Non-Compete Agreements

The California Supreme Court Clarifies Section 16600 as Applied to Business Contracts and Holds That an Independently Wrongful Act Is Necessary to Prove Interference With At-Will Contracts

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The most powerful tool capable of invalidating competitive restraints under California law is Business and Professions Code section 16600.  That statute states that “[e]very contract by which anyone is restrained from engaging in a lawful profession, trade or business of any kind is to that extent void.”  California courts have historically used that statute to void non-compete and non-solicit provisions in agreements between employees and employers or buyers and sellers of a business.

The question presented to the California Supreme Court in Ixchel Pharma, LLC v. Biogen, Inc., was whether section 16600 voids restraints on business operations and commercial dealings between businesses in the same manner that it voids restraints on competition following the termination of employment or the sale of a business. The Court held that section 16600 does indeed apply to contractual restraints on businesses, but not in the same way as it applies to employment or sale-of-business agreements.  Instead, contractual restraints on business operations and commercial dealings between businesses should be evaluated using the same “rule of reason” standard that courts use to analyze alleged antitrust violations under the Cartwright Act.  In so holding, the Court harmonized section 16600’s application to commercial agreements with long-standing antitrust laws.

In a separate part of its opinion, the Court also held that a claim for tortious interference with an at-will business contract (i.e., one that can be terminated at any time) requires pleading and proving an independently wrongful act.  This brings the standard for interference with an at-will business contract more in line with a cause of action for tortious interference with prospective economic relations.

Case Background.  TSW initially reported on this case in August 2019, when the Ninth Circuit certified these issues to the California Supreme Court for consideration. The case arises from a unique set of circumstances in which the plaintiff (Ixchel) challenges a contractual restraint on business contained in a contract between the defendant (Biogen) and a third party (Forward).

The facts of this case are described in TSW’s earlier post.  As a brief recap, Plaintiff Ixchel filed a claim against Defendant Biogen alleging, among other things, interference with contract.  Ixchel alleged that it had a “collaboration agreement” with Forward to jointly develop a new drug.  That collaboration agreement stated that it could be terminated at any time by either party, i.e., it was essentially an “at-will” contract.  Ixchel further alleged that Biogen subsequently convinced Forward to enter into a separate agreement with Biogen in which Forward agreed to (1) terminate the collaboration agreement with Ixchel—which it had a right to do—and (2) refrain from entering into any other contracts for the development of the drug.

At the district court level, the court dismissed Ixchel’s interference with contract claim, holding that interference with an at-will contract required pleading an independently wrongful act.  Ixchel argued that the non-compete provision in Biogen’s contract with Forward violated section 16600 and, thus, constituted an independently wrongful act.  The court rejected this argument, finding that section 16600 did not apply to business agreements outside the employment context.

After the district court dismissed Ixchel’s claims, it appealed, and the Ninth Circuit certified two questions to the California Supreme Court:  (1) Is a plaintiff required to plead an independently wrongful act in order to state a claim for tortious interference with a contract that is terminable at will? (2) Does section 16600 of the California Business and Professions Code void a contract by which a business is restrained from engaging in a lawful trade or business with another business?

Tortious Interference with At-Will Contracts.  In answering the first question, the Court held that interference with an at-will contract requires more than interference with other contracts and, specifically, requires pleading and proving that the defendant engaged in an independently wrongful act.  The Court explained that a cause of action for tortious interference with contractual relations generally does not require the defendant’s conduct to be independently wrongful “apart from the interference with the contract itself.”  It noted, however, that in Reeves v. Hanlon, it held that interference with at-will employment contracts should require independent wrongfulness because (a) California public policy favors employee rights to compete with former employers, and (b) “at-will contracts do not involve the same ‘cemented economic relationship[s]’ as contracts of a definite term” since there is no legal assurance of future relations.

In its holding, the Court declined to limit Reeves to the employment context, reasoning that the “broader logic underlying [Reeves] is persuasive with respect to other spheres of economic relations” and that because parties to at-will contracts—like parties to a prospective economic relationship—have “no legal assurance of future economic relations,” the same interests are implicated even though parties to at-will contracts may have more concrete “expectations of a continued relationship.”  It therefore held that stating a cause of action for interference with an at-will contract requires an independently wrongful act, just like a cause of action for interference with prospective economic advantage.

Section 16600 as Applied to Business Contracts.  In answering the second question, the Court started by observing that the parties did not appear to dispute that section 16600 applies to “business contracts” or that none of the statutory exceptions to section 16600 (e.g., sale of a business or dissolution of a partnership or LLC) applied to the facts of the case.  Rather, the true dispute was about the standard a court should apply when analyzing a contractual restraint on business operations and commercial dealings between businesses.

After examining the legislative and judicial history surrounding section 16600 and its Civil Code predecessor, the Court distinguished two categories of agreements that may contain restraints on trade:  (1) contractual restraints in employment or sale of business agreements, and (2) contractual restraints on business operations and commercial dealings between businesses.  With respect to the latter, the Court held that section 16600 should be read in accordance with the Cartwright Act to incorporate the same “rule of reason” that applies in an antitrust analysis.  Accordingly, courts evaluating such business restraints under section 16600 must ask whether the restraint “promotes or suppresses competition” considering the “circumstances, details, and logic of a restraint.”  With respect to the former category of agreements (employment and sale-of-business), the Court reaffirmed its decision in Edwards and other existing opinions that do not apply a reasonableness standard and instead strictly construe section 16600 in the employment or sale-of-business context to void any restriction on an individual’s ability to engage in a lawful profession, trade, or business if that restriction does not otherwise meet a recognized exception.

Indirect Competition Enough to Enforce Non-Compete Against Former CEO in Pennsylvania

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In the midst of nationwide efforts to reform the use of non-compete restrictions, a recent decision from the Eastern District of Pennsylvania illustrates the broad approach courts may take when enforcing restrictive covenants against high-level executives. READ MORE →

Does California’s Ban on Non-Competes Apply to Business Agreements? The California Supreme Court May Weigh In Shortly.

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The Ninth Circuit recently certified a question to the California Supreme Court regarding the scope of California Business & Professions Code Section 16600.  As TSW readers are likely aware, Section 16600 states that “[e]very contract by which anyone is restrained from engaging in a lawful profession, trade or business of any kind is to that extent void.”  Pursuant to this statute, California courts have struck down a number of restrictive covenants in contracts with employees in California, including non-compete provisions, customer non-solicit provisions, and certain employee non-solicit provisions.  The Ninth Circuit now wants to know whether the statute should apply to an agreement between two businesses.  The Supreme Court’s answer may have significant effects on business agreements and collaborations in or involving California. READ MORE →

Use of Out-of-State Restrictive Covenants Ending Quickly in California

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Two years ago, TSW reported on several cases in which corporations outside of California successfully enforced non-compete agreements against California employees.  They did so by using employment agreements containing foreign choice-of-law provisions and foreign forum-selection provisions.

We also reported that California had taken measures to correct this “loophole” by enacting California Labor Code section 925.  Section 925, which went into effect on January 1, 2017, forbids employers from requiring employees to agree to foreign forum-selection and choice-of-law provisions as a condition of employment.  It only applies to employees who primarily reside and work in California and who were not represented by counsel in negotiating the forum-selection or choice-of-law provisions.  Its application is also restricted to contracts that have been “entered into, modified, or extended on or after January 1, 2017.”

At the time of our prior article, California courts had yet to apply the statute.  In light of recent inquiries and requests from TSW readers, however, we’ve decide to provide an update on section 925 and its application.

As expected, courts have refused to apply section 925 when considering older contracts that have not been recently modified.  See e.g., Scales v. Badger Daylighting Corp., No. 117CV00222DADJLT, 2017 WL 2379933, at *1 (E.D. Cal. June 1, 2017) (declining to apply section 925 to pre-2017 contract).  The statute, by its own terms, does not affect such contracts, and California Courts have specifically rejected an argument that section 925 evidences California Public Policy that should retroactively reach pre-2017 contracts.  Ryze Claim Sols. LLC v. Superior Court, 33 Cal. App. 5th 1066, 1072 (2019) (reversing “trial court’s decision to apply the policy expressed in Labor Code section 925 to [the employment agreement at issue], which was not entered into, modified, or extended on or after January 1, 2017.”)

It also comes as no surprise that courts have cited to section 925 in deciding not to enforce foreign forum-selection and choice-of-law provisions.  See Depuy Synthes Sales Inc. v. Stryker Corp., No. EDCV181557FMOKKX, 2019 WL 1601384 (C.D. Cal. Feb. 5, 2019) (declining to enforce form-selection and choice-of-law provisions and denying defendant’s motion to transfer action to the District of New Jersey).  In other words, the law appears to be working as intended.

Much of the litigation in this area has involved disputes about whether an older contract has been sufficiently “modified” or “extended” after January 1, 2017 such that it falls within the purview of section 925.

In Yates v. Norsk Titanium US, Inc., No. SACV1701089AGSKX, 2017 WL 8232188, at *3 (C.D. Cal. Sept. 20, 2017), the court found that section 925 did not apply to a pre-2017 contract and thus upheld the contract’s forum-selection clause and granted the motion to transfer.  The employee argued that section 925 should apply to the contract because it had been modified through an “implied-in-fact” modification after January 1, 2017.  The Court rejected this argument because the contract expressly stated that any amendment must be “in a writing signed and dated by both parties.”

Subsequent cases, in contrast, have generally applied section 925 when certain changes to the employee’s employment occurs (e.g., a change in compensation structure).  See e.g., Geoffrey Friedman, et al. v. Glob. Payments Inc., et al., No. CV183038FMOFFMX, 2019 WL 1718690, at *3 (C.D. Cal. Feb. 5, 2019) (applying section 925 to a pre-2017 contract because the employer modified the “Sales Policy Manual” after January 1, 2017 thereby affecting the employees compensation); Lyon v. Neustar, Inc., No. 219CV00371KJMKJN, 2019 WL 1978802, at *7 (E.D. Cal. May 3, 2019) (applying section 925 to a pre-2017 employment agreement because the employee signed a separation agreement when he left that modified the prior employment agreement).

Accordingly, while certain older and unmodified contracts may remain effective, the number of such contracts is shrinking quickly.  In some cases, the courts appear to be applying section 925 aggressively to sweep in older contracts that have even minor modifications after January 1, 2017.

Another California Court Raises Doubts on Employee Non-Solicitation Provisions

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Last November, we discussed the potential impact of a recent California appellate court decision, AMN Healthcare, Inc. v. Aya Healthcare Services, Inc., 28 Cal. App. 5th 923 (2018), which called into question long-standing California precedent enforcing certain employee non-solicitation provisions.  However, we noted it was too soon to forecast the implications of that case.

Though it is still early, it appears the tide may be turning, as a California federal district court recently issued a decision that relied upon AMN’s holding and found that the employee non-solicitation provision in the plaintiff’s contract was unenforceable under California law.

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Using Non-Compete Agreements in Employment Contracts to Protect Trade Secrets

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Employers in many industries use non-compete agreements as a key tool to protect trade secrets.  According to U.S. Treasury reports, non-compete agreements impact approximately 30 million – nearly one in five – U.S. workers, including roughly one in six workers without a college degree.

Some employers have imposed non-compete agreements across a broad segment of their workforce, including imposing them on low-wage earning employees and employees who are not privy to trade secrets or other confidential information.  Non-compete agreement opponents argue that such broad non-compete agreements can interfere with the employee’s right to make a living without any off-setting benefit for the employer.  In the past few years, state attorneys general have been successfully suing companies to invalidate what many see as overly-expansive non-compete agreements.

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One Step Away from Uniform: Taking a Closer Look at Massachusetts’ New Trade Secrets Law

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As we reported in August, Massachusetts became the penultimate state to enact the Uniform Trade Secrets Act (UTSA), leaving New York as the sole remaining holdout. Massachusetts’ new law, which took effect October 1, 2018, significantly expanded the state’s existing trade secrets law by broadening protections for trade secret owners and narrowing the scope of noncompete agreements. As we reported earlier this month, the new law does not apply retroactively even if the violation is ongoing in nature.

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Massachusetts Enacts New Reforms on Noncompetes, Becomes 49th State to Enact UTSA

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Just two days after TSW’s inaugural post, we brought you news of Texas becoming the 48th state to enact some form of the Uniform Trade Secrets Act (UTSA).

Now, roughly five years and one federal trade secrets statute later, Massachusetts has become the 49th state, leaving New York as the lone holdout.  The new law, which takes effect on October 1, 2018, is part of an amendment to a $1.1 billion economic development bill that Massachusetts Governor Charlie Baker signed into law on August 10, 2018.  With the enactment of the UTSA, Massachusetts courts will have newfound power to enter injunctions against actual or threatened misappropriation of trade secrets.

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