Non-compete clause

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A non-compete clause (often NCC), or covenant not to compete (CNC), is a term used in contract law under which one party (usually an employee) agrees not to pursue a similar profession or trade in competition against another party (usually the employer). As a contract provision, a CNC is bound by traditional contract requirements including the consideration doctrine. The use of such clauses is premised on the possibility that upon their termination or resignation, an employee might begin working for a competitor or starting a business, and gain competitive advantage by abusing confidential information about their former employer's operations or trade secrets, or sensitive information such as customer/client lists, business practices, upcoming products, and marketing plans.

However, an over-broad CNC may prevent an employee from working elsewhere at all. English Common Law originally held any such constraint to be unenforceable as a matter of public policy.^[1] Contemporary case law permits exceptions, but generally will only enforce CNCs to the extent necessary to protect the employer. Most jurisdictions in which such contracts have been examined by the courts have deemed CNCs to be legally binding so long as the clause contains reasonable limitations as to the geographical area and time period in which an employee of a company may not compete.

The extent to which non-compete clauses are legally allowed varies per jurisdiction. Some jurisdictions, such as the state of California in the US, invalidate non-compete-clauses for all but equity stakeholders in businesses.^[2]

History

As far back as 1415, English common law had already been "old and settled" that restraints on trade were unenforceable.^[1] That ban remained unchanged until 1621, when a restriction that was limited to a specific geographic location was found to be an enforceable exception to the previously absolute rule.^[3] Almost a hundred years later, the exception became the rule with the 1711 watershed case of Mitchel v. Reynolds^[4] which established the modern framework for the analysis of the enforceability of non-compete agreements.^[5]

United States

The majority of U.S. states recognize and enforce various forms of non-compete agreements. A few states, such as California, totally ban or prohibit non-compete agreements except in limited circumstances. For this reason, non-compete agreements have been popular among companies with employees working in states where they are allowed. They are very common among commercial radio stations and television stations, especially for radio personalities and television personalities working for media conglomerates. For example, if a radio or television personality quits, is laid off or fired from one station in the market they work in, they cannot work for another competing station in the same market until their contract expires with their former employing station.

Virginia

In Virginia, the enforceability of covenants not to compete is governed by common law principles. As restrictions on trade, CNCs are not favored by Virginia courts, which will enforce only narrowly drafted CNCs that do not offend public policy.

In Virginia, a plaintiff must prove by a preponderance of the evidence that the covenant is reasonable in the sense that it is: (1) no greater than necessary to protect its legitimate business interests, such as a trade secret; (2) not unduly harsh or oppressive in restricting the employee's ability to earn a living; and (3) not against public policy. Paramount Termite Control Co., Inc v. Rector, 380 S.E.2d 922, 924 (Va. 1989).

Legitimate business interest

In Virginia, courts weigh the (1) function, (2) geographic scope and (3) duration of the CNC against the employer's legitimate business interests to determine their reasonableness. ^[6] Additionally, CNCs are only reasonable if they prevent the employee from entering into direct competition with the employer and must not encompass any activity in which the employer is not engaged. ^[7]

Reasonable restriction on employee's ability to earn a living

Second, to enforce the CNC, a Plaintiff must show that it is not unduly harsh or oppressive in restricting the employee's ability to earn a living. In Virginia, a CNC is not unduly harsh or oppressive if balancing its function, geographic scope and duration the employee is not precluded from (1) working in a capacity not in competition with the employer within the restricted area or (2) providing similar services outside the restricted area. ^[8]

Public policy

Third, to enforce a CNC, a Plaintiff must show the CNC is reasonable from the standpoint of a sound public policy. Virginia does not favor restrictions on employment and therefore CNCs are generally held against public policy unless they are narrowly drafted as enumerated above. In Virginia, a CNC does not violate public policy if the restrictions it imposes do not create a monopoly for the services offered by the employer or create a shortage of the skills provided by the employee. ^[9]

Florida

The enforceability of non-compete agreements in the state of Florida is quite common. Some law firms build their law practice around these agreements and represent employees, employers and potential new employers of an employee currently bound by a non-compete agreement. The agreement is not allowed to be overly broad and generally difficult to enforce if it is for more than two years. Also if the agreement is part of a general employment contract then there is the possibility of a Pre-Breach by an employer. This may cause the non-compete clause of the contract to become unenforceable.^{[citation needed]}

California

Non-compete agreements are automatically void as a matter of law in California, except for a small set of specific situations expressly authorized by statute. ^[10] They were outlawed by the original California Civil Code in 1872.^[11]

Out of state agreements are not enforceable

The preeminent court decision discussing the conflict between California law and the laws of other states is the 1998 decision Application Group, Inc. v. Hunter Group, Inc. ^[12] In Hunter, a Maryland company required that its Maryland based employee agree to a one-year non-compete agreement. The contract stated that it was governed by and to be construed according to Maryland law. A Maryland employee then left to work for a competitor in California. When the new California employer sued in California state court to invalidate the covenant not to compete, the California court agreed and ruled that the non-compete provision was invalid and not enforceable in California. Business and Professions Code Section 16600 reflects a "strong public policy of the State of California" and the state has a strong interest in applying its law and protecting its businesses so that they can hire the employees of their choosing. California law is thus applicable to non-California employees seeking employment in California.

Whether California courts are required by the Full Faith and Credit Clause of the United States Constitution to enforce equitable judgments from courts of other states, having personal jurisdiction over the defendant, that enjoin competition or are contrary to important public interests in California is an issue that has not yet been decided. ^[13]

Exceptions - valid non-compete agreements in California

There are limited situations where a reasonable non-compete agreement may be valid in California.

1. If an owner is selling the goodwill in their business. ^[14]
2. When there is a dissolution or disassociation of a partnership. ^[15]
3. Where there is a dissolution of a limited liability company. ^[16]

Massachusetts

Noncompete agreements will be enforced in Massachusetts in appropriate circumstances. ^[17]

Historical context

By 1837, Massachusetts had indisputably adopted the analysis established in Mitchel. ^[3] In 1922, the Supreme Judicial Court eliminated any doubt that restrictive covenants in the employment context would be enforced when reasonable. ^[18]

Current law

The basic proposition enunciated long ago continues to apply: “A covenant not to compete is enforceable only if it is necessary to protect a legitimate business interest, reasonably limited in time and space, and consonant with the public interest.” ^[19]

Reasonableness

Reasonableness is the touchstone of the analysis and is highly fact-dependent. ^[20] The context in which the CNC arises (such as employment relationship, contractual relationship) is a critical factor in the analysis. ^[21] A CNC that is unreasonable because it is too broad, will be scaled back if it is in fact capable of being narrowed. ^[22]

Even when a CNC is limited in duration, geographic reach, and scope, it will be enforced “only to the extent . . . necessary to protect the legitimate business interests of the employer.” ^[23] Recognized legitimate business interests are generally identified as the protection of trade secrets, confidential information, and goodwill. ^[24]

Consideration

An otherwise valid CNC must still, like other contracts, be supported by consideration. Accordingly, the Supreme Judicial Court has held that a CNC must be “ancillary . . . to an existing employment or contract of employment” or some other “permissible transaction . . . .” ^[25] However, consideration can exist regardless of whether the CNC is entered into at the beginning of the employment relationship, during the term of employment, or even at the end of an employment relationship. ^[26]

Washington

According to Racine v. Bender, CNCs will be enforced by courts if they are validly formed and reasonable.^[27] There are exceptions, like in Labriola v. Pollard Group, Inc., where the Washington Supreme Court invalidated a CNC not supported by independent consideration by strictly enforcing the pre-existing duty rule.^[28]

Canada

Canadian courts will enforce non-competition agreements. However, there are some differences with the USA. Canada is analogous to the group of states that will not reform or blue-pencil covenants. These States are: Arkansas, Georgia, Nebraska, Virginia, and Wisconsin. However, Canadian courts have a much broader notion of fiduciary duty. High level or key employees will still have a duty to their employer, even post-employment. Recently the Supreme Court of Canada has expanded the notion of which employees owe fiduciary duties. Non-solicitation clauses are also routinely enforced.

Europe

Generally, CNCs are allowable in Europe only if the employer can show a reasonable business interest in having a CNC.

• In the Netherlands, non-compete clauses (non-concurrentiebeding or concurrentiebeding) are allowed regarding issues such as moving to a new employer and approaching customers of the old company. Unreasonable clauses can be invalidated in court.^[29]
• In the United Kingdom, CNCs are called Restraint of Trade clauses and may be used only if the employer can prove a legitimate business interest to protect in entering the clause into the contract. Mere competition will not amount to a legitimate business interest.^[30]
• In Germany, CNCs are allowed for a term up to two years. The employer must provide financial compensation for the duration of the CNC amounting to at least half the gross salary.^[31] Unreasonable clauses, for example excluding similar jobs in whole Germany, can be invalidated.
• In Belgium, CNCs are restricted to new employments within Belgium and for no more than one year. The employer must pay financial compensation for the duration of the CNC, amounting at least the same gross salary.^[32]
• In Spain, CNCs are regulated by article 21 of the labor law. CNCs are allowed up to two years for technical professions and six months for other professions.
• In France, CNCs must be limited in time to a maximum of two years and to a region where there the employee's new work can reasonably be seen as competitive. The region can be a city or the whole country, depending on the circumstances. The employer can be forced to pay financial compensation, typically 30 percent of the last salary, depending on the circumstances surrounding the termination of the employment. A CNC may not unreasonably limit the possibilities of the employee to find a new employment.
• In Romania, CNCs are regulated by article 20-4 of the labor code and restricted to two years for managing positions and six months for other positions. The employer must pay financial compensation for the duration of the CNC, amounting to at least 25 percent of the last salary.

• In Portugal, CNCs are regulated by article 136 of the labor code and restricted to two years extendible to three years in cases of access to particularly sensitive information. The employer must pay financial compensation for the duration of the CNC but the law doesn't specify anything regarding the amount of the compensation.^[33]

Related restrictive covenants

While CNCs are one of the most common types of restrictive covenants, there are many others. Each serves a specific purpose and provides specific rights and remedies. The most common types of restrictive covenants are as follows:

• Garden-leave clause: a type of CNC by which an employee is compensated during the period that the employee is restricted.

• Forfeiture-for-Competition Agreement and Compensation-for-Competition Agreement: an agreement by which an employee either forfeits certain benefits or pays some amount of money to engage in activities that are competitive with his former employer.

• Forfeiture agreement: an agreement by which an employee forfeits benefits when his employment terminates, regardless of whether he engages in competitive activities.

• Nondisclosure/confidentiality agreement: an agreement by which a party agrees not to use or disclose the other party's confidential information.

• Nonsolicitation agreement: an agreement by which an employee agrees not to solicit - and, if well drafted, not to accept - business from the employer's customers.

• Antipiracy agreement: an agreement by which an employee agrees not to solicit - and, if well drafted, not to hire - the employer's employees.

• Invention assignment agreement: an agreement by which an employee assigns to the employer any potential inventions conceived of during employment.

The enforceability of these agreements depends on the law of the particular state. As a general rule, however, with the exception of invention assignment agreements, they are subject to the same analysis as other CNCs.^[34]

Cases

• In 2005, Microsoft and Google litigated the enforceability of a non-compete clause in Kai-Fu Lee's employment contract with Microsoft. Difference in state laws were highlighted as Google attempted to maneuver the case to California courts, where California law would be more likely to hold the clause unenforceable.^[11]
• IBM v. Papermaster (No. 08-9078, 2008 U.S. Dist): Mark Papermaster moving from IBM to Apple computer in 2008.^[35]
• In April 2010, after a year of non-compete clause stipulated on the contract, Paul Teutul Jr., formerly from Orange County Choppers, was able to start his own new non-motorcycle design company.^[36]

Notes

1. ^ ^{a b} Alger, 36 Mass. at 52 (1837).
2. ^ Cal. Bus. & Prof. Code §§ 16600, 16601
3. ^ ^{a b} Alger, 36 Mass. at 53 (1837).
4. ^ Mitchel v. Reynolds, 24 Eng. Rep. 347 (Q.B. 1711)
5. ^ C. L. Fisk, Working Knowledge: Trade Secrets, Restrictive Covenants in Employment, and the Rise of Corporate Intellectual Property, 1800-1920, 52 Hastings Law Journal no. 2, 453-54 (2001); see also Alger, 36 Mass. at 53.
6. ^ See Advanced Marine Enters., Inc. v. PRC Inc., 501 S.E.2d 148, 155 (Va. 1998); Simmons v. Miller, 544 S.E.2d 666, 678 (Va. 2001) (stating that the function, geographic scope and duration of the CNC must be considered together to determine the reasonableness of the restriction).
7. ^ See e.g. Omniplex World Servs. Corp. v. US Investigations Servs., Inc., 618 S.E.2d 340, 342 (Va. 2005) (“covenants not to compete have only been upheld when employees are prohibited from competing directly with the former employer or through employment with a direct competitor.”); see also Motion Control Sys. v. East, 546 S.E.2d 424 (Va. 2001).
8. ^ See Paramount, 380 S.E.2d at 925.
9. ^ See Blue Ridge Anesthesia & Critical Care, Inc. v. Gidick, 389 S.E.2d 467, 470 (Va. 1990); Paramount, 380 S.E.2d at 925.
10. ^ Cal. Bus. & Prof. Code § 16600; see e.g. Edwards v. Arthur Andersen LLP, 44 Cal. 4th 937 (2008).
11. ^ ^{a b} "Calif. Supreme Court finds noncompete clauses invalid". CNET. November 8, 2008. http://news.cnet.com/8301-1001_3-10010724-92.html. Retrieved 2008-11-09. "Microsoft and Google battled over a noncompete clause in 2005, when Google hired Kai-Fu Lee, an expert in speech recognition technology, even though he had signed a noncompete agreement at Microsoft. Google unsuccessfully worked to move the case from Washington to California, in hopes that the noncompete clause would be ruled invalid. The case was eventually settled outside of court." 
12. ^ 61 Cal. App. 4th 881 (1998).
13. ^ See EMC Corp. v. Donatelli, Suffolk Superior Court, Civil Action 09-1727-BLS2 (2009).
14. ^ Cal. Bus. & Prof. Code § 16601.
15. ^ Cal. Bus. & Prof. Code § 16602.
16. ^ Cal. Bus. & Prof. Code § 16602.5.
17. ^ See e.g., Novelty Bias Binding Co. v. Shevrin, 342 Mass. 714, 716 (1961); Marine Contractors Co., Inc. v. Hurley, 365 Mass. 280, 287 (1974); Edwards v. Athena Capital Advisors, Inc., C.A. No. 07-2418-E, 2007 Mass. Super. LEXIS 378, 4-5 (Super. Ct. Aug. 7, 2007). See also Noncompete Agreements That Don't Mean What They Say; Negotiating, Drafting and Enforcing Noncompetition Agreements & Related Restrictive Covenants (Book).
18. ^ See Sherman v. Pfefferkorn, 241 Mass. 468 (1922).
19. ^ Lunt v. Campbell, No. 07-3845-BLS, *5 (Super. Ct Sept. 2007), quoting Boulanger v. Dunkin' Donuts Inc., 442 Mass. 635, 639 (2004), citing Marine Contrs. Co. v. Hurley, 365 Mass. 280, 287-88, 289 (1974) and All Stainless, Inc. v. Colby, 364 Mass. 773, 778 (1974).
20. ^ Edwards v. Athena Capital Advisors, Civil Action No. 07-2418-E (Super. Ct. Aug. 7, 2007) (“Covenants not to compete are valid if they are reasonable in view of all the facts in a particular case.”), citing Marine Contractors. Co. v. Hurley, 365 Mass. 280, 287-288 (1974); All Stainless, Inc. v. Colby, 364 Mass. 773, 778 (1974).
21. ^ Sentry Ins. v. Firnstein, 14 Mass. App. Ct. 706, 707 (1982) (quoting Restatement (Second) of Contracts § 188 comment g (1981)); Zabota Community Center, Inc. v. Frolova, No. 061909BLS1, *2 (May 18, 2006).
22. ^ See Edwards v. Athena Capital Advisors, Inc., C.A. No. 07-2418-E, 2007 Mass. Super. LEXIS 378 (Super. Ct., Aug. 7, 2007), quoting All Stainless, Inc. v. Colby, 364 Mass. 773, 778 (1974).
23. ^ EMC Corp. v. Gresham, No. 01-2084-BLS (Super. Ct. Nov. 2001), citing Novelty Bias Binding Co. v. Shevrin, 342 Mass. 714, 716 (1961); Marine Contractors Co., Inc. v. Hurley, 365 Mass. 280, 287 (1974).
24. ^ Marine Contractors Co., Inc. v. Hurley, 365 Mass. 280, 287 (1974), citing All Stainless, Inc. v. Colby, 364 Mass. 773, 779-80 (1974); Sentry Insurance v. Firnstein, 14 Mass. App. Ct. 706, 708 (1982); Lunt v. Campbell, No. 07-3845-BLS, *5 (Super. Ct. Sept. 2007), citing Boulanger v. Dunkin' Donuts Inc., 442 Mass. 635, 641 (2004); EMC Corp. v. Gresham, No. 01-2084-BLS (Super. Ct. Nov. 2001), citing Kroeger v. Stop & Shop Co. Inc., 13 Mass. App. Ct. 310, 316 (1982).
25. ^ Novelty Bias Binding Co., v. Shevrin, 342 Mass. 714, 716-17 (1961).
26. ^ See Marine Contractors Co., Inc. v. Hurley, 365 Mass. 280, 288 (1974) (“Marine's interest in protecting its accrued good will from possible incursions by Hurley is not weakened by the fact that it negotiated the agreement not to compete at the end of Hurley's employment rather than at some earlier time.”); Novelty Bias Binding Co., v. Shevrin, 342 Mass. 714 (1961); Richmond Bros. Inc. v. Westinghouse Bdcst. Co. Inc., 357 Mass. 106 (1970). But see Zabota Community Center, Inc. v. Frolova, No. 061909BLS1, *2 n.3 (Super. Ct. May 2006) (Although the plaintiff cited its mid-employment threat of termination as proof of consideration for the CNC, the court “exercising its equitable powers, sees it rather differently.”).
27. ^ Racine v. Bender, 141 Wash. 606, 615, 252 P. 115 (1927)
28. ^ Ayres, I., and Speidel, R.E. Studies in Contract Law, Seventh Edition. Foundation Press, New York, NY: 2008, p. 81
29. ^ Gebonden aan concurrentiebeding? Intermediair (2004)
30. ^ [1]
31. ^ German law, §74 HBS, abs. 2
32. ^ Clause de non-concurrence – conditions de validité. DroitBelge.net.
33. ^ Portuguese labour code, Article 136
34. ^ For more detailed information, see Beyond the noncompete
35. ^ "Apple Exec Hired From IBM Ordered to Stop Work". PC World. November 8, 2008. http://www.pcmag.com/article2/0,2817,2334163,00.asp. Retrieved 2008-11-09. "In June 2006, Papermaster signed a non-compete agreement in which he agreed not to work for an IBM competitor for at least a year if he ever left IBM, according to court documents. He informed IBM of the Apple job offer last month. On October 20, IBM offered him a pay raise as well as the option to accept one year's salary if he promised not to go to a competitor, but Papermaster submitted his resignation the next day. On October 22, IBM filed suit." 
36. ^ "Paul Teutul Jr Designs, A New Orange county Chopper versus Paul Teutul Sr?". TrendyPress. August 13, 2010. http://www.trendypress.com/paul-teutul-jr-designs-a-new-orange-county-chopper-versus-paul-teutul-sr. Retrieved 2011-2-7. 

References

Alger v. Thacher, 36 Mass. 51, 52 (1837).

California Business and Professions Code

External links

• 50 State Survey of Employee Noncompete Law