Legal Question in Business Law in Virginia

You may not feel like it right now, and it may be a bit troublesome and expensive, but you actually have a great deal of power in this situation, if exercised properly.

ASSUMING that you can truly prove that the data was confidential and is confidential now, you can sue not only the employee but also the new company to prevent them from using the confidential data.

Suing the employee alone may seem like a weak solution.

But seeking an injunction against the new company actually creates a huge pain in the neck for the new company. You could -- as the most optimistic, maximum, outside extreme -- recover from the new company ALL of their profits that might be traced to the use of the confidential data. I am NOT saying that is going to happen. THere would be a hundred steps between here and there. However, the mere possibility of this would make any reasonable company want to avoid the problem like the plague. THey would want to go to great extremes to createa so-called "Chinese Wall" to make sure the employee is not using any of your data in his new work, and that no one else in the company is accessing this data.

The headache is just too great for the new employer to take the chance. Now, there are plenty of nitwits and stubborn people in the world. Not everyone is reasonable or smart about such things. But in general, most of the time, that is the reaction.

To avoid the need for great expense in court, you should first put the new company on notice.

As a matter of general good manners and to keep lines of communication open, DON''T go ballistic or get hysterical. (I don't mind doing that when appropriate, but this is not the time.. yet). Just tel them that you have CONCERNS and want to come to an understanding with them.

THE PROBLEM IS that not everything you think is "confidential" actually is in the eyes of the law.

So you need to be prepared to show how and why the information is of the TYPE that can be protected under the law. You also need to show that it really is confidential. For example, you have to show that you take care and follow safeguards to keep the information confidential within your own company. They can poke holes in your claim to "confidential" if they can make it look like you are not treating the information as confidential yourself.

An example: I had a relative who left one company and went to another. The old company claimed that he was using their customer list. Normally, a customer list WOULD often be protectable as confidential (unless you post it on your website, etc., etc.)

In this case, however, my relative pulled out a PUBLISHED directory of the industry, and showed that the list he was calling was PUBLIC information published as a directory by a trade association, which anyone can purchase openly.

So be prepared to demonstrate that the information really is confidential and proprietary.