Mona Electric v. Truland, 193 F. Supp. 2d 874 (2002), as well as the appeal of that case, provide support for the position that a terminated employee who executed a non-solicitation provision when hired, but which did not contain an accompanying non-compete covenant, will not be in violation of the non-solicitation agreement if the clients and customers of the employee’s former place of business, and not the employee himself, initiate contact with the former employee for the purpose of conducting business. The District Court for the Eastern District of Virginia held:
“there is no evidence that Gerardi violated the Agreement by “soliciting” Mona’s customers. Truland hired Gerardi as a Service Account Manager. Gerardi’s responsibilities in this new position include preparing estimates and working in the field. A part of Gerardi’s position at Truland is handling customer solicitation calls. In the electrical contracting field, customers often solicit bids from the electrical contractors. Plaintiff has not presented any evidence that Gerardi has initiated calls to customers during his employment at Truland. Rather, the evidence is that Gerardi responded to customer calls to Truland for bids. Gerardi’s acts of responding to customers who solicited him for bids clearly do not violate the Agreement. Gerardi did not sign an agreement that prohibited him from competing with Mona, he signed an agreement that precisely prohibited his “solicitation” of Plaintiff’s customers. Plaintiff asserts that the Agreement prevents Gerardi from submitting estimates to customers who call him to request bids. This would turn the non-solicitation agreement into a non-competition agreement, and under the unambiguous terms of terms of the Agreement, only solicitation of Mona’s customer’s is prohibited. Thus, were the Court to find the Agreement valid, no evidence has been presented in this case that Gerardi violated the terms of the Agreement, and summary judgment should be granted for the Defendant.” Mona Electric v. Truland, 193 F. Supp. 2d 874 (2002).
On appeal, the Fourth Circuit Court of Appeals, applying Maryland law, upheld the lower court’s findings:
“Despite Mona’s assertion to the contrary, the district court held and we agree that the plain meaning of “solicit” requires the initiation of contact. (J.A. at 135.) Therefore, in order to violate the nonsolicitation agreement, Gerardi must initiate contact with Mona’s customers. Mona argues that Gerardi solicited when he submitted estimates to Mona’s customers. However, this does not fall within the plain meaning of “solicit.” If Mona intended to prevent Gerardi from conducting business with its customers it could have easily stated that in the agreement. Taking the facts in the light most favorable to Mona, there is no evidence that Gerardi solicited Mona’s customers. Therefore, summary judgment was proper and the district court is affirmed.” Mona Electric v. Truland, 56 Fed. Appx. 108 (2003). [On appeal]
Conclusion
The Mona case and its appeal give substantial support to the position that: 1) if an employee executed only a non-solicitation agreement and not a covenant not-to-compete; and 2) because Maryland courts will interpret “solicitation” as requiring some action on the employee’s behalf to initiate contact, then by itself, the employer would fail in its attempt to prevent the former employee from doing business with the business’ clients and customers, PROVIDED that the business cannot show that the employee actively solicited those customers. The employee is barred from soliciting, ie. from taking any action to initiate contact in order to gain business. Courts will strictly construe this requirement and delve into the actual conduct of the employee in order to determine whether the employee actually “solicited” customers.
Raymond McKenzie is a corporate and franchise attorney in the Washington, D.C. metropolitan area.
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