The statement reads, "Dr. XX shall take no action to directly or indirectly solicit or otherwise encourage or entice any current client of the Hospital to remove their business from the Hospital for a period one year from Closing”. I have a Facebook page and website for the new business. If former clients contact me via the FB page or website contact information am I in breach of the contract if I then do business with them? I am not offering any discounts or special offers for former clients. I am unclear as to the legal definition of this phrase.
Estate Planning Attorney
The word "indirectly" in that non-compete clause carries a lot of meaning. Violating a non-compete can have significant and long-term consequences. You should be very careful to not give the hospital any reason to pursue claims that you have violated the non-compete provisions. That said, it is also important what the remedy clauses in the contract state are the available remedies for the hospital if you do violate the non-compete clause.
It would be in your best interest to seek formal advice of counsel about what actions - direct or indirect - you may be able to take, and more importantly about the possibility of renegotiating the non-compete provisions with the hospital.
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Contracts / Agreements Lawyer
The way the covenant is worded, I don't think you're in breach. However, because the hospital is not likely to believe you that you did nothing to attract those clients, you may be headed for litigation. Your defense, if so, will depend on the testimony of the transferring clients.
I would recommend you take some time, gather current copies of all information in your new website and facebook page for the business and then meet with an experienced attorney. Non-competes and non-compete provisions can be somewhat difficult to enforce in Arizona, especially against doctors. This does not mean that you are not violating the provision there is no real way to answer that question without additional information; however, it is difficult to envision a scenario where the presence of a website or facebook page about a new business is going to be considered solicitation. Good luck.
This information is provided for general informational purposes and is not intended as legal advice. An attorney licensed in your jurisdiction can answer questions specific to your specific fact situation and provide you appropriate advice as necessary based on the specific facts of your matter and the jurisdiction in which you reside. If you are in Arizona and interested in discussing your matter further I can be reached at: (480) 838-9000 Mark D. Fullerton, P.C. 1839 S. Alma School Road, Suite 275 Mesa, Arizona 85210