Stephen Acker's Comments on Ben's Restrictive Covenant Memo
The audio file's transcript is available on this page, underneath the audio player.
Duration: 3 minutes and 12 seconds
When I assign a memo, it is because I need to make an informed decision. I want a discussion that drives towards an answer. And I want a confident answer.
What I often find is that associates and summer students are so afraid they will be wrong that they hedge. They write, "on the one hand, the court might do this; on the other hand the court might do that" and somehow they don't quite get around assessing the likely direction. I have to pull them into my office and get them to tell me verbally what they actually think. They just do not want to commit on paper.
Ben's memo is refreshingly straightforward and practical. The first page lays out his prediction. His brief answer addresses the client's specific question head-on; Yes, Bradley should be able to leave his employment and start a new business without interference by the restrictive covenant.
After reading the first page and brief answer, I admit I flipped right to the conclusion.
I really liked the first paragraph. It succinctly lays out the key facts supporting the prediction so well that when I flipped back to the section where Ben applied the case law to Bradley's facts, I could see the logic straightaway.
I will say that I found the case discussion a little long. I know the Elsely case very well, so I flipped through that entire section, rather quickly. I only really paid attention to the section where Ben applied the case law to Bradley's facts.
Ben's fact summary was good. He anticipated questions I would have asked, like whether the restrictive covenant was defined somewhere in the document and whether the employment contract and business sales contract were separate documents.
Ben also included enough background to put Bradley's legal issues into a larger personal and business context. Ben said enough about Bradley's personal circumstances to give some sense of why Bradley is so driven to leave Tech World immediately, without dwelling on Bradley's personal life too much.
Frankly, with that $500,000 final installment payment on the line, I will be talking to Bradley about a strategy that will avoid rocking the boat until that money is settled. My instinct says Ben is wrong about starting negotiations before that final payment comes in. I don't expect Ben to have that level of judgment yet – it will come with experience, for sure. But that will all be part of a larger discussion with the client.