Is that a good defense to an alleged breach of a nonsolicitation agreement? In a recent decision, a Pennsylvania trial court said that it was. In Marino, Robinson & Associates v. Robinson, 2013 Pa. Dist. & Cnty. Dec LEXIS 18 (Jan 2013), Allegheny County Court of Common Pleas Judge R. Stanton Wettick Jr. entered summary judgment dismissing the case against a defendant who allegedly violated a nonsolicitation clause. The plaintiff, Marino, Robinson & Associates, acquired defendant Debra Robinson’s accounting practice. The contract signed by the parties included clauses prohibiting Robinson from competing with Marino or soliciting any of her former clients. The noncompete was not implicated in the case because, while Robinson provided competing accounting services, she did so outside of the geographic limits imposed by the covenant. However, she provided those services to several of her former clients, each of whom unilaterally approached her and asked her to continue on as their accountant. Marino alleged that by providing services to these former clients, Robinson violated the nonsolicitation clause of the contract, which prohibited her from “solicit[ing] in any manner any past clients … for a period of 10 years from closing.” The court, following cases decided in other states, agreed with Robinson that she was not required to turn away former clients who, unsolicited, approached her to request that she provide services. The court held that solicitation required conduct on the part of the defendant designed to awaken or incite the desired action in the former client. Where, as in this case, the former client approached the defendant unilaterally, the defendant did not violate the nonsolicitation clause.
A similar result was obtained in Meyer-Chatfield v. Century Business Services, 732 F. Supp. 2d 514, 517-518 (E.D. Pa. 2010), where the court decided that the meaning of the word “solicit” was not ambiguous and applied the parol evidence rule to bar evidence regarding the meaning of the term. In Meyer-Chatfield, plaintiff Meyer-Chatfield Corp.’s vice president of sales and marketing left his employment with the plaintiff and accepted a similar position with Century Business Services. An agreement, which included nonsolicitation provisions, was negotiated between the parties. Shortly thereafter, the parties engaged in negotiations for the acquisition of Meyer-Chatfield by Benmark, a wholly owned subsidiary of Century. Those negotiations failed. Subsequently (and after he was terminated by Meyer-Chatfield), one of Meyer-Chatfield’s salesmen accepted employment with Benmark and took with him other employees (who were part of his sales team), with the result that several significant customers of Meyer-Chatfield eventually began doing business with Benmark. Meyer-Chatfield brought suit alleging violation of the nonsolicit provisions in the solicitation of both the employees and the customers.
The language at issue prohibited the direct or indirect “solicit[ation] of any of plaintiff's employees, agents, representatives, strategic partnerships, [or] affiliations.” The contract did not define the word “solicit.” The court looked to the common meaning of the term, citing the Black's Law Dictionary definition:
“To appeal for something; to apply to for obtaining something; to ask earnestly; to ask for the purpose of receiving; to endeavor to obtain by asking or pleading; to entreat, implore, or importune; to make petition to; to plead for; to try to obtain; and though the word implies a serious request, it requires no particular degree of importunity, entreaty, imploration, or supplication. To awake or incite to action by acts or conduct intended to and calculated to incite the act of giving. The term implies personal petition and importunity addressed to a particular individual to do some particular thing.”
The court also cited Webster’s definition of the word: “to entreat, importune … to endeavor to obtain by asking or pleading … to urge.”
The issue before the court was whether the word “solicit” was ambiguous permitting parol evidence of its meaning. In holding that it was not, the court reviewed Akron Pest Control v. Radar Exterminating, 216 Ga. App. 495, 455 S.E.2d 601 (Ga. App. 1995), in which the court held that an agreement “not to solicit, either directly or indirectly, any current or past customers” requires more than “merely accepting business [to] constitute a solicitation of that business.” A party is not required to turn away uninvited contacts of former customers. The court also cited Aetna Building Maintenance v. West, 39 Cal. 2d 198, 246 P.2d 11 (Cal. 1952), in which it was held that neither the act of informing former customers of one’s change of employment, nor the discussion of business upon the invitation of the former customer, constitutes solicitation. Finding no ambiguity, the court prohibited testimony regarding the parties’ understanding of the term.
It seems clear that the court will apply the ordinary meaning of the word “solicit,” which has been repeatedly found to require some overt act of entreaty on the part of the former employee designed to induce the former customer to action. Responding to an uninvited inquiry from a former customer, even where that inquiry is for the purpose of discussing business, and where that inquiry ultimately results in doing business with that former customer, will not be sufficient to support a finding of a breach of a nonsolicitation agreement. Of course, doing business with a former customer may well violate the provisions of a noncompete clause and, in such cases, the courts have not been reluctant to enforce such provisions. Although research has found no cases directly on point, the reasoning of the cases suggests that advertisements or social media posts informing the general public or one’s social media circle of new employment circumstances would also not constitute the type of targeted action required to support a finding that a nonsolicitation agreement has been breached.
William MacMinn is managing partner with Antheil Maslow & MacMinn, based in Doylestown, Pa., with a branch office in Princeton, N.J. His practice focuses primarily on commercial litigation, personal injury, products liability, employment litigation, estate litigation and real estate law.