You “Tolled” Me My Non-Compete Only Lasts a Year!!


Imagine that an employee resigns. He begins breaching his 12-month non-compete, and you promptly seek judicial relief. After allowing the parties to conduct expedited discovery and conducting a lengthy preliminary injunction hearing, the judge assigned to your case takes seven months to issue his decision.

The judge finds the non-compete to be enforceable and rules that a preliminary injunction should be granted. Will the preliminary injunction run for 12 months from the date of the judge’s decision? Or will it be limited to the 5 months remaining in the term of the non-compete? According to the United States Court of Appeals for the First Circuit (applying Massachusetts law), the answer may depend on the language set forth in your contract.

In EMC Corporation v. Emanuel Arturi, the First Circuit upheld a federal Massachusetts court decision denying injunctive relief because the time restriction in the non-compete expired. The fact pattern before the Arturi court was not as scintillating as that outlined above, but the import remains the same.

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