Published on December 18th, 2012 by Alan L Sklover
Question: I am a veterinary surgeon who recently left my place of employment of 17 years. I have a non-solicitation clause in my contract with my former employer. I cannot solicit business from previous clients and veterinarians who refer cases to my former place of employment.
Can I legally have a website on the internet that shares information about my newly formed practice and services I provide?
Oakland Township, Michigan
Answer: Dear Dan: So long as you use common sense and good judgment, as explained below, you are probably on safe ground. Though I am not licensed to practice law in Michigan, my 30 years of work with non-solicitations matters all across the country, and my brief review of Michigan law, confirm my view that, in all likelihood, you should not have a problem. Here are my thoughts:
1. Though I write it all the time, I must write it here, once again: You must review the exact wording of your agreement, carefully and completely. Agreements are made up of words, phrases, sentences and punctuation marks. Though I am sure I sound either paranoid or overly pedantic, it can’t be emphasized too much that agreements must be read word for word, and every punctuation mark by punctuation mark. The meaning of an agreement can turn on a single word, or even the placement of a comma.
2. Watch out for the word “serve,” and don’t worry too much about the word “indirectly.” Make sure your non-solicitation provision does not say “you may not solicit or serve former customers,” as the word “serve” really makes the wording into a non-competition agreement more than a non-solicit. Many non-solicitation provisions say “directly or indirectly solicit.” While the word “indirectly” frightens many people, in my experience it does not mean very much at all.
3. The word “solicit” is an active verb, and requires that you (a) make an effort to “reach out” (b) to someone or some class of people. My trusty dictionary defines “solicit” as “to seek to influence, to apply or petition,” all of which denote (a) actions take with effort (b) aimed toward a particular person or group of people. Almost all Courts view the word “solicit” that way, and don’t view relatively passive activities, such as (a) hanging a sign on the outside of your building, (b) placing an ad in newspapers, or (c) advertising on television or radio aimed at the general public, as “soliciting.” For this reason, I’m confident that having your own website should not be a violation of your non-solicit restriction.
4. That said, don’t think you can say anything, without limit, on a website, either. Just because a website is a relatively passive means of promotion, generally aimed at the entire internet and not usually aimed at particular individuals or certain groups of people, don’t think your actions are without limit. For example, if you used to work for Dr. Jones, don’t open up a website with the internet address www.DrJonesPatients.com. And, even if you open up your website named www.VetSurgeon.com, don’t put on it a statement that reads: “Attention All Dr. Jones’ Patients: Come See Me.” Those kinds of actions would surely be viewed as changing an otherwise passive means (website) into an actual active solicitation, even though on a website.
5. A Michigan Court has recently ruled that exact way, which should give you good guidance. In an actual case that addressed this particular issue, in 2010 a Michigan Court was faced with a former Amway Distributor who signed an agreement that, if he left Amway, he would not solicit any other Amway distributors to leave with him. He opened up a blogsite, and wrote on the blogsite. “To all Amway Distributors: I left Amway, and joined Company X. If you knew what I knew, you would do what I did.”
This is what the Court wrote: “Common sense dictates that it is the substance of the message conveyed, and not the medium through which it is transmitted, that determines whether a communication qualifies as a solicitation. This statement is an invitation for the reader to follow his lead and join Amway’s competitor, and this is true despite the diffuse and uncertain readership of the site.” (The name of the case is “Amway Global vs. Woodward” and it was decided by the Eastern District Court of Michigan on September 30, 2010.)
6. This is an illustration of what I often say, “The law is basically common sense, handed down from one generation to the next.” The internet and websites didn’t exist 50 years ago. However, the law must adapt to changing times, and that is exactly what this Michigan court has done, in a sensible way. Though I don’t know the law in every state, I have found, over the decades, that you can almost predict what they say, or will say in the future, by combining common sense and simple fairness. That is why I do have a great deal of faith in our common law legal system, although for sure it does not give perfect justice in every single case.
Dan, I hope this gives you a good sense of what you can do, and how you can do it. While I don’t know for sure that your former employer’s lawyer will know the law, or follow the law, I do suggest that if you get a nasty lawyer’s letter, you might send the lawyer this blog post.
I enjoy seeing people go “out on their own,” and I wish you every success in doing so. I take my hat off to you and everyone else who dares the world by entering into self-employment.
My best to you,
P.S. We offer a Model Letter entitled “Model Letter for Responding to a Lawyer’s Non-Compete Cease and Desist Letter,” that you might use as a model form letter just in case you get one. To obtain a copy, just [click here.]
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© 2012 Alan L. Sklover, All Rights Reserved.