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, meaning that they can decide whom they want to win based on what they think is fair and then draft their decisions accordingly. This means that both the employer and the former employee want to look like they’ve acted properly through the whole employment process, from hiring, to when the employee leaves or is fired, through any activities after that.
The panelists gave some examples. One lawyer explained that when he is defending an employee in potential noncompete litigation, he advises that employee not to take anything when he leaves the employer to go elsewhere—not a pencil, pen, or even the family photographs on the employee’s desk. He does this so that the first sentence of the employee’s affidavit in a noncompete case can read: “When I left XYZ Corporation, I literally took nothing from the company, not even the family photographs on my desk.” The judge then (hopefully) will think that the employee was very aware that he could not take company property with him to his next employer and was doing all that he could to abide by that obligation. Giving advice for employers, Judge Sanders spoke about “garden-leave” provisions in noncompetes, which essentially require the employer to pay the employee some amount of money while the employee is subject to a noncompete provision after the employee leaves the company. This makes the employer look like the good guy because the employer is acknowledging that a noncompete provision places a burden on the employee, and the employer is compensating the employee for that burden.
I think all of this is good advice, and it certainly is always better in the long run to act fairly, in noncompete litigation as in life. Because John Adams was right: “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence.”