The determination of whether or not employer information may be used by former employees is based on familiar principles of equity. Basically, the use of information of this sort is barred in competition with an ex-employer if, considering all the circumstances, it would be unfair for the ex-employee to use it. The determination of fairness in this context includes consideration of the desirability of permitting employees to be free to terminate the employment relation and the fact that often their chief asset after termination consists of the special skill and knowledge acquired during employment.
Whether or not an ex-employee's conduct is fair is determined on a case-by-case basis. However, an ex-employee who competes using secret information retained in his memory as a result of his work for an ex-employer is more likely to be found to be acting fairly than an ex-employee who uses written records of his ex-employer's secret information. If, however, the ex-employer's business consists primarily of gathering information and selling it to others, an employee who consciously memorizes the information is not permitted to compete after leaving the employment.
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