An ongoing lawsuit between advocacy tech players has highlighted a vulnerability that many consultant firm owners may not be thinking enough about.
Sure, there’s long been a concern that a practitioner or sales person could walk out the door with some clients, and plenty of firms have protections in place for that. But how much do firm owners need to be thinking about what else an employee may walk out the door with?
As firms increasingly look to AI tools or white labeled-technology offerings to help grow their businesses, the risks could only increase.
For now, these challenges are more of a concern for advocacy shops — especially when it comes to a staffer walking with clients — said Jason Torchinsky, a partner at Holtzman Vogel. But he said he foresees a future where the concerns crossover into the realm of campaign consulting firms, particularly as AI tools become more ingrained in firms’ operations.
“Because once you fill an employee’s head with something and they walk out the door, it’s always a challenge if they’re going go work for a competitor or work in a similar industry,” Torchinsky, told C&E.
Chazz Clevinger’s departure as CEO of advocacy platform OneClickPolitics (OCP) back in February sparked an ongoing lawsuit wherein OCP alleges the long-time advocacy practitioner, among other acts, “stole” OCP’s redesign plans for its platform and used them in his own advocacy platform called CiviClick, which launched in March.
What’s more, OCP also alleges in court documents is that Clevinger, “secretly established two companies,” where he could “transition” OCP clients onto his own books. OCP also alleges in the suit that before Clevinger resigned as the company’s CEO, he “took affirmative and malicious steps to delete, modify, and destroy important and irreplaceable OCP data and assets,” including deleting clients from the company’s CRM.
Clevinger denied all of OCP’s claims in an interview with C&E in August. He said he believes that “our case is stronger than theirs.” The case is ongoing.
Dallas Thompson, an HR consultant who works with progressive and Democratic firms, said it’s a good time for firms in this space to look at their own policies. Thompson advises companies to have IT processes in place to halt a departing employees access to its systems — especially if the person in question is “not a founder who has a vested interest in ensuring the success of the firm.”
“Any organization should have policies written into place where no one person has total control of any system, be that a financial system, be that an HR system, be that a sales system,” said Thompson, founder and CEO of Bright Compass.
“Most entities that are larger have the ability to brick a laptop or a cellphone that is campaign connected. So if you’re working for my campaign and I have a good info security or tech security policy, I fire you, I can brick your laptop … I think what is probably a lot harder is smaller campaigns or firms that don’t have access to those technologies necessarily. But it absolutely should be something that they’re thinking about.”
Moreover, she noted that many firms are dependent on Google Drives to organize their documents, and emerging AI tools are able to scrape those folders.
“So there’s a lot around intellectual property and document security and informational security that folks need to be thinking about,” said Thompson. “And those are tough questions and there aren’t a ton of clear resources on right now.”
Another thing to consider here: non-compete agreements, which are becoming harder to enforce and are increasingly balked at by some industry professionals. How enforceable non-compete agreements are depends “very dramatically by state,” according to Torchinsky, a campaign finance and election law attorney by trade.
“I would say any consultant that’s looking to put those in for their employees really needs to consult a state law specialist if they want to have something that’s actually going to be enforceable,” said Torchinsky. “Don’t just grab some language that you found on the internet and stick it into your contract and assume it’s actually gonna be enforceable.”
The Biden administration is in the process of putting through rules on non-competes at the Federal Trade Commission, which will also impact their enforceability. “There’s a lot of moving parts in the law in this area.”
In the meantime, though, he said any firm that believe it’s a victim of outright theft of IP will likely have an easier time proving their case in court.
“For a court that’s easier to conceive of than ‘you can’t go work for another widget maker because previously worked for a widget maker,’” he said. “You take widget maker A’s supplies and you take them over and use them to benefit widget B, that’s easier to conceive of.”
