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Hopefully someone can let me know if would be worthwhile to pursue or
not.
Current Situation:
Employed as a computer/network technician for a mid-sized technology
company (ISP, networking, pc's, etc).
Potential Opportunity:
'Contracted' employee for an organization not currently nor in the
past a customer of current employer, and 'Contracted' employee for a
current customer of employer. Both at the same time, basically going
at it on my own providing similar services to both potential clients.
Bit of history:
Current employer closed one of two locations, the one I had been
based out of, and 'consolidated' operations at their main location.
They still have customers in the old area.
Question:
Below is portions of the NonCompete form with the company, I'm
curious if them closing up shop in the old town and moving farther
away from the one customer I want to take over on my own would affect
anything. I imagine there would be no issues in pursuing the one
potential client that was never a customer of my current employer nor
in their 'area' of business. The NonCompete only lists 2 years as a
stipulation, it does not list a geographical area though.
The Agreement:
The employee will serve XYZ in an exclusive capacity. Accordingly, as
a condition of employment, the employee must agree that, in the event
that his/her employment terminates for any reason, for a two year
period, the employee will not, directly or indirectly, either for
himself/herself or through any kind of ownership as a director, agent,
employee, or consultant, for any other person, firm, or corporation,
call on, solicit, take away, or cause the loss of clients of XYZ on
whom the employee called or with whom he/she became acquainted during
his/her employment immediately preceding the termination of
employment. It is expressly agreed and understood that the remedy at
law for breach of covenant is inadequate and that injunctive relief
shall be available to prevent the breach thereof.
If I go at it on my own, would I have any leg to stand on if my
present employer were (pretty sure they would) try to press/enforce
the NonCompete agreement, especially when dealing with the client that
is currently 'their' customer?
If you need more information, please ask. I just want to get an idea
if it would be worth it to pursue and have an experienced lawyer check
things out.
Thanks,
GC
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Hopefully someone can let me know if would be worthwhile to pursue
or
not.
Current Situation:
Employed as a computer/network technician for a mid-sized
technology
company (ISP, networking, pc's, etc).
Potential Opportunity:
'Contracted' employee for an organization not currently nor in the
past a customer of current employer, and 'Contracted' employee for a
current customer of employer. Both at the same time, basically going
at it on my own providing similar services to both potential
clients.
Bit of history:
Current employer closed one of two locations, the one I had been
based out of, and 'consolidated' operations at their main location.
They still have customers in the old area.
Question:
Below is portions of the NonCompete form with the company, I'm
curious if them closing up shop in the old town and moving farther
away from the one customer I want to take over on my own would
affect
anything. I imagine there would be no issues in pursuing the one
potential client that was never a customer of my current employer
nor
in their 'area' of business. The NonCompete only lists 2 years as a
stipulation, it does not list a geographical area though.
The Agreement:
The employee will serve XYZ in an exclusive capacity. Accordingly,
as
a condition of employment, the employee must agree that, in the
event
that his/her employment terminates for any reason, for a two year
period, the employee will not, directly or indirectly, either for
himself/herself or through any kind of ownership as a director,
agent,
employee, or consultant, for any other person, firm, or corporation,
call on, solicit, take away, or cause the loss of clients of XYZ on
whom the employee called or with whom he/she became acquainted
during
his/her employment immediately preceding the termination of
employment. It is expressly agreed and understood that the remedy at
law for breach of covenant is inadequate and that injunctive relief
shall be available to prevent the breach thereof.
If I go at it on my own, would I have any leg to stand on if my
present employer were (pretty sure they would) try to press/enforce
the NonCompete agreement, especially when dealing with the client
that
is currently 'their' customer?
If you need more information, please ask. I just want to get an idea
if it would be worth it to pursue and have an experienced lawyer
check
things out.
If you are in California or in a state with similar laws on the point,
the non-compete agreement is not enforceable. Some states would
require an analysis of the reasonableness of the two year restriction.
So your decision will be based on research into your state's laws.
Any local business or labor attorney could do it, and could give you
good advice on how to go about competing with a former employer
legally. If you are good at internet research it won't be hard to do
the research part yourself. But it is always a good idea to get legal
advice before going into competition with a former employer, even
aside from the contract.
McGyver
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"X..." wrote:
Hopefully someone can let me know if would be worthwhile to pursue or
not.
Current Situation:
Employed as a computer/network technician for a mid-sized technology
company (ISP, networking, pc's, etc).
Potential Opportunity:
'Contracted' employee for an organization not currently nor in the
past a customer of current employer, and 'Contracted' employee for a
current customer of employer. Both at the same time, basically going
at it on my own providing similar services to both potential clients.
Bit of history:
Current employer closed one of two locations, the one I had been
based out of, and 'consolidated' operations at their main location.
They still have customers in the old area.
Question:
Below is portions of the NonCompete form with the company, I'm
curious if them closing up shop in the old town and moving farther
away from the one customer I want to take over on my own would affect
anything. I imagine there would be no issues in pursuing the one
potential client that was never a customer of my current employer nor
in their 'area' of business. The NonCompete only lists 2 years as a
stipulation, it does not list a geographical area though.
The Agreement:
The employee will serve XYZ in an exclusive capacity. Accordingly, as
a condition of employment, the employee must agree that, in the event
that his/her employment terminates for any reason, for a two year
period, the employee will not, directly or indirectly, either for
himself/herself or through any kind of ownership as a director, agent,
employee, or consultant, for any other person, firm, or corporation,
call on, solicit, take away, or cause the loss of clients of XYZ on
whom the employee called or with whom he/she became acquainted during
his/her employment immediately preceding the termination of
employment. It is expressly agreed and understood that the remedy at
law for breach of covenant is inadequate and that injunctive relief
shall be available to prevent the breach thereof.
I agree with McGyver, except....
That's not a non-compete. With the exception of the "cause the loss
of" clause, it's clearly a restriction against using the part of
the customer list that the employee actually became aware of. That
would be a trade secret (customer list) violation. It doesn't
prohibit any actions except those related to those clients
of XYZ, where the employee KNOWS that they are clients of XYZ.
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"X..." wrote:
I agree with McGyver, except....
That's not a non-compete. With the exception of the "cause the loss
of" clause, it's clearly a restriction against using the part of
the customer list that the employee actually became aware of. That
would be a trade secret (customer list) violation. It doesn't
prohibit any actions except those related to those clients
of XYZ, where the employee KNOWS that they are clients of XYZ.
I disagree. The employer may protect trade secrets, provided that
such protection doesn't go beyond the scope of California Business and
Professions Code Section 16600 which provides that (subject to certain
limited exceptions) "every contract by which anyone is restrained from
engaging in a lawful profession, trade or business of any kind is to
that extent void."
It would be ok to provide by contract that the employee may not use
the company's customer list for any purpose. But it's not ok to say
hands off the customers. If the employee can get the names and phone
numbers of the customers from the phone book or magazines or some
other non-secret source, the customers are fair game.
This contract says the ex employee must not "call on, solicit, take
away, or cause the loss of clients of XYZ on whom the employee called
or with whom he/she became acquainted during his/her employment
immediately preceding the termination of employment." None of that
may be prohibited. It's all void (or it would be if this contract
were in California). The contract says nothing about any trade
secret, or customer list.
And anyway, the customer list might not be a trade secret. They often
are not. The contract doesn't say the customer list is a trade
secret.
McGyver
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On Tue, 18 May 2004 17:10:09 -0700, "McGyver" <Greyprof@msn.com>
wrote:
I disagree. The employer may protect trade secrets, provided that
such protection doesn't go beyond the scope of California Business and
Professions Code Section 16600 which provides that (subject to certain
limited exceptions) "every contract by which anyone is restrained from
engaging in a lawful profession, trade or business of any kind is to
that extent void."
[snip]
And anyway, the customer list might not be a trade secret. They often
are not. The contract doesn't say the customer list is a trade
secret.
(sticking to California) And even if it did, that doesn't make it so.
A company can protect its legitimate trade secrets. It can't
necessarily contractually guard against a former employee from
soliciting its employees (or clients) if that solicitation doesn't
involve the unlawful use of a trade secret.
"Section 16600 has specifically been held to invalidate employment
contracts which prohibit an employee from working for a competitor
when the employment has terminated, unless necessary to protect the
employer's trade secrets. The corollary to this proposition is that
competitors may solicit another's employees if they do not use
unlawful means or engage in acts of unfair competition."
Metro Traffic Control, Inc. v. Shadow Traffic Network, 22 Cal. App.
4th 853, 859 (1994) (internal citation omitted).
------------------------------
Bob Stock, California Attorney
Nothing I've said should be relied on as legal advice.
------------------------------
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On Wed, 19 May 2004 01:08:28 GMT, Bob Stock <xxx@x.com> wrote:
Bob Stock, California Attorney
Nothing I've said should be relied on as legal advice
unless you have paid me lots of money for it.
--
Map Of The Vast Right Wing Conspiracy:
http://www.freewebs.com/vrwc/
Life is not a journey to the grave with the intention of
arriving safely in one pretty and well-preserved piece.
One should rather skid in broadside, thoroughly used up,
totally worn out, loudly proclaiming "WOW! WHAT A RIDE!"
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This all takes place in Ohio, so if anyone has experience here that would be
cool. I know I'm going to take
it to a regular attorney though, but just wanted to get a heads up since
there is no listed geographical area
and since it 'appears' to prevent all types of working in the field.
Thanks,
GC
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