The 1st Circuit has recently issued two noncompete decisions: Officemax, Inc. v. Levesque and EMC Corp. v Arturi. These decisions suggest the need for revisions to certain provisions in existing noncompete agreements and similar restrictive covenants. They are as follows:
- It may no longer be sufficient to use generic successors and assigns language. The language should be made to expressly apply to the restrictive covenants.
- In the absence of an express tolling provision, a noncompete likely cannot be enforced (for equitable relief) even if the passing of the restrictive period is caused by the former employee’s secret conduct or the court’s protracted delay.
In addition, below are two other restrictions to consider adding to nonsolicitation agreements:
- Prohibit the employee from notifying customers of his/her new contact information, or require that any such notification be presented to you for review and approval before it is sent.
- Prohibit the employee from accepting business (not just from soliciting business) from former customers.
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