According to a decision of a Massachusetts Superior Court, one day after beginning work in 2010 as a hair stylist for Invidia, LLC, a Sudbury, Massachusetts hair salon, Maren DiFonzo signed an agreement containing non-competition, non-solicitation and confidentiality provisions in favor of Invidia. The agreement provided that she would be restricted, after her departure from Invidia, from offering such services for a period of two years within a ten mile radius of Invidia.
After about 28 months at Invidia, Ms. DiFonzo informed her employer that she was leaving to work for another salon which was only 1.6 miles away. Four days after DiFonzo resigned from Invidia, David Paul Salons, her new employer, posted a “public announcement” on DiFonzo’s Facebook page, noting DiFonzo’s new affiliation with David Paul. One Ms. Kaiser posted a comment which said, “See you tomorrow Maren [DiFonzo]!” Ms. Kaiser then canceled her appointment at Invidia for the next day.
DiFonzo was thereafter sued by Invidia for breaching the agreement and Invidia sought a preliminary injunction to require DiFonzo to observe the provisions of the agreement until trial on the merits. To obtain such an order by the court, Invidia was required to prove that it would likely prevail at trial and that damages would be inadequate to remedy the breach.
When Invidia learned, almost immediately, that DiFonzo was going to work at David Paul Salons, it had its attorney send letters to both DiFonzo and David Paul Salons, expressing its intention to enforce the Agreement. DiFonzo’s employment at David Paul Salons lasted from August 20, 2012 to September 1, 2012. DiFonzo believed that David Paul Salons “fired” her on September 1, although Mr. Pompey, the owner of David Paul Salons, said that he told Ms. DiFonzo “to take time off from David Paul and return if she could get things straightened out with Mr. Patzleiner” of Invidia.” Mr. Pompey said that he took this action “solely [because of] the threats I received from Mr. Patzleiner” of Invidia, after a discussion with Mr. Patzleiner in which Mr. Patzleiner said that “he did not care” whether DiFonzo would solicit Invidia’s customers, but rather “he ‘needed to send a message’ to his other employees.”
In its supporting papers, Invidia pointed out that DiFonzo had become Facebook “friends” with at least eight of Invidia’s clients. Invidia also prepared a report indicating that 90 Invidia clients, formerly served by DiFonzo, “either did not keep his or her scheduled appointment, canceled, or failed to schedule a future appointment” since August 18,2012, the day of DiFonzo’s resignation.
Invidia’s owner stated that Facebook “is a significant channel of communication between Invidia and its clients.” Invidia argued that if these 90 clients are accustomed to communicating with Invidia through Facebook, they are probably Facebook-savvy enough to locate Ms. DiFonzo’s Facebook page after she left Invidia.
According to the court, however, Invidia failed to prove that damages were inadequate and failed to prove that it would likely prevail on the merits. Invidia did not show to the court’s satisfaction that DiFonzo solicited any of the purported clients via Facebook or otherwise. The court held that: “So long as they reached out to Ms. DiFonzo and not vice versa, there is no violation of the non-solicitation provision of the Agreement.” Invidia’s request for the preliminary injunction was denied. [Court opinion.]
The court also noted: “The nature of a hair stylist’s relationships with her customers is such that it can be difficult to determine whose goodwill is being created as she pleases those customers enough to convince them to return to the salon for future visits. Given the nature of this industry, the question of whether this particular non-competition provision protects the employer’s goodwill is a difficult one, as to which Invidia’s theory may or may not ultimately carry the day.”
NOTE: Many states allow such agreements restricting future employment that are “reasonable” as to geography and time period. With only certain narrow exceptions, such agreements in California would be void as a matter of law. See Cal. Bus. & Prof. Code § 16600 et. seq.