Corporate Governance in USA and Japan

Found this great website, and will try to use in my paper on Employees and Corporate Governance.

http://www.financialarmageddon.com/2010/10/the-liars-and-thieves-are-moving-ahead-in-this-country.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+financialarmageddon+%28Financial+Armageddon%29

Also quite excellent:

http://www.economicpopulist.org/content/wheres-waldo-graphs-unemployed-and-not-counted

Employment law

On Sept. 12, 2001, there were no commercial flights in the United States. It was uncertain when airlines would be permitted to start flying again—or how many customers would be on them. Airlines faced not only the tragedy of 9/11 but the fact that economy was entering a recession. So almost immediately, all the U.S. airlines, save one, did what so many U.S. corporations are particularly skilled at doing: they began announcing tens of thousands of layoffs. Today the one airline that didn't cut staff, Southwest, still has never had an involuntary layoff in its almost 40-year history. It's now the largest domestic U.S. airline and has a market capitalization bigger than all its domestic competitors combined. As its former head of human resources once told me: "If people are your most important assets, why would you get rid of them?"

http://www.newsweek.com/2010/02/04/lay-off-the-layoffs.html

Kyoto

Just got back to Tokyo from Kyoto. The bus ride to Kyoto was quite long.  I have to say I didn't really sleep at all. It started off auspicious enough.  I was with Yumi, and we were waiting in the rain here in Tokyo, near Tokyo Station.

During the bus ride I thought it might be tricky to fall asleep so I popped what must have been like 2 Valium.  It didn't do much good. I got to Kyoto super tired but in good spirits.

We had to wait a bit until the tourist office open so that we could see about a hotel room.  So we waited in the cafe and had some breakfast.

Later we went to the tourist office, there was a great deal of bickering.  I jokingly feigned worry about the hotel situation, which didn't go over well despite insisting that I wasn't worried since we could get a room in Osaka.

The Golden Temple was a small let down.  It was nice but rather small and chalk full of tourists. 

All in all it was great to spend more time in Kyoto.  I spent yesterday and much of today in Osaka which was also nice.  I especially enjoyed the Sauna World, which had excellent baths.

Bad Lieutenant Port of Call New Orleans

Today I was thinking about what are some great films that I've seen recently.  I saw recently the film called Bad Lieutenant Port of Call New Orleans. The film was both absurd, sick, funny, twisted, you name it.

It explained why he did bad things in the first place to a certain extent, and also showed him to be in some respects a sympathetic character.  I thought it did an excellent job in that respect.  It also narrowly confined the subject matter to his psychological state, and the relations between him, his wife, father, and other policemen.  It also had a interesting twist.  You expected things to come crashing down on him but instead there was a kind of happy ending, although even that was spoiled, yes he did get better in some ways, but in the end he is back were he started. 

Literally the film also returns to beginning since he meets the guy who he injured himself trying to save, the guy in turn takes him to an aquarium away from a mountain of cocain.

The physical explanation for his psychological condition is also great, his injury helps explain his descent into madness, drug use, and bad behavior.  Morally it doesn't take a side on whether he is a good or bad person, although he saves the criminal from being shot near the end, but then he is back to shaking down party goers.

It's quite rare that a film doesn't take a moral stance, and yet is not celebrating some pathology.  The Saw movies seem to be the latter.  I would say that film Crash is similar in that respect for developing a problem, a way of looking at things.

It is always much more interesting to draw ones own moral conclusions when watching a film rather than leave it to the film maker to explain everything.  The film Inception was extremely quite shallow in this respect.  It didn't really trust the viewer to make up their own mind.

If you compare it to Cube, which also had a kind of universe with multiple levels, there was at least real dialogue.  The characters talked as if they were all trapped in a elevator, but the world was fantastical, yet theoretically not possible.

By contrast, Inception had to explain each element.  The characters were dream builders, part of a secret society of people able to go into the dream world, professional globe trotting specialists.  They were basically similar to highly paid multinational employees, flying around the world working for huge business tycoons.

They were working for a client, the main character was all business, get the target to think a certain thing.  But, who cares, the only element that made you care slightly was that he was framed for murder.  So you had this element of  The Fugitive.

Personally I had no reason to care about this character, other than that he was a famous person.  Contrast this with Catch Me If You Can, or The Titanic.  Both effectively explained the characters motivations.  One a kid running away from his father, another a young hobo trying his luck.

Canada for sale

Every now and again I read an article that confirms to me that any part of Canada can be sold for any price. Case in point:



I mean how disgusting is it that the biggest Canadian mining companies are all now owned by foreigners.

Here is a quote from the article in the FT.

A Toronto-based mining banker said the conservative government’s “blindly free-market” attitude to takeovers was seldom matched in the home country of a bidding company. “If Barrick became a $300bn corporation, could it take over Vale?” the banker asked. He was referring to Vale, the Brazilian iron ore champion and Barrick Gold, the Canadian gold miner.

When I read this I feel like vomiting. But, such is the way of business in Canada these days, forget about National champions. The sad thing is that you know it will not be reciprocal. As this banker aptly points out, Brazil, China, India, etc... will not allow us to take over any of their huge companies.

A very interesting evening

I managed to find a really interesting part of Tokyo today. I went to a station called Shimo-kitazawa.  It has lots of good 2nd hand clothing shops, although the prices at a lot of them were a bit high.  Interestingly enough the first one I went into had really good prices.  I got a couple of t-shirts and a jacket, but I could easily have bought more, the prices of most things was 5 or 10 $.  Not exactly that cheap, but cheap considering the quality.

I also met up with my friend at the gym while I was doing a shoulder workout.  I saw his new Kindle E-Reader.  I was somewhat impressed with the readability of it.  I did think that the size was a little small, but the price is pretty amazing.

I was thinking about what to do for my papers in Corporate Law, and also thinking about setting up a law office in Vietnam or China if the position at the College in Montreal does not come to fruition.

There are so many excellent things to do with the kinds of a qualifications I have, the future is really promising right now.

Tokyo has been surprisingly hot, today was close to 30 degrees, although it was not that humid which was quite good.

I should be drinking more fluids during the day.  I actually ran into this women who was from Osaka, she found Tokyo to be a bit overwhelming.   

David Lynch Cafe :)

One part of the cafe

This was the David Lynch Cafe.  I saw it last year or in the winter, and this time I managed to find it again.  The first time I just remarked at how cool it was, but this time I actually got a coffee, and it was quite delicious.

Here is a quote from Lynch, "Sex is a doorway to something so powerful and mystical, but movies usually depict it in a completely flat way."

The man himself, so so cool.  We talked about movies, and art.  I showed her my family pictures, and she showed me her paintings.  It was a very fun and relaxing time.

My Russian friend enjoying her Coffee
and me posing for a cool picture as usual.

I don't actually think it is called the David Lynch cafe, but it is for me at least.

I found the aesthetic of the place to be reminiscent of his film Eraserhead or Moholand Drive.  It had a kind of Western kitchey feel, while at the same time having antique style furnishings.  If I owned a cafe it would be hard to top this in terms of style.

It almost felt like an antique shop, mostly because of the hunks of old looking metal hung about the place, what is apparent about these pieces is that they are not the kind of things you normally see in those trendy shops, in other words not the typical things like Green lamp with gold trimmings, or the telephone with the brass and varnished wood.

Kamakura

Cool Baker

I went into this awesome bakery while I was in Kamakura.  This lady spoke perfect english and told me all about growing up in the Bay Area of California.
I told her about how much I liked David Lynch.  I have no idea how we got on that subject.  Oh wait, now I recall.  I was telling her that I was in Montreal this past week, and had a chance to catch some outdoor screenings, and that I saw both Blue Velvet and the Shining.


Blue Velvet was awesome because everything that Lynch does is great.  What I especially like about his films is how he captures the inescapable way that real life is so random.  He isn't trying to give you the usual story.  For most films I find that I go on autopilot because you feel like you have the basic concept  down. This guy is the tough one, that guy is the smart one, this girl is the nerd, etc... It is the rare film that gives you complex human emotion. 

The bread in the store was all organic and natural,  I nibbled on a raisin role on my way home and thought it was quite delicious.

Fitness, learning, variety

I read recently in the NYT that when you want to remember some piece of information well, it helps to learn it in the context of an activity, and a mess of other information, and not simply learn it in isolation. Similarly it helps to change locations, and circumstances when you want to learn something. So for example, if you go study at a cafe, go chat about an issue, read about it on the train, etc... you are actually learning better than if you simply sat in one place and tried to do the same thing for hrs. It is universally known that taking breaks and going for walks is also a good way to remember things.

What is remarkable is how this same principle is operating in a multiplicity of contexts. When it comes to weight training and developing your body it is also true that variety is the spice of life. If you do the same weight activities again and again, in the same way your body will adjust and you will simply be stalling any new progression. But, if you simply add variation every time, and once in awhile completely change you workout plan you force your body to make subtle adjustments. You start to be in a position where your body has to keep trying to keep striving to do better.

It is also true that in order to progress in anything you really need to mark your progress and record the amounts you are doing and what not. It is impossible to lift more, or even add variety if you simply go into the gym each time without knowing your training program.

I really hope things in the world start to go better in terms of the economy, but also politically. I'm kinda of scared about what is happening in the USA right now with the Tea Party movement. They seem to be angry that's for sure, but their anger is directed at the federal government when in reality they should be angry at the banks, and people who are really running society.

Canada seems to be becoming more and more part of the USA. I see all kinds of things now. For example, politically the Conservatives are now very similar to the Republicans. In addition, the US is starting to list Canadian cities and provinces on all kinds of sources, News, websites, you name it. I don't know how I feel about this. I have the feeling that it is purely functional and that there is not much of a perception about how we are different or that sort of thing.

Inception

I saw the film Inception the other day. In many ways it is typical of the films that are coming out of Hollywood these days. The film starts with the main character played by Lionardo Dicaprio in a dream, the dream of his target, a wealthy Japanese businessman, played by Ken Wantabe. The Dicaprio character is in the dream to extract some secret information that is being sought by his employer, some company. In the dream there is another dream, and the Wantabe character is smart enough to figure out that the 2nd dream is not real life, and that he is still dreaming. They fail to extract the information, and therefore must run away. After waking they are about to leave Japan, when Mr. Wantabe intercepts them and lets them know that the whole exercise has been a test, and that he wishes to hire them to put an idea into the mind of his competitor, a Robert Fisher.

So one part of the story is a battle between two business tycoons, one wants the other one to break up a business empire. The second part is that the Dicaprio character is being haunted by the guilt of having been responsible for the suicide of his wife, who is now following him in the dream world.

Added to this is the idea that you need someone to construct the dream, and all the characters can participate in the same dream, and interact with each other. Furthermore, within the dreamworld the dreamer can produce armies to attack any interloper who is in his dream. So when the crack team led by Dicaprio enter the dream of the Tycoon Fischer, they are attacked by his mind which has been prepped to deal intruders.

Needless to say you have to take a lot of this stuff on face value. Why are ideas hidden in dreams, and not simply memory. How the hell can multiple people participate in the same dream, which remains mostly under the control of the dreamer, or a select person.

Unfortunately the movie devolves into a simple shoot em up action film, the various philosophical or theoretical issues are pushed aside. You are left with a whole lot of questions and very few answers.

The film doesn't really lead you to disappointment since the pacing implies a thoughtless and simple story line. It reminds me a lot of his previous film "The Prestige", or even "The Dark Knight". Needless to say you are left with a kind of empty feeling, which is surprising considering the potential.

I like science fiction, but this film falls far short of adequacy. A slightly entertaining action film is the best that can be said, with some cool visual effects, but nothing you haven't seen before. The first Matrix was much better and more profound.


On a personal note I am back in Tokyo. I started my first class on friday. It looks to be a very good class with lots of interesting discussions and material. I look forward to my writing assignments. The professor is really good also.

Jet-lag insomnia

I'm back at my apt. and having a really hard time falling asleep. Feels like the usual feeling I have when I come from North America to Asia. But, this feeling is more pronounced. I also have a guest staying over at my apt.

I think the best think I could have done would not have slept while I was on the plane, or else done some exercise before I when to sleep like going for a jog, although that doesn't always work. Maybe staying up all night in Montreal would have been good. Anyhow I have no idea about it right now, but it sure feels frustrating.

I think I'm also keeping my guest up because it is such a small place, and that is not that great since, I don't want my insomnia to impact on anyone else.

I really miss the guys at the gym, it will be tough to change gyms and no longer see them anymore. I wonder if staying in Japan would be a good idea for the long term, some people seem to really love it, although others have expressed reservations about having done it.

I guess like most things in life it depends on who you ask, and when you ask them. For example, one of my friends is going to be heading back to Canada to work as a lawyer, and he spent a number of years here post law school just teaching english, and also working in legal translation.

That's the thing, you can build decent connections and that kind of thing doing anything, but I think the key point is to stay in one place for awhile.

Up in the Air

I saw the film "Up in the Air" the night before I left for Japan. The film stared George Cloney as a specialist whose principle employment duties involve flying from city to city to fire employees of other companies. Scared bosses contract the termination duties out to the company he works for. He is a life long bachelor who has no interest in settling down. He meets up with his female opposite, who is also flying around the country, although it isn't clear what she does. She is his romantic counterpart in the film. He is further joined by this young graduate who proposes to his boss that they shut down the traveling aspect of their job and simply fire employees via webcam. The George Cloney character is really upset by this development since he enjoys the perks of traveling first class and accumulating frequent flier miles.

The film was a fairly straight forward tale of the unavailable emotionally isolated bachelor finally coming to want to stay in one place and build a relationship. It works on the level of taping into the cultural phenomenom of the life long bachelor, and Cloney is well cast since his actual life mirrors that of his character. The film traces the familiar path of the tough guy who finally starts to care.

What I found most disipointing about the film was the utter lack of substance. The main premiss was that a whole heap of people were being fired, the characters don't seem to reflect much on their role in the whole process, and also don't seem to have any concept of societial implications, they are focused solely on thier personal lives, and on the difficulties of the job itself.

But, the issue is not so much the characters since they are merely tools by which the director is telling us a story.

Granted I did not watch the ending of the film, so possibly he also finally starts to care about what he is doing.

All in all I found the film very slow paced, and not that interesting. How many times do I need to see George swipe a card at an airline terminal. And the relationship with his family seems trite.


I went out last night with my friend Dan, we went to a couple of bars on St. Laurent Street. The first one had more wierd hipsters. Although I did meet an interesting girl from Bagdad, who had a lot to say about the situation there.

Later on we went to this real fun bar with a mechanical bull. I got to ride it for about 20 seconds before I went flying. It was fun, but, I felt like there should have been more rope to grasp.

The people there were really great. Lots of cute french canadian girls, and lots of guys plainly dressed. Almost everyone looked friendly and open to having a good time, a much more amiable crowd than the previous bar. I can't for the life of me remember the names of the bars at the moment.

The flight is supposed to be another 14 hrs untill I reach Tokyo. I hope the in flight entertainment is good, and that the food is also delicious. I neglected to inform them 24hrs in advance that I wanted the vegitarian meal, so I'm stuck with whatever they give to everyone else. But, on the upside there will be lots of delicious Japanese snacks on the plane.

As I was getting off the plane I got to see the local US TV, and it was disturbing to say the least. No wonder the Daily Show has so much to make fun of. The Anchor-women was taking forever to question this wildlife guy about sharks in Cheaspeke Bay. Granted that is unusual, but given the global warming of the planet not that surprising. I could have sworn that she never mentioned global warming. I did get the impression that she was trying to milk the story as long as possible, and drag it out. I couldn't watch that kind of news, I would simply go crazy. I don't know who they are pitching it to, but the intelligence level is most definetely very low. Although even the BBC is getting more and more like that. I guess I think that we are graudually being made more and more braindead.

Interesting day

I saw my Auntie Blima today. We went for Vietnamese food. It was quite good and I enjoyed talking with her. She talked to me about the usual things, how much she admires me, and thinks I will be successful.

We also talked about the family. She talked about me getting married eventually and even suggested that she has the perfect girl in mind.

She gave me a watch much to my protestation. I saw her wearing a man's watch and asked if she had any others lying about. She didn't but said I should take that one. I guess it was one of those, my that watch looks nice, and then why don't you have it.

She told me a story which I found rather disturbing to say the least. It was 1945 or 46 in Poland and the Poles were throwing Jewish children from moving trains. Needless to say I was shocked. She also added that a priest saw the look on her childish face at the time and said "come here and sit down, or something like that".

She also mentioned Pope John Paul and how he acted to help jewish people while he was a young priest. She noted that she gets along well with Polish old ladies and that many of the Jewish old people she knows don't really appreciate that.

She also mentioned that she had a nanny as a young kid, so there was a kind of wealth at the time for her family. As usual she mentioned a kind of dislike for the woman my grandfather married before he passed away.

All in all though I have to say I'm impressed with how active she is for a women her age. She is 90 years old and she is still reading a learning about the world, going on trips, you name it.

Layoffs and humor

The Onion is a great source of satire, although personally I think they could be a bit more hard hitting. For example, I read their article on Martin Scorsese and Apple movie software. I would have thought they would hammer him about the utter lack of editing in his films to date.





But, if there was a dig at the fact that he regularly makes his movies 3hrs plus long, I didn't see it, but maybe the level of abstraction was really high.

I did appreciate the article they had on Boeing laying off the only guy who knows how to keep wings on planes.




It seems painfully obvious that the modern US Corporate approach to firing as many people as you can simply doesn't translate into better products or services. I often wondered why Japan which seemingly crushes any independent approach, or distinct thinking seems to come up with far more gadgets. The same is true of Germany.

I think it is rather simple, with the increased job security and cooperation between the employees and employer you have the makings of stability and therefore better products.

It is simply mind boggeling how many hrs are lost to workers changing jobs, or being fired.

Even the Economist is getting in on the act, although you don't really get a diagnostic about why there are such problems in the first place.

Changes in Montreal

The weather is really fantastic today. I've had a great time thus far meeting friends and family in Montreal. The weather has been nothing short of fantastic. It is really an amazing time in Canada.

First, Montreal is really a beautiful and fun city. The downtown core is quite green and rural compared with Tokyo, a NY style metropolis. On the street where I am staying there are numerous green trees lining the street. Nearby is the famous Mount Royal Park, designed by the same man who brought us Central Park in NYC.

This area has undergone a tremendous revivial. I recall when I was young the area was dilapidated. The mall "La Cite" was run down, and home to a mere handful of merchants. There were vacant lots all down St. Famille St. The lots at the bottom of Mt. Royal were unused.

On St. Laurent small retailers predominated, but there was an increase in Clubs, and drinking establishments. I think right now there has been a trend the other way. Some of the bars have closed. However, what has taken their place is not so much the shops that used to exist, but rather cafe's and specialty food stores. There has been an increase in the number of hairdressers, and soap retailers.

This is most definetely the trendy place for McGill students to live, which is esentially nothing new, there are also the urban professionals.

The mood here in Canada is definetely much brighter than I had anticipated.

It was so much fun to see my neices and nephews yesterday. Sabina is now a curious and talkative six year old, who is really preptually a curious active and friendly child. I am really impressed with her level of confidence and creativity. For example, I urged her to go ask the neighbor if she could use their pool. She didn't hesitate, she simply went downstairs and asked them. That level of confidence and daring with serve her well in the future.

Do you prefer to interact with really small children, or children that can speak? For me at least I prefer children that are at least able to talk. I find babies to by somewhat boring. I mean I know that they are curious about the world, and making different faces, and learning, but they cannot speak. It is the ability to communicate in language that I think makes children especially interesting. When a child can speak you have a combination of the child's unformed mind, capable of all kinds of reasoning, with the language of adults. The child can take the language that we have, and use it in creative ways. They can express thoughts that are suprisingly mature, or immature.

Children are lots of fun to hang out with. I think when I was teaching ESL in Korea I developed an appreciation for how interesting they are. They are especially non-judgmental, playful. Sometimes I feel sorry for adults. I think we are missing that creativity that children have, and we would be much better off if we embraced our inner child. That sounds so new age. But, I think that the New Age people were onto something in that respect.

I always remember reading about a famous physicist who said that he prefered children to work with than physics graduate students. I'm not sure exactly the reason he said this. It dosen't seem like children would be capable of understanding physics at all, and they would likely become bored with complex mathematical equations. I think he was simply expressing frustration with the fixed notions that adults often have when they approach complex problems. Advanced science especially seems to require the ability to jettison outmodded ideas in favor of one that is more effective. You can't do that if you reflexively cling to an idea.

I always try to remind myself that notions should be provisional, but it is precisely because it is so inherent to human development that you cling to your personal idea regardless of reality showing you that idea is false.

So really you get back to a kind of Zen bhudist teaching, or something from empricism, or existentialism. Just let yourself experience reality, and learn from the information that you are receiving from the world.

You can't help but learn a great deal from simply listening to things, or seeing them, touching, ect...

Failing to see something, or disregarding what you see in front of you in favor of some idea that is in your mind is kind of like wearing some kind of glasses that are rose tinted. Everything that you see will have a rose color, and you don't even realize that you are wearing rose colored glasses. If someone asks you to take off those glasses you think that they are asking something impossible.

Once you realize that you are wearing glasses and you can change them you start to become more free to see things in a different light. You can then gain a deeper understanding of phenomena. I won't say more accurate since that implies that your new understanding is somehow more real, but that is simply not the case.

Back in Montreal

I just arrived back in Montreal after having spent close to 1 year abroad. I was in Tokyo, Japan for most of the time and also Vietnam for about 1 month. It feels really great.
I just spent the morning going with my mom to the flea market at a local church, and also walking on St. Laurent Street.

The church was filled with old German Lutherin's and lots of antique clothes. I found a nice leather case for papers and resumes. I also tried on a really sweet blazer.



They had a street sale all weekend long. If it isn't just me it sure seems like there are less people there than usual. Although to be fair usually at the end of August there are way less people than during the middle of the summer.

I read an interesting article in the NYT about language and the way it structures reality.

http://www.nytimes.com/2010/08/29/magazine/29language-t.html?src=me&ref=general

The weather is really perfect here, it's both breezy and sunny. A welcome change from Tokyo where it was constantly humid.


I had a really great talk about career options and opportunities with my mom.

Kyoto

I made my way to Kyoto this morning. I rented a bicycle and broke the fender. Tried to put it back in place and it ended up sticking out and part of it cracked off which I threw away. I then I went into the temple. When I came out it was straightened out, and when I took the bike back to the rental place they were cool about it.

I'm at the hostel now and its lots of fun. People from Europe and also the US.

Going to OsAka

Really excited. I'm on my way to Osaka. I have my sweet Cam, and so I expect to get a lot of great photos. I'm especially interested to see the bar and shopping area and get a better feel for the local people. Ive heard that they are different from people in Tokyo. Most Japanese local firms have their headquarters there. Tokyo is the big international city.

Getting to. Another part of Japan is really amazing. I'd love to see Okinawa and Hokaido if at all possible, but we shall see.

I'm super curious to see what it is like there.

I Will try to get some Z's. Just chill. Incidentally this is an ovrrnighf bus.

My draft of paper, Non-competes Canada/USA

1. Introduction: is allowing non-competes is good for employees, employers, and society?
Most employees in the US are indefinite term employees whose status of employment is at-will, and most states allow non-competes. The presumption is that employers and employees can freely negotiate contractual terms. However, employees are usually not on an equal footing with their employer, and are powerless to reject the insertion of a non-competition clause into the employment contract. High-level employees have more bargaining power, but even they find it extremely difficult to reject non-competition clauses. Since employee/owners who sell their business bargain equally with their employer it is unsurprising that they are almost always likely to be held accountable for violating a non-compete agreement. In Canada, indefinite term employees can only be fired for cause, and there are mandatory notice periods or pay in lieu thereof. Upon wrongful termination the notice period increases significantly. The amount of notice varies with the length of employment, difficulty in finding new employment, and the status of the employee. With these increased protections it is possible to justify the non-competes as a quid pro quo for the protections given to employees. In a similar manner the prohibition on non-competes in California can be taken as fair given the at-will status of employees. It doesn’t seem at all fair that employees should live both with their at-will status, and with post-employment restraints on competition.
Do employers need non-competes? Given the amount of money that it typically takes to train an employee, and the high value of certain proprietary information it certainly seems that non-competes are required to protect the interests of the employer. Some have suggested that a non-disclosure agreement is sufficient to protect the interests of employers, however, such an agreement would be too difficult to monitor. A non-compete is perhaps the best way an employer can protect his business from unfair competition. It could be argued that if non-competition clauses were not enforced than it is possible that employers would refuse to train employees adequately for fear of aiding or creating a competitor .
Are non-competition agreements good for the economy? It has been argued that one of the reasons Silicon Valley is so successful is because highly sophisticated employees can easily quit their job at any time and start a new company competing against their former employer. A recent Harvard business school study attempted to isolate the effect non-competition agreements have on the mobility of highly skilled employees. They focused on skilled Michigan inventors, and further isolated those who obtained a majority their patents from a single area of expertise rather than those who had filed patents in many different areas. As they note, “this work exploited an inadvertent change in Michigan non-compete law in 1985 as a natural experiment, comparing the change in mobility of Michigan inventors to the change in mobility of similar inventors in other states that did not change their enforcement. We found a relative decrease in Michigan mobility of 33.9% once non-competes began to be enforced, with an additional 14.2% effect for highly- cited inventors and a 17.3% attenuation of mobility for specialist inventors.” . They finally ask whether, do “the interests of incumbent firms outweigh those of individual careers and possibly regional development”? Often employees who must by the terms of a non-compete choose to take a sabbatical or temporary absence from work, as with Kai-Fu Lee who quit Microsoft to go work for Google . Business leaders remain committed to retaining non-competes. Seeking to emulate California, a Massachusetts legislator proposed legislation that would bar non-compete agreements entirely within that state, in order to (a) prevent organizations from taking advantage of average, mid-level laborers who have no bargaining power and are subject to inherently unfair restraints; and (b) keep talented engineers in Massachusetts. Unfortunately as of July 21, 2010 it was reported that this legislation has been abandoned and has no chance of coming into law . It will be very difficult to ban non-competes faced with opposition from incumbent employers.

2. The fiduciary relationship and employees
In both countries existing employees have a duty of loyalty to their employers during the period of the employment contract. Using New York state, and Canadian cases I will compare the fiduciary duties required of employees. First, the Restatement Of Agency section 8.01, states that every employee has a duty of loyalty. The duty is breached with the disclosure of confidential information either during or after termination, or if they compete with the employer during the period of employment. However, under section 8.05 the former employee may compete with, or work for a competitor of, the former employer, including soliciting customers or recruiting employees, unless the former employees is bound by an agreement not to compete that is enforceable. In addition to a reasonable scope, geography, and time. The employer must not have a) discharged the employee for an inequitable reason b) acted in bad faith in invoking the covenant c) the employer materially breached the underlying employment agreement; or d) in the geographic region covered by the restriction a great public need for the special skills and services of the former employee outweighs any legitimate interest of the employer in enforcing the covenant . The crucial issue in many cases is whether in the employee in preparing to leave the employment and take a new opportunity breached her duty of loyalty. In the 3rd district case Scanwell Frieght Express STL, Inc. v. Chan, the manager had prepared for her departure by neglecting to inform her current employer of a lease that was set to expire, and instead allow her subsequent employer to take over the operation. Her disloyalty hinged on the fact that she deceived her employer about the expiring lease. Had she done her job properly she would have been insulated from liability. As the court stated, “an employee must not, while employed, act contrary to the employer’s interests .” In the third district case of Mendelsohn v. Ferber a lawyer a sued her former employer for retainer fees and was countersued for breach of fiduciary duty. The court held that the Plaintiff's status as an at-will employee did not give rise to any fiduciary relationship with her former employer with respect to money collected on retainer agreements entered into while she was an associate at the law firm. NY law is clear that employees must not take opportunities from their employer while employed. In N.K. Intern., Inc. v. Dae Hyun Kim found the employee violated his duty of loyalty by stealing customers while employed . If there is no employment relationship it is unlikely that the courts will find a fiduciary relationship. In Bartfield v. RMTS Assoc. LLC, the court was rejected the argument of the plaintiff employer, a computer consulting firm, that wanted to argue there was a fiduciary relationship between it and an independent agent. Independent agency is determined by contractual allocations and therefore nothing in the contract made the agent a fiduciary.
Employees are allowed to discuss starting their own competing business, so long as they do not take any steps contrary to their duty of loyalty. For example, the court in Bartfield found that the employee did not use the work time to prepare his new business and therefore did not violate his duty of loyalty . The crucial factor regarding an employee’s duty of loyalty under US law is that it is almost exclusively restricted to current employees. Again in the 2009 case of IBM v. Johnson the court found that the employees did not make “use of defendant's time or facilities, disseminated its confidential information or otherwise usurped its business opportunities for a new, competing company” . Even a high level employee has no obligations once he has left to join another business. The company tried to get him to sign a non-competition agreement but he declined to . By contrast Canadian law has massively expanded the notion of fiduciary duties. First, by creating an entirely new class of people who are by definition in fiduciary relationships with their clients. It is important to keep in mind that all employees in Canada owe a duty of loyalty and faithful service, but some employees are also fiduciaries, and attract the highest level of fidelity .
The leading case on the duties of a fiduciary under Canadian law is Can. Aero v. O'Malley. The Court states that a fiduciary relationship “betokens loyalty, good faith and avoidance of a conflict of duty and self-interest. A director or a senior officer like O or Z is precluded from obtaining for himself, either secretly or without the approval of the company, any property or business advantage either belonging to the company or for which it has been negotiating; and especially is this so where the director or officer is a participant in the negotiations on behalf of the company. A strict ethic in this area of the law disqualifies a director or senior officer from usurping for himself or diverting to another person or company with whom or with which he is associated a maturing business opportunity which his company is actively pursuing; he is also precluded from so acting even after his resignation where the resignation may fairly be said to have been prompted or influenced by a wish to acquire for himself the opportunity sought by the company, or where it was his position with the company rather than a fresh initiative that led him to the opportunity which he later acquired . As the Ontario Court noted in Tops, "the varying degrees of trust, confidence and reliance given to the employee and the corresponding vulnerability or dependency of the employer to competition when the person leaves, are the most pertinent factors in determining whether a fiduciary duty exists . This definition expands the role of the fiduciary beyond the traditional roles to include any key employee. The Court goes on to note that regular employees departing along with a fiduciary attract the same level of responsibility to the employer. Departing employees are generally precluded from competing with the employer for a reasonable period of time. As the Ontario trial court stated in IT/Net Inc. v. Doucette “If not a fiduciary, the law prevents a departing employee from using trade secrets, customer lists, and other confidential information acquired during employment, but otherwise they are free to compete. A fiduciary employee owes a duty of utmost good faith that generally prevents the solicitation of business from their former employer's clientele” . Therefore, in Canada there are serious post-employment restrictions on employees designated as fiduciaries or those departing along with them. The latest SCC of RBC Dominion Securities Inc. v. Merrill Lynch Inc seems to expand the class of fiduciaries further. The defendant was an RBC branch manager in the small town of Cranbrook, B.C. He quit suddenly and without notice and helped coordinate the departure of virtually all the employees at his branch. They all went to work at the branch of its chief competitor in the town Merrill Lynch. RBC then sued D and its other employees who left, claiming compensatory, punitive, and exemplary damages. It also sued Merrill Lynch and its manager. He did not have a non-competition agreement with his employer, and was held by the trial judge not to be a fiduciary. Nevertheless both the SCC and the trial court found that he breached his duty of loyalty by copying confidential information, and convincing other employees to depart along with him. RBC is biggest corporation in Canada and should be sophisticated enough to include a non-competition clause. As Justice Abella noted in dissent, “there was no restrictive, non competition clause in D’s employment contract, and he was found by the trial judge not to be a fiduciary employee. Yet the trial judge nonetheless imposed a fiduciary like, elevated duty of good faith. This has the effect of creating a new legal category of “quasi fiduciary” employee, causing inevitable uncertainty for employees who, until now, had the legal right to change employment without fear of financial liability”. The trial court and majority came to their decision based on their finding that he was disloyal to his employer.

3. The Threshold Question: what property interests are protected:
Under US law legitimate interests include (a) confidential information (b) customer relationships (c) investment in the employee’s reputation (d) investment in the purchase of the employers business . However, a protectable interest does not include information that can be easily obtained. “It has generally been held that information which is already known, or which may be easily acquired, outside of the particular business concerned, may not constitute a trade secret or confidential information entitled to protection by the court . As the Second District Court notes in Rem Metals Corporation v. Logan “general knowledge, skill, or facility acquired through training or while experience while working for an employer appertain exclusively to the employee” . In Rem, the non-competition covenant appeared to be valid, however it failed the threshold test because there was no protectable interest. Clauses (b) and (c) seem to be extremely broad and include any good will the employee has with the public. For example, in Elizabeth Grady Face First, Inc. v. Escavich, Escavich employed as an aesthetician copied the customer lists of her former employer prior to her departure. She had signed a non-competition agreement prohibiting her from working within a twenty-five mile radius of her former employer for one year. She then actively solicited those clients while working for a competitor. The second district court found that she was appropriating her former employers goodwill and was in breach of the non-competition agreement.
Canadian courts have a more narrow definition of protectable interest. Protectable interests include (1) confidential information; (2) customers lists, and (3) trade secrets, both during and after employment has ended. What is confidential information will depend on the nature of the material, degree of confidentiality, whether the disclosure will harm the firm (competitive advantage), whether it made efforts to keep info secret, if it is customary in the industry to keep info secret, if the material is hidden from rest of industry, if the information novel or specific. A customer list is broadly defined. In the 1983 SCC decision of R v. Stewart, Justice Cory defines a customer list to include, computer programs, lists of suppliers, customers, instructions of manufacturing process, list of employees, info on employees . However, the employer ought to make known to the employee what information is confidential. Nevertheless, such warnings are not definitive and the court may still find a protectable interest in their absence . A duty of fidelity requires that employee not memorize or take list of customers in order to business with them after the employment has ended. As noted earlier in RBC you also have a situation where an employee is accused of taking customers from his former employer. The SCC affirmed the trial court decision that the employee breached his duty of loyalty by copying confidential information, failing to provide notice, and convincing other employees to depart along with him. However, it was not on the basis of a non-competition clause since the parties never entered into one.

4.Test to determine whether a non-competition clause is enforceable.
While California, Montana, and North Dakota have by law made non-compete covenants illegal, most states leave it up to the courts to decide on a case-by-case basis. In Rem Metals Corporation v. Logan, the Oregon Supreme Court noted the following test, “(1) it must be partial or restricted in its operation in respect either to time or place; (2) it must be on some good consideration; and (3) it must be reasonable, that is, it should afford only a fair protection to the interests of the party in whose favor it is made, and must not be so large in its operation as to interfere with the interests of the public” (4) to be entitled to the protection which a noncompetition covenant purports to provide, the employer must show that he has a legitimate interest entitled to protection. In Canada neither the federal or provincial governments have any legislation addressing non-competition agreements. Canadian courts have adopted similar criteria. First, “the reasonableness of a covenant in restraint of trade is determined by reference to the interests of the parties concerned and the interests of the public, so that the covenant affords adequate protection to the employer while at the same time not being injurious to the public.” Second, “generally speaking, the courts will not enforce a non-competition clause if a non-solicitation clause would adequately protect the employer's interest”. Third, “In general terms, a restrictive covenant which is too broad with respect to its geographic scope, duration in time, or proscribed activities will not be enforceable” Fourth, “A restrictive covenant which precludes an employee from earning a living following the termination of the employment contract is not enforceable.”
Comparing the US and Canada we can note the following similarities and differences. Both require that the covenant not prove damaging to the public, and that the employer have a legitimate interest worth protecting. Courts in both jurisdictions require that an employer give something in consideration for any change to an employment contract that introduces a non-competition covenant. Both jurisdictions have recognized that changes in the nature of certain jobs means that the geographic scope may sometimes extend to a national or global scale. In the case of Kai-Fu Lee the geographic restriction on his employment was global. The relationship between these various factors is elastic, and therefore a narrower scope may be broader geographically and temporally.
5. Public Policy
Canadian courts look at the public interest before deciding to enforce a restrictive covenant. One of leading Canadian case on public interest is OCA decision of Tank Lining Corp. v. Dunlop Industries Ltd. In this case public interest is divided into two elements. First, is the contract “so restrictive of the promisor's liberty to trade with others that it must be treated as prima facie void… the second question is whether the restrictive clause can be justified as being reasonable.” As the court notes, “the dual test in the doctrine recognizes that the assertion of a private right can create a public wrong.” Even if a private contract is prima facie valid it can still be held to violate public policy to allow it to go into effect. In Baker v. Lintott and Sherk v. Horwitz where medical doctors were prevented from practicing due to non-competition agreements, the judge held that public interest is restricted to situations where the public is injured by the agreement. However, other courts have held that non-competition agreements affecting medical professionals are not automatically void. In Simoni v. Sugarman a pediatrist was subject to a non-competition agreement, and the Newfoundland Supreme Court held that even if the agreement is reasonable between the parties the court might still refuse to enforce it if it is contrary to public policy. The court in Simoni holds that the burden of establishing an agreement is contrary to the public interest falls on the party challenging the non-competition agreement, which is most likely the employee. This may prove difficult and costly since it is not always clear if the public will be adversely affected by a non-competition agreement.
The public interest analysis in US courts is essentially similar. In Hopper v. All Pet Animal Clinic Inc, the second division court was asked to rule on a non-competition clause forbidding a veterinarian from competing against her former employer. The Court held that the services she provided to the public were neither unique nor uncommon. The court also held that it was unlikely that the public would be injured by preventing her from working during the period of the non-compete, and therefore the covenant was not contrary to public policy. US law recognizes that the reasonableness as between the parties and the reasonableness as to the public are separate issues . As in Canada the party asserting that the covenant is contrary to public policy has the burden of proof . American courts will take the following factors into account in any analysis of whether a contract violates public policy: “To strike down a contract on public policy grounds, a court must conclude that the preservation of the general public welfare outweighs the weighty societal interest in the freedom of contract”. Courts will also consider whether it is; “patently offensive to the public good; of clear and certain illegality; clearly and unmistakably repugnant to public interest; expressly contrary to public policy; injurious to the interests of the public; or in contravention of some established interest of society; or some public statute; or finally against good morals, or tends to interfere with public welfare . The court will also consider these additional factors: (1) the nature of the subject matter of the contract; (2) the strength of the public policy underlying any relevant statute; (3) the likelihood that refusal to enforce the bargain or term will further any such policy; (4) how serious or deserved would be the forfeiture suffered by the party attempting to enforce the bargain; and (5) the parties' relative bargaining power and freedom to contract. There is a clear preference to allow privately struck bargains to be enforced absent clear evidence of damage to the public . It will usually be highly specialized employees engaged in essential services who are protected from such clauses .
Courts in both countries will forbid employment restrictions where essential services are denied to the public. US courts give more deference to the principle of freedom of contract than Canadian courts do. In both jurisdictions, public interest is a relatively narrow reason to declare a non-competition agreement invalid, requiring that the employee show they perform an essential service, and enforcement of the agreement would damage the public.

6. Are courts willing to amend non-competition clauses?
In Hopper the non-competition covenant was original drafted to last of for 3 years. However, the court found that term to be excessive and reduced the duration to 1 year. Across the US there is a large divergence of opinion when it comes to the willingness of courts to amend. In Ferrofluidics Corp. v. Advanced Vacuum Components, the judge explains that when with restrictive covenants containing unenforceable provisions courts have taken three approaches: (1) “all or nothing” approach, which would void the restrictive covenant entirely if any part is unenforceable, (2) the “blue pencil” approach, which enables the court to enforce the reasonable terms provided the covenant remains grammatically coherent once its unreasonable provisions are excised, and (3) the “partial enforcement” approach, which reforms and enforces the restrictive covenant to the extent it is reasonable, unless the circumstances indicate bad faith or deliberate overreaching on the part of the employer. The following list was compiled by Kenneth J. Vanko sets out the approach each state takes to adjusting the terms of the non-competition clause . The courts that fall into the first group are: Arkansas, Georgia, Nebraska, Virginia, and Wisconsin. Courts that take the second approach include: Arizona, Indiana, North Carolina, and South Carolina. Most of the other states, including New York, fall into the third category. A fourth category requires courts to reform the covenant. The states that fall into that group include: Idaho, Florida, and Texas. In a number of states the case law is unresolved. Finally, California, Montana, and North Dakota disallow non-competes. It is readily apparent that, aside from the states that disallow non-competes, the first approach is most favorable to the employee. If the employer drafts an overly broad non-competition clause than the court will refuse to enforce it. By contrast the other approaches try to interpret the agreement so as to allow it to be enforced. The fourth category is best for the employer since it requires that the courts amend the non-competition agreements so that they can be enforced. The second approach was taken by the second district court in Hopper. The geographical limit and scope of employment were both reasonable with the only unreasonable term being the three-year duration of the non-compete. The vet was forbidden from opening a competing small pet operation within the town. The employee was still allowed to do other kinds of veterinary work. The court held that because both parties gained through the employment situation it would be unfair to allow the employee to compete against her former employer for at least 1 year. At the formation of the contract the employee bargained away a promise not to compete for a reasonable amount of time. One possible rational for the decision is that court thought the employee was acting in bad faith by agreeing to rent a property while still employed. The line between legitimate steps in preparation for departure and breach of fiduciary duty is a very narrow one. There seems to be some evidence the court believed Dr. Hopper was disloyal.
The Canada is much closer to the “all or nothing” states because Canadian courts will rarely resort to the second blue pencil rule. In 2009 KRG Insurance Brokers (Western) Inc. v. Shafron went to the SCC. An insurance agent MS sold his Vancouver agency and continued to be employed under a contract that included a non-competition clause applicable to "Metropolitan City of Vancouver". He left this employment in 2000 and in January 2001 began working as insurance agent for another agency in Richmond, a suburb of Vancouver. The trial judge dismissed the employer's action for breach of restrictive covenant, finding term "Metropolitan City of Vancouver" neither clear nor certain, and in any event, unreasonable. The Court of Appeal reversed the trial judge's decision, finding the restrictive covenant reasonable and enforceable, and applying doctrine of notional severance, construing term "Metropolitan City of Vancouver" as applying to "City of Vancouver, the University of British Columbia Endowment Lands, Richmond and Burnaby". MS appealed to the Supreme Court. The Court held that “Restrictive covenants generally are restraints of trade and contrary to public policy. Freedom to contract, however, requires an exception for reasonable restrictive covenants. Normally, the reasonableness of a covenant will be determined by its geographic and temporal scope as well as the extent of the activity sought to be prohibited. Reasonableness cannot be determined if a covenant is ambiguous in the sense that what is prohibited is not clear as to activity, time, or geography . The court further added that, “blue pencil severance, removing part of a contractual provision, may be resorted to sparingly and only in cases where the part being removed is clearly severable, trivial and not part of the main purport of the restrictive covenant” . The Court further notes that, “Rectification cannot be invoked to resolve the ambiguity in this case. Rectification is used to restore what the parties’ agreement actually was, were it not for the error in the written agreement”. When you compare the approach in KRG with facts in Hopper, the three year term could not have been blue penciled since it was not a clearly severable or trivial. However, it could have been rectified since at the time of the modification Dr. Hopper and All Pet did mutually agree that the term was three years. However, the SCC holds ”Employers should not be invited to draft overly broad restrictive covenants with the prospect that the court will sever the unreasonable parts or read down the covenant to what the courts consider reasonable. This would change the risks assumed by the parties and inappropriately increase the risk that an employee will be forced to abide by an unreasonable covenant.” If courts blue pencil or rectify unreasonable terms than employers will be encouraged to use them. Canadian courts have generally been reluctant to read down restrictive covenants. In the Manitoba Court of Queens Bench decision Williams Restaurant Supply Ltd. v. Leadle, the employee who sold bakery equipment, signed a non-competition agreement forbidding all competition with his employer . The time and geographical limits were reasonable, but the prohibition against all competition was unreasonable. Canadian courts will refuse to enforce a broad non-competition agreement if the employer could have drafted a narrower agreement, or replaced it with a non-solicitation clause. In the Ontario Court of Appeals case of Lyons v. Multari a dentist left her former employer to set up a rival practice 3.7 miles away. The court held that because non-solicitation would have sufficed to protect the employer the non-competition clause was invalid . This is a good example of how Canadian courts prefer non-solicitation clauses to address the employers concerns.

7. At-will Employment
All US employees are by default at-will. The default rule in Canada is a reasonable notice requirement for both employers and employees. If an employer wishes to terminate the employment relationship than the employee must be told at least one week, to a maximum of eight weeks by law prior to the termination . Depending on the length of service and the difficulty in finding new employment the notice period may increase. For example, if the employee is senior management and has a great deal of work experience notice could go as high as two years or more. For high-level employees the notice period is generally at least many months, if not a year or more. Similarly, employees must notify employers when they plan to quit. If the employee has worked less than two years the employer must be given at least one week, and at least two weeks if over two years. Generally a two week notice period is sufficient, however if it is difficult to find a replacement courts will require a longer notice period.
In the US both employer and employee can end the relationship at any point in time. The statement is that an employer can fire an employee for any reason, a bad reason, or no reason at all effective immediately. If the employee is fired some courts will refuse to enforce the non-competition agreement, some will, and finally others will determine which party exercised bad faith. Generally a fired employee is owed nothing. The principle of freedom of contract underpins the employment law regime, with the government interfering as minimally possible. This freedom to contract means employers and employees must bargain for terms and conditions. Especially in highly technical, professional, or managerial jobs there is the presumption that the parties start out on more or less equal terms. Unlike a common day laborer the skilled employee is valuable to the employer, to such an extent that the employer is motivated to draft a non-competition clause. In Rem Metals Corporation v. Logan one of the reasons the court refused to enforce the non-competition clause was because the employer would have suffered a loss even if employee just quit suddenly for any reason. It was also easy to train someone new to do roughly the same quality job. This can be contrasted with the notice requirement under Canadian law. In identical circumstances a Canadian court would find that an employee who quit suddenly and thus caused his employer a financial loss would be in violation of a duty to give notice, and that might in turn give the court justification for enforcing the non-competition clause. This was the case in the 2009 OSCJ case of GasTOPS Ltd. v. Forsyth, were senior personnel working at a software firm gave two weeks notice and than set up their own rival company. The court held that the employees ought to have given 10 months of notice prior to their departure .

8. Conclusion: Drafting suggestions for non-competition clauses in both jurisdictions.
Given the different approaches to non-competition agreements a number of suggestions can be made. First, in Canada, and states like Arkansas, Georgia, Nebraska, Virginia, and Wisconsin, as well as the blue pencil states, it is imperative to draft the non-competition agreement narrowly. Anything more than six months, outside a reasonable geographical area, and of overly broad scope will likely be struck down. Second, employers ought to include a separate non-solicitation clause in any agreement. Canadian courts are especially amiable to non-solicitation agreements. Third, it makes a tremendous amount of sense to include some kind of payment post-termination for key employees, so as to prevent them from competing themselves or joining a competitor. In the Ontario General division case of Woodward v. Stelco Inc., the plaintiff employee was a vice-president in charge of sales and marketing for defendant employer, a steel company. He signed a retirement benefits contract providing that when he retired, the employer would pay a special monthly benefit in consideration for agreeing not to work in competition with employer, without his employer's consent. The non-competition agreement was both unlimited in time, and covered all of North America, but was nevertheless enforceable. In the US employers are also taking this approach. In the 9th circuit case of Nike v. McCarthy the court found that the fact that Nike paid the employee during the non-competition period mitigated negative effects resulting from the agreement . The fact that an employer is willing to pay an employee to sit out also helps establish the threshold test of having a protectable interest. Fourth, following the SCC holding in RBC Dominion Securities it is crucial in Canada for all employees to provide a reasonable period of notice. Council for both the employer and employee must advise their client to provide a notice period commensurate with finding a new employer or employee. Even in the US there are cases were employees must give notice of their intent to terminate the employment relationship. In ZVUE Corp. v. Bauman you have a fact situation where the employer has purchased the business and the previous owners were now employees. The 2nd district court held that the non-competition agreement would be void only if the employees had notified the employer of their intent to resign ten days prior to their resignation, thus giving the employer time to remedy the breach. The court therefore enforced the non-competition clause despite the fact that the employer had fired the employees the day of their resignation . The requirement for notice in ZVUE corp., stemmed from the notice requirement written into the contract. It is highly unlikely that contracts outside of business purchases will contain such requirements. In general courts in the US don’t require notice when ending the employment relationship, either by the employee or employer. Nevertheless, for the employee giving notice may show that it is not in breach of the duty of loyalty. Similarly, for the employer notice prior to termination may persuade courts to enforce the non-compete agreement when they would otherwise have refused given the fact the employee was terminated.

A happy legal day in America

http://www.nytimes.com/2010/08/08/us/08kagan.html?hp

This is a really great choice to go into the Supreme Court. I like her for exactly the same reasons the Republicans dislike her. Although I wish someday they would appoint someone who didn't go to Harvard, Princeton, or Yale.

No if only one of the conservative guys would leave before Obama is out of office, the majority of the court could be liberal.

Meaning

I realized today that I am building a fantastic body through heavy weight lifting and and conditioning, and all without whey powders or any of that stuff. All I eat is nuts and fish, and wholesome foods.

If there is something that is quite enjoyable about Japan it has to be the wacky fashion.

Very cool


http://blip.tv/file/1662914


This really blow the mind.

Tokyo Decadence

Today I am working on my paper: provisional title "Non-competition Clauses in Canada and the US, difficulties in private ordering".
What strikes me about a lot the material in this area of employment law is how similar it is to IP. For example, the idea that you can restrict the movement of key employees, and also that you can prevent them from joining your competitor seems to me to be very much akin to having a patent, trademark, or copyright.
You have invested money into that asset or product and feel that it should not be usurp by a competitor.
They way I see it there could be a trade-off in US employment law, whereby Employers are allowed to freely fire their Employees, and Employees are in turn are freely allowed to compete against their Employer as soon as they quit.
Of course if you increase protections for Employees you should also get increased protections for Employers, in a kind of quid pro quo. So in Canada Employers can't simply terminate you for any reason whatsoever, then tell you to pack up your shit and get out. If they do that they are liable for notice pay, and if the termination was without cause then they must pay you additional amounts. In Japan or Europe it goes even further.

In California and a handful of other states non-compete agreements are void as against public policy. You can learn, and open your own business and compete there. So Silicon Valley really benefits from this. Where I see the US as having the worst of all possible worlds is when then employer is free to fire you, but you can't compete.

Of course much of this is only problematic for highly skilled employees. But, as the Harvard Business school study indicates this can effect a significant number of employees who are inventors, especially in more neiche industries. People who have more general skills are much more flexible in terms of who they can compete with and therefore are much less effected by non-competition clauses.

The blue pencil rule is also interesting. Here Canada and a bunch of US states are very tough on Employers and their drafting. If they don't draft correctly then the Employees are totally free.

The use of the Fiduciary concept in Canada is totally out of control. Not only do Fiduciaries in Canada continue to have obligations post employment, they are also expanding. The most recent Supreme Court case which I can't find at the moment.

On a personal note: I think I really need to go on some sort of cardio kick or I will never lose the gut :)

met a very interesting woman today

I met this very interesting woman today. She was from the US but here is the really crazy thing. When I was chatting with her, her accent modulated from American, to Scottish, Irish, Australian, English, or something along those lines. This is the only person I have ever met in my entire life who talks like that. Moreover, interestingly she has done extensive academic reading.

I ran into her because she was giving away a bunch of English study books, that I could use for my private lessons. I was amazed at the quantity and the quality of the stuff she gave me.

The other night I went to Leila's birthday party and got to meet a heap of interns from the US embassy along with two guys and a girl who also worked there. It was a very fun evening. We ate in Akasaka at this place that was like a giant cave.

The food was simple but delicious. The conversation was typically random, just odd trivia and that sort of stuff, nothing highly intellectual. Although as can be imagined the interns were some smart members of the US academic community. This one Jewish guy reminded me a lot of Dan.

After dinner we went to a Singing Room. Two of the Japanese girls and the white guy were wore American Eagle apparel sounded really fantastic.

This is a good article on new stuff in the copyright legislation being pushed at the WTO.

http://www.zeropaid.com/news/89920/actas-latest-text-a-quick-read-through/

a great day

Went to the gym, worked out. I also worked out on my employment law paper, got some great articles. Looks like the paper is really shaping up to be a informative look at employee liability for stealing trade secrets. I have no nailed down the thesis, but I can see how the other elements in employment law play out.

On the one hand it appears that there is substantial similarity between the two legal systems, the USA and Canada when it comes to employees running off with trade secrets. On the other hand because employees are not in an at-will relationship in Canada, they are constrained in being able to simply quit and start their own company the next day. It also seems that fiduciary responsibility is higher in Canada.

Found this great article on the economics of crime. I was inspired to think about this by the work of Posner as explained to me in Criminal Law class in Law School.

http://www.costsofcrime.org/

The EU is really cool.

trademark confusion

It is really hard to determine if a trademark is confusing.

The Canadian Legislation says:

When mark or name confusing

6. (1) For the purposes of this Act, a trade-mark or trade-name is confusing with another trade-mark or trade-name if the use of the first mentioned trade-mark or trade-name would cause confusion with the last mentioned trade-mark or trade-name in the manner and circumstances described in this section.

Idem

(2) The use of a trade-mark causes confusion with another trade-mark if the use of both trade-marks in the same area would be likely to lead to the inference that the wares or services associated with those trade-marks are manufactured, sold, leased, hired or performed by the same person, whether or not the wares or services are of the same general class.

Idem

(3) The use of a trade-mark causes confusion with a trade-name if the use of both the trade-mark and trade-name in the same area would be likely to lead to the inference that the wares or services associated with the trade-mark and those associated with the business carried on under the trade-name are manufactured, sold, leased, hired or performed by the same person, whether or not the wares or services are of the same general class.

Idem

(4) The use of a trade-name causes confusion with a trade-mark if the use of both the trade-name and trade-mark in the same area would be likely to lead to the inference that the wares or services associated with the business carried on under the trade-name and those associated with the trade-mark are manufactured, sold, leased, hired or performed by the same person, whether or not the wares or services are of the same general class.

What to be considered

(5) In determining whether trade-marks or trade-names are confusing, the court or the Registrar, as the case may be, shall have regard to all the surrounding circumstances including

(a) the inherent distinctiveness of the trade-marks or trade-names and the extent to which they have become known;

(b) the length of time the trade-marks or trade-names have been in use;

(c) the nature of the wares, services or business;

(d) the nature of the trade; and

(e) the degree of resemblance between the trade-marks or trade-names in appearance or sound or in the ideas suggested by them. [R.S., c.T-10, s.6.]

TRIPS adopted the Paris Convention on this issue:

(1) The countries of the Union undertake, ex officio if their legislation so permits, or at the request of an interested party, to refuse or to cancel the registration, and to prohibit the use, of a trademark which constitutes a reproduction, an imitation, or a translation, liable to create confusion, of a mark considered by the competent authority of the country of registration or use to be well known in that country as being already the mark of a person entitled to the benefits of this Convention and used for identical or similar goods. These provisions shall also apply when the essential part of the mark constitutes a reproduction of any such well-known mark or an imitation liable to create confusion therewith.

(2) A period of at least five years from the date of registration shall be allowed for requesting the cancellation of such a mark. The countries of the Union may provide for a period within which the prohibition of use must be requested.

(3) No time limit shall be fixed for requesting the cancellation or the prohibition of the use of marks registered or used in bad faith.

This allows well known companies to get rid of copycats and usurpers in third world countries.

A crazy set of questions

A friend of mine who will remain nameless got these questions for an interview: Only in Japan. OMG

Interview Questions

1) Have you ever had a boyfriend/girlfriend? Do you have one now?
How long have you known each other?
Where and how did you meet?
What helps to keep you two together?


2) Do you think living together without getting married is OK?
Why do you think it is OK or not OK?

3) What do you think is the biggest obstacle for young people to get married today?
Why?
4) Is same sex marriage acceptable?
Why?

5) When you start to date with someone, do you think about marriage?

6) Do you want your partner to be masculine or feminine?

7) What do you think of one-night stands? Is it OK? Why?



Thank you for your cooperation.


This is wrong on so many levels. But hilarious.

Interesting article on US troop presence in Japan

http://www.nationalinterest.org/Article.aspx?id=23592

A very interesting evening

Tonight after working out at the gym I went over to visit this Hawaiian guys house and watched some MMA. It was lots of fun. He had a huge projector on his wall. We also got to make our own pizza with homemade dough. His wife and kids were great, very friendly and smart.

It turns out that his parents are 7th day Adventists. It was interesting to actually hang out with some other English speakers. Since the people from the States left at the end of April there has not really been a very exciting social scene.

I went over to hang out with that NZ girl and her friends out the suburbs and that was cool, but these were guys and we talked about great things like weight lifting and MMA.

The Scottish guy Steve was also interesting. He lived in Japan for about 8 years. He has worked as a bouncer, and apparently writes science fiction for some British publication, Warhammer 4000 or something like that. Under the name Steve Parker.

His favorite Philp K Dick book was the one about the clock moving backwards, I'm still in the process of reading it on my iphone, I should finish it with that statement.

It is cool since they live nearby, and I often see them at the gym.

I also met this guy who works in a Bank, and made the rather off color remark that bankers should be shot. No one laughed, but I guess that is coming with the territory.

Another interesting character at the gym is an ex-marine. He was actually in Beirut when all that crazy stuff was going down in 1985. He is also huge lifting massive weight. The Steve guy is actually my height or a bit smaller, but he is really massive, huge muscles, totally ripped. He is a vegetarian who lives and breaths to work out.

I am inspired by how creative they are and what they are doing with their lives. It should serve as a guide to try to accomplish as much as I can while I am here on the face of this earth.

World Cup

Watching the world cup match between Germany and Argentina. It's really exciting. I'm not sure who I want to win.

I am currently researching employment law problems. One of the difficulties I run into when comparing US and foreign law is how radically different they are in certain areas. For example, I want to examine the treatment of employment manuals, as an exception to employment at will. In what situations will courts hold that the manual has overcome the at will relationship and produced one that can only be terminated on a for cause basis?

By contrast in Canada there are clear statutory requirements that apply regardless of the existence of an employment manual. There is no termination at will to begin with, so an employment manual is not needed to modify that relationship.

I spoke a bit prematurely.

Kornerup et al v. Raytheon Canada Ltd.,
	2007 BCSC 584

Seems like a perfect, case and dare I say I am shocked that it is somewhat similar to what would be decided in the US.

I'm tired today

Intersting lecture on the Yakuza

Just saw this lecture by the Author of "Tokyo Vice", Jake Adelstein.

http://www.tokyoreporter.com/2009/10/27/on-the-tokyo-vice-beat-with-jake-adelstein/

I thought the lecture was really interesting. He made it seem like the Yakuza is behind a huge amount of stuff in Japan, and that the Japanese don't really try to take them on.

I have read quite a bit here and there about the Yakuza and have always been fascinated with them as I am with all mafia. I find that when criminals become organized they start to take a political character. So it is not surprising that in fact the Yakuza were closely tied to the LDP when it was starting out.

Anyhow it was really interesting. I have this feeling that old mafia like the Yakuza are better than a free for all of new gangs competing against one another for control over criminal enterprises. However, crime itself is obviously wrong and detrimental to the values of society. It seems like it should be the goal of every society to rid itself of criminal elements. But, in every society there are criminals and criminal organizations. It is really an interesting topic.

This lecture also helped reinforce my interest in the criminal law class that I'm taking at Temple, which compares the systems in the US and Japan. I really think that my friend ought to have been here since he is writing about the Yakuza for his paper.