Recent Decisions Provide Guidance on Drafting Noncompetition Agreements under Massachusetts Law

by Littler

Your Vice President of Sales announces that she is leaving to work for your biggest competitor.  She signed a noncompetition agreement when she joined the company five years ago as a junior sales associate.  Can you get an injunction preventing her from competing with your company?  In Massachusetts, the answer may depend on the applicability of the "material change doctrine." 

The material change doctrine, as it has developed under Massachusetts law, essentially provides that if an employment relationship changes significantly after an employee enters into a noncompetition agreement with his or her employer, the agreement is considered void and unenforceable.  Although this doctrine has not been uniformly accepted, Massachusetts courts seem to be increasingly willing to apply it.  In light of this doctrine, many Massachusetts courts have suggested that employers must enter into a new noncompetition agreement with an employee each time that there is a material change in the employment relationship if the employer wishes to protect its goodwill, trade secrets, and/or confidential information on an ongoing basis. 

The recent case Interpros, Inc. v Athy, Civil Action No. 13-0214-F (May 5, 2013), illustrates the impact of the material change doctrine.  In this case, the defendant signed a noncompetition agreement in 1997 when he was hired as a branch manager for the plaintiff/employer.  In the subsequent 15 years, the defendant rose through the ranks and, ultimately, became the company's Chief Operating Officer.  He then left to join an alleged competitor.  When his former employer sued to enforce the noncompetition agreement, however, the court held that it was void and unenforceable because of the various material changes that had been made to the employment relationship over the years, e.g., the increase in the employee's duties, responsibilities, and compensation.

Although the court readily found the agreement in Interpros to be void, it is not always clear whether a change in an employment relationship will be considered "material," thereby requiring a new noncompetition agreement under the material change doctrine.  Over the years, courts have identified a number of factors to consider as part of this analysis, including: 

  • Whether there have been significant changes in the employee's title or the scope of the employee's duties.  See, e.g., AFC Cable Systems Inc. v. Clisham, 62 F.Supp.2d 167 (D.Mass. 1999) (noncompetition provision invalidated because employee changed from a "sales consultant" to a "sales manager").
  • Whether there have been changes in the employee's compensation package (particularly decreases in compensation).  See, e.g., Mancuso-Norwak Ins. Agency, Inc. v. Rogowski-Verrette Ins. Agency, LLC, 30 Mass.L.Rep. 455 (Mass.Super.Ct. 2012) (decrease in commission rate from 40 percent to 20 percent voided noncompete).

As a result, employers are often left guessing as to whether and when they need to enter into new noncompetition agreements with their employees.  Another recent case – A.R.S. Services, Inc. v. Morse, No. MICV 2013-00910 (Mass.Super.Ct. Apr. 5, 2013) – suggests that there may be a solution to this conundrum.

In this case, A.R.S., the employer, sought to enforce a noncompetition agreement against a former employee.  The former employee signed the noncompetition agreement when he first started working at A.R.S. as a branch manager.  He subsequently was promoted to general manager and then director of operations.  His compensation also fluctuated through the years.  Accordingly, the employee argued that the noncompetition agreement was void under the material change doctrine.

The Massachusetts Superior Court disagreed.  The agreement stated that its terms "shall continue to apply and be valid notwithstanding any change in [the employee's] duties, responsibilities, position, or title."  The court viewed this language as embodying the parties' understanding that "the agreement was intended to be enforceable notwithstanding a potential change in employment responsibilities."  Because the court saw no reason to ignore the express language in the agreement, it rejected the employee's argument, enforced the noncompetition agreement, and granted A.R.S.'s motion for a preliminary injunction against the former employee.

It is important to note that this is just one decision from one trial-level court, and it is not binding precedent.  That said, the A.R.S. Services decision demonstrates that appropriate language in a noncompetition agreement may avoid the application of the material change doctrine under Massachusetts law and permit employers to enforce their noncompetition agreements against employees who have been promoted, demoted, or experienced other significant changes in their employment relationship after they signed their noncompetition agreements.  Of course, drafting an enforceable noncompetition agreement requires exercising due care over a host of factors.  Therefore, we recommend that employers work with experienced employment counsel to craft agreements that are appropriate for their industry and workplace.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Littler | Attorney Advertising

Written by:


Littler on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.