The dreaded non-compete. The clause that is included in many employment contracts that controls employees’ work behavior once they leave their current employer. To be enforceable, these provisions almost always require a time restriction— the employee cannot engage in their line of work for a set amount of time—and a geographic restriction—the employee cannot engage in their line of work within a certain radius of their former employer. Continue reading
Category Archives: Non-Compete Agreements
Delaware Choice of Law News
Last month, the Delaware Superior Court issued a key ruling on the enforceability of Delaware choice-of-law provisions. These contract clauses provide that, if litigation arises over the terms of a contract (often a settlement agreement or an employment agreement), that the law to be applied to the contract will be Delaware contract law (as opposed to the law of the state where the employee works). Continue reading
Radius Clause is Coming to Town: Coachella Deals with Radius Clauses
Top headlines from Coachella this year are Walmart Yodel Boy, Destiny’s Child reuniting, and…Radius Clauses? That’s right, one of the biggest headlines surrounding the California-based music festival has to do with a lawsuit involving a Radius Clause. Continue reading
Mitigating the Risks of Hiring an Employee with a Delaware Non-Compete
This article was originally published on the “Delaware Non-Compete Law Blog“
The use of employee covenants not to compete – once restricted to salespeople and high-level management – has continued to expand into the ranks of ordinary employees. A recent survey suggests that as many as one in five employees have some form of agreement placing restrictions on their post-employment activities. Continue reading
A Perk of BYOD Policies at Work
Employers face a serious challenge when trying to prevent employees from taking confidential and proprietary information with them when they leave to join a new employer-particularly when the new employer is a competitor. When an employer becomes suspicious about an ex-employee’s activities prior to his or her last day of work, there are a limited number of safe avenues for the employer to pursue. 
Generally, an employer should not review the employee’s personal emails or text messages if they were sent or received outside the employer’s network. But what if the employee turns over his personal emails or text messages without realizing it? The answer is, as always, “it depends.” A recent case from a federal court in California addresses the issue in a limited context. Continue reading
Violation of Non-Solicitation Agreement Via LinkedIn
Whether a former employee breaches her non-compete and/or non-solicit agreement by publishing her new job with a competitor to her LinkedIn contacts, many of which include “prohibited customers” is an unsettled question. As you may imagine, the cases that address this question are few. A recent opinion issued by a Massachusetts Superior Court may have addressed it more than it realized, though. Continue reading
Enforceability of Non-Compete Agreements in Delaware
Delaware’s Court of Chancery is the court of choice for employers seeking to enforce non-compete agreements. As Delaware practitioners know, the Court has a long-standing practice of ruling from the bench, particularly in cases in which injunctive relief is being sought and where time is of the essence. See this post on the Delaware Corporate and Commercial Litigation Blog (“Regular readers will know that transcript rulings are often cited in this court as valid authority.”) And this practice means that transcripts are an important, if not critical, source of information about how the court is likely to rule. Continue reading
So Sue Me! (For Threatening to Sue You)
Employee sues employer. Employer calls employer’s lawyer. Employer and lawyer discuss the case. They review the cast of characters. They talk about the chronology of events. They assess the potential exposure to employer.
And, as sure as eggs, employer asks lawyer the following question: “Can’t we sue him?” Continue reading
Call Me, Maybe. Discovery of Employee Identities
Delaware’s Court of Chancery is the North Star of the noncompete-litigation universe in the State and, in many respects, in jursidctions around the country. It can also be a tricky galaxy to traverse due to the speed of litigation, the equitable principles that control procedural rules and, on an even more basic level, the fact that many of the court’s opinions are not reported. As a result, transcripts of rulings from the bench are commonly cited as binding authority. Continue reading
Social-Media Round Up (and other miscellany)
Discovery of Social-Media Evidence is the topic that I’ll be presenting today at the annual Office & Trial Practice seminar. Despite my far-reaching popularity (kidding, just kidding), the real celebrity at today’s event will be U.S. Supreme Court Justice Scalia. Because I probably should be practicing my presentation instead of writing a blog post today, I’ll try to keep this brief, adopting the weekly-round-up approach used by Jon Hyman. Continue reading
