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Flo's Side of Lawsuit Against W. Saylor and Rofkin

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The link below is to a public document that was obtained through The Travis County Court Clerk in Austin TX.

Note that Willie and Rofkin's responses to the suit have not yet been filed and thus the attached only contains one side of the story.

As expected, most of the suit deals with the violation of a non-compete agreement that was voluntarily signed, but the suit also alleges theft of content.

I hope they are able to work things out, but clearly..."There will be lawyers."

Also hoping this document helps put to rest some of the more nefarious claims that made its way onto social media about what this suit actually alleged.

 

https://drive.google.com/open?id=19Yckx1VmPQDOS96o1_CXtdCcJGbpdNK2

 

EDIT: Adding Willie and Rofkin's responses.

https://drive.google.com/open?id=1DRbmw1ynV4bBG4uXXndflt_cJIBwXYn_

 

EDIT: Adding the Temporary (14 days) Restraining order placed on Willie by the presiding judge.   It was effective on 12/18.

 

https://drive.google.com/open?id=1WQHF9RE-FwP5wdrfI3WUbrBUbH78NI8Y

 

 

 

 

 

Edited by Crash
Added Link

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There's always two sides to the story.  Companies generally don't like to sue.  It appears he did sign a no compete.  You'd think Flo attempted to get him to stop.  It looks pretty straight forward cause again he signed the no compete and they appear to have good documentation.

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If they actually have evidence that he took things down from the site, quit, and then moved it to Rokfin, that's not likely to play well in court.

However, if I had to guess, this is basically a play to get out of the non-compete by forcing a suit and then a settlement.  Willie apologizes and maybe pays some money, but gets released from his non-compete.

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A few quick thoughts.

-- The non-compete is pretty lacking in limitations, and I question whether they'll be able to enforce it.  Apart from the one year limitation, it is probably overbroad.  It seems that the "geographic territory" they're seeking to impose is nationwide, and the activities in question concern essentially everything he does.  It'd be one thing if Willie's skills were particularly specialized, but that just isn't the case.  If the effect of a non-compete is to essentially put the person out of work for the duration of the non-compete it probably isn't enforceable, and that appears to be the case here.  

-- There's also a question whether there was adequate consideration for the non-compete.  In Texas, the promise of continued employment isn't enough.  Maybe the gain of access to confidential info would be enough, but most of the info isn't particularly confidential as far as I can tell.

-- There's a few IP theft allegations floating around in there, e.g. the "big board" appearing on Rofkin and Willie's "who's no. 1" comments, but there are no IP claims in the lawsuit itself -- e.g. no claims of copyright infringement, trademark infringement, trade secret misappropriation, and so on.  Just breach of the non-compete and tortious interference against the company.  Presumably they'll try to use the latter to leverage an agreement on the former, but they'll be out of luck if Willie/Rofkin defend and beat the contract claims. I sort of get why they didn't push the IP claims as the reality is that most of the "ideas" that Willie "took" aren't really protectable anyway -- save a potential copyright claim if rankings content was lifted wholesale (as is implied), which is probably a technical violation, but I doubt Flo would want to deal with getting a copyright registration just for rankings that are fluid anyway.

-- There's a suggestion in the lawsuit that Willie was in discussions with Rofkin while still at Flo, but whether there's anything to that really turns on how enforceable the non-compete is -- and as indicated I have my doubts.

I haven't been following this all that closely, but I assume Rofkin will lawyer up on their and Willie's behalf and push back on the agreement's enforceability.  Flo would, I suspect, be wise to keep their demands relatively limited to keep ownership of some of the specific content created while at Flo, and otherwise let it go.  

 

 

 

Edited by BAC

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39 minutes ago, BAC said:

A few quick thoughts.

-- The non-compete pretty is broad, and I question whether they'll be able to enforce it.  Apart from the one year limitation, it is probably overbroad.  It seems that the "geographic territory" they're seeking to impose is nationwide, and the activities in question concern essentially everything he does.  It'd be one thing if Willie's skills were particularly specialized, but that just isn't the case.  If the effect of a non-compete is to essentially put the person out of work for the duration of the non-compete it probably isn't enforceable, and that appears to be the case here.  

-- There's also a question whether there was adequate consideration for the non-compete.  In Texas, the promise of continued employment isn't enough.  Maybe the gain of access to confidential info would be enough, but most of the info isn't particularly confidential as far as I can tell.

-- There's a few IP theft allegations floating around in there, e.g. the "big board" appearing on Rofkin and Willie's "who's no. 1" comments, but there are no IP claims in the lawsuit itself -- e.g. no claims of copyright infringement, trademark infringement, trade secret misappropriation, and so on.  Just breach of the non-compete and tortious interference against the company.  Presumably they'll try to use the latter to leverage an agreement on the former, but they'll be out of luck if Willie/Rofkin defend and beat the contract claims. I sort of get why they didn't push the IP claims as the reality is that most of the "ideas" that Willie "took" aren't really protectable anyway -- save a potential copyright claim if rankings content was lifted wholesale (as is implied), which is probably a technical violation, but I doubt Flo would want to deal with getting a copyright registration just for rankings that are fluid anyway.

-- There's a suggestion in the lawsuit that Willie was in discussions with Rofkin while still at Flo, but whether there's anything to that really turns on how enforceable the non-compete is -- and as indicated I have my doubts.

I haven't been following this all that closely, but I assume Rofkin will lawyer up on their and Willie's behalf and push back on the agreement's enforceability.  Flo would, I suspect, be wise to keep their demands relatively limited to keep ownership of some of the specific content created while at Flo, and otherwise let it go.  

 

 

 

The biggest thing working against Willie/Rofkin on the face of this suit is the fact that Martin was the one who signed the non-compete and the allegations that he was acting in bad faith (i.e. taking work product off Flo, quitting, and then just putting it on another site.)

As to your "overbroad" analysis on the non-compete, I thought about that, too.  Now I don't handle contract law any more, but my memory was that the geographical area had to be reasonable relative to the business itself.  Flo being a national (and arguably international, though I think they would fail there) company gives them a leg to stand on there, no?

Edited by VakAttack

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Has a noncompete ever been enforced against a journalist?  It seems almost ludicrous to say a journalist can't write for a competitor for a year after leaving a company-or is this standard practice in journalism? It's not like a noncompete for an executive or programmer in  something like a software company, where there are software companies that do many different things.  Willie is a sports journalist and is going to write about wrestling-a year long noncompete for him is a year of unemployment.  

 

In terms of the "stolen" articles..They were rankings written by him.  If he writes a ranking for flowrestling on 11/1/19.  And then writes one for Rokfin on 11/2/19 after leaving flowrestling..That ranking, which is a reflection of his opinion, is not going to change. Does flowrestling really claim to have an enforceable copyright  for the title, "crystal ball rankings?" 

 

I am a subscriber to flo and am not a subscriber to rokfin.  I also don't see why anybody would pay to get the content rokfin currently offers.  With that said, I think what flo is doing here is absolutely despicable.  They are essentially asking for Willie to either work for flo forever or stay unemployed for a year (at the expense of the taxpayers).  What kind of just labor practice is that?  This is a company that got its start by stretching the rules of content rights (they used to videotape matches and complain when networks wouldn't let them post matches/clips), and now they are telling a journalist that the rankings he wrote are their property and he can't write those same rankings (an expression of his opinion) after leaving the company.  I think at best it's petty and at worst it is actively detrimental to the wrestling community.  

Edited by Billyhoyle

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10 minutes ago, Billyhoyle said:

Has a noncompete ever been enforced against a journalist?  It seems almost ludicrous to say a journalist can't write for a competitor for a year after leaving a company-or is this standard practice in journalism? It's not like a noncompete for an executive or programmer in  something like a software company, where there are software companies that do many different things.  Willie is a sports journalist and is going to write about wrestling-a year long noncompete for him is a year of unemployment.  

 

In terms of the "stolen" articles..They were rankings written by him.  If he writes a ranking for flowrestling on 11/1/19.  And then writes one for Rokfin on 11/2/19 after leaving flowrestling..That ranking, which is a reflection of his opinion, is not going to change. Does flowrestling really claim to have an enforceable copyright  for the title, "crystal ball rankings?" 

The first part:  Flo seems to be framing it not about journalism but about "content creation".  However, either way, yes non-competes can be enforced against anybody as long as they'ren ot overbroad, a term BAC used earlier.  Overbroadness typically referred to the activity you were trying to restrict, the time frame you were trying to restrict them from doing, and the geographic area.  It happens to journalists all the time.  A recent famous example is Bill Simmons after he split with ESPN, he didn't immediately create "The Ringer."

The stolen articles are a separate thing.  Corporations can definitely take ownership of your work.  Disney famously owns everything you draw while you work for them as an artist, even in your own free time.

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Having been in Texas doing tech my whole career the prevailing thought has always been that the courts won't enforce non-competes. I've seen companies file lawsuits over this when competitors poach employees, but I've never seen it amount to much other than attorney fees. Obviously the specifics of each situation matters a great deal. What employment choice does Willie really have if he chooses to leave Flo. His whole career is in wrestling media. Did they give him a payment to stay on the shelf?

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17 minutes ago, VakAttack said:

The first part:  Flo seems to be framing it not about journalism but about "content creation".  However, either way, yes non-competes can be enforced against anybody as long as they'ren ot overbroad, a term BAC used earlier.  Overbroadness typically referred to the activity you were trying to restrict, the time frame you were trying to restrict them from doing, and the geographic area.  It happens to journalists all the time.  A recent famous example is Bill Simmons after he split with ESPN, he didn't immediately create "The Ringer."

The stolen articles are a separate thing.  Corporations can definitely take ownership of your work.  Disney famously owns everything you draw while you work for them as an artist, even in your own free time.

Bill Simmons started a company to compete with ESPN.  I'm talking about a journalist for company A being told he can't work for company B (e.g. a former writer the New York Times being told he can't take a job at the Washington Post).  Has that ever been enforced? It's essentially telling Willie he can't work for a year, since his job is wrestling journalism. The effect is it puts that year of Willie's life at the expense of the taxpayer through unemployment benefits, healthcare, food stamps, etc. And it puts Willie in a situation where he either has to be unemployed for a year or choose to work for Flo forever. 

For the copyright info:  I get that you can't steal articles when you leave a company.  But I'm saying he wrote two separate articles.  It's just that the content of the articles didn't change because his opinion of the rankings hadn't changed in the time that he wrote the two articles.  

Edited by Billyhoyle

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2 minutes ago, potdangerous said:

Having been in Texas doing tech my whole career the prevailing thought has always been that the courts won't enforce non-competes. I've seen companies file lawsuits over this when competitors poach employees, but I've never seen it amount to much other than attorney fees. Obviously the specifics of each situation matters a great deal. What employment choice does Willie really have if he chooses to leave Flo. His whole career is in wrestling media. Did they give him a payment to stay on the shelf?

That's another thing I haven't mentioed (but BAC also did) was about the specifics of Texas.  If that's true, that makes Flo's position more tenuous.

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1 minute ago, Billyhoyle said:

Bill Simmons started a company to compete with ESPN.  I'm talking about a journalist for company A being told he can't work for company B (e.g. a former writer the New York Times being told he can't take a job at the Washington Post).  Has that ever been enforced?

For the copyright info:  I get that you can't steal articles when you leave a company.  But I'm saying he wrote two separate articles.  It's just that the content of the articles didn't change because his opinion of the rankings hadn't changed in the time that he wrote the two articles.  

Sure.  The allegation Flo is making, though, apparently, is that Willie took things down off of their site and just put them onto another site.  Like just removed it from Flo and copied it verbatim on another site.  That's problematic.

Re:  Bill Simmons, that's just an example, but it applies, even though the facts are slightly different.  Conan O'Brien is another famous guy who had something similar.  He did a comedy tour after leaving NBC called something like the Legally Not Allowed to be Funny on TV tour.

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1 minute ago, VakAttack said:

That's another thing I haven't mentioed (but BAC also did) was about the specifics of Texas.  If that's true, that makes Flo's position more tenuous.

Honestly, it's just a sh$tty thing to do (lawsuits over non competes). If your former employee takes millions in revenue with him I can understand, but I'm betting we're not talking millions. Are we even talking 10s of thousands? Flo is doing more damage to Flo with this lawsuit. Who would ever want to work for them now. I doubt you join Flo for the paycheck.

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Just now, potdangerous said:

Honestly, it's just a sh$tty thing to do (lawsuits over non competes). If your former employee takes millions in revenue with him I can understand, but I'm betting we're not talking millions. Are we even talking 10s of thousands? Flo is doing more damage to Flo with this lawsuit. Who would ever want to work for them now. I doubt you join Flo for the paycheck.

It depends on what actually happened.  If Flo's allegations are true, I think what Willie did is crappy and I would sue, also.  If they're false, then I agree with you, it's a crappy thing by Flo.  If it's somewhere in the middle (as is often the case) I'll tend to side with the little guy over the corporation.

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8 minutes ago, VakAttack said:

Sure.  The allegation Flo is making, though, apparently, is that Willie took things down off of their site and just put them onto another site.  Like just removed it from Flo and copied it verbatim on another site.  That's problematic.

Re:  Bill Simmons, that's just an example, but it applies, even though the facts are slightly different.  Conan O'Brien is another famous guy who had something similar.  He did a comedy tour after leaving NBC called something like the Legally Not Allowed to be Funny on TV tour.

But do companies sue regular non famous working people who have standard jobs like a journalist?  Is Willie even making 6 figures? Like if a welder leaves company A, can he get sued for working for company B if company A made him sign a noncompete?  I get that for guys like Bill Simmons and Conan, a noncompete is SOP.  But i've never heard of it being enforced on low level employees, although I have zero experience in this, and you are clearly knowledgeable.  If you say it is enforceable for a guy making a moderate salary with no skills beyond the job he is presently working, I'd say that's a pretty messed up monopolistic system.

 

I agree with what you're saying about stealing content word for word, but for a ranking I'm not sure you can prove that as opposed to my hypothesis that he simply wrote the same rankings because his opinion of the rankings hadn't changed.  

Edited by Billyhoyle

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Is Willie actually an employee of Rokfin or is he an independent guy using the platform and paying a residual back? If he is a 1099 I can't see a case for Flo to say that no coverage or discussion on anything wrestling related is allowed as part of his non-compete, that sounds 100% bogus. Now, if he was offering streaming services of matches I could see more of a case as that is the core of Flo's business model.

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5 minutes ago, Billyhoyle said:

If you say it is enforceable for a guy making a moderate salary, I'd say that's a pretty messed up monopolistic system.

He went to a company that is competition and tries to prop it up with content from flo while Martin openly calls for flo people to come over to Rokfin. Id be pissed if I worked for flo, and they just let that slide.

Edited by russelscout

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2 minutes ago, russelscout said:

He went to a company that is competition and tries to prop it up with content from flo while Martin openly calls for flo people to come over to Rokfin. Id be pissed if I worked for flo and they just let that slide.

The article he wrote was his opinion on the ranking of athletes.  If he wrote a ranking for Flo 10 days earlier, and then wrote one for Rokfin 10 days later, how is that "content from flo."  That's him doing his job as a journalist at two different companies 10 days apart, with his opinion on the rankings not having changed in that time. 

And what's wrong with one company openly trying to recruit employees from another?  These are journalists, not people bringing over IP.  Flo can retain their writers by paying them more than Rokfin does.  

Edited by Billyhoyle

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3 minutes ago, Billyhoyle said:

The article he wrote was his opinion on the ranking of athletes.  If he wrote a ranking for Flo 10 days earlier, and then wrote one for Rokfin 10 days later, how is that "content from flo."  That's him doing his job as a journalist at two different companies 10 days apart, with his opinion on the rankings not having changed in that time. 

10 days earlier did he release that on williesaylor.com? 

Edited by russelscout

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53 minutes ago, VakAttack said:

The biggest thing working against Willie/Rofkin on the face of this suit is the fact that Martin was the one who signed the non-compete and the allegations that he was acting in bad faith (i.e. taking work product off Flo, quitting, and then just putting it on another site.)

As to your "overbroad" analysis on the non-compete, I thought about that, too.  Now I don't handle contract law any more, but my memory was that the geographical area had to be reasonable relative to the business itself.  Flo being a national (and arguably international, though I think they would fail there) company gives them a leg to stand on there, no?

It is a bit odd that Martin signed the non-compete.  At the very least Rofkin can't claim lack of notice.  Conversely perhaps Martin could claim that, because he knew the agreement, he also knew it wasn't enforceable.  Of course, that doesn't look great either that he had Willie sign it anyway, and it does make much of their defense stand or fall on their effort to invalidate the agreement.  (What would look *really* bad is if Martin had Willie sign a new non-compete for Rofkin!)

As for overbreadth, you're generally correct about geography, but other factors come into play too, including duration, scope of the restriction, extent of business need, etc.  Also bear in mind that the enforceability of non-competition clauses vary widely based on state law -- some are highly permissive and others, like California, presumptively reject them.  This one's governed by Texas law and they've got their own thing going, but as a general rule, if enforcing a non-compete would literally keep someone from practicing their craft (here, being a wrestling commentator/journalist), then its a good bet it will get dramatically blue-penciled or invalidated altogether.  

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