An aesthetician at a medical spa who opened her own business after being terminated could sue the spa over its actions in attempting to enforce an allegedly void restrictive covenant, a Massachusetts trial court judge has held.

The covenant purported to bar plaintiff Tori Macaroco from soliciting customers of defendant Vanity Lab, revealing any of its confidential information, or practicing her profession at all for one year after leaving its employ.

When Macaroco started her own aesthetician business after being terminated without cause, an out-of-state attorney for Vanity Lab threatened her with a cease-and-desist letter. Meanwhile, the spa allegedly contacted third parties to warn them against doing business with her.

When Macaroco responded with a lawsuit alleging tortious interference, trade libel and violations under the state consumer protection law, Chapter 93A, Vanity Lab moved to dismiss for failure to state a claim.

But Judge William M. White Jr. denied the motion.

“The defendants contend that [the tortious interference claim should fail] because the [plaintiff] fails to identify any person that would not conduct business with Macaroco based upon Defendants’ alleged interference,” White wrote. “The court disagrees.”

Similarly, White said, Macaroco’s allegations that Vanity Lab published false and derogatory statements about the quality of her services to at least one third party, and that it sent the cease-and-desist letter with the intention of gaining a business advantage over her while knowing the restrictive covenant was unenforceable, were enough to state trade libel and Chapter 93A claims, respectively.

The judge did, however, dismiss Macaroco’s claims of intentional and negligent infliction of emotional distress. And while Macaroco brought a Wage Act claim as well, Vanity Labs did not move to dismiss that count.

The case should serve as a warning to employers to refrain from using a noncompete to bully a former employee out of competing when there is a legitimate question about its validity.

Cease and desist

Macaroco started working for Vanity Lab full time in April 2019 following two weeks of allegedly unpaid, part-time mandatory training.

Two months after starting work, she signed a contract with non-solicitation and confidentiality provisions as well as a clause barring her from practicing her profession for one year after departure.

The covenant allegedly violated state law because Macaroco was not given 10 days’ notice before it took effect; it was not supported by a garden leave clause or other mutually acceptable consideration beyond continued employment; it was contrary to public policy; and it was not signed by the employer.

In May 2020, Vanity Lab terminated Macaroco, allegedly without cause.

After Macaroco started an aesthetician business of her own, New York attorney Allyson Avila sent a letter on Vanity Lab’s behalf warning her not to practice her profession per the restrictive covenant.

Vanity Lab also defamed Macaroco to potential customers, according to her complaint.

In June 2021, Macaroco sued Vanity Lab, alleging Wage Act violations as well as tortious interference, trade libel and Chapter 93A violations. She also sought a declaration that the restrictive covenant was void under state law.

Vanity Lab moved to dismiss the business tort counts, while the parties resolved the declaratory counts without a court ruling.

Sufficient allegations

White rejected Vanity Lab’s argument that Macaroco’s tortious interference claim should fail because she had not identified anyone who would not conduct business with her based on its alleged interference or that Vanity Lab knowingly interfered with any third parties or caused any financial harm.

As he pointed out, the court could infer based on the complaint that Vanity Lab contacted third parties claiming a restrictive covenant barred Macaroco from practicing her profession; that Vanity Lab knew Macaroco had potential business relationships with such “third parties”; and that it wanted to interfere with her ability to do business with them.

“Another way Macaroco alleges that the Defendants improperly interfered with these potential business relationships is by sending her the Letter … knowing that the Contract and the restrictive covenants therein violated Massachusetts law,” White wrote.

Regarding the trade libel claim, White noted Macaroco’s allegations that members of the public told her Vanity Lab was defaming her in texts and calls calculated to prevent them from working with her.

“She alleges that the statements caused her damage,” the judge said. “While thin, these allegations are sufficient to state a claim.”

Meanwhile, White rejected Vanity Lab’s contention that Chapter 93A was inapplicable because the case stemmed from an employment relationship and not “trade or commerce.”