Non Compete Agreement- Unrealistic

I am in the investment industry referring potential clients to a specific company and are to receive a fee for the referral once successful transactions fund. I had upfront signed a NCND for a 3 year term. The claims that were made prior to signing and sending clients were fundings to transpire in a 1-2 week timeframe and Real Estate transactions to close 3 weeks from when all paperwork is turned in. Though the NCND states to hold whether any success of program occurs or not ( very unsmart on my part, to have missed that part and not have an attorney review prior to signing). It is 5 months later and no funding. The blame game is that ecoonomy and lenders crisis, though I have found many others still successful throughout. In the meantime , a small group of clients have since then withdrawn from the company and moved on. One of my clients I specifically got a verbal ok from the owner to introduce to another Real Estate opportunity because of her poverty like situation. The owner turned around and claimed I need to read my NCND. Their has been lies and "stringing along" , misrepresentation to the clients to keep them from pulling out , saying any day now , etc.. No money and now a completely different standpoint with the company than I was told "prior" to signing contact. If one is explained of a nature and business completely different PRIOR to signing the NCND and no follow through on behalf of the employer or owner, now in addition a stringing along and actual lies,as well as I was asked to no longer contact my clients and discuss business, can the NCND have less or no weight. I have since began referring clients to another company for which I am finding in old files or new alltogether, but are going to completely lose my old client base because they are getting very upset at the unrealistic wait that they were informed completely differently prior also to signing contract. My NCND does not state I cannot work elsewhere , just alot of detail how the "contacts" pertaining to the company would be exclusive to this company with for 3 years. One could understand with the exception, of the unrealistic wait, not at all discussed prior to signing, quite the contrary , this was implied to everyone to be a fast funding opportunity. 5 months and no money and no details is not my opinion of fast.

1 answer  |  asked Jun 29, 2008 08:27 AM [EST]  |  applies to Pennsylvania

Answers (1)

Christopher Ezold
You may be able to void your noncompete for misrepresentation.

Before I respond to your inquiry, I must state that we have not spoken, I have not reviewed the relevant documents and facts, and I do not represent you. Therefore, my discussion below is not a legal opinion, but is informational only. Finally, my discussion applies only to issues to which Pennsylvania or Federal law apply, unless otherwise specified.

That being said, you may be able to void your noncompete for misrepresentation. A noncompetition agreement is a contract; if you were materially mislead about the nature of the employer, you may have grounds to void the contract. This is a very difficult position to take, however, and would entirely depend on the facts of your situation. It is possible, as well, that your employer has violated its obligations to you; if so, you may have a claim of breach of contract that would make the NCDC unenforceable. Finally, it appears from your question that you may not be an employee at all; if so, the NCDC may not be enforceable at all (except for the confidentiality provisions). I would need to review your contract to provide you with specific advice.

If you would like to discuss this matter further, please feel free to contact me at the below address(es) or number.

/Christopher E. Ezold/
Nancy O'Mara Ezold, P.C.
One Belmont Avenue,
Suite 501
Bala Cynwyd, PA 19004
(610) 660-5585
Cezold@Ezoldlaw.com

posted by Christopher Ezold  |  Jun 30, 2008 08:49 AM [EST]

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