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Tina, Attorney
Category: California Employment Law
Satisfied Customers: 33167
Experience:  JD, 17 years experience & recognized by ABA for excellence in employment law.
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Situation: Working with a company to build out a new product.

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Situation: Working with a company to build out a new product. A key part of the company was negotiating a license to the core technology with a 3rd party. That negotiation fell through after almost 2 years and the 3rd party went and got a few million in funding and contacted me to develop this product. The original company is non-viable since, without the core intellectual property, she can't create a viable product. Further, she is so exposed to the 3rd parties technology after such a long courting process that I can't imagine she will be able to make a move without being sued for infringement.

There are 2 forces at play in my decision process.

1) My company has an unsigned work for hire agreement with the original company to do some software development work. Since that contract is unsigned I think we can walk from this.

2) I personally have a consulting engagement with her that I want to break. This agreement can be cancelled by either party with 15 days notice. The problem is a 1-year non-compete in the consulting contract. Is this non-compete enforceable in California? I only have a PDF so I may need to share that with you.

Hello and welcome.

My name is XXXXX XXXXX my goal is to provide you with excellent service today. Before I can give you an accurate answer to your question, please provide the following additional information:

Do you have access to trade secrets of the company who are working for now? What does the non-compete agreement purport to prevent you from doing? Are you an employee, independent contractor or partner with this company?

I look forward to assisting you as soon as I have received this information. Thank you.

Customer: replied 3 years ago.

I am an independent contractor.


I have access to trade secrets BUT those trade secrets were not yet owned by the company I am contracting with. The owner of those secrets (the 3rd party)

Attachment: 2013-10-02_194145_jarmstrong_agreement.pdf

has asked me to come work with him.


The non-compete prohibits me from working with a competitive company for the period of a year. I have attached my agreement in this message above (I think..).




I see. Thank you for providing this additional information, John.

The fact that the company does not own the trade secrets it is purporting to protect through the non-compete agreement would typically suggest that the company you are working for does not have a legitimate business interest to protect, making the non-compete agreement unenforceable.

NCA's are typically unenforceable under CA law but there is an exception for trade secrets. However, the fact the company does not own the trade secrets would normally prevent them from enforcing the agreement against you.

Here is a link which provides a summary of the law on this issue:

I hope this helps clarify the situation for you. My goal is to provide you with excellent service – if you feel you have received anything less, please reply back as I am happy to address follow-up questions. Kindly rate my service when I have answered your questions so I will be compensated for my time assisting you. Thank you!


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