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Guillermo Senmartin
Guillermo Senmartin, Attorney At Law
Category: US Law
Satisfied Customers: 107203
Experience:  Over 12+ years of experience in various areas of U.S. Law and 15+ years of experience in U.S. Immigration Law..
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Hi, I have a contract with an American company which I am considering

Resolved Question:

Hi, I have a contract with an American company which I am considering leaving. It has an anti competition clause which states that I cannot work for a competitor or take up work from a potential client. I have been offered a new contract with a UK company but it is a global oil and gas company. My curent contract holder is now stating that if I take the job, I am in breach of the agreement. My challenge is that he has not contract with the UK sector, either current or intended. How do I stand? It basically means I can't work for any oil and gas company my contract holder has dealings with for a 12 month period. This basically ties me to him permanently.
Submitted: 2 years ago.
Category: US Law
Expert:  ben.jones replied 2 years ago.

Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. I can only advise on UK law so if you are happy to proceed on that basis please let me know and I can provide my response, thanks

Customer:

Hi, depends on which law can be upheld in UK and who is liable if it goes to court. I'm dubious whether he would proceed as it would cause bad feeling between the oil company however I would prefer to know for sure.. Is American business law recognised in UK and if so, does UK law overide it if there is a conflict?

Customer:

I can send you copy of contract and email trail between myself and contract holder. To my untrained eye, the interpretation is exceptionally restrictive and my line of work is fairly niche, it would effectively render me unemployable with several of the large operators in the UK oil and gas industry which is where my expertise is most valued.

Ben Jones :

The laws that would apply would be those that govern the contract itself. So if the contract specifically says that it is under the jurisdiction of US laws, these would apply. It is therefore worth checking it for such clauses before proceeding

Customer:

Please see attached.

Clause
Full Size Image

Ben Jones :

Thank you, ***** ***** it is governed by the laws of Texas. I will transfer this to our US Law section where someone will assist you with it. No need to reply in the meantime

Expert:  Guillermo Senmartin replied 2 years ago.
Hello and thank you for using our service. My name is***** and I am a licensed attorney and will try my best to help you. Believe me that I will try my best to give you a solution if one exists, but sometimes the law does not have a good one. Also, we have been having technical issues lately. If you respond and you do not see your response, please post again until you can see it because if you cannot see it, I cannot see it to respond.


You stated, "This basically ties me to him permanently." That's not true. At worst, it would be for 12 months after you leave their employment. Let me ask some questions. Will the UK company be soliciting any of your current company's clients or customers? In what locations does your current company compete?
Customer: replied 2 years ago.

My current contract holder states he has a framework agreement with Shell Global.


Shell UK, do not have a direct contract with my current contract holder and have no intention of using him in the near future. I have been offered a position to support Shell UK in an offshore location and my current contract holder states that this breaches the clause in my current contract. His argument is that they could employ me through his contract agreement with Shell Global. My argument is that Shell UK have chosen not to use my contract holders company (As far as I am aware, ever) and would prefer to employ UK workers direct. As I have worked previously for Shell UK, the project lead knows me personally and wants to utilise my skillset to implement maintenance Excellence on a new asset. In this case, there are few people with the required specialist skills to carry out this work.


 


I work in a niche market of Maintenance Excellence and currently the 2 major players in the UK now have contracts with my contract holder. If this is projected to a conclusion that he gains further contracts with the remaining few companies it would mean that I couldn't work in the UK for a period of 1 year after leaving current contract holder. I can't afford to not work for 12 months and I feel that this clause is too restrictive in implication.


My current contract holder competes worldwide in oil and gas industry and I am presently on project in Qatar.


I do not have clients as such as I am a consultant, not sales etc, the only soliciting is basically taking me from my contract holder and employing me via an agency.


 


Hope the information helps.


 


Regards,


 


Simon

Expert:  Guillermo Senmartin replied 2 years ago.
Sorry about the delay in responding. I may have an out for you. You are currently in Qatar. Do you foresee yourself having contact with any current customer or client of your former company? Could you avoid such contact for a year and focus on other customers or clients? And where are most of the current customers and clients of your former company located?
Customer: replied 2 years ago.


Well, that is pretty much what I thought I was doing.There are currently two major oil and gas companies implementing a maintenance excellence program currently in the UK. Shell and Maersk. I am currently on a project in Qatar for my contract holder, working on a Maersk project. To go to Maersk in the UK, I would think would fall under the clause, so despite having been offered a position there, I have so far declined. I don't know whether my contract holder has a global agreement with Maersk but didn't want to cause bad feeling as it is a fairly new client and figured he'd be wanting to get a foothold. However, the position at Shell UK has never been a position held by my contract holder and they have no intention of using him. I think he's trying to use me to lever his way in or to prevent me from leaving my current role with him.


Could you tell me what the ramifications are if I go ahead and take up the Shell contract. Presumably it goes to industrial court, however the laws in the UK a pretty clear on this and it would get thrown out as "Too restrictive". This is why I need to understand the Texan law.


I don't have another client to go to at the moment. As I stated previously, it is a fairly niche market and I don't particularly want to work at Walmart for the next 12 months while the clock ticks by.


There is no way of trying to take up this Shell contract stealthily as he is already aware of my intention to take it. It wouldn't be difficult to confirm after I started work.


 


Regards,


 


Simon.

Expert:  Guillermo Senmartin replied 2 years ago.

Sorry about the delay. Probably it's the time difference between us. Anyway, it’s the same with the laws in the U.S. in most jurisdictions, that the restrictions must be reasonable. Take a look at these two links:

http://www.bruchez.com/faqs/2012/10/are-non-compete-agreements-legal-in-texas/

http://www.robertslegalfirm.com/busnoncomp.html

So I think what I would do if I were you would be to take the new job under the condition that you not take any consulting projects within the Texas borders nor any consulting projects with any former or current customers or clients of your previous employer for 12 months. After that, you can do what you like. Make sure you document all your consultation projects and let your previous employer have to spend money on attorneys to sue. I doubt they will if they cannot find any clear evidence of a violation. So just don’t give them any. I’m sure Shell can keep you busy in other areas for 12 months.

Now that I have given you an answer, you may rate me positively OR ask for additional information. Please do not rate me negatively for bad news or things that you may already know. That doesn’t help you or me. I am here to help you and I am on your side. Give me a chance to help you. All you have to do is respond asking for additional information. You are NOT charged per question nor are you charged per response. If this seems a little complicated or overwhelming, I can also offer you an additional service for a small fee where we can speak in private over the phone or through email that may be helpful (this is a public forum where anyone can read the responses). Feel free to decline it, but if you do, please remember that I am not given a salary, so the only way that I am compensated is if you rate me positively. So at least please use the smiley faces and a bonus is always appreciated if you feel I earned it. Also, your question does NOT close just because it says, “To finish…” I can still answer additional questions for you without additional charge. If I do not hear from you, I will automatically send that additional offer request. Thank you for your understanding and if you would like to request me in the future, just type: FOR GUILLERMO in the subject line and message box.

Expert:  Guillermo Senmartin replied 2 years ago.
Hello. I'm just following up with you to see how everything is going. Did my answer help? Please let me know. Thank you!
Customer: replied 2 years ago.


Hi Thanks. Not really helped unfortunately. In the end I contacted my contract holder and had a frank dscussion with him. We have now sorted out the matter and he has agreed to release without condition.


 


Regards,


 


Simon.

Expert:  Guillermo Senmartin replied 2 years ago.
Well, that wasn't very kind of you. I spent my time with no salary to try to help you and now I have nothing to show for it. But that's ok. Thank you anyway. Good luck.
Guillermo Senmartin, Attorney At Law
Category: US Law
Satisfied Customers: 107203
Experience: Over 12+ years of experience in various areas of U.S. Law and 15+ years of experience in U.S. Immigration Law..
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