compete provision in her employment agreement mr ashford agreed up for a two year period after employment terminated she would not work for any business which competes with may in america suresh worked as a product engineer try biologist and  for two year period during which she has provided access to a wide range of manam extraneous secrets including in particular the chemical formula in the manufacturing process for its path to ted lubrication product and god would be agreement prevent her from working for them in any capacity it does your honor it doesn't list which positions she could take with an employer but under arkansas law and not compete isn't forcible if an employee is able to use information obtained trade secrets or confidential business information to gain an unfair competitive advantage so i think when the court's considering enforceability it can consider whether the actual position the person is in is one in which they can they are able to use the information to gain a competitive advantage but i don't think you know when we're considering the question of the breath of the restriction i don't think it affects reasonable manner in the advanced environmental advance control case that was actually tortious interference case that the arkansas supreme court considered and the underlying claim in there was that the new employer had helped the employee breach not compete agreement with that the former employer and the employers not compete agreement read substantially similar to this one it prevented the employee from taking the job basically taking any position with a that the court didn't consider and that that reads the same that the employer was precluded from taking any position with the business competitor i don't know of any arkansas case that holds that and i could be design reasonable in some respect because it limitation and limitation on type of position but the protectable interest in this case is trade secrets and as i said she has trade secrets regarding both the chemical formula and the manufacturing scientist that's her undergrad graduate degree i think she may have a master's in it she's told me and i'm actually going to pursue her ph d i mean i think if you're only going to have to consider the hypothetical scenario which she takes a position as a security guard try biologists who had a material sciences background i think it's reasonable for the employer to conclude that person is going her career trajectory is going to keep her in the material sciences field and she's not going to be if if for example i mean she's precluded from working for a competitor if for instance she had a change of heart and thought i want to go into public relations or i want to go into maintenance or some other for security some other field the fact that she would end up with a direct competitor of her  employer nana mack and what is really a pretty specialized field than the nanotechnology is used or it's not a manufacturing of products including these labor cation products so i think that that would justifiably rais employer's antenna if an employee who has been given all these trade secrets involving chemical formulas and manufacturing processes ended up in a job like maintenance or or security with a direct competitor the court held as the judge cotton alluded to that the not to be it was unreasonable and under forcible because it lacked a sufficient geographic restriction the court also how that the phrase any business which competes is vague and undefined and also  even address what standard arkansas courts apply in determining whether or not compete is reasonable and the standard for reasonable as is whether the covenant is no more restrictive than is necessary to protect the employer's legitimate information and is not so broad as to be injurious to the public interest court's opinion never addresses that the courts are also never considers the nature of the scope of the protectable interest asserted here by nan it's trade secrets or what kind of restriction would be necessary to adequately protect those trade secrets particularly given that an american competes globally the court also failed to recognize that under arkansas law the reasonableness of a non compete is not only a question of fact it's the parties challenging the reason i'm honest and in this case that would be mr rational who bears the burden of proof and more moreover arkansas courts have uniformly held that whether a covenant is reasonable and forcible must be decided on a case by case basis on on the evidence neither the district court enormous pressure decided this single case in which an arkansas court and validated a non compete deeming it unreasonable on its face and that case by case determination of enforceability makes sense when you consider the standard for reasonableness you have to take into consideration both then the nature of the employer's protectable interests here it's trade secrets and then what matters would be necessary to reasonably protect and did something that the arkansas supreme court explicitly rejected in the bending their case which is the very case that the court put so much weight and in bending or the court said we do not hold that every restrictive covenant that fails to contain a geographic restriction is unreasonable each case is governed by its facts now even though the district court relied on banning art to such a great extent it never cited that particular provision from from bending there and nor  your honor first of all there's no employee and history of not competes ever addressed that has never called the former employer and said hey i just want you to know i'm about to give your trade secrets to my new employer or you know our i've already done so there's complete there's no transparency to the old employer when the new employee leaves and goes to a direct competitor you don't know what's going on so you have a knob compete to protect you in that instance  would be easy enough for a new employer to install a person who's not compete and another department of the company but they're still in a position where they're able to use the information to the  competitive advantage of the new employer and again that goes to the enforceability which i think would be a question of fact for that for that trier of fact to decide the court here further erred and in finding bending or controlling parties arguments the covenant in that case like this one had no geographic limitation and it barred the employee from rendering service to a business competitor of marshalltown tool marshalltown first argued that the lack of a geographic restriction in the covenant was reasonable because it competed nationwide with the new employer and it had also fashioned an international market but then it changed its position at argument perhaps recognizing that a global restriction or a lack of a restriction cannot be justified by nationwide competition and then it argued that to the court that the covenant restricted the employee from working for any entity that marshalltown considered a competitor in other words it wanted this objective definition of who its competitors were so it asked the court to define competitor to include any company in the trial industry that is in competition with marshalltown for sales in the united states  regardless of where the company's located in the the problem with that argument is that that's not how the the covenant read it doesn't have the phrase business competitor in the united states so marshalltown was basically asking the court to rewrite the it's restrictive covenant which under arkansas law courts are not allowed to do it was it was basically asking the court to fit the scope of its restriction to the scope of its market that's not this case back has no geographic in its agreement because it competes globally not internationally not nationwide and its protectable interest here is its trade secret and there are trade secrets that mr rush has intimate knowledge of in a wide range of areas particularly with regard to the end product which is used globally it's used in applications ranging from military to all manner of industrial uses and even a racing cars again she knows its chemical formula knows the manufacturing process that's in contrast to bending or where the chancellor found that mr bending earth's knowledge of marshalltown tools trade secrets was minimal at best and that his highest used to his new employer was basically just his general knowledge of the trial industry based on his experience generalized knowledge of a of an industry based on experience is not a protectable interest but trade secrets certainly are funny on a mac isn't asking the court wasn't asking the district court to rewrite highly technical and history it provides its trade secrets it gives access to its trade secrets and other confidential information to its employees only on the condition that they sign in than can be in addition to other guarantees of confidentiality that they  so there's no arkansas appellate court that appears to have considered this particular scenario where an employee who protects who competes globally is trying to protect its trade secrets but there's also no indication in any arkansas pace that if an employer such as coca cola move to arkansas for example and want one of their one or two employees at coca cola who are supposed to have the coca cola recipe the coke recipe there's no indication in any arkansas case that that coke couldn't preclude its employees who have that trade together from asian from working for any competitor globally and that's what this case is mr rush has trade secrets that could be secrets that a geographic restriction in the nine compete would not adequately protect those trade secrets where i think where the district court went wrong here is it tried to fit this case in you  know the bending or bucket or the sales cases buckets and what he should have done what the court should have done under arkansas laws follow the sting in for reasonable ness reasonable and enforceability is due to be decided on a case by case and reasonable a supposed to be based on an employer's need to protect its asserted legitimate interest can offer evidence in the district court at trial that it's agreement is reasonable and in forcible and it's necessary to protect its trade secrets in addition to holding that the agreement was on in force a bill because it lacked a geographic restriction the court also erred in concluding that the phrase any business which competes with me on a mac was va competitor wasn't define the problem there was that marshalltown tool was trying to find business business competitor to include basically derived in the phrase business competitor in the us market and again arkansas courts aren't allowed to do that with to make restrictive cabinet reasonable when if the court had any questions about what the term competitor means it can do as other arkansas courts do which is you know look to the dictionary definition i don't think competitor is ambiguous the case is somewhat similar to the custom microsystems case in which the employer was precluded from working for a client of his employer and the court look to the definition of client to decide whether the new employer fit within their and the judgment of the district court below should be affirmed for for three reasons here today i know there's a preliminary issue first of whether sure issues motion was procedurally proper and sure it's believed that it was because the pleadings were closed at the time she filed her a motion which the court it claims here please he would be a complaint an answer a counterclaim if there is one and an answer to the counter claim the appellant's rely on the case of of curry from the circuit which consider the timeliness of a jury demand on that case  and that was was found to be that the pleadings were closed as to that claim because the all the pleadings that were allowed to be filed in that claim had been filed because there were no other defendants named in that claim and that's exactly the situation exists here where all of the covenant is still broader than necessary to protect nomics interest because it does restrict church from working in any capacity for any company which it deems a competitor and as i pointed out to my brief even if sure it were to go to work in the accounting department or whatever the department there she would still be under nano makes position in violation of her agreement and originally in a principle brief not to make alleged sure it was only prohibited from working in the narrow nanotechnology field  as seen in the reply brief they go on to to change that argument and say that no make a terrific durham's our church is restricted from working in any position for any competitor because she could provide that information to them almost as if they had employed her in another position as a farce just to gain that information from them however that goes against the public policy of arkansas if they if they were to employ her in another position just to gain access to that information it would not even be necessary for them to employ her to do that they could simply approach her she could approach them in an indirect capacity as an independent contractor or an agent of the company and so this agreement goes much beyond what it is what is necessary here to adequately protect namak points out the able to use standard that is discussed by the court in the building or case where an employee is able to use information  the court is on to discuss that that the court could still and force that non computer agreement against the employee even though there is no direct evidence that the employee has actually disclose that information it however it would be implicit in that situation of the ethical rimini would be an injunction against that employee not a breach of contract action since logically there would have been no damages yet and damages is an element of the cause of action for each of being rich contract or as here data originally assert a claim for an injunction in the district court which was also dismissed by the additionally arkansas case by case analysis of non compete agreements is not a loosening of the federal pleadings standard now make still bears the burden under ashcroft and bell atlantic purchased  judge should've let the case proceed further yes we don't say to that to decide whether the restriction is broad and necessary under the particular circumstances of this case this industry this eighty to ninety percent of the market there for those clients or as here sure it is completely almost restricted from working in her field of study entirely and so that just goes to show that there is no what's on reasonable about that it would be against the public policy of arkansas to be to a completely restricted employee from working in in their field and if even if all work in the field would involve using the trade secrets that she obtained from anime or are you saying there some other way you think she should be able to work in the field i think that i believe her employment contract also contained a non disclosure provision separate from the non disclosure provision which was was dismissed and not appealed and i think that would be the appropriate venue or for a or avenue for a company to protect its information would be through non disclosure agreements but the trade secrets act both of which an enemy nonis are causes of action for here it is possible to go to work in those fields without disclosing your previous employers confidential information  and especially to you could go to work in other capacities there for a competitor and not disclose that information and not be working in that field just to know it's not before the record here but my client is now pursuing an m b a degree and so if you were to go to work for a good offer to go back to work for for b s f or any other company under nano mix interpretation of this agreement she would not be able to  go to work for a company in any capacity and so you know i think that the appropriate venue for for addressing a company's confidential information would be through non disclosure agreements rather than through non competition agreements where the employee is completely restricted from from any employment with that company below in dismissing the claim for breach of a non disclosure agreement found that nano mic cannot properly pled what damages now many of the damages that now make alleged for many of the actions by harmed by by sure is a breach of the covenant and that is only a conclusory state which is not sufficient here and as discussed it would be more appropriate for them to have pursued an injunction against church to prevent her from disclosing that information however they pursued a breach of contract action against her and and as an enemy disco said in their reply brief that they had not had an opportunity for discovery however that is that is incorrect as is in to to restrict her only from working in in a position which she was employed at at an american would require rewriting of the covenant which under arkansas arkansas law is not permissible as the covenant reads she restricted from working in any employment in any capacity for a company which now makes means a competitor and insures his position it would be enforceable against her only if she were restricted from working in any division in a division similar to what she was working  they cannot be rewritten by the court shows that it is necessary for them to to restrict church from working in any capacity for any company to adequately protect information  friction and lubrication and where when and when surfaces are in relative motion we're talking about nano manufactured lubrication solutions in particular in this case she could work in the tribe ology field she could work in material science as there is apt and that's what an evidentiary hearing is for is to decide these types of issues but it certainly can't be decided on the face of the pleadings that mr rush is precluded from working for her in her entitled to arnie on a mac would be entitled to attorney's fees and nominal damages but i think nana mack is entitled to discovery in this case to determine whether there were any disclosures and whether there would be any damages that would flow from those disclosures as far as whether there was a breach in th know old employer has no idea what disclosure has made of its trade secrets trade secrets can be used and used to a competitive advantage without creating some specific product that the old employer can point to and say that's based on our trade secret