Published on October 23rd, 2013 by Alan L Sklover
Question: I’ve just received a Summons to Court. A dry cleaner I worked for until last month is suing me for $15,000 claiming I breached a non-compete. First, I don’t think I ever signed one. Second, I’ve opened up a laundry that does not compete with any dry cleaner. I’ve recently begun a “dry cleaning pick up” service, but it only picks up and delivers it does not do dry cleaning. Third, the dry cleaner I worked for sold his business and it is now owned by someone else. Fourth, even the amount of the dry cleaning I’ve picked up is maybe $500, nothing like $15,000. Fifth, even my wife was sued and she has nothing to do with my business. Lastly, the lawsuit even claims I stole goods and services, which is nothing less than crazy.
I have no money to defend this. Is there something I can do?
Pompano Beach, Florida
Answer: Michael, Your letter reminds me a good deal of a former client of mine who I will call Larry. Larry was sued by his former employer for breach of a non-compete and, just like in your situation, it was without any factual basis at all. Oh, the former employer’s lawyers made all sorts of allegations, but when the facts became known the allegations didn’t make a bit of sense. I did help him get the lawsuit dropped, but I believed then, and I believe now, that he could have done most, if not all, of the defending on his own. I think you might be able to do that, too. Let me explain:
1. Each of your “six points of defense” sound, in and of themselves, like a pretty good defense to what the lawsuit alleges. Even without legal training, you seem to have a pretty common-sense-based view that what is being alleged is a bunch of baloney. There is not much “magic” in the law. Instead, it is based in common sense and simple fairness, although it sure can look and sound complicated. It is not complicated, just full of procedures and words that are foreign to you. Never be afraid – especially in a Court – to respectfully say, “I would appreciated it if you would tell me what that word (or phrase) means.”
2. If you have “crossed the line” of competition at all, it might be that you have “directly or indirectly engaged in the dry cleaning business” by your pick up and delivery service. I have not read your non-compete agreement – assuming that it is something more than a charade – but if there is a non-compete agreement that you somehow signed, it probably uses language like that language in quotes above. If it does, there could be a valid argument to be made that your pick up and delivery service is “indirectly engaging in the dry cleaning business.” While some might think that is a violation, I think you have better argument that, no, it is a pick up and delivery service, not a dry cleaning business.
After all, Fedex picks up and delivers jewelry and no one would say Fedex is in the jewelry business, right? And Norfolk Southern Railway picks up and delivers automobiles, but no one would accuse that railroad of being in the automobile business, right?
3. I have many times seen former employers bring former employees to Court claiming breach of non-compete without any legal basis whatsoever, just as a scare tactic; I urge you not to be frightened. As I noted above, my former client Larry was faced with a situation like yours. Prior to Court I insisted on seeing the so-called proof they claimed to have that he stole documents and clients. Well, when we got into Court, they had to admit they had no such things; it was nothing but hot air, a bluff, a fraud. They sure did frighten Larry, and cost him a few thousand dollars for my services, but in the end his former employer and its lawyers backed off entirely.
4. Courts seem intimidating to non-attorneys, but they are quite respectful of people who stand up for themselves, despite not having legal training. As a general rule, I think you will find most Court personnel and Judges quite respectful and helpful if you try to handle this problem on your own. In fact, I’ve seen many Court personnel and Judges near “bend over backwards” to give people without legal assistance every possible courtesy and helpful hint. I urge you to consider going to Court on the designated day and at the designated time, and explaining what happened to the Judge – especially your “six points of defense” mentioned above, as well as the fact that you don’t have the money to hire an attorney. I assure you it’s not as scary and much easier than you might think.
At least for the first few Court appearances before a Judge, I encourage you to stand up for yourself, at least until you can find out – and the Judge will be interested, too – if the dry cleaner has any (a) non-compete you signed, (b) any documents or witnesses to claim you are in the dry cleaning business, and (c) proof that he has lost any customers – in law, we call that “whether he has sustained any damages” – due to your pick up and delivery service.
5. Judges do not at all like keeping people out of work without a very good reason to do so. This simple fact is not sufficiently appreciated by employees who fear non-compete lawsuits, or who get involved in them. It is true everywhere: Judges just don’t like keeping employable people unemployed, unless there is a very good reason to do so. If, for example, you did (a) steal equipment, (b) take with you and use a secret chemical formula, or (c) took with you a list of customers and tried to gain their business, to protect your former employer, a Judge might Order you to “back off” at least for a period of time, to permit your former employer to rebuild what is rightfully its own. But where, as in your case, no such bad conduct took place, you really have little if anything to fear from going in front of a Judge, and speaking the truth.
6. We offer a “185-Step Guide and Checklist to Non-Compete’s” with a good number of pointers on standing up for yourself at this time, even in Court, and without a lawyer. It is sure easy for me to say, in that I have legal education and legal experience, but if you (a) organize your thoughts, (b) speak up slowly and clearly, and (c) ask to see the other side’s (i) documents, that is, the document you allegedly signed, and (ii) the other side’s “proof of damages,” I think you just might beat the other side’s lawyer at his or her own “game.”
Our 185-Point Master Guide & Checklist to Non-Competition Agreements is a perennial favorite. It takes you step-by-step through everything you need to know. To obtain your copy, just [click here.] Delivered by Email – Instantly!
7. Sadly, some lawyers start lawsuits to intimidate others, without any proof that anyone did anything wrong. One time, in Court, on just such a case, the other side’s lawyer said he had a tape recording of a conversation in which my client told a colleague that he was going into his own business and planned to compete with the employer. My client said to me, “That is crazy. That is impossible. I never said any such thing.” So, I said to the Judge, “Your Honor, can we listen to that tape recording?” He said, “Sure, and I would like to hear it, myself.”
The other attorney said, “Well, Your Honor, I don’t have the tape recording here, but I have a transcript,” to which the Judge looked awfully skeptical. “Okay,” the Judge said, “Let us read the transcript.” Well, the transcript was nothing at all what was alleged; it simply contained two employees talking about how much they both felt underpaid and hated their jobs. The Judge said, quite softly, “Counselor, where is your case?” to which the other lawyer said, “Well, Your Honor, if they said this on the recording, can you imagine what they said when they were not being recorded?” It took about ten seconds for the Judge to say, “Case Dismissed.”
I truly believe that people can do an awful lot to help themselves in employment-related matters, including non-compete disputes. That is what this blog is all about. Please don’t act out of fear, don’t act out of intimidation by the legal system, and don’t let others “walk over” you. Most Judges are quite smart, do care about people, and don’t like to let lawyer’s abuse people, especially people who have done nothing wrong, as I sense you have not.
Michael, I really do hope this proves helpful, and you will stand up for yourself, your family and your right to open your own laundry business. I really do.
P.S.: If you would like to speak with me directly about this or other subjects, I am available for 30-minute, 60-minute, or 120-minute telephone consultations, just [click here.]
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