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Ask The Lawyer By: Daniel A. Gwinn, Esq.

| October 17, 2016

Dan Gwinn New Head Shotbreach of confidential information by your former employer? Get help.

QUESTION:  I work in sales. In my last job, two years ago, I was asked to sign a Confidentiality, Non-Competition and Non-Solicitation Agreement, under which I was not supposed to “directly or indirectly divulge or make use of any Confidential Information” outside my work for the company for five years. I also agreed not to do any work that would compete with the company for a year after leaving. To make a long story short, about 18 months after leaving the company, I landed a job in sales with a competing firm. Since the non-competition agreement was over, I contacted many of my former clients.  Now, my former employer is suing me for violating the “Confidentiality and Trade Secrets” part of the agreement. I never thought a client’s name was a confidential trade secret, is it?

ANSWER:     Unfortunately, there is no quick answer to your question. Whether a customer list is confidential information or a trade secret depends on several factors: (1) Whether the information is known outside the business; (2) the extent to which it is known by employees and others involved in the business; (3) the extent of measures taken to safeguard the secrecy of the information; (4) the value of the information to the business and its competitors; (5) the amount of effort or money expended in developing the information; and (6) the ease of difficulty with which the information could be properly acquired or duplicated by others.

Where the client information is something that can be easily found by looking at a phone book, or googling on-line, it is less likely to be regarded as a trade secret. It is also less likely to be regarded as a trade secret or confidential information if it is publicly available, for instance, where a bid on a government project is public record.

Another factor in determining whether clients’ names are confidential/trade secret information is whether the agreement you signed specifically stated such information was a trade secret/confidential information.

If you used names which you remembered without access to any document prepared by your previous employer and independently obtained their contact information, it is less likely that the information will be viewed as confidential. If the names were on a list prepared while you worked for your previous employer, and contained information not easily obtainable by other means, it is more likely that the information will be viewed as a protected trade secret/confidential information.

An attorney can help you evaluate the strengths and weaknesses of your case. The lawyers at GWINN TAURIAINEN PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinntauriainenlaw.com.

ASK THE LAWYER
By: Daniel A. Gwinn, Esq.

Attorney and Counselor at Law
GWINN TAURIAINEN PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile
daniel@gwinnlegal.com
www.gwinntauriainenlaw.com

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