Commentary: , Science & Technology:

Corporations have rights that over-ride those of real people?

In the interests of full disclosure - I work at creating IP (intellectual property) and therefore am among those who might be affected by the outcome of this legal wrangling.

Legal argument could hamper high-tech job-changers
Published: August 26, 2005, 12:29 PM PDT

By Ed Frauenheim
Staff Writer, CNET News.com

Buried in Microsoft's lawsuit against its former executive Kai-Fu Lee and Google is a legal doctrine that could make tech professionals shiver.

The high-profile dispute largely hinges on a noncompete agreement Lee signed with Microsoft. But in court filings, the software giant has also mentioned the theory of "inevitable disclosure," which holds that in some circumstances people can't avoid sharing or relying on trade secrets from their former employer when moving to a competitor.

Thanks to this increasingly popular legal argument, techies and other employees could be in for a surprise when they try to switch companies. In states that accept the inevitable disclosure concept, employers can sue defectors even if they've signed only a confidentiality agreement--or even if they haven't signed an employment agreement at all, said Robin Meadow, an attorney with the firm Greines Martin Stein & Richland.

"It's sort of an unwritten noncompete contract, in effect," Meadow said. "The fact that you haven't signed something doesn't mean you're safe when you move to another company."

Chief scientists and engineers at high-tech companies, as well as executives, are particularly vulnerable to the inevitable disclosure argument, according to Martin Foley, an attorney with the law firm Sonnenschein, Nath & Rosenthal. Courts making inevitable disclosure rulings tend to bar a worker from a new position for a year or less, but the concept conceivably could keep someone from taking a new job in their field forever, Foley said.

"Inevitable disclosure is ultimately, potentially, a form of indentured servitude, if it's applied in an extreme manner," Foley said.

A few years ago, Foley himself helped convince a California court of appeals to reject the inevitable disclosure doctrine. But it has been upheld in federal court. Employer suits that call on the inevitable disclosure doctrine are on the rise and now number in the hundreds each year, said Johnny Taylor, partner at the law firm McGuireWoods. It's difficult to say how many state courts have ruled in favor of at least a limited version of inevitable disclosure.

"It's become a trend," said Taylor, also chair of the Society for Human Resource Management professional group. "This theory or doctrine is taking hold."

Did Shakespeare really have it so right centuries ago when he wrote, "The first thing we do, let's kill all the lawyers" (Henry VI -Part 2, Act IV, Scene II)?

Where do the "rights" of "corporations" or "companies" (constructs of legal fiction, at best) end and the rights of an individual to have gainful employment in his or her chosen profession begin?

Is the "intellectual property" gambit of corporations getting out of hand, as evidenced both by this legal wrangling along with the Digital Millennium Copyright Act, which was essentially written by corporations?

We have known for quite a while that money has had an overweening influence on lawmaking in the United States. Has it finally crossed the line to where corporations now have more "rights" than citizens, including the "right" to keep individuals from being able to find and hold jobs in their profession?

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