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Easy Access Distribution, Inc. v. Potter

Superior Court of Massachusetts, Suffolk

April 21, 2017

Easy Access Distribution, Inc.
v.
Jason Potter et al No. 136865

         Filed April 24, 2017

          MEMORANDUM OF DECISION AND ORDER ON THE PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION

          Mitchell H. Kaplan, Justice of the Superior Court.

         The defendant, Jason Potter, was an employee of the plaintiff, Easy Access Distribution, Inc. (Easy Access). Potter, together with defendant David Lessor, formed defendant Novus Distribution, Inc. (Novus). Novus is a competitor of Easy Access. The case is presently before the court on Easy Access. The case is presently before the court on Easy Access' motion for a preliminary injunction, among other things, enjoining the defendants from competing with Easy Access or soliciting any of Easy Access' vendors or customers. The motion is DENIED, for the reasons that follow.

         FACTS

         The following facts are drawn from the parties' affidavits and briefly summarized only to the extent necessary to provide context to the court's decision.

         Easy Access is a distributor of audio/visual (AV) electronic equipment. It purchases this equipment from vendors and sells it to installers, who install it in businesses and residences. There are a number of businesses who distribute/wholesale this AV equipmemt. It is a competitive industry.

         Potter began work for Easy Access in 2009. Prior to that time, he worked for another electronics distribution company. He was involved in sales, marketing and purchasing. Easy Access asserts that Potter signed a Proprietary Rights Agreement, which contains a covenant not to compete, when he first began work, although it does not presently have a signed copy of that Agreement. Potter attests that he signed only an At-Will Employment Agreement and never signed a Proprietary Rights Agreement or any other contract that contained a restrictive covenant not to compete.

         In 2015, Potter and Lessor, who had run an electronics integration company that installed AV equipment, entered into discussions with the owners of Easy Access with a view to purchasing it. In connection with those negotiations, they signed a Non-Disclosure Agreement. They returned all confidential materials shared with them by Easy Access when the parties could not agree on terms and the negotiations ended in April 2016.

         On April 21, 2016, Potter sent Easy Access a resignation letter. He declined an offer to stay on for an additional six months. His last day at Easy Access was May 20, 2016. On that day he sent a blast email to his contacts (dealers and vendors) using his Easy Access computer in which he: thanked the recipients for their business; announced that he was leaving Easy Access; stated that he had the highest regard for Easy Access and wished it continued success; and stated that he planned on remaining in the industry and hoped " our paths will cross again." He then returned his computer to Easy Access. It appears that during May, he used his Easy Access computer to forward to himself an invitation to a trade show, a pricing list from a vendor, and to test his new email address.

         On June 4, 2016, Potter and Lessor incorporated Novus.

         On June 17, 2016, Easy Access' attorneys wrote to Potter: " It has come to [Easy Access'] attention that you are currently acting in direct violation of your Proprietary Rights Agreement and your Non-Disclosure Agreement. We hereby demand that you immediately cease and desist from engaging in such unlawful activities. Please be advised that your conduct subjects you to significant liability, both under the terms of the Agreements and at common law." The letter attached a copy of the Proprietary Rights Agreement apparently signed by Potter. Easy Access admits that the signature was a forgery. Potter retained an attorney who responded to the letter on his behalf.

         On July 25, 2016, Easy Access received an email from an entity called " dirk marketing, " which stated that on June 3, 2016, someone with the username " jpotter" exported 1451 contacts from an " iContact" database. Easy Access maintains that these are customer names that Potter sent to himself. Potter denies that he did this. The email from dirk marketing only provides the information noted above.

         Sometime in the fall of 2016, Novus began doing business, including sending emails to potential customers. It has offices in Burlington. Its grand opening for ...


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