RESPONDING TO A NON COMPETE CEASE AND DESIST LETTER
What To Do if You Have Gotten a Cease and Desist Letter About Your Non Compete |
The letter might or might not use the term "cease and desist," but some version of those words is often the first thing you hear from your former employer if they believe you are violating a non compete agreement. It will be written by their lawyer, contain detailed references to your agreement, make often very inflammatory assertions about what they believe you are doing to violate, demand that you cease and desist (meaning stop) doing whatever it is they say you are doing, and close with threats of expensive lawsuits and court orders.
You should take the letter seriously, but know that it is not at this point a lawsuit. Below are some things you should consider in deciding how to deal with a cease and desist demand letter. |
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What the Letter is Not and What it Is
What this letter is not: it is not an order of a court, despite the fact that it may contain words like "you are ordered to." It is not a formal complaint in a court of law. It does not reflect a judgment by anyone other than your former employer and the lawyers hired to represent them that you have done anything wrong.
What this letter is: it is notice that your former employer is at least considering filing suit under the non compete agreement. It is also an invitation to try to resolve the situation, though it may not read that way at all. Do You Have to Respond to the Cease and Desist Letter?
The short answer is no, but you probably should. The answer is "no" because a demand letter is not a lawsuit, and you are under no legal obligation to respond. The answer that you probably should respond is because no response at all usually only deepens your former employer's suspicion that you are doing something inappropriate, no matter how unfounded that suspicion may be.
Do You Have to Stop Working?
The cease and desist letter most likely demands that you immediately stop working in your new job, or stop carrying out your new business. Again, this letter does not have the force of a legal order, so you are under no legal obligation to immediately "cease and desist." At the same time, it is a good idea to consult a lawyer quickly so that you can get advice about how to best protect yourself in the short term, while determining how to respond to the actual letter. There may be steps you can take- like separating any contacts or information related to your former employer in your phone or computer and putting that information safely out of reach but preserved (for example, your lawyer may be able to hold this information for you), and making sure that while the issue is unresolved you are not contacting former colleagues or customers from your old job- that can help make it clear you are not trying to use your former employer's information or poach its customers.
What Should You Do When You Receive a Cease and Desist Letter?
First, don't panic. As described below, the letter is not a court order, and is just the beginning of a process that an experienced lawyer can help you navigate.
Second, because the letter is notice of your former employer's intention to bring a lawsuit if the issue is not resolved, you need to be careful not to let any important or relevant evidence be lost or destroyed. This evidence can be very helpful to you if there is a lawsuit, but even if it is not helpful, there can be serious sanctions for people who allow relevant evidence to be destroyed if they know there may be litigation. This is called "spoliation," and it is not something you want to be accused of doing. This means you should preserve emails, text messages, and other communications and documents relevant to the issues at hand. Sometimes people who receive these letters think that the right thing to do is to delete any information from their former employer they may have, because the letter says they should not have the information. The better course is to gather up anything you think your former employer may be concerned about and put it in a safe place where you can't use it, but it is still available as evidence- your lawyer will most likely be willing and able to hold that information for you. How Should You Respond to the Letter?
If you read the claims in the letter and it is clear there is some kind of mistake or misunderstanding, you may be able to reach out to someone in your former company directly to clear up the misunderstanding. In most cases, however, it is smart to consult at least initially with a non compete lawyer who can help you understand your options and level of risk of a non compete lawsuit.
What you will want to review with your lawyer:
How slnlaw Can Help
We have years of experience representing people in non compete lawsuits in Massachusetts state and federal courts, as well as responding to cease and desist letters, and we would be happy to help. You can use the button below to schedule a call back from a member of our team, give us a call at 413-667-2322, or fill out our web form to let us know a little more about your situation.
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About slnlaw
We are a Massachusetts law firm focused on business law, employment law, and estate planning. Our team includes attorneys with large law firm experience, public service experience, experience working with small businesses on a wide variety of matters, an attorney with an advanced degree (LLM), and a former clerk to the Massachusetts Supreme Judicial Court. Attorney and founder Emily Smith-Lee has been named to the Massachusetts Super Lawyers list every year since 2013, and was recently named a 2018 Lawyer of the Year by Massachusetts Lawyers Weekly. Our lead estate planning attorney Jenna Ordway has been recognized as a top estate planning attorney, and has published a book about estate planning in Massachusetts.
What We Do
Employment Law: We advise both businesses and individuals about Massachusetts and federal employment laws, and represent them as needed in litigation if a lawsuit cannot be avoided.
Business Law: In addition to providing advice on employment matters and defense of employee lawsuits, we can help you set up your new business, review your agreements with vendors and customers, resolve or litigate business disputes, and much more.
Estate Planning: We provide customized plans for individuals and families to help minimize your estate tax liability, protect and preserve your assets, and ensure that the people in your life are taken care of the way that you want. We can help you with wills and trusts, planning for a child with special needs, planning for the cost of long term care, and more.
We also have an extensive network of other professionals, some lawyers in other practice areas and others who are non-lawyer professionals who offer services that our clients frequently need. If the problem you need solved is not one that we handle, we are happy to provide a referral to someone we know you can trust.
We are a Massachusetts law firm focused on business law, employment law, and estate planning. Our team includes attorneys with large law firm experience, public service experience, experience working with small businesses on a wide variety of matters, an attorney with an advanced degree (LLM), and a former clerk to the Massachusetts Supreme Judicial Court. Attorney and founder Emily Smith-Lee has been named to the Massachusetts Super Lawyers list every year since 2013, and was recently named a 2018 Lawyer of the Year by Massachusetts Lawyers Weekly. Our lead estate planning attorney Jenna Ordway has been recognized as a top estate planning attorney, and has published a book about estate planning in Massachusetts.
What We Do
Employment Law: We advise both businesses and individuals about Massachusetts and federal employment laws, and represent them as needed in litigation if a lawsuit cannot be avoided.
Business Law: In addition to providing advice on employment matters and defense of employee lawsuits, we can help you set up your new business, review your agreements with vendors and customers, resolve or litigate business disputes, and much more.
Estate Planning: We provide customized plans for individuals and families to help minimize your estate tax liability, protect and preserve your assets, and ensure that the people in your life are taken care of the way that you want. We can help you with wills and trusts, planning for a child with special needs, planning for the cost of long term care, and more.
We also have an extensive network of other professionals, some lawyers in other practice areas and others who are non-lawyer professionals who offer services that our clients frequently need. If the problem you need solved is not one that we handle, we are happy to provide a referral to someone we know you can trust.
