New Case on Noncompete Agreements 09/02/2011 03:52:21 pm by Dan Krohn

	In June of 2011, the Texas Supreme Court issued its opinion in Marsh USA Inc. v. Cook, the latest in a long line of cases dealing with noncompete agreements in the employment context. The enforceability of noncompete agreements against former employees has been a challenging issue in Texas for some decades with the pendulum swinging from one side to the other. The new opinion, having been signed by only a five justice majority, indicates that the pendulum may have swung but for how long no one knows. The test for an enforceable employee noncompete agreement has two parts: (1) the agreement not to compete must be “ancillary to or part of an otherwise enforceable agreement” and (2) the restrictions on the employee must be reasonable – not limiting the employee’s ability to seek new employment beyond that which is necessary. The wording which has challenged courts and attorneys is the requirement that noncompete provisions be "ancillary to or a part of an otherwise enforceable agreement." There has been particular confusion over what "ancillary to" means in this context and almost as much confusion as to how one identifies an "otherwise enforceable agreement." Now we have Marsh, which in my opinion confuses the issue further. If nothing else, the rather lengthy Marsh opinion evidences the merit of Justice Holmes famous comment that judicial opinions ought to be written while standing. The Marsh opinion, after considerable struggle with “ancillary to” in the context of an employer’s goodwill, clearly states that the Court at this time believes the reasonableness portion of the test to be the critical element. What does Marsh mean for employers? Some experts say that they would not attempt to rewrite existing agreements. But it is not advisable after Marsh to simply reuse an old noncompete agreement with new hires. In this writer’s opinion, after Marsh, noncompete agreements with employees ought to be customized for each employee to maximize the odds of their being upheld. The practice of just filling in the blanks of a standard form invites problems. Employers should keep in mind that there is no certainty in the employee noncompete context, and what works now might not be valid at some future date.

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The Trouble with Marijuana's Aroma 05/16/2011 12:05:59 pm by Dan Krohn

	On May 16, 2011 the U.S. Supreme Court ruled on a case involving a warrantless search. Apparently police smelled the rather distinctive aroma of marijuana emanating from an apartment. They knocked on the door asking that it be opened. It wasn't. Instead, the police testified, they heard sounds consistent with the destruction of evidence, so after warning that they would bust their way in if the door were not opened - they knocked it out of the way. Surprise - the police found evidence in plain sight and proceeded to arresting. Actually the legal arguments are rather interesting, but cutting to the chase: if the smell of marijuana is wafting out the cracks of your front door, you're likely to be arrested and it will likely be upheld. This writer believes our nation's approach to illegal drug use should be seriously examined from several points of view. But today the popular view is to punish those criminals who smoke pot. So pot smokers be aware, if the aroma floats outside, you've got a problem.

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Compassion and Economics 03/04/2011 03:14:15 pm by Dan Krohn

	We humans on this planet have yet to figure out that we need to get along with each other. We are far from having incorporated the knowledge that if all people are better off, then we are better off. Our species seems trapped in an us vs. them mentality. This writer sees no early end to that problem. But fear not, as the world economy is in the process of teaching us a lesson on the topic. The Middle East and Northern Africa supply much of the world's oil. Right now that region is in chaos, so oil prices are rising - rapidly. The Saudi government is doing what it can to stabilize the situation, but even it's ability is limited - and one must remember that one of the most repressive governments on the planet is the Saudi regime. What would happen if the regional chaos spread to that country? Unfortunately, that oil producing part of the world is still largely caught up in a rather primitive tribal us vs. them mind set. Though one religion, Islam, dominates the region - there are tremendous differences within the Muslim world, which are more than adequate to insure instability for years to come. On everyone's lips, at least in this town, is the rising price of gasoline. When oil prices rise, fuel prices rise and they do so without hesitation. Since some form of oil based fuel is involved in the manufacture and delivery of almost everything, rising fuel prices ultimately mean inflation. Aha! Our governments know how to deal with inflation. The central banks tighten money supplies, and the executive/legislative branches adopt a fiscal policy of reduced spending and higher taxes to slow things down. What a prescription! Just what the doctor ordered for the United States and much of the rest of the world where a long and stubborn recession is already pervasive. Unemployment remains high, and employers continue to cut back. Concerned conservative politicians are slashing spending in all sorts of ways such as reduced funding for education. (That's a good one; we can dumb our way to a booming economy.) To sum it up, we are already fighting a recession; and to the extent fuel shortages trigger inflation, our leaders will be tempted to take steps which will worsen the recession because that's all they know. It's not a pretty picture. Unfortunately fuel shortages are indeed likely. Much of the oil production in Northern Africa and the Middle East depends on foreign companies providing technology and foreign workers implementing those technologies for the local producers. Those people are no doubt feeling uncomfortable with the current rebellions in full swing, and to a large extent those individuals have left or are contemplating leaving the region. So the oil picture is likely to deteriorate further before a change for the better. One can foresee any number of even uglier scenarios unless there is real change. Historically sufficient hunger leads to battles between people paid and armed by the wealthy to protect their wealth on one side, and people starving, lacking hope, and striking out in desperation on the other. When compassion becomes universal, prosperity will follow in its wake.

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Better answer for drug users 03/03/2011 03:17:02 pm by Dan Krohn

	What saves money and improves society? According to a new "Economist" article, a new government program! This new intensive treatment for those convicted of drug use has offenders sent to special drug courts. Judges there keep close tabs on the cases and use reward and punishment to encourage rehabilitation and clean living. The program teaches them how to be productive members of society by helping them get job training, teaching them how to stay off the drugs, and testing them along the way. The program is reported to cost significantly less than sending offenders to prison and the repeat offense rate among participants is lower than with those serving the typical jail time for the same crime. Those who come out of the program are also more likely to be employed. These claims sound promising!

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Internet and Juries 03/03/2011 03:08:12 pm by Dan Krohn

	The traditional voir dire just got a little more interesting. Lawyers are taking advantage of the scads of public information on social networking sites to learn more about potential jurors. With access to the internet anywhere, research can be done right in the courtroom during the selection process. The practice, while technically legal, is not well publicized due to being generally frowned upon by judges so far. At least one case of Googling potential jurors has been contested. The initial ruling that it was unfair considering opposing counsel had not brought their laptops. That was overturned on appeals based on the idea that both sides had access to the internet and only one chose to make use of it. Just remember that the next time you go for jury duty, you might be selected based on your internet presence as well as your answers in court!

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