# Microsoft sues Google over defection; does it have a case? **URL:** \ **Category:** Great Debates\ **Created:** [July 20, 2005, 2:23pm UTC](https://boards.straightdope.com/t/microsoft-sues-google-over-defection-does-it-have-a-case/313287 "2005-07-20T14:23:46Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Revtim](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/revtim/32/1042_2.png) [@Revtim](https://boards.straightdope.com/u/Revtim)\ **Post date:** [July 20, 2005, 2:23pm UTC](https://boards.straightdope.com/t/microsoft-sues-google-over-defection-does-it-have-a-case/313287/1 "2005-07-20T14:23:46Z")
> **[The Times & The Sunday Times](https://www.thetimes.co.uk/)** > > News and opinion from The Times & The Sunday Times > [@](#): > > Microsoft is furious about the defection of Dr Kai-Fu Lee, one of its technology experts and founder of its Asian research division, who has left to head Google’s first research and development centre in China. > > Microsoft claims the move violates confidentiality and non-competition agreements Dr Lee signed when he joined the company in 1998. The software company is seeking a court ruling that would require Dr Lee to honour his contract, which it says includes a clause forbidding him to work for a rival within a year of leaving. > [@](#): > > But Google said it would defend itself “vigorously” against Microsoft’s action and vowed to “fully support” Dr Lee in the matter. > > “We have reviewed Microsoft’s claims and they are completely without merit,” Google said. Kinda sounds like MS has a case here, to my non-lawyer eyes. What would make the non-competition agreement not applicable? ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [July 20, 2005, 2:32pm UTC](https://boards.straightdope.com/t/microsoft-sues-google-over-defection-does-it-have-a-case/313287/2 "2005-07-20T14:32:38Z")
Generally, non-competition agreements are considered enforceable unless they are excessive, such as effectively denying someone a livelihood. They’re generally considered reasonable if the term in question is a year or less. This is a contract matter, though, so it’s not really possible to tell anything without seeing the actual language of the contract. ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [July 20, 2005, 2:37pm UTC](https://boards.straightdope.com/t/microsoft-sues-google-over-defection-does-it-have-a-case/313287/3 "2005-07-20T14:37:03Z")
Non-compete agreements are banned in California, by state statute, so it depends on the state. I think Colorado and North Dakota also ban non-compete agreements. Since Microsoft is headquartered in Washington state, I would think that state’s law governs this agreement, but the fact that it was a position in a foreign country may also have some bearing. ---
**Author:** ![FordPrefect](https://avatars.discourse-cdn.com/v4/letter/f/e99b99/32.png) [@FordPrefect](https://boards.straightdope.com/u/FordPrefect)\ **Post date:** [July 20, 2005, 2:55pm UTC](https://boards.straightdope.com/t/microsoft-sues-google-over-defection-does-it-have-a-case/313287/4 "2005-07-20T14:55:48Z")
The last time I heard something this diabolical was when Microsoft was able cause the defection of Borland’s C++ Builder Team leader and put him in charge of the Visual C++ department at Microsoft. What’s good for the goose, is good for the gander. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [July 20, 2005, 3:11pm UTC](https://boards.straightdope.com/t/microsoft-sues-google-over-defection-does-it-have-a-case/313287/5 "2005-07-20T15:11:50Z")
> [@FordPrefect](#): > > What’s good for the goose, is good for the gander. Well, depending on state law and any valid agreements the respective anserine parties might have entered into in this case, that is. ---
**Author:** ![smiling\_bandit](https://avatars.discourse-cdn.com/v4/letter/s/e9a140/32.png) [@smiling\_bandit](https://boards.straightdope.com/u/smiling_bandit)\ **Post date:** [July 20, 2005, 3:36pm UTC](https://boards.straightdope.com/t/microsoft-sues-google-over-defection-does-it-have-a-case/313287/6 "2005-07-20T15:36:15Z")
> [@](#): > > Microsoft was able cause the defection of Borland’s C++ Builder Team leader and put him in charge of the Visual C++ department at Microsoft. Yeah, but Borland was in California, wasn’t it? Of course, I think Google is, too, which could really complicate the case. ---
**Author:** ![Gorsnak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gorsnak/32/7587_2.png) [@Gorsnak](https://boards.straightdope.com/u/Gorsnak)\ **Post date:** [July 20, 2005, 3:45pm UTC](https://boards.straightdope.com/t/microsoft-sues-google-over-defection-does-it-have-a-case/313287/7 "2005-07-20T15:45:26Z")
What’s been confusing me is how Microsoft could possibly have any case against _Google_. Shouldn’t they be suing Dr Lee? Google sure as hell never signed any contract with Microsoft saying they wouldn’t compete with them for employees. ---
**Author:** ![Revtim](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/revtim/32/1042_2.png) [@Revtim](https://boards.straightdope.com/u/Revtim)\ **Post date:** [July 20, 2005, 3:47pm UTC](https://boards.straightdope.com/t/microsoft-sues-google-over-defection-does-it-have-a-case/313287/8 "2005-07-20T15:47:47Z")
Good point **Gorsnam** , I was going to bring that up in the OP but forgot. ---
**Author:** ![tim314](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tim314/32/3468_2.png) [@tim314](https://boards.straightdope.com/u/tim314)\ **Post date:** [July 20, 2005, 5:14pm UTC](https://boards.straightdope.com/t/microsoft-sues-google-over-defection-does-it-have-a-case/313287/9 "2005-07-20T17:14:11Z")
Maybe they’re suing Google because one of the company’s employees (namely Dr. Lee) violated a contract with Microsoft. Can it work like that? ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [July 20, 2005, 5:17pm UTC](https://boards.straightdope.com/t/microsoft-sues-google-over-defection-does-it-have-a-case/313287/10 "2005-07-20T17:17:10Z")
> [@tim314](#): > > Maybe they’re suing Google because one of the company’s employees (namely Dr. Lee) violated a contract with Microsoft. Can it work like that? There is a cause of action for interference with a contract. However, I’m not saying anything more until I actually see the complaint that Microsoft filed. The news reports I’ve seen have not given details of Microsoft’s actual legal claims and pretty much everything posted so far in this thread is pure speculation. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [July 20, 2005, 5:38pm UTC](https://boards.straightdope.com/t/microsoft-sues-google-over-defection-does-it-have-a-case/313287/11 "2005-07-20T17:38:43Z")
And I can’t even figure out what court this action was supposedly filed in. ---
**Author:** ![mhendo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mhendo/32/3159_2.png) [@mhendo](https://boards.straightdope.com/u/mhendo)\ **Post date:** [July 20, 2005, 8:12pm UTC](https://boards.straightdope.com/t/microsoft-sues-google-over-defection-does-it-have-a-case/313287/12 "2005-07-20T20:12:10Z")
Just out of interest, how does one define “competition” in cases like this? Sure, there are some companioes that might be considered to be in direct competition with MS, but there are probably other companies in the computer/technology industry that are not really part of Microsoft’s competition at all. Is there a way of determining how closely-related the “competition” must be for such clauses to kick in? I mean, i can see that Google might be a competitor for Microsoft if i’m deciding on a method of searching the web or choosing a satellite imagery application (Google Earth v. Terraserver), but probably not when i’m shopping for an operating system or word processing software. ---
**Author:** ![Steve\_MB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steve_mb/32/5339_2.png) [@Steve\_MB](https://boards.straightdope.com/u/Steve_MB)\ **Post date:** [July 20, 2005, 10:38pm UTC](https://boards.straightdope.com/t/microsoft-sues-google-over-defection-does-it-have-a-case/313287/13 "2005-07-20T22:38:35Z")
> [@mhendo](#): > > Just out of interest, how does one define “competition” in cases like this? Microsoft might get slapped down for attempting to define “competition” so broadly as to constitute effective denial of livelihood. (This is especially true if it’s suing the new employer, not just the employee – can you say “chilling effect”?) ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [July 21, 2005, 1:45pm UTC](https://boards.straightdope.com/t/microsoft-sues-google-over-defection-does-it-have-a-case/313287/14 "2005-07-21T13:45:28Z")
Okay, I finally got my hands on a copy of the complaint … I’ll just give general info for now. The action is filed in King County Superior Court – that’s a Washington state court, not a federal court. The plaintiff is Microsoft Corp. (a Washington corporation) and the defendants are Kai-Fu Lee (a resident of Bellevue, Wash.) and Google Inc. (a Delaware corporation with its p/p/b in California and an office in Kirkland, Wash.; it does business in Washington). So the implication is that the action is based on Washington state law and that the court should have jurisdiction over Google in Washington. The court will have to decide whether it can assert personal jurisdiction over Google for “doing business in Washington.” Venue in the King County court is based on a forum provision in the contract between Microsoft and Lee. Google is accused of “assisting” Lee in his breach of contract. The causes of action are: 1. Breach of contract (against Lee) 2. Breach of non-disclosure promises and misapropriation of trade secrets (under Wash. Rev. Code Sec. 19.108) (against Lee) 3. Tortious interference with contractual relations (against Google) Microsoft seeks injunctive relief and compensatory damages (to be determined). If I have time later, I’ll try to post quotes from the contractual language and the relevant legal provisions. ---
**Author:** ![Revtim](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/revtim/32/1042_2.png) [@Revtim](https://boards.straightdope.com/u/Revtim)\ **Post date:** [July 21, 2005, 1:49pm UTC](https://boards.straightdope.com/t/microsoft-sues-google-over-defection-does-it-have-a-case/313287/15 "2005-07-21T13:49:31Z")
That’s mighty cool of you to do all that **acsenray** , thanks. ---
**Author:** ![smiling\_bandit](https://avatars.discourse-cdn.com/v4/letter/s/e9a140/32.png) [@smiling\_bandit](https://boards.straightdope.com/u/smiling_bandit)\ **Post date:** [July 21, 2005, 1:55pm UTC](https://boards.straightdope.com/t/microsoft-sues-google-over-defection-does-it-have-a-case/313287/16 "2005-07-21T13:55:05Z")
> [@](#): > > Google Inc. (a Delaware corporation with its p/p/b in California and an office in Kirkland, Wash.; it does business in Washington). Side note: whatever one says about Microsoft, it doesn’t do that. Many companies take advantage of Delaware’s greed to establish their HQ’s there. They get certain preferences and easier rules in some things, even though they may do no business there and may have HQ’s elsewhere. This started well over a century ago. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [July 21, 2005, 2:04pm UTC](https://boards.straightdope.com/t/microsoft-sues-google-over-defection-does-it-have-a-case/313287/17 "2005-07-21T14:04:04Z")
> [@smiling bandit](#): > > Side note: whatever one says about Microsoft, it doesn’t do that. Many companies take advantage of Delaware’s greed to establish their HQ’s there. They get certain preferences and easier rules in some things, even though they may do no business there and may have HQ’s elsewhere. This started well over a century ago. Whatever Microsoft’s reason for not incorporating in Delaware, I’m hesitant to assume that it’s based on some notion of principle or fair play or civic duty. ---
**Author:** ![mhendo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mhendo/32/3159_2.png) [@mhendo](https://boards.straightdope.com/u/mhendo)\ **Post date:** [July 21, 2005, 4:01pm UTC](https://boards.straightdope.com/t/microsoft-sues-google-over-defection-does-it-have-a-case/313287/18 "2005-07-21T16:01:03Z")
> [@smiling bandit](#): > > Side note: whatever one says about Microsoft, it doesn’t do that. Many companies take advantage of Delaware’s greed to establish their HQ’s there. They get certain preferences and easier rules in some things, even though they may do no business there and may have HQ’s elsewhere. This started well over a century ago. Ah, Delaware: The Worst State. A place that makes a living providing a haven for greedy corporations who don’t like other states’ pesky regulations, and exacting outrageous tolls on anyone who has the temerity to want to drive through this worthless place on their way to or from somewhere more interesting. Driving on the New Jersey turnpike costs under 5c per mile. Driving on I-95 in Maryland costs about 4c a mile. But to get from one to the other you have to cross Delaware, which charges 18c a mile, secure in the knowledge that most of the road users are out-of-staters who can’t register their opposition at election time. There was a good article about Delaware’s parasitic existence by Jonathan Chait in _The New Republic_ a few years back. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [July 21, 2005, 4:26pm UTC](https://boards.straightdope.com/t/microsoft-sues-google-over-defection-does-it-have-a-case/313287/19 "2005-07-21T16:26:36Z")
According to Microsoft’s complaint, the relevant provisions of the employment agreement are: > [@](#): > > **1. Best Efforts/Conflicting Interest/Moonlighting.** I will diligently perform my assigned duties and devote my entire working time, abilities and efforts to such duties and to furthering the best interests of Microsoft. During my employment, I will not engage in any activity or investment that (a) conflicts with Microsoft’s business interests, (b) occupies my attention so as to interfere with the proper and efficient performance of my duties for Microsoft, or © interferes with the independent exercise of my judgment in Microsoft’s best interest. … > > **3. Non-Disclosure.** During my employment and at all times thereafter, I will nether disclose to anyone outside of Microsoft nor use for any purpose other than my work at Microsoft … any confidential or proprietary information or trade secrets of Microsoft or its subsidiaries. … “Confidential or proprietary information or trade secrets” means all data and information in whatever form, tangible or intangible, that is not generally known to the public and that relates to the business, technology, practices, products, marketing, sales, services, finances, or legal affairs of Microsoft …, including without limitation: information about actual or prospective customers, suppliers and business partners; business, sales, marketing, technical, financial and legal plans, proposals and projections; concepts, techniques, processes, methods, systems, designs, programs, code, formulas, research, experimental work and work in progress. > > **4. Non-Competition and Non-Solicitation.** While employed at Microsoft and for a period of one year thereafter, I will not (a) accept employment or engage in activities competitive with product, services or projects (including actual or demonstrably anticipated research or development) on which I worked or about which I learned confidential or proprietary information or trade secrets while employed at Microsoft: (b) render services to any client or customer of Microsoft for which I performed services during the twelve months prior to leaving Microsoft’s employ; © induce, attempt to induce, or assist another to induce or attempt to induce any person to terminate his employment with Microsoft or to work for me of [sic] for any other person or entity. If during or after my employment with Microsoft I seek work elsewhere, I will provide a copy of this Agreement to any persons or entities by whom I am seeking to be hired before accepting employment with or engagement by them. ---
**Author:** ![Madd\_Maxx](https://avatars.discourse-cdn.com/v4/letter/m/5f9b8f/32.png) [@Madd\_Maxx](https://boards.straightdope.com/u/Madd_Maxx)\ **Post date:** [July 21, 2005, 4:59pm UTC](https://boards.straightdope.com/t/microsoft-sues-google-over-defection-does-it-have-a-case/313287/20 "2005-07-21T16:59:14Z")
So in other words; **Microsoft** to **Google** : All your Dr. Kai-Fu Lee are belong to us. [Next page](https://boards.straightdope.com/t/microsoft-sues-google-over-defection-does-it-have-a-case/313287.md?page=2)