Rosen Law Office

All our client wanted to do was keep the Haverhill School Department from being sued.

Our client was a member of the school committee.  In a private email message, she urged her colleagues on the committee not to discuss personnel matters in open session.  She pointed out that, years before, the school superintendent had said that a track coach got an unfavorable evaluation and the city got sued.   Here’s what the email said:

“I want to tell you about a risk we take in discussing this in public.  Before I was on the [School Committee, the track coach’s] performance was discussed publicly by SC members and the SC was sued.  It was not a lengthy discussion, it was just a mention that she did something the former Athletic Director didn’t like and the [High School] did not want to re-sign her contract…. If we even mention names of employees who may or may not have done something wrong, we could be sued again and would likely lose….  If we discuss this in public, names should not be used….”

It was good advice, but somehow the newspaper got a copy of the email and reprinted it.  The former track coach saw her name in the paper and sued the city again, naming our client as a codefendant.

The coach later said she wanted people to know about the former lawsuit: that she considered it “a fight for every employee in the City of Haverhill.”  She wanted to ensure public officials complied with their obligations under the law with respect to employee privacy.

But our client agreed with her!  Message received.  Our client was trying to protect the privacy of school employees.  So it was strange that the coach found the message offensive.

The Superior Court dismissed the lawsuit.  First, the Court did not feel that a private email communication to other school committee members was a statement to a third party, as is required for a defamation claim.  Essentially, the City made the statement to itself.

“Second, the court concludes there is nothing in the Email that is ‘reasonably susceptible … to a defamatory meaning,’” the judge wrote.  “The court fails to see how, in the circumstances of this case, the Email in any way discredits [the coach].  The Email makes no statement that would subject [the coach] to ‘hatred, ridicule … [or] contempt.’”

Caputo v. City of Haverhill, ESCV2008-02492.

Agreements protecting your business from competition should be comprehensive.

When a provision isn’t broad enough, competitors can get around it.  A full-service hair salon had a lease that prevented the landlord from leasing to other companies in the same business.  When another stylist moved into the plaza, the salon sued.  The Superior Court refused to prevent the new competitor from opening, because it was “only a limited service hair cutting salon.”  T.T.K., Inc. v. Columbia Speedway Plaza Member, LLC.   The original tenant, a “full-service” salon, could have protected itself by insisting on a provision barring any hair-cutting business from operating.

On the other hand, if a noncompetition provision is too broad, a court will enforce it to the extent reasonable.  A sales rep agreed not to compete with his employer in the U.S. or Europe.  After being trained and learning the employer’s secrets, he went to work for a competitor.  The employer sued.  The sales rep argued that he had mainly worked in Florida, so it wasn’t fair to restrict his activities worldwide.  The court agreed and narrowed the scope of the agreement to certain customers in Florida.

The salesman then said that—because the original provision had been too broad to enforce—he could not be liable for breaching it.  He couldn’t be liable for breaching the agreement until after the court modified it.  The First Circuit disagreed, saying the salesman wasn’t entitled to “one free breach.”   The proposition “would eviscerate all but the most narrowly tailored non-competition agreements, since a modification of any term of the provision would justify a breach of all its terms.”  Astro-Med, Inc. v. Nihon Kohden America, Inc., 2009 U.S. App. LEXIS 23298 (1st Cir. R.I. Oct. 22, 2009).

Courts are sensitive to the fact that employees don’t read these agreements carefully and aren’t usually in a position to negotiate them.  Employers should not abuse their bargaining power.  But within reason, it’s better for noncompetition agreements to be broad than narrow.

–Joel Rosen