NH case is a model for what fresh hires should never do

A case pending before the U.S. District Court in New Hampshire provides employers and employees with a good example of when competitive acts have gone too far and will result in litigation.

The case involves a college that sued a former faculty member and her new college for attempting to take an academic program, faculty and students with her to the new job. New England College sued Drew University and Anne Marie Macari, alleging that while Macari served as the interim director of its graduate poetry program, she secretly conspired with Drew to develop a similar program and recruit faculty and students.

NEC brought claims of breach of fiduciary duty, breach of contract, and intentional interference with various contractual and other relationships. The court humorously categorized the case as a dispute over “poetry in motion.”

While an Oct. 23 decision in the case only denied Drew’s request that the litigation occur in New Jersey rather than in New Hampshire, if the facts as alleged against Macari and Drew are true, this is a perfect example of what an employee should not do when transitioning from one employer to another.

In March 2007, Macari accepted an offer to be the interim director of the poetry program at NEC in Henniker, where she had been a faculty member. The program involved long-distance learning punctuated by brief periods of residency with prominent poets, and was billed as the only all-poetry program of its kind.

One month later, without telling NEC, Macari met with Drew to discuss the possibility of developing a similar poetry program there, the lawsuit alleges. She provided Drew with background materials on the proposed program, including a potential faculty list that included various NEC faculty members, and a curriculum similar to that of NEC’s program.

At the meeting, Macari allegedly discussed bringing most of the faculty from NEC, while Drew agreed to accept NEC transfer students with full credit for their prior course work and the same tuition and scholarships. At a later meeting, Macari provided a budget which included detailed information about NEC’s tuition rates, scholarship funding, advertising methods and faculty salaries, according to the lawsuit. Macari allegedly told Drew that the cost of linens during residency periods was the only detail she could not pin down without giving herself away too much to her co-worker, the program administrator at NEC. Macari’s sales pitch to Drew was that the program had used NEC as the institutional home for the past 15 years and that she was seeking to find a new institutional home for the program, according to the suit. Ultimately, Macari made the move that attracted faculty and students to Drew’s program. Macari was free to leave NEC and go to work for Drew, but if the allegations are true that she took confidential information and used it to compete, she and Drew may be liable for damages to NEC. The courts, in general, will readily protect a company’s confidential information from being used in competition against that employer.

J. Daniel Marr, a director and shareholder at Nashua law firm Hamblett & Kerrigan, P.A, can be reached at dmarr@nashualaw.com.