Discussion taking place TODAY, Tuesday, June 10 on the MagicMethod network
at noon, EST. This class chat will be on the thorny issue of what to do when you're told to STOP calling into a particular target. If anyone would like to lead this discussion let me know!
I have worked mostly for CRO's (Contract Research Organizations) while hiring Clinical Research Associates (CRA's). I worked at a major CRO for 3.5 years. I was aware that this CRO would track emails and if any competitor would try to contact their people - they could eventually block that person from being able to email into this CRO. As well ... if we hired too many people away from any one company ... it usually got up to the CEO or President of that company. Their President would usually call our President ... and then eventually ... we might even see some sort of legal document threatening to sue our company - if we kept hiring their people away from them. Because of all this stuff - it is sometimes tough trying to cold call into a competitor to see if any of their people might be interested in talking about the opportunities I am presenting. Does this make sense? ~Fino
I went to Google in preparation for today's MagicMethod classroom chat
expecting to find a lot more on this subject of “cease and desist
” than I found –I thought others would be eager to share their horror stories about receiving scary, off-putting letters
like Fino experienced, some-of-whose arguably real and malicious intent is to squelch competition but alas, there appears to be a dearth of (maybe a reluctance to report?) harassment instances like this online. What I did find was that this issue (cease-and-desist
) was more commonly attached to Non-Compete Agreements, including Non-Solicitation and Confidentiality (A/K/A “restrictive covenants”) with the “letters” being addressed more commonly to the supposed errant employee (with whom a legal relationship exists)in question.
The take-away, for me is that many actions like these border on the ludicrous and some of these events represent near-desperate attempts by companies and/or individuals to disregard the rights of employees under the smoke and mirror guise of unfair competition.
HOWEVER, Fino reported: "...if we hired too many people
away from any one company..." The "too many people" part of his report deserves discussion and hopefully we'll be able to discuss this today in the classroom chat.
The following excerpt is from Module I of the "Magic In the Method
" telephone names sourcing course:
In general, if you’re not acting purposely and maliciously to destroy a competitor, you are free to source into your competitors for good employees. My favor falls on the side of our industry practices in the name of free enterprise. I am well aware that corporate has some grievances that are well-founded and deserve attention. Corporations can be harmed by losing key employees to competitors. Most importantly, they stand to lose trade secrets which strikes at the very heart of their existence, and curiously, in my opinion, at the very heart of free enterprise. At first glance, we’d all like to believe it has nothing to do with us. But does it? It seems to me the issue lies with our intentions. It’s hard to find any guidelines for hiring a competitor’s employees out there. Basically, the following is my brief interpretation of the subject - it just seems like common sense to me. I am not an attorney, nor do I have any aspirations (or hope ever) to be one. It’s an admirable profession, far beyond my capabilities. A very good guiding principle for hiring a competitor’s employees should be:
“Any employee is not entitled to use or disclose the former employer's trade secrets, and the new employer is not entitled to use the employee as a conduit to gain the benefit of the former employer's secrets.”In other words:
DO NOT hire a competitor’s employees if your intention is to put the competitor out of business.
DO hire a competitor’s employees if your intention is to gain good employees.
Be aware of them. Be also aware that they may be fair or unfair. See your state laws for applicability. A little learning on this subject can be dangerous! Trade secrets need to be protected regardless of what law applies.
I did find some interesting reading this morning on the subject and I thought you all might be interested in brushing up on some of it before "class"! Let's not forget all the Yadda Yadda about me NOT being an attorney and the fact that the opinions I present here and in "class" are mine and NOT to be taken/acted upon without the advice of a real-live fire-breathing attorney.
Cease and Desist Letters – How Legal? ERE discussion
What can be protected? Generally speaking only something that can be considered proprietary, a secret, a special application, a unique strategy, a mailing list, not general business practices. Thus for example, without specialized training and a unique application a secretary cannot be restrained from being a secretary in another office by a non-compete clause. However if the secretary handled sensitive information and had unique contact with secret sources, and specialized training it may be possible to restrain the secretary from working in the same industry for a brief time period to prevent damaging disclosure of confidential information.Other additional efforts would have to exist, such as the business exerting efforts to protect this information and thus treating it as confidential, laying the groundwork for such a claim to be made and the non-compete being enforced. Finally the area and time period is narrowly construed with time being two years or less, and distance unless its an industry issue being quite narrow, a few miles, ten at the most.So what’s the point? When narrowly applied to a specific situation for legitimate reasons as intended by the statutes, it provides reasonable protection to the employer who must share his secrets with his employees. When issued merely to restrict competition and remove the opportunity for an employee to gain work elsewhere, it is deemed a restraint of trade and seldom enforced. This argument here
Non-Compete Agreements, including Non-Solicitation and Confidentiality (A/K/A “restrictive covenants”) here
Enforcing Noncompetition Agreements here
Guide to assessing & responding to cease and desist letters here
want your (Internet) “Cease and Desist” letters!
Do you know your online rights? Have you received a letter asking you to remove information from a Web site or to stop engaging in an activity? Are you concerned about liability for information that someone else posted to your online forum? If so, this site is for you.
Chilling Effects is a joint project of the Electronic Frontier Foundation (EFF) and clinics at Harvard Law School's Berkman Center, Stanford Law School's Center for Internet & Society, Boalt Hall's Samuelson Law, Technology and Public Policy Clinic, and other law schools across the country.
Cease and Desist Letter
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