In the last segment of this series, we focused on concerns for employers in drafting and enforcing restrictive covenants.  The choices for employees are fewer, and none of them are good.   Employees are generally asked to sign restrictive covenants at two points:  either at the beginning of their career or upon a promotion or other significant improvement in employment status.  Such agreements diminish employees’ choices should they want to move on from their current employment, whether or not the restrictions are actually enforceable.

Some employers require employees to sign a restrictive covenant at the outset of their employment.  If the employee was recruited and has other employment choices, the employee has some bargaining power to reduce the duration or scope of the restrictions.  But this is seldom the case, and the law recognizes that employees generally have limited (or no) bargaining power in these situations.  The law disfavors restrictive covenants for precisely this reason:  the agreement imposes a post-employment restriction that may hinder the employee’s ability to earn a living at a time when the employee has little or no bargaining power to negotiate the restriction.

This calculus changes a little when the employee is required to sign a restrictive covenant in conjunction with a promotion or other benefit, such as participation in a stock option or bonus program.  Then the employee has to decide whether the value of the promotion or other benefit is enough to justify agreeing to the post-employment restriction.  Where it is not, the employee can refuse to sign, forcing the employer to decide how valuable this employee is to the employer.  However, the employee should factor into this decision that the employer is free to terminate the employee for refusing to sign.  And, this might be a good thing, as the employee will be leaving the employer without a noncompete. 

Frequently, employees breach the restriction without consulting an attorney first based on the widely held, mistaken, belief that courts do not enforce noncompetes.  Let’s be clear:  courts will enforce noncompetes where the law permits them to do so.  More importantly, the old employer will sue the employee and the employee’s new employer for breach of the agreement.  The new employer may terminate the new employment to avoid the costs of litigation.  Litigation regarding these matters is expensive, time-consuming and stressful.  Practically speaking, most employers will refuse to hire an employee with a restrictive covenant even if it is unenforceable for any number of technical reasons we have discussed in this series. 

At the very least, employees should consult an attorney prior to signing, even if they have limited bargaining power, to understand the restrictions in place.  We can help employees with that review, and we can help employees navigate the minefield of finding new employment when they have a noncompete in place. 

Reprinted with permission from the February 26th, 2018 issue of The Legal Intelligencer. (c) 2018 ALM Media Properties. Further duplication without permission is prohibited.

At the end of 2017, legislators in Pennsylvania proposed legislation to ban noncompete agreements.  The proposal is consistent with a legislative trend in other states.  In New Jersey, the Senate proposed a bill (Senate Bill 3518) that would place limits on the ability to impose noncompetes (there is a similar Assembly Bill, A5261).  Both of these bills reflect already existing challenges in drafting and enforcing restrictive covenants. 

Pennsylvania’s House Bill 1938 was referred to the Labor and Industry Committee on November 27, 2017.  The Bill recites a declaration of policy that reads like a defendant’s brief in a preliminary injunction case.  It states, summarizing, that the Commonwealth has an interest in the following:  allowing businesses to hire the employees of their choosing; lowering the unemployment rate; allowing employees to make a living wage; allowing employees to “maximize their talents” to provide for their families; promoting increased wages and benefits; promoting innovation and entrepreneurship; promoting unrestricted trade and mobility of employees; allowing highly skilled employees to increase their income; attracting high-tech companies; disfavoring staying in jobs that are not suited to qualifications; and disfavoring the practice of leaving the Commonwealth to seek better opportunities. 

The Bill defines a “covenant not to compete” broadly as an agreement between an employer and employee that is designed to impede the ability of the employee to seek employment with another employer.  Interestingly, the Bill does not seem to distinguish between a non-solicitation restriction and non-competition restriction.  The Bill prohibits all “covenants not to compete,” and does not allow a court to rewrite the covenant not to compete to make it enforceable. 

There are exceptions:  “reasonable” covenants not to compete that relate to an owner of a business; covenants not to compete involving a dissolution or disassociation of a partnership or a limited liability company; and “reasonable” covenants not to compete that were in place prior to the effective date of the statute.  One presumes that previous case law regarding what constitutes a “reasonable” restriction on competition will apply. The Bill would allow an employee to recover attorneys’ fees and damages upon prevailing in a suit brought by the employer related to the enforcement of a covenant not to compete.

The historical reluctance of courts to enforce restrictive covenants as written has certainly impacted how and when employers use such documents.  Employers (with their attorneys) have attempted to draft documents that a court will enforce, and given careful thought to filing suit in the event of a breach.  This Bill, however, would change that calculus dramatically; not just because of the outright ban on arguably both noncompete and nonsolicitation agreements, but also because of the attorneys’ fees provision.  Employers who get it wrong will pay attorneys’ fees and damages, including punitive damages, to the employee.  It may no longer be wise to file preliminary injunctions as a deterrent or a means to a resolution.  If passed, this Bill would require employers to focus on two important concepts going forward, one legal, and one not legal:  retention of key employees and protection of trade secrets. 

The Bill remains with the House Labor and Industry Committee and does not, at this time, appear on that committee’s schedule. 

The New Jersey Bill would also impact the legal and economic strategy of using and enforcing restrictive covenants.   Introduced on November 7, 2017, the Bill recites public policy goals with regard to covenants not to compete similar to those recited in the Pennsylvania Bill.  The Bill defines a restrictive covenant more narrowly than the Pennsylvania Bill:  agreements under which the employee agrees not to engage in certain specified activities competitive with the employer after the employment relationship has ended.   The New Jersey Bill does not ban covenants not to compete, but instead imposes a series of restrictions that would seriously impact how noncompetes were enforced and drafted, and would have required employers to pay employees for the period of the restriction.  The New Jersey Bill died in committee. 

Both Bills reflect the historical judicial reluctance to enforce noncompetes, and change the economics and legal issues related to those agreements dramatically.  They are in line with restrictions in other states like California, North Dakota and Oklahoma.  Most importantly for practitioners, they reflect that reliance on a well-drafted choice of law provision may not save the day.  Case and statutory laws on this particular topic are not really predictable in the usual way.  Just by way of example, Massachusetts has eight outstanding bills related to the topic, all of which were the subject of hearing on October 31, 2017, and both Vermont and New Hampshire proposed outright bans earlier this year.   Even the results of upcoming elections could change the statutes in any particular state.

These bills proposed late in 2017 reflect current challenges in drafting and enforcing agreements that are enforceable and highlight the importance of considering each decision carefully.  Drafters must consider carefully the specific interest an employer is attempting to protect, but even the most careful drafting may not survive new legislation.   It will be interesting to see whether, and in what form, legislatures may codify some of these challenges in the future. 

Patricia Collins is a Partner with Antheil Maslow & MacMinn, LLP, based in Doylestown, PA. Her practice focuses primarily on employment, commercial litigation, and health care law. To learn more about the firm or Patricia Collins, visit www.ammlaw.com

By Patricia Collins

Reprinted with permission from the February 28th edition of the The Legal Intelligencer © 2017 ALM Media Properties, LLC. All rights reserved.Further duplication without permission is prohibited

The Pennsylvania Superior Court, in Metalico Pittsburgh v. Newman, et al (No. 354 WDA 2016, April 19, 2017), dealt a blow to employees attempting to avoid the application of a non-solicitation covenant. 

In Metalico, two employees, Newman and Medred, executed employment agreements containing a covenant not to solicit customers, suppliers and employees during the “Post-Employment Period.”  The Post-Employment Period varied depending upon the manner of the termination of employment, and commenced upon the last day of employment with Metalico.  At the end of the three-year period, Metalico terminated the employment agreements, but continued to retain Newman and Medred as “at-will” employees, and recited new compensation and other terms of employment.  These terms differed from those contained in the employment agreement.  Newman and Medred were terminated one year later.  Metalico filed suit against Newman and Medred, alleging that they were violating the non-solicitation covenant in their subsequent employment. 

On the eve of a preliminary injunction hearing, Newman and Medred filed a Motion for Partial Summary Judgment, arguing that the employment agreements containing the non-solicitation covenants had terminated, and therefore the non-solicitation provisions no longer applied.  They argued that the agreement to continue as “at-will” employees acted as a novation of the employment agreement.

The trial court agreed with Newman and Medred, and granted their motion for partial summary judgment.  But the Superior Court did not agree.  Instead, the Superior Court found that the covenant remained in place pursuant to a survival provision in the employment agreement.  That provision stated that if employment under the agreement “expires,” the agreement continues in effect “as is necessary or appropriate to enforce” the non-solicitation covenant. 

The trial court found that upon converting Newman’s and Medred’s status to “at will” employees, the parties had stated new terms for the employment relationship going forward.  In so doing, the parties did not recite that the non-solicitation provision would stay in place.  The failure to continue the compensation and benefits provided in the employment agreement, in the trial court’s view, invalidated the non-solicitation covenant.  The trial court justly noted: “Metalico cannot claim the benefits of its bargain while denying its employees the same.” 

The Superior Court disagreed, noting that because the survival language was included in the employment agreement, it constituted the bargained-for benefit for the employees.  The Superior Court rejected any argument that there was a failure of consideration, because failure of consideration only applies if the consideration was never received – the employees here did receive three years of the promised compensation and benefits under the agreement.  The Superior Court refused to find that the parties to the employment agreement intended to terminate and extinguish the previous agreement, thus extinguishing the non-solicitation covenant as well.  In so doing, the Superior Court relied upon Boyce v. Smith-Edwards-Dunlap Co., 580 A.2d 1382 (Pa. Super. 1990).  However, the Boyce case dealt with the use of the restrictive covenant as a defense to a claim raised by the employee.

It is well-settled that restrictive covenants in employment agreements are disfavored under Pennsylvania law.  Courts, including the Superior Court, have refused to enforce such agreements on technicalities.  For example, in Socko v. Mid-Atlantic Systems of CPA, Inc., 99 A.3d 928 (Pa. Super. 2014), the Superior Court refused to enforce a covenant not to compete in an employment agreement entered into after the commencement of employment and not accompanied by any beneficial change in the employee’s status, but which recited that it was signed “under seal” under the Uniform Written Obligations Act.  The Court found that a seal does not provide adequate consideration to enforce a restrictive covenant.  Instead, the Superior Court noted, there must be “actual valuable consideration.”  The holding in Socko left employment law practitioners and litigators with the belief that there are no “gotchas” when it comes to restrictive covenants. 

Metalico appears to change that.  Metalico voluntarily agreed to let the employment agreement terminate and to continue employment on an “at-will” basis.  This change of status benefits Metalico, leaving it free to terminate the employees or change their compensation and benefits at will (thus the name) and without concern about the terms of a written agreement.  The employees lost these protections.  The practical result of the Superior Court’s holding is that the employees lost the protections of the agreement, but retained their post-employment obligations.  This is inconsistent with Pennsylvania’s historical animosity towards these restrictive covenants, and appears to truly represent a “gotcha” for these employees. 

Metalico expands the universe of enforceable restrictive covenants.  This is not an uncommon fact pattern, and one which might have given an employer’s attorney pause prior to filing for a preliminary injunction in the past.  The holding could have the impact of reducing the care required in drafting, terminating and enforcing disfavored restrictive covenants, and eliminating some of the defenses available to employees seeking to avoid the covenant.  Interestingly, nowhere in the opinion does the Superior Court recite the oft-cited language that such covenants are disfavored in the law.  It will be interesting to see if the Supreme Court takes the opportunity to do so on appeal. 

Patricia Collins is a Partner with Antheil Maslow & MacMinn, LLP, based in Doylestown, PA. Her practice focuses primarily on commercial litigation, employment and health care law. To learn more about the firm or Patricia Collins, visit www.ammlaw.com.

Topics deemed “hot” in the context of mergers and acquisitions ebb and flow just as they do in all other aspects of legal study.  When I first started practicing in the early 80s, I remember being taught to carefully include any post transaction covenant not to compete in the sale document as well as in a stand-alone agreement between buyer and seller(s). This seemingly unnecessary duplication of the post transaction obligation imposed on the seller(s) was required to provide multiple legal arguments for enforcing and amortizing the obligation and drive up the aggregate sums payable to the seller(s).  Specific party agreement as to the allocation of the purchase price (and completion of Form 8594 for asset acquisitions) was deemed worthy of considerable negotiation.

Recent Tax Court and First and Ninth Circuit opinions, and this office’s own fourth quarter 2011 transactional work, seem to suggest the elusive covenant not to compete and personal goodwill have again become  important tools for tax planning purposes.  Who owns the goodwill is particularly relevant in the context of hospital purchases of physician practices where the fair market value of hard assets might not be enough to cover malpractice tail insurance let alone justify the physicians’ loss of control over their practice.
 
Under Section 197, certain intangibles must be amortized by the buyer, on a ratable basis, over a 15 year period beginning with the month in which such intangible is acquired. A Section 197 intangible includes “any covenant not to compete…entered into in connection with an acquisition (directly or indirectly) of an interest in a trade or business or substantial portion thereof.” But more and more courts refuse to enforce covenants not to compete in the context of the physician- patient relationship, concluding that such covenants are against public policy unless tailored to actually mean only non-solicitation.

Nevertheless, it has been common practice for business lawyers to continue to suggest that each physician in a group practice enter into an employment agreement or other entity document that imposes (or at least tries to impose) a covenant not to compete during and post-employment.  In the absence of such pre-existing non-compete and specific claim to ownership of patient records, however, the selling shareholders and not the entity are arguably possessed of “personal goodwill”, an intangible asset owned by the selling shareholders. To avoid the double tax imposed upon the sale by a C corporation,  maximize the benefits of a meaningful allocation of the purchase price in a sale transaction to intangibles or justify a larger signing bonus, it may be wise to reconsider owner non-compete provisions before the eminence of a sale transaction makes it too late to do so.