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Gallup Inc., the consulting firm best known for the Gallup Poll, won a significant victory in its copyright suit against a competitor when a federal judge ruled that the contents of Gallup’s 13-question employee satisfaction survey are legally protectable. But U.S. District Judge Lowell A. Reed Jr. of the Eastern District of Pennsylvania stopped short of granting judgment in Gallup’s favor, finding instead in Gallup Inc. v. Talentpoint Inc. that factual disputes persist in the case that preclude granting summary judgment for either side. In the suit, Gallup claims that Kenexa Corp. (formerly known as Talentpoint Inc.) has misappropriated the contents of the “Gallup Q-12″ employee survey and has “raided” Gallup’s employees to hire away more than a dozen who are knowledgeable about the survey. Gallup’s lawyers, Arthur J. Schwab of Buchanan Ingersoll in Pittsburgh and Marguerite S. Walsh of Littler Mendelson in Philadelphia, sued Kenexa for copyright infringement and tortious interference with its contracts. But Kenexa’s lawyers argued that the survey questions aren’t entitled to copyright protection because Gallup effectively gave them to the public when it published a book titled “First, Break All the Rules: What the World’s Greatest Managers Do Differently.” In their motion for summary judgment, Kenexa’s lawyers, Thomas E. Zemaitis, Paul J. Kennedy and Jeffrey Wong of Pepper Hamilton in Philadelphia, argued that the book teaches a system and that the Q-12 survey is necessary to carry out the book’s lessons. The Pepper lawyers cited the U.S. Supreme Court’s 1879 decision in Baker v. Selden in which the justices held that the author of a book that described a new and simplified accounting system was not entitled to copyright protection for the blank forms included in the book. The dispute in the Baker case focused on whether the blank forms were part of the idea or part of the expression of that idea. The justices held that the forms were not expressive of the idea, but instead were an uncopyrightable part of the idea. “Where the art [i.e., the method of accounting] it teaches cannot be used without employing the methods and diagrams used to illustrate the book, such methods and diagrams are to be considered as necessary incidents to the art, and given to the public,” the Baker Court said. But Judge Reed found that the Q-12 survey questions were legally different from the blank forms in Selden’s 19th century book. While Selden’s accounting system required use of the forms, Reed found that the lessons taught by Gallup in “First, Break All the Rules” did not necessarily require use of the Q-12 questions. “I conclude that the idea in “First, Break All the Rules” can be expressed in multiple ways,” Reed wrote. The book’s idea, Reed said, “is that employee engagement surveys can be used to elicit information about specific constructs of a company’s work environment in order to measure the strength of a workplace and attract, focus and keep the most talented employees.” Gallup, he said, “expressed the idea with a very specific set of questions or inquiries directed to employees.” But Reed found that the Q-12 survey was not the only possible expression of the book’s idea. “The Q-12 is simply Gallup’s preferred method. Just because Gallup may boast this expression as the key to successful management, does not make it the only method. Such puffing is quite normal in promoting books — it helps sell copies,” Reed wrote. According to the suit, the Q-12 is a survey that seeks the employee’s reaction to 12 specific issues relating to perceptions of his or her workplace, plus an overall employee satisfaction question. It was designed to measure employee “engagement” in the workplace. In October 1999, Gallup received a copyright certificate for the survey which its says was created in 1992. The Q-12 is also one of the subjects in “First, Break All the Rules,” a book written in 1999 by two Gallup employees, Curt Coffman and Marcus Buckingham. In the suit, Gallup, based in Princeton, N.J., alleges that Kenexa has copied the Q-12 and is using 10 of the 12 survey items, as well as the overall satisfaction question, in virtually identical form in its employee engagement survey business. Gallup and Kenexa are competitors in the field of employee surveys. Gallup is a management consulting firm. In addition to conducting the Gallup Poll, it provides consultation to improve company performance by leveraging employee and customer assets. Established in 1935, Gallup was acquired in 1988 by Selection Research Inc., but the Gallup name was retained. Kenexa, based in Wayne, Pa., provides “integrated human capital management and technology solutions.” In 1997, Kenexa acquired Human Resource Innovations, which was founded in 1994 by former Gallup employees Bill Erickson and Troy Kanter. Gallup claims the Q-12 was developed by researchers who spent 25 years conducting thousands of focus groups across many varied industries. The suit alleges that ever since Kenexa acquired HRI, it has begun to conduct employee engagement surveys and has “raided” Gallup to hire away former Gallup employees who have detailed knowledge of the Q-12. But Kenexa’s lawyers argue that since leaving Gallup and starting HRI, Erickson has written hundreds of items used in surveys. Kenexa says its survey questions were developed through experimentation, client suggestions, a determination of what has been helpful and works, what has created a behavioral change in an organization, as well as linkage research. Over time, it says, a group of questions, or “core” survey items, has emerged. The overall employee survey methodology, and the selection of the individual items were fully developed in mid-1996, the defense lawyers say. In his 26-page opinion, Judge Reed denied summary judgment motions from both sides, but partially granted Kenexa’s motion for dismissal of Gallup’s “unlawful raid” claim after finding that no such claim exists under Nebraska law. NONCOMPETE AGREEMENTS But significantly, Reed found that Gallup can pursue claims of tortious interference against Kenexa for hiring away Gallup employees who had signed covenants not to compete. Kenexa argued that some of the noncompete agreements were invalid because they were signed long after the employee was hired and the only consideration given to the workers was continued employment. Reed found that the courts have split over the issue of whether continued employment constitutes proper consideration. New York courts, he said, have held that in at-will employment, continued employment is sufficient to support the covenant, but Pennsylvania went the other way. Since Nebraska’s courts have never addressed the question, Reed was forced to make a prediction. “This court is persuaded by the logic of those courts which focus on the import of the fact that the employees were all hired at-will. At-will employment means that an employer can terminate an employee ‘at any time without cause.’ Accordingly, it has been reasoned that forbearance of the legal right to terminate employment is a legal detriment which constitutes proper consideration,” Reed wrote. “In other words, presumably, if the employees refused to sign the contract, Gallup could have fired them, in which case future employment is deemed consideration,” Reed wrote.

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