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National Economic
Research Assocs., Inc. v. Evans, 2008 WL 4352600
(Mass. Super. Sept. 10, 2008) (Gants, J.). |
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David Evans was a Senior Vice President
and Director of National Economic Research Associates,
Inc. (“NERA”), where he developed a large and successful
consulting practice, including ongoing engagements for
Visa and Microsoft. He left and went to work for a
competitor, taking the Visa and Microsoft accounts with
him.
Mr. Evans was subject to a non compete,
governed by New York law, which prohibited not only
solicitation of NERA clients, but also acceptance of
business from them. Applying New York law as set forth
in BDO Seidman v. Hirshberg, 93 N.Y.2d 382 (1999), the
court concluded that the non compete agreement was
enforceable so long as limited to NERA clients whose
projects Evans actually serviced, directed or |
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managed, and which did not come to
NERA with him from his prior firm.
Both Visa and Microsoft came to NERA
through others at the firm and then became Mr. Evans’
clients. The court declined to find enforcement of the
non compete a hardship, particularly where Mr. Evans had
received roughly $1.0 million in stock options in
exchange for signing it. The court also found that the
public would not be injured by enforcement, where other
economic consulting services were widely available.
The court granted the defendants summary
judgment on claims for tortious interference with
contract, breach of fiduciary duty, misappropriation of
corporate opportunity and violation of
M.G.L. ch. 93A.
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