'Iron Throne' with a Noncompete? by Emily Wajert (May 16, 2019, 6:01 PM EDT)

Portfolio Media. Inc. | 111 West 19th Street, 5th Floor | New York, NY 10011 | www.law360.com Phone: +1 646 783 7100 | Fax: +1 646 783 7161 | [email protected] Claiming The 'Iron Throne' With A Noncompete? By Emily Wajert (May 16, 2019, 6:01 PM EDT) I can’t seem to take off my employment lawyer hat, even when watching my favorite shows. True to form, the final season of “Game of Thrones” has been filled with twists and turns, battles and heroics, and, of course, alliances and betrayals. With the highly anticipated series finale set to premiere this weekend, one burning question remains[1] — who will end up on the Iron Throne? Over the course of the show’s eight seasons, there have been many worthy (and not-so-worthy) contenders. Up until recently, it seemed the character with the strongest claim to rule Westeros was Daenerys Stormborn of the House Targaryen, the First of Her Name, the Unburnt, Queen of the Andals, the Rhoynar and the First Emily Wajert Men, Queen of Meereen, Khaleesi of the Great Grass Sea, Protector of the Realm, Breaker of Chains and Mother of Dragons (aka Dany). However, Dany’s claim came under threat once characters learned that the honorable Jon Snow actually had an even stronger claim. (For those unfamiliar, Jon Snow recently learned his true identity, which arguably places him ahead of Dany in the line of succession for the throne). Even after learning of his true identity and potentially stronger claim to the throne, Jon Snow continued to swear his allegiance to Dany as his “Queen.” Despite these assurances, Dany was clearly distraught over the idea of a popular Jon Snow competing against her for the throne. It occurred to me while watching this saga unfold that many of Dany’s problems might have been solved had she had a proper noncompetition agreement in place. Instead of repeatedly demanding Jon Snow to “bend the knee,” she should have been demanding “noncompete!” This got me thinking, could Dany have bound Jon Snow to an enforceable noncompete? For purposes of this exercise, let’s view Dany as the “employer” and Jon Snow as the “employee.” Westeros has recently adopted New York’s standard for enforcing noncompetes. Courts in Westeros may enforce a noncompete if the restriction is reasonable. Although courts evaluate noncompetes on a case-by-case-basis, a noncompete will be enforced only if it (1) is no greater than is required for the protection of the legitimate interest of the employer; (2) does not impose undue hardship on the employee; (3) is not injurious to the public; and (4) is reasonably limited temporally and geographically.[2] With this standard in mind, Dany likely could have drafted an enforceable noncompete that could have assuaged some of her fears with regard to Jon Snow and left her more time to focus on destroying her other enemies. No Greater Than Is Required for Protection of the Legitimate Interest of Employer "When you play the game of thrones, you win or you die." —Cersei Lannister An employer’s legitimate interest may include protecting its trade secrets and confidential information and, in limited circumstances, preventing employees from taking specialized skills they gained on the job to a competitor.[3] A trade secret is a “compilation of information which is used in one's business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it.”[4] Among the factors considered in determining whether there is a genuine trade secret are: • The amount of effort or money expended in developing the secret matter; • The extent of measures taken to safeguard the secret; • The extent to which the information is known outside the business; and • The possible value of the information to competitors.[5] Dany could argue while Jon Snow was performing his duties (i.e., fighting the "White Walkers"), he was entrusted with access to all manner of trade secrets, including, perhaps most notably, how to ride a dragon. Dany exerted a significant amount of effort in “developing” the trade secret, particularly in training and nurturing the dragons (we remember her struggles finding proper food for her growing “children”). She also took extreme measures to safeguard her dragons, including even flying away from battles when they were in harm’s way. As the only Mother of Dragons, Dany is presumably the sole possessor of information related to the care and maintenance of her dragons. And it was only through serving (or being employed by) Dany that Jon Snow learned how to ride a dragon — a specialized skill that arguably would now be unfair for him to use against Dany in a fight for the Seven Kingdoms. Finally, avid "Thrones" fans know possessing a dragon is viewed as the ultimate weapon, and would be extremely valuable to any competitor vying for the throne. Does Not Impose an Undue Hardship on the Employee and Not Injurious to the Public "A ruler who kills those devoted to her is not a ruler who inspires devotion." —Tyrion Lannister Dany could certainly take the position that this noncompete would not impose an undue hardship on Jon Snow and not be injurious to the public. Jon Snow repeatedly states throughout seasons seven and eight that he does not want to be king in the North and does not wish to be king of the Seven Kingdoms. As such, Dany would certainly argue that stopping him from pursuing this endeavor would not pose an undue hardship on him. Moreover, one of Dany’s many titles is the Breaker of Chains. Dany could argue that a noncompete with Jon Snow that would secure her place on the Iron Throne would in no way harm the public. However, after last week’s episode (spoiler alert!) a court would likely have a hard time accepting Dany’s argument that preserving her authority would not be injurious to the public. Limited Temporally and Geographically "It's a big and beautiful world. Most of us live and die in the same corner where we were born and never get to see any of it." —Oberyn Martell When determining whether the noncompete is reasonable in duration, courts focus on the facts and circumstances of each case. Courts commonly find time restrictions of up to six to 12 months to be reasonable.[6] Courts also have found longer restrictions to be either reasonable or unreasonable depending on the specific facts of a particular case.[7] When determining whether a noncompete is reasonable in its geographic reach, courts similarly focus on the facts and circumstances of each case.[8] Dany could have negotiated a reasonable geographically and temporally limited noncompete with Jon Snow. Geographically, Dany could have limited the scope to the Seven Kingdoms. Although Sansa Stark would protest having the North included in that geographic scope, a court would likely agree that extending the restriction to the Seven Kingdoms would not be considered “overbroad.” A six- to 12-month noncompete may have sufficed for Dany, given how quickly things have moved in season eight, although she might need more time to woo her subjects and convince them that she is their rightful queen. Because courts view this issue as extremely fact-specific, Dany would likely need to stress the unique circumstances presented to try to persuade the court that a longer temporal scope would be appropriate. Daenerys of the House Targaryen, the First of Her Name, [Queen of the NDAs?] "Secrets are worth more than silver or sapphires." —Lord Varys Despite my focus on a noncompete agreement, in the alternative, Dany also could have benefited from having Jon Snow sign a strongly worded nondisclosure agreement after learning his true identity. Fans may recall from past episodes how Dany desperately tried to persuade Jon Snow to keep his true identity confidential. A simple nondisclosure agreement could have prevented the chain of events triggered by Jon Snow choosing to divulge his identity to the Stark family.[9] "You know nothing, Daenerys Targaryen." —Employment Lawyers Everywhere Although it is unclear what fate the series finale has in store for the Mother of Dragons, it does seem many of her problems might have been avoided had she sent a raven to an employment attorney. Emily Wajert is an associate at Kramer Levin Naftalis & Frankel LLP. The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice. [1] I acknowledge stating there is only one question remaining is a bit generous. There are, in fact, many questions still unanswered. That being said, I would argue this question is undoubtedly the most important. See title of the series. [2] BDO Seidman v. Hirshberg, 93 N.Y.2d 382, 388 712 N.E.2d 1220 (1999). [3] BDO Seidman v. Hirshberg, 93 N.Y.2d 382, 389, 712 N.E.2d 1220 (1999). [4] Ashland Mgmt. Inc. v. Janien, 82 N.Y.2d 395, 624 N.E.2d 1007 (1993) (quoting section 757 of Restatement of Torts, comment b)). [5] Id. [6] See e.g., Maltby v. Harlow Meyer Savage, Inc., 166 Misc. 2d 481, 486, 633 N.Y.S.2d 926, 930 (Sup. Ct. 1995), aff'd, 223 A.D.2d 516, 637 N.Y.S.2d 110 (1996) (finding six month restrictive covenant reasonable); Crown It Servs., Inc. v. Koval-Olsen, 11 A.D.3d 263, 264, 782 N.Y.S.2d 708, 710 (1st Dept.

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