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Patrick, Esq.
Patrick, Esq., Lawyer
Category: Employment Law
Satisfied Customers: 12801
Experience:  Significant experience in all areas of employment law.
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I have a 6 month non compete with 2 months remaining. I

Customer Question

I have a 6 month non compete with 2 months remaining. I worked at another company that was considered competition for 3 1/2 months ansd they didn't threaten to come after me. Now I am with a new company but I am not selling against them nor do I have any responsibility to call their clients until the new year when it will be up. I left due to ethical reasons of deception and lies that put my clients business at risk. THe company is now up for sale and they are looking to complete it in 2 months. THey have another employee that left to go to the same firm I worked at and he is selling is actually selling. Due to the financial stress my old company had they started to layoff folks that made it difficult for me to be successful. What can I do?
Submitted: 11 months ago.
Category: Employment Law
Expert:  Patrick, Esq. replied 11 months ago.

Hello and welcome. My name is ***** ***** it will be my pleasure to assist you. Please just give me a moment to review your question....

Expert:  Patrick, Esq. replied 11 months ago.

Well first, an individual in your circumstance can accept the new employment and simply hope that your old employer doesn't find out about it, or if they do find out that they decide it's not worth their time to pursue legal action. If they have already declined to pursue you for a previous arguable breach of the non-compete, then chances are they won't pursue you at this point either.

If they do find out about your job with a competitor, you have various arguments. First, you can argue that they committed a material breach of your employment contract by laying off employees that were essentially to your success. This material breach entitles you to rescind the entire contract, including the non-compete provision. You can also argue that you were forced to leave because of ethical concerns and thus, constructively terminated. Since you essentially had no choice but to resign you can argue that the non-compete is unreasonable and excessively burdensome. Finally, you can argue that they are not suffering any damage as a result of you working for a competitor because you are not directly involved in sales. For added effect, you could retain a local attorney to write a letter raising these points, which may cause your former employer to take them more seriously and will give the impression that you intend to fight any lawsuit that might be filed against you, thereby making it even less likely that you will be sued.

If I can clarify anything at all for you, please do not hesitate to ask. It is my pleasure to assist you further if necessary....

Customer: replied 11 months ago.
Basically the CEO said he is going to enforce it now. With 2 months remaining as they are trying to sell their firm in the next 2 months. He is an emotional guy and is acting out in his comment to pursue this now. I think it is in hopes to get me in trouble with my current employer. What would it cost to have a letter written to them?
Expert:  Patrick, Esq. replied 11 months ago.

A local attorney could write a letter for somewhere between $300-500 most likely. Such letter, raising the points I have described above, would typically be the best approach under the circumstances as it lets your former employer know that you have arguments against enforcement of the non-compete and makes it appear as though you will vigorously defend against a lawsuit. The fact is employers rarely have real incentives to enforce non-competes except at the highest executive levels, as it is so hard to prove any actual damage in most circumstances.

Again if there is anything more I can do for you just let me know. It's my pleasure....

Expert:  Patrick, Esq. replied 11 months ago.

Were you able to view my last reply to you?