Category Archives: Non-Compete Agreements

Preliminary Injunction to Enforce Pennsylvania Noncompete Agreement Denied

In the past year we have seen a substantial increase in the number of Pennsylvania employees who are seeking our representation as a Pennsylvania noncompete agreement attorney. It is critical to understand that the terms, noncompete (or restrictive covenant), do not have a uniform meaning and the enforceability of an employee’s noncompete agreement will be only be able to be determined based on an analysis of the actual words in the employee’s noncompete agreement, as well as key facts pertaining to the employee’s job and the employer’s business operations.

The need to focus on each word in a noncompete agreement is best illustrated by a case recently decided in the United States Court for the Eastern District of Pennsylvania, Almac Clinical Services v. Aeri Park, E. D. Pa. no. 16-4896 (O’Neill, J.) (October 11, 2016), where the court denied the employer’s motion for a preliminary injunction

Restrictive covenants are disfavored under Pennsylvania law, are strictly construed and must be carefully reviewed to ensure their reasonableness.  In interpreting a noncompete agreement, which is a contract, Pennsylvania courts apply the plain meaning rule of the interpretation of contracts, which assumes that the intent of the parties to an instrument is embodied in the writing itself, and when the words are clear and unambiguous, the intent is to be discovered only from the express language of the agreement. Contracts must be read to avoid ambiguities if possible, and specific provisions ordinarily control more general provisions.

For an employer to obtain a preliminary injunction in Pennsylvania, a court must assess the employer’s reasonable probability of eventual success in the litigation, whether the employer will be irreparably injured if the injunction is not granted, the possibility of harm to other interested persons from the grant or denial of the injunction, and the public interest.  If the employer fails to show either a likelihood of success, or a fails to demonstrate irreparable injury, a court must deny the preliminary injunction.

In the Almac litigation, two entities, Almac Sciences and Almac Clinical, filed a motion for a preliminary injunction against a former employee, Dr. Aeri Park and her new employer, Triclinic Labs, seeking an injunction to prevent the employee from working for her new employer for six months based on an employment agreement that contained “post termination covenants” regarding non-interference, non-solicitation and noncompetition. The employer’s lawsuit set forth causes of action for breach of post-employment covenants under Pennsylvania law; violations of the Pennsylvania Uniform Trade Secret Act; and tortious interference with existing and prospective contractual relations.

At the onset of employment, the employee signed both an offer letter and an employment agreement which contained several post-termination restrictive covenants and provides that for a period of six months after termination, the employee shall not engage in any business activity that is competitive in any way with the business of the Company in the United States, Europe, and any foreign country in which the Company does business or is planning to do business.

The employee, Dr. Park, an expert in solid-state chemistry  was involved in the early solid-state research and invented some of the crystalline forms for which solid-state testing is used. When hired, Dr. Park was tasked with launching a lab for Almac Sciences that would perform both solid-state testing and analytical testing. Ultimately, a corporate decision was made that there was insufficient demand for solid-state testing in the United States and the corporation declined to pursue solid-state testing, thus, Almac Sciences performs only analytical testing.  Dr. Park spent the last year of employment working for the Almac corporation in the United Kingdom but instead of managing the solid-state lab, she performed sales duties.  Dr. Park resigned and accepted employment with Triclinic Labs, a small contract research organization specializing in solid-state chemical and solid-state analytical work for pharmaceutical and other clients around the world. Triclinic was aware of the non-compete obligations and determined that during her first six months of employment, Dr. Park would focus on “inward-facing activities”, involving no client contact, no research and no consulting, other than the one project for which she had obtained a waiver.

In applying Pennsylvania contract law, where a contract is clear and unambiguous, a court may look only to the express language of the agreement to ascertain the parties’ intent. The court found that the non-compete provision at issue was unambiguous and therefore the express language of the agreement controls. Thus, the court found that the noncompete agreement specifically provides that it is only applicable to Almac Clinical Services and not any other entity. The court then considered the new employer’s business, a contract research organization specializing in solid-state chemical and solid-state analytical work; where the employee was only performing “inward-facing activities.” To the contrary, the former employer, Almac Clinical, engages in the packaging, labeling and distribution of clinical trial packs, and offers associated analytical support to the manufacturer of those products, services not offered by the new employer, and during the course of her tenure with Almac, Dr. Park did not do any work related to clinical packaging. Thus, the court found that the employer did not establish a likelihood of success on the merits of the breach of contract claim as the employee was not engaged in activities competitive with her former employer.

The Pennsylvania Uniform Trade Secrets Act creates a cause of action for misappropriation of trade secrets and the unjust enrichment caused by such misappropriation. To establish misappropriation of a trade secret by a Pennsylvania employee, an employer must show (1) the existence of a trade secret; (2) communication of the trade secret by a Pennsylvania employee pursuant to a confidential relationship; (3) use of the trade secret in violation of that confidence; and (4) harm to the employer.

In Almac, the employer argued that the employee had access to substantial amounts of highly confidential information, and that there was a sufficient likelihood or substantial threat of disclosure of a trade secret due to the competitive nature of the new employer’s business. However, the court found that there was no evidence that the employee disclosed any confidential information to the new employer; the employee turned over all equipment, documents and data when she resigned, and the new employer set up ground rules to ensure that the new employee would not violate her obligations during her first six months of employment. Further, the court found that the record is devoid of evidence that the employer suffered damages. Thus, the court found that employer did not establish a likelihood of success on the merits of the trade secrets claim.

To establish a Pennsylvania employee’s tortious interference with an existing or prospective contract under Pennsylvania law, an employer must prove  (1) the existence of a contractual relationship or prospective contractual relationship between the employer and another party; (2) an intent on the part of the employee or new employer to harm the former employer by interfering with that contractual relationship or preventing the relationship from occurring; (3) the absence of privilege or justification; and (4) actual damage.

In Almac, the court found that the employer failed to prove any elements of a tortious interference with contractual relations claim, and to the contrary, the actions of the employee and new employer show concerted efforts to ensure that they neither breached the non-compete nor improperly interfered with the former employer’s contractual relationships with its customers.

Abramson Employment law represents clients who have restrictive covenants and noncompete agreements. For more information on restrictive covenants, non-compete agreements and Abramson Employment Law, see


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Court Refuses to Enforce NonCompete Agreement against Terminated Employee

In applying Pennsylvania case law, Courts are reluctant to enforce noncompete agreements against an employee who was terminated by an employer. In Lehigh Anesthesia Association v. Mellon, No. 1570 EDPA 2015 (Pa Super) (April 26, 2016), the Superior Court affirmed a trial court ruling that found that a noncompete agreement was unenforceable against a certified nurse anesthetist who worked for the employer for 11 years and was terminated for alleged poor performance. The employee signed a written employment agreement with a restrictive covenant which provided that in the event of the termination of employment for any reason, the employee could not enter into a business or practice competitive with that of the employer for two years if the employer provided any billable services to a client within 4 years of the date preceding the termination of the employee’s employment. The agreement provided that if the employee violated the restrictive covenant, the employee was liable for damages outlined in the contract.

After the employee in Lehigh Anesthesia was terminated, the employee took a position with another employer which happened to provide services to a client of the former employer. The court found that the reach of the covenant terms was overly broader than necessary to protect the former employer’s business interests and it unfairly restricted the employee from practicing the employee’s trade or skill, or from utilizing experience in the particular type of work with which the employee is familiar.

For a covenant not to compete to be enforceable in Pennsylvania, it must be: (1) ancillary to the employment relationship; (2) reasonably necessary for the protection of the employer; and (3) reasonable in duration and geographic reach. Post-employment restrictive covenants are subject to a stringent test of reasonableness. A post- employment covenant that merely seeks to eliminate competition in order to give the employer an economic advantage is generally not enforceable. The presence of a legitimate, protectable business interest of the employer is a threshold requirement for an enforceable non-competition covenant. If the threshold requirement of a protectable business interest is met, the next step in the analysis of a non-competition covenant is to apply a balancing test. First, the court balances the employer’s protectable business interest against the employee’s interest in earning a living. Then, the court balances the employer and employee interests with the interests of the public to weigh the competing interests of the employer and employee. A court must conduct an examination of reasonableness and the terms of the covenant must be reasonably limited in terms of the temporal and geographical restrictions imposed on the former employee.

Pennsylvania courts view the situation where an employee is terminated with great scrutiny. Where an employee is terminated by an employer on the grounds that the employee has failed to promote the employer’s legitimate business interests, it clearly suggests an implicit decisionon the part of the employer that its business interests are best promoted without the employee in its service and the employer who fires an employee is deemed to view the employee as worthless. As a consequence, once such a determination is made by the employer, the employer’s need to protect itself from the former employee is diminished by the fact that the employee’s worth was insignificant. In Lehigh Anesthesia the court noted that the restrictive covenant was aimed at restraining the employee from the exercise of his profession within certain geographic and temporal bounds. Relying on the Pennsylvania Superior Court’s decision in Insulation Corp. of Am. v. Brobston, 667 W.D. 729 (Pa. Super. Ct. 1995), in Lehigh Anesthesia, the court noted that an examination of the restrictive covenant at issue reveals that the terms are both ambiguous and overly broad or unreasonable as the covenant specifically prohibits the employee from rendering anesthesia services to any current or former clients dating back four years, and also includes businesses which conduct business with current and prior clients

In Lehigh Anesthesia, the court cited a frequent quote from Brobston, “The salesman discharged for poor sales performance cannot reasonably be perceived to pose the same competitive threat to his employer’s business interests as the salesman whose performance is not questioned, but who voluntarily resigns to join another business in direct competition with the employer.”

Abramson Employment law represents clients who have restrictive covenants and non-compete agreements. For more information on restrictive covenants, non-compete agreements and Abramson Employment Law, see

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Restrictive Covenant & Non-Solicitation Agreement May Be Unreasonable if Extended to Employee’s Prior Customers

Pennsylvania courts continue to carefully scrutinize restrictive covenants. In a recent non-precedential decision, First National Bank of Pennsylvania v. Nagle, Superior Court of Pa. (No. 441 WDA 2015) (April 8, 2016), the Superior Court reversed and remanded a trial court order enjoining a former employee from dealing with customers that the employee had acquired prior to the commencement of his employment.

In Nagle, the employer, a bank that provides consumer banking services and commercial loans, hired the employee as a commercial lender at which time the employee signed a Non-Solicitation Agreement that provided: “. . . during the one-year period immediately following termination of your employment for any reason, including resignation by you or an involuntary termination of your employment by the company, you will not engage in any acts which would be considered improper solicitation under this letter agreement. For the purposes of this letter agreement, improper solicitation includes, but is not limited to: directly or indirectly soliciting or selling to any customer of the company or its affiliates any product or service offered by the company or its affiliates; employing or assisting in employing any present employee of the company or its affiliates; and directly or indirectly requesting or advising any customer or supplier of the company to withhold, curtail or cancel business with the company or its affiliates. A customer is any person or entity with whom you transacted business or became aware of during your employment with the company.”

The employee was terminated for alleged improper conduct and the employer filed a Complaint and Petition for Preliminary Injunction alleging that the employee violated the Non-Solicitation Agreement by improperly contacting and soliciting customers after his termination. The employee admitted that he had contacted or was contacted by the customers at issue; however, the employee maintained that the customers were his own preexisting customers and as a consequence, no violation of the Non-Solicitation Agreement had occurred. The trial court entered an Order granting the employer’s Motion for Judgment on the Pleadings and enjoined the employee from continuing to violate the terms of the Non-Solicitation Agreement by contacting the customers. The employee filed an appeal to the Superior Court of Pennsylvania arguing that the trial court improperly enjoined the employee from engaging in business with customers whom he had developed prior to his employment with the employer.

In Nagle, the court noted that a Pennsylvania Supreme Court decision, Hess v. Gebhard & Co., stands for the proposition that an employer does not have a protectable business interest in pre-existing customers. In addition, Pennsylvania courts have historically viewed such covenants as contracts in restraint of trade that prevent a former employee from earning a livelihood, and, therefore, have disfavored such provisions in the law and that covenants not to compete are strictly construed against the employer. However, the Pennsylvania Supreme Court has also recognized an employer’s right to protect, by a covenant not to compete, its interest in customer relationships acquired through the efforts of its employees, thus, while Pennsylvania law looks with disfavor upon restrictive covenants, covenants may be enforced if (1) they are incident to an employment relationship between the parties; (2) they are supported by adequate consideration; (3) the restrictions imposed by the covenant are reasonably necessary for the protection of legitimate interests of the employer; and (4) the restrictions imposed are reasonably limited in duration and geographic extent. The court found that the issue is whether barring the employee from contacting his preexisting customers is reasonably necessary for the protection of the employer. The court noted that keeping in mind that Pennsylvania law disfavors restrictive covenants, it would be unreasonable to extend the Non-Solicitation Agreement to include personal customers of the employee who came to the customers of the employer solely to avail themselves of the employee’s services and only as a result of his own independent recruitment efforts which were neither subsidized nor financially supported by the employer. As a consequence, the Superior Court reversed the trial court’s Order and remanded the case for further proceedings.

Abramson Employment law represents clients who have restrictive covenants and non-compete agreements. For more information on restrictive covenants, non-compete agreements and Abramson Employment Law, see

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Non-Compete Agreements: Pennsylvania Will Not Enforce Restrictive Covenants Entered Into After Commencement of Employment Unless Employer Offers New Valuable Consideration Beyond Continuing Employment

Today, in Socko v. Mid-Atlantic Systems of CPA, Inc., No. 142 MAP 2014, the Supreme Court of Pennsylvania reaffirmed that the enforcement of an employment agreement containing a restrictive covenant not to compete, entered into after the commencement of employment, may be successfully challenged as unenforceable by an employee for a lack of consideration. Such an agreement is unenforceable even where the agreement, by its express terms, states that the parties “intend to be legally bound,” which language implicates the Uniform Written Obligations Act (“UWOA”).

In Socko, while already employed, the employee signed a third, more restrictive Non-Competition Agreement which, by its terms, superseded all prior agreements. Pursuant to the agreement, the employee was not permitted to compete for two years after the termination of his employment in any of the following locations: Connecticut, the District of Columbia, Delaware, Maryland, New Jersey, Pennsylvania, New York, Virginia, West Virginia, or any other jurisdiction in which the employer did business. The Agreement also expressly provided for the application of Pennsylvania law, and stated that the parties intended to be “legally bound.” In Socko, the employee filed a motion for partial summary judgment, asserting that the non-competition clause in the agreement was unenforceable, as it was not supported by sufficient consideration. It was not disputed that the agreement was signed during the course of the employee’s employment and the employee did not receive any benefit or any change in his existing employment status in exchange for signing the new agreement.

The Supreme Court of Pennsylvania noted that while a covenant not to compete may be desirable and justified in some circumstances on the part of an employer, Pennsylvania courts have historically viewed such covenants as contracts in restraint of trade that prevent a former employee from earning a livelihood, and, therefore, have disfavored such provisions in the law. While generally disfavored, Pennsylvania law, however, has recognized the validity and enforceability of covenants not to compete in an employment agreement, assuming adherence to certain requirements. Currently in Pennsylvania, restrictive covenants are enforceable only if they are: (1) ancillary to an employment relationship between an employee and an employer; (2) supported by adequate consideration; (3) the restrictions are reasonably limited in duration and geographic extent; and (4) the restrictions are designed to protect the legitimate interests of the employer. The Court noted as with other contracts, for an employment agreement containing a restrictive covenant to be enforced, consideration is crucial, whether the covenant is entered into prior to, during, or after employment ends. Thus, to be valid, a covenant not to compete must be consummated with the exchange of consideration.

If a noncompetition clause is executed at the inception of the employment, the consideration to support the covenant may be the award of the job itself. A restrictive covenant is not required to be included in the initial employment contract to be valid. However, when a non-competition clause is required after an employee has commenced employment, it is enforceable only if the employee receives new and valuable consideration that corresponds with a benefit or a favorable change in employment status. In Pennsylvania sufficient new and valuable consideration has been found to include a promotion, a change from part-time to full-time employment, a compensation package of bonuses, insurance benefits or severance benefits.
Socko confirms that without new and valuable consideration, a restrictive covenant is unenforceable. More specifically, the continuation of the employment relationship at the time an employer and employee enter into the restrictive covenant is insufficient by itself to serve as consideration for the new covenant, despite the fact that there may be an at-will relationship terminable by either the employer or the employee. As a consequence, in Socko the Court held that in “light of the clear and unambiguous language of the UWOA, and consistent with our prior case law, we reject Mid-Atlantic’s (the employer’s) view and conclude that a contract containing a written express statement of intent to be “legally bound” does not supply the necessary consideration to support the enforceability of an agreement.

For more information on Restrictive Covenants, Non-Compete Agreements and Abramson Employment Law, see

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Preliminary Injunction Denied Where Employee’s Subsequent Employment Contracts Fail to Include Restrictive Covenant

In Pennsylvania, restrictive covenants are enforceable if they are incident to an employment relationship between the parties; the restrictions imposed by the covenant are reasonably necessary for the protection of the employer; and the restrictions imposed are reasonably limited in duration and geographic extent. Restrictive covenants are not favored in Pennsylvania and are viewed as a trade restraint that prevents a former employee from earning a living.

In order for a restrictive covenant to be enforceable, there must be sufficient consideration (something of value offered to the employee). The commencement of employment is sufficient consideration for a covenant not to compete and an employee’s promotion to a new position within the company also constitutes sufficient consideration, however, the covenant must be executed contemporaneously with the exchange of consideration. In construing a restrictive covenant, when writing is clear and unequivocal, its meaning must be determined by its contents alone. Courts will no re-write restrictive covenants or engage in interpretations which conflict with the accepted and plain meaning of the language used.

Assignability of a restrictive covenant can also be an issue. Strong public policy considerations underlie the conclusion that restrictive covenants are not assignable. Given that restrictive covenants have been held to impose a restraint on an employee’s right to earn a livelihood, they are construed narrowly; and, absent an explicit assignability provision, courts are hesitant to read one into a contract. Courts have also held that the employer, as drafter of the employment contract, is already in the best position to include an assignment clause and a successor employer is free to negotiate new employment contracts with an employee, or secure the employee’s consent to have the prior employment contract remain in effect.

In WMI Group, Inc. v. Fox, 2015 Pa. Super 25 (Feb. 6, 2015), the Court affirmed the trial court’s order finding that a former employer did not meet its burden of showing an enforceable restrictive convent and also did not demonstrate the existence of a trade secret. The Court held that while an initial employment agreement included a non-compete clause, when the employee was promoted and entered into two subsequent contracts with a related but different entity, each of which lacked a non-compete clause, the earlier non-compete was unenforceable.

In WMI, the court also considered the former employer’s assertion that trade secrets were taken from the former employer. Pennsylvania cases have recognized that trade secrets of an employer, customer goodwill and specialized training and skills acquired from the employer are all legitimate interests protectable through a general restrictive covenant. However, a court must examine and balance the employer’s legitimate business interest, the individual’s right to work, the public’s right to unrestrained competition, and the right to contract in determining whether to enforce a restrictive covenant. To obtain injunctive relief, a party must establish that the information at issue is a “trade secret,” which requires proof of a formula, drawing, pattern, compilation including a customer list, program, device, method, technique or process that: (1) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. If a competitor could obtain the information by legitimate means, it will not be given injunctive protection as a trade secret.

In WMI, the former employer contended its pricing method is a trade secret and its network of customer contacts, information, and relationships are also trade secrets; the court denied each argument and held that the former employer was not entitled to any relief. In so doing the court found that currency hedging is common knowledge and can be obtained via legitimate means, therefore injunctive relief is unavailable.

For more information on Restrictive Covenants, Non-Compete Agreements and Abramson Employment Law, see

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Race Discrimination & Retaliation: Employee has Viable Claims for Race Discrimination, Hostile Work Environment & Retaliation

When an employee of one race is treated differently that similarly situated employees of another race, the employee files a race discrimination complaint and is ultimately terminated, an employee has claims for both race discrimination and retaliation for engaging in protected activity. These claims are illustrated in a recent case, Childress v. Colvin, 2014 U. S. Dist. Lexis 25878 (E. D. Pa. February 28, 2014)(Jones, J.), where the Plaintiff employee was employed for 11 years by the Social Security Administration as a computer specialist and web developer and was the only African-American employee on her assigned team throughout her employment. Initially, the employee excelled and received a number of awards and was selected to participate in a regional management development program, a course developed to identify potential management candidates and develop employees for advancement. After the employee accepted the opportunity and participated in 14 months of training, she returned to her job and received a satisfactory job performance review, however, 6 weeks later she received a performance improvement plan without any notice or warning. The employee then complained to an Equal Employment Officer, participated in alternative dispute resolution, and then filed a formal complaint which was later settled. The employee’s supervisor then resigned and the employee alleged that the new supervisor began an intense campaign intending to evict the employee from her position by giving her difficult work assignments with arduous deadlines not given to Caucasian employees; and denying her the best and most visible work projects, instead giving the projects to Caucasian employees. The employee then filed another complaint but she continued to be treated poorly, receiving reprimands for minor issues, while Caucasian employees received no such treatment. The employee made several requests for a transfer, but her requests were denied without explanation, even though she was qualified for the open positions while Caucasian employees and those who had not filed complaints submitted similar requests were granted transfers during the same time period that the employee applied for open positions. The employee also alleged that she was denied core training, which was nonetheless offered to at least 6 Caucasian employees. In Childress, the employee was ultimately terminated and she filed claims for race discrimination, hostile work environment claim, and retaliation for engaging in protected activity.

To state a claim for racial discrimination under federal law, a plaintiff employee must establish that (1) she is a member of a protected class; (2) she was qualified for the position she held or sought; (3) she suffered an adverse employment action; and (4) similarly situated employees who are not members of the protected class were treated more favorably, or that the circumstances of an employee’s termination give rise to an inference of discriminate Applying this standard in Childress, the Court found that the Plaintiff employee could proceed with her race discrimination claim because she made numerous allegations indicating that she was treated less favorably than similarly situated Caucasian employees during a 5 year period which raises a plausible inference of a pattern of discrimination spanning more than 5 years.

To properly plead a claim for hostile work environment based on race, a plaintiff employee must allege she suffered intentional discrimination because of her membership in a protected class; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected her; (4) the discrimination would have detrimentally affected a reasonable person in the same position; and (5) the existence of respondeat superior liability (the employer is responsible for the actions of the harasser). The conduct in question must be so severe or pervasive that it creates an objectively hostile work environment and to evaluate this factor courts must consider the totality of the circumstances and analyze the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. In Childress, the Court found that a review of the complaint shows that the Plaintiff employee alleged that similarly situated Caucasian employees were given more favorable assignments, that her supervisor would gossip about plaintiff and deride her work product to other employees, that she was treated more harshly than Caucasian employees when she did not perform well or returned from a break late, that her superiors withheld work from her and instead gave the work to Caucasian employees, and that she was denied transfer requests that were granted to other employees, all of whom were Caucasian. As such, the Court found that the allegations hardly amount to isolated or single incidents of harassment, consequently, the conduct at issue was pervasive and regular harassment and would undoubtedly have a detrimental effect on a reasonable person.

In Childress, the Plaintiff also successfully stated a retaliation claim. Retaliation at the workplace is considered protected activity. It is unlawful for an employer to take action against an employee for or making charges, testifying, assisting, or participating in discrimination enforcement proceedings. When analyzing retaliation claims, the timing between the protected activity and the adverse employment action is important in order to determine if it is unusually suggestive of motive. In Childress, the plaintiff employee alleged that she complained to an Equal Employment Officer in August 2007, participated in alternative dispute resolution process in September 2007, filed a formal complaint on October 2007, and filed a formal EEO complaint in February 2011 and December 2012, which the court found to be undoubtedly protected activity because acceptable forms of protected activity include formal charges of discrimination as well as informal protests of discriminatory employment practices such as making complaints to management. The Court found that the timing between protected activity and these employees’ actions certainly raises a plausible inference of retaliation, culminating in the denial of the plaintiff employee’s transfer requests and ultimately the termination of employment.

For more information on race discrimination, retaliation and Abramson Employment Law, see, on see

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Restrictive Covenants / Non-Compete Agreements: Court Declines to Enter Preliminary Injunction – No Irreparable Harm Demonstrated

In De Lage Landen v. Thomasian, 2013 U.S. Dist. LEXIS 62639 (E. D. Pa. May 1, 2013) (Buckwalter, S. J.), the Defendant employee entered into an Employee Agreement with Restrictive Covenants and voluntarily terminated his employment with his former employer, one month after he had accepted an offer to work for a new employer, CoActiv. The employee admittedly breached his Employee Agreement by giving his former employer’s laptop and security credentials to his new employer which he subsequently returned. The Court declined to enter a preliminary injunction, finding that the plaintiff failed to prove irreparable harm (the difficulty in showing that damages can only be adequately compensated by granting an injunction”).

While the court found that the defendant breached a non-solicitation agreement by encouraging one of his former employer’s employees to work for CoActiv, the new employer; Coactive does not compete with the former employer on a national basis and the two companies “are not presently in the same ballpark.” In addition, the Defendant employee’s office was 40 miles from any of his former employer’s regional offices and the employee has not solicited former customers.

Even though the court found that the employee violated the Agreement and acceded to the terms of the Agreement including a provision for injunctive relief, the court declined to enter an injunction because there was no irreparable harm which “compensation in money alone cannot atone.” Ultimately, the court reasoned that “(th)e problem with plaintiff’s case is that it has offered nothing concrete to show what effect defendant’s leaving has had to date.”

For more information on Restrictive Covenants, Non-Compete Agreements and Abramson Employment Law, see

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