At a PLI conference a few months ago, I was asked what some practical ways I had seen companies and their former employees resolve their differences in a way that tried to assure that they didn't end up right back in court, fighting over whether the ex-employee was targeting customers or clients of the business, with the (ex) employee arguing

"I didn't do anything! At worst, they called me, and what was I supposed to do - leave the client hanging?"

To be sure, New York's Court of Appeals (the highest state court in New York) has weighed in on the issue, and while it distinguished between active solicitation (which will usually be prohibited) and passive solicitation (which, in some circumstances may be permissible), in its landmark decision in Bessemer v. Branin, and which I discussed in "Where New York Draws the Line Between Proper and Improper Solicitation."

That said, the determination of whether a former employee's contact with a certain segment of customers was done actively or passively inherently requires discovery, meaning the exchange of documents, and likely some form of testimony, whether by way of a deposition or at a hearing in the context of a request for a temporary restraining order ("TRO") - both of which are time-consuming and expensive.

Therefore, in an effort to avoid that legal morass, one way I've seen (and used) to do so involves placing a confidential list of clients that are presumptively off-limits as an exhibit to a settlement agreement - meaning, if the ex-employee has any meaningful contact with them, it can be presented to the Court as a straightforward violation of a black-and-white line.

Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer