Both Company A and Company B are technology-intensive enterprises, with a high degree of similarity/similarity in the direction of research and development, products produced, and other business operations, and there is a direct competitive relationship between them. From 2018 to 2021, Company B frequently recruited technical personnel from Company A who had signed a competition restriction agreement with Company A. Company A cannot bear it anymore and wants to sue Company B, consider the feasibility of the lawsuit.

Lawyer Analysis

If Company A sues Company B solely on the basis of Company B's high salary, it is unlikely to win the lawsuit. From the published past cases, only a few cases support the plaintiff's company's claims. For example, in the case of unfair competition dispute between Beijing Ji'ao Polymerization Technology Co., Ltd. (hereinafter referred to as "Ji'ao Company") and Liu Guoqing and Beijing Highland Barley Houcheng Technology Co., Ltd. (hereinafter referred to as "Highland Barley Company"), Liu Guoqing served as the chief technical officer of Ji'ao Company and signed a competition restriction agreement with Ji'ao Company. After leaving Ji'ao Company, Liu Guoqing held shares and held positions in its competitor, Highland Barley Company. The Beijing Haidian Court and the Beijing Intellectual Property Court both supported the application of Ji'ao Company. However, this case is only a case in point. Liu Guoqing served as the chief technical officer of Ji'ao Company, and the special situation of holding shares in competitors of Ji'ao Company after his resignation also affected the judgment of this case. The judgment of this case cannot be uniformly applied to cases in different provinces/regions/cities and different cases. In fact, the majority of decisions in publicly publicized cases do not support former employers asserting liability against competitor companies for employees who have competitive restriction obligations to join them.

How should technology-intensive enterprises cope with the frequent high-paying poaching behavior of their competitors? It is generally believed that technology-intensive enterprises can build a strong fence in the following aspects to prevent brain drain:

Issue a written letter or lawyer's letter to the competitor as soon as possible to clearly inform the competitor that the company's technical personnel and other employees have a competitive restriction obligation on the company and require them not to hire without authorization.

Improve the competition restriction agreement between enterprises and technical talents, and increase the cost of talents entering competitor companies.

3. Establish a strict confidentiality mechanism.

4. Standardize the workflow of technical talents, and pay attention to keeping relevant files with traces during work.

5. If necessary, establish an equity incentive mechanism for the core personnel of the technical team.

"After discovering that a competitor has poached technical personnel at high salaries or hired personnel with competitive restriction obligations to the company, pay close attention to the dynamics of the competitor. Once it is discovered that the competitor has infringed on the company's business secrets, timely collect evidence, prosecute, report to the Market Supervision and Administration Bureau, and/or report to the public security organ.".