Intent to sue

[Wish-I-Were-Fishn]

My son's GF changed jobs and her old employer sent her an "intent to sue notice" pursuant to her non-compete agreement she had signed with them. The case wouldn't hold up in court, but the whole thing is driving her nuts.

I think the letter was intended to scare her into leaving her new job. Is there a time limit once she received the letter till they need to act upon it? Like sh_t, or get off the pot so to speak?

[Ryan_V]

I would think the letter means nothing until they actually file a lawsuit. A letter of intent just seems like a warning of what they want to do. If shes that nervous, she should talk to a lawyer, which I am not!

[Ridgerunnr]

non compete clauses CAN hold up in court...She NEEDS to go at least have a consultation with an attorney

[CAMAN]

Why do you say it won't hold up in court? If she signed a non-compete AND is working for a competitor, then she is SOL. This company might actually be being considerate and giving her a chance to find a new job so they don't have to sue. Not every company in this world is a big bad monster and out to scare everybody.

[SpecialK]

Well if she went to work for a competitor working on a completely different project where she would have no chance of contact with any of the former customers she should be ok. However if it is a direct competition to her previous employer she can probably get sued.

I am not a lawyer and will wait for them to chime in...

[Eric Wettschreck]

I'm not a lawyer, but I didn't go to college if that helps.

I've been involved in non-competes. They are very valid in Minnesota. Pretty much the only thing that will make them not stand up in court if they are for a duration of longer than 3 years. Or, if you were an employee of a company and forced to sign a non compete after you started employment without any further compensation for agreeing to the non compete.

Many times a previous employer will send an intent to sue in an effort to nip things in the bud, if you will. No one wants to go to court. It costs on both sides and the intended suit filer does not want to pay the fees.

My best advice is..........If she likes her job she needs to inform her new employer of the letter and seek some real legal advice.

[Wish-I-Were-Fishn]

Can somebody please answer my question? I really don't want to get into the details, but just want to know if there is a time limit on the intent to sue. The rest is to long to get into here.

[Bushwacker]

Its tough to give a answer to your question without a little more information. Eric W. gave an excellent breakdown of non-competes. I am not an attorney either and my advice would be to consult one. I have dealt with a number of demand letters from an insurance claims standpoint. In my very amatuer experience, the majority of the letters that I have seen that have a deadline actually state the deadline on the letter. Something like "failure to respond in 10 days will result in ...." In any case, I would seek legal counsel.

[CAMAN]

Can somebody please answer my question? I really don't want to get into the details, but just want to know if there is a time limit on the intent to sue. The rest is to long to get into here.

The intent to sue means nothing, it is just a warning they sent out. The only thing anyone will look at is the non-compete contract and after some research a 6 year statute of limitations comes up alot. I don't know if MN has 6, but it is most likely years, not months or days. I also can't find if it is 6 years from the date the contract was signed or from the last day of employment but it would be best to contact an attorney and get all the facts for your exact situation.

[MuleShack]

My best advice is..........If she likes her job she needs to inform her new employer of the letter and seek some real legal advice.

This seems like a solid piece of advice. If she likes her job, bring it to light with the new employer. If they tell her to hit the bricks because of the suit, then you already crossed that bridge. If you keep it from the employer, she could get canned later on once they find out anyway. best case scenario is they offer their legal team to offer advice or better yet represent.

[Ufatz]

Go get an attorney!!

Her former employer MUST think they need to send that letter and MUST believe she is in violation of a legal and binding agreement.

Quit wasting time.

Go get an attorney!

[401TE]

An intent to sue letter means nothing and there is no time limit that stems from that letter. The statute of limitations in MN for contract actions is 6 years. In this case, that clock likely started ticking the day she was terminated/quit her old job. If she is in violation of a non-compete clause contained in a contract with her former employer, her former employer has 6 years to sue based on that contract.

Before you have her tell her new employer about this letter and the non-compete agreement I'd consult with an attorney.

[CJH]

I've been involved in non-competes. They are very valid in Minnesota. Pretty much the only thing that will make them not stand up in court if they are for a duration of longer than 3 years. Or, if you were an employee of a company and forced to sign a non compete after you started employment without any further compensation for agreeing to the non compete.

That's not entirely true. MN law favors the employee vs the employer, I believe the legal term is "right to work" or something similar. Basically unless they can prove you are stealing/selling trade secrets or protected content, they can't prevent you from earning a living in the same industry. My wife's business has had to deal with this in the past (from the employer's side) and its very difficult to prove in court against the employee.

That being said, why on earth would you go to a fishing HSOforum for legal advice??? Setup an hour meeting with a real lawyer. The few hundred bucks it will cost will be worth the piece of mind.

[Eric Wettschreck]

True, MN is a right to hire, right to work state. However, an employeer can put conditions on employment and agreeing to a non compete is one of the conditions that can be put down. The duration is, on the average, 2 years.

The selling off of trade secrets or divulging propriertiary information would fall under a non disclosure agreement.

The non disclosure is tough to proove in court. That's why many companies that think they have important stuff will go to a non-compete.

[BobT]

That's not entirely true. MN law favors the employee vs the employer, I believe the legal term is "right to work" or something similar. Basically unless they can prove you are stealing/selling trade secrets or protected content, they can't prevent you from earning a living in the same industry. My wife's business has had to deal with this in the past (from the employer's side) and its very difficult to prove in court against the employee.

That being said, why on earth would you go to a fishing HSOforum for legal advice??? Setup an hour meeting with a real lawyer. The few hundred bucks it will cost will be worth the piece of mind.

I signed a non-compete agreement with my employer and CJH has it pretty much exactly how it is worded. I am not denied the opportunity to work for a competitor if my current employment is terminated either by me or my company. We have had many that left here to work with our competitor and later returned here again and we have hired people that formerly worked with our competitors. It would be a breach of my contract if I went to work for our competitor and disclosed proprietary information, techniques, etc. that I learned while in my employ with my current company. I know the contract is for at least a five-year term beginning with my termination date but I also remember signing a new agreement after becoming an exempt employee and I don’t have the papers with me to read the terms and know how it differs from my original agreement. In most cases I don’t believe the agreements mean you can’t work for a competitor but they usually mean you can’t share knowledge gained with a competitor.

[CJH]

True, MN is a right to hire, right to work state. However, an employeer can put conditions on employment and agreeing to a non compete is one of the conditions that can be put down. The duration is, on the average, 2 years.

The selling off of trade secrets or divulging propriertiary information would fall under a non disclosure agreement.

The non disclosure is tough to proove in court. That's why many companies that think they have important stuff will go to a non-compete.

Noncompetes (especially in MN) are generally designed to prevent a person from starting a new competing business, not from working for a competitor. They generally do not enforce them because they inhibit the person's right to work and are viewed as restraining trade.

You are correct on the nondisclosure, but even with those its very difficult to prove.

[CAMAN]

Like Eric said, that is a non-disclosure agreement not a non-compete agreement. I have signed plenty of non-disclosures and they just state you can't give out information that could benefit someone else. My girlfriend had to sign a non-compete, which states she can't go to a competing hospital and do the same job for a period of one year after leaving, they also gave her a big raise after she signed it, which is required if you were already working for them before signing.

[LightningBG]

Often times non competes are used for sales people. So you cant go to a competitor and then call on all of your old clients. These situations have little to do with proprietary information.

Here is some cut and pasted info.

Quote:

Minnesota NonCompete Agreements

As an attorney, I get two types of questions related to noncompete agreements:

Is this contract not to compete enforceable?

Would you draft a noncompete agreement for me?

1. Enforceability of NonCompete Agreements

Whether the contract is called a “noncompete” or “do not compete” agreement, the intent is the same: the employer seeks to bind the employee from leaving employment and competing with the employer. Whether they are enforceable depends on a number of factors to be analyzed by an attorney. These factors include:

Independent Consideration - Was the employee paid independent consideration (compensation) for signing the noncompete agreement? This generally means financial compensation, but training and promotions can sometimes be sufficient.

Geographic Limitation - Is the geographic limitation in the noncompete agreement reasonable or too broad? This depends on the type of business. Local businesses are narrow, and international businesses are broad. The test is whether the employer has a legitimate business interest deserving protection.

Enforcement Period - How long is the noncompete agreement in force after the employment relationship is terminated? Two years or less is generally okay. Longer is suspect.

Before you ignore a noncompete agreement, you should consult with an attorney to analyze the contract. An attorney can give you a legal opinion regarding whether the noncompete is enforceable. The consequences of breeching a noncompete agreement may include a temporary restraining order preventing you from working in violation of the noncompete along with a lawsuit for monetary damages.

2. Drafting NonCompete Agreements

The laws involving noncompete agreements varies across the United States. A noncompete agreement that is enforceable in one state may not be enforceable in another. For this reason, understanding Minnesota law is important. Also, noncompete contract forms purchased on the internet may be inadequate for parties in Minnesota.

When I draft a noncompete agreement, the process involves carefully applying relevant Minnesota law to ensure the contract remains enforceable. Properly written noncompete agreements are routinely enforced by courts in Minnesota. However, mistakes can void the agreement. For this reason, you should consult with an attorney if you need a noncompete agreement drafted.

2009 Update

Three 2008 Minnesota court cases may make noncompete agreements easier to impose on employees and enforce on ex-employees who signed noncompetes. Three Minnesota Court of Appeals cases upheld noncompete provisions under a variety of circumstances:

Tenant Construction, Inc. v. Mason, 2008 WL 314515 (Minn. Ct. App., Feb 5, 2008) (unpublished).

Sealock v. Petersen, 2008 WL 314146 (Minn. Ct. App., Feb 5, 2008) (unpublished).

Witzke v. Mesabi Rehabilitation Services, Inc., 2008 WL 314535 (Minn. Ct. App., Feb 5, 2008) (unpublished).

Witzke is especially interesting because the court held that “continued employment” for a long duration after signing the noncompete will qualify as “consideration.” Previously, the general rule was that a noncompete must be accompanied by “independent consideration” (normally some sort of financial compensation) to be enforceable on a current employee.

Other Minnesota law firms have also written good articles on Minnesota noncompete law:

Will Your Noncompete Clauses Stand Up in Court? by Marshall H. Tanick

Litigating Covenants Not to Compete, by William Christopher Penwell

In the end, whether a noncompete agreement is enforceable is often unclear because every situation is different. There is no clear line. For this reason, even most attorneys who are not experienced with noncompete agreements will defer to the analysis of an experienced noncompete lawyer. Thus, it goes without saying that, if you are not an attorney, you should consult with an experienced noncompete attorney to determine whether your noncompete contract is enforceable.

About the Author: Attorney Aaron Hall is experienced in noncompete agreements and is available to analyze noncompetes or represent parties with noncompetes. He is licensed to practice law in Minnesota. His work is largely in the Twin Cities, Minneapolis and St. Paul, MN. He provides legal counsel to businesses, business owners, and individuals.

[Chris Haley]

I was thinking we needed to know what kind of business she was in also. As a member of a family that has 2 commercial print shops. Non competes are a norm with unknown sales people. After all our company did all the ground work on graphic's and logo's and all sort's of other things. She might be going nuts, but if she tried to steal our customer's we would do the same thing.

[Chris Haley]

Usually the non compete's are not only time sensitive but distance also. We cannot expect a sales person to get out of printing if they leave of us and move hundred's of miles away. As long as they do not try to call on our current customers from there.

[Chris Haley]

Does she have a copy of her non compete?

[Ufatz]

Excuse me......but is ANYBODY listening?!!! Half the replies here strongly suggest the original poster seek an attorney's guidance. Yet the second guessing, speculation and outhouse lawyer drivel continues to flow.

I repeat: if her former employer thought it necessary and appropriate to send her such a letter she SHOULD consult an attorney. Now.

Okay, I'm done.

[LightningBG]

Excuse me......but is ANYBODY listening?!!! Half the replies here strongly suggest the original poster seek an attorney's guidance. Yet the second guessing, speculation and outhouse lawyer drivel continues to flow.

I repeat: if her former employer thought it necessary and appropriate to send her such a letter she SHOULD consult an attorney. Now.

Okay, I'm done.

Geesh. It's obvious that they should contact an attorney, but if the OP wants to get a little background "opinion", whats the harm?

If I had a blown engine in my car, I might ask what its going to take to get it fixed on here. I'd be a little disappointed if everyone just said take it to a mechanic.

[Wish-I-Were-Fishn]

Thanks lightning, you hit the nail right on the head.

[LightningBG]

Thanks

Back to the original question...

I think the letter was intended to scare her into leaving her new job. Is there a time limit once she received the letter till they need to act upon it? Like sh_t, or get off the pot so to speak?

Yes, they are trying to scare her, so they dont have to spend the money to sue.

The only time limit is going to be the statute of limitations. There is no time frame determined by the letter itself. Statute of Limitations is going to measured in years.

This is of course all "opinion" but if it were me, I'd just set it aside until something gets filed with the courts. I dont see any benefit of spending money on an attorney before its filed. IF they follow through, then call an attorney and get their thoughts on the matter & representation. There isn't really an preemptive actions that I'm aware of besides quitting the new job.

all "opinion" of course and I may have stayed in a holiday inn once.

[Surface Tension]

I think this thread has value and is informative.

I also think that it has progressed to the point that you'll need to have an attorney look at the contract this person signed along with all the details that went with it. The company name, job description, and what conflict the position at said company would have with the contract she signed.

"The case wouldn't hold up in court, but the whole thing is driving her nuts."

If this were true then I wouldn't think it would go any further.

Thing is I don't see how you can be sure.

IMO statute of limitations is of no concern.

The ball is in her court, she'll need to return it or keep going nuts hoping it goes out of bounds.