Ex-MS GM Can't Work 'Anywhere In the World' For Salesforce 282
theodp writes "Be careful before you sign a Microsoft non-compete agreement, kids. GeekWire reports that King County Superior Court Judge Kimberley Prochnau has enjoined former Microsoft General Manager Matthew Miszewski from 'working in a marketing role in salesforce.com's public or commercial sector anywhere in the world.' So what did onetime Wisconsin State CIO Miszewski do to warrant the global ban? 'He was a major evangelist for Microsoft,' explained Judge Prochnau, who added that the 'thrust of the order is to preclude him from being the evangelist for Salesforce.com that he was for Microsoft.' Microsoft, which has warned Congress that restricting the flow of talent is ruinous to America, said in a statement that the company is pleased with the ruling."
Nothing to see... (Score:5, Insightful)
Comment removed (Score:5, Insightful)
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"Realistically, though, non-competes are generally the domain of high level executives who have plenty of other options and, more than likely, enough cash to take time off if they feel the need. As long as it stays that way, I see no problem."
And yet it's becoming more and more common to have lower and lower level peons sign them. It's *not* staying that way at all.
Re:Nothing to see... (Score:5, Interesting)
I have seen 18 month non-compete for lowly lab grunts in private R&D companies and trainee IPR people with circa 45K pound per annum. Anything but exec.
Re:Nothing to see... (Score:4, Funny)
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Not requested, but required.
How do you "don't get hired at a place that requires that" if you already work there??
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In my moral judgment, if you work at such a place, I see absolutely NO ethical problems with stealing as many office supplies as you can carry.
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And apparently, I owe my soul to the company store.
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There are two kinds of non-compete agreements. The ones that say you can't work for Company X, Y or Z because they are direct competitors and likely have been trying to steal people for the last few years. The other kind says you have to starve for a year or so.
The first kind are very, very enforcible. Be aware of this and think carefully before signing. The second kind are a joke, so sign away as they are aren't enforcible at all.
In all cases I have seen if you go to Company X after having signed an en
Re:Nothing to see... (Score:5, Insightful)
Wrong.
They're absolutely enforceable, as this case shows. It all depends on what state you're living in. Here's a newsflash for all you California residents: 1) not everyone lives in California (I know, it's hard to imagine). 2) Not all places have the same laws as California.
Yes, in California, 1 state out of 50 in the USA, they're generally not enforceable at all, though that doesn't stop companies there from trying to get everyone to sign them, hoping they're too ignorant to know of their unenforceability in that state due to state law. However, in the other 49 states, they generally ARE enforceable, and as we see here, they are proven to be enforceable in Washington state.
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In the UK at least, i believe such agreements are non enforceable because they count as "restriction of trade". They are there to scare people, and don't have any actual legal weight.
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Or more specifically European law on freedom of movement for workers and freedom of association. It's the same law that Jean-Marc Bosman used against his football club to get him released from his club when his contract expired.
Re:Nothing to see... (Score:5, Informative)
Judges don't always go along with the agreements. Former employees of Arthur Anderson were allowed out of their agreements when they fled the firm due to the massive fraud scandal following Enron. Edwards v. Arthur Andersen LLP The Death of Non-Competition Agreements? [theiplawblog.com]
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It's true. Lincoln freed the slaves.
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You aren't some special unique uebertalented snowflake?
Everyone else here is.
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That's the problem with exceptional people -- some of them don't take pity on the majority of people who are average.
And there NEEDs to be some laws governing the crap that companies can put in their employment contracts -- MOST people just read the policy and say; "Well, I guess their is nothing I can do." They don't know what can't be enforced.
I consider it fraud to prey upon the uninformed. Employment contracts are as bad as credit card contracts these days.
Too often, I see these people who think they ar
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meaning that you either have to remain in your job however crappy it becomes or you're unemployable in any industry using your skill set, at least for 'x' months, and you end up flipping burgers.
cmon now, thats what they are trying to do by having your employer offer insurance. It makes it much harder to take off for a while if your paying that much a month for insurance without them..
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And don't forget... the company WANTS to give you insurance because then they can pay you less, and still get tax credits for the insurance. If they had to give you enough cash to buy your own insurance, it would cost them a lot more.
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I was asked to sign a non compete for my first 3 jobs out of college.
(Of course, I just modified the contracts, and no one cared).
But most of my peers signed without modification and could have been prosecuted.
Re:Nothing to see... (Score:5, Insightful)
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Sorry, that simply cannot be true. To not mention that in the summary would amount to lying by omission, and theodp is well known for not misinterpreting statements, exaggeration or other similar underhand tricks.
Retract that vile calumny immediately, sir, or I shall have to ask you to step outside!
Re:Nothing to see... (Score:4, Insightful)
Nevertheless in many countries that agreement would be void as it contradicts the law. Unless ofc, he is payed or otherwise compensated by the contractor for that year.
But companies in the USA are so lucky that that state has no laws in the areas that are relevant but only case to case decisions.
Also: as a non american, it slightly irritates me that that US judge so bluntly extends his area of judication over the rest of the world.
angel'o'sphere
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Since Microsoft is in Washington State, the judge has jurisdiction to rule that his competing with Microsoft, anywhere in the world, would be "injurious" to that Washington corporation and a violation of a Washington contract.
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Its pretty common for judges to extend their rulings outside their jurisdiction. European courts do it all the time, especially with humanitarian cases. No one is saying that they are going to follow him to Asia or Europe and make him quit his job... they can't. However, if he enters that jurisdiction or has assets there, he could be sanctioned. If you make a law which creates agreements in your jurisdiction, not only can they make judgments, they need to make those judgments as it was local law that wa
Re:Only a year (Score:2)
You might be right -
If execs can get past the crazy lifestyle, their $10,000 in savings might last a while. Then the world can hire them and the ori. board wsted 9 months on strategy direction.
Then they can do what they want.
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Re:only a year (Score:2)
Gang, for once Fristy was right.
"Only a year"
It seem to take about seven years for a paradigm shift, so "only a year" should be easy for a smart company that wants to kill time. Better yet, havehim produce pieces of work "for games" that "just happen" to have mobilr phone implications.
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Well, that and the fact that just because a US judge rules a global non-compete agreement lawful doesn't mean that it is actually lawful globally.
So in other words, the "anywhere in the world" claim is utter bullshit. There are plenty of countries where such non-compete agreements are completely unenforcable such as many European countries that don't cater to these things.
In countries where non-compete agreements aren't enforcable it's done based on the concept that a company should be willing to treat peop
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I'm pretty sure he can go to another country and work. AFAIK, American judges are limited to American turf.
Right, as long as he never wants to come back. As far as I know there is no statute of limitations on being found in contempt and judges really dislike being ignored. http://en.wikipedia.org/wiki/Contempt_of_court#United_States [wikipedia.org]
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Let's say we're both in Washington State, and form a contract saying that you will give me $10 million on the condition that I never, ever, reveal certain information to other parties.
If I revealed that information to those parties, I would have violated a legal contract. It doesn't matter where in the world I was when I did it.
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I've signed a non-compete, do I get a /. article?
Anonymous, I believe you signed a non fire non quit clause on your job... you are stuck with slashdot the rest of your life. Besides, slashdot would not be the same without you lol
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I have signed several and when I left, the contract ended and I went to another company without a second thought.
It's only 8 more months (Score:4, Informative)
Let me start by saying that I think that non-competes are generally bullshit. I personally gave up some benefits to avoid signing one where I work, just on principle.
That said, for high-level people with insider information, it may be a special case that I could be persuaded to accept. In any event, this guy only has 8 months left on his contract. The summary leaves out that vital little detail.
Confidentia info is separate from non-competes ... (Score:5, Insightful)
... for high-level people with insider information, it may be a special case that I could be persuaded to accept ...
Confidential information (trade secrets, etc) can never be revealed by a former employee. The presence or absence of a non-compete agreement is irrelevant to such information.
For the most part non-compete agreements are a mind game and are not enforceable. Exceptions usually involve owners who sell a company. For high level execs the legal justification usually has nothing to do with non-competes but rather that in their new role they will inevitably use confidential information of the former employer. Note "use" not "reveal", as in quietly make decisions without fully explaining their reasons.
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Confidential information can never *legally* be revealed by a former employee. But you've got to prove it.
Incorrect. Taking up a position with a rival gives a motivation, perhaps a strong one, to reveal the information and try to get away with it. Prohibiting such employment in the first place is much easier than trying to prove that
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Incorrect. Taking up a position with a rival gives a motivation, perhaps a strong one, to reveal the information and try to get away with it. Prohibiting such employment in the first place is much easier than trying to prove that such information was revealed after the fact.
In California and many other states (nearly all ?) the courts have considered that argument and found it to be less persuasive than the opposing argument that a person should not be hindered in their ability to take their general knowledge and skills from one employer to another, that they should not be restrained from practicing their profession. Specifically in California the courts ruled that non-compete agreements are against the public interest and unenforceable. Exceptions usually involve owners who a
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Here's an interesting thought: Microsoft probably knows a good number of companies that *don't* have a non-compete and are always actively engaging and recruiting from. Its ok when they get to grab others from competitors but not ok when competitors try to recruit their staff.
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no
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Don't act like it's a hypocritical viewpoint. In GP's words, "High level people with insider information" have the potential to make life difficult for the company they're leaving. If they get sniped by competition explicitly for that insider information--by which I mean bought out with huge stacks of cash--that could be ruinous. And unfortunately, it's not as though high level people are never mercenary / unprincipled.
GP is only acknowledging that non-competes are a reasonable request by the company und
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> you hate non-competes
> you'd still sign one anyway
facepalm.jpg
I hate waking up early. Yet I do anyway. Because I like being employed.
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I hate getting shots.
I still get them anyway.
I hate getting sick more than I hate getting the shot.
So two companies in two different states sue (Score:2)
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The agreement is for the entire world, though. How would they enforce it outside the U.S.?
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If he leaves the country they cannot, but he could be the marketing director for, say, south america while still living in the US in which case the agreement could be enforced.
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Depends on whether or not they can sanction Salesforce for employing him. If they can't (I don't think they can), well, he'd better make sure he doesn't have any assets under US jurisdiction.
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Skills and information are different. If I learn Android development (a skill) on a job that's one thing, but a list of customers or future product plans (information) is a different coloured kettle of worms.
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IANAL, but I am pretty familiar with this issue, and I believe that you cannot enforce non-disclosure except for things that fall under the category of "trade secrets" and the like. It is impossible to enforce a contract forbidding you to take common skills and knowledge with you when you leave.
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How do you enforce a non-disclosure? Kindly ask the person not to use any of the knowledge or experience he acquired on the previous job? Even if the person was serious in agreeing to that, its hard to not subconsciously use the information and skills that you were hired to provide. How do you know the person used that information or information they had before their original job. If you want any type of successful restriction, non-compete is the real way to go.
Skills that you learn in your job are not a trade secret. Information can easily be a trade secret. But for most people in most situations, information can be kept separate. There have been very few cases where someone was prevented from taking up a new job; I think one case was a quite high level employee whose job it was to investigate marketing strategies of the companie's competitors, and a judge decided that in this particular case it was inevitable that he would use knowledge of his old companie's mar
Bad judge (Score:2, Insightful)
Non-competition agreements are not meant to be enforced this way. This is akin to preventing a software developer from ever making software for another company, rather than preventing one from working on Yahoo! Messenger if his previous job was working on Windows Live Messenger. The problem with the latter is that he could "steal" a Microsoft "secret" and use it in Yahoo! Messenger, whereas the problem with the latter is that it prevents the guy from ever using his general purpose skills, education, and e
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This is akin to preventing a software developer from ever making software for another company,
No it's not. He only has to wait another eight months, and then he's fine.
Actually judge may have better grasp of issue ... (Score:3)
I highly doubt this guy learned any Secrets Of Evangelism Known Only To Microsoft (TM) and is stealing them for Salesforce. The judge is an idiot.
You are mistaken. For example as an evangelist this guy may know who Microsoft's weakest clients are, those most receptive to a pitch from Salesforce. He may even know their specific concerns and use such insider knowledge in his pitch.
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This is akin to preventing a software developer from ever making software for another company, rather than preventing one from working on Yahoo! Messenger if his previous job was working on Windows Live Messenger. The problem with the latter is that he could "steal" a Microsoft "secret" and use it in Yahoo! Messenger
It has nothing to do with stealing secrets. The protection of trade secrets is done with non-disclosure agreements, not non-compete agreements. A non-compete is just a bunch of bullshit that s
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"Non-competition agreements are not meant to be enforced this way."
Yes, they are. It is the main reason for their existence in the Corporate world.
Whether they can legally enforce it that way is a completely different matter. But you had better believe that *IS* the intent.
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I Had a Girlfriend Like That, Once. (Score:5, Funny)
I had a girlfriend exactly like that, once. She was all "If I can't have you, then NOBODY CAN HAVE YOU!". It got pretty scary there, for awhile.
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Well, presumably this is quite different, for example, I doubt that your girlfriend insisted on installing a chastity belt on the first date. That would be just like this.
Re:I Had a Girlfriend Like That, Once. (Score:4, Funny)
The real difference is that Microsoft is real. A slashdotter's girlfriend? Not so much.
Microsoft's not the only company who does this (Score:4, Informative)
I was dissuaded from accepting employment with Amazon after an attorney warned me that he'd handled several cases where Amazon came after an ex-employee who was now working for a web startup. There are few online business niches Amazon doesn't consider itself related to, and Amazon, like MS, does business all over the world, so the usual restrictions on geographic area don't apply.
All of those employees, when threatened, apparently backed down and started their careers over in packaged software design, in-house corporate business apps, or brick-and-mortar marketing. They couldn't afford to go up against Amazon, or to "sit out" of the online business for the 18 month non-compete term required by Amazon.
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Desperate people will sign almost anything to get a job.
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I've seen it both ways, but more often than not it doesn't include pay such as in the case of Microsoft. Their draconian anti-employee contract is a major reason I don't work there today.
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Wouldn't the non-compete include pay for the duration? If not, why would anyone EVER sign one of these?
Of course not. This is the USA, not some socialist hellhole like Germany.
As for the second question, because it is near-impossible to get a technology-related job that doesn't require one.
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As for the second question, because it is near-impossible to get a technology-related job that doesn't require one.
Move to CA they're illegal here already and most companies won't event attempt to make you sign one.
Looks good on resume (Score:2)
Constitutional Amendment 28 (Score:2)
When life gives you lemons... (Score:2)
take a trip to the ISS and be the first sales manager who's LITERALLY "Out of this World!"
Noncompete Agreements Could Be Fair (Score:2)
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I think it depends on the length of the agreement and the impact on the employee.
If non-compete came with full pay for the period of non-competition, then it might be reasonable.
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I agree, they should require that a person be paid, but the only two holes are:
so whats the problem? (Score:2, Insightful)
California protects workers (Score:2)
"every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void."
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This doesn't pass the smell test (Score:2)
This is why I don't work for Microsoft (Score:5, Informative)
I had an offer to work at Microsoft just out of college. I was seriously considering the offer until I saw the draconian anti-employee non-compete they wanted me to sign. I told the recruiter that I didn't feel comfortable signing such an agreement since Microsoft works in so many different areas that there was no way to avoid some sort of conflict. I was assured by the recruiter that they don't usually enforce the agreement. Maybe that is generally true, but this ruling definitely proves that they will enforce it on occasion. Instead I ended up with a different company in CA where such draconian non-competes are illegal and most companies don't even attempt to get you to sign one.
I should also add that not all non-competes have to be as evil as Microsoft's. One company I had an offer for had a similar non-compete but it had a clause that if they decide to enforce it as long as it's in force and you're looking for other gainful employment they would continue to pay you your salary until the non-compete expired. I felt that this policy was more than fair since it allowed the company to decide how important enforcing the non-compete was and didn't have such negative consequences for you as an employee should they choose to enforce it. I personally feel all non-competes should include such a clause otherwise I would NEVER consider signing one.
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I asked if they would alter the agreement to strike the non-compete terms but he said they wouldn't do that. I know better than to accept some verbal assurance from a recruiter vs what the contract says. That's like believing that guy at BestBuy that your extended warranty covers the battery in an iPod (it won't). While at the time I didn't think I would have left MS very soon I was afraid that if I was a good performer that they'd be even more likely to try and enforce such a non-compete. I'm sure they let
Want a non-compete? Then pay for your damage! (Score:5, Insightful)
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I see it differently. When you are offered a position you factor-in the non-disclosure agreement. How much is it worth to you, that much more they have to pay you to accept the position, otherwise you take another offer. You can't say, yeah, great salary, I will sign that non-disclosure to get it and then turn around and say it was unfair!
But in any case, courts have overturned agreements in many cases where the employers were abusive of them and employers usually don't try to enforce them to non-critical e
UK position (Score:3)
In UK, and I think EU generally, non-competes are much harder to enforce. The emphasis is on the ex-employer to prove that they have a legitimate business interest at stake - merely being in competition is not enough, it would have to be e.g. you moving to a competitor and previously had access to customer lists. That interest would have to be sufficient to override the public interest in free trade.
Court will also have to decide that the restrictions are reasonable. If not, the whole thing is invalidated, they cannot reduce an unreasonable term to a reasonable one. Time and distance are obligatory textbook examples (6 months within city limits, OK, but forever globally is never going to fly), as are some form of sensitive information - particularly access to customer lists.
IANAL, my training is to spot a potential issue and give a ballpark-ish explanation why a client needs to see one, but I'll have a go at guessing this may well have been held valid here too. The position of the employee is highly significant. Any restriction for a supermarket shelf-stacker isn't going to hold, but a bigwig marketing GM for an international company going to a competitor... Well, global might still be a bit of an ask but state-wide I doubt would be much of an issue.
(In practice it's not uncommon to require lengthy notice periods that the employee can be put on gardening leave.)
Unreasonable scope (Score:3)
I suspect if this case were appealed that the judge would be over-turned because of the unreasonable scope of the ruling. I have never ever seen a court enforce a non-complete globally. That is just outrageous and it is punitive to the employee and might even be a violation of his Constitutional rights to pursue happiness through employment in his field. I seriously doubt he is irreplaceable. He might be hard to find a replacement but there is someone out there perfectly capable of doing the same exact job. Microsoft isn't going to eliminate the position just because this guy is leaving. They are clearly admitting that he is replaceable. How far down the organizational chart is this guy? He doesn't even manage a group of people does he? If he is such a threat to Microsoft that he might seriously damage their business by going to work for their competitor then clearly they see his skill set as extremely valuable and should pay him for the time they are making him sit out of the workforce in his field. The fact that he could sling burgers doesn't matter. The issue is the restriction of trade by Microsoft on the employee.
Positional salary is not enough to warrant barring him from his field of work. If a company is so threatened by a VP leaving that they give them a parachute/exit package to make sure they go to another field, then they can do the exact same thing for this guy.
I would love to see this case fought and over turned. The more cases a judge has over turned the worse the judge looks and the harder it becomes for the judge to stay on the bench. Ruling in such a harsh fashion in favor of the corporation is such crap. In my opinion she basically gave the employee a legal bitch slap. The US legal system and Constitution is all about protecting the minority and the little guy and this judge could use a good legal smack of an over-turned case to remind her of that. Microsoft may make the argument that every software company is their competitor, so none of their employees should be allowed to work for any software for 1-2 years.
That right there is complete crap, and is more of illegal monopolistic attitudes that Microsoft got smacked down for by the DOJ. Microsoft needed to have their corporate back broken in half by the DOJ as punishment, rather than the light tap on the wrist that they got. Microsoft did significant damage as well as long term damage to the computer industry and they should have had to pay dearly for it. Microsoft didn't become a monopoly by playing fair and having the best products. If you believe that you need to read some of the history of the computer industry. Microsoft isn't as bad as it was in the past, but they still show those attitudes and ideals most of the time. I would have broken the company up in to 3 groups, OS group, Application Group, and Hardware Group, with the highest rate/price they can charge other companies, being what they charge each other for products and services. If you don't put a limit like that in place they will just sell to each other ar dirt cheap rates and effectively be one company again.
Moderation ... (Score:5, Interesting)
... some rogue moderator has more or less moderated down all my posts from yesterday.
This sucks.
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How do they expect to stop him from getting a job somewhere the court has no jurisdiction, precisely?
Zombie-gram...
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It's probably a matter of where he is going to be living and where the new company is based (or if they have a presence in the usa) If he intends to stay living in the usa, and this place has a corp office there (if he's going to stay in the usa we'll assume they do) then they do have jurisdiction in this specific case.
I don't know if it would hold if he moved out of the usa before he was hired, if they have a corp presence in the usa.
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"What", what he said.
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They seem to be sentences in English, but I am not sure they mean anything at all!
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I agree with this gentleman.
I second your motion. All in favor?
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at least in Germany such clauses (called "nachvertragliches Wettbewerbsverbot") are legal.
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So you're main point of criticism is to go after Microsoft for behaving like every other business in a free market? Every business acts to protect its self interest. This means that they often take hypocritical stands and I can't think of many corporations that have not done this at some point or another. The merits of the free market can certainly be debated, though in my mind a better alternative does not exist (Churchill's dictum comes to mind: "Democracy is the worst form of government, except for a
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Depends on the state. I wouldn't recommend you try this in texas, for example, where they are generally found fully enforceable. You can starve for all Texas cares.
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A US court order can't control actions outside the US (in theory, of course). The judge has overstepped her authority.
Unfortunately, any law in country A which provided for harsh penalties for judges from country B who tried to make orders concerning happenings in country A would rest on the same faulty logic. The only real solution is for countries to pro-actively get a handle on their judges and stop them pulling crap like this.
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The only real solution is for countries to pro-actively get a handle on their judges and stop them pulling crap like this.
Except that this is our (US) policy (not that I'm agreeing with it). If our lawmakers want to effectively reach in to your country and modify your behavior, we'll do so by grabbing whomever we want when they set foot on US soil.
The solution would be a tit-for-tat situation. Violate a law of Obscuristan (even while you are sitting within US borders) and risk getting thrown into their prison should you step within the reach of their legal system. There are enough countries seriously pissed at the US's hubris
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Generally, the agreement has ended when you leave and is difficult to enforce. This case has gone way out there as 'anywhere in the world' implies that American law can be imposed on the rest of the world (something that the rest of the world is getting seriously pissed off with America trying to do). If he goes to another country and works he cannot be called to an American court to answer for it. When he returns said American court may not chose to understand that he was outside their jurisdiction... but