The Law of Noncompetition in Massachusetts has Undergone a Sea Change

By: Andrew P. Botti 

As of October 1, 2018 the noncompetition law of Massachusetts changed dramatically with the passage of G.L. 149, §24L.  The new statute provides a series of detailed requirements and qualifiers which are now “must haves” for non-compete agreements to be enforceable in a Massachusetts Court.

The major changes are as follows:

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The Persistence of Memory May Not Get You Off The Hook

By: Andrew P. Botti 

A new case out of the Superior Court Business Litigation Session makes clear that a former employee may not utilize information stored solely in his memory for the benefit of his new employer if that information is clearly “Confidential Information” and subject to a written employment agreement with restrictive covenants.  The case is Fidelity Brokerage Services LLC v. David Callinan and UBS Financial Services, Inc., Suffolk Superior Court CA No. 1884CV02098 – BLSI (February 7, 2019) (Davis, J). Continue reading

Susan Randall v. A.D. Makepeace Company

Screen Shot - MCAD Decision Lack of Probable Cause

Click the image above to read the Dismissal.

By Andrew P. Botti

On February 28, 2018, the Commonwealth of Massachusetts Commission Against Discrimination (MCAD) dismissed the case Susan Randall v. A.D. Makepeace Company.

The complainant filed this action alleging that she was discriminated against on the basis of age and sex.

The Commission issued the following determination in dismissing the case: “Based upon the Commission’s investigation, the Commission is unable to conclude that the information obtained establishes a violation of the statutes.  This does not certify that the Respondent is in compliance with the statutes.  No finding is made as to any other issues that might be construed as having been raised by this complaint.”

To read the Dismissal, click here.

Gabriel Care LLC vs. Borden Care LLC

By Andrew P. Botti

Gabriel Care vs. Borden Care

Commonwealth of Massachusetts Appeals Court – Gabriel Care vs. Borden Care

Gabriel Care, LLC vs. Borden Care, LLC, & another
For the first time a case involving competing visiting nurse associations has been reported out of the Massachusetts Appeals Court. Although by statute nurses are not subject to non-competes, there are still common law restrictions on what a present employee may do in preparation to compete.

“A duty of loyalty is imposed on an employee who occupies a position of trust and confidence.”  Gabriel Care, LLC v. Borden Care, LLC, et. al., 2016 Mass.App.Ct,  at page 10. With respect to a registered nurse who was planning to quit her current position with a foster care agency and start her own competing business, the Appeals Court held:

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Dodging the Bullet When Market Matters: Salesman Avoids Full Enforcement of Non-Competition Agreement with Ex-Employer

By Andrew P. Botti

A recent case out of the Superior Court Business Litigation session in Boston illustrates the Court’s inherent power – when sitting in equity – to fashion an injunction which appears fair to all parties, given the circumstances of the case. In Simplivity Corporation v. Hofdahl, the Plaintiff corporation attempted to stop an ex-salesman from working for a company which had developed a similar high tech software product. The salesman had signed a “Proprietary Information and Inventions Agreement” which, among other things, prohibited him for one year after termination of employment, from:

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