Agency has closed: how long before I can approach direct clients? Thread poster: Julia Burgess
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An agency I did a lot of interesting work for has suddenly closed. It appeared to cease trading in April due to illness and, according to a staff member, the business would be wound up by the end of June 2023. I emailed before the end of the month to ask if I could contact their direct clients (and requested recommendations), but I didn't get a response. Is it now OK for me to try to get in touch with the agency's former clients to see if I can work with them directly?
Further backg... See more An agency I did a lot of interesting work for has suddenly closed. It appeared to cease trading in April due to illness and, according to a staff member, the business would be wound up by the end of June 2023. I emailed before the end of the month to ask if I could contact their direct clients (and requested recommendations), but I didn't get a response. Is it now OK for me to try to get in touch with the agency's former clients to see if I can work with them directly?
Further background: I signed a Supplier Agreement with the agency, but it doesn't actually contain a non-compete clause. However, I'm keen to act properly. ▲ Collapse
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If they have told you themselves that they are closing down the company, I don't see any harm. Their business will in any case need to be taken by someone else.
| | | | | Is the NDA void? | Jul 12, 2023 |
Julia Burgess wrote:
An agency I did a lot of interesting work for has suddenly closed. It appeared to cease trading in April due to illness and, according to a staff member, the business would be wound up by the end of June 2023. I emailed before the end of the month to ask if I could contact their direct clients (and requested recommendations), but I didn't get a response. Is it now OK for me to try to get in touch with the agency's former clients to see if I can work with them directly?
Further background: I signed a Supplier Agreement with the agency, but it doesn't actually contain a non-compete clause. However, I'm keen to act properly.
If you have an NDA, and the other party ceases to exist, the agreement would become void.
I would look at the NDA, try to check the business registry and then contact the direct client.
However, not answering your emails does not cancel tha NDA.
Contacting the client with reference to the agency would be in breach of the NDA.
[Edited at 2023-07-12 14:22 GMT]
[Edited at 2023-07-12 14:23 GMT]
| | | | Joakim Braun 
Sweden
Local time: 15:32
German to Swedish
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Enrique Bjarne Strand Ferrer wrote:
(...) check the business registry (...)
Exactly - the information you have is by no means conclusive.
Also the company might be in some receivership or insolvency proceeding and take many months to liquidate.
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| No need to be holier than the Pope | Jul 12, 2023 |
Enrique Bjarne Strand Ferrer wrote:
If you have an NDA, and the other party ceases to exist, the agreement would become void.
I would look at the NDA, try to check the business registry and then contact the direct client.
However, not answering your emails does not cancel tha NDA.
Contacting the client with reference to the agency would be in breach of the NDA.
An NDA is about not disclosing client data to third parties. You are not disclosing any data by contacting the end client. A non-competition clause is something different.
Sometimes non-competition or other clauses are lumped in with NDAs, but Julia Burgess said there is no non-competition clause, in which case there is no legal obstacle against contacting the end client.
Joakim Braun wrote: Enrique Bjarne Strand Ferrer wrote:
(...) check the business registry (...) Exactly - the information you have is by no means conclusive. Also the company might be in some receivership or insolvency proceeding and take many months to liquidate.
All that doesn't matter if there is no non-competition clause.
We have to abide by contracts and legal obligations and also be fair, but there doesn't seem to be any legal obstacle here, and since the agency say they are closing, I don't see any fairness obstacle either.
When that agency stops providing services, their clients will immediately need to call someone else in, so if we are waiting for faux legal obstacles we invent ourselves, we are only harming ourselves while benefitting no one.
There is no need to gold-plate our legal and ethical obligations.
| | | | Julia Burgess
United Kingdom
Local time: 14:32
German to English
TOPIC STARTER | No non-compete clause | Jul 12, 2023 |
Thomas T. Frost wrote: An NDA is about not disclosing client data to third parties. You are not disclosing any data by contacting the end client. A non-competition clause is something different. Sometimes non-competition or other clauses are lumped in with NDAs, but Julia Burgess said there is no non-competition clause, in which case there is no legal obstacle against contacting the end client. Joakim Braun wrote: Enrique Bjarne Strand Ferrer wrote:
(...) check the business registry (...) Exactly - the information you have is by no means conclusive. Also the company might be in some receivership or insolvency proceeding and take many months to liquidate. All that doesn't matter if there is no non-competition clause.
Thanks for all the thoughts so far; I'm inclined to agree with Thomas (after all, he's saying what I want to hear!). Just to clarify, my Supplier Agreement with the agency contains no non-compete clause. There is a Vertraulichkeitsvereinbarung, obliging me not to share the content of source text with third parties, but nothing about not contacting customers. I forgot to mention before: the agency was a registered sole trader (eingetragenes Einzelunternehmen) in Austria. It still has an entry in the Firmenbuch (commercial register).
| | | | | Breaching the NDA | Jul 12, 2023 |
Thomas T. Frost wrote:
An NDA is about not disclosing client data to third parties.
My point about the validity still stands.
Anyway, I thought the point here was to contact the end client telling you were working for the agency in question, i.e. disclosing your working relationship...
[Edited at 2023-07-12 15:52 GMT]
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There is a difference between being closed for business and ceasing to exist.
Chances are, they will sell their clients to another agency.
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Enrique Bjarne Strand Ferrer wrote: Thomas T. Frost wrote:
An NDA is about not disclosing client data to third parties. My point about the validity still stands. Anyway, I thought the point here was to contact the end client telling you were working for the agency in question, i.e. disclosing your working relationship... [Edited at 2023-07-12 15:52 GMT]
We don't know if any NDA has been signed in this case. Julia Burgess hasn't mentioned any.
If one has been signed, or if an NDA clause has been included in another agreement, we don't know what it says.
Here is a typical definition of confidential information from an NDA clause:
'The term “Confidential Information” means, without limitation, any information or material, which is proprietary of the Company or to a client of the Company, whether or not owned or developed by the Company, which the recipient may obtain through any direct or indirect contact with the Company or their Clients. Confidential Information includes, but is not limited to: Business records and plans and other proprietary information, documents, electronic files, clients, translation memories, and client information.'
The information that someone had been working for a given end client through this agency does not fall within the scope of this definition. It might fall within the scope of certain definitions with different wording.
There could be a clause about not contacting end clients, but Julia Burgess has already said there isn't.
| | | | | Not necessarily | Jul 12, 2023 |
Enrique Bjarne Strand Ferrer wrote: Thomas T. Frost wrote:
An NDA is about not disclosing client data to third parties. My point about the validity still stands. Anyway, I thought the point here was to contact the end client telling you were working for the agency in question, i.e. disclosing your working relationship... [Edited at 2023-07-12 15:52 GMT]
Not necessarily. It would be possible to contact the company to see if they need your services without mentioning your relationship with the agency.
| | | | | Comply with agreements | Jul 13, 2023 |
Thomas T. Frost wrote:
We don't know if any NDA has been signed in this case. Julia Burgess hasn't mentioned any.
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If one has been signed, or if an NDA clause has been included in another agreement, we don't know what it says.
Again, that is precisely my point. She has to look at the NDA or the NDA-clause in her agreement(s), to see whether she is allowed to contact the end client. If that is not the case, she would have to either terminate the agreement(s) and follow the process for that, wait until the firm ceases to exist, get permission or act in breach of the agreement.
We are all running business here, and should act professionally. Reading our legal documents and following the provisions therein is part of that.
[Edited at 2023-07-13 07:23 GMT]
| | | | | My experience | Jul 13, 2023 |
Ice Scream wrote:
Chances are, they will sell their clients to another agency.
That’s what happened to an Irish agency I had been working with for some time. The sole owner contacted me saying that she was closing shop due to health reasons, had sold her client’s portfolio to another Irish agency and given them the names and contacts of all the translators she used to work with. A deafening silence followed and as the translations were rather technical (not my preferred type of work) I just let it die its own death…
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Michael Newton
United States
Local time: 09:32
Japanese to English
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| direct clients | Jul 13, 2023 |
Not forgetting that some agencies "close" and reopen under another name.
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