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non-compete, have far can they go?

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E

edwardfuller

Guest
In 1984, I signed a non-compete agreement as a "condition of my employment." My entire career was in Sales Management, for the most part in Southern California but at times the Western United States and East Coast in association with pursing Corporate HQs out of our area with significant business units in Southern California. Since employed, I have worked and sold for various division (with differing product lines).

Currently as of August 2000, I have left the employment of that company and I am in discussions with a competitor in Southern California. I have sent them a copy of my non-compete clause which states, "For a period of 12 months after termination of my employment with said company, whether such termination is occasioned by said company, myself or our mutual agreement (or for a period of 12 months after a final judgment of injunction enforcing this covenant), I will not, either for my own purposes or as an employee of or for benefit of any other entity or person, sell or attempt to sell any service or merchandise customarily provided by said Company to any prior or current said Company customer which I called on at any time as a representative of said Company."

I have been asked by the competitor to sign an "Acknowledgement" that I have signed a non-compete clause and further that "while I do not waive my right to contest the enforceability of the Agreement or any of it's provisions, I represent and warrant the following upon employment with the competitor:"

"For the limited duration of the restrictive covenant provision of the Agreement, I will not sell or attempt to sell any services or merchandise customarily provided by the ex-employer to any prior or current customer
of the ex-employer that I called on as a representative of the ex-employer on behalf of the competitor."

"I agree that I will pay all legal fees and cost associated with the defense of any action initiated by the ex-employer against me or the competitor... and understand the my employment may be terminated if deemed necessary in the course of such litigation."

My questions are:

I understand that California Bus. & Prof. Code § 16600 declares void and renders unenforceable any covenant not to compete extending beyond the duration of the contract. What about the other states that my ex-employer is in? Does the California law cover me since I live here or, is that covered on a State by State basis?

I know this is a different twist but is the "Acknowledgement " that I am requested to sign even legal considering the ruling of Aetna v Anita Walia? In that case she refused to sign a non-compete as a condition of employment and was fired. The courts found that she was wrongfully terminated which I am assuming means that signing clauses that do not allow you to compete
(even by the competitor who is requesting that I not call on previous customers) is not enforceable.

What about the possibility of legal fees? I know that non-compete is not enforceable but what if my ex-company wants to hassle me in court. Am I liable for the costs?

Any advice would be appreciated.

Anonymously yours,
Need A. Job


 



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