First Circuit Holds Massachusetts Salesman Violated Nonsolicitation Covenant, Even Though Customer Made “Initial Contact”

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

On September 23, 2013, the First Circuit Court of Appeals, applying Massachusetts law, upheld a preliminary injunction in a nonsolicitation covenant case, and discussed the often-murky line between “soliciting” and “accepting business” from a former customer. The court  affirmed the district court’s preliminary finding that the employer was likely to succeed in establishing that its former salesman and his new employer crossed that line in breach of his non-solicitation covenant. The First Circuit held that, although there was no authoritative Massachusetts law on this topic, the Massachusetts courts would likely find that there should be no per se rule that a customer’s initial contact with the former employee foreclosed a finding of solicitation—particularly when, as is often the case, that customer was prompted to contact the employee by a targeted announcement of the salesman’s new affiliation. Corporate Technologies, Inc. v. Harnett, No. 13-1706 (1st Cir. Sep. 23, 2013).

The Decision

At the start of his employment with Corporate Technologies, Inc. (CTI), an information technology solutions provider, Brian Harnett had executed an agreement that contained both nonsolicitation and nondisclosure provisions. The nonsolicitation provision barred Harnett from “solicit[ing], divert[ing] or entic[ing] away existing [CTI] customers or business” for 12 months after the end of his CTI employment. Harnett, who had been a CTI salesman for nearly a decade, later started working for OnX USA, LLC, which was one of CTI’s competitors. While working for OnX, Harnett communicated and participated in sales activities with some of his CTI customers who had made contact with him in response to OnX’s email blast announcing Harnett’s hiring.

As a result, CTI sued Harnett and OnX. The district court entered a preliminary injunction, finding  that the preliminary evidence showed that Harnett had participated in sales-related communications and activities with certain of his customers for  OnX, and thus that CTI was likely to succeed in proving that Harnett had (with OnX’s help) violated the nonsolicitation covenant. On appeal, the principal argument by Harnett and OnX was that their conduct could not constitute improper solicitation as a matter of law because the customers made the “initial contact,” and thus all Harnett and OnX did was “accept business,” not engage in improper solicitation. Rejecting this argument as a “linguistic trick,” the First Circuit held that the Massachusetts Supreme Judicial Court, if confronted with the question, would find that such a per se rule was inappropriate.

The court found that such a rule would undermine the value of a nonsolicitation provision to a former employer. First, the court found that the initial contact could easily be manipulated by an announcement, targeted at former customers, that piques their curiosity and causes them to make contact. Harnett’s and OnX’s announcement—an email blast sent to a select group of recipients, 40 percent of whom were Harnett’s former CTI customers—illustrates just such manipulation, the First Circuit found, and was “part and parcel of a pattern of solicitation.”  The court also pointed out that the initial contact could vary greatly in the degree to which it implicated a former employers’ interests, ranging from a quick call to ascertain the circumstances of the new employment to placing an order.Finally, the court explained that the significance of who makes the initial contact will vary greatly based on the industry and products or services at issue. In this case, the initial contact was only a small part of the business solicitation effort, which required extensive meetings, discussions, and customer-tailored bid design after Harnett’s CTI customers had reached out to him at OnX. Thus, the court found that the identity of the party making the initial contact is just one of many factors that courts should consider in determining whether a former employee has improperly crossed the line from acceptance of business to solicitation.

Significance for Employers

This case is significant for employers that have nonsolicitation restrictions in agreements with their employees, as well as those hiring employees subject to such restrictions in agreements with their former employers. For the latter group, the First Circuit’s decision provides some cautionary guidance. The practice of using targeted announcements of a new hire’s arrival is common, and the First Circuit did not hold that all public announcements of employment changes were improper. It did find, however, that such announcements can cross the line into improper solicitation when the list is short and is composed largely of the new employee’s client contacts from his or her former employment.

In addition, employers should not place too much weight on the identity of the person making the initial contact. Although it is obviously helpful to the new employer if the customer was the one that reached out initially, the mere fact that the first email or call was inbound may have limited significance if the restricted employee then engages in extensive business communications with that restricted customer. That is particularly true when, as in this case, the sales process involves some continued communications before the “pitch” is fully made, as opposed to a one-off sale of fungible goods. As the First Circuit stated, the former employer’s rights “cannot be thwarted by easy evasions, such as piquing customers’ curiosity and inciting them to make the initial contact” with the employee’s new firm.

The First Circuit’s opinion is not a binding interpretation of Massachusetts law. It is, however, a decision by the highest court to have weighed in on this issue under Massachusetts law, and its lengthy analysis will likely be given persuasive weight by both federal and state courts in the Commonwealth. The persuasive value of this decision may be limited to situations in which the non-solicitation agreement contains terms like “entice,in addition to the commonly used phrase “solicit. The court found that the inclusion of the additional term “entice” buttressed the district court’s finding of likely violation, although it also opined that the word “solicit” has a broad meaning.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ogletree, Deakins, Nash, Smoak & Stewart, P.C. | Attorney Advertising

Written by:

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.