Wednesday, December 31, 2008

The Employee Wins: California Supreme Court Non-Compete Opinion

California lawyer Scott Pearce provides an analysis of Edwards v. Arthur Anderson, a 2008 California Supreme Court Case addressing non-compete agreements.


Monday, December 29, 2008

A doctor's departure.

The departure of a doctor from a medical practice group is not always amicable. In some situations, the medical records of a departing doctor's patients may be held hostage. The Texas Occupations Code and Texas Medical Board Rules (located in the Texas Administrative Code) both contain provisions addressing medical records.

Chapter 159 of the Occupations Code addresses the confidentiality and release of patient records. (159.002(2) & 159.005)

Texas Medical Board Rules Section 165.5 requires that the departing physician post a sign in her office informing the patients of the departure, publish notice in the newspaper, and send letters to all patients. Section 165.5(c) prevents other physicians from preventing the departing doctor from posting a sign or withholding contact information for patients.

A departing doctor should instruct her patients to fill out appropriate releases so the patients' records are transferred to the doctor's new office. The departing doctor should also follow all departure requirements contained in the Texas Medical Board Rules.


Monday, December 22, 2008

Nebraska Non-Solicitation Case

Happy holidays to you and your family.

Below is a link to an article written by Seattle attorney Jill Pugh regarding a Nebraska Court of Appeals opinion affirming the enforceability of a non-solicitation agreement. Aon Consulting, Inc. sued to enforce the agreement against a former employee. The agreement was actually signed by the employee with a predecessor company that was acquired by Aon.

Here is a link to the opinion.

Here is a link to the blog.


Monday, December 15, 2008

The Non-Compete Playbook: The Injunction Hearing

An injunction hearing in Texas state court is similar to a bench trial. Depending on the Court's preferences, both parties may offer opening and closing remarks. The party with the burden of proof on the injunction, in this case Company A, will offer its evidence and then Jordan James has the opportunity to offer any evidence she would like the court to consider. This may consist of deposition testimony, live testimony in the courtroom, and the offering of documents into evidence.

After presentation of the evidence, the Judge determines whether Company A is entitled to a temporary injunction. In the Company A/Jordan James dispute three individuals testified: James, her supervisor at Company A, and a law firm client of Company A's. The Court after considering the evidence, denied the injunction.

Monday, December 8, 2008

Injunctions and the NFL

The use of injunctive relief has been discussed at length in this blog. Last week a federal judge in Minnesota issued an injunction preventing the National Football League from suspending several players for violation of its anti-doping policy including New Orleans Saint Deuce McAllister (pictured right). Until further ruling from the Court, McAllister and the other players may continue to play on Sunday. McAllister carried the ball one time yesterday in the Saints' victory over the Atlanta Falcons.


Monday, December 1, 2008

The Non-Compete Playbook: Discovery

Picking up on the Company A/Jordan James dispute, Company A successfully obtained a temporary restraining order against James. The Court ordered James not to engage in any placement work and return all Company A documents in her possession. Furthermore, the Court ordered Company A to post a $5000 bond and set the preliminary injunction for hearing in ten days. Company A requested that the Court allow for limited discovery before the injunction hearing. The Court will allow Company A to take 1 deposition and permit the service of 10 requests for production. James is also permitted the same. So what are these type of discovery devices?

(1) The Deposition: Permits a party to ask an individual questions under oath. In cases where a party is a company, the opposing party can ask the company to designate a representative or representatives to testify on certain topics. A Court reporter transcribes the testimony under oath and in some instances, the deposition is videotaped. In Texas, a party is generally limited to 6 hours of deposition time for each deponent.

(2) Request for Production: Permits a party to request production of categories of documents. This also includes electronic discovery and could include the inspection of hard drives and other sources where electronic data may be maintained.

(3) Interrogatories: A party can force the other side to answer written questions under oath.

Parties may also conduct discovery on non-party witnesses. This may take the form of a deposition, document requests, and depositions on written questions.