The analysis of the possibility of seeking compensation from a former partner who, after leaving the company, set up a new company to operate in the same segment and market is recurrent. The grounds for the claim for compensation are generally the fact that the former partner would have used knowledge, technologies, and the company’s know-how in the new business to attract clientele. Unfair competition is an unlawful act typed in Article 195 of Law 9.276/96.
For civil liability, provided for in Articles 186 and 927, “caput” of the Civil Code in force, to be established, there must be sufficient evidence of the acts performed and of the alleged damages.
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Confidentiality and non-competition of a former employee
The matter is sensitive and, in the initial phase of analysis, it is recommended to verify whether there is regulation in the articles of association regarding competition after leaving the company. Now, except in the cases of companies incorporated in recent years – mainly startups that possess intense intellectual capital from their incorporation – and in the cases of sale of equity interest to large groups, the reality of most Brazilian companies is formed by entrepreneurs who started their businesses by intuition, without capital, without the formalization of a partners’ agreement. Consequently, in most cases, the rule is that there is no provision prohibiting competition in the articles of association.
There are other cases, mainly in the field of industry, sale and provision of personalized services, that is, segments that do not work with commodities, in which the partners choose not to include a non- competition clause because they understand that it is delicate to impose on the client the maintenance of service with the company in the event of the departure of the partner who was their manager.
Imposing on the client the obligation to remain definitively bound to the company originally created by the former partner and current partners violates the principle of free competition, provided for in Article 170, item IV of the Federal Constitution, and the principle of private autonomy, since, a priori, the client is free to contract with whoever best serves them.
On this exclusivity over the clientele, the Court of Justice of São Paulo[1] holds that it is admissible to agree on limitations to the activity of a former partner in the same field of business in which the company operates, but these limitations must be express, forming clauses of the articles of association, as exceptions to the general principle of freedom of professional activity (Article 5, item XIII of the Federal Constitution).
With regard to the migration of clientele, which is the most recurrent basis for indemnification claims, the Court of Justice holds that operating in the same segment and market by itself would not constitute any unlawful act, the operation in the same market scope, providing the same kind of service, being a natural consequence for the former partner[2].
Unfair competition or fair competition
Once this initial phase is overcome, it is recommended to analyze whether the acts performed by the former partner identify fair competition or unfair competition, since, as mentioned above, the fact that the former partner has set up a new business entity in the same field of activity does not by itself imply unfair competition[3].
However, the Court of Justice holds that, when a diversion of clientele is established through the capture of clients aiming at the termination of contracts still in force and the conclusion of new contracts with a company controlled by the former partner, unfair competition may be characterized[4].
On the other hand, the Court of Justice’s understanding is that if the object of the clients’ contracting with the former partner’s new company was not the same as that of the former company’s contract, the practice of unfair competition may not be characterized. In this case analyzed by the Court (provision of hemotherapy services to a hospital), the new provision of services was lesser, with cost reduction for the client and a change in the form of the provision of services that did not constitute a practice of unfair competition because the termination of the original contract did not occur through an unlawful act, but rather due to a more advantageous offer of services for the hospital[5].
Therefore, in the analysis of cases of possible practice of unfair competition by former partners, it is recommended, under the teachings of Prof. Fábio Ulhoa Coelho[6], to analyze whether the means used to attract clients and consumers by the former partner are legitimate or illegitimate, since, by analyzing the resources used, it will be possible to identify whether or not there is competitive disloyalty.
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[1] TJSP, Ap. 1003278-50.2016.8.26.0157, Rel. Fontes Barbosa, j. 19.8.2019
[2] TJSP, Ap. 004382391.2005.8.26.0602, Rel. Des. Grava Brasil, j. 25.9.2013
[3] TJSP, Ap. 1013772-58.2017.8.26.0344, Rel. Ricardo Negrão, 14.06.2019
[4] TJSP, Ap. 1026026-82.2018.8.26.0100, Rel. Fontes Barbosa, j. 06.6.2019
[5] TJSP, Ap. 1029672.08.2015.8.26.0100, Rel. Azuma Nishi, j. 25.9.2019
[6] Curso de Direito Comercial, vol. 1, 21st ed. São Paulo: RT, 2017, p. 2019
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