I'm thinking more the professional services / support. "I used to work for $foocorp, pay me $money and I will help you install your software and support it better than $foocorp offers."
Another example is Epic's "not quite a non-compete" is that they won't release the certificates(?) that an employee got for supporting their software (as part of employee training) for a period of time after separating from the company. I'll admit to being hazy on this but (I believe) that this is to make it difficult to start a consultancy for installing health care software right after leaving as you wouldn't be able to demonstrate the certificates that you got while working there (and getting them again is costly).
Though, if you want an example of "recreate the software" (though not with IP infringements), look at Dave Hitz and James Lau from Netapp and that they formerly worked at Auspex. I'm sure that they dotted all the 'i's and crossed all the 't's with leaving a company and starting a new one that became a direct competitor - but that sort of thing happens too. I'm not sure what California's non-compete laws were like in '92.
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The "you can't work anywhere using a computer" as a non-compete is certainly something that isn't reasonable. A "you can't start a competing company and try to get former clients to switch to you after selling your old one" is enforceable.
So where does the "you leave a company and then start a consultancy that competes directly with the professional services, consulting, or support of the previous company" fall? That's a question I haven't found an answer to.
> Court of appeal upholds the enforcement of a restrictive covenant against a former employee who had sold his ownership interest in the company while concurrently agreeing to the covenant.
And we've got an example where a non-compete / non-solicitation agreement was enforced, appealed, and found correct.
Another example is Epic's "not quite a non-compete" is that they won't release the certificates(?) that an employee got for supporting their software (as part of employee training) for a period of time after separating from the company. I'll admit to being hazy on this but (I believe) that this is to make it difficult to start a consultancy for installing health care software right after leaving as you wouldn't be able to demonstrate the certificates that you got while working there (and getting them again is costly).
Though, if you want an example of "recreate the software" (though not with IP infringements), look at Dave Hitz and James Lau from Netapp and that they formerly worked at Auspex. I'm sure that they dotted all the 'i's and crossed all the 't's with leaving a company and starting a new one that became a direct competitor - but that sort of thing happens too. I'm not sure what California's non-compete laws were like in '92.
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The "you can't work anywhere using a computer" as a non-compete is certainly something that isn't reasonable. A "you can't start a competing company and try to get former clients to switch to you after selling your old one" is enforceable.
So where does the "you leave a company and then start a consultancy that competes directly with the professional services, consulting, or support of the previous company" fall? That's a question I haven't found an answer to.
As to the bit on some things being enforceable: Blue Mountain Enterprises, LLC v. Owen ( https://law.justia.com/cases/california/court-of-appeal/2022... )
> Primary Holding
> Court of appeal upholds the enforcement of a restrictive covenant against a former employee who had sold his ownership interest in the company while concurrently agreeing to the covenant.
And we've got an example where a non-compete / non-solicitation agreement was enforced, appealed, and found correct.