American businesses have fought long and hard to preserve employment-at-will as the bedrock of employment law in this country. Employment at will represents the power of either party to end the relationship at any time and for any reason. Theoretically, the power to quit at will should at least preserve some employee bargaining power because an employer knows that if it does not treat employees fairly, honestly, with dignity and respect, they can walk. Imagine how unfair and potentially abusive it would be if an employer has the right to fire an employee at will but the employee did not have the reciprocal right to quit at will. Well, that is the direction in which the common law is evolving. Continue reading
In doing my research on the Pepsico, Inc. v. Redmond case (discussed below) I came across a great blog, Trading Secrets. One entry of particular interest was whether customer pricing is a trade secret. Trading Secrets has a discussion of the case, Southwest Stainless, LP v. Sappington, 582 F.3d 1176 (10th Cir. 2009), which begins:
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 my hard drive means that the employer owns my hard drive. Why not the other way around? And of course, the hard drive in this case is really someone’s brain. The inevitable disclosure meme has not reached pandemic levels just yet but it threatens to take your brain from you. (See previous post for introduction.) However, to understand how the common law has evolved to the point that it is a question as to who owns your brain, it is important to understand the environment in which inevitable disclosure first appeared. The first case to rely on the inevitable disclosure doctrine was PepsiCo, Inc. v. Redmond, 54 F.3d 1262 (7th Cir.1995), which is discussed below. Continue reading
The history of non-competes reveals a long standing hostility to agreements that prohibit competition and freedom, which for hundreds of years resulted in zero-tolerance for non-compete agreements. When the common law finally evolved to permit limited enforcement of restrictive covenants, it is not surprising that a competing freedom, the “freedom of contract,” was the justification. Sometimes coined “liberty of contract”, this principle recognizes the freedom of people to enter into agreements with others and to have those agreements enforced.
That was then…. Continue reading