What constitutes poaching?
Thread poster: Eric S.
Eric S.
Taiwan
Local time: 16:10
Chinese to English
Oct 29, 2016

I'm in the process of trying to switch over from agencies to direct clients, and as I've been going through a wikipedia list of companies that could be potential clients, I came across a company that it seems I may have worked for before, indirectly through an agency I found here.

Can contact them about business as long as I'm not doing it using information the agency gave me, or doing so by any kind of other shady or underhanded means? Is there any way this could be considered poaching, or an NDA violation?


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Intertranslations LTD
Greece
Local time: 11:10
Member (2002)
English to Greek
+ ...
NDA violation Oct 29, 2016

You need to read carefully the NDA you signed. It is very serious matter and you can get in trouble if you violate an NDA. I advise you to start contacting other clients and not the ones they were assigned to you indirectly.

I hope I helped you with your question.


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Dan Lucas  Identity Verified
United Kingdom
Local time: 09:10
Member (2014)
Japanese to English
Start with what is legally possible, but don't finish there Oct 29, 2016

Shihaoheng wrote:
Is there any way this could be considered poaching, or an NDA violation?

In the UK it is very difficult to enforce contracts that suppress competition because this is seen as contrary to the public good. A clause restraining trade must be reasonable in scope (including geographical area) and duration. For example, it's highly unlikely that a court in the UK would enforce an agreement that would allow one party to prevent the other from following their trade for five years, anywhere in the world. (See for example, quasi-random Google selections here and here). What the legal situation is in Taiwan, I have no idea, but you should find out.

Moving from what is legally possible to what is ethically acceptable, if you haven't dealt with an end client through an agency for one year, that would seem to me to be more than enough time to make the end client fair game.

I think the route to the client matters. Did the agency make you aware of the existence of the end client or is the end client the sort of client that you would naturally target in any case? For example, if you specialise in translating transport and shipping documents, then you could not fail to be aware of Evergreen Marine. An agency could not make a credible argument that, without them, you would never have thought of approaching Evergreen Marine.

However, if the end client is a small, unlisted but prosperous warehousing company in Kaohsiung that for historical reasons does a lot of business with a certain mid-sized US firm operating out of the port of LA and thus has a requirement for copious English to traditional Chinese translation, and one of their directors is a personal friend of the owner of the agency, the situation would be a little different. Could you really claim that you would have uncovered this end client by yourself if the agency had not made you aware of their existence?

That sort of situation might not completely preclude pitching for work from the Kaohsiung company, but the issues become more more complex.

Regards,
Dan


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Eric S.
Taiwan
Local time: 16:10
Chinese to English
TOPIC STARTER
Well, Oct 29, 2016

Dan Lucas wrote:
Moving from what is legally possible to what is ethically acceptable, if you haven't dealt with an end client through an agency for one year, that would seem to me to be more than enough time to make the end client fair game.

I think the route to the client matters. Did the agency make you aware of the existence of the end client or is the end client the sort of client that you would naturally target in any case? For example, if you specialise in translating transport and shipping documents, then you could not fail to be aware of Evergreen Marine. An agency could not make a credible argument that, without them, you would never have thought of approaching Evergreen Marine.

Regards,
Dan


Thanks for the detailed answer!

Here's what the NDA states:

The COLLABORATOR recognizes the COMPANY’s proprietary rights over the client base and accounts that the COLLABORATOR may come into contact with. The COLLABORATOR shall also refrain from contacting and dealing directly with the COMPANY’s clients in a way that goes against the COMPANY's interest. In particular, the COLLABORATOR agrees that it shall not, while performing the Services, and for a period of one year immediately following completion/termination of said services, either directly or indirectly, call on, solicit, or poach any COMPANY clients with whom the COLLABORATOR first became acquainted through COMPANY while performing the Services, either for the COLLABORATOR’s own benefit or for the benefit of any other person or entity.


As I've said, I saw the clients on a wikipedia list, and upon visiting their homepage I saw a project that I had translated on the website (thought I didn't actually see the translation itself), leading me to believe that this company may have been the end client, though it is still possible that they are not (the project in question was TV show, so it's hard to say who actually ordered the subtitle translation).

I'm thinking the key phrase may be
any COMPANY clients with whom the COLLABORATOR first became acquainted through COMPANY


I do not believe I actually become acquainted with the company, because the agency at no time actually told me who the end client was. The question is, does that make me safe to contact this company as a direct client?


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Tomás Cano Binder, BA, CT  Identity Verified
Spain
Local time: 10:10
Member (2005)
English to Spanish
+ ...
The key phrase Oct 29, 2016

Shihaoheng wrote:
The COLLABORATOR recognizes the COMPANY’s proprietary rights over the client base and accounts that the COLLABORATOR may come into contact with. The COLLABORATOR shall also refrain from contacting and dealing directly with the COMPANY’s clients in a way that goes against the COMPANY's interest. In particular, the COLLABORATOR agrees that it shall not, while performing the Services, and for a period of one year immediately following completion/termination of said services, either directly or indirectly, call on, solicit, or poach any COMPANY clients with whom the COLLABORATOR first became acquainted through COMPANY while performing the Services, either for the COLLABORATOR’s own benefit or for the benefit of any other person or entity.


To me, the key phrase is "for a period of one year immediately following completion/termination of said services". Has a year ellapsed since you did the translation for the end customer?

It was through the work you did for the end customer that you identified one of the names in the Wikipedia as a potential end customer you worked for via the agency. To me, that company is a no-go at least during the period you agreed to by signing the NDA.

As others have recommended, do read your NDA carefully, and I mean the exact words it contains, not your rather lenient interpretation of it. We can all twist the words in a contract to make it look like we are not really-really-really breaking it, but the question her is whether a court would accept our word twisting. If in doubt, don't touch it!


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Eric S.
Taiwan
Local time: 16:10
Chinese to English
TOPIC STARTER
Not quite Oct 29, 2016

Tomás Cano Binder, CT wrote:
It was through the work you did for the end customer that you identified one of the names in the Wikipedia as a potential end customer you worked for via the agency.


I believe you have misunderstood. It was not through the work I did for the end customer that I identified the name in wikipedia.

as I've been going through a wikipedia list of companies that could be potential clients, I came across a company that it seems I may have worked for before


upon visiting their homepage I saw a project that I had translated on the website (thought I didn't actually see the translation itself), leading me to believe that this company may have been the end client, though it is still possible that they are not (the project in question was TV show, so it's hard to say who actually ordered the subtitle translation).


the agency at no time actually told me who the end client was


By this I mean to say that I had already found the list of potential clients (simply by finding a list of x-type companies for my source language country) and contacting each and every one of them. I did not, as you seem to be suggesting, open up the list and then go through my agencies client list (which I don't even have access to, as shown in the final quote above) and match them up to decide which clients to contact.

But I will follow your advice about not touching it when in doubt, thank you.





[Edited at 2016-10-29 11:53 GMT]


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Artem Vakhitov  Identity Verified
Estonia
Member (2012)
English to Russian
+ ...
Offtopic, but interesting Oct 29, 2016

Although offtopic, it would be interesting to know to what extent this method of approaching direct clients worked for you. Share your experiences sometime.

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Eric S.
Taiwan
Local time: 16:10
Chinese to English
TOPIC STARTER
I will Oct 29, 2016

Artem Vakhitov wrote:

Although offtopic, it would be interesting to know to what extent this method of approaching direct clients worked for you. Share your experiences sometime.


I'm still experimenting, and it may be awhile before I actually get some projects started this way, but I'll try to remember to post an update!


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John Fossey  Identity Verified
Canada
Local time: 04:10
Member (2008)
French to English
Set it aside? Oct 29, 2016

Shihaoheng wrote:

The question is, does that make me safe to contact this company as a direct client?


Why not simply set this one company aside until the one year period has elapsed? Then the question becomes moot.


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Maxi Schwarz
Local time: 03:10
German to English
+ ...
general thoughts Oct 29, 2016

I pondered these kinds of contracts when I first started translating. They seem to be taken from other fields, and probably usually in an employment kind of context.

So agency X states that I should not work privately for any of their clients (sometimes, forever). Agency X also says that I should not work for their clients, except through them. However, usually agencies don't tell us who those clients are, esp. since they are afraid of us contacting their clients. Joecompany may hire agency x, which hires me. Later Joecompany hires agency y, which hires me. Later Joecompany may contact me directly. The first time that I ever hear of Joecompany is when they contact me. All the other times, I got a project from an unknown company, which is referred to as "our client".

Conclusion: the clause is unrealistic and impossible in a freelance situation. We work for 20 or more agencies, all of whom have "my client", an unknown entity and we also get contacted by clients privately. The only way we can know the name of an end client is when they contact us directly.

What is reasonable and makes sense is if you somehow find out the name of the end client, and during a project contact that client saying "Look, I'm doing this for agency X which makes a profit through my work. If you go to me directly we can cut out the middleman and save you some money in the process." This would be unethical, and it is this kind of thing that such a clause is meant to stop.

(I don't sign that kind of clause, because I worked out early on that it is not possible, for the reasons I set out).


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Lingua 5B  Identity Verified
Bosnia and Herzegovina
Local time: 10:10
English to Croatian
+ ...
Direct client using an agency... Oct 29, 2016

will have very little interest in working with an individual translator.

Would they have used an agency if it were different? Do you know who you are supposed to contact in that company or how to reach this person or whether they will be responsive at all? Is it a very large and complex organization with multiple levels of management?

Once you are clear about whether you are breaching an NDA or whether you supposed take this step, you will find yourself challenged with the questions above.

Quite the contrary, you are much better off contacting a direct client that has never used an agency, I would say chances are better.


[Edited at 2016-10-29 21:51 GMT]


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Samuel Murray  Identity Verified
Netherlands
Local time: 10:10
Member (2006)
English to Afrikaans
+ ...
Not poaching Oct 30, 2016

Shihaoheng wrote:
...leading me to believe that this company may have been the end client, though it is still possible that they are not...


Oh wait, so you don't know for a fact that this is the end-client of your agency client?

The clause in the NDA presupposes that you know the identities of end-clients. The clause relates to cases where you become aware of who the end-client is via your dealings with the agency.

None of my agency clients who wanted me to sign similar clauses were willing to share with me a list of their end-clients in order for me to comply with that clause. I don't think you should read the clause as saying "I will not work for any of your end-clients" but rather "I will not work for those end-clients of yours that I meet through our mutual dealings".


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philgoddard
United States
Member (2009)
German to English
+ ...
Just don't do it. Oct 31, 2016

It's unprofessional. There are plenty of other fish in the sea.

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Georgie Scott  Identity Verified
France
Local time: 10:10
Member (2009)
French to English
+ ...
Finding the real end client Oct 31, 2016

I would ask the agency in question who their client was for that project (be smart about how you phrase the question). In my fields the end client is often a communications agency or other intermediary rather than the company advertised in the text.

It doesn't matter how you found the client, if you're aware that your work is on their website you're breaching the non-compete clause if you approach them and they turn out to be the agency's client.

For the rest, I disagree that there's no point in approaching clients that use agencies. Having worked in marketing and after numerous conversations with key players in various industries I understand why they think that it makes sense to go straight to an agency but I know that for most of them it would make more sense to work with freelancers directly. When we've discussed the matter in detail they have generally agreed on that point. In certain fields the companies with the best translated copy are those that work with freelancers directly. I've done mini studies on this at trade fairs. When you see good copy you're almost guaranteed that the company works directly with a freelancer. Every time I've seen bad copy it's come from an agency (I'm talking about two specific fields here).

As for non-compete clauses in general I think they are an abomination. Already freelancers are crippled because we don't have the right to provide examples of the work that we've done or to name any of the clients we've worked with if we sign an NDA, the fact that we're prevented from pursuing our own business development on top of that is, for me, simply a demonstration of the exploitative nature of translation agencies in general. It's like some big hulk of a man pushing to the front of the queue because he knows that everyone is too afraid to argue with him.

There is a lot more discussion on this matter in the US in any field where freelance work is common. I get the impression the translation industry is somewhat more apathetic on the subject.

Bear in mind, though, that there are various weaknesses you'll need to find a solution for. For example, what will you do if your client needs work translated when you're on holiday? What will you do if they need something translated in the other direction? etc. etc.

[Edited at 2016-10-31 09:56 GMT]


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Mario Chavez  Identity Verified
Local time: 04:10
English to Spanish
+ ...
Non-compete clauses in NDA agreements Oct 31, 2016

John Fossey wrote:

Shihaoheng wrote:

The question is, does that make me safe to contact this company as a direct client?


Why not simply set this one company aside until the one year period has elapsed? Then the question becomes moot.


In business lingo, poaching refers to the often unethical practice of persuading a client to leave their current provider for you. But let's be realistic: in America, for example, telephone and cellphone companies “poach” each other's customers all the time. But, who pays for this? The consumer, not the competitor. The consumer, if he chooses to go from Company X to Company Z because he gets better phone or Internet service, has to pay a fee for breaking the contract early.

Not all NDA agreements are created equal. John gives good advice about the non-compete clause that is asking you to wait one year. Aspects to consider:

a) Is the non-compete clause enforceable?
b) Is the NDA overall competitively fair to you?
c) Is the NDA negotiable? Of course it should be! If an agency or client wants you to sign an NDA and accept all of its clauses without change or negotiation, go elsewhere.


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