Legal Arguments Can Hurt Tech Job Mobility

camelcai writes "Microsoft's suit against Kai-Fu Lee and Google is based off of the thought that in some circumstances people can't avoid sharing or relying on trade secrets from their former employer when moving to a competitor. In MS's filing it says: 'Lee's conduct threatens to disclose or Lee inevitably will disclose Microsoft's trade secrets to Google and/or others for his and/or Google's financial gain in the course of working to improve Google search products that compete with Microsoft, and in the course of establishing and building Google's presence in China to compete with Microsoft's efforts in China.' According to CNET, thanks to this increasingly popular legal argument, defectors might face a lawsuit even if they did not sign agreements not to compete or not to disclose confidential information."

Comments

Maybe Google gets the short end of this stick

[Tontoman]

" . . . though Microsoft says a document it found in the recycle bin of one of Lee's computers indicates Google anticipated a possible lawsuit in hiring Lee."
Which is worse?
1. Reading over competitor's job offers using company equipment? Or
2. forgetting to empty recycle bin and wiping disk before returning company computer?

Re:Maybe Google gets the short end of this stick

[instarx]

There is no court that will support the position that people are no longer allowed to make a living in their profession simply because they once worked for a company. Although it would not hurt, money alone would not compensate Lee since part of the alure of creative jobs is being able to create. A monthly chack from MS would make Lee a defacto employee of MS even though he had no duties. My opinion is that MS is trying the intimidation-by-lawsuit technique to make other MS employees think twice before abandoning ship for Google.

Re:I beg your pardon?

[tepples]

"Lee's conduct threatens to disclose or Lee inevitably will disclose Microsoft's trade secrets to Google and/or others for his and/or Google's financial gain"

It means that one Lee is in a new job, he can't always prevent himself from disclosing Microsoft trade secrets.

"in the course of working to improve Google search products that compete with Microsoft, and in the course of establishing and building Google's presence in China to compete with Microsoft's efforts in China."

Lee would be tempted to disclose Microsoft's trade secrets because Google is competing in an area where Microsoft holds trade secrets and is likely to have disclosed them to Lee.

Re:Whats good for the goose

[einhverfr]

Intresting that MS decide that inevitable disclosure is a problem when their employees leave given that it wasnt an issue when they poached/bribed a lot of the guys from Borland in the .NET ramp up.

And don't forget hiring the DEC VMS team to build NT....

Personally I don't think this will be such an issue. Courts have historically been reasonable about things like no-compete clauses and tended to try to protect employees from overextensions of these things.

Secondly, we live in a country where a person can sue another person for any reason. If a distinct claim is made according to law, it will become a matter for the trial. If not, it will be dismissed. If it goes to trial and there are sufficient disputed facts, it goes to a jury trial. If not, it usually ends up in summary judgement procedings (which are cheaper and more predictable than jury trials).

IANAL, and this is just my lay understanding. So don't believe anything I say :-)

Not under California law

[NotASuit]

One of the reasons that California's tech sector is dominant, and that California has such a history of innovation, is that California law does not enforce non-compete contracts except in very narrow circumstances. IAAL, and as someone who has litigated these cases before, I suggest to any employee that they attempt to negotiate a California choice of law clause in their employment contracts, especially if they work in California or for a company based in California.