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Appeal: Commercial court, without notice, idled worker

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One of the first appeals from an Indiana Commercial Court alleges the specialized docket touted as a speedier, more efficient means of resolving complex business disputes operated in secret to keep a glass-industry engineer out of a job in his profession for a year.

Ardagh Glass Inc. sued former senior mold engineer Craig Vickery, who claims he quit working at the company’s plants in Muncie and Winchester because he was passed over for a promotion that went to someone who he and a supervisor said was less qualified. Ardagh was granted a temporary restraining order blocking Vickery from going to work for a competitor on July 1 — one day after Ardagh filed its request, and allegedly without providing notice of the suit or without a prior hearing for Vickery — who since then has been prevented from reporting to a new job at rival glassmaker Owens-Illinois.

Vickery has asked the Indiana Court of Appeals to expedite his case, alleging on appeal that Marion Superior Judge Heather Welch’s grant of the restraining order was “blatantly wrong and unconstitutional.” Vickery, who is represented by Betz + Blevins, claims in the motion to expedite that he’s “quickly running out of resources to live,” having been deprived of a livelihood that paid $80,000 annually and supported his wife and two children.

Ardagh claims Vickery was subject to a noncompete agreement that barred him from working for competitors or sharing trade secrets. In his appeal, though, Vickery argues, “This is a case about secrets — all secrets kept from Craig Vickery. The new Commercial Court secretly enforced a Non-compete Agreement against Vickery” and issued an ex parte temporary restraining order to enforce the agreement before Vickery was given due process.   

“It was issued without meaningful notice and without a right to be heard, and there was no justification for the failure to give meaningful notice,” by the court or by Ardagh’s counsel, said Vickery’s attorney, Kevin Betz, alleging violations of Trial Rule 65.  

“It seems like this is a combination of an exuberance to serve the corporate community at the cost of individual rights, and with rules regarding jurisdiction that help that, and make it more onerous for individuals as well,” Betz said Thursday about commercial courts’ special jurisdiction rules.

Attorneys for Ardagh including Adam Arceneaux and Derek Molter of Ice Miller LLP did not respond to repeated messages seeking comment about the alleged rules violations and rights deprivation. Arceneaux said Ardagh would not comment on open litigation. They referred to Welch’s rulings in the case.

Welch’s temporary restraining order was converted to a 63-page preliminary injunction in January, blocking Vickery from working in his trade through at least June 30 of this year.

Welch ruled that Vickery, who’d worked for Ardagh’s predecessor, St. Gobain Containers Inc., since 2004, had signed a noncompete agreement that transferred to Ardagh when that company purchased SGCI in 2013. Ardagh, and competitors including Owens-Illinois, manufacture glass containers and bottles for customers including Anheuser-Busch, Diageo and Pepsi. Ardargh claims the noncompete agreement Vickery signed when he started working at SGCI prevented him from working for competitors for a year after his employment ended, and indefinitely prohibited the sharing of trade secrets and confidential information.

Vickery asserts on appeal that Welch’s restraining order and two other ex parte orders were issued within five hours of being filed, before he even was notified a case had been filed. Vickery also claims the court wrongly denied his motion to dismiss Ardagh’s claims, rejected without rationale his motion to dissolve the restraining order because of due process violations, and wrongly denied his motion for summary judgment. Of 33 substantive, contested matters decided by the Commercial Court, Vickery argues on appeal, he prevailed on just two.

Betz noted the commercial courts — a pilot project authorizing six specialized venues around the state — appear to be operating with rules that limit an individual’s ability to opt out once a temporary restraining order is granted. The courts then retain jurisdiction, he said. For Vickery, who lives in distant Randolph County, access to the court itself has been a problem, as has his inability to work in his profession, Betz said.

“Some of this may be part of this litigation,” Betz said about questions of venue and the commercial courts’ specialized rules. “Certainly, we are raising these issues about the commercial courts, and fundamentally raising issues about justice for an individual and an individual Hoosier family as opposed to a multinational corporation in the commercial court.”

But Betz said there are also questions about whether the noncompete is even enforceable, and whether Vickery had information that could be considered trade secrets or confidential. He noted the noncompete Vickery signed didn’t include a clause that granted enforcement power to successor companies.

“These are supposed to be agreements that are disfavored under the law and strictly construed,” against the party seeking to enforce noncompetes, Betz said. The Indiana Supreme Court and Court of Appeals have repeatedly rejected such agreements in recent years when their terms are overbroad. In Vickery’s case, the noncompete’s terms prevented him from working for any competing glass companies in the United States.

Betz shared an anecdote about Vickery’s first visit to the commercial court in Marion County. Betz said Vickery observed that it was a courtroom like any other in the City-County Building, yet the rules were different there.

“My client, Mr. Vickery said to me, ‘Why is there not a court for individuals as opposed to corporations?’” Betz said. “I said, ‘That’s a great question.’ I didn’t have an answer for that.”

The case before the Court of Appeals is Craig Vickery v. Ardagh Glass, Inc., 49A02-1702-PL-00330.
 

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  1. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

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  4. Employers should not have racially discriminating mind set. It has huge impact on the society what the big players do or don't do in the industry. Background check is conducted just to verify whether information provided by the prospective employee is correct or not. It doesn't have any direct combination with the rejection of the employees. If there is rejection, there should be something effective and full-proof things on the table that may keep the company or the people associated with it in jeopardy.

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