This case is not published in a printed volume and its disposition appears in a table in the reporter.
Attorneys for Plaintiff
Harvey P. Sanders, Esq., of Counsel
Lawrence C. Brown, Esq., Attorney for Defendant
HON. JOHN M. CURRAN, J.S.C.
This matter came on for trial by the Court on July 30 and 31, 2007. Testimony was introduced from the defendant as part of the plaintiff's case and from plaintiff's principal, Stephen Goldstein. Defendant also testified during his own direct case. The parties offered numerous exhibits. By agreement of the parties, post-trial submissions were made and the matter was finally submitted on November 26, 2007.
Plaintiff commenced this action in January of 2006 alleging that defendant, plaintiff's former employee, violated the parties' non-disclosure agreement and covenant-not-to-compete ("Agreement") and had misappropriated plaintiff's confidential information and trade secrets. Defendant has counterclaimed for unpaid commissions.
Plaintiff provides services and products relating to Occupational Safety and Health Act ("OSHA") matters to business clients on issues of regulatory compliance. Plaintiff services its clients by providing advice, guidance and products regarding record keeping, regulatory changes, and violation management. Plaintiff has been in existence since 1994.
Defendant was hired by plaintiff as an independent contractor in 1999. Defendant is an Ohio resident and served as plaintiff's sales representative in Ohio. Defendant was paid on a commission-only basis. The Agreement was entered into in June of 2001 (Ex. 1), although there were previous similar contracts executed between the parties (Exs. B D).
The Agreement generally provides that defendant will not disclose plaintiff's "Confidential Trade Secrets and Information" at any time and "for a period of two (2) years after the termination of his services with Company and within a twenty (20) mile radius of each of the customer locations of the company in existence at the time of said termination of said Contractor's services," will not compete with plaintiff. In most relevant part, the covenant provides that for the two-year period the defendant will not be employed by a competitor and will not:
Directly or indirectly solicit, divert, take away or attempt to divert or take away any Company customers, or seek to stop any customers from patronizing the Company, or assist any ...