Clark's Sales & Services, Inc. v. John D. Smith and Ferguson Enterprises, Inc. - 1/22/14

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Wednesday  January 22, 2014 
11:00 AM  EST

10:30 a.m. 49A02-1306-PL-552. Clark’s Sales & Service, Inc. (“Clark’s”) appeals the trial court’s order denying its motion for preliminary injunction as to a restrictive covenant it sought to enforce against former Clark’s employee, John D. Smith, and his new employer, Ferguson Enterprises Inc.  Smith worked for Clark’s for approximately fourteen years before leaving to work for Ferguson.  During his employment with Clark’s, Smith signed an employment agreement which included a noncompetition provision.  The trial court concluded that the noncompetition provision that Clark’s drafted is overly broad and unenforceable. Clark’s maintains that the noncompetition provision is reasonable and enforceable as written but, in the event we determine that it is not, Clark’s requests this Court to apply the blue pencil doctrine to make the provision reasonable and enforceable. If it is determined that the noncompetition provision in the employment agreement is (or can be made) reasonable and enforceable, Smith and Ferguson assert that Clark’s request for an injunction must still fail because Clark’s previously committed a material breach of the employment contract it now seeks to enforce.  Clark’s responds that a “survival of obligations” provision in the contract precludes Smith from raising the material breach defense.

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  1. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  2. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  3. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  4. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  5. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

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