How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask Patrick, Esq. Your Own Question

Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 6742
Experience:  Significant experience in all areas of employment law.
Type Your California Employment Law Question Here...
Patrick, Esq. is online now
A new question is answered every 9 seconds

I am considering taking a job with a indirect competitor of

Customer Question

I am considering taking a job with a indirect competitor of a freelancing client i had ended a relationship with back in may 2012. I am an interaction designer and worked with them on product strategy. The company is incorporated in Delaware corporation as an INC. However they Operated out of Maryland.

I will not be sharing any knowledge about there business, plans, or work that i did with this freelancing client to with the new job.

My understanding is that non-competes are not enforceable in California, even if the non compete was in another state and there for i would not have to get prior written Concent.

In addition, while i signed this document i never received a copy signed by a representative of the business.


Specific text from agreement in question:
"Non-Solicitation and Non-Competition. During the Term and for a period of eighteen (18) months after the Termination Date, Consultant shall not, except with the prior written consent of the Company:
directly or indirectly, individually or as part of or on behalf of any other person, employer or entity, hire or attempt to solicit for hire, any persons who are employed by the Company and with whom Consultant had contact while performing the Services, at any time until at least three (3) months after such person’s employment with the Company ends.
directly or indirectly, on behalf of Consultant or any other person, entity or employer, sell or otherwise provide, or solicit for the purposes of selling or otherwise providing, any service that is similar or related to those to be provided by the Company, in connection with Consultant’s providing Services under this Agreement, as of the Termination Date to any person or entity. This restriction will not apply to a service if at any point during the eighteen (18) month period after the Termination Date the Company stops providing any service that is similar or related.
directly or indirectly, own, manage, operate, control, be employed by, participate in, advise, consult or contract with, or be connected in any manner with the ownership, management, operation, or control of any business that develops, distributes, sells or markets any service that in each case is directly competitive, similar or related to those developed, distributed, sold or marketed by the Company in connection with Consultant’s providing Services under this Agreement, within the geographical area in which, as of the Termination Date, the Company is actively marketing or has made a significant investment in time and money to prepare to market its services within the ninety (90) day period after the Termination Date.
Unless otherwise specified in writing from the Company to Consultant, the Company’s engagement of Consultant shall be non-exclusive."

the full agreement:

is available if you need it. i just cant paste it into the box
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 1 year ago.
Hello and thank you for entrusting me to answer your question.

Can you please clarify for me whether you were working in Maryland when you signed the agreement, or were you in California at that time?

I very much look forward to helping you on this matter.
Customer: replied 1 year ago.

I was working in NYC when I signed this Agreement.


 


 


 

Expert:  Patrick, Esq. replied 1 year ago.
Izac,

Thank you for your reply. Does your contract contain a choice of law provision, meaning a provision which specifies what state's law will apply to interpretation of the agreement?
Customer: replied 1 year ago.


  1. Choice of Law. Regardless of the choice of law provisions of the State of Maryland or any other jurisdiction, the parties agree that this Agreement shall otherwise be interpreted, enforced and governed by federal law and the laws of the State of Maryland.




is there a way for me to send you the pdf?

Expert:  Patrick, Esq. replied 1 year ago.

Thank you again for your reply.

You are correct in noting that California law strongly disfavors non-compete agreements and finds them void in virtually all circumstances (See Bus. & Prof. Code 16600). However, the analysis here is more complex because your non-compete was signed in New York and specifically invokes the law of Maryland. The law in each of these two other states permits non-compete agreements provided they are reasonable in duration and geographic scope.

If your former employer attempted to sue for breach of contract in the State of California, or if you sued for "declaratory relief" (a preliminary court ruling that something is legal or illegal before an actual controversy materializes), the California court would certainly find in your favor. However, if your employer attempted to enforce a legal action for breach of contract in the state of Maryland or New York, those courts may follow the choice of law provision in your contract and find your non-compete unenforceable if it is reasonable in duration and geographic scope.

Whether any judgment could actually be enforced in the state of California (your former employer would have to apply to CA courts to give the judgment full faith and credit) is a different story, but this is murky legal water that you would want to avoid if at all possible.

Depending on your financial resources and the importance of ensuring this non-compete is unenforceable, an individual in your circumstance may wish to retain a local attorney to obtain declaratory relief in CA court (a finding that the non-compete is unenforceable) as well as an injunction (a court order) prohibiting your former employer from taking action in any out-of-state court. While a Maryland or New York court would likely apply the choice of law provision in your contract, they would typically recognize a CA injunction and refuse to rule upon the substance of your former employer's out-of-state breach of contract claim.

I realize that my answer is not as straight forward as you were hoping, but I do not want to mislead you into thinking that an out-of-state non-compete, signed out-of-state, and with a choice of law provision invoking the law of a foreign state, is automatically null and void if the employee travels to California. While that would be the result if a CA court ruled on the matter, a Maryland or New York court could conceivably reach an alternative conclusion and then, at the very least, you'd have to fight in CA court to prevent the judgment from being recognized in CA.

One last point I'll make is that, even if Maryland law were applied, that does not guarantee you'd be in breach, as non-competes are valid only if reasonable in duration and geographic scope. Attempting to enforce a non-compete across the country may very well not be reasonable in terms of geographic scope, and so as a worst case scenario, you could argue that the non-compete is invalid even according to Maryland law.

Again, this is a complicated situation with complicated answers and legal solutions. If you wanted to neutralize the threat of an adverse legal judgment, you would probably want to hire an attorney to obtain declaratory relief and an injunction in CA court. For attorney referrals, I like http://www.avvo.com

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes to you and thank you so much for coming to Just Answer.

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
< Last | Next >
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
  • It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. Tony Apopka, FL
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C. Freshfield, Liverpool, UK
 
 
 

Meet The Experts:

 
 
 
  • LawTalk

    Attorney

    Satisfied Customers:

    912
    I have 30 years of experience in the practice of law, including employment law and discrimination law.
< Last | Next >
  • http://ww2.justanswer.com/uploads/LA/LawTalk/2012-6-6_17379_LawTalk.64x64.JPG LawTalk's Avatar

    LawTalk

    Attorney

    Satisfied Customers:

    912
    I have 30 years of experience in the practice of law, including employment law and discrimination law.
  • http://ww2.justanswer.com/uploads/MU/multistatelaw/2011-11-27_173951_Tinaglamourshotworkglow102011.64x64.jpg Tina's Avatar

    Tina

    Attorney

    Satisfied Customers:

    827
    JD, 16 years experience & recognized by ABA for excellence in employment law.
  • http://ww2.justanswer.com/uploads/PI/PIExpert/2012-7-1_152453_Attorney.64x64.jpg Brandon, Esq.'s Avatar

    Brandon, Esq.

    Lawyer

    Satisfied Customers:

    320
    Has received a certificate of recognition from the California State Senate for his outstanding legal service.
  • http://ww2.justanswer.com/uploads/PH/phoenixrising119/2012-7-26_11214_043.64x64.jpg melissamesq's Avatar

    melissamesq

    Attorney

    Satisfied Customers:

    47
    Represent clients to maximum recovery in employment cases.
  • http://ww2.justanswer.com/uploads/IG/Iggy1001/2013-11-20_23344_JApic.64x64.jpg Joseph's Avatar

    Joseph

    Lawyer

    Satisfied Customers:

    3098
    Extensive experience representing employees and management
  • http://ww2.justanswer.com/uploads/JK/jkiani22/2013-11-18_15348_JacobKiani1copy2.64x64.jpg jkiani22's Avatar

    jkiani22

    Attorney

    Satisfied Customers:

    20
    Attorney
  • /img/opt/shirt.png Legal Counsel's Avatar

    Legal Counsel

    Lawyer

    Satisfied Customers:

    32
    California Licensed Attorney- 29 years- Wages, Hours, Overtime, Discrimination, Wrongful Termination.
 
 
 

Related California Employment Law Questions