Category Archives: Non-Solicit

Remote Work & Employee Exits – New 7th Circuit Decision Faults Employer for Not Demanding Deletion of Company Data from Personal Devices

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Remote Work, Non-Compete, Confidential Information, Personal Devices

Remote work grew exponentially during the pandemic and seems to have become a permanent feature of working life in the U.S. According to a survey by Pew Research, 60% of employees whose jobs can be performed remotely are still working from home all or most of the time.[1] Another 18% of such employees report working from home at least some of the time.

Along with the explosion of remote work came a massive increase in employees using their own computers, tablets and mobile phones for work. Allowing employees to use their own devices brings with it the risk that that company data will migrate to the devices.

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Illinois Adopts Comprehensive Non-Compete Statute Effective January 1, 2022

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Non-Compete, Non-Solicit, Employment Agreement, Restrictive Covenant, Illinois

Governor Pritzker has signed a bill creating Illinois’ first comprehensive statute regulating the use of non-compete and non-solicit covenants. The law establishes bright-line, compensation-based rules regarding which employees can be required to sign such covenants and creates a mandatory pre-signature process designed to protect employees. The statute also codifies existing Illinois case law without changing it substantially.

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Employer Gets Dinged When Illinois Court Refuses Request for Partial Enforcement of Non-Compete Against Low-Wage Worker

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Confidentiality Clauses, Non-Compete, Non-Solicit, Confidential Information, Illinois

Bad facts make bad law, the saying goes. In the non-compete world, it might more aptly be said that filing a weak lawsuit against a sympathetic defendant makes bad law.

A recent decision by the Illinois Appellate Court is a good example. The court refused to enforce a non-solicitation agreement that many judges would have upheld under the right circumstances. The likely (if unspoken) reason? The defendant was a low-wage employee who fixed car dents for a living and who hadn’t done anything particularly wrong after quitting his job.

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New Indiana Physician Non-Compete Law Protects Patients’ Interests

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Non-compete, non-solicit, Texas, Illinois, Indiana, Texas, physician non-compete

When it comes to non-competes in the health care industry, the doctor/patient relationship has sometimes taken a back seat to business considerations. That is changing in Indiana, where a new law adds requirements for physician non-competes that will make it easier for patients to follow their doctor to a new practice group or medical center.  Continue reading →

1st Circuit Bars Pharma Executive From Working For Competitor For 18 Months

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Non-Compete, Non-Solicit, Nondisclosure, CVS, PillPack, Rhode Island

After working for nearly three decades at CVS Pharmacy, Inc., including in senior-level jobs, John Lavin accepted a new position at a company called PillPack LLC, a direct competitor of CVS. PillPack is an online retail pharmacy founded in 2013 and wholly owned by Amazon.

At four points during his employment as a senior vice president, CVS required Lavin to sign a restrictive covenant agreement (“RCA”). Each RCA contained non-competition, non-solicitation, and nondisclosure covenants. The RCAs defined competitors of CVS but contained no geographic limitations. Each time Lavin signed a RCA, he was awarded CVS stock.

CVS Obtains A Preliminary Injunction Enforcing The Non-Compete

CVS sued Lavin and moved for a preliminary injunction, which was granted. Continue reading →

Blue Pencil Really “Just an Eraser” — Indiana Courts Cannot Fix Overbroad Non-Competes By Adding New Terms

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Non-Compete, Non-Solicit, Indiana, blue pencil doctrine, Employment Agreements

The Indiana Supreme Court[1] has reaffirmed its narrow interpretation of the “blue pencil” doctrine, holding that courts may not add terms to an overbroad non-solicitation or non-competition provision to make it reasonable even if the contract has a reformation clause.

As the court puts it: “This doctrine … is really just an eraser.”   Continue reading →

Court Compels Arbitration of Non-Compete Claim Based on Arbitration Clause in Separate Agreement

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Non-Compete, Non-Solicit, Arbitration Provision, DTSA, Illinois

A federal court, in a non-competition setting, had to untangle the relationship between three separate agreements. One contained an arbitration provision but the others did not. Ultimately, the court determined that some parties had to arbitrate some claims but that others did not have to arbitrate.  Continue reading →

Indiana Appellate Court Upholds Liquidated Damages in Non-Compete and Non-Recruitment Provisions

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Employment Agreements, Liquidated Damages, Non-Solicit, Indiana, Non-Compete

by Ariane M. Janz

Liquidated damages provisions are supposed to simplify non-compete cases, but disputes over the enforceability of such provisions can have the opposite effect, complicating the matter and adding uncertainty. If a court determines that the liquidated damages are grossly disproportionate to the employer’s actual loss, the court may refuse to enforce the liquidated damages provision as an impermissible penalty.  Continue reading →

Restrictive Covenant Drafting: Ten Tips to Avoid the Traps

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Non-Compete, Non-Solicit, Restrictive Covenants

Tip 1: Choose your choice of law wisely and FIRST.

  • The law you choose to apply to a restrictive covenant is regularly outcome determinative in enforcement proceedings (e.g. Illinois’ rule on at-will employment as consideration, North Carolina’s rule on blue-penciling, Louisiana’s law on geographic scope, Florida’s statute on presumptive validity, etc.) 
  • And there are sometimes three or four states from which to pick:
    • where the employer or seller is located (state of incorporation or principal place of business)
    • where the employee or purchaser is located
    • where the place of performance is located.  
  • So take the opportunity to pick the law that is most likely to do what your client already presumes will be done: your restrictive covenants will be enforced.
  • Relatively speaking, Delaware –often the default state of incorporation– is a solid and defensible choice.

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