Can an employer terminate garden leave clause payments? Is “I don’t remember” a viable defense to a noncompete? Are NDAs and nonsolicits adequate substitutes for a noncompete? When will courts reform overly broad noncompetes? The Superior Court’s recent decision in Misiaszek v. Korn Ferry (Squires-Lee, J.) provides guidance on each.
Bonus: it’s a new decision applying the Massachusetts Noncompetition Agreement Act (MNAA), G.L. c. 149, § 24L
Background
Misiaszek, an accomplished business school professor, joined Korn Ferry in June 2022 as Head of Research.
Her offer letter contained a noncompete that provided in relevant part as follows:
[Y]ou agree that during the term of your employment and for the six month period immediately subsequent to the expiration of your employment for any reason other than your involuntary termination without cause or layoff, you will not become an employee, independent contractor, director, manager or agent of any Competitor, where any part of your duties or responsibilities will involve the rendition of Competitive Services, within the United States, provided that Korn Ferry continues to pay you your then existing base salary during that six month time period.
* * *
The term “Competitive Services” shall mean all services provided by Korn Ferry, including but not limited to executive search, recruitment process outsourcing, recruiting, staffing, employee search, talent consulting & strategy, organizational consulting and strategy, DE&I, compensation & total rewards consulting, workforce transformation including ESG, leadership development and coaching, and development for sales customer service and project management, digital products relating to those services, and/or the management of those activities for or on behalf of others. The term “Competitor” means any person, firm or entity, or any division, department or business unit of any person, firm or entity, rendering or providing in whole or in part any of the Competitive Services, either for its own account or the account of others.
(Emphasis added.)
At Korn Ferry, Misiaszek led a six-person research team. The group produced 24-30 research projects per year, which became the source of articles consultants used with clients. Topics were set by KFI leadership and a review board, both of which included Misiaszek. She also gave presentations to clients, including to at least three healthcare clients.
On May 25, 2025, Misiaszek resigned, effective June 6, 2025, to become President of Leadership Solutions at AMN Healthcare. Korn Ferry first tried to convince her to stay, but, on May 31, 2025, when unsuccessful, “elected” to invoke her noncompete.
Surprisingly, Korn Ferry explained that it did so not only to protect “commercial and strategic knowledge” but also “to send a message to hiring firms not to recruit Korn Ferry talent and to Korn Ferry employees not to go to competitors.” This latter purpose, of course, raises questions about the legitimacy of the enforcement.
Analysis
The court addressed two main questions: (1) whether the noncompete complied with the MNAA’s garden leave clause requirements and (2) whether it protected a legitimate business interest. In doing so, the court provided helpful guidance on important, recurring issues in noncompete cases.
Garden leave clause requirements
The court explained that, to be enforceable under the MNAA, a noncompete must “be supported by a garden leave clause or other mutually-agreed consideration . . . specified in the noncompetition provision’ which shall provide for payment on a pro-rata basis during the ‘entirety of the restricted period, of at least 50 percent of the employee’s highest annualized base salary paid by the employer within the 2 years preceding the employee’s termination;[1] and (ii) except in the event of a breach by the employee, not permit an employer to unilaterally discontinue or otherwise fail or refuse to make the payments[.]’ G. L. c. 149, § 24L(b)(vii).”
Misiaszek argued that the contractual language “provided that Korn Ferry continues to pay you your then existing base salary during that six month time period” violates the MAA by “not requir[ing] Korn Ferry to pay Misiaszek for the entire duration of her restricted period . . . absent [] Misiaszek’s breach of the non-compete provision.”
The court disagreed, calling it a “strained reading.” Instead, the court interpreted the contract’s use of the term “provided” to mean that Misiaszek’s obligation not to compete was conditional — if Korn Ferry stopped paying, Misiaszek would be free to compete.
The court also noted that section 24L(a) of the MNAA “contemplates that an employer need not pay garden leave if it waives ‘the restriction upon post-employment activities.’ G. L. c. 149, § 24L(a).”2
But this highlights an unresolved tension: section 24L(a) contemplates waiver, while section 24L(b)(vii) prohibits unilateral discontinuance.
Specifically, the waiver in section 24L(a) appears limited: a garden leave “shall become effective upon termination of employment unless the restriction upon post-employment activities are waived by the employer . . . .” Because the statute is addressing when the restriction becomes effective, the waiver is arguably limited to the period before termination of employment — not after. That reading would square with section 24L(b)(vii), which contemplates a near-uninterruptible payment obligation: “To constitute a garden leave clause within the meaning of this section, the agreement must . . . except in the event of a breach by the employee, not permit an employer to unilaterally discontinue or otherwise fail or refuse to make the payments . . . .”
Indeed, allowing employers to waive the restriction at any time would effectively gut the prohibition on unilateral discontinuance, enabling the employer to receive the benefit of the restriction while later cutting off payment. Consider this scenario: An employee resigns and the employer invokes the garden leave clause. Relying on those payments, the employee complies, turning down a lucrative competitive job in favor of a lesser-paying, noncompetitive role. The employer, having received the benefit of the garden leave, then waives the garden leave clause, stopping (some might say “discontinuing”) payment, and thereby leaving the employee with the worst of both worlds: lost opportunity and lost compensation.
That scenario was not raised here, but is bound to arise if the MNAA allows it.
Further, and more importantly, the court concluded that there was no “discontinuance” under the contract because Misiaszek’s obligation not to compete was conditional, not absolute: if the payments were not made, her obligation terminated.
The statute, however, prohibits unilateral discontinuance of the payments by the employer, not discontinuance of the employee’s obligation. Presumably, the court viewed the payment obligation itself as conditional, also not absolute, and therefore its discontinuance did not violate section 24L(b)(vii). In that sense, the court’s conclusion fits within the statutory text, though it did not reach the deeper tension between section 24L(a) and 24L(b)(vii).
Legitimate Business Interests
The court spent the bulk of its analysis on the question of whether the noncompete serves a legitimate business interest. This is where the court provided a wealth of helpful analysis and cites for Massachusetts noncompete practitioners handling cases like this, including the following key points.
When garden leave is not a noncompete under the MNAA
As a threshold matter, Misiaszek argued that the noncompete was not necessary to protect a legitimate business interest and therefore violated both the MNAA and common law. There is good reason for that: If the noncompete qualifies as a garden leave clause, it arguably is not a noncompete regulated by the MNAA. For more reading on this issue, see Massachusetts Noncompete: Consideration Happens, But Not During Garden Leave and Garden Leave Is Not a Nonconcompete under Massachusetts Law.
Confidential information as the legitimate business interest
Korn Ferry did not argue that the noncompete was necessary to protect trade secrets or goodwill. Instead, it relied on the protection of confidential business information. Citing the MNAA (G. L. c. 149, § 24L(b)(iii)), Automile Holdings, LLC v. McGovern, 483 Mass. 797 (2020), and Harrell v. Backstage Salon & Day Spa, Inc., No. 2184CV01795-BLS2, 2022 WL 618681, at *4 (Mass. Super. Feb. 22, 2022) (Salinger, J.), the court noted that confidential information is a protectable interest under both the MNAA and common law.
The confidential information identified by Korn Ferry included “performance, goals, succession plans, strategies, and other non-public information,” client “key client” lists, “confidential information about . . . client’s goals,” “confidential strategic and budget plans and . . . confidential client-related strategies,” and “confidential reports about Korn Ferry’s capital expenditures and investments in human resources.” The court determined that this information was sufficient to serve as a legitimate business interest protectable by the noncompete.
I should note that this issue goes straight to a perennial source of consternation for restrictive covenant and trade secret lawyers: Where is the divide between trade secrets and the broader category of confidential information?3 Why the information in this case would not be considered a trade secret under the Massachusetts Uniform Trade Secrets Act (MUTSA) or the federal Defend Trade Secrets Act (DTSA) is not clear. Indeed, other cases have certainly found similar information to qualify as a trade secret.
But perhaps more significant to the outcome was that the noncompete was only six months and, as is common in cases like this, Misiaszek “forwarded to her home email address documents about Korn Ferry’s client coaching models.” That is always a big no-no! See The Exit Plan: Being a Good Leaver – How to Leave Your Job Safely and Not Get Sued.
When “I don’t remember” isn’t enough
Misiaszek argued that the noncompete did not protect a legitimate business interest because she had no access to confidential information and, even if she had, she did not remember any of it.
Though acknowledging that she may in fact not recall, the court rejected the defense:
. . . Misiaszek misapprehends Korn Ferry’s right to protect its confidential information. . . . [S]he was provided and had access to confidential Korn Ferry client and business information and there are myriad ways that information might be useful to her in the position she was offered at AMN.
(Emphasis added.)
Most significantly, the court explained that “a claimed lack of memory cannot defeat enforcement of a valid non-compete.” (Emphasis added.)
And for those who recall the much-beloved contracts professor Wally Miller — who often reminded us that “all wisdom is in the footnotes” — the court did not disappoint. In a footnote, the court observed: “If it could, no non-compete would be enforceable.” (Emphasis added.)
When NDAs and nonsolicits aren’t enough
Equally important, the court found Misiaszek’s nondisclosure agreement and nonsolicit were inadequate substitutes for the noncompete. “The confidential information to which Misiaszek was privy would assist her in the position she seeks to fill – essentially running a healthcare search services group for AMN – regardless of whether she disclosed it or solicited Korn Ferry clients. See G. L. c. 149, § 24L(b)(iii).”
This is particularly significant because section 24L(b)(iii) provides that a “noncompetition agreement may be presumed necessary where the legitimate business interest cannot be adequately protected through an alternative restrictive covenant, including but not limited to a non-solicitation agreement or a non-disclosure or confidentiality agreement.”
In effect, the court seemed to consider the issue from the other side: if the confidential information could be protected by an NDA or nonsolicit, the noncompete would not be enforceable.
Instructively, the court treated the inadequacy of other covenants as self-evident.
Reformation of a noncompete without a proposal
The court acknowledged that the noncompete was broad, but recognized that, if reformed, it would still apply to Misiaszek’s proposed role:
[A]lthough the breadth of the non-compete presents a challenge, I am persuaded that it applies in this situation to the position AMN offered Misiaszek. See G. L. c. 149, § 24L(d) (‘A court may, in its discretion, reform or otherwise revise a noncompetition agreement so as to render it valid and enforceable to the extent necessary to protect the applicable legitimate business interests.’).
Instructively, the court did not discuss Perella v. United Site Services Northeast, Inc., 104 Mass.App.Ct. 1106 (2024), a recent case in which the Appeals Court explained, “it is incumbent on the party seeking to enforce an overly broad noncompete to provide the court with the specific narrowing it is proposing.” (Emphasis added.) That said, as I explained in a prior post on that case, Perella “does not seem to make this a categorical requirement. Rather, it appears to leave to the trial court’s discretion whether to reform an agreement if the trial court deems it appropriate to do so — even without a motion or specific proposal.” And that seems to be what happened here.
Takeaways
Garden leave clauses conditioned on continued payments — even if the employer can stop paying — may still be enforceable.
“I don’t remember” the information is not a reliable defense to a noncompete.
NDAs and nonsolicits may be inadequate to protect confidential information if the information “would assist” a competitor.
Reformation is flexible and courts may narrow the restriction even without a proposal by the employer.
[1] The language of the statute is: “The noncompetition agreement shall be supported by a garden leave clause or other mutually-agreed upon consideration between the employer and the employee, provided that such consideration is specified in the noncompetition agreement.” Although not necessary to the decision, the court seems to assume that the requirement to specify consideration applies to not just the “mutually-agreed consideration” option, but to garden leave as well. So, if the details of a garden leave payment are set out in a separate document (e.g., an equity award, long-term cash award, or some other document) rather than in the noncompete itself, the noncompete may not be enforceable.
[2] The language, in the definitions section, is as follows: “‘Garden leave clause’, a provision within a noncompetition agreement by which an employer agrees to pay the employee during the restricted period, provided that such provision shall become effective upon termination of employment unless the restriction upon post-employment activities are waived by the employer or ineffective under subsection (c)(iii).”
[3] We spend countless hours debating this issue at The Sedona Conference, Working Group 12 (Trade Secrets). In fact, to help focus the discussion, prepared what turned out to be a very controversial Venn diagram: 