Posted by Dave_CA on 1/24/05 1:47pm
Msg #17901

Non-compete +

I have read the past posts on non-compete clauses in SS contracts and the general feeling I got was to ignore them, as long as you were obtaining the information on prospective new clients from public sources, but then I came across this...

"Contractor agrees that it would be difficult to measure damage to Notary Direct from any breach by Contractor of the above two paragraphs, and that monetary damages would be an inadequate remedy for any such breach. Accordingly, Contractor agrees that if the Contractor breach, or take steps preliminary to breaching the above two paragraphs, Notary Direct shall be entitled, in addition to all other remedies it may have at law or equity, to an injunction or other appropriate orders to restrain any such breach, without showing or proving any actual damage sustained by Notary Direct."

I would be very interested to know if any experienced Notaries have signed something like this or to read any other advice on this subject.

Hopefully Hugh will have a moment to weigh in

Thanks in advance,

Dave

Reply by Nicole_NCali on 1/24/05 1:56pm
Msg #17903

This is just my 2.5 cents, but according to California Law, the non-compete clause is not valid for California. I am trying to find the actual California Law that this pertains to.

Reply by A on 1/24/05 2:24pm
Msg #17906

Non-Compete clauses are hard to enforce anywhere!

Reply by sue on 1/24/05 2:24pm
Msg #17907

'experienced' notaries don't sign these type agreements, whether or not they are enforceable. Until the time a signing service agrees to give you exclusive coverage in an area (and can somehow prove that to you) you should never allow them to restrict you in any way, again, whether or not enforceable. Should they ever want to enforce this you would have to defend yourself if you sign it, no matter the outcome.

Reply by HisHughness on 1/24/05 3:20pm
Msg #17924

The same principle should apply in equity as in law (equity = actions in which a court orders a party to do or not do something, such as restraint, mandamus, habeas corpus, etc.; law = monetary damages). If, however, they were successful in restraining you, and if the contract is void or voidable for other reasons, then they have exposed themselves to liability for damaging your livelihood. All of this is academic, though, if you don't have the $5,000-10,000 retainer for a lawyer, however justified your position.

I wouldn't want to work for a company that contends it should not have to prove it faces damages before damaging >>my<< business. I would simply strike and initial the clause. If they don't use you, you're probably better off.

Reply by CaliNotary on 1/24/05 3:31pm
Msg #17927

"I wouldn't want to work for a company that contends it should not have to prove it faces damages before damaging >>my<< business. I would simply strike and initial the clause. If they don't use you, you're probably better off."

I haven't seen that many non compete agreements, but the few I have seen have been attached to tightwad pain in the butt companies.

I think that they're an indicator that the company doesn't trust their signing agents, which to me means that they don't respect us. I don't want to work for a company that feels that they have to spell out what should be an ethical given in the industry. But I will concede that many of these companies probably drew up these agreements because of being burnt by unprofessional signing agents in the past.

There needs to be trust on both sides in our job - we need to trust that they're going to pay us for the work that we do. They need to trust that we actually know what we're doing. That's why I stopped working for ServiceLink several months ago. They decided to treat all of their signing agents as if they were brand new on every signing. And they lowered their fees to reflect that mentality.

If a company can't trust me to do my job properly and ethically, then I'm not going to trust them to do right by me either.

Reply by BrendaTX on 1/24/05 6:42pm
Msg #17959

CaliNotary Notes: "I think that they're an indicator that the company doesn't trust their signing agents, which to me means that they don't respect us."

Actually, I take it a step further than that and would say that the degree of dishonesty that an SS sees as a possibility in the SA is the degree of dishonesty they see in the business relationship because of their own capability for being dishonest.

When it comes to agreements with the SSs, I either accept them, or throw them out.

If I can't accept it in whole, I figure they are not going to use me if I strike parts of it--except where they have listed something like:

"Notary agrees to do assignments in ____ County for $50.00. "

I strike $50 and put in my fee.

I have also found it interesting to note that many jobs I have done were done for SSs that had some pretty tightly strung contracts that I would not sign. However, since I had not already signed up with them BEFORE I got the assignment, it was not required for me to sign them in order to work for them.

So, I guess the other side of the coin is that there are some great SSs which have been burned by unethical SAs.

Yes, Carolyn, I crawled up one side of this issue and down the other. What do you think that could mean????

Reply by Dave_CA on 1/24/05 4:22pm
Msg #17938

Thanks, I appreciate the advice. At the risk of pushing my luck, I've just come across a SS that want an agreement for binding arbitration as the only remedy.
Any thoughts you can share?

Thanks again,

Dave

Reply by HisHughness on 1/24/05 5:06pm
Msg #17941

I wouldn't do it. Arbitration does not require a lawyer, though one can be employed if you desire. Thus, the SS is more likely, I would judge, to pursue an action than if it had to shell out a retainer to an attorney.

Further, mediators/arbitrators normally don't have to be lawyers, so they're not going to be inclined to split legal hairs. My guess is that an arbitrator's view of a case such as this would be, "Hey! He agreed to it; now he wants to wiggle out. No way." A judge is more likely to say "This is an unreasonable restriction on a person's need to earn a living. No way."

You'll be getting my bill about Feb. 1. It's payable net 30. If I haven't received payment by March 1, it will be referred to attorney Thomas Sirianni, who has a lot of experience in dealing with deadbeats.

Reply by Dave_CA on 1/25/05 12:23am
Msg #18000

Yes please, I would much rather owe it to you than feel that I had imposed or cheated you out of it... And to Thomas Sirianni Esq. no less. Is this following the dictum that it takes one to catch one?