A recent opinion issued by the federal Southern District of Texas sheds a little light on the question of how definite a promise to provide confidential information must be for a noncompete agreement to be enforceable. In Teel v. Hospital Partners of America Inc., No. H-06-3991, 2008 WL 346377 (S.D. Tex. Feb. 6, 2008), the court, quoting the Light case, noted that an "employer’s promise to provide an employee with confidential or proprietary information and an employee’s reciprocal promise not to disclose such confidential information `would meet the requirement that the covenant be designed to enforce the employee’s consideration provided in the agreement.’"
The agreement in Teel stated that the employee’s employment "will involve access to and work with" confidential information. The court, without discussion of whether this language was a sufficiently definite promise to provide confidential information, simply confirmed that the employee did in fact receive confidential information and that the restrictions imposed upon the employee were reasonable.
As noted elsewhere on this blog, several Texas cases discuss how definite the employer’s promise to provide confidential information must be for the employee’s non-compete promises to be enforceable. Although the Texas Supreme Court in Sheshunoff rejected appellate decisions requiring that confidential information be transferred simultaneously with the signing of a non-compete agreement, it did not explicitly do away with the requirement that the employer actually promise to give the information to the employee.
The question in some cases becomes, "What counts as a promise?" Put another way, "How definite must the promise to provide confidential information be?" In some cases, the employee’s “acknowledgment” that he will receive confidential information gets characterized as an "implied" promise by the employer to convey the information. In the Teel case, the statement that the employee’s work "will involve access to and work with" confidential information was evidently deemed to be a promise–either explicit or implied–that the employer would provide such information to the employee.