Liability for Future Damages Resulting from Unfair Poaching of Employees

1. Facts of the Case

The plaintiff and the defendants provide IT consulting and software solutions to business customers. After leaving the plaintiff’s company, the defendants founded their own firm. The plaintiff accused them of unfairly poaching employees and customers, as well as of the unauthorized use of business documents, and formulated its request for a declaratory judgment in part as follows:

“It is hereby declared that the [defendant] parties are jointly and severally liable to the plaintiff for all future claims for damages arising from the following elements of the defendants’ unfair poaching campaign—carried out between the fall of 2018 and, in any event, the end of 2019:

1. The dissemination of immoral, untrue, misleading, or disparaging allegations about the plaintiff or its group companies, such as

- entire business divisions of the plaintiff or its group companies would switch to the first or second defendant or had already switched

- the plaintiff or its group companies would no longer be able to serve customers in the future due to a lack of personnel

- the plaintiff or its group companies would soon become insolvent

- or similar allegations and/or

2. the unauthorized use of confidential information or trade secrets of the plaintiff or its group companies and/or

3. […]”

2. Legal Opinion of the Supreme Court

The Supreme Court ruled that the request for a declaratory judgment was too vague. It merely described behavior that is generally frowned upon, without specifying concrete facts, affected employees, or causal relationships. In some instances, parts of the request for an injunction had been copied verbatim. It was unclear what conduct had been directed at which employees and whether this had been the cause of the employees’ departure.

3. Conclusion

A reference to a request for an injunction is insufficient as a request for a declaratory judgment if it does not specify concrete past events but rather describes generally frowned-upon conduct.