Smooth Transitions : Rob Radcliff : Texas Non-Compete Lawyer & Attorney : Langley Weinstein LLP Law Firm : Dallas Employment & Employee Departures : Smooth Transitions Law Blog

Despite indications that it would join The Broker Protocol last year when it acquired Merrill Lynch, BofA has yet do so. The Protocol, which has been frequently discussed in this blog, allows departing brokers/advisors leaving a firm to avoid claims for breach of non-compete or non-solicit agreements.

A Merrill Lynch spokesman has indicated that Merrill is a member of the Protocol and anticipates Bank of America Investment Services will join the Protocol in the future, but there is no date that is certain.

There are approximately 300 members of the Protocol.  As long as Bank of America does not participate it retains the right to sue departing brokers or financial advisors for violation of non-compete or non-solicitation agreements.

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It’s amazing what people will put in their emails, even after they have been warned by their lawyers.  There have been a number of cases I have been involved in where an employer has been able to access emails from an employee's web-based hotmail account that show he or she is actively violating a non-compete or even sending work to a competitor.  The question is, can an employer access an employee's web-based email?

A recent law.com article investigated a number of decisions arising from use of the Stored Communications Act. The SCA creates a criminal offense and civil liability for whomever “intentionally accesses without authorization a facility through which an electronic communication service is provided” or “intentionally exceeds an authorization to access that facility” and by doing so, “obtains, alters, or prevents authorized access to a wire or an electronic communication while it is in electronic storage in such system.” 18 U.S.C. § 27.01.  The decisions vary.

The article suggests a robust electronic communications policy  will go a long way to protect the employer, but it is unlikely that any employer has a policy that would allow them to obtain and use an employee’s password in order to access their web-based accounts. Obviously, once the employer uses the emails in the litigation, it will become obvious that they have utilized the password to obtain that information.  The employer could consider simply requesting the communications through normal avenues of discovery.  If you are going to use such evidence be prepared for the ramifications.

(H/T to Jon Hyman of the Ohio Employer's Law Blog)

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In a recent non-compete decision, Federal District Court Judge Steven Robinson denied an injunction sought by IBM to keep a former vice-president, Steven Johnson, from going to work for Dell.  The court rejected IBM’s contention, that Johnson had access to trade secrets:

The court believes . . . that IBM has overstated its case.  Mr. Johnson does not have the sort of information that is considered quintessential trade secret information ‑‑ detailed technical know-how, formulae, designs, or procedures.

Employers attempting to enforce non-competes in Texas have to ensure that what they are claiming as trade secrets are trade secrets.  With recent Texas Supreme Court opinions in favor of the employer, an employees' chief defense to non-compete enforcement will be to attack whether there is actually a trade secret that gives rise to a non-compete.

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