I recently learned of a case out of Eastern Virginia – Depuy Synthes Sales Inc. v. Jones – where employees of one medical device manufacturer (Depuy), left to join a competing company (Sky Surgical) and were quickly sued by their former employers. In the lawsuit, it was alleged the employees violated their contracts, (non-compete and non-solicitation…[Read More]
Question we are often asked: Is your non-compete reasonable and enforceable under Virginia law? Answer we most often give: Yes, if it is narrowly tailored to protect the legitimate business interest of the company… What does that really mean? This week, a Fairfax Virginia Judge http://valawyersweekly.com/2014/03/17/over-broad-geographic-limits-sink-noncompete/ held that it was not likely reasonable for a business…[Read More]
If you get paid by the hour, and not the task, is there an incentive to work any harder? Some would say, No. If you can’t take clients with you when you leave a job, or even contact them, is there any incentive to really fostering those great connections and relationships with those folks? Some…[Read More]
Dear Virginia Employee: I wanted to thank you for being glued to your smart phone. I wanted to thank you for treating that small device, owned by your employer, like it is your own. Checking your personal email, texting clients at all hours, and making disparaging remarks about your co-workers and boss in these text…[Read More]
Today is Friday. If you are anything like me, you are making plans in your mind for the weekend. Maybe a run. Maybe some laundry. Maybe you are the person who needs some long awaited alone time in your family. Maybe you are planning on wearing your PJs all Saturday with your 18 month old, so you…[Read More]
I ran across a well done article for HR professionals today on choice of law provisions in employment contracts. Imagine this scenario – COKE (yes, I mean the company getting all of the negative press for their Superbowl ad (which I didn’t see, but really people, who cares)) has salesmen and women across the country….[Read More]
So I had to keep watching Showtime’s House of Lies to see what happened with Marty Kaan’s threats to open his own consulting firm in LA, in competition with his long time employer Galweather Stern. And maybe I also had to keep watching because I think Kristen Bell’s character has the best work wardrobe I…[Read More]
Admittedly, I am late to the dance. As usual. I just watched my first episode of Showtime’s House of Lies this past weekend. I think I started with Season 1 or 2 – where Marty and the gang of super dressed consultants learn their firm has just been sold to a new company. This means…[Read More]
Seriously, I hear this all the time when clients call for non-compete advice:
“I signed the non-compete because they aren’t really binding or enforceable, right?” [No, they are actually very much binding in Virginia and enforceable unless a judge says otherwise.] “Yeah, but there is a technicality. You see, it says my start date was October 4, 2013 and I really started the 3rd, so its void, right?” [No. There is no law that says misstatements make your contract void.] “Oh, but I forgot to mention my job title changed since I signed it.” [So what?] “And the company moved from Virginia Beach to Chesapeake, so now they can’t sue me for competing in Norfolk, right?”
It depends on the circumstances, which are different in every case.
Searching for a “technicality” doesn’t mean what you think it does (thinking of Mandy Patinkin in Princess Bride saying, “You keep using that word. I do not think it means what you think it means.”)
Here is the bottom line: If you sign a contract, every single term in it is binding on you until a judge says otherwise. But some contracts are less likely to be enforced than others.
So the Supreme Court of Virginia issued a pretty big decision this week on how lower courts should approach and evaluate restrictive covenants in Virginia. The case is called Assurance Data Inc. v. Malyevac, and the Court said,”[A] demurrer cannot be used to decide on the merits whether a restraint on competition is enforceable.”
Translation: The big boss decided the other judges need to look at the details and evidence in a case before ruling a contract is unreasonable or unenforceable as a matter of law.
Here’s what it means for employees: It just got more expensive to fight your non-compete in a Virginia court. It is no longer enough to file a motion to dismiss without submitting evidence.
The Court’s decision will change how I approach these cases in the future, but I don’t think it is necessary or helpful to focus on the Court’s ruling right now. Why? Because the ruling affects how judges review evidence in non-compete cases. It in no way affects how you, the Virginia employee, should conduct yourself when you leave one business for another.