A Massachusetts employer lost a worker to a competitor, but the worker had signed a 1-year noncompete agreement. Because he’d breached the agreement, the employer sued him, seeking a court order that he quit the new employer. But slowly move the wheels of justice, and that was the problem here.

What happened. An employee of EMC Corporation, a business and technology consulting firm, signed an employment contract when he was hired in 2007. It barred him not only from joining a competitor for 12 months but also from soliciting EMC’s customers and remaining employees or sharing the company’s confidential information. In early December 2009, he left EMC. The appeals court opinion isn’t clear about subsequent events, but it appears that several former EMC employees formed a competing business and solicited at least one EMC customer.

In November 2010, EMC went to court to get an injunction against the original employee. Note that 11 of the 12 months of the noncompete agreement had already passed. The following month, a federal district court judge denied the company’s request because the 1-year agreement had ended. The judge pointed out that EMC had asked for an injunction, which it was then too late to grant, but it had not asked for monetary damages, which the judge would have considered. Still seeking an injunction, EMC appealed to the 1st Circuit, which covers Maine, Massachusetts, New Hampshire, and Rhode Island.

What the court said. Judges focused on Massachusetts law as it affects noncompete agreements. Circuit judges in 1978 had ruled, in a similar case, that they would not order an employee to stop competing with his former employer, because his employment contract had expired. The employer had sued early in the year, but the court held up the case for 14 months. And the state supreme court had issued a similar ruling in 1974.

The well-crafted opinion in this case was written by David H. Souter, former associate justice of the U.S. Supreme Court, now retired. He wrote, “The unequivocal character of the state rule creates a frosty climate for EMC’s attempts to avoid it.” He also noted that because of “the unequal bargaining power of employee and employer,” the state favors the employee. EMC v. Emanuel Arturi et al., U.S. Court of Appeals for the 1st Circuit, No. 11-1001 (2011).

Point to remember: Judge Souter stressed that EMC could seek monetary damages rather than an order that the employee cease competing. Judges in the 1978 case had written, “When the period of restraint has expired, even when the delay was substantially caused by … legal appeals, … the injured party is left to his damages remedy.”