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.
