What Are my Rights As a Producer

[Josh]

When an employment contract has not been executed with valid non-competition clauses, I tend to get a sinking feeling. We can still work with the client to save his business. After all, the producer sold the business as an employee of the agency and the agency has serviced, marketed and administered the account, not the producer. But we've lost the contractual high ground that makes retention or pursuit of damages much easier.

Are you an attorney? How familiar are you with what a trade secret is and isn't? Here's what one law firm has to say on the subject:

" The Legislature did so by specifically including, "customer lists" and "business records" as examples of potential trade secrets protected"
Stealing Customer Lists, a Criminal Issue? - Crowe & Dunlevy

Employee or not, the notion that a person can walk into a business they've been working with/for as an agent, grab the paintings on the wall, the fax machine, and the coffee maker, then walk out with the argument "I had no contractual argument to not take them" is almost as legally farcical as the notion that you can just take a companies customer list.

As an employee or an independent contractor, legally it makes no difference; the burden would be on here to prove that it was hers free and clear. To go back to the office example, if she can prove it was her coffee maker and she was simply taking what was already hers, fair enough. As she explained it she isn't the agent of record on it, the agency is. That's the beginning and end of that; even a bad attorney could argue that successfully.

 

[DHK]

Makes you wonder how competent an agency is if they cannot manage their own internal business control risks.

 

[InsCommentary]

The author of this article is perhaps the country's foremost authority, as a consultant and expert witness, on agency customer "piracy." We're not talking about stealing a customer list, we're talking about contacting customers we have a relationship with to see if they will transfer their business. That isn't remotely comparable to stealing office equipment, not does it involve illegally taking intellectual property in the form of customer lists. According to the author. But, that's why I said to talk to an attorney or expert in this area.

 

[DHK]

If I'm a 1099 and work for myself, taking reduced compensation for office, equipment, and benefits... but contracted through a brokerage... ALL that business belongs to ME.

Why? Because I'm an independent contractor creating my own business - UNLESS a non-solicit agreement is in place.

Now, if I was in a brokerage firm, and I took OTHER ACCOUNT INFORMATION for which I was NOT the AOR/BOR... THAT would be theft.

 

[VolAgent]

So my question is, what happens when she joins a new agency and starts AORing over business and preparing to rewrite at renewal those that she can't and then suddenly the agency gets a cease and desist letter and is threatened with tortuous interference?

Maybe it is completely groundless, but it will still cost money to fight it.

InsCommentary, you have spoken with many agency owners over the years. How would most handle it? Fight it out or dump Dawn and try to extricate themselves from the situation?

Everyone acts like going to court as the defendant is free and you just have to fight for your rights. Please point me to the attorneys who do pro bono work for insurance agents and agencies.

 

[Josh]

The author of this article is perhaps the country's foremost authority, as a consultant and expert witness, on agency customer "piracy." We're not talking about stealing a customer list, we're talking about contacting customers we have a relationship with to see if they will transfer their business. That isn't remotely comparable to stealing office equipment, not does it involve illegally taking intellectual property in the form of customer lists. According to the author. But, that's why I said to talk to an attorney or expert in this area.

If that's the guy you went to church with for 20 years before you signed up with the agency, maybe. If that's a lead they gave you or that you generated during the time you work working with them, that's a byproduct of that work and could absolutely be considered a trade secret.

Regardless of what qualifications that author does or does not have, the law is incredibly clear and it much more becomes a question of facts.

It's very much like stealing office furniture except the only difference is it's an intangible property. Theft is theft is theft. Again, it's question of facts. Did the customer(s) in question have a relationship before the agent/agency relationship? Was it a lead provided by the agency? Did the agency provide compensation or guidance on how to generate the leads? Was the agency affiliation a reason why trust was established?

Here is another law firm, from Virginia, stating that customer lists are trade secrets:

Virginia courts have found the following types of information to be
trade secrets:
„ Customer lists, pricing information, marketing and sales
techniques and product information (MicroStrategy, Inc. v. Bus.
Objects, S.A., 331 F. Supp. 2d 396 (E.D. Va. 2004)). For more
information on trade secret protection of customer lists, see
Question 7: Customer Lists Can Be Protected As Trade Secrets

http://www.ebglaw.com/content/uploads/2014/06/47227_PLC-Trade-Secret-Laws-Virginia.pdf

The issue at hand is most likely misappropriation of trade secrets.

A long time ago I was warning people about robocalls and got heat for it. Imagine my utter lack of surprise at this: http://www.insurance-forums.net/for...t-mess-fcc-82-million-dollar-fine-t89658.html

If any agent wants to take "their" customers with them when they leave, odds are the agency isn't going to fight it over a few here and there, but I wouldn't risk it. If an agent was competent enough to build a book of business once, they can do it again; no sense in clinging to the past when you can be working on building a future.

 

[somarco]

Dawnlove, all this back and forth on what is and isn't legal, ethical, etc really doesn't matter if your employer decides to take legal action against you. Then it becomes a matter of who has deeper pockets and the law is secondary.

I doubt you will be able to take your/their clients without a legal battle, even if you are in the right. I still think the DOL might like to know about your arrangement.

A DOL audit is not a pretty thing. Most businesses fear that more than an IRS audit.

 

[InsCommentary]

"Regardless of what qualifications that author does or does not have, the law is incredibly clear and it much more becomes a question of facts. "

I'm aware of the author's qualifications but not yours. Are you an attorney or someone reading off a web site?

I'm aware of someone who literally stole a customer list for his employer's server and took it with him when he started his own competing company. What I'm talking about is not theft of intellectual property, it's simply soliciting people with whom you have a relationship:

"Of course if they 'steal' confidential information about your client from your files, you may have a cause of action, but not if they simply call the client and offer them services from their knowledge and memory of the client."

NON-COMPETE AND NON-PIRACY - The Pipeline - Agency Consulting Group, Inc.

VolAgent makes a good point if the departing individual is going to work for another agency. If their former agency has a nonpiracy agreement, many (probably most) agencies won't touch them. If that's the case, then the individual might file suit against the former employer on the basis that they are depriving them of a livelihood. But, if the non-piracy agreement is properly written, the former agency will probably prevail...the Tennessee Supreme Court ruled as much for a Memphis agency.

However, without a nonpiracy agreement, the former agency likely cannot do anything about the individual soliciting (not stealing customer lists or proprietary information) former customers. No doubt, even in the absence of a nonpiracy agreement, there are agencies that won't hire the individual. But in my area, producers move between agencies all the time if they get a better deal. Litigation usually isn't worth anyone's time.

 

[somarco]

Litigation usually isn't worth anyone's time.

Most definitely.

Still have a hole in my bank account from fighting a BS non-compete suit that was eventually dropped. Had no choice but to defend myself and it still cost me a fortune to prove they were wrong and I was right.

 

[InsCommentary]

Somarco, your experience reminds me of a two-panel cartoon. In the first panel, a down-on-his-luck guy is shaving in front of the bathroom mirror, thinking to himself, "I may not have much left in the world, but at least I can still look at myself in the mirror." The next panel is his wife yelling upstairs, "Honey, some men are here to repossess the mirror."