Yes; That Non Compete Is Enforceable (Maybe)

In this morning's WSJ there is an interesting piece regarding the enforcement of a Non Compete Agreement executed by an executive at Johnson & Johnson, that departed for Boston Scientific.  The parties agreed upon restrictions upon the employment of Michael Mahoney during the one year non compete period.

I have litigated and tried many non compete case over the years, most on behalf of employees. Thankfully, the non competes I have written on behalf of my employer clients have never had to be tested. The typical client comes in saying, "I signed it because I needed the job, and didn't think non competes were enforceable".

Well; as a general rule, they are enforceable. If the non compete is reasonable in scope,  geography and time , i.e restricts the employee from competing in the field in which he/she worked, the the area in which they worked, and for a reasonable period of time, the agreement will likely be enforced.The courts will also consider whether or not the non compete is necessary to protect the legitimate interests of the employer.

Can they be beat or modified. Yes; and I have done it many times. All contracts require that both parties fulfill their obligations in "good faith". So; if an employer changes the rules  in midstream, such as a job description, or the region in which an employee works, a court can decide not to enforce the non compete, or modify the non compete so that it is fair. If a court decides that the non compete goes further than is needed to protect the interests of the employer in it's confidential information or trade secrets, the agreement can be modified, or voided. If the employer breaches an agreement with the employee, the non compete can be modified or voided. Generally, the courts have broad discretion in these cases to insure that the agreements are fair.  

So; when you're ready to put pen to paper on that non compete clause in your employment contract, STOP and consult with counsel. You're potentially giving up your right to work!

Bruce

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