image: Dolce & Gabbana

image: Dolce & Gabbana

Designer Philipp Plein took to his personal Instagram account on Sunday to post an image of a legal document, which he claims is from legal counsel for Dolce & Gabbana. The Italian luxury brand’s lawyers reportedly sent Plein a letter outlining his company’s alleged attempts to poach roughly 10 employees from Dolce & Gabbana, most of whom work at the company’s flagship store on Via della Spiga in Milan.

According to Dolce & Gabbana’s counsel, two of its former employees, who now work for Plein, have been in contact with current Dolce & Gabbana employees for the sole purpose of poaching them to join Philipp Plein. In particular, D&G alleges that the two employees, Andrea Lanza Cariccio and Jaco Cuccato, who both worked for Dolce & Gabbana in the past, got in touch with several Dolce & Gabbana sales assistants to offer them work at Plein’s new showroom in Milan, which is expected to open before the end of the year. 

In response to the accusations, Plein captioned his Instagram post with a lengthy statement tagging Dolce & Gabbana and stating: “Just received a love letter from Dolce and Gabbana’s lawyer accusing me and my people that we would steal their employees. This is a free country and everybody can choose by themselves who they want to work for!!”

The German designer went on to add that he “loves” and “respects” the Dolce & Gabbana brand and describes co-founders Stefano Gabbana and Domenico Dolce as inspirational. “It’s sad to say but everybody loves you until you become competition !!!! Since more than 15 years I work 24/7 on realizing my dream and building my company …. I respect everybody and I never received any support from this industry until today!” 

Non-Compete Clauses, Non-Solicitation, and Italian Law

As for whether Plein is legally in the wrong here may depend on whether the employees at issue have non-compete provisions in their contracts with Dolce & Gabbana that would prevent them from working for a competing company for a specific duration. The existence (or lack thereof) of such provisions is unclear at this time, but given the individuals’ positions as sales assistants, it is very unlikely. 

For the uninitiated, non-compete clauses are common contractual provisions entered into between two parties either upon contract signing or at the end of a business relationship, in which one party agrees not to compete with the other for a set period of time. While non-compete clauses are largely disfavored in many jurisdictions as they are viewed as limiting an individual’s ability to make living, Italian law does permit them, as long as the terms are in writing and explicitly approved by the employee at issue.  

In accordance with Italian law, an employer and employee can agree that, after the termination of the employment relationship (for whatever reason), the employee will be prohibited from working (in a self-employed capacity or otherwise) in competition with his former employer. The agreement can be signed at any point during the employment relationship and also after its termination. 

According to art. 2125 of the Italian Civil Code, non-competition clauses must also be limited in terms of time, territory, and subject (i.e., activity prohibited to the employee). Limitations by territory and subject matter should not prevent the employee from working at all during the duration of the non-compete period. Moreover, in terms of duration, a former employer may not restrain an individual’s right to work for a competitor for a period of over three years for employee-level individuals and over five years for executives.

As previously noted, non-compete clauses are likely not an issue here, as such contract provisions are most commonly utilized for the most upper-level talent, such as creative directors and CEOs, and for those that are privy to extremely valuable and secret company information. This most likely does not include store assistants, who are simply not subjected to the same level of information as other company higher-ups. 

Interestingly, Dolce & Gabbana may still have a claim, though, if we consider the following language from the Italian Civil Code: “In the absence of a valid non-competition clause, after the termination of the employment relationship, the employee will be free to undertake any activity without limitations, but respecting the fair competition principles.” That last clause is interesting, “but respecting the fair competition principles.” 

With this in mind, what about non-solicitation? Will the practice of solicitation fall within the realm of unfair competition? Again, the answer is almost certainly, Yes! 

While it is assumed in Italy that it is not generally possible to prohibit the hiring of employees by a former employee, the former employee must not use confidential information or infringe the “fair competition” law which prohibits so-called “raids.” This means that individuals are prohibited from orchestrating a team move to a competitor if the reason for that move is to weaken the former employer rather than to purely improve its own workforce.

The potential good news for Plein: In practice, it is difficult for employers to prove that a non-solicitation of employees covenant has been broken because merely showing that an employee has been hired by a former colleague is not necessarily a breach of the covenant. Nonetheless, the penalties provided for the breach of the covenant, alongside the possibility that the former colleagues may tell the employer of the work proposal received, can prevent the former employee soliciting his former colleagues.

Given that any of the alleged poaching at hand and what may be deemed solicitation (given that Andrea Lanza Cariccio and Jaco Cuccato both used to work for Dolce & Gabbana, the company from which they are attempting to poach employeeS) very well may fall within the category of unfair competition, Plein may not be off the hook. Stay tuned!