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

A U.S. District Court judge in Rhode Island recently granted CVS Pharmacy, Inc. a  preliminary injunction to block an executive who ran its Caremark Retail Network from working for Amazon’s online pharmacy PillPack, finding that the move would likely violate the executive’s non-compete agreement.

John Lavin worked as a senior executive for CVS for 27 years, most recently as senior vice president for provider network services at CVS Caremark, a pharmacy benefits manager (PBM). In this role, Lavin negotiated with retail pharmacies on behalf of CVS Caremark. In May 2017, Lavin entered an agreement which contained a covenant not to compete among other restrictive covenants in exchange for restricted stock units worth $157,000, according to the Court’s opinion. Lavin’s non-compete agreement prohibited him from working for a competitor for 18 months after leaving CVS.

A year after entering the agreement, Lavin allegedly began discussions with PillPack about leaving CVS for a position at Pillpack and even interviewed with executives from both PillPack and Amazon. After interviewing, Lavin was ultimately offered the position of director of third-party networks and contracting, reporting directly to PillPack’s CEO. Shortly thereafter, Lavin resigned from CVS and started employment with PillPack. Continue reading ›

Restrictive covenants such as covenants not to compete and non-solicitation agreements are key provisions of many employment agreements and are meant to protect the company’s proprietary information and long-term relationships. Beginning January 1, 2020, business owners in Oregon using non-compete agreements must take into account the notice requirements imposed by a recently passed law or their non-compete agreements will not be enforceable.

Earlier this year, Oregon Governor Kate Brown signed House Bill (HB) 2992, which imposes a new burden on employers who utilize noncompetition agreements with their Oregon employees. Under the new law, an employer must provide the former employee with a signed, written copy of their non-compete agreement within 30-days following their termination. If an employer does not provide a copy of the non-compete agreement to the former employee within this window, the employer forfeits the right to enforce the non-compete agreement. Continue reading ›

When a franchisor learned that its franchisee was building a competing app and planning to launch a new business in direct competition with it, it sued, seeking an injunction to prevent the launch of the app and business during the litigation. The district court granted the injunction, and the appellate court affirmed in part, with regards to the injunction’s limits on competition. The appellate panel did, however, remand for the district court to consider imposing a higher security bond, given the sweeping nature of the terms of the injunction.

Auto Driveway Franchise Systems, LLC is a franchisor for commercial vehicle transportation services. Jeffrey Corbett was one of Auto Driveway’s franchisees. Through his company, Auto Driveway Richmond, LLC, Corbett ran Auto Driveway franchises in Richmond, Virginia, Nashville, and Cleveland. Corbett’s three businesses were governed by separate, but substantively identical franchise agreements with Auto Driveway. Each agreement included a non-compete clause, a non-disclosure clause, and a five-year term set to expire in 2016. The expiration dates came and went, and both parties continued dealing as though the contracts were still in place.

At some point in 2017, Auto Driveway learned that Corbett had been taking actions in apparent violation of the franchise agreements. Corbett was building an app to complete against the app Auto Driveway had hired Corbett to build for itself, using Auto Driveway’s proprietary work product as a starting point. Corbett was set to launch his new app through a new company, InnovAuto, that also provided auto transportation services in direct competition with Auto Driveway. Auto Driveway sued, seeking an injunction to prevent Corbett from selling or using the app.The district court granted Auto Driveway a preliminary injunction, finding that Corbett was harming consumer goodwill and was taking Auto Driveway customers through his competing business. Corbett then appealed. Continue reading ›

New England employers have seen a restricting on their ability to use non-compete agreements in recent weeks with the passage of new laws in Maine, New Hampshire, and Rhode Island. In a previous post, we profiled the non-compete legislation passed in Massachusetts. The bills in Maine and New Hampshire are set to be enacted later this year, while the bill in Rhode Island has passed the legislature and awaits signature by the governor.


The newly passed Act To Promote Keeping Workers in Maine is set to take effect on September 18, 2019. The new law will dramatically affect employers who utilize various common restrictive covenants by: (1) prohibiting employers from entering into no-poach or non-solicitation agreements with other employers; (2) barring employers from entering into non-compete agreements with low-wage employees; (3) limiting an employer’s ability to enforce restrictive covenants; (4) mandating advanced disclosure of the use of non-compete agreements; and (5) delaying the effective date of non-compete agreements; and (6) imposing stiff monetary penalties for violation of the law’s restrictions.

The law prohibits employers from requiring employees earning at or below 400% of the federal poverty level to sign covenants not to compete. The new law also prohibits the use of no-poach agreements, even those ancillary to legitimate business collaboration, and non-solicitation agreements, a common provision in NDAs used by many companies.

The law also limits the ability to enforce non-competes by limiting an employer’s legitimate business to only: (a) trade secrets; (b) confidential information; or (c) goodwill. Any employer who violates the law is subject to a fine, not less than $5,000. Continue reading ›

Although many financial planning companies rely on the relationship between the financial planner and the customer, E-Trade’s customers primarily conduct business online – usually without communicating directly with any of the company’s financial planners.

Even so, the company includes a non-solicitation agreement as part of their employment contract with their financial consultants and brokers. According to a recent employment lawsuit, Heather Pospisil, a former financial consultant for E-Trade, allegedly violated that agreement by taking E-Trade clients with her when she moved to Morgan Stanley.

According to the lawsuit, Pospisil allegedly accessed a considerable amount of client information late one night, just a few days before she left to join Morgan Stanley, another financial planning company that competes directly with E-Trade.

Pospisil alleges she was merely accessing the information so she could let clients know she was leaving the company. Not only would those clients be unlikely to care, given the online nature of E-Trade’s business, but U.S. Judge Ronald A. Guzman pointed out that it would have been much faster to send a mass email to all her clients. In addition to being more efficient, it also would have provided evidence to support her claim that all she did was provide notice of her departure.

Judge Guzman also noticed that the number of files she accessed on that night accounted for 75% of all the files she had ever accessed in the more than four-and-a-half years she had been working for E-Trade. Continue reading ›

It has become increasingly common over the past few years for employers to include non-compete agreements in their employment contracts. In most cases, they are required to have geographic and time limits, meaning they can only be enforced in a certain geographical area for a certain period of time (usually six months to a year after termination of employment).

The restrictions on non-compete agreements vary from state to state, with a few states, such as California, refusing to recognize any non-compete agreements, even those signed in states that do recognize such contracts.

In one recent case against a realtor in Connecticut, Century 21 Access America successfully sued a former employee and obtained an injunction against her. Under Connecticut state law, non-compete agreements are recognized and enforceable.

Vassilia Mazzotta’s employment agreement with Century 21 stated that she would not work for a competitor or solicit clients within 15 miles of Century 21’s offices for a period of two years after termination of her employment with Century 21.

Shortly after resigning from her position as a real estate broker with Century 21, Mazzotta went to work for a competing real estate company and continued to provide services and solicit clients within 15 miles of Century 21’s offices. Continue reading ›

When non-compete agreements first started to be used, they needed to establish a geographic perimeter in order to be enforceable. Non-compete agreements were intended to prevent workers from going to work for the competitor across the street and taking clients, vendors, and/or proprietary secrets with them. In order to stay fair to workers while still protecting the employer, most non-compete agreements were restricted to a certain geographical range – for example, the employee could not go to work for a competitor less than 20 miles away from the employer.

Over the past few years, employers have started expanding the geographical limits in their non-compete agreements until they didn’t bother putting them in at all – in a few cases, they actually specified that the non-compete agreement was effective worldwide.

With the dawn of the Digital Age, businesses started expanding their reach across the globe, making it increasingly difficult to specify a geographical area in which they conduct business. For this reason, some U.S. courts have ruled that it’s OK for companies to leave out the geographical restrictions on a non-compete agreement, but the Nevada Supreme Court recently stated otherwise. Continue reading ›

download-300x150download-1-300x150Super Lawyers named Chicago and Oak Brook non-compete agreement attorney Peter Lubin a Super Lawyer in the Categories of Class Action, Business Litigation, and Consumer Rights Litigation. Patrick Austermuehle of the Firm was named a Rising Star again and has a great deal of experience as a Chicago restrictive covenant and non-compete agreement Attorney.  Peter Lubin and Patrick Austermuehle have achieved this honor for many years which is only given to 5% of Illinois’ attorneys each year.  You can review their record of accomplishment here. You can look at reviews by the clients here.

Lubin Austermuehle’s Oak Brook and Chicago employment and non-compete agreement trial lawyers have over thirty years experience in litigating employment, restrictive covenant and non-compete agreement lawsuits.  Our Chicago non-compete agreement and trade secret theft attorneys prosecute and defend many types of employment practice and emergency business lawsuits involving injunctions, and TROS, covenant not to compete, franchise, distributor and dealer wrongful termination and trade secret lawsuits and many different kinds of business disputes involving shareholders, partnerships, closely held businesses and employee breaches of fiduciary duty. We also assist businesses and business owners who are victims of fraud.

Lubin Austermuehle’s Wheaton and Waukegan non-compete agreement lawyers have more than two and half decades of experience helping business clients unravel the complexities of Illinois and out-of-state business laws. Our Chicago business, commercial, class-action, and consumer litigation lawyers represent individuals, family businesses and enterprises of all sizes in a variety of legal disputes, including disputes among partners and shareholders as well as lawsuits between businesses and consumer rights, auto fraud, and wage claim individual and class action cases. In every case, our goal is to resolve disputes as quickly and successfully as possible, helping business clients protect their investments and get back to business as usual. From offices in Oak Brook, near Schaumburg and Orland Park, we serve clients throughout Illinois and the Midwest.

Non-compete agreements were originally intended to prevent high-level executives from taking trade secrets and client relationships to a competitor, but companies have recently been expanding their use of non-compete agreements to almost all their employment contracts, even with workers earning minimum wage. It has become a way to lock low-wage employees into their current jobs because the terms of their non-compete contract often make it impossible for them to find work in a related field.

At the same time, while non-compete agreements might not do much harm to employees at the executive level because they have more bargaining power, workers at the lower levels often have little-to-no bargaining power and are often unaware of their options when it comes to their employment contracts. Whether that means negotiating the terms of their contract, or recognizing when the contract is invalid, low-wage workers tend to have fewer options than those higher up the ladder.

While there is no federal law putting limitations on when companies can use non-compete agreements, there are a variety of state laws that either ban or limit non-compete agreements within the state. California is famous for their total ban on non-compete agreements, while other states, like Washington, have recently added limitations to when companies can use non-compete clauses and what terms can be included in those contracts. Continue reading ›

Recently, a unanimous U.S. Third Circuit appellate court upheld payroll company Automatic Data Processing’s (“ADP”) non-compete agreements but remanded the case to the district court for tailoring. The federal appeals court reversed a decision by the district court which had found the covenants not to compete to be unenforceable. In reversing the lower court, the Third Circuit found that the non-compete agreements were necessary to protect ADP’s client relationships and goodwill, interests that New Jersey courts, “consistently recognize as legitimate.”

According to the Third Circuit’s opinion, ADP requires certain high-performing employees to sign non-compete agreements and similar pledges in order to qualify for stock option awards. These restrictive covenants prohibit employees who received stock options from working for a competitor for one year and from soliciting ADP’s current or prospective clients for two years after leaving ADP. Two former ADP employees challenged ADP’s practice, alleging that the restrictive covenants were more onerous than they needed to be. The Third Circuit found that the solution in such circumstances is to amend, or “blue pencil” the non-compete agreements, not find them entirely unenforceable. Continue reading ›

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