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Can Employers Sue Employees Under the CFFA?

By Christopher Durham

Imagine the following hypothetical (one most employers would agree constitutes a “nightmare scenario”), with apologies to “Back to the Future”: Your company, McFly Industries, which develops, manufactures and sells hoverboards, just celebrated its fifth anniversary after having its most successful year ever. In the highly competitive hoverboard industry, you have managed to beat the competition and grab a larger slice of the hoverboard market, surpassing your fiercest competitor, Biff Incorporated. This development is largely due to your company's development of the Flux Capacitor, which has given McFly Industries' hoverboard superiority over its rivals' boards, and allows it to reach top-end speeds (once clocked at 88 miles per hour in an unofficial test).

However, your elation is short-lived. Late on a Friday afternoon, you receive nearly identical e-mails from your top engineer, Doc, who was responsible for development of the Flux Capacitor, and Marty, your crack Sales Director, informing you they are resigning effective immediately. Then, over the weekend, you learn through industry sources that they are going to work for Biff, and may have been planning to go work for Biff Incorporated for some time. Even worse, on Monday your lawyer, Strickland, informs you that neither Doc nor Marty signed a non-competition or non-solicitation agreement, meaning they are free to compete against you virtually unfettered. You do some digging, and sure enough Marty and Doc have been sending e-mails to their personal e-mail accounts, which you suspect contain confidential McFly Industries information ' including files related to the Flux Capacitor ' that they will use to compete against you at Biff Incorporated.

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