Posts tagged with "protection"

Policy of Enforcing Connecticut Non-Compete Agreements to Protect Employer’s Interests

Torrington Creamery, Inc. v. Davenport, 126 Conn. 515 pertains to a dispute regarding a non-compete agreement between an employer and employee in the dairy products industry in 1940.  While this case is by no means recent, it is a seminal case that lays the groundwork for the policy of enforcing non-compete agreements in Connecticut on the grounds of protecting the employer’s interest.  Specifically, this is one of the first Connecticut cases to address the enforceability of a company’s non-compete agreements when another company acquires it.

The High Brook Corporation employed Mr. Preston Davenport as a farm manager and superintendent beginning in 1932 at its Torrington, Connecticut location.  The company produced and distributed dairy products in the towns of Torrington, Litchfield, Winsted, Thomaston, New Milford, New Preston, and Greenwich, all towns in western or southwestern Connecticut.  High Brook changed its name to The Sunny Valley Corporation in March 1938 and on April 15, 1938, had Mr. Davenport sign an employment contract.  The contract specified that Mr. Davenport would receive a fixed compensation with no set duration and that he would be subject to several restrictive covenants.  A non-solicitation clause prohibited Mr. Davenport from soliciting, either directly or indirectly, Sunny Valley or its successor’s customers for a period of two years.  Meanwhile, a non-compete clause prohibited Mr. Davenport from engaging in the dairy production and distribution industry in the towns where Sunny Valley operated.  Another clause in the employment agreement stipulated that a court’s invalidation of a portion of the agreement would not affect the legally binding nature of the other provisions.  Sunny Valley sold its operations and assets to Torrington Creamery, Inc. in October 1938 and the company discharged Mr. Davenport from employment on October 18, 1938.  He proceeded to start his own dairy production and distribution business in February 1939 in the towns of Torrington and Litchfield.

Torrington Creamery sued Mr. Davenport to enforce the duration and geographical limitations of the restrictive covenant he had signed with Sunny Valley Corporation.  The Superior Court in Litchfield County found in favor of Torrington Creamery, Mr. Davenport appealed the decision, and the case went on to the Connecticut Supreme Court where it affirmed the lower court’s decision.  The Supreme Court found the terms of the non-compete agreement to be reasonable and necessary for the protection of Torrington Creamery’s business interests.  The notion of “protecting an employer’s business interests” is a driving force and major policy concern when deciding whether to enforce a non-compete agreement under Connecticut law.  Restrictive covenants become valuable assets of the employer and courts generally hold that the employer is entitled to the right to safeguard these assets.  Equally as important, the court held that the employer benefits contained in a restrictive covenant can be assigned to a purchaser in the event of the sale of the business and its assets.  Thus, when a company acquires another company, it gains the legal authority to enforce the acquired company’s valid non-compete agreements.  Courts view restrictive covenants as valuable business assets that provide for the necessary protection of the employer and any successor company.

The lawyers at Maya Murphy, P.C., are experienced and knowledgeable employment and corporate law practitioners and assist clients in New York, Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, Westport, and elsewhere in Fairfield County.  If you have any questions relating to your non-compete agreement or would to discuss any element of your employment agreement, please contact Joseph C. Maya, Esq. by phone at (203) 221-3100 or via e-mail at JMaya@Mayalaw.com.

Keywords: assets, assigned to purchaser, business assets, business interests, diary industry, sale of business, sold operations, enforcement, franchise, injunctive relief, obligations, prohibitions, valid, attempted solicitation, solicitation, refuse to enforce, reasonably necessary, former employer, previous employer, job responsibilities, binding, classified information, commercial operations, competing, compete, directly, employer’s interest, indirectly, internet-based, protect, reasonable, restricting disclosures, restricting disclosures, similar products, burden of proof, duress, direct competitor, disclosure of trade secrets, employment contract, enforceability, geographic limitations, headquarters, improper competition, injunction, management responsibilities, non-compete covenant, radius, sales representative, time limitations, unreasonable provisions, attorney, attorneys, employment attorneys, bonus, bonuses, companies, company, connecticut, customary practices, Darien, departing employees, directors, employee, employer, employment law, employment at-will, at-will, legal counsel, executives, New York, Fairfield, Fairfield County, Norwalk, Westport, Weston, Easton, Bridgeport, Stamford, Stratford, severance package, Greenwich, harassment, discrimination, hiring, human resources, job offers, lawyer, lawyers, leaving company, leverage, Maya Murphy, negotiated, negotiating severance packages, negotiation, New Canaan, non-compete, non-competition, non-disparagement, non-solicitation, offer, offer agreement, offer letter, P.C., payroll, position, represent, representation, salary, salaries,  senior management, manager, separation agreement, severance agreements, severance letters, severance package, termination, vacation, vesting, vesting of stock options, law firm, public interest, monopoly, start own business, voluntary, voluntarily left, mediation, burdensome, excessive, geographical, occupation, practice, territorial, violation, restrictive, proprietary knowledge, scope, narrow, broad, anti-compete, future clients, adequate consideration, competing businesses, confidentiality agreement,  conflict of interest, defense, fraud, consideration, oral representations, written approval, commercial, compensation, clients, contracts, duration, area, successor

Non-Compete Enforceability: Must Protect Legitimate Interest & Not Be Punitive

Non-Compete Enforceability: Must Protect Legitimate & Not Be Punitive
Ranciato v. Nolan, 2002 Conn. Super. LEXIS 489

Historic Restoration and Appraisal, LLC (HRA) was engaged in the business of restoring primarily detached single-family homes that had suffered casualty damage from fire and/or water. The company employed Mr. Timothy Nolan to work as a project manager for jobs located throughout the state of Connecticut. Mr. Nolan’s employment began on November 18, 1996 and the company informed him shortly thereafter that his employment was contingent on the execution of a non-compete agreement. The parties signed the restrictive covenant on November 21, 1996 and it prohibited Mr. Nolan from performing the same services offered by HRA in the states of Connecticut, Massachusetts, and Rhode Island for a period of three years. The agreement did not affect Mr. Nolan’s ability to offer painting or home improvement services that were not in connection to fire and/or water damage. In exchange for this employment restriction, the agreement stipulated that Mr. Nolan’s annual salary would be $48,500. He felt that he would be fired if he failed to sign the agreement and signed it without consulting a legal professional.
HRA fired Mr. Nolan on January 24, 1997 after repeated incidents of discovering that he was receiving lewd and inappropriate materials via the company’s fax machine. He began to work for McGuire Associates shortly after HRA discharged him and performed marketing and business development services in the capacity of his new position. Unlike HRA, McGuire is a preferred builder and the court held that it did not compete with HRA. The company sued Mr. Nolan in Connecticut state court and asked the court to enforce the non-compete agreement that the parties had executed. The Superior Court of Connecticut in New Haven rejected HRA’s request and held that the company “suffered no financial loss as a result of the defendant’s employment by McGuire”.
According to the non-compete agreement, Mr. Nolan can be in breach only if he works at a company that is “in competition with” HRA. While the court acquiesced that HRA and McGuire were both in the construction industry, it held that they performed significantly different services and were not in competition with each other for clients or projects. The industry classified HRA as a “fire chaser” because it received most of its jobs by monitoring police reports and fire scanners to alert them of individuals that needed repairs for fire and/or water damage. McGuire however was a preferred builder and provided services for not only single-family homes, but also commercial and municipal buildings. The courts interpreted the significant differences between the two companies as adequate evidence that Mr. Nolan was not “in competition with” HRA because of his new employment with McGuire.
Furthermore, the court discussed the reasons why a court would enforce a non-compete covenant, specifically referencing the legal system’s desire to balance and protect the parties’ interests. Courts generally grant injunctions to enforce a non-compete agreement when the plaintiff employer can provide adequate evidence that the former employee’s breach will result in adverse financial consequences. The court noted that this policy did not apply to the case since HRA had not suffered any financial loss or hardship and Mr. Nolan did not have any access to confidential information that would be harmful to the company should it be disclosed.
Additionally, the court concluded that the time and geographical restrictions in the agreement were unreasonable given the facts of the case. HRA did not have anything to lose because of McGuire employing Mr. Nolan because of the differences in their business operations and the court held that the restrictions, if enforced, would only serve to prevent Mr. Nolan from employment at another company. The policy to enforce non-compete agreements focuses on protecting the interests of the employer and not to punish the employee and excessively restrict future employment opportunities. Specifically, the court cited that HRA could only “benefit from protection in the New Haven area” and that the “tri-state restriction imposed on the defendant was not necessary to protect any legitimate interests of the plaintiff and, therefore, [the agreement] was not ‘reasonably limited’”.
If you have any questions relating to your non-compete agreement or would like to discuss any element of your employment agreement, please contact Joseph C. Maya, Esq. by phone at (203) 221-3100 or via e-mail at JMaya@Mayalaw.com.

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Non-Compete Enforceability: Must Protect Legitimate Interest & Not Be Punitive

Non-Compete Enforceability: Must Protect Legitimate & Not Be Punitive
Ranciato v. Nolan, 2002 Conn. Super. LEXIS 489

Historic Restoration and Appraisal, LLC (HRA) was engaged in the business of restoring primarily detached single-family homes that had suffered casualty damage from fire and/or water. The company employed Mr. Timothy Nolan to work as a project manager for jobs located throughout the state of Connecticut. Mr. Nolan’s employment began on November 18, 1996 and the company informed him shortly thereafter that his employment was contingent on the execution of a non-compete agreement. The parties signed the restrictive covenant on November 21, 1996 and it prohibited Mr. Nolan from performing the same services offered by HRA in the states of Connecticut, Massachusetts, and Rhode Island for a period of three years. The agreement did not affect Mr. Nolan’s ability to offer painting or home improvement services that were not in connection to fire and/or water damage. In exchange for this employment restriction, the agreement stipulated that Mr. Nolan’s annual salary would be $48,500. He felt that he would be fired if he failed to sign the agreement and signed it without consulting a legal professional.
HRA fired Mr. Nolan on January 24, 1997 after repeated incidents of discovering that he was receiving lewd and inappropriate materials via the company’s fax machine. He began to work for McGuire Associates shortly after HRA discharged him and performed marketing and business development services in the capacity of his new position. Unlike HRA, McGuire is a preferred builder and the court held that it did not compete with HRA. The company sued Mr. Nolan in Connecticut state court and asked the court to enforce the non-compete agreement that the parties had executed. The Superior Court of Connecticut in New Haven rejected HRA’s request and held that the company “suffered no financial loss as a result of the defendant’s employment by McGuire”.
According to the non-compete agreement, Mr. Nolan can be in breach only if he works at a company that is “in competition with” HRA. While the court acquiesced that HRA and McGuire were both in the construction industry, it held that they performed significantly different services and were not in competition with each other for clients or projects. The industry classified HRA as a “fire chaser” because it received most of its jobs by monitoring police reports and fire scanners to alert them of individuals that needed repairs for fire and/or water damage. McGuire however was a preferred builder and provided services for not only single-family homes, but also commercial and municipal buildings. The courts interpreted the significant differences between the two companies as adequate evidence that Mr. Nolan was not “in competition with” HRA because of his new employment with McGuire.
Furthermore, the court discussed the reasons why a court would enforce a non-compete covenant, specifically referencing the legal system’s desire to balance and protect the parties’ interests. Courts generally grant injunctions to enforce a non-compete agreement when the plaintiff employer can provide adequate evidence that the former employee’s breach will result in adverse financial consequences. The court noted that this policy did not apply to the case since HRA had not suffered any financial loss or hardship and Mr. Nolan did not have any access to confidential information that would be harmful to the company should it be disclosed.
Additionally, the court concluded that the time and geographical restrictions in the agreement were unreasonable given the facts of the case. HRA did not have anything to lose because of McGuire employing Mr. Nolan because of the differences in their business operations and the court held that the restrictions, if enforced, would only serve to prevent Mr. Nolan from employment at another company. The policy to enforce non-compete agreements focuses on protecting the interests of the employer and not to punish the employee and excessively restrict future employment opportunities. Specifically, the court cited that HRA could only “benefit from protection in the New Haven area” and that the “tri-state restriction imposed on the defendant was not necessary to protect any legitimate interests of the plaintiff and, therefore, [the agreement] was not ‘reasonably limited’”.
If you have any questions relating to your non-compete agreement or would like to discuss any element of your employment agreement, please contact Joseph C. Maya, Esq. by phone at (203) 221-3100 or via e-mail at JMaya@Mayalaw.com.

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Court Invalidates Non-Compete Contract for Unreasonable Restrictions

Court Invalidates Non-Compete Contract for Unreasonable Restrictions
Trans-Clean Corp. v. Terrell, 1998 Conn. Super. LEXIS 717

Trans-Clean Corp. was a company engaged in the business of restoring exteriors and interiors of commercial buildings. The company began to employ Mr. Alton Terrell as a salesman and manager in December 1990 in connection with the company’s acquisition of Travel Washer, Inc.. The parties executed an employment agreement that created a one-year term of employment, specified the compensation schedule, and contained a non-competition covenant. The non-compete agreement stated that Mr. Terrell was prohibited for two years following the completion of his employment contract or any renewal thereof from competing with Trans-Clean within sixty miles of the company’s main office in Stratford, CT. The parties negotiated a pay increase in 1993 and a new compensation schedule was created. Trans-Clean considered this a renewal of the original employment contract and held the belief that the non-compete agreement was still valid and in effect. Mr. Terrell however did not share the same view and did not treat the pay increase and new compensation schedule as a renewal of the original contract. While the parties had different interpretations of the pay increase, there were no direct discussions to clarify its characteristics.
Mr. Terrell suddenly resigned from Trans-Clean in September 1997 and proceeded to create his own commercial restoration company and solicited business from individuals/businesses on Trans-Clean’s customer list. Trans-Clean sued Mr. Terrell and asked the court to issue an injunction to enforce the non-compete agreement and prevent any further violations. The court had to tackle two central issues to decide the dispute: 1) whether customer lists are protected trade secrets and 2) the nature and reasonableness of the employment contract and non-compete agreement. It held that the lists were not trade secrets that entitled Trans-Clean to an injunction and further concluded that the non-compete agreement was unreasonable and unenforceable.
The court held that the customer lists were not trade secrets or confidential information that required protection. There was never a company policy to designate the lists as confidential information or maintain a degree of secrecy of customers or contact persons. Furthermore, each salesperson maintained his or her own personal contact lists and did not have any direct access to other sales representatives’ lists. Each salesperson had the responsibility of developing his or her list, maintaining business relationships, and collecting accounts. These lists did not amount to a business interest for which Trans-Clean was entitled to protection and injunctive relief.
Next, the court assessed the reasonableness of the covenant not to compete and found that its provisions, specifically the geographical restriction, were unreasonable and unenforceable. The sixty-mile radius restriction covered 75% of Connecticut, including the state’s six major metropolitan areas (Bridgeport, New Haven, Hartford, Waterbury, Stamford, and Danbury), and extended into parts of New York (including four out the five boroughs) and New Jersey. The restriction, according to the court, was overreaching and unnecessarily infringed on Mr. Terrell’s ability to purse his occupation and obtain future employment. He had twenty years of experience in the commercial restoration industry and it was the only field in which he had ever worked.
Lastly, the court analyzed whether the pay increase and modification of the compensation schedule amounted to a renewal of the original agreement. The court stated there was a “question of fact” that it needed to answer in order to decide the case. It noted that the writing drawn up by the company regarding the pay increase did not make any reference to the original employment contract and there was no apparent connection between the two writings. In the absence of any reference or connection, the court concluded that the pay increase was not a renewal or extension of the original employment contract. The court noted however that Mr. Terrell “should be bound by the non-compete agreement if that agreement is found to be reasonable”. The court’s earlier analysis revealed that the covenant was in fact unreasonable, thereby overriding Mr. Terrell’s obligation to abide by its provisions.
If you have any questions relating to your non-compete agreement or would like to discuss any element of your employment agreement, please contact Joseph C. Maya, Esq. by phone at (203) 221-3100 or via e-mail at JMaya@Mayalaw.com.

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Court Amends Time Restriction for Engineering Firm Non-Compete Agreement

Court Amends Time Restriction for Engineering Firm Non-Compete Agreement
Maintenance Technologies International, LLC v. Vega, 2006 Conn. Super. LEXIS 136

Maintenance Technologies International, LLC (MTI) was a Milford, Connecticut based company that offered highly specialized engineering maintenance services to clients. The company employed Mr. Daniel Vega as an engineer from February 25, 2002 to October 7, 2005. His responsibilities for this position included conducting vibration analysis, infrared thermography, motor testing, and laser alignment. He signed a covenant not to compete as part of his employment agreement with the company. The restrictive covenant prohibited Mr. Vega, for a period of two years following termination, from engaging in competing business activities within one hundred fifty miles of MTI’s current principal place of business. The agreement further stated that he could not own any stock in a competing business located within one hundred fifty miles of MTI’s principal place of business.
Mr. Vega informed his superiors that he would be voluntarily terminating his employment with the company due to family related issues and his personal ambition to finish his master’s degree in theology. Once he quit MTI however, he began to work for Schultz Electric Co., a competing company with major offices in Connecticut, Maine, Massachusetts, and New Jersey. MTI’s management interpreted this move as a violation of the non-compete agreement executed when Mr. Vega’s employment with the company started and sued him in Connecticut state court. The company requested that the court enforce the provisions of the restrictive covenant in order to prevent any further violations of the agreement. The court found in favor of MTI, granted the company’s request for an injunction, but amended the time restriction to be only one year, instead of the two-year period as stipulated in the agreement.
In reaching its decision, the court assessed whether MTI had a legitimate interest that needed protection and whether the restrictions in the non-compete agreement were reasonable in scope. The court recognized that the company spent a great deal of resources on training its employees and this created a valid interest according to the court. Furthermore, the employees were on the front lines with regard to the business relationships with MTI’s customer and had direct access to proprietary and confidential information. The court held that a company’s employees and customer relationships are its most valuable assets and are worthy of protection under Connecticut law. Injunctive relief, therefore, was reasonably necessary for the fair protection of the employer’s business interests.
Next, the court examined whether the specific restriction contained in the agreement were reasonable in scope. The court held that they amounted to a reasonable and legitimate restriction of Mr. Vega’s ability to work. They provided an adequate amount of protection to MTI while not overreaching and unnecessarily restricting Mr. Vega’s ability to secure future employment. The limitations still allowed many viable career options for Mr. Vega. The court did however slightly amend the time restriction. It was concerned that the full two years could prove to be “somewhat inequitable” and reduced the restriction to one year, instructing the parties that they could submit arguments prior to the expiration of the one year regarding a potential extension to the full two years as stipulated in the covenant not to compete.
If you have any questions relating to your non-compete agreement or would like to discuss any element of your employment agreement, please contact Joseph C. Maya, Esq. by phone at (203) 221-3100 or via e-mail at JMaya@Mayalaw.com.

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Domestic Violence and Divorce in Connecticut: How Relevant is Domestic Violence in Divorce Proceedings?

In 2009, eighteen murders were committed as a result of domestic violence in Connecticut, and 21,018 total reported incidents of domestic violence.[1] Domestic violence is a crime, and often results in divorce proceedings. In reality, up to seventy-five percent of instances of domestic violence in a marriage occurs after the couple has separated.[2] Given the increased risk of violence after separation, it is extremely important for a victim of domestic violence to be aware and known her rights.

In Connecticut, domestic violence falls within a category known as “family violence” which is defined as “an incident resulting in physical harm, bodily injury or assault, or an act of threatened violence that constitutes fear of imminent physical harm, bodily injury or assault between family or household members.” Conn. Gen. Stat. § 46b-38a(1). Under this law, “verbal abuse or argument shall not constitute family violence unless there is present danger and the likelihood that physical violence will occur.” Id. According to the statute, in order for an incident to fall under the family violence statute, it must be between (a) spouses, former spouses; (b) parents and their children; (c) persons eighteen years of age or older related by blood or marriage; (d) persons sixteen years of age or older other than those persons in subparagraph (c) presently residing together or who have resided together; (e) persons who have a child in common regardless of whether they are or have been married or have lived together at any time; and (f) persons in, or have recently been in, a dating relationship. Conn. Gen. Stat. § 46b-38a(2).

Family violence is a pattern of abusive behavior based upon one partner’s attempt to control and dominate the other. This includes physical abuse, emotional abuse, economic abuse, sexual abuse, and stalking and harassment. Rarely are the different types of abuse mutually exclusive. By themselves, each one of these elements can make the decision to leave an abusive relationship difficult. Unfortunately, given the complex nature of domestic violence, Connecticut law provides for criminal relief where physical abuse is present or there is present danger and likelihood that physical violence will ensue.[3] Connecticut does not provide any criminal penalties for emotional or financial abuse.

Protective Orders & Restraining Orders

A victim of family violence has remedies under Connecticut law. Under Connecticut law, a victim of family violence has two different mechanisms to help protect their safety: Protective Orders and Restraining Orders.

A Protective Order is made by a criminal court judge against a person who was arrested for stalking, harassment, or family violence crime.[4] A Protective Order will direct the abuser to refrain from hitting, harassing, contacting the victim or her (his) children, or anything else a judge deems appropriate, and lasts only as long as the criminal court case.

A Restraining Order is made by a civil court judge after a victim files for an Application for Relief from Abuse. Generally, a Protective Order does not address issues of child custody or the removal of the abuser from the marital residence, but a Restraining Order can resolve those issues temporarily. Therefore, it may be necessary to file for a Restraining Order even after a Protective Order has already been granted. Moreover, the application can be granted ex parte, if the judge finds that there is enough evidence to suggest that the applicant is in immediate danger.[5] If the judge declines to grant the Restraining Order ex parte, the judge will set a hearing date within 14 days. At that time, both the applicant and the party whom the Restraining Order is sought, must appear before the judge. A Restraining Order survives for six months, and can be extended on judicial order.

Filing for Divorce

The decision to leave an abusive relationship is difficult, but always right. Abuse in a relationship is never acceptable. While obtaining a Protective and/or Restraining Order is an important step for a victim in protecting herself and/or her children, both types of orders are not permanent. Seeking a divorce or legal separation is the next step.

An action for dissolution of marriage is commenced by filing a summons and complaint with the Superior Court in the judicial district where one of the spouses resides. Conn. Gen. Stat. § 46b-45. Once commenced, the Court will dictate a series of Automatic Orders.[6] The Automatic Orders are designed to prevent either party from making any significant changes relating to their children or finances. These orders prohibit relocating the children out of state or locking one party out of the marital residence. If there is a prior Protective and/or Restraining Order in effect, the Automatic Orders will be issued in accordance with those prior order(s). For example, if there is a Restraining Order in place, directing the husband to leave the marital residence will not be affected by the Automatic Orders.

During a divorce proceeding, the spouses will attempt to work out an amicable separation. The spouses will negotiate the marital residence, child custody, child support, spousal support and other issues. Given the complexity of these proceedings, coupled with the intricate nature of family violence, it is important to have an attorney who understands these multifaceted issues.

Custody

Family violence affects every member of the family, directly and indirectly. It creates a home environment where children live in constant fear. As a result, many survivors of family violence fear they will lose their children to the abusive partner. In some cases, this prevents the victim from leaving her abuser.

The most important thing for a victim of family violence to remember is that the Court will decide custody. In doing so, the Court must consider the best interests of the child.[7] In determining the best interests of the child, the Court will look at a litany of items, including the stability of the child’s existing or proposed residences, the mental and physical health of all individuals involved, and the effect on the child of the actions of an abuser. Conn. Gen. Stat. § 46b-56(c). If the Court views the victim as the primary parent, and the victim has not been abusive to the child(ren), then the victim is not likely to lose physical and legal custody.

It is important to understand that custody is not the same as visitation. For example, even if a father has abused a mother, as long as he has not harmed the children, he will likely be granted visitation. However, the mother, as a victim of family violence, has the right to request certain conditions for the visitation in order to provide for her own protection. That might include a provision that visitation only occur at certain times, on certain days, at certain locations, or with another person present.

Family violence and divorce cases are riddled with complex issues. It is important to find an attorney who understands domestic violence and has experience with domestic violence divorce cases. One should be confident that their legal advisors are well-versed in the law and familiar with recent case developments.

At Maya Murphy, P.C., we have decades of experience dealing with divorce, restraining order petitions, and criminal litigation – often in situations where the three matters run concurrently. We handle all types of issues related to divorce and child-custody, including post-judgment matters, in a broad geographic area, which includes Westport, Fairfield, Greenwich, and the entire Fairfield County area. For a free initial consultation call (203) 221-3100.


[1] 2009 Family Violence Detailed Report, Connecticut Department of Public Safety, September 2010.

[2] Hart, Barbara. Children of Domestic Violence: Risks and Remedies. Child Protective Services Quarterly; Pittsburgh Bar Association, Winter 1992.

[3] While not provided for under the definition of family violence crime, Connecticut law does criminalize sexual abuse and stalking and harassment.

[4] Family Violence Crime is defined as “crime as defined in section 53a-24 which, in addition to its other elements, contains as an element thereof an act of family violence to a family member and shall not include acts by parents or guardians disciplining minor children unless such acts constitute abuse.” Conn. Gen. Stat. § 46b-38a(2).

[5] Ex parte means that only the party seeking the Restraining Order is before the Judge. Ex parte Restraining Order only last until the hearing, which must be scheduled within 14 days.

[6] This is also true in legal separation, custody, and visitation proceedings in Connecticut.

[7] Schult v. Schult, 241 Conn. 767, 777, 699 A.2d 134 (1997).
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Our family law firm in Westport Connecticut serves clients with divorce, matrimonial, and family law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton. We have the best divorce attorneys and family attorneys in CT on staff that can help with your Connecticut divorce or New York divorce today.

If you have any questions or would like to speak to a divorce law attorney about a divorce or familial matter, please don’t hesitate to call our office at (203) 221-3100. We offer free divorce consultation as well as free consultation on all other familial matters. Divorce in CT and divorce in NYC is difficult, but education is power. Call our family law office in CT today.

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Court Enforces Non-Compete Against Connecticut Opthalmologist

Musto v. OptiCare Eye Health Centers, 2000 Conn. Super. LEXIS 2298

Dr. Anthony Musto owned an eye care services professional corporation with two other doctors from 1973 to 1996. He worked as a private practice ophthalmologist in the greater Bridgeport area until the three doctors sold the practice to OptiCare Eye Health Centers, Inc. on July 31, 1996. Dr. Musto owned one third of the shares of the business, sold them to OptiCare for a profit of $590,000, and signed an employment agreement with OptiCare to work as an ophthalmologist on their payroll. He worked as an OptiCare employee from August 1, 1996 to August 4, 2000, providing management with a one-year written notice of voluntary termination on August 1, 1999. Following his termination, Dr. Musto proceeded to open a private practice office in Fairfield and perform surgeries at Bridgeport Hospital, including three extremely rare procedures: dactocystorhinostomy, blethoroplasty, and removal of eyelid tumors.
Dr. Musto signed a non-compete agreement with OptiCare as part of his employment contract and initialed each page to demonstrate he understood the agreement’s obligations and restrictions. The restrictive covenant stipulated that Dr. Musto be prohibited from engaging in the practice of ophthalmology or ophthalmic surgery for a period of eighteen months following termination with fifteen miles of OptiCare’s Stratford or Bridgeport offices. OptiCare sued to prevent further violations of the non-compete agreement because of Dr. Musto’s new practice in Fairfield, a location clearly within fifteen miles of the identified OptiCare offices. The company sought to enjoin him from performing general ophthalmic surgeries at Bridgeport Hospital, also located within the geographical restrictions, but did not ask the court to prevent him from performing the three rare surgeries since he was the only doctor on staff at the hospital with the requisite expertise and knowledge to perform them. Dr. Musto however argued before the court that the restrictions contained in the agreement were unreasonable and the court should deny OptiCare’s request for their enforcement.
The court held that the non-compete agreement was in fact reasonable and granted OptiCare’s request for its enforcement. The court granted the request, stating, “Where the context of the covenant not to compete is the sale of the good will of an established business, the courts recognize that enforcement of the covenant is necessary to prevent the seller from depriving the buyer of the value of the transaction”. When OptiCare acquired Dr. Musto’s professional corporation, it purchased the asset of continued patronage from people who had been patients of that practice, and the court concluded that OptiCare was entitled to protection of this valuable asset. When determining whether a restrictive covenant is reasonable, the court must determine if it affords more than fair and just protection to the party in whose favor it operates without unduly interfering with public interest. The eighteen-month duration was deemed reasonable because it was short enough not to cause any unwarranted or extreme hardships on Dr. Musto’s ability to start another practice. Additionally the court concluded that the fifteen-mile restriction was reasonable because it was not a distance greater than what was necessary to protect the good will asset that OptiCare acquired from Mr. Musto and his partners.

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Veterinary Doctor’s Non-Compete Invalidated When Terms Unreasonably Favor Employer

Veterinary Doctor’s Non-Compete Invalidated When Terms Unreasonably Favor Employer
Merryfield Animal Hospital v. MacKay, 2002 Conn. Super. LEXIS 4099

Dr. Morgan MacKay worked as a doctor of veterinary medicine at Merryfield Animal Hospital, a clinic owned by Dr. Engstrom, from May 15, 2000 to April 16, 2002. There were two employment contracts between Dr. MacKay and Merryfield that described employment from May 15, 2000 to May 15, 2001 and a second covering May 1, 2001 to April 30, 2002. Each contained restrictive covenants and was supported by adequate consideration, specifically the second agreement listed a substantial pay increase. The non-compete agreement prohibited Dr. MacKay from owning or working at another veterinary facility within seven miles of Merryfield for a period of two years. Dr. MacKay voluntarily terminated his employment in a letter to Dr. Engstrom dated April 16, 2002 stating that he “could no longer tolerate the veterinarian service practices that were occurring at Merryfield”. Following this decision, he began to work at New Haven Central Hospital, a veterinary facility located 6.2 miles from Merryfield, clearly within the seven-mile radius prohibited area as defined in the non-compete covenant. Merryfield sued Dr. MacKay to enforce the terms of the non-compete agreement and curtail further employment at New Haven Central Hospital. Dr. MacKay however contended that the terms of the agreement afforded Merryfield an unnecessary and unfair amount of protection, to the degree that it rendered the covenant unreasonable and unenforceable.
The court found in favor of Dr. MacKay and held that the terms of the non-compete agreement “afforded greater protection to the plaintiff [Merryfield] than is reasonably necessary and the non-compete is unenforceable”. The court supported its ruling with the argument that it had the obligation to ensure that the agreement should only afford a fair degree of protection to the interest of the employer while also safeguarding the interests of the employee himself. The agreement went well beyond creating reasonable protections for Merryfield and unnecessarily restricted Mr. MacKay’s career opportunities and his ability to earn a living. The language of the restrictive covenant was so broad and general that it prohibited several activities that Merryfield did not engage in. For instance, the agreement prohibited Dr. MacKay from delivering veterinary care to horses, cattle, sheep, or swine even though Merryfield did not treat those types of animals. Additionally, the wording of the agreement was so vague that it would have even prevented Dr. MacKay from working as a meat inspector. Even the finite restriction of a seven-mile radius was deemed unreasonable given the specific circumstances of the veterinary industry in the area. The language of the agreement would prevent Dr. MacKay from bringing in animals to New Haven Central Hospital if he was employed at a clinic that lacked surgical facilities, as was the case with the vast majority of the veterinary facilities outside the seven mile prohibited radius.
While the restriction of seven miles for two years is reasonable at face value, it becomes clear that it can easily transform into an incredibly unreasonable restriction in light of certain facts. It was the use of vague language throughout the document and the unforeseen consequences that ultimately invalidated the restrictive covenant between Dr. MacKay and Merryfield.

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Connecticut Non-Compete Invalidated on Grounds of Unnecessary Protection Afforded to Employer

Connecticut Non-Compete Invalidated on Grounds of Unnecessary Protection Afforded to Employer
Sanford Hall Agency, Inc. v. Dezanni, 2004 Conn. Super. LEXIS 3574

Ms. Lynne Dezanni worked for Sanford Hall Agency, an Avon, Connecticut based insurance company, from 1990 to 2004 where she served as a personal lines (primarily automobile and homeowners insurance) salesperson for clients whose last name started with “A” through “F”. In 1994, Ms. Dezanni signed an employment agreement that included a non-compete covenant prohibiting the solicitation or attempted solicitation of Sanford Hall’s clients or the disclosure of the company’s confidential information. In May 2004, Ms. Dezanni was contacted by a recruiter at Sinclair Insurance Group, a direct competitor of Sanford Hall based in Wallingford, Connecticut. In the following weeks, Sanford Hall announced to its employees that it was engaging in a transaction to sell its assets. Fearing that she would no longer have a job if the company were sold, Ms. Dezanni accepted employment at Sinclair on June 11, 2004. The company was in fact sold to a New Jersey insurance company on November 1, 2004. Sanford Hall commenced legal action alleging that Ms. Dezanni breached the written employment agreement and the non-compete covenant by soliciting its clients and disclosing confidential client information to Sinclair.
Ms. Dezanni however argued that she was not in breach of the non-compete agreement because it contained unreasonable provisions and was therefore unenforceable. Additionally, she argued that the employment agreement reserved the right for her to compete in the event that Sanford Hall sold its business. The court in this case found in favor of Ms. Dezanni and held that the non-compete agreement was in fact unreasonable and unenforceable. The court based this decision on the fact that Ms. Dezanni was not in a position at Sinclair to threaten Sanford Hall’s interests in its customer relationships and contracts. Her job at Sanford Hall pertained to the initial contact with clients but her contact usually ended there. She was not charged with entertaining, socializing with, or schmoozing clients over the phone or in person. She would not review the contracts when they were due to expire, as the insurer and not the agent handled this business activity. The court concluded, “Dezanni’s contact with the customers was too infrequent and irregular to pose any threat to the plaintiff’s relationship with its customers”.
The court also held that the agreement excessively restricted Ms. Dezanni from pursuing her occupation and instituted unnecessary limitations because it pertained not only to past and present clients, but to also future ones as well. Ms. Dezanni was able to prove that the non-compete clause of the employment agreement afforded more protection to Sanford Hall than was reasonably necessary and as a result severely disadvantaged her and ran contrary to the interests of the public. For these enumerated reasons, the court refused to enforce the non-compete clause of the employment agreement.
If you have any questions relating to your non-compete agreement or would like to discuss any element of your employment agreement, please contact Joseph C. Maya, Esq. by phone at (203) 221-3100 or via e-mail at JMaya@Mayalaw.com.

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Assets Protected From Creditors in Connecticut

            In today’s economy more and more people find themselves having a hard time paying the bills and avoiding late payments.  Still others have a problem with creditors chasing them for unpaid debts.  Now more than ever it is important for you to know what assets are protected from creditors and what are not.     

            Connecticut law provides some protection from creditors in a situation where your income or assets are subject to a court judgment or lien.  You can protect yourself in a variety of ways by planning ahead and consulting with a professional financial planner and an attorney.   Taking out liability insurance or setting up a corporate entity or trust for your property are examples of how you can shield your assets from future creditors.  However, there are some individual assets that are automatically protected from creditors.  Here is brief summary of the law in Connecticut: 

            A.            Wages    

            Once a creditor obtains a judgment against you, it can apply for an execution against your wages.  See Connecticut General Statutes, Section 52-361a.  Connecticut law does provide for some protection in this situation.   No more than twenty-five percent of an individual’s weekly disposable earnings may be subject to a wage execution.  The portion of disposable earnings subject to the wage execution is withheld and applied to the amount of the judgment.    In some cases, the maximum amount that can be withheld may be less depending upon the ratio between the individual’s disposable earnings and the hourly minimum wage in effect at the time of the execution. 

            B.             Retirement Plans

            Generally, retirement plans are exempt from claims by creditors.  Both IRAs and 401ks are protected assets pursuant to Connecticut General Statues, Section 52-321a. 

            C.             Personal Property

            Connecticut law provides a list of exempt personal property that creditors cannot claim an interest in pursuant to Connecticut General Statutes, Section 52-352b.  The list of property includes basics necessities such as apparel, bedding, foodstuffs, household furniture and appliances.  Items necessary for a person’s occupation or profession such as tools, books, instruments, farm animals and livestock feed are also considered exempt property.  Wedding and engagement rings are not subject to creditor claims as well.

            D.             Insurance and Government Assistance Payments

            Some insurance and government assistance payments are exempt from creditors under Connecticut General Statutes, Section 52-352b.   Health and disability insurance payments are exempt as are Workers’ compensation, Social Security, veterans and unemployment benefits.  In addition, under Connecticut General Statutes, Section 38a-453, creditors of an insured cannot seek payment from a life insurance policy beneficiary under most circumstances. 

            E.             Child Support and Alimony Payments

            Any court approved child support payments received by a debtor are exempt and protected from creditors.  Alimony payments, to the extent that wages are exempt from creditor claims, are also protected.  See Connecticut General Statutes, Sections 52-352b & 52-361a.

            F.             Real Estate

            Your homestead or personal residence is exempt from creditor claims up to the value of seventy-five thousand dollars.  If a creditor has a money judgment arising out of hospital services, then the value of the exemption increases to one hundred twenty-five thousand dollars.  The exemption is calculated based upon the fair market value of the equity in the property taking into account any statutory or consensual liens on the property.  See Connecticut General Statutes, Section 52-352b.

            There is no such exemption in place for commercial real estate or rental properties.   

            G.             Motor Vehicles

            Only one motor vehicle is exempt from creditor claims up to the value of one thousand five hundred dollars.  The exemption is calculated by estimating the fair market value of the motor vehicle and taking into account any relevant liens or security interests.  See Connecticut General Statutes, Section 52-352b.

           H.              Bank Accounts

         A creditor can enforce a judgment by way of a bank execution.  However, the same exemptions apply to bank accounts as they do to government assistance, insurance, alimony and child support payments as outlined above.  Therefore, you have the opportunity to challenge a bank execution based on these exemptions and prevent a creditor from taking money out of your account.   In addition, you can claim a general exemption not to exceed one thousand dollars.

            In conclusion, Connecticut law prevents creditors from seizing all of your income, property, possessions and savings pursuant to a judgment or lien.  However, the law does not prevent a debt collector from jeopardizing your livelihood and financial wellbeing.  You best bet is to limit individual liability and plan ahead to avoid a creditor claim in the first place.  Consulting with a professional financial planner and an attorney is recommended.