Some sales roles
by ndtnguy (2024-04-24 09:53:25)

In reply to: Other than a non-compete imposed on the business owner  posted by mwalsh


Most of the cases I have seen in which exiting employees were able to destroy their former employers more or less overnight (which strikes me as the universe in which noncompetes are salutary) fall into two categories:

1. Senior managers or owners capable of replicating the entire operation and effectively transferring the former business en masse, either because of their own client relationships or because of their relationships with other key employees, and

2. Key client-facing individuals in fields where their expertise or relationships drive client loyalty.

Say your job is wholesaling cardboard. That's a commodity, so people are going to buy it based on (1) price, (2) logistical efficiency, and (3) relationships. If everyone in your region knows you a the guy who gets them their cardboard on time, it doesn't take much for you to put a new company name and phone number on your POs and walk out the door with all of that business.

Now, it's totally different if, say, you just deliver the cardboard and nobody really cares who you are.


When the company relies on the magnetism of one person
by KeoughCharles05  (2024-04-24 11:08:15)     cannot delete  |  Edit  |  Return to Board  |  Ignore Poster   |   Highlight Poster  |   Reply to Post

The company isn't really worth that much, it's just the person who has that worth. That person could give the company some value by binding themselves to employment for a term of years with specified damages in the event of breach.

If a manager or owner is capable of replicating the entire operation that easily, I'm unclear why the company should be privileged over the manager or owner.


In the latter case
by ndtnguy  (2024-04-24 11:20:20)     cannot delete  |  Edit  |  Return to Board  |  Ignore Poster   |   Highlight Poster  |   Reply to Post

It's usually (as others have pointed out) because the owner sells his interest in the company to someone, which strikes me as a pretty good reason.


Sure, my point is that the interest in the company
by KeoughCharles05  (2024-04-24 11:47:30)     cannot delete  |  Edit  |  Return to Board  |  Ignore Poster   |   Highlight Poster  |   Reply to Post

is not all that valuable unless the company has the owner in an employment contract -- that contract is where the negotiation should be, and contemplation of liquidated damages seems appropriate in these cases moreso than a prohibition against competing whenever the owner actually departs.


That's not really the case
by ndtnguy  (2024-04-24 11:57:09)     cannot delete  |  Edit  |  Return to Board  |  Ignore Poster   |   Highlight Poster  |   Reply to Post

There are plenty of circumstances where a company is perfectly viable following an owner's (or co-owner's) departure, provided the former owner himself isn't out there competing.

And in the owner context, the problem isn't keeping him from departing (who, exactly, is the owner going to make that promise to whilst he's still the owner), it's keeping him from changing his mind after he voluntarily decides to depart.


Repeating what was said elsewhere in the thread, pay less
by Grace91  (2024-04-24 11:28:21)     cannot delete  |  Edit  |  Return to Board  |  Ignore Poster   |   Highlight Poster  |   Reply to Post

for the business and structure the buyout differently, rather than shackle with a noncompete. It can achieve the same ends via different means.


That's a fairly odd understanding of contract negotiations
by ndtnguy  (2024-04-24 11:59:29)     cannot delete  |  Edit  |  Return to Board  |  Ignore Poster   |   Highlight Poster  |   Reply to Post

Owner buyouts in small businesses aren't usually adhesion contracts drafted by the buyer.

Edit: And it's wishful thinking to assume that structured payouts will generate the same protections as a restrictive covenant in every case. If the seller concludes he can undersell his old firm, it could certainly be economically rational for him to get back in the game and forgo the later installments. Whether he can do that consistently with tort law and the Lanham Act depends on the circumstances, but contracts allowed parties to avoid a lot of indeterminability and uncertainty on those questions.


Obviously I am not an attorney. I have however been impacted
by Grace91  (2024-04-24 12:58:53)     cannot delete  |  Edit  |  Return to Board  |  Ignore Poster   |   Highlight Poster  |   Reply to Post

by this on multiple occasions, and my spouse has been on both sides of it.

I am not understanding why a buyer of a small business might not be able to structure the buyout in such a way to protect their interests rather than including a non-compete clause. If you care to explain it in simple terms so that I can follow along I will be happy to learn. That's not snark, I really would be happy to be enlightened.


Nothing is preventing the employer from incentivizing the
by Grace91  (2024-04-24 10:22:31)     cannot delete  |  Edit  |  Return to Board  |  Ignore Poster   |   Highlight Poster  |   Reply to Post

employee to stick around. The non-compete is used to shackle them to the business.


how much company resources were used...
by flapjack  (2024-04-24 10:49:20)     cannot delete  |  Edit  |  Return to Board  |  Ignore Poster   |   Highlight Poster  |   Reply to Post

What company resources were used to build that clientele? A business should be able, at some level, to protect their investment.

I'd have no issue with a company requiring a non-compete when they've paid for school or other training.


The problem is that businesses have, can, and will continue
by Grace91  (2024-04-24 11:06:09)     cannot delete  |  Edit  |  Return to Board  |  Ignore Poster   |   Highlight Poster  |   Reply to Post

to exploit the rule to their advantage, rather than simply protecting their investment. They can and should protect their investment via other means. Non-competes are unnecessary. I understand circumstances listed where they might be of more use, but I have zero trust that they will not be abused. Businesses can and should find other ways to achieve their ends. If that costs them, I am unsympathetic. Their actions led to this outcome.