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John, Employment Lawyer
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I have a contract with with a non-compete in one of the pages.

Resolved Question:

I have a contract with with a non-compete in one of the pages. This particular page of the contract I did not sign or send in with the other pages.

Here we are now, after the project is completed. The mutual customer has extended additional work- however the middle man between the client and myself does not want to meet the customers bill rate. Having forwarded the request to them fir first right of refusal, am I free to bid and take this project given they are unwilling to?

Again we have an agreement that was executed and paid against- in that the non-solicitation page was never signed or forwarded by me. The other portions of the agreement were.

I am more than happy to contract for billable hours for this consult- given my time sensitive nature I need to get back to the client tomorrow. This kinda all came to a head today.
Submitted: 1 year ago.
Category: Employment Law
Expert:  John replied 1 year ago.
Hi, My name is XXXXX XXXXX I’m happy to assist you with your question today.

This is a factually specific matter in that you didn't sign the non-solicit agreement, but the contractor apparently sent you a non-solicit expecting that it was part of the "deal" between you two.

To be sure, non-solicits between contractor/subcontractor are enforceable under Oregon law, and the fact that the contractor has not yet or will not get more business from the customer doesn't necessarily give the subcontractor a right to solicit the unwanted business.

So you are left with what lawyers call "issues of fact" in this matter - does your agreement with the contractor include the non-solicitation even though you didn't sign it as an implied term of the contract. And, second, if it does have an implied non-solicitation, would your attaining a client that the contractor couldn't/wouldn't offer additional services at a specific price be barred by the non-solicit. These questions would go to a trier of fact (a jury usually) if the contractor sued you in the matter. And the problem with that is you'd have to go through an entire lawsuit (about 1.5 years of litigation) before you get to the point of putting these questions in front of a jury.

You were probably seeking yes or no answers on these specific issues. But there simply isn't a clear definite answer in the caselaw, and because there is no clear answer in the caselaw, you'd have to take the matter so far in litigation, you'd probably lose all the money you gained in attaining the client in the first place. The botXXXXX XXXXXne being here - the case isn't so clearly a winner for you that you can take the job with the confidence that you will not get sued and, if you do get sued, the lawsuit will last quite some time and cost quite a bit - even if you win.

My best thoughts for you on handling this are this 1) the more aggressive approach - accept the offer from customer, then if contractor demands you cease and desist - do so; or 2) the conservative approach - tell the customer you cannot do the work at this time - maybe some time in the future when it has not used contractor for a fairly long time, you can do further work for customer.

I believe this answers your question. However, if you need clarification or have follow-up questions regarding this matter, I will be happy to continue our conversation – simply reply to this answer. If you are otherwise satisfied with my response, please leave a positive rating as it is the only way I am able to get credit for my answers. Thank you, XXXXX XXXXX wish you all the best with this matter.

Customer: replied 1 year ago.

Thank you for the quick response John.


 


It seems like a lose lose situation. If I am looking @ simply a cease a desist action I would be inclined to take that approach. However without knowing what the contractor may or may not do( what would be considered reasonable action ) were they to take exception to my working with the customer its fairly difficult to make a decision here.


 


Is cease and desist the likely and reasonable response to this situation?

Expert:  John replied 1 year ago.
Joe,

At the very least I'd have to believe the contractor sends you a cease and desist letter upon learning you took a bid from the customer. The next most probable is that they file a lawsuit to attempt to get an immediate injunction against you working for the customer. Such lawsuits are fairly expensive though, so from their perspective the customer revenue would have to be in excess of around $20,000 to get going on a lawsuit. Then again, I suppose there's a small chance they never learn you took the position. So this does involve to some measure of guessing what they'd do. Most important - this is not a risk free transaction absent your plainly rejecting the position.

Hope this helps. Let me know if I can be of further assistance.
Customer: replied 1 year ago.

Thanks again John,


 


I don't want to go around them and I forwarded them the engagement first. -However it seems as though I am @ an impasse as they simply have not held together the relationship with the customer.


 


Thanks again John.


 


Is there a means to get you on retainer? I am assuming regardless of where you are practicing from - Oregon follows the UCC like everyone else. So your services moving forward would be worth the expense.


 


 

Expert:  John replied 1 year ago.

You're welcome Joe.

The website unfortunately does not allow us to individually represent clients. What you can do however if forward any future questions on the matter to me at http://www.justanswer.com/law/expert-emplmntlaw1/

Or you can simply submit new questions and note in the question "for John only" or "for emplmntlaw1 only"

Thanks, XXXXX XXXXX your business. Please leave a positive rating before you exit this chat as it is the only way I get credit for my answers.

John, Employment Lawyer
Category: Employment Law
Satisfied Customers: 3136
Experience: Exclusively practice labor and employment law.
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