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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.

Monday, May 14, 2012

Mr. Dick sticking it to Trying to make a living Day 245

The courts in the State that Mr. Dick has his business have consistently ruled that competition is not a protectable business interest even if said competition is intentional. The law of the particular State rules that for a non-compete agreement to be enforceable there must be a "legitimate business interest" to protect. Trade secrets, intellectual property, client lists can form a legitimate business interest.

The amazing thing about Mr. Dick's contention is he has publicly said himself that the industry he is in has such a "low barrier to entry" that he needs a non-compete agreement to protect his business. Seems that a low barrier to entry would suggest there is very little legitimate business interest to protect. But wait here is the best part if you go to Mr. Dick's website you will find his client list, he actually uses his client list in his business and therefore the client list is public information as Mr. Dick has made it PUBLIC INFORMATION. Now let's make it clear that Trying to make a living has no interest in any of Mr. Dick's clients, nor has Trying to make a living done any comptetitive business with Mr. Dick's clients. The fact that Mr. Dick's client list is public information means that it is not TRADE SECRETS or even protected information as Mr. Dick is more than willing to tell the world who his clients are. Lets now look at the restrictive covenant once again:

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.

No former employees (and there are many former employees, does that surprise you?) of Mr. Dick are interested in soliciting or doing business with Mr. Dick's existing clients (more on this in the days ahead). Trying to make a living is simply trying to make a living. Mr. Dick seems intent on the personal destruction of Trying to make a living and no other purpose as Mr. Dick has no legitimate business interest to protect with the restrictive covenant above.

Wednesday, May 9, 2012

On going Saga of Mr. Dick sticking it to Trying to make a living DAY 240

Recently Trying to make a living had to go to court for hearing on Mr. Dick's motion to compel discovery. Of course Mr. Dick has no evidence to back up his frivilous suit so the fishing escapade has to go on. During this hearing Mr. Dick's $400 an hr attorney actually moaned to the Judge that Trying to make a living acting Pro-Se was filing too many motions and it was creating an undue workload for the $400 an hr firm. Of course Trying to make a living found this rather disingenious at best, but the fact is that Trying to make a living had filed a motion for Summary Judgement based upon the simple question of whether this non-compete contract is enforceable to begin with. Remember here is the language in the non-compete:
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.

Of course this language basically makes any work Trying to make a living does in direct violation of this paragragh. The State in which this legal action is taking place has consistently ruled that competition alone even when competition is intentional does not create a business interest. In other words competition alone is not a protected business interest, there must be some other legitimate business interest being protected. Mr. Dick's business is simply a sales and marketing organization with no proprietary intellectual property. In fact it can be easily argued that Mr. Dick's business requires zero intellectual capacity to begin with. This can be seen by the fact that Mr. Dick is the fearless leader of his own small firm in this vast industry. Remember Mr. Dicks industry would cover all the following industries combined Sales, Marketing, Advertising, Communications, Public Relations, Copy writing, Financial Services, Brokerages, Insurance sales, etc... Mr. Dick believes that all these industries are off limits to Trying to make a living because he and his $400 an hr attorneys say so. For all those following please read the restrictive covenant paragraph numerous times to get a clear picture of what it is attempting to stop. As we go along the business that Mr. Dick is in will be revealed but for now understand if you googled the term for his business firms in everyone of the above industries would show up.

If the courts will not intervene on people like Mr. Dick who has a warped sense of competition then who will. Mr. Dick deserves to never have another employee. He has now filed this same action against 3 former employees all of whom were simply telephone marketing specialists. None of these former employees have sought to compete with Mr. Dick or have inflicted any damages to Mr. Dick's business. He seeks to gain default judgments and pocket legal fees (so in essence he has ZERO costs in these frivilous actions)  and the gloat over his victories. Mr. Dick is a scarcity driven human being who believes that everything in life is zero sum game, quite simply I win you lose, so sums up Mr. Dick. (for all who may want to keep score this action began in Sept 2011, over 15 months after Trying to make a living left Mr. Dick's firm so we are now in day 240 and Trying to make a living has had to put over 500 hrs of man time, anger and stess into this silliness).

Monday, May 7, 2012

The Anti Compettition Story

Over the coming days and surely into months I will continue to update the story of the "little company that couldn't." This small firm who believes they actually own the rights to an entire industry has damaged many lives. The CEO of this firm actually takes time everyday to follow up on this former employee and then make calls to anyone he thinks the employee is doing business with. At that point he harrasses and aggravates the contact with disparaging remarks about the former employee.

To gain some perspective the former employee was a telephone solicitor. A marketing position, pure and simple, now once again here is the restrictive covenant that the small firm is attempting to hammer the former employee with in the courts:

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.

For future reference lets refer to the small firm CEO as "Mr. Dick" and the former employee as "trying to make a living" of course we are protecting the identities as not to have Mr. Dick continue filing more trivial lawsuits. You see Mr. Dick keeps a $400 hr law firm on retainer and he lives in the courts as he loves to antagonize and harrass. The $400 law firm wrote the contract for Mr. Dick and they seem to believe that Mr.Dick has some form of legitmate business interest to protect. To give one an idea of what Mr. Dick considers to be trade secrets: public lists of licensed financial reps for cold calling are trade secrets for Mr. Dick. He contends that any former employee who makes any marketing calls for any purposes in any industry to these publicly available prospects is in breach of contract. So far the courts have ignored this simple concept. But one needs to understand that "trying to make a living" cannot afford any attorney and is therefore forced to represent self. The courts don't like this as the fraternal order of attorneys is slighted if an individual could actually defend themselves successfully, it sets a bad precedent. Not trying to make a living is all for having an attorney, but trying to make a living can't make a living because Mr. Dick seems to think that anything trying to make a living does is in breach of Mr. Dick's contract. See the conundrum here.

Mr Dick wins all these suits because former employees like trying to make a living are not earning enough to afford a proper defense and they ultimately end up in default so Mr. Dick wins the case by forfeit. PS. Mr Dick files a lawsuit that asks for no damages, so trying to make a living has to defend a case that is seeking zero damages, but if trying to make a living loses case he is liable for Mr. Dick's legal fees. So when the default judgment comes down the defendnat who did nothing wrong ends up paying zero in damages and has to pay $100's of thousands in Mr. Dick's legal fees.

Mr Dick enjoys this game and wouldn't want anyone to know who he is. If his clients knew that Mr' Dick was lawsuit happy, many would think twice before signing any contract with him. But the reality is Mr. Dick never holds clients to contractual agreements even when clients don't honor Mr. Dick's contract. This is because Mr. Dick's clients could actually afford attorneys and they could drag Mr. Dick through the courts for a long period of time.  No, Mr. Dick only goes after former employees who basically are marketing telephone solicitors who can't possibly afford to defend themselves against Mr. Dick.

Stay with us for the continuing saga of Mr. Dick sticking it to trying to make a living!

What are your thoughts about an employer attempting to enforce this type of contract in today's economic scenario?

Friday, May 4, 2012

When is competition not allowed?

In the US an amazing part of the open market and entreprenurial growth has been the concept of open competition. Business is not a zero sum game. The I win you lose mentality in business has been outdated since the late 60's. Imagine having a former employer use the following non-compete to stop any an all efforts an individual might have to earn a reasonable living:


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.
Look closely at this paragraph and realize that it is not from a Company which is in a specialized field nor a company that has any proprietary intellectual property to protect. This company is a services related small business who basically markets into a cold call market place with over 10,000 potential clients and 750,000 contacts who are publicly available at any time to anyone's finger tips.
So, if an individual invested in a company that provided similar services (there are literally thousands of companies that provide these identical services) that individual would be in breach of this contract. Notice the "participate in ownership" wording. If the individual did any work as an independent contractor he/she is liable for breach of contract.
The best part of this wording is the "that is engaged in business directly or indirectly competitive to the then existing or CONTEMPLATED business of the company within the United States. Contemplated covers a wide arena of possibilities which can be defined as anything the individual might do is a breach of this contract. If this company decided to get into the meat business then the former employee would be in breach of contract by working at McDonalds.
Lastly the most intriguing part is that this "business" if googled would cover every one of the following industries: Financial Services, Insurance, Investments, Advertising, Public Relations, Research, Consulting, Marketing and Sales. All these industries are out of bounds to the former employee as they are competitive to the employer according to this restrictive covenant of the contract.
Here we are in an economy that is falling apart and people are begging for jobs and yet there are small business owners out there so fearful of competition that they would deny former employees the right for almost any gainful employment. Proprietary intellectual property is one thing, basic sales and marketing is truly non protectable. Certainly existing customers should be protected and no one should be able to poach on existing customers. Yet even retail wirehouses and Insurance companies are not so limited with their versions of non-competes. One should notice that this language includes solicitation of the companies PROSPECTIVE customers. Therefore any prospect in this arena is off limits. Not to mention that this business couldn't possibly even handle 1% of the overall marketplace it is involved in it wants to protect 100% of the marketplace.

What are your thoughts about an employer attempting to enforce this type of contract in today's economic scenario?