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Competing Against a Non-Compete

Non-competes used to only show up in a few very specialized jobs.  They prevented sales people from running off to a competitor with their sales lists. Or scientists and engineers from bringing their inside design knowledge over to a competitor.
 
But these days, non-compete clauses are showing up even in basic jobs. Jimmy John's fast food restaurants are under investigation in New York for using non-compete clauses in that block workers for two years from going over to a competitor. 
 
This week, the Wall Street Journal reported that a Thomson-Reuters Corp. legal reporter was fired after it learned she had signed a non-compete when she was employed at a competitor. 
 
It is an odd state of the law.  If two competitors agree not to poach each other's employees, they could well face a major antitrust action.  But if they strike agreements with their own employees, they often can get the same result legally.
 
In Massachusetts, courts will not enforce non-competition agreements meant solely to protect employers from run-of-the-mill business competition. Marine Contractors Co., Inc. v. Hurley, 310 N.E.2d 915, 920 (1974). But a non-compete can be valid if the business can show that it was intended for the protection of "trade secrets, other confidential information, [and] ... the good will the employer has acquired through dealings with his customers" constitute legitimate business interests. Id.; see also Alexander & Alexander, Inc. v. Danahy, 21 Mass.App.Ct. 488, 488 N.E.2d 22, 28 (1986).
 
Since this depends heavily on the circumstances of the case, it is important to discuss these issues with an attorney. 

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