Do you remember all the great light bulb jokes of the late 1990′s? You could directly insult any kind of person in just a few sentences – blondes, engineers, lawyers, doctors, etc.

The beauty of these terrible jokes was that the hyperbole was often based on some element of truth (** BUT FOR BLOND JOKES which are always baseless).*

So please, read the next few paragraphs with similar caution. I am exaggerating.

When a non-compete says Employee Fred must not:

(a) induce any current customer to end their business with company Virginia xyz for 1 year after Employee leaves the company,

  • The Engineer reads the sentence to mean: He can speak to customers, sell them competing product, so long as he doesn’t overtly induce or tell them to stop doing business with his old company;. He can tell the customer to call him and wait for the customer to ask for the product. It’s just a technicality.
  • The computer programmer reads the sentence to mean: I’m the man, and I won’t need to induce the customers because they will follow me anywhere.
  • The doctor reads the sentence to mean: Not a problem, I won’t induce anyone because I don’t care if patients follow. I will get new patients. So it doesn’t apply to me.
  • The salesman reads the sentence to mean: I can still sell the product, I just can’t tell them to stop buying from my old company. And I should go ahead and tell the client now I am leaving and plan to sell a different product in a few weeks.
  • The government contractor reads the sentence to mean: Everyone knows these clauses are unenforceable, right?
  • The accountant reads the sentence to mean: I can never open my own firm because I cannot provide services to someone without inducing that person to end business with my old firm. I am therefore an indentured servant.
  • The car guy reads that sentence to mean: So I just give the customer my cell phone number instead, and no one knows right?

Yes, I am exaggerating.

Yes, I am being overly harsh. Yes, the above list is fictional and not based on actual clients. Just stereotypes.

But I am also speaking from experience that different types of people, read contractual obligations to mean different things. My job is to make it as clear as possible, what the actual prohibition is, provide advice on how to NOT break your contract (which is not the same as how to break your contract but cover it up) and how to feed your family without inviting a lawsuit.

The good news is, I can usually tell where my client is coming from – help translate the agreement, and create a path where actions do not invite litigation. That’s my job.

So, if you are not sure what the word “induce” actually means, I am happy to help.

I am also happy to share my favorite light blub jokes.

How many William and Mary students does it take to screw in a lightbulb? What? Light bulbs? This is Colonial Williamsburg, do you mean light a candle?

 

 

** Note the author of this blog is blonde and overly sensitive to blonde jokes, thus the disclaimer.

 

This morning my precious child pranced around our kitchen in a tutu, with a fairy wand. She tried to grant our cat Earl three wishes by tapping his head with the wand. I think he wished for her to leave as the plastic star fell upon his head rather aggressively. Sadly, she didn’t quite sense his wishes involved personal space, and kept at it until he ran away.

At one point, she looked at me, twirled and asked “pretty?”

“Oh bug,” I exclaimed. “You are so beautiful inside and out. You are so strong and sweet. I love you sweet girl!” * (Clearly trying my best to get away from focusing on outward beauty but wanting to present the appropriate level of enthusiasm).

It used to be that Virginia judges, when asked to decide whether a restrictive covenant in an employment agreement was binding, reasonable and therefore enforceable, would read the agreement, catch up on Virginia law and decide as a matter of law whether the contract was on its face reasonable.

Now, a shift has occurred where most judges are requiring discovery and evidence between the parties to determine in context of this employee, this industry, this document etc., whether the covenants are reasonable. While I get that context and information is helpful, what it means practically for our clients is that we no longer have access to the courts to determine the validity of a contract without expensive and time consuming evidence gathering. Depositions, written discovery, it all takes time and money.

So what used to be a simple or straight forward process (in theory) is now prolonged, anything but straightforward, and at least 6-9 months in the making.

So how on earth does all this link to my little fairy godmother?

What if, when asked whether my daughter was pretty, I had responded “So sorry bug, I’m not sure yet. I need to examine the tutu fabric, or hold the wand for a few minutes to study its glimmer, then I’ll be able to answer your question.” Don’t you think my need for further information would elicit a tantrum, crying fit or worse, general sadness? I do.

And that response is not dissimilar to what happens when our clients are told, “so sorry, while common sense and Virginia law clearly dictate your contract is overbroad and unreasonable, we have to waste months of time and money on discovery before the judge will determine the contract is overbroad and unreasonable.”

There is very little I can do about this new trend in Virginia courts. I can advise my clients to the reality of their options and complain on my soap box about judicial economy. Very few will listen and even fewer will care.

When asked however by a darling little girl for an observation, or affirmation – I will answer immediately, and with great gusto. I may even waste one of my three wishes tomorrow on this recent legal development. Who knows, maybe it will work. I wish, I wish, I wish!

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Take a moment to access this Bob Dylan Cover of The Times they are a changing.

Press Play.

Now, with that well known folk sound in the background I will make my brief but important point about Virginia Non-Compete law or rather Virginia Business Tort law: The law, it is a changing.  

A few weeks ago I wrote about a federal decision where the Court held one company could be liable for tortious interference of contract when it hired employees they knew had a restrictive covenant. I even went so far to express my disagreement with the Court’s analysis or, more generally, the application of tortious interference to at will employment relationships.

Then, today, as I opened my Virginia Lawyer’s Weekly, I read that 4th Circuit Court of Appeals (the boss court of the federal court earlier referenced) just held in a different case that a Maryland Company could not sue the company that hired its CAO for tortious interference with contract.

Why not? Because the timeline of events and evidence showed the offer of employment was made before the employee notified the new potential company he had a contract. Then, employee quit. Then company #2 hired him and at that moment he was breaching his contract. The interference was not the offer of a job, but the job itself – and that occurred after he resigned.

I know, confusing.

But I think where this court is going makes sense.

Is a job offer (regardless of whether offering company knows potential employee has a non-compete) tortious interference?

Of course not. Its an offer.

Is employment of a person, not knowing they have a non-compete, tortious interference? I have yet to see a Virginia judge say it is, or that the employer had a duty to ask to protect the company from such a claim.

Is employment of a person you know has a non-compete, tortious interference? One federal Court in Virginia says maybe. The 4th Circuit Court of Appeals says probably not.

As the song says – Mothers and Fathers, ”don’t criticize what can’t you can’t understand.”

I won’t criticize. I will simply point out that even business tort law is evolving. Duties of employers and employees is always changing and as Virginia law changes and bends, I will do my best to advise clients how to act and behave in such a way that they can avoid litigation and go about their business.

 

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