Articles Posted in Non-Compete Agreement / Covenant Not to Compete

The federal government has increased its efforts to curtail the abuse of restrictive covenants such as non-compete agreements, non-solicitation agreements, and no-poaching agreements. In July of this year, President Biden signed the Executive Order on Promoting Competition in the American Economy, which encourages the Federal Trade Commission (FTC) to make use of its statutory rulemaking authority “to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.”

Federal agencies have already been utilizing antitrust and unfair competition laws to combat the abusive use of restrictive covenants. The Department of Justice (DOJ) and the FTC are the two federal agencies authorized to enforce antitrust laws. The two federal laws primarily used by these agencies are the Sherman Antitrust Act, 15 U.S.C. 1 et seq., and the Fair Trade Commission Act, 15 U.S.C. 41 et seq. The Sherman Act makes illegal contracts in “restraint of trade or commerce.” The Fair Trade Commission Act prohibits “unfair methods of competition” and “unfair or deceptive trade practices.” The Supreme Court has held that any violation of the Sherman Act necessarily violates the Fair Trade Commission Act.

The Department of Justice has been cracking down on the use of no-poaching agreements between competitors since 2010. The DOJ’s Antitrust Division has been prosecuting “horizontal” (i.e. agreements between competitors) no-poaching agreements under the Sherman Act. In September 2010, DOJ announced it had reached a settlement with several large technology companies who had agreed not to “poach” each other’s employees. Continue reading ›

As we previously wrote about, this May the Illinois legislature passed a major bill that significantly alters how and when employers can use restrictive covenants, such as non-compete and non-solicitation agreements, with Illinois employees. As expected, Governor JB Pritzker signed the bill into law. It will go into effect January 1, 2022, and will only apply to agreements entered into after that date.

The new law amends the Illinois Freedom to Work Act and serves both to codify existing requirements under Illinois case law but also to impose new restrictions on Illinois employers as to when, with whom, and under what circumstances they may use restrictive covenants with employees. The goal of the new bill is to clarify when Illinois courts will and will not enforce non-compete and non-solicitation agreements.

The current version of the Freedom to Work Act defines a “covenant not to compete” as an agreement between an employer and a low-wage employee that restricts such low-wage employee from performing:

  • any work for another employer for a specified period of time;
  • any work in a specified geographical area; or
  • work for another employer that is similar to such low-wage employee’s work for the employer included as a party to the agreement.

Continue reading ›

Illinois recently joined a growing list of states that have passed laws constraining the use of restrictive covenants by employers. The Illinois legislature passed Senate Bill 672 which imposes significant limitations on the use by Illinois employers of non-compete and non-solicitation agreements. The bill achieves this by amending the Illinois Freedom to Work Act to establish new requirements for agreements containing restrictive covenants and to codify standards for the use of non-solicitation agreements. Governor Pritzker is expected to sign the bill into law. Once signed by the governor the bill would take effect on January 1, 2022, though significantly the bill would not apply retroactively and would only apply to restrictive covenants entered into after this date.

Illinois’ Freedom to Work Act, originally passed in 2017, prohibited “covenants not to compete” for “low-wage employees,” defined as those earning the greater of minimum wage or up to $13.00 per hour. The Act only addressed covenants not to compete, leaving employers unsure as to whether the statutory limitations also applied to provisions prohibiting former employees from soliciting the employer’s employees or customers. The newly passed bill clears up that uncertainty by amending the Act to apply explicitly to non-solicitation agreements as well. The bill explicitly defines the term “covenant not to solicit” broadly as any agreement that “(1) restricts the employee from soliciting for employment the employer’s employees or (2) restricts the employee from soliciting, for the purpose of selling products or services of any kind to, or from interfering with the employer’s relationships with, the employer’s clients, prospective clients, vendors, prospective vendors, suppliers, prospective suppliers, or other business relationships.”

The bill additionally clarifies that “covenants not to compete” do not include confidentiality or nondisclosure agreements, trade secret protection agreements, invention assignment agreements or covenants, agreements by which the employee agrees not to reapply for employment to the same employer after termination of the employee or, importantly, agreements entered into in connection with purchase and sale transactions.

Significantly, the bill replaces the definition of “low-wage,” which referred only to hourly wages, with an annualized earnings requirement, joining states like Washington and Maine. The bill would prohibit employers from entering into non-compete agreements with employees who earn $75,000 per year or less. The bill incrementally increases the earning threshold every 5 years through 2037. The earning threshold increases to $80,000 per year beginning on January 1, 2027, $85,000 per year beginning on January 1, 2032, and $90,000 per year beginning on January 1, 2037. A covenant not to compete entered into in violation of the bill is void and unenforceable. Continue reading ›

If you think you’d be better off leaving your job to start your own company that does the same thing as your employer, you’d better check the terms of your employment contract first. A swimming coach based in New Jersey, John Alaimo, worked for NYS Aquatics Inc. of Goshen, which has run the “New York Sharks” swim team since 2003. Although Alaimo renewed his contract with NYSA in the fall of 2019, less than a year later, in the summer of 2020, he started his own swimming company that likewise had a shark-themed name: Shark Swimming, LLC.

NYSA responded by suing Alaimo and two other swim coaches for breach of contract, citing both non-compete and non-solicitation clauses in their employment contracts.

A non-compete agreement states you cannot work for a competitor of your employer, usually within a certain geographic distance and a certain timeframe after your employment with them has ended. A non-solicitation agreement states you cannot solicit clients, vendors, or other employees of your employer to do business with your new employer. It’s also common to have a time limit on that requirement.

It’s unclear whether Alaimo’s non-compete and/or non-solicitation agreements were limited by time, but it doesn’t matter because Alaimo was still under contract with NYSA at the time that he founded his competing company. Continue reading ›

An employee of a wine-making company was sued by his former employer for starting a competing business while he was still serving as the company’s president. The company also alleged that he misused his position as president to sell the same wine under the company’s brand and the brand of his new company, while assigning lower prices to the wine from his new brand, thereby siphoning sales away from the winemaker. After a trial, a jury found in favor of the company but awarded it no damages. The company appealed, arguing that the jury’s verdict was inconsistent with its findings regarding liability. The appellate panel disagreed, finding that the jury could reasonably have concluded that though the ex-employee was liable, his actions did not cause the company any significant financial harm. The panel upheld the verdict and the judgment of the district court.

Gerald Forsythe formed Indeck-Paso Robles, LLC for the purpose of creating and managing a wine-grape vineyard. In 2006, Indeck purchased Shimmin Canyon Vineyard in Paso Robles, California. Forsythe later established Continental Vineyard LLC, as a wholly-owned subsidiary of Indeck, for the purpose of operating Shimmin Canyon. Forsythe appointed himself chairman and CEO and named Randy Dzierzawski president. Dzierzawski was in charge of all of Continental’s day-to-day operations.

Though the two originally intended for Continental to only operate as a grape-growing enterprise, they eventually decided that they wished to branch out into winemaking. Continental then hired Chris Cameron, and experienced vintner, as Director of Winemaking. In 2010, Cameron and Dzierzawski, on behalf of Continental, met with Mark Esterman, a wine buyer for the Meijer grocery store chain to discuss developing custom wine for the store. Dzierzawski brought the opportunity to Forsythe, but Forsythe declined to pursue it, finding it to be a money loser. Continue reading ›

We previously wrote about ex-Google engineer Anthony Levandowski, the former head of Google’s self-driving division, who was charged criminally for misappropriation of trade secrets prior to his departure from Google. Levandowski ultimately pleaded guilty to stealing a confidential document related to Google’s self-driving technology. Levandowski’s attorneys had requested that he be let off without any prison time, arguing that a year of home confinement, a fine, restitution, and community service would be sufficient punishment for his crime. The federal government had asked for a prison sentence of twenty-seven months. The judge chose not to accept either proposed sentence and instead handed down an 18-month prison sentence to Levandowski.

In handing down his sentence, US District Judge William Alsup said that a sentence without imprisonment would give “a green light to every future brilliant engineer to steal trade secrets.” Levandowski was originally charged with 33 counts of stealing trade secrets in connection with Levandowski’s downloading thousands of documents to his personal laptop before leaving Google to work on his own self-driving startup, Otto, which was later acquired by Uber in August 2016 for a reported $680 million. As part of his plea deal, Levandowski admitted to stealing one document called “Chauffeur TL weekly updates,” which tracked the progress of Google’s “Project Chauffeur” that later became Google’s self-driving division, Waymo. According to reports, Judge Alsup described the stolen document as a “competitor’s game plan” and called Levandowski’s theft the “biggest trade secret crime I have ever seen.” In exchange for pleading guilty to this one charge, the government agreed to drop the other charges against Levandowski. Continue reading ›

Layoffs have become commonplace in the COVID-19 era as employers are forced to trim staff levels amid shelter-in-place orders. Many of these employers intend to rehire their former employees when the economy picks back up. Employers should be aware, however, of the impact, these gaps in employment can have on the enforceability of non-compete agreements and other restrictive covenants the employer and employee may have previously entered into.

The U.S. Circuit Court of Appeals for the First Circuit recently considered a similar situation and ultimately held that the employer could not enforce a non-compete agreement against a former employee that had been fired and then rehired. The legal saga started when Novo Nordisk, a pharmaceutical company, sought entry of a temporary restraining order and preliminary injunction against Thomas Russomano, one of its former employees, seeking to enforce the terms of a confidentiality and non-compete agreement that Russomano signed when he began his employment with Novo Nordisk. The District Court denied Novo Nordisk’s motion because it found that Novo Nordisk failed to show a likelihood of success on the merits, a necessary requirement to obtain injunctive relief.

Russomano began his employment with Novo Nordisk in January 2016. As a condition of his employment, he signed confidentiality and non-compete agreement which prohibited him from working for a competitor during his employment and for a period of twelve months following the end of his employment. In October 2016, Novo Nordisk informed Russomano that his position was being eliminated, and he was terminated in mid-November. After an approximately three-week period, the company rehired Russomano to another position. Russomano signed second confidentiality and non-compete upon being rehired. Continue reading ›

When workers get sued by their employer for breaching their employment contract, it’s fairly common for the workers to argue that the contract was invalid, but it’s less common for them to claim their signature on the contract was forged. That’s what Eric M. Frieman said when USI Insurance Services, LLC, sued him for allegedly stealing clients away from Wells Fargo to work with his new employer, RCM&D Self-Insured Services Inc., otherwise known as SISCO.

Frieman started working for Wells Fargo Insurance Services USA Inc. in 2008 as an employee benefits producer. In 2010, he signed an employment contract with Wells Fargo that included clauses that forbade him from working for a competitor and/or soliciting clients from Wells Fargo to switch to his new employer.

But when Frieman left Wells Fargo in 2016 to go work for RCM&D, he allegedly actively solicited 18 clients he had served while working at Wells Fargo and invited them to switch over to RCM&D, which they did. USI purchased Wells Fargo in 2017 and they are named as the main plaintiffs in the non-compete lawsuit against Frieman.

Rather than denying that the employment contract he signed with Wells Fargo is valid, Frieman claimed that he had never signed the document and that his signature had been forged. He insisted he only has one signature and that the signature above his name on his employment contract with Wells Fargo does not match his signature. Continue reading ›

E-commerce and tech behemoth, Amazon, has filed a lawsuit against the former vice president of marketing for its Amazon Web Services division, Brian Hall, alleging that his new role at Google Cloud violates the terms of his non-compete agreement. In its complaint, Amazon alleges that Hall’s employment with Google threatens to cause irreparable harm and risks exposing valuable competitive information to one of its biggest rivals. Amazon seeks both money damages and injunctive relief, requesting that the court enjoin Hall from working for Google for the remainder of the 18-month non-compete period set forth in the agreement.

This lawsuit is the latest in a series of lawsuits filed by Amazon to enforce non-compete clauses in employment contracts. In 2017, Amazon sued another former vice president who left Amazon Web Services to take a job with a Seattle-area software company but dropped the suit shortly after filing it. In 2019, Amazon filed a similar suit against a former Amazon Web Services sales executive after he too left the company to take a job with Google Cloud. A judge ultimately agreed to partially limit certain aspects of that employee’s role at Google but did strike down certain portions of the restrictive covenant as “unreasonable” and took Amazon to task for taking a one-size-fits-all approach to its non-compete agreement. This latest lawsuit comes after Washington state enacted a new law last year that severely restricted the use of non-compete agreements within the state. We previously wrote about that new law here. Continue reading ›

As we previously discussed here, the Virginia legislature was considering a bill earlier this year that would limit the use of non-compete agreements with certain categories of employees. Earlier this month, Virginia’s governor signed a series of new employment laws including one that bans using covenants not to compete with “low-wage” employees. The law takes effect July 1, 2020, but does not apply retroactively.

The new law provides that “[n]o employer shall enter into, enforce, or threaten to enforce a covenant not to compete with any low-wage employee.” It defines a “covenant not to compete” as “a covenant or agreement, including a provision of a contract of employment, between an employer and employee that restrains, prohibits, or otherwise restricts an individual’s ability, following the termination of the individual’s employment, to compete with his former employer.” Importantly, the statute clarifies that non-compete agreements “shall not restrict an employee from providing a service to a customer or client of the employer if the employee does not initiate contact with or solicit the customer or client.” Continue reading ›

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