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

Petsmart recently sued a St. Louis petshop over a former employee's alleged violation of a noncompete.  The agreement prevents Chris Lee, a co-owner of A Walk in the Park, from working at a petshop within a five-mile radius of any Petsmart location in St. Louis.  There are 12 Petsmart locations in St. Louis.  Lee, a dog groomer, claims the noncompete prevents him from working.

A Walk in the Park has tried to foster some grassroots opposition to the lawsuit. The following briefly appeared on the company's website:

WE NEED YOUR HELP!

A Walk in the Park is currently under attack. We hosted our Grand Opening Party on Sunday, November 8th from 2-6pm and posted that information on our website (awalkintheparkgrooming.com). At 2pm on that Sunday, in front of our guests, we were served by Petsmart’s attorneys. Petsmart, Inc. is suing us under a “non-compete” clause and threatens to shut our doors.

The entire posting goes into much greater detail.  We'll continue to monitor the suit.

Happy Thanksgiving to you and your family.

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An update on Larry Johnson:  He's found refuge with the team of last resort, the Cincinnati Bengals. 

A good question was raised in response to the Larry Johnson post last week:

Would incidents like this be reduced if companies had a social media policy in place and provided guidance on acceptable use? It's seems as though having a policy that's made available and signed by employees could make it easier to terminate employees that cause harm via social media.

Most companies have some type of policy that cover internet use which is usually applicable to social media.  They range, as we have discussed, from some that outright prohibit social media use to those that actively encourage social media use.  It depends on the business.  As suggested, having a policy in place that an employer can point to  makes legal scrutiny of a termination much easier to defend. 

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Most people wouldn't mind the life of an NFL running back.  Get paid millions of dollars to play a game.  Larry Johnson was a number 1 draft pick of the Kansas City Chiefs in 2003.  He made the pro bowl and in August 2007 signed a contract that was to pay him $45 million dollars through 2012, the biggest contract in Chiefs' history.

Along the way Larry was arrested a few times, was sued, and even got into social networking.  The latter would be his downfall.  Johnson maintains a website, blog, and has a twitter account.  Twitter has been a big player this year in the life of the professional athlete.  Players have used it to criticize coaches, management, and fans.  Johnson was no exception.

First he took on his Coach Todd Haley.  Then he had a few exchanges with Chiefs' fans:

Along the way Johnson made a slur about gays and seemed to alienate everyone.  He was suspended by the Chiefs and on the day he was to return was waived - purportedly for another tweet.  It also didn't help that 32,000 Chiefs' fans signed a petition demanding his waiver.

Johnson is an extreme example of an employer's reaction to inappropriate social media use.  Employers should not tolerate employees engaging in verbal warfare with customers a.k.a. fans.   Johnson cost himself a few million dollars exercising his free speech.

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Over the last few weeks I've been involved in defending and applying for temporary restraining orders in non-compete/trade secret cases in Houston and Dallas County District Courts.  A few observations on those proceedings:

• It is much easier to get injunctive relief in Texas since after the Texas Supreme Court's rulings in  Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d 644, 651 (Tex. 2006) and Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding.  Courts are well aware that the Texas Supreme Court has eliminated many of the technical arguments that were previously used to defeat non-competes on their face.   That being said, you still have to satisfy the statute.
• Companies have become much smarter about drafting non-competes and non-disclosure agreements.  The majority of agreements I see satisfy Texas law.  They generally have a one year duration, have a reasonable geographic limitation, and in most instances are ancillary to a promise to provide some type of trade secret.
• Courts want  to see "blood".  Not literally, but Courts need to see inequitable conduct from the alleged non-compete violator.  Did they take trade secrets out the door with them? Are they calling on former customers within days of leaving?  Are they trying to take employees with them?  A mere suspicion is not enough to support a temporary injunction and the Texas Supreme Court has not recognized inevitable disclosure. 

Depending upon your perspective, the good news is non-competes are easier to enforce from a legal standpoint.  That notwithstanding, a party seeking a temporary injunction to enforce a non-compete needs to have its facts lined up to justify this type of relief.

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