We talk with employees all the time who are faced with a claim by their ex-employer that they (the employee) are working in violation of a non-compete agreement, breached a fiduciary duty owed to the employer, wrongfully took trade secrets from the ex-employer, etc., etc.

Many times these allegations are just “puffing” by the ex-employer…an attempt to intimidate the ex-employee. One strategy to combat this abusive tactic is to really look closely to see if the employee can bring his/her own lawsuit against the ex-employer. In Virginia, the employee may have a claim against the former employer for defamation, intentional infliction of emotional distress, or tortious interference with contractual relations (with the new employer) and economic advantage.

A great example of how such abuses by the ex-employer can turn out favorably for the ex-employee is the $11 million dollar verdict awarded to an ex-employee in a federal case in Arizona for just this very type of conduct.

In the case, a division of medical giant McKesson Corp. took Phoenix medical equipment and pharma salesman Carmen Caccavale to court in 2004, claiming he had violated some trade practices. After working for seven years at McKesson, Caccavale had taken a job with Henry Schein, Inc., a medical supply firm. The judge dismissed McKesson’s suit in December. Caccavale had not signed a non-compete contract. “It was sort of a trade secret case,” according to the attorney who represented Caccavale. Caccavale and his new employer then counter-sued McKesson, saying the medical and health care supplies firm abused the legal process in going after its former salesman.

It didn’t take the jury long to award Caccavale and his new employer $11 million in damages for McKesson’s wrongful conduct.

The Lesson: If you ex-employer is abusing the legal process by filing unsubstantiated and worthless claims…FIGHT BACK!

About the author

Dan Frith

Dan Frith has over 25 years of experience representing individuals and families in cases of medical malpractice throughout Virginia. He has been named "Best Medical Malpractice Attorney" by Roanoker Magazine and is a member of the Million Dollar Advocates Forum. To speak with Dan, contact him by email at dfrith@frithlawfirm.com.

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