Do I have a case regarding the breach of a non-compete and non-solicitation agreement?

UPDATED: Oct 1, 2022

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Do I have a case regarding the breach of a non-compete and non-solicitation agreement?

Approximately 2 years ago, I was gainfully employed as a senior account

executive for a large well known logistics provider. I was very successful at

my job earning approximately $125,000 in my last year. In KS that will afford you a very good living. Since I had crafted a niche skill set, I started to investigate the possibility of working for another company to advance in my career. I used indeed to research new opportunities and was eventually connected with a NJ based logistics company that was in need of a VP of sales. I told them that I was interested and was flown out for an interview with the company’s owner/Chairman and the Senior VP of Sales, who I was told I would be replacing because he is 70 and looking to retire. The company and I negotiated terms and upon reaching an agreement I was to be the company’s new VP of Sales. I uprooted my wife and 2 children from our home in KS for the promise of this new opportunity in NJ. Upon arrival to the company, I was put at a desk on the sales floor, while all other executives had an office that was separate from the sales floor. In addition to this, I found out that the

company had hired at the exact same time another VP with the title,

Executive VP of Sales. This gentleman did have an office and also

seemed to be giving me marching orders. When I asked him why he thought that he could tell me what to do, he simply forwarded me an organization chart that showed him as Executive VP of Sales and under him were all of the sales staff. Then conveniently off to the side, I was listed as a direct report of his and

had zero direct reports to me. I still have this document. I was frustrated

since my contract specifically states I was to direct the sales staff. I tried

to make the best of the situation but was limited in growth based on how the

company operated. After I didn’t receive my bonus on time I was told that I to ask for and negotiate it and was only paid out about a quarter of what I should

have been paid, I began to look for another job. With my extensive industry

contacts I was able to secure a position at a small up and coming freight brokerage back in my home state of KS. I took the job and a gave notice at the NJ company. When I started at the new company, I brought with me the account contacts that I had prior to working for the NJ company. Now I am being sued by that company for breach of contract and for soliciting customers. It even states in the court summons/complaint that I did not bring

the accounts with me to the NJ company, which I have proof is a lie. Do I have a solid case to get his claim against me dropped? And should I be

considering countersuing for fraudulent misrepresentation and/or promissory

estoppel? It is important to note that my contract with the NJ employer

acknowledged that I brought confidential information into the relationship and

states that I could take that same information with me when I left the

position. The nature of the business that I took was not contracted so they are

just upset that I outworked them for the business that I had brought with me to

their company.

Asked on September 22, 2018 under Employment Labor Law, Kansas


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

If there was indeed a written employment contract as you indicate, you cannot sue for promissory estoppel: promissory estoppel is a way to create contract-like obligations when there is no contract, but when you have a contract, you are not seeking estoppel based on a non-contractual promise: you sue to enforce the contract itself. 
If the contract stated you were to have responsibilities, authority, reports, or compensation other than what you had, you could sue the NJ employer for breach of contract--for violating the terms of the agreement. Or rather, in this case you would and should countersue. You may also be be able to sue for fraud if you can prove that they lied about material or important facts to get you to sign the contract.
You most likely cannot get their suit dismissed at the earliest stage, since on the face of it, without the court analyzing the evidence, they likely stated a valid cause of action: dismissal at the earliest stage of litigation is only when the complaint does not, even assuming all facts therein are true and as represented, does not state a viable cause of action. But you may be able to get it knocked at the summary judgment stage, if the undisputed (admitted by the other side or produced as evidence, such as in response to "discovery" demands, by them) evidence shows that you did not breach the contract. Or there is still some evidentiary dispute at that time (e.g. it's a "he said, she said," kind of situation, where are conflicting factual claims and a court needs to weigh credibility), you could look to defend at trial by showing the court that you did not do what they accuse you of. 
Hire a lawyer to help you; the lawyer will know how to bring the counterclaims, which based on what you write, you have, and also how best to challenge their claims and defend you.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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