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 v. Okesson, 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.
the non-compete blog 
Jonathan
I thought your reading of the case was quite perceptive and your advice very sound. I was the attorney for Kristin Okesson. As you aptly noted, Cumulus really intended this to be a non-compete case, but when they struck out on that Cumulus ran with whatever it could get mileage out of. They fired Kristin after she complained to the company counsel about breaches of her employment agreement and she was given the draconian half-hour to clear out of her office. They even took the keys away for her leased car so that she had to call a friend to come and pick her up. Under the pressure of being forced literally out the door, Kristin scooped up what she thought were some fairly innocuous brochures that she had worked on and had some sentimental attachment to. She did not realize until some time later that tucked in the back of some of the brochures were some reports that Cumulus claimed were confidential (They in fact were not–but that is for another day). These kinds of situations where the terminated employee is practically escorted from the building as now seems so often to be the habit of employers creates time pressures where distinguishing what is your property from what is your employer’s may lead to disputes later on.
Oddly enough Cumulus had its highest ranking employee on site watching Kristin put things in the box and you would think that this would offer some assurance that the things she was putting in the box were not a concern to the company. Why else would that person be there if not to assure that nothing that is company property gets put in the box? What this does not account for is employee cowardice. The manager who watched Kristin as she put things in boxes later pretended that he did not know why he was asked by upper management to be present while she packed up. He evidently did not want to be fired for fialing to interdict materials that the company later claimed were company property. So don’t count on that company witness who is present to be honest later on.
The simple precept of “leave it behind” is probably good advice to all employees since it avoids a host of judgment calls tha may need to be made under time and other pressure. With employers who will later try to twist the meaning of certain documents, its is far safer to leave things behind, even if you in good faith think it is more personal to you than company property. Unless it is a photo or an award or some other treasured memorabilia that you can be sure is yours, you may be giving a vengeful employer an excuse to make you miserable after you have left.
Posted by Christopher Rooney | November 8, 2012, 3:43 pm