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Does​ the fact that the incident happened ​after school hours ​and ​outside of school property preclude plaintiff from rai

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  • Post Date 2018-11-09T09:58:59+00:00
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Does​ the fact that the incident happened ​after school hours ​and ​outside of school property preclude plaintiff from raising a negligence claim?

Context: You are a new Associate attorney at a Law Firm, and the Managing Partner of the Firm has asked you via this memo to analyze issues in this case.

Writing: Draft a 5 Page Legal Memo that includes five sections: (I) Question Presented, (II) Short Answer, (III) Facts, (IV) Discussion, and (V) Conclusion.

Format:Resources explaining what each of these sections should include.

http://www.law.cuny.edu/legal-writing/students/memorandum/memorandum-3.html

Example Paperhttps://drive.google.com/open?id=0B12ZBsuYsCaDekVzM3V4bkFkOGM

Case Law: Five cases are attached. Do no outside research

1.Mirand v. City  of New York, 637 N.E.2d 263 (N.Y. 1994). SEE PAGE 7 ↓

2.MacCormack v. Hudson City Sch. Dist. Bd. of Educ., 856 N.Y.S.2d 721 (N.Y. App. Div. 2008). SEE PAGE 12

3.

Walley v. Bivins, 917

N.Y.S.2d 461 (N.Y. App. Div. 2011). SEE PAGE 15 ↓

4.

Stephenson  v. City of

N.Y., 978 N.E.2d 1251 (2012) SEE PAGE 17 ↓

5.Conklin v. Saugerties  Cent. Sch. Dist., 966 N.Y.S.2d 575 (N.Y. App. Div. 2013). SEE PAGE 19 ↓

INTERNAL MEMO

To: New Associate

From: Jack Zakowski, Managing Partner Date: Sept. 9, 2016

Re: School Fight Case

Our client, Angie Costa, was beaten up by Harriet Wilson, just outside the Phyllis Diller High School for the Performing Arts in Yonkers, NY. The attack took place just after a rehearsal for the school musical, a

revival of Grease. Costa had a leading role; Wilson a bit part. For weeks, Wilson had tried to get Costa to quit the play. For example, two days before the incident Wilson posted a Facebook update stating that if Costa did not quit the musical she would have “an accident.”

While the formal school day ends at 2:45pm, most Diller students have afterschool extra- curricular activities such as band practice, music lessons, and rehearsals for the school musical. Because Diller High is in a rough neighborhood, the school is surrounded by a fence. The only way out is through a large gate, which empties onto Henderson Avenue. Once outside, students are picked up by their parents or board a special school bus that leaves each day at 5:00pm.

To ensure the safety of the students, the school hires two security officers armed with radios. The officers stand at the gate each day until the 5:00pm school bus arrives. Because auto theft is a problem in Yonkers, the guards keep an eye on the faculty parking lot, which is across the street from Diller High on Henderson Avenue. One or two teachers usually stand at the gate as well.

At approximately 4:45pm on April 25th 2016  Costa was walking towards the gate after a rehearsal. Just

after Costa went through the gate,Wilson  caught up with her. After a short confrontation, during which Wilson demanded Costa quit the musical, Wilson punched Costa in the face, knocking her to the ground and breaking two teeth. Wilson then kicked Costa in the ribs several times before walking away. The entire incident lasted about a minute or two.

Several students were waiting on Henderson Avenue for the bus but there were no security guards or teachers. When Wilson hit Costa, one of the students ran into the school and grabbed a teacher, who arrived a few minutes later. By then, Wilson had left and Costa was on the ground sobbing. The next day Principal Richard Belding suspended Wilson for the rest of the school year. Costa, however, was unable to participate in the school musical because of her injuries.

Wilson has a disciplinary record – both at Diller and her previous school in Philadelphia. The day before the incident, Principal Belding met with both girls. At the meeting he told Wilson that  she would be suspended if she hit Costa. The two girls then shook hands. Unfortunately for Costa, these efforts at mediation did not prevent the attack.

Angie Costa wants to know if she has a claim against Phyllis Diller High School for negligent supervision that will survive a motion for summary judgment by the school.

In addressing negligent supervision, keep focused on these three issues:

1)Did  the school breach its duty to ensure Angie Costa’s safety by failing to take appropriate action given its knowledge of Harriet Wilson’s disciplinary record and threats against Costa?

2)If  so, was this breach the proximate cause of Costa’s injuries? (Or was the attack so sudden that even the best supervision could not have prevented it?)

3)Does  the fact that the incident happened after school hours and outside of school property preclude plaintiff from raising a negligence claim?

I am enclosing: (1) an interview with Angie Costa describing the incident: (2) a report from our investigator, Harold Drew, who interviewed a Diller High student who saw the attack; and (3) a note of a discussion I had with Marie Price, the school’s attorney.2

11The  sidewalk on the other side of the gate is not school property. You can assume, therefore, the incident took place just outside of school grounds.

2Some facts only appear in the cover memo. You can also cite to it as: “Zakowski Memo (Sept. 9, 2016).”

Interview with Angie Costa: (May 6, 2016)

Q:Hi Angie, I’m Jack Zakowski [Jack Zakowski is the managing partner attorney who wrote you the memo]. How are you feeling?

A:The dentist says I will need caps for both front teeth and my ribs are very sore. I am also afraid of going back to school. I have nightmares about Harriet hitting and kicking me. It’s terrible.

Q:I am sorry to hear that. I know this is going to be hard, but I am going to have to ask you some questions about the incident. Is that okay with you?

A:Yes. My mom and dad told me you would be coming. And I am a bit angry at the school. They knew Harriet was a jealous freak but they didn’t do anything about it.

Q: Okay. Let’s start at the beginning. When did you first meet Harriet Wilson?

A:Harriet’s family moved to the New York suburbs from Philadelphia last year, when we were both in ninth grade.

Q: And you are both in tenth grade now, correct? A: Correct.

Q: Did you have trouble with Harriet when you first met her?

A:No. We were actually somewhat friendly. The trouble only began a few months ago when we both went out for the tenth grade musical.

Q: You are referring to Grease?

A:Yes. Each class at Diller puts on a musical. Harriet and I both tried out for the part of Sandy Olsson. I got the part; Harriet cannot hold a tune. I mean, when she sings wild animals run for cover. She must have the worst voice in all of New York State. I mean, she’s not Ella Fitzgerald.

Q: Okay, Okay. I take it that Harriet was jealous of you?

A: Very jealous. She was cast as Nurse Wilkins, a very minor role.

Q: Did Harriet ever express this jealousy to you or others?

A:Pretty much all the time. Once we were rehearsing, she started saying that if she had the lead, she would do a better job. She called me “stupid,” a “loser” and “too clumsy” to be a leading lady.

Q: Then what happened?

A: She would ask me to quit. All during March she was like, “If you quit, I’ll be your best friend.”

Q: Did you consider quitting?

A: Heck, no! Music is my life. Harriet plays volleyball and field hockey. Why can’t I sing?

Q: Did Harriet ever threaten you?

A:That started in April. She would say, “Quit, or you’ll be sorry.” One day she said it would be a good thing if I had “an accident.”

Q:Did you report any of this to school authorities? A: Yes. I told Ms. Grant, the director of the musical.

Q:What did Ms. Grant say? A: She told me to ignore Harriet.

Q:Did the threats continue?

A:Yes. Two days before the incident, she posted an update on Facebook saying that she was going to “take care” of me if I didn’t quit the musical.

Q: How did you find out about this?

A: My mom told me. She monitors Harriet’s Facebook page.

Q: What happened next?

A: My mom contacted the school. Principal Belding met with us for all of fifteen minutes.

Q: What did Principal Belding do?

A:He had us each give our side of the story. Then he made me apologize for looking at Harriet’s Facebook page and made Harriet promise not to bother me. Then he had us shake hands.

Q: How did Harriet act during this meeting?

A: She was very polite. She knows how to be very nice when she wants to be.

Q: So you were still nervous?

A: Yes. My main goal was to not be left alone with Harriet.

Q: Can you tell me about the day of the incident?

A:During practice Harriet kept insisting that I was singing-off key. Once, when Ms. Grant wasn’t looking, she put her hands around her throat as if she were choking herself.

Q: What happened next?

A:I was happy to leave the rehearsal. I knew I would be safe at the school gate because there would be security guards or a teacher. When I didn’t see anyone there, I got very nervous.

Q: And then what happened?

A:Harriet confronted me. She looked mad, very mad. Harriet is several inches taller than me. I was petrified. She started asking me to quit the musical. I told her to leave me alone. She kept telling me to quit. I told her it wouldn’t help because she can’t sing. Before I knew it, Harriet punched me and I was on the ground. She started kicking me. I didn’t know what to do. Then, suddenly, Harriet stopped and walked away.

Q: How long did the whole incident last? A: About a minute or two.

Q: Were there any witnesses?

A: There were a few students. As soon as Harriet hit me, one of them ran to get help.

Q: How long did it take to help to come?

A:A couple of minutes. My English teacher, Ms. Bell, came over. She helped me to my feet, called my parents, and drove me to the hospital.

Q: Did she say anything during the drive?

A:She told me that the security officers were away because someone broke into the cars parked across the street in the faculty parking lot. She also apologized for not being at the gate herself.

Q: Did she say why she was not there?

A:Ms. Bell told me she could not watch the gate because she was helping the ninth graders prepare for their yearly standardized tests.

Report of Harold Drew: (May 1, 2016)

On 4/29/16 the undersigned visited the premises of one Serena Katz a tenth grade student at the Phyllis Diller High School for the Performing Arts in Yonkers, NY.

According to Katz, there were ten to fifteen people scattered along Henderson Avenue at the time of the incident. There were no security guards or teachers; this made Katz a little nervous because there had been a mugging in the neighborhood a week ago. She was just hoping the afterschool bus would arrive soon. The incident lasted about a minute. At first, however, Katz thought Costa and Wilson were simply yelling at each other. Once Costa was knocked to the ground, she ran into the gym to get a teacher.

Katz added that she did not know Costa or Wilson that well, but understood that Wilson was known as something of a class clown who often disrupted classes – although Katz never saw this herself.

Note to File Jack Zakowski May 12, 2016

I spoke with Marie Price, attorney for the Phyllis Diller High School for the Performing Arts. Price confirmed that, according to her clients, there were no security guards or teachers at the gate when the incident took place. The teachers were taking a break from guard duty to help the students study for statewide academic performance tests.

Price added that the security guards are almost always present at the gate. The guards were only absent because of the break-ins at the faculty parking lot.

Price also confirmed that Harriet Wilson had a lengthy disciplinary record at the Barnes School in Philadelphia. This included some violent incidents related to varsity sporting events. For example, in seventh grade Wilson once got into a fistfight with a teammate on the Barnes field hockey team; apparently Wilson was jealous. A similar incident involving a fellow player on the volleyball team took place when Wilson was in the eighth grade.

Since moving to Diller, Wilson has shown no signs of violence. She has, however, been cited for disruptive behavior six times. Three instances involved using obscenities; two involved talking in a loud voice during class; and one involved calling her music teacher “an older, balder version of Justin Bieber.”

According to Price, when Principal Belding learned about the Facebook threats, he met with Costa and Wilson. He warned Wilson that she would be suspended if she hit Costa. During the meeting both girls acted respectfully. He thought it was significant that the girls shook hands.

Finally, Price said that Lydia Grant, the director of Grease, didn’t think Costa and Wilson were angry with each other at all. According to Grant, Costa is a “drama queen” who blows minor incidents out of proportion. Grant did confirm that Wilson is not a very good singer.

Case Law: Mirand  v. City of New York, 637 N.E.2d 263 (N.Y. 1994).

84 N.Y.2d 44

Court of Appeals of New York.

Virna MIRAND et al., Respondents,

v.

CITY OF NEW YORK, Defendant,

and

Board of Education of the City of New York, Appellant.

June 21, 1994.

High school students brought action against board of education to recover damages for injuries sustained when students were assaulted by fellow student. The Supreme Court, Bronx County, Silver, J., granted motion to set aside jury verdict for students. Students appealed. The Supreme Court, Appellate Division, Sullivan, J., 190 A.D.2d 282, 598 N.Y.S.2d 464, reversed and reinstated verdict. Appeal by permission was granted. The Court of Appeals, Ciparick, J., held that evidence sustained finding that school was liable for negligent supervision.

Affirmed.

Attorneys and Law Firms

***373 *45 **264 Paul A. Crotty, Corp. Counsel, New York City (Michael S. Adler and Stephen J. McGrath of counsel), for appellant.

Alexander J. Wulwickand Roura & Melamed, New York City, for respondents.

*46 OPINION OF THE COURT

CIPARICK, Justice.

This appeal requires us to consider the nature and extent of the tort liability of a school district based on the theory of negligent supervision for injuries caused to plaintiffs by the intentional acts of a fellow student.

Defendant Board of Education appeals from an order of the Appellate Division which reversed a judgment of Supreme Court granting defendant’s motion to set aside the jury verdict in plaintiffs’ favor and dismissing the complaint. The Appellate Division reinstated the verdict,190 A.D.2d 282, 598 N.Y.S.2d 464.

Defendant argues that the trial court properly set aside the jury verdict as a matter of law since there was no valid line of reasoning nor any permissible inferences which could lead rational minds to find for the plaintiffs. We conclude that the jury verdicts were supported by sufficient evidence and the order of the Appellate Division should be affirmed.

I

Plaintiffs Virna and Vivia Mirand, sisters, were students at Harry S. Truman High School in the Bronx at the time of the incident giving rise to this action. According to Virna’s testimony, on September 20, 1982, she was released from her last class at 2:00 P.M. and went to wait for her sister, whose last class ended at 2:40 P.M., at their usual meeting place. On the way there, Virna accidentally bumped into Donna Webster, another student with whom Virna had not had any previous encounters. Although Virna apologized, Webster, believing the contact to be intentional, cursed Virna and attempted to kick her. Virna blocked the kick and caught Webster’s leg. According to Virna, Webster threatened to kill her. At that point a bystander intervened and prevented anything further from occurring.

Virna proceeded to the first floor of the school where by chance she met her sister ***374 **265 who was going to her last class. *47 Webster was a student in Vivia’s class and Vivia suggested that Virna report the altercation to the security office. Virna proceeded to the security office, which was located on the first floor near the building entrance, and knocked on the door. She received no response. Virna testified that as she was walking down a first-floor hallway she met a woman she knew to be an art teacher but whose name she could not recall. She told the teacher of the altercation with Webster, that Webster had threatened her, and that there was no one in the security office. Virna was not allowed to testify regarding what the art teacher said in response. Virna conceded at this point that, in an examination before trial made six years earlier, she had not mentioned her meeting with the art teacher.

According to Virna, after her encounter with the art teacher, she returned to the security office, where again she knocked on the door and received no response. She then went to the second floor and left the building through the main entrance to wait for her sister on the building veranda where school security officers were sometimes present. None were present on that day. Vivia eventually arrived about a half-hour later and the two proceeded to descend the staircase when they found their path blocked by Webster and two male companions. Although the sisters tried to avoid her, Webster approached Virna and struck her on the elbow and head with a hammer. When Vivia tried to seize the hammer, she was hit in the back by an unknown girl. One of the males with Webster, a nonstudent, later identified as her brother, stabbed Vivia through the wrist with a knife. No security or police officers were present during the incident. The sisters were taken to a hospital. Virna was treated and released. Vivia’s hand was operated on and placed in a cast. She spent seven days in the hospital. Since then she has undergone further surgery and hospitalization together with physical therapy. She experiences pain in her injured hand and has limited movement and use of it.

At trial, the evidence concerning general security measures at Truman High School disclosed that in the fall of 1982 there were 13 trained school safety officers assigned to the school. They wore uniforms, carried radios, and operated out of the school’s first-floor security office. There was also a first-floor security desk located by the main entrance to which an officer was assigned at all times. The security officers were assigned throughout the building and were expected to cover the building’s exits at dismissal time. According to the school’s security *48 plan, two to five officers were assigned to the second-floor main entrance at dismissal, although they were not required by the plan to be on the second-floor veranda outside. Teachers were also expected to assist in providing security by using their independent judgment with minor matters and seeking the assistance of other personnel with more serious incidents. At trial, the school’s security coordinator could not recall how many fights had occurred at the school during the preceding year nor whether security officers were at their posts at dismissal time on the day in question.

The jury found that defendant Board of Education negligently failed to provide adequate supervision and awarded plaintiff Virna Mirand $50,000 for past pain and suffering, and Vivia Mirand $750,000 for her past and future pain and suffering. Defendant Board moved to set aside the verdict in plaintiffs’ favor and to dismiss the complaint. Supreme Court granted the motion and dismissed plaintiffs’ complaint, concluding that plaintiffs had not established that defendant Board was on notice of a specific danger, and that there was a failure of proof concerning inadequate supervision and proximate cause.

 

[1]defendants did not have sufficient notice to be able to have anticipated the actions of the pupil, and

[2]in any event, the pupil’s act of striking the student was so sudden and spontaneous that no amount of supervision would have prevented it.

Affirmed as modified.

Attorneys and Law Firms

**722 Rapport, Meyer, Whitbeck, Shaw & Rodenhausen, L.L.P., Hudson (Larissa C. Wasyl of counsel), for appellants.

Steven M. Melley, Rhinebeck (Jade H. Platania of counsel), for Karen MacCormack, respondent.

Pennock, Breedlove & Noll, L.L.P., Clifton Park (John H. Pennock Jr. of counsel), for BJ Cantele and another, respondents.

Before:CARDONA, P.J., CARPINELLO, ROSE, MALONE JR. andSTEIN, JJ.

Opinion

MALONE JR., J.

*1121 Appeal from an order of the Supreme Court (Hummel, J.), entered August 2, 2007 in Columbia County which, among other things, denied the motion of defendants Hudson City School District Board of Education and Hudson City School District for summary judgment dismissing the complaint against them.

On May 12, 2004, Bryan MacCormack and James Cantele were freshmen at Hudson High School in Columbia County. During the preceding weeks, they had a minor altercation in the cafeteria and Cantele allegedly threatened MacCormack with physical violence. On the date in question, the two had a verbal exchange while they were ascending the stairs which culminated in Cantele striking MacCormack in the face and causing him to lose two teeth. Plaintiff, MacCormack’s mother, subsequently commenced this negligence action against various parties, including defendants Hudson City School **723 District Board *1122 of Education and Hudson City School District (hereafter collectively referred to as defendants). Following joinder of issue, Supreme Court, among other things, denied defendants’ motion for summary judgment dismissing the complaint against them. Defendants now appeal.

 They were engaged in a physical altercation and had to be separated by teachers. As a result of the third incident, both students were suspended for three days. On the first day upon returning from her suspension, Bivins exited the bus, proceeded to plaintiff’s locker, and stabbed plaintiff in the leg with a knife.

 

 

Affirmed.

[5]Here, the plaintiff was adequately supervised at school, and the school addressed the altercation that occurred on school property between plaintiff and Lorenzo McDonald by punishing the students. The second altercation which resulted in plaintiff’s injuries was out of the orbit of the school’s authority, as the incident occurred away from the school and before school hours where there was no teacher supervision.

 

Plaintiff, in the course of monitoring the MySpace account of his daughter, Cheyanne Conklin, discovered comments indicating that one of Conklin’s fellow students, Cassidy Edwards, intended to fight Conklin the next day at one of defendant’s schools. Plaintiff left a message at the school that night and received a return call from an administrator before school the next morning. The administrator arranged for Gina Kiniry, *1425 defendant’s social worker, to meet with Conklin first thing in the morning. Kiniry separately met with Conklin and Edwards, then conducted a mediation with the two girls. Both remained calm and denied any intention to engage in a physical altercation. Conklin was sent back to class, while Kiniry had Edwards meet with defendant’s school resource officer to discuss the criminal implications of assaulting a student. Kiniry then brought Edwards to an assistant principal to discuss the disciplinary implications of fighting. Edwards told all three staff members that she had no intention of fighting with Conklin and had not made any threats to do so.

About two class periods later, as Conklin was walking in the hall between classes, Edwards approached her from behind, pulled her to the ground by her hair and repeatedly punched her in the head. Two teachers who were within approximately **577 10 feet of the girls immediately began yelling at Edwards to stop. Another teacher ran to the nearby library and asked someone to notify the office that a fight was taking place. A teacher who was in the library then ran to break up the fight. A teaching assistant in a nearby room also heard the commotion and ran to intervene. Within 30 seconds to one minute after the fight began, a student had separated the girls, the teacher who had been in the library arrived to keep them separated and five staff members were present at the scene.

Plaintiff commenced this action, individually and on Conklin’s behalf, alleging that defendant’s negligent supervision caused Conklin’s injuries. Following joinder of issue, defendant moved for summary judgment dismissing the complaint. Supreme Court denied the motion. Defendant ap

 

o Carol Mark

From FYL Student

Date November 11 2002

Re Woods Covenant not to Compete Suit Enforceability

Question Presented

fUnder Pennsylvania law will the court find enforceable a non competition clause with

temporal and geographic limits for a lawyer who founded a legal recruiting firm which services

former clients of a competing legal recruiting firm from which she resigned less than a year ago I

Brief Answer

Probably yes The non competition clause is necessary to protect the plaintiffs legitimate

business interests of customer goodwill for clients passed to Woods upon arriving at ACME and obtained during her time at the firm Given the time required for training and customers serviced and in the sdefendant previous work the non competition clause temporal and geographical limits appear to be appropriate sACME non competition clause does not appear to deny her the

right to earn a living since Woods possesses experience beyond the field of legal placement

acts Alex Woods previousExampleemployer ACME Attorney Search ACME has brought an action to prevent her from continuing a new legal recruiting service which she founded ACME

 

 

competition with ACME for one year from the date of her termination at any location within fifty miles of the place of her previous employment for the past year Section b stipulated that for

one year she not solicit nor supply legal placement services to ACME clients from the previous year ACME is a national legal recruiting firm with offices throughout the country It places

attorneys with a wide variety of clients and in all practice areas As an account manager Woods

developed onshipsrelat with personnel in the firms whose accounts she managed Woods

managed one hundred clients She brought fifteen from previous contacts recruited twentyfive during her time at ACME and inherited sixty Fiftyfive percent of the revenue generated by ACME and more specifically Woods accounts came from the greater Philadelphia area In the

course of serviging an account Woods gains knowledge of her clients infrastructure business

developments and plans for growth The level of detailed knowledge necessary for proper account management typically takes four to eight months to establish Within one year of leaving

ACTIE Woods founded her own legal recruiting firm The new irri specializes in placing patent

lawyers in the same online manner employed by ACME Woods runs the business from her

home in Abington PennsylvaniaExamplea suburb less than fifty miles from Philadelphia At the time of the suit Woods had placed ten employees in jobs with five of her former ACME clients

Discussion

The court is likely to find that Alex Woods violated her non competition clause with ACME by founding a legal recruiting service that services clients gained while at ACME operates within 50 miles of her previous place of work and began less than a year after her departure from ACME Pennsylvania maintains four part standard for determining whether a

non competition clause should be enforced irsta restrictive covenant notto competemust be

2

comment i O necesssr for the i

OSe II

Conchisioncomment

i

 

ancillary to the principal transaction and supported by valid consideration See sMorgan Home

EQUipment Coro v Martucci 390 Pa 618 628629 136 2dA 838 844845 1957 Since the

non competition clause was part of sWood original contract with ACME and given

consideration through her subsequent employment Pennsylvania first test does not need further

examination The second through fourth requirements for non competition clauses are directly

applicable to sMEAr case against Wood Second the restrictions of a non competition clause

must be reasonably necessary to protect the semployer goodwill defined as the semployer

name and reputation or specialized training skills encompassing carefully guarded methods of doing business unique to a particular enterprise sMorgan Home Equipment Corp 390 Pa at

631 136 A2d 38 at 846 Third the non competition covenant must Paperbe appropriately restricted

for time and distance See Volunteer Firemens Ins Services Inc v Cigna Prop and Casualty Ins Agency 693 A2d 1330 1338 1997 Finally non competition clauses must not impose too great a hardship upon the employee by denying him or her the right to ear livelihood See

Morgans Home EauMment Corp 390 Pa at 632136A2d 838 at 846

Oree groups of clientsExamplemust be considered when determining whether the court will block Woods business on the grounds of customer goodwill First the court will likely allow

Woods to continue servicing the clients she brought to ACME from her previous work experience When an employee has worked with customers prior to signing a non competition agreement the court is reluctant to prohibit future interaction with those customers under a covenant not to compete See Boldt Machinery Tools Inc v Wallace 469 Pa 504 517 518 366 A2d 902 904 1976 In Boldt the court found that while an employee working for a machinery seller was servicing clients of former employer it was permissible since the clients were also previously associated with the new employer Woods hadexisting relationships with

3

Comment Test for enforceability of i

i compnon ofthirhein

roadmap fortlseshuchueofthememoa s

Comment Trar sition septa ce

Comment cmchLnon

Comment Rule

 

fifteen clients prior to starting at ACME Now self employed Woods use of her preACME

Comment Rule application

contacts will ely1 be protected under Boldt previous association exception I thereherefore is

a strong probability the court will alter sACME non competition clause to allow Woods to

tommentConctusion i

conduct business with her pre existing clients I

However the court will likely uphold the non competition covenant for the second and

third groups of clients those passed to Woods upon starting at ACME and those obtained during

her tenure since sWood servicing of these former ACME sclient poses a threat to sACME

reasonable business interest of customer goodwill en a business largely depends upon

ongoing relationships between the sfirm agents and customers a non competition clause

generally permits companies to prohibit a former employees interactionPaperwith those clients to

protect customer goodwill See Jacobson Co v Intl Envtl Corn 427 439 453 235 A2d 612 620 1967 In Jacobson the court found that a sales representative for a radiant heating company could not do business with customers of his previous employer another radiant heating

company operating in the same geographic region For the heating firms customers the sales

agent was the firm serving asExamplethe only point of contact with the larger organization from which the customer purchased services and goods To protect customer goodwill where a single contact

point exists the court ruled that the former employee could not do business with his previous employers clients as detailed in the non competition clause See id IAs in Jacobson Woods

serves as the sole contact point between ACME and her accounts By consulting with clients regarding their hiring needs pre screening applicants for available jobs and tracking clients preferred employee types Woods appears to be the source of the lawyers they desire but actually only serves to match customer demand with ACMEs available supply Similar to the heating sales representative in Jacobson Woods works only as a filer and conduit between

CommentConclusion

Comment Rule

4

 

the customer and the sfirm product a pool of employable lawyers In contrast to her pre

ACME contacts Woods other accounts were obtained with the assistance and good business

standing of ACME Woods position as a matter of necessity gave her undue influence over

clients forcing ACME to protect itself through its non competition clause section b I

Therefore on the grounds of protecting the reasonable business interest of customer goodwill it is doubtful the court will allow Woods to service any contacts obtained after her starting date at

ACME

While the customer goodwill explained above is enough to uphold a significant portion of

sACME non competition clause it is important to note that the clause is likely unenforceable

when justified through the reasonable business interest of special trainingPapergained while working at ACME When an employee has gained specialized training from a previous employer he or she can be prohibited from employing that training in competition against the previous employer within a specified region for a specified time See Medical Wellness v Heithaus 51 D

CAth 1 27 28 Pa Ct Com Pl 2000 See also sMorgan Home Equipment Com 390 at 631 136 2dA 838 at 846 ruling that door to door salesmen did not receive special training

justifying enforcement of a non competition clause The court will probably find Section a of

sACME non competition clause unenforceable since there is no evidence Woods received any

specialized training not available to the public during her time at ACME

he non competition clause time restriction will likely be enforced by the court since it provides a reasonable period to rebuild the customer relationships lost in Woods resignation JA

temporal restriction in a non competition clause should extend only to the extent necessary to compensate for vulnerability to competition caused by the departure of a previously employed party See Volunteer sFiremen Ins Services Inc 693 2dA at 1338 Volunteer sFiremen

5

COlnment Rule application

Comment Conclusion

Comment analysisCounter paragraph

Features counter isle and briefanalys

Paragraph is shorter one sentence

combines Wile application and

coli vrelevant

iventh revious paragraphs grveii f p

i eonclusroii

cormrefitconglpsion

 

Insurance Services VFIS decided to end a partnership with Cigna Property and Casualty

Insurance Agency Cigna through which VFIS marketed and sold a unique brand of

insurance designed for emergency service organizations After the termination of their partnership the court granted VFIS a three year non competition period to protect the firm from

competition from Cigna who knew of sVFIS business methods and strategies while VFIS

entered the mar et it in its new role See id n the instant case ACME like VFIS must enter the

market of legal placement in a new role due to the loss of the personal relationships established

by Woods over her six year term ACME estimates that a typical account manager takes four to

eight months to establish a basic knowledge of a sclient needs Woods departure essentially

terminated ACMEs working relationship with her previous clients forcingPaperACME like VFIS to re establish the firms competency in the area affected by the other partys departure In the meantime Woods like Cigna possesses privileged business method and strategy knowledge

which she could use to take her former clients from ACNE while the firm works to reestablish a

component of its business Also given that Woods had worked for six years and serviced one

hundred clients eight monthsExamplewould likely be the absolute minim required to bring new

account manager up to speed on job requirements Therefore one yearcompetition period appears to be reasonably construed for ACMEs vulnerability following Woods departure I

fDue to the national nature of ACMEs clients the court will probably endorse the fifty mile geographic limit on competition as reasonable given the territorial scope of sACME

business Geographic limits must not extend beyond the reasonable scope of a former employers

business interests See Volunteer Firemens Ins Services Inc 693 A2d at 1338 In Volunteer Firemen Ins VFIS engaged in nationwide business during its partnership with Cigna The court found a nationwide ban on competition appropriate given the actual market serviced during the

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former partners relationship See id See also Bettineer v Carl Berke Assoc Inc 455 Pa 100

104 314 2dA 296 298 1974 holding that the geographic scope of non competition clause should be reduced to correspond with the area immediately surrounding salesman former place

of employment ACME serviced firms across the country and claimed to be the largest and most

diverse legal placement firm in America Their use of the internet to service clients effectively

removes any geographic barrier to the expansion of their business Given this reach ACME might potentially be able to enforce a nationwide ban on competition under the Volunteer

sFiremen Ins standard In the present case sACME less ambitions restriction is even more

likely to be upheld Since only fortyfive percent of the revenue from sACME total accounts

and specifically Woods accounts came from clients beyond the Philadelphia area ACME

narrowed its restrictions to the area surrounding Woods place of employment mirroring the

Bettinger courtwilllikelystandard1he hold ACNE fiftymile limit enforceable given its

significant revenue base in the Philadelphia metropolitan area

Oiveh Woods previous work as a patent lawyer sACME non competition clause does

areas of profession the court has been reluctant to overturn otherwise enforceable non

not appear to deny Woods theExampleri ght to earn living IjWhen employees arewith many

competition clauses See Bettinaer 455 Pa at 104 314 2dA at 298 owever the court

maintains that a non competition clause should not be enforced when it prevents a former employee from utilizing his or her experience such that the semployee ability to earn a livelihood is threatened See Jacobson Co 427 Pa at 454 235 2dA at 620621 rl Bettinger the court ruled that Berke a salesman possessed numerous other skills in the field of sales and industry that would allow him to obtain employment for the year he was prevented for directly competing with his former employer in his previous field See id Likewise Woods six years of

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experience as a patent lawyer should allow her ample opportunity to secure alternative employment during the term of the non competition clause It is unlikely that Woods would have

to relocate or enter a new field to find sufficient work during the term of her non competition

agreement le she may face a difficult time acclimatingtheto rapidly changing issues of

patent law the aw must accept that a degree of effort may be required to find new employment

Furthermore given the likely judicial curtailment of ACN sE covenant not to compete Woods

might be able to continue with her existing business plan therefore despite the difficultiesfaced

by Woods because of the covenant sACME non competition clause does not deny her the right

to earn a living using her experience and skills

Conclusion

The court is likely to find ACN sE non competition clause enforceable for clients Woods

obtained after commencing Work at ACME The court will likely allow Woods to service clients

brought with her to ACME through previous associations However for all other clients ACME

possesses a reasonable businessExampleinterest in customer goodwill which will be threatened if Woods were allowed to immediately begin servicing former clients since she served as the sole point of contact between those clients and ACME The non competition clausegeographic and temporal limits also appear to be appropriate given the territory of customers serviced by ACME and the time required for a new account manager to rebuild the business relationships lost inWoods departure Finally given Woods previous experience as a patent lawyer she has alternative means of employment decreasing the likelihood that the court will reject the non competition clause on the basis of denying the right to earn living

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