Non-Competes In The Social Media World

Fortune has a great piece describing how Conan O’Brien managed to keep himself relevant for 9 months following his departure from NBC. Twitter played a huge role. That’s a little ironic in that Conan described himself as a “Luddite” prior to embracing Twitter. But the article contains an implicit warning to anyone seeking to enforce a non-compete agreement. Don’t forget about new technologies and specifically social media. O’Brien was prohibited from appearing on TV for 9 months. That’s a pretty standard provision in these types of severance agreements. And the reason for the provision, at least in part, was to keep him out of the public eye and allow Jay Leno to re-establish his role as Tonight Show host. But the agreement didn’t prohibit O’Brien from using social networking. And for $75 million (O’Brien got $45 million), it certainly could have. So if you’re using a form non-compete agreement that’s just a few years old, it may be outdated already.