The Court, for the sake of completeness, considers Defendants' argument as if asserted under Ohio law. Under that law, “a non-compete clause's enforceability is a matter of law for the court.” Chi. Title Ins. Corp. v. Magnuson, 487 F.3d 985, 990 (6th Cir.2007). “[A] noncompete covenant is enforceable to the extent it is reasonable.”

Procter & Gamble Co. v. Stoneham, 747 N.E.2d 268, 270 (Ohio Ct. App. 1st Dist. 2000). "A covenant restraining an employee from competing with his former employer upon termination of employment is reasonable if it is [1.] no greater than is required for the protection of the employer, [2.] does not impose undue hardship on the employee, and [3.] is not injurious to the public." Chicago Title Ins. Corp. v. Magnuson, 487 F.3d 985, 991 (6th Cir. 2007) (quoting Raimonde v. Van Vlerah, 42 Ohio St.2d 21, 26 (1975)). "The party seeking to enforce the covenant 'is required to adduce clear and convincing evidence as to each of these factors' in order to prove that the covenant is reasonable."

The enforceability of Wilson's noncompete agreement turns on whether it is "reasonable." Chi. Title Ins. Corp. v. Magnuson, 487 F.3d 985, 990 (6th Cir. 2007). A noncompete agreement is reasonable under Ohio law if it satisfies three factors.

Our own de novo review applies the same standard and is constrained to the evidence presented to the district court at the time of its decision. See Chicago Title Ins. Corp. v. Magnuson, 487 F.3d 985, 995 (6th Cir. 2007); Weiner v. Klais & Co., 108 F.3d 86, 88-89 (6th Cir. 1997). Consequently, the hiring records, testimony, and admissions that appeared later are of no moment.

However, the cases Accenture cites—Chi. Title Ins. Corp. v. Magnuson, 487 F.3d 985, 990, 998-1001 (6th Cir. 2007); Inter Med. Supplies, Ltd. v. EBI Med. Sys., Inc., 181 F.3d 446, 463-70 (3d Cir. 1990)—are distinguishable. The punitive damages award in Magnuson was three times the amount of the compensatory damages award, see 487 F.3d at 990; the punitive damages award in EBI was $2 million more than the compensatory damages award, see 181 F.3d at 450.

The Sixth Circuit has interpreted the repeated conduct factor as requiring "`that the similar reprehensible conduct be committed against various different parties rather than repeated reprehensible acts within the single transaction with the plaintiff.'" Chi. Title Ins. Corp. v. Magnuson, 487 F.3d 985, 1000 (6th Cir. 2007) (quoting Bach v. First Union Nat'l Bank, 149 F. App'x 354, 356 (6th Cir. 2005)). Here, Fastenal argues that this factor is met because, though there was only one sale of goods, the Tri-State Defendants have "continued to reap the benefits of the goods and the information they obtained from Fastenal."

See Romano v. U-Haul Int'l, 233 F.3d 655, 673 (1st Cir. 2000) (defendant's actions were reprehensible where it violated plaintiffs rights and then attempted to conceal the violation); Hopkins v. Dow Corning Corp., 33 F.3d 1116, 1127 (9th Cir. 1994) (punitive damages award was constitutionally permissible where defendant concealed studies relating to product defects); cf. Hawkins v. Allstate Ins. Co., 152 Ariz. 490, 497, 733 P.2d 1073, 1080 (1987) (in calculating "a punitive damage award that is reasonable under the circumstances," the trier-of-fact may consider the "duration of the misconduct, the degree of defendant's awareness of the harm or risk of harm, and any concealment"). ¶ 100 Security Title also argues First American has engaged in similar bad acts elsewhere, citing Chicago Title Insurance Corp. v. Magnuson, 487 F.3d 985 (6th Cir. 2007). In Chicago Title, as here, First American was sued for its conduct in seeking to staff its newly formed Talon division.

Compare TQL/EDA, 685 F.Supp.3d at 575 (party seeking enforcement "must establish reasonableness under [Ohio law] test by clear and convincing evidence"), with id. at 578-80 (discussion of money damages); see also Chi. Title Ins. Corp. v. Magnuson, 487 F.3d 985, 991 n.3 (6th Cir. 2007).

Adkins, 105 F.4th at 854; see Bennett v. Hurley Med. Ctr., 86 F.4th 314, 324 (6th Cir. 2023); Scottsdale, 513 F.3d at 551-54; Chicago Title Ins. Corp. v. Magnuson, 487 F.3d 985, 995 (6th Cir. 2007); Guarino, 980 F.2d at 405. That is what happened here.

But rather than consider the "necessary" factors, the court merely concluded that it was reasonable to "restrict an employee from moving to a competitor and taking customers and other employees with them for two years following the employee's departure" under Sixth Circuit precedent. Id. (citing Chicago Title Ins. Corp. v. Magnuson, 487 F.3d 985, 992 (6th Cir. 2007)). The court also relied on the fact that Hylant and Oswald require "nearly identical" non-solicitation agreements in finding the NDNSA reasonable.