Robert M. Sanford appeals from a Cobb County Superior Court order granting an injunction against him in favor of his former employer, RDA Consultants, Ltd. The trial court issued the injunction following its determination that Sanford had violated a restrictive covenant in his employment contract with RDA. After reviewing the record on appeal, this Court finds that portions of both the covenant- and the injunction are unenforceable under Georgia law, and we revеrse those portions of the trial court’s order.
RDA is a software development consulting services company that conducts business in five states, including Georgia, and the District of Columbia. RDA opened its Atlanta office in Mаrch 1998 and hired Sanford in May 1998. On May 27, 1998, Sanford signed an employment contract that contained the following provision:
As part of this agreement to accept employment, you agree that full rights to any and all work performed and products developed by you for fee or compensation during your tenure with the firm belong to RDA. Further, any information pertaining to clients such as their plans, products, and financial information should be considered proprietary information and should not be disclosed to any persons not employed by RDA. Employment is at will and in the case of employment termination, for any reason, at the decision of either pаrty, you agree for a period of one year from the date of termination not to accept employment with or provide services, competitive to RDA’s own, to any current RDA customers or customers RDA hаs worked with during the two years prior to employment termination and not to attempt to employ or assist any other person in employing or soliciting for employment any employee employed by RDA.
During his employmеnt with RDA, Sanford used RDA’s software product, ROOP, 1 and was given videos, written documents, and other supporting materials about the product. Sanford’s supervisor testified that RDA spent between $500,000 and $1,000,000 over approximately four years whilе developing ROOP.
On December 14, 1998, Sanford sent his supervisor a letter of resignation by electronic mail. Within weeks, Sanford started his own company and was consulting with one of RDA’s customers, UPS. Sanford also contacted RDA employees about leaving the company.
RDA notified Sanford that his actions were in violation of his employment agreement. When Sanford refused to discontinue his activities, RDA filed suit to enforce the agreement through аn injunction and for breach of contract. RDA also moved for a temporary restraining order against Sanford.
On April 1, 1999, the trial court conducted a hearing and, after considering additional evidence submitted by the pаrties, issued its order on May 26, 1999. The trial court made the following factual findings and legal conclusions: (1) the restrictive covenant in Sanford’s employment contract was reasonable, even absent a territorial restriction, citing
W. R. Grace & Co. v. Mouyal,
Based upon such findings, the trial court issued an injunction, “in accordance with the restrictive covenant,” prohibiting Sanford from the following for a period of one year from the date of his employment termination with RDA:
(1) performing services, submitting proposals to, and servicing the following customers of [RDA] with whom [Sanford] rendered services to in the Atlanta office, to wit: UPS, HBOC, RMC, Cox Interactive Media, AT&T, and Mercedes Benz Credit Corporation; (2) soliciting or attempting to employ any of [RDA’s] present employees; (3) using or disclosing any of [RDA’s] proprietary materials, including, but not limited to, ROOP; and (4) using improper means to interfere with business opportunities for Plaintiff.
Sanford appeals from the trial court’s order granting this injunction. Held:
1. In his first enumeration, Sanford claims that the trial court erred as a matter of law in restraining him frоm performing services, submitting proposals to, and servicing RDA’s customers. We agree, because the noncompetition covenant as written was unenforceable under Georgia law.
Because covenаnts against competition in employment agreements are in partial restraint of trade, they are upheld only when strictly limited, both in time and geographical effect, and when the restrictions are otherwise reasonable, considering the business interests of the employer needingprotection and the effect of the restrictions on the employee.
(Citation omitted.)
Wolff v. Protege Systems,
The evidence presented at the hearing showed that, at the time Sanford resigned, RDA had approximately forty-five customers in fivе states and the District of Columbia. The plain language of the agreement prohibited Sanford from working for
any
of its current customers for one year, as well as any customer served by RDA during the two years prior to Sanford’s resignation. Even though RDA has repeatedly asserted otherwise, this provision prohibited Sanford from seeking employment with these customers
regardless
of whether he served the customer during his employment with RDA. “[A] prohibition against doing business with
any
of an еmployer’s customers, whether or not a relationship existed between the customer and the former employee, is overbroad.” (Emphasis in origi
nal.)
W. R. Grace & Co. v. Mouyal,
supra at 467 (2), n. 2. See also
American Software v. Moore,
Further, at the time he signed the agreement, Sanford could not determine with any certainty the extent of the noncompetition provision. See
Fuller v. Kolb,
Finally, the noncompetition provision was overbroad and unenforceable as to the scope of employment, because it prohibited Sanford from obtaining employment with any RDA customer in any capaсity.
2
Nat. Settlement Assoc. &c. v. Creel,
Therefore, we reverse the portion of the trial court’s order granting an injunction based on the invalid noncompetition covenant. We will address Sanford’s concerns about the remaining covenants, however, as the covenants are not dependent upon this invalid noncom-petition clause.
Wright v. Power Indus. Consultants,
2. Sanford claims that the trial court erred in prohibiting him from soliciting or attempting to employ any of RDA’s present employees. Under the facts and circumstances of this case, we find this covenant to be reasonable in scope and duration. See
Wright v. Power Indus. Consultants,
3. Sanford contends that the trial court erred in enjoining him from using or disclosing any of RDA’s proprietary materials, including but not limited to ROOP. This injunction
(а) Pretermitting the issue of whether this provision is a valid nondisclosure agreement between the parties, the trial court properly enjoined Sanford from using or disclosing ROOP. The trial court found that RDA had proprietary interests in ROOP thаt required protection; that Sanford had access to RDA’s trade secrets, including ROOP, through his employment with RDA; and that Sanford had already utilized RDA’s proprietary products to compete with RDA for their customers. These findings are supported by the record.
Trade secrets are entitled to protection so long as competitors fail to duplicate them by legitimate, independent research. Even without an express restrictive covenant, one of the implied terms of a сontract of employment is that the employee will not disclose a trade secret learned during his employment, to a competitor of his former employer. It is not relevant whether or not a valid exprеss written contract or restrictive covenant was entered into.
(Citation omitted; emphasis supplied.)
Thomas v. Best Mfg. Co.,
(b) The injunction issued by the trial court, however, prohibited Sanford from “using or disclosing any of [RDA’s] proprietary materials, including, but not limited to, ROOP.” This provision lacks sufficient detail to fully apprise Sanford of which materials may not be used or disclosed and, therefore, fails to comply with OCGA § 9-11-65 (d).
3
See
Wolff v. Protege Systems,
4. (a) The portion of the injunction prohibiting Sanford from “using imрroper means to interfere with business opportunities for RDA” is also invalid under OCGA § 9-11-65 (d), as it fails to sufficiently describe the behavior prohibited by the term “improper means.”
(b) Sanford also claims that the effective dates of thе injunction are uncertain under OCGA § 9-11-65 (d), because he continued to work for RDA after he tendered his resignation. It is undisputed, however, that Sanford tendered his resignation on December 14, .1998, effective immediately. The injunction stated that it was effective for one year from the date of Sanford’s employment termination. By specifically referring to the event of Sanford’s employment termination, we find that the injunction describes the starting date in sufficient “reasonable detail” to comply with OCGA § 9-11-65 (d).
Judgment affirmed in part and reversed in part.
Notes
“ROOP” is an acronym for “RDA’s Object Oriented Process.’
RDA’s assertion that the scope of employment is, in fact, limited to “competitive” employment opportunities is without merit in that it ignores the plain language of the cоvenant, which uses the disjunctive word “or” to prohibit Sanford from accepting employment with or providing services to RDA customers. The adjective “competitive” clearly modifies only “services.” This Court also notes that the trial court’s injunction failed to limit the employment prohibitions therein to “competitive” services.
OCGA § 9-11-65 (d) reads as follows:
Every order granting an injunction and every restraining order shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action.