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Sunday, February 18, 2018

Non compete restrictive covenant brief

Non compete restrictive covenant brief
The NJ Supreme Court ruled a non-compete covenant as enforceable and not against public policy in Maw v. Advanced Clinical Communications, Inc (ACCI) 179 N.J. 439, 846 A.2d 1222. (2004).
          In this case, Karol Maw began working for Advanced Clinical Communications, Inc. (ACCI) as a graphic designer on November 1, 1997. ACCI provides marketing and educational services for the pharmaceutical and healthcare industries. Maw had been hired to design written materials used by ACCI in its marketing and educational programs.  Maw was promoted to Senior Graphic Designer in January 2001. Thereafter, pursuant to a new company policy, ACCI required all of its employees at or above the level of “coordinator” to sign a non-compete agreement as a condition of continuing employment. The agreement precluded, among other things, Maw from becoming employed by any competitor or customer of ACCI for a period of two years following the termination of her employment. Maw was informed that she could seek legal advice concerning the employment agreement. Maw consulted her father, an attorney, who suggested changes. Maw presented those revisions to ACCI’s Human Resource Department but was told that no changes could be made. Maw did not sign the non-compete agreement, prompting her termination by ACCI in March 2001 for failing to comply with company policy.
         The court in Maw v. Advanced Clinical Communications, Inc. held her conscientious employee CEPA claim must fail because our State’s public policy respecting non compete agreements is not set forth in a “clear mandate,” and does not “concern[] the public health, safety or welfare or protection of the environment.” N.J.S.A. 34:19-3c(3). Over a generation ago, our Court sketched the broad parameters for determining whether a non compete agreement was unenforceable. Whitmyer Bros., Inc. v. Doyle, 58 N.J. 25 (1971); Solari Indus. Inc. v. Malady, 55 N.J. 571 (1970). In Solari, the Supreme Court canvassed, the historical treatment of non compete agreements, and acknowledged the previously held negative view of such agreements. 55 N.J. at 575-84. The Court cited academic writings on the topic that elaborated in greater detail on the relation of such agreements to Anglo-American commercial practices. See, e.g., Solari, supra, 55 N.J. at 574-77 (citing Harlan M. Blake, Employee Agreements Not to Compete, 73 Harv. L. Rev. 625 (1960)).
The Court in Maw v. Advanced Clinical Communications, Inc. held:
                  "But Solari was a turning point, for the Court held then “that the time is well due for the abandonment of New Jersey’s void per se rule in favor of the rule which permits the total or partial enforcement of noncompetitive agreements to the extent reasonable under the circumstances.” 55 N.J. at 585. In Whitmyer, supra, The Court expanded on Solari, establishing what is now known as the Solari/Whitmyer test for determining whether a non compete agreement is unreasonable and therefore unenforceable. Under the Solari/Whitmyer test, a non compete agreement is enforceable “if it ‘simply protects the legitimate interests of the employer, imposes no undue hardship on the employee and is not injurious to the public.’” Ingersoll-Rand Co. v. Ciavatta, 110 N.J. 609, 628 (1988) (quoting Whitmyer, supra, 58 N.J. at 32-33). The first two prongs of the test require a balancing of the employer’s interests in protecting proprietary and confidential information and the asserted hardship on the employee. Ingersoll-Rand, supra, 110 N.J. at 634-35. The third requires the reviewing court to analyze the public’s broad concern in fostering competition, creativity, and ingenuity. Id. at 639. Solari/Whitmyer has now become an accepted part of the common law, not only in New Jersey but also in other jurisdictions around the country. Id. at 630-34."
The Court in Maw v. Advanced Clinical Communications Inc. stated:
                  Although our dissenting colleagues may contend that do-not-compete provisions are, or should be, per se illegal, in point of fact, they are not illegal per se. It is not accurate to describe our current caselaw, which allows enforcement of reasonable non-compete agreements, as a “clear mandate” that disfavors such agreements. The Solari/Whitmyer test is a multi-part, fact-intensive inquiry. Not only must multiple interests of differing parties and entities be identified, but also, those interests must be gauged for reasonableness and legitimacy. The application of that test here, and as a general matter, simply does not evoke the type of a “clear mandate of public policy” that was contemplated by N.J.S.A. 34:19-3c(3).
The Court in Maw v. Advanced Clinical Communications Inc. was informed by the amici that non-compete agreements are a common part of commercial employment. The Court did not accept as a premise that employers, in large numbers, are engaging in a practice that is “indisputably dangerous to the public health, safety or welfare.” Dzwonar, supra, 177 N.J. at 464. It is more appropriate to characterize the business community as having adapted to the Solari/Whitmyer approach that recognizes that non compete agreements can serve a useful purpose so long as the agreement is not unreasonable.
The Court in Maw v. Advanced Clinical Communications Inc. concluded that plaintiff’s private dispute over the terms of the do-not-compete provision in her employment agreement does not implicate violation of a clear mandate of public policy as contemplated by Section 3c(3) of CEPA. As previously noted, plaintiff did have options available to her. If she could not negotiate terms that were to her liking, she was free to dispute the reasonableness of those terms if and when her employer attempted to enforce the agreement. The burden then would be on the employer to hire counsel and initiate enforcement litigation, Solari, supra, 55 N.J. at 574, and nothing would preclude an employee-defendant in such an action from asserting any and all affirmative defenses and counterclaims. Ingersoll- Rand, supra, 110 N.J. at 621-
The NJ Supreme Court granted greater protection to employers and businesses in Lamorte Burns & Co., Inc. v. Walters 167 N.J. 285 (2001)
The Court in Lamorte held: By secretly collecting confidential and proprietary client information while employed by Lamorte Burns & Co., Inc. and using the data to solicit and take away Lamortes clients immediately after resigning, Michael Walters and Nancy Nixon breached their duty of loyalty, tortiously interfered with Lamortes economic advantage, misappropriated confidential and proprietary information, and competed unfairly.
The Court in Lamorte determined that: The client information gathered from Lamortes files by Walters and Nixon was not generally available to the public, would not have been known to defendants but for their employment by Lamorte, went beyond mere client names, and gave defendants an advantage in soliciting clients after they resigned. Walters and Nixon knew Lamorte had an interest in protecting the information. The client information was confidential and proprietary.
The Supreme Court in Lamorte also held that: An employee may prepare to start a competing business while employed by the entity he will compete with, but may not breach the undivided duty of loyalty owed the employer while still employed by soliciting the employers customers or engaging in other acts of secret competition. Walters and Nixon breached the duty of loyalty by collecting protected information while employed by Lamorte for the sole purpose of gaining an advantage over Lamorte as soon as they resigned.
The Supreme Court in Lamorte held that: Walters and Nixon acted with malice and in a manner contrary to the notion of free and fair competition by using the secretly gathered confidential client data to effect a weekend coup, knowing that the delay in Lamortes discovery of their resignation and solicitation would work to their economic advantage Restrictive covenants are very useful for businesses to prevent an employee from taking your clients and your business.
        The NJ Model Jury charges recognize tortious interference with prospective economic advantage. The right of a person or company to pursue a lawful business and to enjoy the fruits and advantages of one’s industry or efforts are rights which the law protects against unjustified and wrongful interference by another person.
         Thus, the law protects a person’s interest in reasonable expectations of economic advantage.
         In order that the plaintiff may recover damages for a wrongful act, such wrongful act must be found to have interfered with a reasonable expectancy of economic advantage or benefit on the part of the plaintiff.
         Thus, plaintiff must prove the following elements:
         1.      The existence of a reasonable expectation of economic advantage or benefit belonging or accruing to the plaintiff;
         2.      That the defendant had knowledge of such expectancy of economic advantage;
         3.      That the defendant wrongfully and without justification interfered with plaintiff’s expectancy of economic advantage or benefit;
         4.      That in the absence of the wrongful act of the defendant it is reasonably probable that the plaintiff would have realized his/her economic advantage or benefit (i.e., effected the sale of the property and received a commission); and
         5.      That the plaintiff sustained damages as a result thereof.
Harris v. Perl, 41 N.J. 455 (1964); Middlesex Concrete, etc., Corp. v. Carteret Industrial Ass’n., 37 N.J. 507 (1962); Raymond v. Cregar, 38 N.J. 472 (1962); Rainier’s Dairies v. Raritan Val. Farms, 19 N.J. 552 (1955); Myers v. Arcadio, Inc., 73 N.J. Super. 493 (App. Div. 1962); Independent Dairy Workers Union of Hightstown v. Milk Drivers, etc., Local No. 680 30 N.J. 173 (1959); Restatement (Second) of Torts, Section 766 (1939).
       In determining whether the defendant committed a wrongful act, the ultimate inquiry is whether defendant unjustifiably interfered with plaintiff’s fair opportunity to conduct his/her legitimate business affairs.
       Everyone has a right to enjoy the fruits and advantages of his/her own enterprise, industry and skill, free from unjustified and wrongful interference. 
Thus, the law protects a person in the pursuit of his/her livelihood. 
       If the act complained of does not rest upon some legitimate interest, or if there is sharp dealing or over-reaching, or other conduct below the behavior of fair men similarly situated, the ensuing loss to the plaintiff should be redressed.
       Hence one who unjustifiably interferes with the contract (or reasonable expectation of economic advantage) of another has committed a wrongful act.
Cases: Harris v. Perl, 41 N.J. 455 (1964); Louis Schlesinger Co. v. Rice, 4 N.J. 169, 181 (1950), “a wrongful act is any act which in the ordinary course will infringe upon the rights of another to his/her damage, except it be done in the exercise of an equal or superior right”; Raymond v. Cregar, 38 N.J. 472, 480 (1962), “malicious interference is the intentional doing of a wrongful act without justification or excuse”; Sokolay v. Edlin, 65 N.J. Super. 112, 128 (App. Div. 1961), to sustain the allegations that defendant maliciously interfered with plaintiff’s employment there must be proof of (1) actual interference by defendant, and (2) the malicious nature of such interference. 

                                    Respectfully submitted,


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