Business Merchant Solutions v. Arst (noncompete 2006)
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Page 1 443628.1 Superior Court of Massachusetts. MERCHANT BUSINESS SOLUTIONS, LLC dba Merchants Bankcard Systems v. Jonathan D. ARST. No. 06067.Feb. 14, 2006. MEMORANDUM OF DECISION ONPLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTIONRICHARD F. CONNON, Justice. *1 This matter comes before the Court on a motion by the Plaintiff, Merchant Business Solutions, LLC (Merchant) seeking preliminary injunctive relief against the Defendant Jonathan D. Arst. BACKGROUNDIn October of 2004, the Plaintiff Merchant Business Solutions hired the Defendant Jonathan Arst, promising that during the first year of employment he could earn upwards to $100,000. Within the year, the Defendant earned approximately $13,000 and was dismissed by the Plaintiff who now seeks an injunction prohibiting the Defendant from a career in sales by virtue ofa non-compete agreement that was executed at the beginning of his employment. The Plaintiff in its Independent Sales Agent Agreement acknowledged that it currently possessed certain recruiting and sales contracts and registrations known as ISO Agreements with MasterCard International, VISA and First National Bank of Omaha, as well as other financial transaction processors. The Plaintiff had authorized Defendant and Defendant had accepted full responsibility of controlling all ofDefendant's own business activities, including but not limited to all contracts ofvendors, suppliers, et cetera. However, at no time should Defendant or any of Defendant's agents be in contact either directly or indirectly with the banks and/or processors unless otherwise directed by the Plaintiff. As part of the Independent Sales Agreement, there was contained under clause number 7, titled “Non-Competition” that Defendant acknowledged the importance ofmaintaining the absolute confidentiality or information relating to the Plaintiff's business and agrees not to disclose to anyone other than the Plaintiff the trade secrets and confidential proprietary information of the Plaintiff, included but not limited to this agreement, all devices, processes, records, business relationships, lists or other data pertai ning to customers, distributors or suppliers, formulas, improvements and any other such information regarding the operation of the Plaintiff's business. Under 7.2 that Defendant agrees that during the term ofDefendant's relationship with Merchant that Defendant shall not without the Plaintiff's express prior written consent directly or indirectly engage in any activity which is or may be competitive with or which might place Defendant in a competing position to that of the Plaintiff in any activity where the Plaintiff does business. Under clause 7.4, Defendant agrees that in the event Defendant voluntarily or involuntarily violates any of the provisions contained in this non-competition agreement, as herein stated, then the Plaintiff shall be immediately entitled to injunctive reliefagainst Defendant, whether damages, real or
Business Merchant Solutions v. Arst (noncompete 2006)
