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Wednesday, May 23, 2012

Mr. Dick sticking to Trying to make a living Day 253

Other then the usual aggravation the Mr. Dick saga moves on slowly. Some more notes for those who are following, Mr. Dick has several points of incredulity with his universal non-compete built to ensure that no one including extra-terrestorials ever, ever compete with him. Firstly this non-compete is seeking an injunction against a non-executive, non management and non sales person. The former employee was a telephone solicitor. This is comparable to the owner of an insurance agency seeking to get an injunction against a former appointment setter.

Once again we will remind you of the language in the non-compete or restrictive covernant clause:
Employee agrees that during the term of this agreement and for a period of 24 months from and after the date of termination for any reason of this agreement (the restriction period), he will not directly or indirectly, own, manage, operate, join, control, be employed by, be engaged on an independent contractor basis, or participate in the ownership, management operation, or control of, or be connected or affiliated in any manner with any individual, corporation, partnership, or any other entity, that is engaged in business directly or indirectly competitive to the then existing or COMTEMPLATED business of the company within the United States (which shall be the restricted area) Employee further agrees he shall not in any fashion, form or manner; either directly or indirectly, solicits the customer’s or PROSPECTIVE customers for employee’s own account or on the behalf of any individual or entity during the restricted period.

Talk about the old swatting a fly with a bazooka. More interesting points are that Mr. Dick doesn't even have a business interest to protect. Trade secrets as he likes to refer to would include his client list and data base of cold call contacts. Lets look closer at this, for a client list to be considered a trade secret a firm is required to take some precaution to protect its trade secrets. Mr. Dick actually publishes his client list on his web site for anyone to see, this includes any professionals in the same industry, so in truth Mr. Dick has made his client list "public information" not exactly a trade secret now is it. Mr. Dick also has the protection of legally binding contracts between his firm and their clients. This contract obviously protects Mr. Dick from unfair competition as his client is contractually obligated to stay with Mr. Dick's services for a the length of the contract. Therefore it is fairly obvious that there are no predators in the former of former employees (especially telephone solicitors) stealing his clients. In fact Mr. Dick has consistently allowed clients to breach his contracts with no impunity, he only goes after menial former employees who cannot afford to fight frivilous lawsuits.

The last part of Mr. Dick's contention is that his data base of publicly available data to financial professionals is also a trade secret or in his mind a protected business interest. The interesting fact here is that Mr. Dick compiled this data base by taking it from a former employer of his prior to starting his firm. Of course that former employer didn't care as the data is easily obtained in some cases for ZERO cost. Trying to Make a Living can produce any named financial professional Mr. Dick mentions via public records. How exactly is this a protected business interest if it is available once again to anyone in the public forum? So, read Mr. Dick's restrictive covernant closely and then realize that he is trying to use it to protect publicly available information and contacts and then kindly comment on how this is a protected business interest.