Customer Lists and Pricing Information Aren't Necessarily Confidential

When an employee has signed an enforceable non-competition and non-solicitation agreement, he will be prohibited from soliciting the employer's customers for a certain length of time after the employment relationship ends. In the absence of an express non-competition clause, a former employee is generally free to compete with his former employer, even if that means contacting the former employer's customers and offering lower prices. Without the benefit of contractual noncompetes and the remedies they provide, employers who pursue their former employees in court often argue that the employees violated their post-employment fiduciary obligations by making inappropriate use of the employer's customer list and/or pricing data. In a recent opinion authored by Judge Liam O'Grady of the Eastern District of Virginia, the court held that customer lists aren't automatically entitled to trade-secret or other "confidentiality" status, and that whether former employees can use the data depends on the steps taken by the employer to keep it confidential.

In Contract Associates, Inc. v. Atalay, Contract Associates, Inc. ("CAI") sued its former employees, Senem Atalay and Michael Spade, claiming that they breached their fiduciary duties and misappropriated trade secrets when they left to form their own competing company [an enhanced version of this opinion is available to lexis.com subscribers]. Neither employee had a written employment agreement. Within hours of tendering their resignations, they called three of CAI's major clients to announce their resignations and the formation of their new, competing company. Shortly thereafter, virtually all of CAI's major clients terminated their at-will agreements with CAI and moved their business to the defendants' new company, costing CAI "nearly its entire revenue stream." CAI sued for breach of fiduciary duty, misappropriation of trade secrets, tortious interference with existing and prospective contracts, and statutory business conspiracy.

Read the rest of the article at the Virginia Business Litigation Lawyer Blog.

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