Re： Opinion Letter Regarding （name of employee, e.g., fictitious ** **）
Dear （Name）：
After our initial meeting, I reviewed the papers you sent me regarding the ** **matter. As I understand the situation, Ms.** signed a written employment agreement with your company. The agreement stated that in the event of termination or resignation from her job as your sales associate, Ms. ** would not call upon or sell goods to any of your customers for a period of one year.
You have asked me to advise you about your rights, the chance of success, the amount of damages that may be recoverable, the costs involved, and my ability to represent you in this matter.
RIGHTS OF *** AGAINST MS. **
When Ms. ** signed a written contract with your company, she agreed not to call upon any of your customers for a period of one year. This is called a restrictive covenant. To enforce your covenant against Ms.**, you must bring an action against her and prove your case. You have a choice of forums in which to bring the action： federal district court or a state court. Since it is easier to obtain an injunction （an action to immediately stop her from selling to your customers） in a state court rather than a federal court, I would suggest the state court.
I must advise you that injunctions are largely discretionary with the court, and there are several factors here that might lead it not to grant one on your behalf. Since you waited eight months before threatening to sue Ms. **, my guess is that you have about a twenty percent （20%） chance of obtaining an injunction.
RIGHTS TO AND AMOUNT OF DAMAGES
Your chances of obtaining money damages against Ms. **are much greater than your chances for an injunction. From our discussion and the facts and evidence suggested in your papers, it appears that the amount of recoverable damages would be measured by the profits you have lost since the time Ms. ** began selling competitive products to your customers.
It should be understood that if we win our case, however, Ms.** may not voluntarily pay the judgment. Thus, it may be necessary to enforce the judgment by having a sheriff or marshall seize and sell assets not exempt from execution. However, if Ms. ** does not own assets, such as real estate, money in bank accounts, stocks, etc., but owns only personal items exempt from execution under the laws of our state, then any judgment you obtain may not be worth much.
Besides the fact that you may lose a lawsuit against Ms. ** or that any judgment obtained may be uncollectible, there are other negative factors you should consider before bringing a lawsuit. These include court costs and attorney fees. Court costs are recoverable, but other costs, such as travel, the time lost when you are called to testify （or required to help us develop the case）, and attorney fees, are not recoverable.
I am familiar with the nature of your manufacturing business and am qualified to represent you in this matter if you choose to proceed. My fee would be based on my normal hourly charge of $250 for myself and $150 for associates. Trial time is billed at $1,000 per day. The initial services of preparing a complaint and serving same would cost approximately $300. Preparing a request for an injunction and attending a hearing on the injunction would cost approximately $2,500.
It is quite possible that Ms. ** would not retain her own counsel and not answer the complaint. This means that a default judgment could be taken without the necessity of a trial. Here attorney fees would probably amount to no more than $1,000.
I require a $1,000 retainer to open a file and commence an action.
If you wish to proceed with this matter, I will need to know the full names and addresses of your customers to whom Ms. ** is presently selling and the estimated sales volume which you have lost.
If you have any questions, please call me.
