Hurt Feelings And Non-Competes

For our Foodie Friday Fun this week we have a bit of legal drama. I’ve mentioned several times before in this space that I am a fan of Cook’s Illustrated and have learned a lot about food and cooking from the publication. It was run for its entire existence by Christopher Kimball whom you may know from TV. He left the company a while back and has started his own publication (and media platform) called Milk Street. A few days ago,  The Boston Globe reported that America’s Test Kitchen (the corporate parent) is suing Kimball. Why?

Cook's Illustrated

(Photo credit: Wikipedia)

A lawsuit (filed) Monday against Kimball in Suffolk Superior Court, accusing the firm’s most prominent former employee of disloyalty, saying he “literally and conceptually ripped off America’s Test Kitchen.” “He kept on saying he wasn’t going to compete,” said Jack Bishop, chief creative officer at America’s Test Kitchen. “I took him at his word. I think everyone on the board was taking him at his word.”

Hmm. As with most legal spats, there are two versions here that contain much of the truth but THE truth lies somewhere in between. For our purposes, what can we learn that’s applicable to your business?

First, what Kimball appears to have been doing was planning his next venture for some time while he was still employed at ATK. If you’re employed, are you never to think about your next job? Headhunters call people all the time and many startup founders were employees someplace else while they developed their new company’s business plan. It’s unrealistic to think that the folks who work for us don’t look around to see what else is out there. What we can do is to make the choice to leave extremely difficult by keeping them happy, motivated, as well-paid as they could be anyplace else, and continually growing in their jobs.

Second, there doesn’t seem to have been a non-compete in place. This isn’t legal advice but you should be aware that non-competes are generally not enforceable if they’re signed after someone begins working for you without some additional compensation to the employee for having signed. The point of a non-compete for the company is to protect trade secrets and to protect against unfair competition. “Trade secrets” really have to be  proprietary and should be kept secret. They’re not secrets just because the employer says they are. Is ATK doing testing in a way that no one else is? Nope. One look at Serious Eats will show you that.  Have they found a secret business model? Nope. On the other hand, Kimball is alleged to have used ATK’s mailing lists to help start his new venture. That is theft and way over the line. Before you demand someone sign a non-compete, be sure that you have something that’s protectable and have the employee sign the document BEFORE they start work. If you’re adding one retroactively, be sure you give the employee something in return.

Finally, the new magazine just came out and the suit says it  bears a striking resemblance to Cook’s Illustrated, right down to its 32-page size. I got my copy the other day and it’s similar but not the same. You can’t protect look and feel, and clearly, it’s original content (not plagiarized) so a good part of this seems to be hurt feelings. Our jobs as managers and businesspeople are to make feelings of that sort a rarity. Treat your co-workers at least as well as you’d treat a customer (and you know how I feel about that!).

I don’t know which side I’m on but I do know that the entire matter could probably have been avoided with better communication and a lot more transparency. I’m pretty sure that the legal fees each side will incur are a good chunk of what either might have given or received had they talked this through. Better idea, don’t you think?

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