Archive for the ‘Non-Solicitation’ Category

One of the areas that I have frequently blogged about is the use and enforceability of non-compete agreements between employers and employees. It should be noted that the enforceability of these agreements varies widely depending upon the state in which the employee is located, the employer is located and the actual language used in the agreements.

Todays blog posting stems from a lawsuit filed by Zambelli Fireworks International against one of its rival fireworks companies Pyrotecnico. The dispute stemmed from coveted choreographer Matthew Wood, who quit Zambelli Fireworks Internationale in 2008 to work for Pyrotecnico. Zambelli sued, claiming Wood violated a non-compete clause in his contract.

The lawsuit stated Zambelli hired Wood in 2001, and that he was one of Zambelli’s most creative pyrotechnicians and choreographers. Shows he conducted included a New Year’s Eve celebration in Times Square and college football’s Orange Bowl in Miami.

U.S. District Judge Terrence F. McVerry on Tuesday sided with Wood and dismissed the case. Although four customers left Zambelli for Pyrotecnico — including the Florida Marlins and the Hard Rock Cafe — after Wood left Zambelli, the judge ruled that was not enough evidence to prove Wood violated his contract.

“Zambelli has failed to introduce sufficient admissible evidence to enable a reasonable factfinder to determine that its loss of business was due to wrongful conduct by Wood, as opposed to the mere loss of his services or other competitive factors,” McVerry wrote.

This case shows the importance of the language you put in the non-compete agreements since many non-competes prevent the employee from going to a competitor at all for a period of several years. Apparently that was not the case with the Zambelli contract or they would not have had their claims dismissed. Perhaps, the Zambelli agreement only prevented Wood from soliciting customers upon his departure from Zambelli.

The moral of this ruling is that if you want advice on defending against a claim brought on a non-compete agreement, you need to consult with an employment lawyer who has experience in these types of agreements.

Behren Law Firm has significant experience in representing employees and employer in these types of disputes so feel free to check out our web site for a free consultation.


I hope you all had a good Memorial Day Weekend.

So you may recall that I talked in several recent bloggings about some of the new and unique legal issues that are arising from social networking sites such as Facebook, Twitter and LinkedIn.  As I have said on several occasions, you need to watch what you are doing in your social network outings.  This new case is just one more example.

Some of you may be aware of LinkedIn which is in the nature of a Facebook for business networking.  Well a new case that was filed in Federal Court in Minneapolis now brings into question whether networking online such as on LinkedIn is a violation of a non-compete agreement.

Brelyn Hammernik, a technical recruiter, was recently sued by her former company, Hanover, Md.-based IT staffing firm TEKsystems, after she sent messages to members of her LinkedIn network — members who also happened to be current employees of TEKsystems.

In a lawsuit filed in U.S. District Court in Minneapolis, the company contends that Hammernik’s communications violated a noncompete agreement that bars her from contacting former clients and co-workers.  Hammernik left TEKsystems in November and went to work for Horizontal Integrations, an Edina, Minn.-based IT consulting firm that is also named in the lawsuit.

This lawsuit is the first of its type.  So does this lawsuit now mean that once you leave your employer, if you have a non-compete or non-solicitation agreement you need to unfriend fellow employees on LinkedIn, Facebook etc.?  And it will necessarily determine whether sending e-mails and messages on social networking sites is the type of solicitaiton that violates a non-compete agreement.  I believe that if you are not actively soliciting business or trying to get them to come to work with you at your new employer, I think it will be hard for an employer to keep you from communicating with former co-workers via social networking.  Whats next, the employer keeping you from socializing with former co-workers at parties or bars?

One possible problem with the employees conduct in this case is that she sent e-mails that could be considered blatant solicitations as follows:

“Tom — Hey! Let me know if you are still looking for opportunities! I would love to have you come visit my new office and hear about some of the stuff we are working on! Let me know your thoughts! Brelyn”

Will keep you posted on what happens with this new case.  Let us know what you think about this new case.