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Monday, May 7, 2012

The Anti Compettition Story

Over the coming days and surely into months I will continue to update the story of the "little company that couldn't." This small firm who believes they actually own the rights to an entire industry has damaged many lives. The CEO of this firm actually takes time everyday to follow up on this former employee and then make calls to anyone he thinks the employee is doing business with. At that point he harrasses and aggravates the contact with disparaging remarks about the former employee.

To gain some perspective the former employee was a telephone solicitor. A marketing position, pure and simple, now once again here is the restrictive covenant that the small firm is attempting to hammer the former employee with in the courts:

Employee agrees that during the term of this agreement and for a period of 24 months from and after the date of termination for any reason of this agreement (the restriction period), he will not directly or indirectly, own, manage, operate, join, control, be employed by, be engaged on an independent contractor basis, or participate in the ownership, management operation, or control of, or be connected or affiliated in any manner with any individual, corporation, partnership, or any other entity, that is engaged in business directly or indirectly competitive to the then existing or COMTEMPLATED business of the company within the United States (which shall be the restricted area) Employee further agrees he shall not in any fashion, form or manner; either directly or indirectly, solicits the customer’s or PROSPECTIVE customers for employee’s own account or on the behalf of any individual or entity during the restricted period.

For future reference lets refer to the small firm CEO as "Mr. Dick" and the former employee as "trying to make a living" of course we are protecting the identities as not to have Mr. Dick continue filing more trivial lawsuits. You see Mr. Dick keeps a $400 hr law firm on retainer and he lives in the courts as he loves to antagonize and harrass. The $400 law firm wrote the contract for Mr. Dick and they seem to believe that Mr.Dick has some form of legitmate business interest to protect. To give one an idea of what Mr. Dick considers to be trade secrets: public lists of licensed financial reps for cold calling are trade secrets for Mr. Dick. He contends that any former employee who makes any marketing calls for any purposes in any industry to these publicly available prospects is in breach of contract. So far the courts have ignored this simple concept. But one needs to understand that "trying to make a living" cannot afford any attorney and is therefore forced to represent self. The courts don't like this as the fraternal order of attorneys is slighted if an individual could actually defend themselves successfully, it sets a bad precedent. Not trying to make a living is all for having an attorney, but trying to make a living can't make a living because Mr. Dick seems to think that anything trying to make a living does is in breach of Mr. Dick's contract. See the conundrum here.

Mr Dick wins all these suits because former employees like trying to make a living are not earning enough to afford a proper defense and they ultimately end up in default so Mr. Dick wins the case by forfeit. PS. Mr Dick files a lawsuit that asks for no damages, so trying to make a living has to defend a case that is seeking zero damages, but if trying to make a living loses case he is liable for Mr. Dick's legal fees. So when the default judgment comes down the defendnat who did nothing wrong ends up paying zero in damages and has to pay $100's of thousands in Mr. Dick's legal fees.

Mr Dick enjoys this game and wouldn't want anyone to know who he is. If his clients knew that Mr' Dick was lawsuit happy, many would think twice before signing any contract with him. But the reality is Mr. Dick never holds clients to contractual agreements even when clients don't honor Mr. Dick's contract. This is because Mr. Dick's clients could actually afford attorneys and they could drag Mr. Dick through the courts for a long period of time.  No, Mr. Dick only goes after former employees who basically are marketing telephone solicitors who can't possibly afford to defend themselves against Mr. Dick.

Stay with us for the continuing saga of Mr. Dick sticking it to trying to make a living!

What are your thoughts about an employer attempting to enforce this type of contract in today's economic scenario?