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Employment law: vocabulary in use

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Timothy J. Carlisle, Esq.
Carlisle, Kaplan & Streep
124 Fuller Road
Cambridge, MA 02100 

Dear Timothy Carlisle:

Skinner Plackard/Anne Malloy

I represent Skinner Plackard (hereafter: the company). I am writing to make clear the company’s position concerning Ms. Malloy’s continuing contractual obligations to the company following her voluntary departure last month. In particular, this letter serves as notice of the company’s intent to invoke the non-competition agreement between the company and your client.As you know, your client executed this non-competition agreement when she began employment with the company. The agreement prohibits competition by your client with the company during and for one year following the termination of her employment with the company. It applies to any and all positions your client held with the company and expressly provides that any material change in her position with the company will not affect the validity of the agreement, which will remain enforceable.

By signing the non-competition agreement, your client agreed that the scope or reach of each of the covenants contained therein is reasonable as to time, area and persons and is necessary to protect the legitimate business interests of the company. Your client further agreed that such covenants will be regarded as divisible, that is, independently enforceable. If any covenant of the agreement is found by a court of competent jurisdiction to be unenforceable, the other covenants, and the agreement as a whole, shall be interpreted to extend over the maximum period of time, range of activities or persons, or geographic areas as to which they may be enforceable.

As the agreement expressly states, the failure of the company to insist on strict compliance with or fulfillment of any of the terms, covenants or conditions thereof shall not be deemed a waiver of such terms, covenants or conditions.

It has come to our attention that before leaving the company your client filed for incorporation of her competing venture and signed a lease for office space. She also informed clients that she was leaving the company, asking them not to disclose that information to the company. In addition, she provided those clients with her contact information and asked them to contact her after she left the company. These facts are borne out by e-mails that your client sent and that have been recovered from the company’s e-mail system.

In short, it is apparent that Ms. Malloy fully intended to start a competing venture even before she left the company. Your client’s conduct is a clear violation of the non-competition agreement she signed.

The company hereby gives your client notice that it intends to enforce its contractual rights. Enclosed please find a draft complaint, which I will file one week from today’s date if your client does not cease her competitive activities.

Very truly yours,

Sylvester Mao

cc: Ms. Sylvia Longacre
C.E.O., Skinner Plackard

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