Dave’s Take

As someone who was once sued for $1 million in a ridiculous (from my point of view) non-compete suit, I fully understand the reasoning behind the somewhat paranoid behavior of issuing non-compete contracts. I understand them, but I don’t necessarily endorse them. On one hand, companies need to protect their investments in both products and personnel. On the other, slavery has been against the law with good reason since 1865 (which is how a lot of people view non-compete clauses in employment contracts). They argue that any restraint of employment is tantamount to indentured servitude. Regardless of who’s right, the number of firms using these legalized career binders is on the rise and with it, so is contract litigation.

The latest high profile case to hit the news is one involving a marketing executive from Starbucks who left for the sweeter pastures of Dunkin’ Donuts. In their suit, Starbucks alleges that former employee, Paul Twohig violated his 2004 non-compete clause by accepting a similar position with one of Starbucks’ biggest competitors. They further imply that as result of his new position, Mr. Twohig was directly or indirectly responsible for Dunkin’ Donuts increased competition with Starbucks through aggressive campaigns like the “Dunkin’ Beat Starbucks” taste-test campaign. (I guess they believe that prior to Mr. Twohigs’ arrival, no one at Dunkin’ thought to challenge the market dominance of Starbucks). Really?

As any contract lawyer will tell you, the successful enforcement of a non-compete clause depends directly upon the state in which it is filed. Starbucks is obviously aware of this reality and chose to file suit in Washington as opposed to California, where such suits have proven difficult at best to win. As I mentioned earlier, I was once sued by a previous employer in California, where thankfully, a brilliant judge dismissed it before it ever saw the light of day.

Before you may jump to the conclusion that I was a backstabbing ingrate, allow me to explain the circumstances of the suit. I held a position as Creative Director at a Los Angeles advertising/marketing agency in the 90’s. That agency specialized in direct response campaigns, moving millions of dollars in products ranging from Ginzu knives to sports and beauty merchandise via infomercials. I left their employ for a similar company in Northern California. Thirty days after my departure (which was done without any hard feelings) I was slapped with a million dollar non-compete lawsuit. At the time, my net worth was somewhere in the low four figures, so after the initial shock wore off, I laughed ‘till my sides hurt.

As the case developed, I learned the basis for the non-compete allegation was based upon my previous employer’s unreasonable belief that I used proprietary information gleaned from them for the benefit of my new company. This was confusing to me as I was unaware of any proprietary information given to me. During discovery, it was finally divulged that the info they had provided to me was how to write and produce effective television and radio campaigns. This was ludicrous, as I had been working in TV and radio for several years prior to my job with them.

Needless to say, after proving my past production experience to the court the lawsuit was thrown out. My writing and producing abilities were not company secrets. Still, it was a valuable lesson about signing any kind of a non-compete. A lawsuit started for $5,000 can end up costing the defendant $100,000 regardless of its merits. Thank goodness I was working for a firm that stood behind me and paid for my legal expenses. One can only hope Dunkin’ Donuts does the same for Mr. Twohig.

Television in the 21st century has become much more complicated and confusing than Philo T. Farnsworth ever imagined: digital versus analog; HD versus traditional resolution; LCD versus plasma; cable versus satellite, etc., etc., etc. After decades of offering only one significant improvement, (color versus black and white), today’s TV offerings are almost too much for the average Joe to handle. Just as my elderly next-door neighbor finally decided to go with a flat screen, James Cameron and his ilk have muddied the broadcast waters again with his latest marketing gimmick, 3-D TV.

Driven by the overwhelming success of Avatar, Cameron is now determined to increase his payday by licensing his proprietary 3-D technology to DirecTV, spurring a fast track launch slated for as early as June. Utilizing the buzz of the Consumer Electronics Show in Vegas, DirecTV giddily announced its intentions to bring funny colored glasses to living rooms everywhere. The satellite programmer not only publicly proclaimed its intention to broadcast in 3-D, but also disclosed its partnership with Panasonic to develop and release sets based upon its 3-D Viera hi-def platform.

Lest you think 3-D TV will suffer from lack of programming, it won’t. Already, several big name networks have jumped on the new bandwagon, including CBS, NBC, FOX Sports, ESPN, Discovery, MTV, TBS and HDNet. While sports programming is the obvious first choice for the new platform, insiders insist that one day in the near future the majority of network programming will be offered in a PPV 3-D format. Even 3-D Camcorders are ready to roll out at the eyebrow-raising price of $21,000. (But who can place a price on the next America’s Funniest Home Video’s 3-D crotch shot winners?)

All this leads me to wonder if we really need or want our idiot box content delivered in a way that will make us want to hurriedly duck under the couch to avoid a Jeter line drive to center; or to suffer from the massive anxiety a Jack Bauer water boarding session would deliver. As one of the few people left in the galaxy to have not seen Avatar, I am curious as to why 3-D television would be worth the investment. Added to the cost and confusion are the problems associated with having to wear cheesy spectacles for hours at a time. How can the coveted 18-34 demographic multitask on their laptops while squinting through colored lenses?

It will be a fascinating experiment to see how the 2010 MLB All-Star game does when it’s broadcast in 3-D on FOX this summer. God knows this useless spectacle could use some pizzazz, but I don’t know if 3-D is the answer.