High court considers whether non‑solicit forfeiture is governed by Massachusetts Noncompetition Agreement Act

The Supreme Judicial Court heard argument in JC-13697 on whether an employee non‑solicitation clause coupled with a forfeiture of separation benefits is covered by the Massachusetts Noncompetition Agreement Act or remains governed by ordinary common‑law restrictions.

The question matters because the Act imposes procedural and substantive limits on certain noncompetition agreements (for example, notice and timing requirements) that do not, on their face, extend to covenants titled or framed as non‑solicitation agreements. If the court finds the forfeiture provision brings the agreement within the Act, the agreement could be subject to statutory restrictions and remedies; if not, the covenant would be evaluated under Massachusetts common law for restrictive covenants.

Don Mertnight, counsel for Foundation Medicine, told the court that “The Massachusetts Noncompetition Agreement Act was never intended to and, in fact, does not apply to employee non solicitation provisions such as the [one] at issue in this case.” Mertnight…