We’re sure that our appellate-court judges, like all judges, work hard and put much effort into their work. Yes. But sometimes you do read an opinion that seems to have been churned out for the sake of churning it out.
Ward was Taser’s marketing VP. Before resigning he started working on an invention, the sort of thing Taser sells to law enforcement; after resigning he started marketing it. Taser sued, among other things, for breach of fiduciary duty and breach of the “duty of loyalty.” Taser moved for summary judgment on them; the trial court granted it. How that’s Rule 54(b) when the other causes of action, based on the same facts, are misappropriation of trade secrets, tortious interference with contract, breach of contract, conversion, and unjust enrichment isn’t clear, nor is it clear that anybody paid any attention.
An employee may not compete with his employer. Ward argued that he didn’t actively compete with Taser until he left it. Before then, he was merely preparing to do so – developing a business plan, hiring attorneys, researching patents, and doing preliminary investigation of another invention that turned out to have been patented already so Ward had to start developing a slightly different one. The Court of Appeals agreed. These, the court says, are “qualitatively different” from competition. How so? Your guess is as good as ours. Since the opinion doesn’t attempt to define “competition,” it’s hard to figure that one out. But the court says there was a question of fact about the extent to which Ward had been working, pre-resignation, with the company that later manufactured his product. That, it seems, is qualitatively the same as competition.
Taser argued that Ward had emailed his lawyers on company time. But the times of the emails weren’t in the record. Well, actually, they were but the document was a summary of a log sheet and the judges of the appellate court “decline . . . to consider it.” Why? They don’t say. Did the trial court consider it? They don’t say. If so, why was that wrong? They don’t say.
Taser argued that Ward had deprived it of a business opportunity by selling something it would have – and later did – develop. The court says that business opportunity means a “concrete opportunity to purchase goods, services, or property, or to enter into some contract or other business transaction” and that, besides, Taser did eventually sell a similar product, which “belies its argument.” This must all be original stuff, since no authority is cited.
There’s more of the same. The opinion is fact-heavy and law-light. Its organization apparently follows that of the briefs. That can work when the briefs are well done but not when they’re mediocre. We haven’t read them but we have to hope, for the sake of those hard-working judges, that they’re at least part of the excuse.
The opinion does in passing make one interesting point that we mentioned a few weeks ago: summary judgment can be granted for either side.