U.S. District Court Judge William Young’s recent decision in Talentburst, Inc. v. Collabera, Inc. is worth study. Talentburst is the former employer of Raj Pallerla. While employed by Talentburst, Pallerla signed a noncompete agreement with Talentburst. He then resigned and went to work for Collabera, Inc. For ease of reading I’ll refer to these three parties as Former Employer, New Employer and Employee.
When the Former Employer discovered that its Employee had gone to work for New Employer, it pursued an unorthodox legal strategy: rather than sue the employee for breach of the noncompete agreement, it sued only the new employer, alleging that the New Employer had “aided and abetted” a breach of fiduciary duty by the Employee. It also claimed that by hiring the Employee the New Employer “interfered” with the noncompete contract. The case was filed in Massachusetts Superior Court, but the Former Employer was able to “remove” it to federal court (based on diversity jurisdiction). To the Former Employer’s misfortune, the case was drawn by Judge Young, who was almost certain to give the case closer scrutiny than it would have received in state court.
The Former Employer filed a motion to dismiss, which is usually a long shot. However, Judge Young allowed the motion and dismissed the suit on the basis of the complaint alone. In his decision Judge Young reasoned that the Employee, who was a non-managerial “worker bee,” did not owe a fiduciary duty to his employer. The New Employer could not have interfered with a non-existent fiduciary duty, and therefore this claim failed.
As to the tortious interference claim, the judge zeroed in on the requirement of “improper means or motive.” Mere advancement of one’s economic interests is not, however, “improper,” and since the Former Employer couldn’t make anything more than a “generalized” allegation of improperness, this claim failed as well.
I have a few observations about this case.
First, in addition to Massachusetts appellate precedent, Judge Young relied heavily on “unpublished” Superior Court decisions (using Westlaw citations when available). I can’t think of a federal district court decision that has made as much use of Massachusetts trial court decisions as this one. However, Judge Young is a former Massachusetts trial court judge, and he often expresses his great respect for that court. The use of state court decisions is also a function of the Business Litigation Session, which has produced many more written decisions than other sessions of the trial court.
Second, Judge Young rejected the Former Employer’s argument that it was not required to make anything more than a generalized allegation of improper means/motive at the pleading stage, holding the plaintiff to the higher pleading standard established by the Supreme Court in the Bell Atlantic v. Twombly decision in 2007. As noted in this post, this standard has now been adopted by the Massachusetts Superior Court as well. Although Twombly was an antitrust case, this is another example of its broad application, extending here so far as to bar a state tort claim; before Twombly, this case likely would have survived dismissal. It probably would have survived dismissal if it had remained in state court.
Third, and lastly, what the plaintiff/Former Employer had in mind when it sued the New Employer but not its Former Employee (against whom it appears it had the stronger claim) continues to elude me, but the strategy clearly back-fired in a major way.
Bottom line: This case is important precedent in the area of employee breaches of fiduciary duty, by reason of its careful legal analysis and the gravitas of the judge who authored it. I expect the case to become part of every business lawyer’s legal arsenal when issues of employee fiduciary duty are raised.
My partner Andy Updegrove has written a post discussing Jacobsen v. Katzer. In a nutshell, theCAFC upheld an open source copyright license, pointing to the work of Creative Commons and others. As Andy discusses, this is an important decision for the open source movement.
Sadly, too many lawyers (you hear their ads on the radio and see them in the legal journals – “courtroom lawyers,” “trial lawyers”) are often as willing to take their clients to trial as generals are to commit their troops to battle.
Now, a study reported in the New York Times seems to find empirical confirmation for this. I quote from the article, linked here:
Note to victims of accidents, medical malpractice, broken contracts and the like: When you sue, make a deal.
That is the clear lesson of a soon-to-be-released study of civil lawsuits that has found that most of the plaintiffs who decided to pass up a settlement offer and went to trial ended up getting less money than if they had taken that offer. . . .
In just 15 percent of cases, both sides [plaintiffs and defendants] were right to go to trial – meaning that the defendant paid less than the plaintiff had wanted but the plaintiff got more than the defendant had offered. . . .
Critics of the profession have long argued that lawyers have an incentive to try to collect fees that are contingent on winning in court or simply to bill for all the hours required to prepare and go to trial. . . .
“Most of the time, one of the parties has made some kind of miscalculation or mistake,” said Jeffrey J. Rachlinski, a law professor at Cornell who has studied how lawyers and clients decide to go to trial . . . .” The findings suggest that lawyers may not be explaining the odds to their clients – or that clients are not listening to their lawyers. . . .
Law schools do not teach how to handicap trials, nor do they help develop the important skill of telling a client that a case is not a winner. Clients do not like to hear such news.
Human nature being what it is, I don’t expect this to change anytime soon. After all, the fact that social scientists report that people tend to buy stocks when they’re high and sell them when they’re low doesn’t seem to affect most investors; the fact that half of all marriages end in divorce doesn’t seem to cause people to hesitate before getting married; and the fact that the odds favor the casinos doesn’t stop people from betting at the casinos. And so it goes ….
If my partner Andy Updegrove (he’s the one on the right) is not the most knowledgeable lawyer on the planet about ODF/OOXML standard adoption issues (1,2,3), I would be more than a little surprised. Here is a Q & A with Andy that Redmond Developer News has published, where he discusses the ongoing appeals process related to these standards. A link to the article on scribd.com is below, and here is a link to the article online. If you know absolutely nothing about this controversy, click here to read several articles Andy has published on the topic.
Bill Patry, Senior Copyright Counsel at Google (how’s that for a great job), emailed me and asked me to mention the publication of his new copyright treatise, Patry on Copyright.
I like the fact that Mr. Patry said this about his 5,800-plus page, $1500 treatise: “ The book is also chock full of wikipedia references, anecdotes, riffs on logic, congitive linguistics, etc. It is many books in one.”
Although I haven’t seen this treatise yet, I hope that it is a change fromNimmer on Copyright, which is so densely academic as to often be unusable by practitioners. Somehow, I doubt that we’ll ever see Nimmer referencing Wikipedia.
I have decided to end the blog, and I owe readers an explanation. There are two reasons.
1. The Inability or Refusal to Accept the Blog for What it is: A Personal Blog
. . . While in private practice I never had the experience of people attributing my views to my firm or to my clients. I moved from private practice to Google I put a disclaimer to the effect that the views in the blog (as in the past) were strictly mine. . . .
For the first year after joining Google, . . . people honored the personal nature of the blog, but no longer. . . . The inevitable opening sentence now is: “William Patry, Google’s Senior Copyright Counsel said,” . . . There is nothing I can do to stop this false implication that I am speaking on Google’s behalf. . .
In the end, I concluded that it is no longer possible for me to have a blog that will be respected for what it is, a personal blog. . . .
2. The Current State of Copyright Law is too depressing
This leads me tomy final reason for closing the blog which is independent of the first reason: my fear that the blog was becoming too negative in tone. I regard myself as a centrist. I believe very much that in proper doses copyright is essential for certain classes of works, especially commercial movies, commercial sound recordings, and commercial books, the core copyright industries. I accept that the level of proper doses will vary from person to person and that my recommended dose may be lower (or higher) than others. But in my view, . . . we are well past the healthy dose stage and into the serious illness stage. . . . Copyright law has abandoned its reason for being: to encourage learning and the creation of new works. Instead, its principal functions now are to preserve existing failed business models, to suppress new business models and technologies, and to obtain, if possible, enormous windfall profits . . .
So between the inability or refusal of some people to accept the blog for what it is — a personal blog — and my inability to continue to be Cassandra, I decided it was time to pull the plug. . . . I intend to spend my free time figuring out a constructive way to talk about the difficult issues we face and how to advance toward their solution.
I have read and enjoyed this blog religiously for the last 18 months, and I am saddened. Oh, and p.s.: our firm does subscribe to Patry’s treatise now, and although Nimmer is still on the shelves, we are no longer purchasing updates.
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That is the clear lesson of a soon-to-be-released study of civil lawsuits that has found that most of the plaintiffs who decided to pass up a settlement offer and went to trial ended up getting less money than if they had taken that offer. . . .
If my partner Andy Updegrove (he’s the one on the right) is not the most knowledgeable lawyer on the planet about ODF/OOXML standard adoption issues (
