37-13, 17-05, 42-21, 32-40, 32-17, 29-27,
12-44, 12-20, 26-13, 26-32, 05-44, 05-22, 10-32, 07-28, 45-44,
30-41, 15-26, 21-22, 21-17, 21-37, 06-41, 06-13, 06-32, 38-26,
03-04, 04-20.
How do you stay focused on your niche?
Gus Dekavallas - A lot of employers are
struggling with benefits. They rely on their agents to get
them the best possible rates. Unfortunately, many of these
agents have relationships with the insurance providers and don't
push them. This a a niche that Gus and his company are
filling. They will make the insurance providers compete
for your business. He recently saved one company from a
20% hike in rates. He got them down to only a 1% increase.
Jim Crossman - Everyone in here fills a
niche. You should never try to do it yourself when there
are so many people in here that can do it better and save you
the headaches. My truck got totaled this week. But
all I had to do was place one call to Chris Curran and he is
taking care of everything.
Joe Zingale - I don't stay focused very
well. I have tried so many business ventures. None
of them worked. I learned that you should stick with what
you are good at. Especially if you have a niche and a
market. Otherwise, you end up going backwards.
Mark Dreher - Having partners helps us to
stay focused. We have somebody to talk to and keep us in
tune with reality. We have stopped doing the large,
time-consuming projects so we can better serve our regular
clients. A word of advice...don't ever design your own
company program. You will be so focused on it that you
won't notice your business going down the tube.
Charles Hultstrand
Hultstrand and Goodale, PC
Chuck is a lawyer. He
handles mostly commercial and business litigation. But before
going into the business-side of the speech, he gave us the
"sickening" background.
Chuck was born in Phoenix.
His family lived on the edge of Phoenix in a track home development
at 30th Street and Indian School. When he was 8-years-old his
family moved to a farming community 40 miles south of Yuma.
Going to high school there was
great. He got to do anything and everything he wanted.
He played all the sports and could be in any club he wanted.
In 1968 he won the Arizona spelling bee. That was an
experience. He got to travel to Washington D.C. for the
nationals. They were having riots back then. And Robert
Kennedy had just been killed so the white house was closed.
Chuck also had a lot of
interesting jobs as a teen. He told us one story about when he
worked for a pesticide supplier. One day he decided to get rid
of the weeds around the barn. He and chuck grabbed all sorts
of weed and insecticide chemicals (all concentrated) and mixed them
together. The weeds shriveled up on impact. His boss
bragged that nothing would grow their for 50 years!
Chuck survived the chemical
concoction and moved to Phoenix to attend ASU. He earned a
degree in general business. He got a job at a bank working in
the proof department. He worked there for the next 3-4 years
while going to school. Chuck also worked on one of the first
hot shot crews. He got to set forest fires for training crews.
He also worked in retail briefly. He worked in a pharmacy with
a "no questions asked" return policy. He has a greater
appreciation for the retailers in the group based on that
experience.
After getting his law degree at
UofA, Chuck headed north towards Flagstaff to escape the heat.
He had to stop in Phoenix on the way to take the bar exam. He
had to work to pay his way while here so he looked for some clerking
jobs. He called one lawyer that had just lost 4 people.
Chuck was immediately offered a job. This was good
experience for him. He worked with two seasoned lawyers and
was exposed to all areas of the law. He even traveled to other
states to work on cases. He tried a criminal case in Texas and
another in Hawaii. He stayed with this firm 8 years.
Over the years Chuck has learned
a little about everything...Arabian horses, jewelry, etc. He
learns something new with every case. And lately he has
learned a lot about covenants not to compete.
Covenants Not to Compete (CNTC)
Chuck decided to talk about CNTC because he has seen a
developing trend in this area of the law. Employees will sign
the CNTC, leave and go to work for the competition. In the
past, employers would try to enforce the CNTC by getting injunctions
or threatening their former employees with lawsuits.
The trend now, however, is to
send a letter to the new employer and threaten to sue them for
intentional interference with a contractual agreement. They do
this because (1) they don't want their employees going to work for
the competition and (2) they are trying to recover damages from the
loss of the employee.
This all started back in the
1970's. It was a case involving a dental technician, just a
regular hourly employee. She left and went to work for a
competitor. The old employer tried to sue and get an
injunction. But the court ruled that you just can't stop
people from making a living.
The next case involved a pest
control company. This was a little different because they deal
in "areas". But the courts stayed by their original argument.
The employees in question were not in the managerial category.
But things have evolved.
Cases involving disk jockeys and produce managers came up. The
court of appeals decided that claims had to be reasonable in
-
Geographic scope
-
Duration of time, and
-
Against public policy.
If you sell a business and sign a
CNTC, courts are more likely to enforce it. But the same
principles apply.
There was one case involving a
unique business. There were only 2 in the Valley. The
new and old owners had a falling out. The old owner figured he
could get around the CNTC by "volunteering" for the competition.
This case ended up with a jury trial where he was eventually told
not to do it. When going through covenants you must be sure to
cover all of your bases.
The longest you can enforce a
CNTC with a sales manager is 6 months. The purpose is to allow
the old employer time to hire, train and acquaint the replacement
with the customers. The purpose is not to stop businesses from
competing.
Many companies have a valley-wide
market. You may not be able to protect the entire area.
And you can't prohibit someone from using their skills and
abilities, even if you trained them. But like any other
contracts, there is consideration. There are ways around
things. You can make training expenses in the nature of a
loan. Or you can limit someone from doing one particular
skill.
The bottom line is, it can be
enforceable but it may not be. This is one area of the law
that they use the blue-pencil rule.
Chuck handed out a standard jury
instruction sheet. Unless a case needs special instructions,
this is how juries are to decide cases. This one deals with
contractual relationships.
COMMERCIAL TORTS 11
Interference With Contract - Elements
Plaintiff claims that defendant improperly interfered with
plaintiff's contract with _________.
To establish this claim, plaintiff must prove:
-
Plaintiff had a contract
with __________;
-
Defendant knew about the
contract;
-
Defendant intentionally
interfered with the plaintiff's contractual relationship with
_______, which caused a breach or termination of that
relationship;
-
The defendant's conduct was
improper; and
-
The plaintiff suffered
damage caused by the breach or termination of plaintiff's
contractual relationship with ______.
COMMERCIAL TORTS 12
Interference With Contract - Damages
If you find that defendant improperly interfered with
plaintiff's contract with ______, you must then decide the full
amount of money that will reasonably and fairly compensate plaintiff
for each of the following elements of damages proved by the evidence
to have resulted from the interference with the contract:
-
The net [profit] [benefit]
the plaintiff would have received had the contract been performed;
-
Damage to plaintiff's
reputation; and
-
Any emotional suffering
sustained by plaintiff.
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