and expertise. According to his managers, Tripp was disruptive and combative with his colleagues. On approximately May 17th, 2018, as a result of these personality issues, Tesla reassigned Tripp to a different role. But that…

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The $20 Million Asset Purchase Agreement Non-Compete Problem (AKA the Death Star Non-Compete)

Today’s topic: The APA Death Star Non-Compete Agreement. You sell your company to venture capitalists for $20 million. You get some money immediately, some money in deferred compensation and some (restricted) shares in the new company. And you already know what else: You get the most hyper-aggressive, insane, worldwide, 5-year non-compete restriction. In the 5 years post sale, you cannot engage in any business that competes with the Company’s current business, past business or contemplated business. Contemplated business! You know what’s wild? I’ve seen so many of these exact situations that all of this is old news to me. I’ve…

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Carlton Fields Facing $15 Million Malpractice Claim from Procaps Debacle

The long-running Procaps v. Patheon antitrust litigation is once again back in the news. This time, it's Procaps vs. its former lawyers at Carlton Fields. Procaps spent nearly five years litigating an incredibly weak antitrust case and doing a terrible job of it. In fact, both the 11th Circuit and the SDFL observed that the case wasn't even really an antitrust case. It was a breach of contract case that Carlton Fields dressed up as an antitrust case--- to avoid an arbitration provision and gain settlement leverage from the threat of treble damages. But as the litigation demonstrated, the Procaps'…

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Defamation & Employee Termination: A $27 Million Minefield

There's a reason why corporate HR is tight-lipped about former employees. Calling to check a potential new hire's reference? Good luck getting more than dates of employment. The reason: Defamation. There are a growing number of defamation claims tied to employee departures and particularly to employee terminations. And the damages can be huge. Take a recent case from Illinois: Allstate Insurance fired four employees and accused them of violating the Company's conflict of interest policy. Allstate repeated that allegation in a memo the Company sent to more than 350 of their former co-workers and in an SEC filing. The memo contained…

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Fake Online Reviews & False Advertising Law

We are about to witness an explosion of Lanham Act litigation over fake online reviews. Estimates vary, but at least 50% of American consumers consider online reviews before making a purchase. A couple days ago, I had dinner at Boulud Sud in Miami. Before making reservations, I checked out the reviews online. The reviews were great. I was sold. Positive reviews drive new business. Negative reviews can be a disaster. Companies are now acutely aware of their online reputations and how that reputation measures up against the competition. In an effort to improve their competitive positions, many companies turn to the…

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Florida Non-Compete Litigation & the Meaning of Confidential Information

Some background to get oriented: Non-compete agreements are restraints of trade. Non-compete cases fundamentally are not contract cases. Instead, they are restraint of trade cases. There are two lenses: The first lens is the restraint of trade lens. The second lens is the contract lens. They operate in that order. No exceptions. As such, the proper analysis of a non-compete agreement works as follows:  Is the agreement an unreasonable - and therefore illegal - restraint of trade? The answer to that question hinges on the following: Is the restraint necessary to protect a legitimate business interest. Legitimate business interests generally…

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Reminder: Competitors Have Standing Under FDUTPA

Florida's Deceptive and Unfair Trade Practices Act ("FDUTPA") is a powerful weapon against unfair business practices. The statute broadly prohibits any "Unfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce."  Consider that for a moment. Many legal claims and causes of action require the plaintiff to meet a far more specific standard and make a far more particularized showing. But not FDUTPA. If a plaintiff can make a colorable claim that the defendant has engaged in unfair or deceptive conduct, that's generally enough to get past the…

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How to Win at Arbitration: First, Demand Great Arbitrators

I'm a fan of arbitrating complex commercial disputes.  Arbitration beats the risk of state court any day.  And probably federal court, too.  I'm a huge fan of certain federal judges. But even in federal court, the process is just too much nonsense.  Arbitration is better.  It's more efficient.  There's less bullshit.  And you get to pick the judges.  That's what this post is about. Perhaps the standard of practice in Florida is just appallingly low.  Perhaps Florida has too many lawyers and, therefore, way too many bad ones.  But for some reason, I see all of these veteran Florida lawyers…

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Law Firms Are Wasting Your Money on Useless Discovery

Discovery is the most poorly understood, widely abused and terribly governed aspect of commercial litigation.  One could write a treatise on all the problems with the modern day discovery process.   Instead, I'll take it one at a time.  Today's topic:  Lawyers wasting tons of client money on overly-broad, useless discovery.   I already anticipate that some big firm will file this exact blog post as an exhibit to a court filing and complain about how I'm a big meanie to big law firms.   So let the fun begin! Defining the Problem:  World War III Discovery Tactics The problem:…

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Pollard PLLC Essay Contest – $2,500 Cash Prize

This contest is open to all students in grades 9 through 12 anywhere in the country. I originally tried to do this solely for students in Broward County, Florida but the school system would not cooperate with me and help me get a flyer posted in the schools.  True story.  So it's now open to all high school students everywhere in the United States.  And the stakes are higher. The topic: Colin Kaepernick's Protest: Helpful, Hollow or Something in Between. Your assignment: Explain your perspective on the utility or lack thereof of Colin Kaepernick's protests during the National Anthem. This…

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