The Dual Effect of Multiple Restrictive Covenants

When an employee is bound by a noncompetition agreement, it is rare for the noncompete to be the exclusive restriction on the employee’s post-employment conduct. Rather, noncompetition agreements are generally accompanied by nonsolicitation and confidentiality agreements (among other things).

When there are multiple restrictions on the employee, the former employer may be adequately protected by the lesser restrictions (the nonsolicitation and the confidentiality obligations), thereby rendering the noncompete itself unnecessary. Thus, while inclusion of all of the restrictions is both typical and usually the best practice, the inclusion of all of the restrictions can backfire.

Although such an argument has met with limited success, it may nevertheless bolster an argument that the noncompete is not necessary – or imposes greater restrictions than necessary.

For lawyers in Massachusetts, compare Cognex Corporation v. Eichler, 2009 WL 5408166 (Mass. Super. Ct. June 17, 2009) (MacLeod-Mancuso, J.) (refusing to enforce the noncompetition agreement, “the Court notes that the confidentiality and non-solicitation clauses . . . are sufficient to protect [the former employer’s] goodwill with its clients, as well as its confidential information.”) with Boulanger v. Dunkin’ Donuts Inc., 442 Mass. 635, 643 n.12 (2004) (noting difficulty of enforcing nondisclosure agreement as opposed to noncompetition agreement and that the two are not mutually exclusive).

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