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Listening: a conversation between a lawyer and a client regarding employment law (1)

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A: [In a business-like voice] Anne Malloy.

T: Hi, Anne. It’s Tim. Hey. You sounded like you were at work just then.

A: Really? Well, I will be in a couple of weeks. The lease for the new office begins on the first. Are you calling about the letter from Skinner Plackard?

T: So you got it. Good. Yes, that’s exactly why I’m calling. It arrived late yesterday. I wanted to get a copy to you as soon as possible, but I also wanted to make sure I talked to you about it as soon as you got it.

A: So what’s it all about? I thought that when I packed up and left I was done with that place.

T: Not quite. As you can see, they’re resurrecting the non-competition agreement you signed.

A: I thought you said that was unenforceable.

T: I said it was very unlikely they’d pursue litigation against you. Skinner Plackard has never sought to enforce its non-competition agreements with any other former employees.

A: So if they did in my case, it would look like they were singling me out. For no reason.

T: The problem is they claim you were competing with them even before you left—basically they’re claiming you breached the duty of loyalty.

A: Sounds downright medieval.

T: It just means that every employee has a duty to be faithful to his employer. A duty not to use the employer’s assets for personal gain for your own benefit. Or to act in such a way as to injure the company.

A: Hold on. They’re claiming I was working against them while I was still working for them?

T: They’re saying you had every intention of leaving the company long before you gave your notice. They say you engaged in self-dealing, that you were working for your own benefit, not the company’s.

A: Why? Because I was considering starting my own company? Everybody knew what I was thinking.

T: No, they’re saying you did more than think about it. They’re alleging you solicited fellow employees to come work for you.

A: Not true. Any ex-Skinner Plackard employees coming to work for me are people who approached me, not the other way around.

T: They also claim you appropriated corporate opportunities.

A: Meaning what, exactly?

T: Meaning steering business that should have been theirs away from them and to your new company.

A: That’s absolute nonsense.

T: And they say you’re planning to use confidential information you got from them to compete against them. You know, things you learned or ideas you developed in the course of your employment.

A: Look. When I open Malloy Associates it’s going to be with my own information—knowledge I had before I ever went to work for Skinner Plackard. They’re just annoyed that one of their star employees had the nerve to leave them.

T: No doubt. In any event, I think you’ve got a number of defences. Weren’t you promoted several times after signing that non-compete?

A: I was. Does that make any difference?

T: It might. All right, so let me get to work on drafting a response. I’ll run it by you when it’s ready.

A: Sounds good. Talk to you soon.

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