X and Y Attorneys at Law - Case Study Example

X and Y attorneys at law November 29, 2005 Dear Mr. Anvil, This letter is to advise you regarding the oral agreement between your marketing and sales manager and your brewery. In the matter of your five-year-old oral agreement with Brett, the following applies. In your case, it is important to take the words of Linda Doyle into consideration. Doyle advised, "Linda Doyle was quoted in the November issue of CFO magazine advising CFOs not to treat noncompete agreements lightly because all too often they are not appreciated in terms of enforceability." This brings us to your matter and the question of enforceability of your verbal agreement. Several matters need to be taken into consideration regarding your current situation with filing an injunction against Brett your sales and marketing director. Employment law protects Brett as well as you so I advise you to carefully pursue the issue. Fraser Younson was quoted in the September 2 issue of Lawyers Weekly Magazine in an article about the rise in claims by employees against their firms, a relatively new issue in the British legal profession. Unfair or wrongful dismissal claims occur when firms to do follow the correct procedure made mandatory in legislation on October 1, 2004. "In some firms in particular, partners need to understand that they need to coach employees on an on-going basis, not just mention their shortcomings at appraisals," (Younsun) The major issue you have at hand is a no compete contract where the contract was an oral agreement. An oral agreement is legal and binding as long as consideration was present. In the case of consideration and your verbal agreement with Brett consideration was present but there are other matters at hand that must be taken into consideration. One of them is the time factor. As the agreement between Brett and yourself was never formally written up a date and the time limit on the agreement are difficult to determine at this time. The proof of the time is difficult to prove at this point. McDermott was recommended in Legal 500 European Edition 2005 for the practice area of employment: "McDermott Will & Emery Rechtsanwlte LLP showed commendable expertise in advising a European supplier on the employment aspects of post-merger integration following the acquisitions of two German companies, a varied and challenging mandate which required negotiations with trade unions and group works council on a mass redundancy program, and the establishment of a European works council." (Anthony) Essentially you had a no compete oral contract with Brett. Legal for such a contract should read: (a) Company Information. The Company will make available to the Independent Contractor certain Confidential Information of the Company, previously non-disclosed to him or her, which will enable him or her to optimize the performance of his or her duties to the Company. In exchange, the Independent Contractor agrees to use such Confidential Information solely for the Company's benefit. Notwithstanding the preceding sentence, the Independent Contractor agrees that upon the expiration or termination of the Agreement, the Company shall have no obligation to provide or otherwise make available to the Independent Contractor any of its Confidential Information. "Confidential Information" means any Company proprietary information, technical data, trade secrets or know-how, including, but not limited to, research, product plans, products, services, customer lists and customers (including, but not limited to, customers of the Company on whom the Independent Contractor called or with whom her or she became acquainted during the term of the contract), markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances or other business information disclosed to the Independent Contractor by the Company either directly or indirectly in writing, orally or by drawings or observation of parts or equipment. Confidential Information does not include any of the foregoing items which has become publicly known and made generally available through no wrongful act or omission of the Independent Contractor or of others who were under confidentiality obligations as to the item or items involved or improvements or new versions thereof. (b) Strictest Confidence. The Independent Contractor agrees at all times during the term of engagement pursuant to the Agreement with the Company and thereafter, to hold in strictest confidence, and not to use, except for the exclusive benefit of the Company, or to disclose to any person, firm or corporation without written authorization of the Board of Directors of the Company, any Confidential Information of the Company. 2. Covenant Not to Compete. (a) Limited Time and Duration. The undersigned Independent Contractor hereby agrees that during the course of the Agreement and for a period of __________ months immediately following the expiration or termination of the Agreement for any reason, whether with or without good cause or for any or no cause, at the option either of the Company or the Independent Contractor, with or without notice, the Independent Contractor will not compete with the Company and its successors and assigns, without the prior written consent of the Company. (b) Limited Scope of Prohibited Activities. The term "not compete" as used herein shall mean that the Independent Contractor shall not, without the prior written consent of the Company, (i) serve as a partner, employee, consultant, officer, director, manager, agent, associate, investor, or otherwise for, (ii) directly or indirectly, own, purchase, organize or take preparatory steps for the organization of, or (iii) build, design, finance, acquire, lease, operate, manage, invest in, work or consult for or otherwise affiliate with, any business in competition with or otherwise similar to the Company's business. If you want to file an inujuction all of these stipulations will be taken into serious consideration by the courts. The next part of one of these contracts applied as yoyur business encompassed so many different areas. Limited Geographic Scope. This Addendum shall cover the Independent Contractor's activities in every part of the Territory in which the Independent Contractor may conduct business during the term of the Agreement as set forth above. "Territory" shall mean (i) all counties in the State of __________________________, (ii) all other states of the United States of America and (iii) all other countries of the world; provided that, with respect to clauses (ii) and (iii) in this paragraph, the Company derives at least five percent (5%) of its gross revenues from such geographic area prior to the date of the expiration or termination of the Agreement. (d) Significant Value. The Independent Contractor acknowledges that he or she will derive significant value from the Company's promise in Section 1(a) to provide him or her with that Confidential Information of the Company to enable him or her to optimize the performance of his or her contractual duties to the Company. The Independent Contractor further acknowledges that his or her fulfillment of the obligations contained in this Addendum, including, but not limited to, his or her obligation neither to disclose nor to use the Company's Confidential Information other than for the Company's exclusive benefit and his or her obligation not to compete contained in Section 2(a), (b), and (c), is necessary to protect the Company's Confidential Information and, consequently, to preserve the value and goodwill of the Company. The Independent Contractor further acknowledges the time, geographic, and scope limitations of his or her obligations under Section 2(a), (b), and (c) are reasonable, especially in light of the Company's desire to protect its Confidential Information, and that he or she will not be precluded from gainful employment if he or she is obligated not to compete with the Company during the period and within the Territory as described in Section 2(c). (e) Series of Separate Covenants. The covenants contained in Section 2(a), (b), and (c) shall be construed as a series of separate covenants, one for each city, county and state of any geographic area in the Territory. Except for geographic coverage, each such separate covenant shall be deemed identical in terms to the covenant contained in Section 2(a) and (b). If, in any judicial proceeding, a court refuses to enforce any of such separate covenants (or any part thereof), then such unenforceable covenant (or such part) shall be eliminated from this Addendum to the extent necessary to permit the remaining separate covenants (or portions thereof) to be enforced. In the event the provisions of Section 2 are deemed to exceed the time, geographic, or scope limitations permitted by applicable law, then such provisions shall be reformed to the maximum time, geographic or scope limitations, as the case may be, then permitted by such law. Taking the stipulations of the law into consideration and considering the time lengths involved and the fact your agreement was verbal, I would suggest you not go forth with an injunction. References Anthony, Gordon. UK Public law & European law: The dynamics of legal integration. Oxford: Hart, 2001. 288 p. 1841131482. Beazley, Christopher. "A British view of the European constitution." In A simplified treaty for the European Union Ed. by Kim Feus. London: Federal Trust, 2001. 185 p. 1903403030. Blair, Alasdair. Saving the pound: Britain's road to monetary union. Harlow: Longman, 2002. 264 p. 0582472903. Brown, Antje C. K. EU Employment policies in subnational regions: the case of Scotland and Bavaria. Aldershot: Ashgate, 2002. 262 p. 0754617343. Cornthwaite, Jonathan. "Data protection in the European Union and the United Kingdom." In Privacy. Minneapolis, MN: Minnesota Institute of Legal Education, 2002. Eberwein, Wilhelm, Jochen Tholen, and Joachim Schuster. The Europeanisation of industrial relations: national and European processes in Germany, UK, Italy and France. Aldershot: Ashgate, 2002. 182 p. 0754618927. Markesinis, Basil, and Nicholas Mann, eds. The British contribution to the Europe of the twenty-first century: British Academy Centenary lectures. Oxford: Hart, 2002. 300 p. 1841132764. Geddes, Mike. "Local partnerships and social exclusion in the United Kingdom: a stake in the market" In Local partnerships and social exclusion in the European Union: new forms of local social governance Ed. by Mike Geddes and John Benington. Routledge, 2001. 0415239222. Gosling, Philip. The effects of compulsory competitive tendering and European law on local authorities. The Hague: Kluwer Law International, 2001. 294 p. 9041198253. Studies in law, 6. Sloat, Amanda. Scotland in Europe: a study of multi-level governance. Oxford: Peter Lang, 2002. 264 p. 3906766977. Read More