To be sure, one of the primary assets that a business can – and should – protect under New York law is its crown jewel, its customer list.
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But there are circumstances where New York’s courts won’t enforce a non-solicit provision of an employment agreement, and will decline to bar the departing employee from going after those customers.
Generally speaking, there are three (3) instances where New York’s courts will deem a business’s customer list “fair game”:
1) If the customers came from the employee’s pre-existing, or familial relationship, i.e., before he started working for the company;
2) If the non-solicit seeks to ban the departing employee, not only from soliciting those clients he worked with while at the company, but even those that he had no relationship with whatsoever; and,
3) If the employer’s client base isn’t confidential – i.e, it is readily discernible from publicly available information, such as Google.
At the risk of stating the obvious, you should NEVER ASSUME that your non-solicit is enforceable, without checking with a qualified attorney who is familiar with the law in your jurisdiction.
