A Massachusetts Superior Court judge ruled recently that a software executive, who received a cease-and-desist letter from his former employer, could not sue the employer for tortious interference with contract because the communication was protected by what is known as the absolute litigation privilege.
The cease-and-desist letter that the executive received accused him of misappropriating a customer list and soliciting two former co-workers in violation of a restrictive covenant in his agreement with the former employer. The executive argued that the letter caused his new employer to fire him.
However, the Massachusetts Superior Court in Pegasystems v. Manning, Lawyers Weekly No. 12-091-14 (Mass. Superior Ct. 2014), allowed a Motion to Dismiss the employee’s lawsuit. The Court stated in its opinion, “The litigation privilege applies not only to statements by attorneys but also to ‘communications by a party’ as long as the other conditions for the privilege are present…. [The company] has shown on the face of the Complaint that its communications and actions were ‘preliminary to a proposed judicial proceeding’ and that ‘legal action was contemplated when the allegedly [offending] statements [and actions] were made.”
FA&E can assist your company in enforcing non-competition and non-solicitation agreements and can help employees in defending against claims of violating a restrictive covenant. Please give us a call if you need assistance in these areas.
