Category Archives: Nonsolicits

U.S. District Judge in Massachusetts Declines to Enforce Noncompetes Because the Jobs of Two Employees “Materially Changed”

            If an employee signs a noncompete, non-solicitation, or non-disclosure agreement with his employer, and then gets promoted, makes more money, and has more responsibilities, is the agreement still enforceable?  At least one Massachusetts judge says no.  See Rent-a-PC, Inc. v. March, C.A. No. 13-10978-GAO (D. Mass. May 28, 2013). 

            In the Rent-a-PC case, the plaintiff Rent-a-PC, a company that provides short-term rentals of electronic equipment,… More

U.S. District Judge in Massachusetts Explains Employee Solicitation, Concludes That the Actual Use of a Trade Secret Is Not Necessary to Get a Preliminary Injunction, and May Have Extended the “Inevitable Disclosure” Doctrine Beyond Noncompete Scenarios

            Last week, Judge Timothy S. Hillman of the U.S. District Court of Massachusetts allowed a plaintiff’s motion for a preliminary injunction against three defendants who allegedly stole trade secrets from their former employer, even though there was no evidence that the defendants used that information when they went to a competing company.  Judge Hillman also provided useful guidelines for determining when a defendant directly or indirectly solicits another employee to leave the company,… More

New Massachusetts Superior Court Noncompete Decision Discusses the “Material Change” Defense and Shows the Benefit to Employers of Having a “Material Change” Clause in Noncompete Agreements

            Last month, Judge Edward P. Leibensperger of the Massachusetts Superior Court in Middlesex County decided a case in which he issued a preliminary injunction to enforce a non-competition and non-solicitation agreement and rejected several defenses offered by the defendant employee, including that the employee’s employment had “materially changed” to void the agreement.  Although Judge Leibensperger discusses many interesting issues in the decision, including whether the employer’s president had orally agreed not to enforce the agreement,… More

Always Be the Good Guy

Yesterday, I went to a continuing legal education class sponsored by the Boston Bar Association titled “Traps for the Unwary: Drafting Non-Competes and Other Post-Employment Restrictions.”  The class focused on drafting agreements, but naturally there was a lot of discussion about enforcing them as well.  Among the many useful things I learned is that, in noncompete litigation, “you always want to be the good guy.”  Judge Janet Sanders of the Massachusetts Superior Court Business Litigation Session said that noncompete cases (and similar cases dealing with non-solicitation provisions) are so fact-intensive that judges can often be outcome determinative in their decision-making,… More

MA Judge: Facebook Announcement Was Not a Solicitation

Let’s say a company has an employee who is connected with the company’s customers through social media, on sites like Facebook and LinkedIn.  And let’s say that after the employee departs for a competitor, the competitor posts an announcement on the employee’s Facebook page that she has joined the competitor.  Customers see that announcement and want to follow the employee to her new company.  Has there been a violation of the employee’s non-solicitation agreement?… More

Executives (and One Law Firm) Allegedly Behaving Badly

A number of cases involving former executives have received national attention recently and serve as a good reminder that trade-secret, non-solicitation, and non-competition controversies can arise at the highest level of a company. Another recent case also serves as a reminder that trade-secret claims should be filed only when there is a good-faith basis to do so. Consider the following:

  • In In re: High-Tech Employee Antitrust Litigation,…
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Middlesex Superior Court Not Persuaded by Estoppel Argument in Non-Compete Case

A recent case decided in the Middlesex County Superior Court illustrates how not every claim of generalized “unfairness” will be sufficient to avoid enforcement of a non-competition agreement.

In A.R.S. Services, Inc. v. Baker, the defendant employee worked for A.R.S. Services, a company in the disaster restoration field, and had signed an agreement with non-competition and non-solicitation provisions, both enforceable for one year after he left the employ of A.R.S. Shortly after the employee had resigned from A.R.S.,… More

Federal Court Denies Injunction on Procedural and Substantive Grounds

This decision from the United States District Court in Boston, denying a request for a preliminary injunction to enforce non-competition and other restrictive covenants, is notable for a few reasons. First, the federal court in Massachusetts issues relatively few decisions involving requests to enforce noncompete and/or nonsolicitation agreements; a published decision from a federal judge — in this case from Judge George A. O’Toole, Jr. — is inherently of interest. More importantly,… More

Enforcement of Noncompete Undermined By Choice of Remedy

To the uninitiated, a standard non-disclosure, non-competition and non-solicitation agreement may seem like pages of meaningless legal “boilerplate” punctuated by a few interesting sentences containing the guts of the document: the restrictions themselves. A recent Massachusetts court decision illustrates that this approach to noncompetition agreements can be perilous. The case underscores the need for employers that utilize non-competition and non-solicitation agreements to give careful attention not just to the specific restrictions being imposed,… More

Massachusetts Judge: “Goliath” Can’t Enforce Nonsolicit Against “David”

While it remains quite difficult to predict whether a Massachusetts judge will enforce any given restrictive covenant in a particular case, close observers of recent Massachusetts noncompete decisions would note that judges increasingly are reluctant to enforce post-employment restrictions against "the little guy" — as contrasted with senior, highly-compensated managers.  A recent insurance-industry dispute exemplifies this trend.  In Banc of America Corporate Insurance Agency, LLC v. Verille,… More

Mazonson, Part II: Judge Finds Customer-based Noncompete Overbroad

The Mazonson decision described in the previous post also contained an interesting discussion of the plaintiff’s request to enforce a customer-based restriction against one of the individual defendants.  On this issue as well, the Massachusetts court denied the request for a preliminary injunction.  Interestingly, Judge Murtagh found that the agreement’s restriction prohibiting the employee from providing services or selling insurance to any customer, even if there had been no solicitation by the employee,… More

Employee’s Remote Computer Access Undermines Employer’s injunction Request

Your valuable sales employee abruptly departs and begins working at your direct competitor.  Soon, some of your customers follow the departed employee and other customers cancel meetings you have scheduled with them.  Now you are suspicious, so you scrutinize your former employee’s computer activity and discover that just prior to his departure, he emailed to himself or downloaded valuable customer information and other data.  Can you get an immediate injunction stopping your former employee’s conduct?… More