Pacific Aerospace & Electronics, Inc. v. Taylor

*1208 ORDER GRANTING MOTION FOR PARTIAL SUMMARY JUDGMENT

BEFORE THE COURT is plaintiffs Motion for Partial Summary Judgment (Ct.Rec.98). The motion was heard with oral argument on September 30, 2003. Harry J. Korrell, Esq., appeared for plaintiff. John W. Beuhler, Jr., Esq., appeared for defendants.

I. BACKGROUND

Plaintiff Pacific Aerospace & Electronics, Inc. (PAE), manufactures hermetically-sealed connectors and housings for its customers’ highly sensitive electronic circuitry in the commercial and military aerospace, space exploration, defense electronics and weapons systems, medical implants, communications, and geotechnology industries. Defendants Edward Taylor and James Petri are former employees of PAE who left PAE in August 2002 to form a competing concern, defendant RAAD Technologies, Inc. (RAAD). Edward Taylor was employed at PAE as Vice President for Engineering and Technology from July 1, 1991 to August 22, 2002. Petri was employed by PAE as the Engineering Manager from June 13, 1994 to August 22, 2002.

Plaintiffs complaint alleges claims against defendants for violation of the federal Computer Fraud and Abuse Act, breach of contract, breach of common law duties of confidentiality and loyalty, breach of common law duties regarding ownership of inventions, tortious interference with contracts and business relationships, unfair competition, misappropriation of trade secrets, civil conspiracy, and conversion. 1 Essentially, plaintiff contends Taylor and Petri have stolen plaintiffs business ideas and customers to the detriment of PAE and to the benefit of RAAD.

Plaintiff now moves for summary judgment on the following claims: (1) for breach of contract against Edward Taylor with respect to the confidentiality and non-solicitation provisions of his employment agreement with PAE; (2) for breach of contract against Petri with respect to his confidentiality agreement with PAE; and (3) for breach of common law duties of loyalty and confidentiality against both Taylor and Petri. Plaintiff asks the court to permanently enjoin Taylor and Petri from any further disclosure or use of PAE’s confidential information for themselves or on behalf of any other entity; permanently enjoin Taylor, Petri and RAAD from any further contact with PAE customers until June 2005; and order an accounting and impose a constructive trust upon any profits realized by RAAD as a result of Taylor’s and Petri’s unlawful conduct.

II. FACTS 2

While employed at PAE, Taylor and Pe-tri were required to sign an Invention and Confidential Information Agreement. Pe-tri signed the agreement in 1994 and 1996. Taylor signed the agreement in 1994. The agreement states:

All Confidential Information that I observe, conceive or develop, either alone or with others, during the term of the Agreement shall be the exclusive property of the company. I will preserve in confidence and will not disclose or use, either during or after the term of the Agreement, any Confidential Informa *1209 tion known to me as a result of my relationship with the Company, whether or not conceived of or developed by me, except as required in my performance of services for the Company.

“Confidential Information” is defined in the agreement as:

... all plans, trade secrets, data, know-how, processes, techniques, specifications, drawings, instructions, research, formulae, applications, test procedures and results, chemical and ceramic formulations, compositions and products, equipment, identity and description of records, customer lists, supplier identity, marketing and sales plans, forecasts, computer data, financial information, costs, data, pricing information and all other information, concepts or ideas involving or reasonably related to the business or prospective business of the Company and not generally available to the public, or information received by the Company that the Company has a bona fide obligation, contractual or otherwise, not to disclose.

(Emphasis added).

In 1997, Taylor signed a separate employment agreement that was renewed in 2000. This agreement, which provided Taylor with employment for a specific period of time (initially, three years), provides:

5.1.1 Covenant: Either during or after expiration of the Contract Term, the Employee shall not, directly or indirectly, divulge, furnish or make accessible to any person, firm, corporation, association or other entity, or use in any manner, any Protected Information (as defined below), or cause any Protected Information to enter the public domain, except as may be required in the regular course of the Employee’s employment by the Company.

“Protected Information” is defined in Section 5.1.5 as:

... trade secrets, confidential and proprietary business information of the company ... including but not limited to, customer lists (including potential customers), sources of supply, processes, patented or proprietary technologies, plans, materials, pricing information, internal memoranda, marketing plans, internal policies, and products and services which may be developed from time to time by the Company and its agents or employees.

(Emphasis added).

Pursuant to Section 5.1.4 of the agreement, Taylor agreed that “[a]ll forms of information and all physical property made or compiled by the Employee prior to or during the Contract Term containing or relating in any way to Protected Information shall be the Company’s exclusive property.”

This agreement also imposed restrictions on Taylor’s post-employment conduct, in particular his ability to solicit PAE customers:

Section 5.2: The employee agrees that during the Contract Term and for a period of two years after expiration of the Contract Term ... he will not ... (iii) have any contact, directly or indirectly, with any customers of the Company.

The parties’ 2000 renewal of the agreement extended the Contract Term through May 31, 2002 (a period of two years). Therefore, the obligation not to contact any customers of PAE expires May 31, 2004, unless Taylor was terminated without cause. In that case, pursuant to Section 6.3 of the agreement, the prohibition extended only six months from the expiration of the contract term or until November 30, 2002. The agreement also provides that in the event Taylor breaches his confidentiality or non-solicitation provisions, the “restricted period” shall be ex *1210 tended by the period of such violation. (Section 5.4.1). As part of the agreement, Taylor acknowledged that violations of the agreement would entitle PAE to “an injunction ... restraining the Employee from committing or continuing any violation of such sections of this Agreement.” (Section 5.4.2).

On August 22, 2002, Taylor’s and Petri’s employment at PAE ceased. PAE notified both of them of their contractual and common law obligations with respect to PAE’s confidential information and also notified Taylor about the non-solicitation provision in his employment agreement. This notification occurred during a meeting with PAE officials on August 22, 2002, in writing from PAE on August 30, and a third time in a meeting on November 8, 2002.

After their employment at PAE ceased, Taylor and Petri compiled for RAAD a list of prospective customers, projects and history. The list was derived from their memories of information developed by or available to them at PAE and included customer contacts, information about active projects and engineers, and customers’ business and design preferences. Information they could not recall, including telephone numbers and addresses, was obtained from a business card file which Taylor took with him from PAE.

In preparation for a sales trip to southern California, Taylor and Petri prepared a memorandum summarizing their recollections of particular PAE customers’ engineers and their histories and attitudes about PAE. This information was given to RAAD sales representative Mark Kline for use in soliciting business for RAAD. Because of this information, RAAD was able to negotiate a lower commission structure with Kline.

Taylor and Petri used customer information they took from PAE to contact and solicit business from PAE customers. Furthermore, Taylor has personally met PAE customers within the last year, including Northrop Grumman Maryland (also referred to as Northrop Grumman Baltimore), Raytheon El Segundo, Lockheed Martin Santa Barbara (aka Santa Barbara Focal Plane), and Superconductor Technologies (also referred to as Superconducting Technologies). Petri accompanied and assisted Taylor with these solicitations.

III. SUMMARY JUDGMENT STANDARD

The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the facts before the court. Zweig v. Hearst Corp., 521 F.2d 1129 (9th Cir.), cert. denied, 423 U.S. 1025, 96 S.Ct. 469, 46 L.Ed.2d 399 (1975). Under Fed. R.Civ.P. 56, a party is entitled to summary judgment where the documentary evidence produced by the parties permits only one conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Semegen v. Weidner, 780 F.2d 727, 732 (9th Cir.1985). Summary judgment is precluded if there exists a genuine dispute over a fact that might affect the outcome of the suit under the governing law. Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

The moving party has the initial burden to prove that no genuine issue of material fact exists. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Once the moving party has carried its burden under Rule 56, “its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.” Id. The party opposing summary judgment must go beyond the pleadings to designate specific facts establishing a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

*1211 In ruling on a motion for summary judgment, all inferences drawn from the underlying facts must be viewed in the light most favorable to the nonmovant. Matsushita, 475 U.S. at 587, 106 S.Ct. 1348. Nonetheless, summary judgment is required against a party who fails to make a showing sufficient to establish an essential element of a claim, even if there are genuine factual disputes regarding other elements of the claim. Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548.

IV. DISCUSSION

A. PAE Customer Information

Defendants Taylor and Petri do not dispute they have used customer information obtained while they were employed by PAE, but they assert it is not confidential and therefore, not a breach of their employment contracts with PAE and their common law duties of loyalty and confidentiality.

Citing Ed Nowogroski Ins., Inc. v. Rucker, 137 Wash.2d 427, 971 P.2d 936 (1999), defendants contend analysis under the Washington Uniform Trade Secrets Act (UTSA), RCW 19.108, is appropriate to determine whether a customer list constitutes protected information. 3 In No-ivogroski, the trial court ruled the UTSA had displaced various other common law actions and common law cases, although the Washington Supreme Court did not address that issue on discretionary review because it was not presented to the court. 137 Wash.2d at 434 and 436, 971 P.2d 936. The supreme court did review whether an employer’s customer list constituted a protected trade secret such that it could be misappropriated by a former employee. Under the UTSA, RCW 19.108.010(4), “ ‘[tjrade secret’ means information, including a ... compilation ... that:

(a) Derives independent economic value, actual or potential from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and

(b) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.”

In Nowogroski, the trial court found that a customer list was a trade secret because it derived independent economic value from not being known and had been subject to reasonable efforts to keep it secret. Id. at 436, 971 P.2d 936. The state supreme court acknowledged that a customer list is one of the types of information which can be a protected trade secret if it meets the criteria of the UTSA. Id. at 440, 971 P.2d 936. Trade secret protection, however, will not generally attach to customer lists where the information is readily ascertainable. Thus, if information is readily ascertainable from public sources such as trade directories or phone books, then customer lists will not be considered a trade secret “and a prior employee, not subject to a non-competition agreement, would be free to solicit business after leaving employment.” Id. at 441, 971 P.2d 936. 4 Whether a customer list is protected as a trade secret depends on three factual inquiries: 1) whether the list is a compilation of information; 2) whether it is valuable because unknown to others; and 3) whether the owner has made reasonable attempts to keep the information secret. Id. at 442, 971 P.2d 936. The specific holding of the state supreme *1212 court in Nowogroski was that even customer information which is simply committed to the memory of a former employee can be a trade secret which is subject to misappropriation. Id. at 449-50, 971 P.2d 936.

Although defendants apparently maintain that PAE’s causes of action for breach of contract and breach of common law duties of confidentiality and loyalty are superseded by the UTSA, that is not the case. Indeed in Nowogroski, the state supreme court, citing its previous decision in Boeing Co. v. Sierracin Corp., 108 Wash.2d 38, 48, 738 P.2d 665 (1987), observed in a footnote that:

The existence of a contract protecting trade secrets does not preclude a separate cause of action in tort under the provisions defining trade secrets. The terms of a contract may be relevant to such issues as the existence of a protect-able trade secret or the creation of a duty of confidence.

137 Wash.2d at 437, n. 2, 971 P.2d 936.

In Boeing, the plaintiff, Boeing, alleged breach of contract, breach of confidential relationship, conversion and misappropriation of trade secrets in violation of the UTSA. The jury found the defendant, Sier-racin, had breached a contractual and confidential relationship with Boeing, and had misappropriated Boeing trade secrets. Defendant argued to the state supreme court that the trial court had erred by not consolidating all of these claims into one for misappropriation under the UTSA.

The supreme court rejected this argument, noting that ROW 19.108.900 of the UTSA specifically provides, in part:

(1) This chapter displaces conflicting tort, restitutionary, and other law of this state pertaining to civil liability for misappropriation of a trade secret.

(2) This chapter does not affect:

(a) Contractual or other civil liability or relief that is not based on misappropriation of a trade secret ...

108 Wash.2d at 48, 738 P.2d 665.

The state supreme court also observed that the U.S. Supreme Court has held that proof of trade secrets is not required for breach of confidentiality claims, which may be brought independently of trade secrets claims. Id., citing E.I. Du Pont De Nemours Powder Co. v. Masland, 244 U.S. 100, 102, 37 S.Ct. 575, 61 L.Ed. 1016 (1917). A confidential relationship alone is enough to prohibit disclosure. Id., citing Island Air, Inc. v. LaBar, 18 Wash.App. 129, 138-39, 566 P.2d 972 (1977).

The state supreme court added that a contractual provision designed to protect against disclosure would also not be subject to displacement by the UTSA, pointing out that the committee which had considered the UTSA had specifically concluded the UTSA should be limited to tort liability and not be extended to cover contract liability. Id.

PAE can assert claims for breach of contract and breach of common law duties of confidentiality and loyalty, and these claims are independent of its trade secrets claim. Nevertheless, there is some obvious degree of overlap between all of these claims and specifically that pertains to the purported “confidentiality” of plaintiffs customer information. Defendants assert it is not confidential information because it could have been acquired by them through independent means such as internet sources, trade publications, telephone directories and public libraries. Defendants’ proof consists of, among other things, declarations of Taylor and Petri filed previously in opposition to plaintiffs motions for preliminary injunction and for an order to show cause. (Exs. 9,10 and 12 to Supplemental Declaration of John W. *1213 Beuhler, Jr., In Opposition To Plaintiffs Motion for Summary Judgment).

In his declaration filed in opposition to plaintiffs motion for contempt, Taylor asserts:

It is a misrepresentation to allege that PAE possesses a customer list that is unique and different than any other hermetic connector company’s list. Although it is possible that occasionally a company may have a secret customer, this is the exception and certainly not the rule. I have not seen one customer in PAE’s complaints that could be characterized as ‘secret.’ In fact the only companies PAE complains about are the big well known companies that represent a significant portion of their business and every one of these companies can be found on all of the dozens of hermetic connector companies[’] customer lists.

In his declaration filed in opposition to plaintiffs motion for preliminary injunction, Taylor says: 1) at least 40% of the employees at PAE have access to the customer list; 2) PAE’s customers, projects, and pricing are routinely publicized by PAE; 3) and information about the specific individuals to contact about a particular program is available from the web.

In his declaration filed in opposition to PAE’s motion for preliminary injunction, Petri attached “information [he] obtained from companies who have paid [PAE] for drawings of their product and they now distribute said drawings to the general public.” Petri explains that Ex. 2 to his declaration is a “customer supplied source control drawing that depicts engineer names and a list of qualified sources for the product.” He also refers to an Ex. 3 which is supposed to be “documents verifying] that all of what [PAE] claims is proprietary about its customer list is readily ascertainable via the Internet and various trade publications.” (Emphasis in original). There is, however, no Ex. 3 attached to the copy of Petri’s declaration which the court has in its possession and furthermore, Petri does not explain how these documents verify that all of what PAE claims is proprietary about its customer list is ascertainable via public sources.

At his deposition, Petri was asked where a person could go to compile a list like the one he gave to Mark Kline, RAAD’s sales representative. He was also asked whether there were resources one could use to look up the names of engineers. His response:

Yes. You could go to the Internet and look at any one of these ... customers, Lockheed-Martin, Raytheon, they’re in there, and they list their projects that they have won awards for. And at that point, you could call their line and you could ask for project managers on specific projects. You could — you know, and eventually get to the point where you’re talking to engineers.

(Petri Dep. at pp. 61-62; Ex. 2 to Morrill Declaration Re Attachments To Motion For Partial Summary Judgment). Asked how long it would take, Petri responded that it depended on how much effort one was willing to put into it and how much time one was willing to spend. He acknowledged “[i]t would take some time.” Another way of going about finding the information, according to Petri, is to hire sales representatives, although he conceded a representative’s job is made easier if he is provided with a list of the engineers and the projects worked on. (Id.).

Defendants also rely on a declaration of Jan Orazem which was submitted by them in opposition to plaintiffs motion for preliminary injunction. (Ex. 1 to Declaration of John W. Beuhler, Jr., In Opposition To Plaintiffs Motion For Summary Judgment). Orazem is the owner of Advanced *1214 Connection Systems, Inc., which is in the business of representing various technical manufacturing companies. He claims to have more than 25 years experience in the world of interconnect, bonding and sealing. According to Orazem, “through a variety of readily ascertainable and accessible sources most, if not all, of PAE’s customers can be discovered in a short period.” In his declaration, Orazem describes how using PAE’s own web site he was able to ascertain PAE customers and from there, using public sources, determine the identity of the customer’s engineer and purchasing agent for certain PAE applications. Orazem concludes that “[w]ith a niche technology, defined markets and the ease of obtaining information via the Internet, it doesn’t surprise [him] a bit that multiple telephone calls would be coming to the same engineers.”

The assertions of Taylor and Petri about PAE customer information being publicly available are conclusory and focus on general information about the customers and their projects which is more likely to be publicly available. PAE’s concern is defendants’ use of more specific information pertaining to particular engineer contacts within companies and particular customer needs regarding hermetically sealed electrical connectors. Defendants’ use of such information is best exemplified by an attachment to an e-mail from Petri to Kline entitled “California Contacts.” (Ex. 18 to Morrill Declaration) which identifies contacts for various companies and tidbits about those companies such as: “[Advanced Bionics Corporation] require[s] hermetic seals in titanium, usually with platinum/irridium pins;” [Indigo Systems] love[s] the peiformance from the PAE products, but hate[s] the prices. Start by calling on Vu Nguyen, (pronounced Voo Win) [Sr. Mechanical Engineer];” “[Gene Findley, Chief Scientist with L3 Communications] would be a great advocate if you can butter him up. If he thinks you are in his fan club you are in good shape. If you don’t kiss his ass he will make sure you do not get business. He was forced to use PAE connectors when PAE bought Balo and discontinued the Balo connectors he was using. Boy did this piss him off;” Santa Barbara Focal Plane’s “[c]urrent project is a flange with a PAE Jr-D welded into the flange. Let them know we are developing a connector similar to the Jr-D with a dia .012 pin .... Mention my name to Elna [SaitoDesign Engineer], I’ve worked with her on PAE projects.”

Petri was asked whether he believed that compiling a list of customers, contact people and existing PAE projects for RAAD was consistent with his obligations under his employment agreement with PAE. He responded “No.” Asked what part of the agreement he violated, Petri stated:

Well, I — if—the only thing I may have violated would be the fact that I knew about the specific names and used them after leaving PAE ....

(Petri Dep. at pp. 88-89).

The court agrees with PAE that the value of this information is evident because of the fact that Mark Kline, RAAD’s sales representative, was willing to take a 5% commission on sales instead of an 8% commission because Petri had “provided most of the leads that get me to the key people involved in the decision-making.” (Kline Dep. at pp. 89-90; Ex. 19 to Morrill Declaration). Asked whether information he had received from Petri and Taylor about particular companies and contacts within those companies would be publicly available, Kline was largely uncertain, admitted obtaining some of the information might require some work, and that even if some of the information was publicly available, it might not be available in the same detail as Petri and Taylor had relayed it to him. (Kline Dep. at pp. 139-147).

*1215 The Orazem declaration does not convince the court there is a genuine issue of material fact whether Taylor and Petri used confidential customer information contrary to their contractual and common law obligations. For example, Orazem claims that by accessing the PAE website he was able to ascertain that Advanced Bionics Corporation was a customer of PAE with regard to Advanced Bionics’ Clarion cochlear implant. Orazem says he then accessed the web page for Advance Bionics “which contained all of the information necessary to contact their relevant sales and technical people.” This very general information should be compared to the very specific customer information contained in the aforementioned “California Contacts” memorandum that not only is “ABC [Advanced Bionics Corporation] ... producing a cochlear implant device which is in production,” but that [ABC] require^] hermetic seals in titanium, usually with platinum/iridium pins.” Furthermore, the “California Contacts” memorandum identifies the relevant contact person at ABC as Bob Hodge, Director of Manufacturing Engineering, and provides a phone number and e-mail address for him.

It is apparent from the language in the employment agreements that PAE was deeply concerned about employees using confidential and valuable customer information when they left the employ of PAE. Accordingly, PAE went to great lengths to protect such information. In signing the agreements, Taylor and Petri also recognized that at least some PAE customer information had the potential for being confidential. And in his 1997 agreement, renewed in 2000, Taylor specifically acknowledged that a violation of the confidentiality provision would cause irreparable injury to PAE and therefore consented to issuance of an injunction restraining him from committing or continuing any such violation. (Sections 5.1.2 and 5.42).

The court finds it interesting that defendants have now been represented by three different counsel in this case. Defendants’ counsel at oral argument on plaintiffs motion for partial summary judgment is different from the counsel which represented defendants at oral argument on plaintiffs motion for preliminary injunction. On both occasions of oral argument, counsel for defendants were asked what language they would have included in the employment agreements to more definitely cover the conduct in question (use of confidential customer information). Neither counsel could offer a sage suggestion.

In the end, if it is as easy as Taylor and Petri assert to compile all of the PAE customer information at issue by using public sources, one has to ask why they did not try to do it that way. The fact they did not, and then could not when faced with this litigation, compels this court to conclude as a matter of law they have breached their contractual and common law obligations of confidentiality to PAE.

B. Solicitation of PAE Customers

Edward Taylor does not deny that he has directly solicited at least some PAE customers for RAAD since his departure from PAE. Furthermore, defendants do not deny that Petri and Kline have solicited some PAE customers on behalf of RAAD since August 22, 2002. Taylor asserts, however, that: 1) that the non-solicitation provision in his employment agreement constitutes an unreasonable restraint of trade and therefore, violates public policy in the State of Washington; and 2) even if it does not, it was only effective until November 30, 2002 because his employment at PAE - was terminated without cause.

Taylor contends the non-solicitation provision in his 1997 employment agreement, renewed in 2000, is an unreasonable *1216 restraint of trade because even if RAAD developed a completely different technology than that developed by PAE and sold it to PAE customers, he would still be in violation of the non-solicitation provision. Furthermore, Taylor contends the non-solicitation provision should not be enforced because it deprives the public of his service and skill which is valuable to the public interest.

RCW 19.86.030 declares that “[e]very contract, combination, in the form of trust or otherwise, or conspiracy in restraint of trade or commerce is ... unlawful.” An employee’s covenant not to solicit an employer’s clients is a type of covenant not to compete. Reasonable covenants not to compete are enforceable. Perry v. Moran, 109 Wash.2d 691, 698-99, 748 P.2d 224 (1987). The reasonableness of a covenant not to compete is determined by the court as a matter of law. Id. Whether a covenant not to compete is reasonable is determined using a three-part test: 1) whether restraint js necessary for the protection of the business or goodwill of the employer; 2) whether it imposes upon the employee any greater restraint than is reasonably necessary to secure the employer’s business or goodwill; and 3) whether the degree of injury to the public is such loss of the service and skill of the employee to warrant nonenforcement of the covenant. Knight, Vale & Gregory v. McDaniel, 37 Wash.App. 366, 369, 680 P.2d 448 (1984). If a restriction is not greater than reasonably necessary to protect the employer’s business or goodwill, it will be upheld even if it restrains the employee of his liberty to engage in a certain occupation or business and deprives the public of the services, or restrains trade. Perry, 109 Wash.2d at 698, 748 P.2d 224, citing Racine v. Bender, 141 Wash. 606, 610-11, 252 P. 115 (1927).

In its June 20, 2003 preliminary injunction order at p.-, 2003 WL 23100804 at *14, this court stated that “if RAAD were to develop a completely different technology and sell it to PAE customers by using Taylor’s and Petri’s own talents and experience and not misappropriated trade secrets, this would be fair competition.” Indeed, it would likely be “fair competition,” unless Taylor directly or indirectly solicited the customers during the restrictive period of a reasonable and lawful non-competition clause. Restraint has been held necessary to protect a business from the unfair advantage a former employee may have because of personal contact with the employer’s customers resulting in the acquisition of information “as to the nature and character of the business and the names and requirements of the patrons or customers” during his employment. Copier Specialists v. Gillen, 76 Wash.App. 771, 774, 887 P.2d 919 (1995). PAE has a legitimate interest in protecting its customer base from depletion by a former employee. It also has a justifiable expectation that by providing employment to Taylor, he would not take away their customers, at least not for a reasonable period of time and not by use of confidential information pertinent to those customers. An employee’s covenant not to solicit his employer’s customers for a reasonable time is a fair method for protecting the employer’s customer base. Such a covenant encourages employment of individuals like Taylor, who was employed at PAE for approximately 11 years, while discouraging the taking of the employer’s customers without preventing the employee from engaging in the profession. See Perry, 109 Wash.2d at 700, 748 P.2d 224. Defendants have not presented any evidence that the non-solicitation covenant wholly prevents Taylor from engaging in his profession for himself, for RAAD, or any other entity.

In the Knight ease, at issue was a provision which prevented accountants employed by an accounting firm (Knight, Vale *1217 & Gregory or “KVG”) from soliciting or doing work for customers of the accounting firm for a three year period after the accountants left the employment of the firm. The Washington Court of Appeals held this was reasonable. First, the court found the accounting firm had a “legitimate business interest in maintaining the large and profitable clientele acquired over the years.” 37 Wash.App. at 369-70, 680 P.2d 448. According to the court:

This interest is enhanced in the sphere of public accounting because the nature of the accountant-client relationship is such that employees of such a firm gain extensive, valuable knowledge of the clients’ business and internal operations and develop a close, familiar working relationship with the client. This experience enables them to be exceptionally competitive with the firm should they choose to leave and offer the same services on their own.

Id. at 370, 680 P.2d 448. This same rationale clearly applies to Taylor.

The Knight court also found the covenant not to compete, to the extent it prohibited performing accounting services for customers of the accounting firm for three years, was reasonable and lawful. It did not unduly restrain freedom of employment because accountants who had worked for the firm were not precluded from practicing in Tacoma, were free to compete for clients served by anyone other than KVG, and were not precluded from engaging in other branches of accounting work. Furthermore, the advanced training and experience of an accountant who had worked at KVG would presumably allow him or her to attract clients other than by former connections alone. Id. Likewise, Taylor is not precluded from setting up shop in Wenatchee where PAE is located, and during the restrictive period he is free to compete for clients served by anyone other than PAE. He has enough experience that he does not need to rely solely on his former connections to PAE in order to attract business. While the market for hermetically sealed electrical connectors may be small, as noted above, there is no evidence that the non-solicitation provision effectively precludes Taylor from any and all employment.

In Knight, the court also found KVG clients, as members of the public, were not unduly injured by the restraint because there was no evidence they had been deprived of competent accounting services and they could have chosen either to stay with KVG or employ other firms until the term of the covenant expired. The court found that although the defendants (accountants who had left KVG) might be exceptionally skilled, the service they offered was neither unique nor incomparable.