• Paul Peter Nicolai

93A Defense Defeated

A former employee sued her former employer for trying to enforce a restrictive covenant preventing her from practicing her profession entirely for one year from her date of separation. The court refused to dismiss the complaint. The complaint said the former employer contacted third parties claiming that a restrictive covenant restricted her ability to practice her profession. The court said it could reasonably draw from this that the former employer was attempting to interfere with these relationships.

Why This Is Important…Contract obligations arising from an employment relationship are not trade or commerce under 93A. However, sending a letter to third parties to gain a business advantage based on unenforceable non-compete provisions can be. In this case, the former employer walked itself into potential triple damage liability.

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