Having practiced corporate law in Silicon Valley for 15 years, I must say that there is nothing more frustrating for my clients, who are mostly closely held businesses in the San Jose area, than spending months or years training an employee only to have her leave and go on to compete with the company that trained her. In particular, I represent several staffing and consulting companies and have had to listen to their complaints of how unfair this is from the employer's perspective. Often, I have to tell these hard working, small business owners that there is almost nothing they can do (except pursue a claim against the employee for misappropriation of trade secrets). In 2008, the California Supreme Court decided Edwards v. Arthur Andersen LLP, making it clear that employee post-employment non-compete agreements are unenforceable in California except in certain very limited circumstances, including in connection with the sale of a good business involving goodwill.
Now, a new California Court of Appeals case, Fillpoint, LLC v. Maas (August 24, 2012) further enforces California's attitude towards fostering open competition and disfavoring restrictions on employees. In the Fillpoint case, a major shareholder and key employee signed both a three year non-compete agreement related to the sale of his stock, and a one year post-employment non-compete in his new employment agreement. The Court paid particular attention to whether the stock purchase agreement and the employment agreement should be read together as one document. The employment agreement alone would violate California's view of post-employment non-compete agreements as against public policy. However, in connection with the sale of the business, it could be enforceable. In this case, the shareholder/employee worked for the acquired company until the three year non-compete ran out, but then terminated his employment and went to work for the competition. The company claimed that the one year non-compete covenant in the employee's employment agreement should restrict him from such competing employment. The employment agreement non-compete provision specifically prohibited him from making sales contacts or actual sales to any customer or potential customer of the company, working for or owning any business that competes with the company, and employing or soliciting for employment any of the company's employees or consultants.
The court found that the two agreements should be considered integrated because the covenants were executed in connection with the sale or disposition of stock in the acquired company. In particular, they noted the integration clause in the documents, which stated that if there were any conflicts between the two documents, the stock purchase agreement would control. The court went on to consider whether the non-compete and non-solicitation covenants should be void and unenforceable, and found that they were because they were overly broad. In particular, the court noted the over-broad restriction against selling to potential customers of the company.
So what does this new case teach us? Non-competes are still extremely limited in California. And for me, as a business attorney in the Silicon Valley where mergers and acquisitions are either a way of life or an exit strategy for most businesses, this case reminds me how careful business lawyers have to be when drafting these provisions to make sure they are enforceable. Non-compete provisions should be clear that they are connected with the purchase and sale of a business, including any specific payment allocated to such non-compete covenant. And when drafting a non-compete, do not try to make it any broader than necessary to protect the goodwill being acquired.
There is another question that comes up often in my practice. After I am done explaining how most non-compete covenants are illegal and unenforceable in California, my small business clients almost always ask about whether they can include an employee non-solicitation agreement instead, to at least prevent the person leaving from taking key people with them. I really wish I could clearly and conclusively tell them that they can, but I am not so sure anymore. In the past, we could point to the Loral Corp. v. Moyes (1985) case which held that employee non-solicits are enforceable in California. However, the Arthur Andersen case and now the Fillpoint case make this position a lot less certain, even though they don't specifically overturn Loral corp.
Where does this leave us? It seems like we say this every year, but it is time to revisit your employment agreements and independent contractor agreements. If you insist on keeping an employee non-solicitation covenant, make sure it is as narrow as possible and that your agreement has a severability clause to (hopefully) save the rest of the document in the event a court finds the restrictive covenant to be void and unenforceable.
The information appearing in this article does not constitute legal advice or opinion. Such advice and opinion are provided by the firm only upon engagement with respect to specific factual situations. Specific questions relating to this article should be addressed directly to the author.