Opinion
No. CV-04-0833521
July 12, 2004
MEMORANDUM OF DECISION ON PLAINTIFF'S APPLICATION FOR TEMPORARY INJUNCTION
This is an application by the plaintiff, an executive recruiting agency primarily for large national insurance companies. The plaintiff seeks to enjoin the defendant from being employed by a competitive agency and further from soliciting clients or otherwise competing in its field of endeavor pursuant to a "non-compete" agreement executed by the parties at the time the defendant became employed by the plaintiff in October of 2002. (Ex. 2).
The pertinent parts of the agreement are as follows:
7. "Recruiter (defendant) agrees that for a period of two (2) years after the termination of this agreement for any reason whatsoever, with or without cause, Recruiter will not compete with Grayling within a radius of one hundred (100) miles of Graylings' Connecticut office; or become . . . an employee . . . within a radius of one hundred (100) miles of Graylings' Connecticut office . . . the term "competes with" shall mean and refer to engaging in the business of recruiting . . ." (The limits of the Recruiter is further defined in Exhibit 2).
The defendant voluntarily left the plaintiff's employ on April 8, 2004 and became employed by a competitive employment agency, Park Avenue Group, Inc. (PAG) located in South Windsor.
The plaintiff seeks a temporary injunction to enjoin the defendant, Albert Villota, from competing with it and, or through, his employment by the Park Avenue Group until April 8, 2006, the duration of the covenant not to compete.
Standard for Temporary Injunction
The standard for granting a temporary injunction to enforce a covenant not to compete does not require proof of irresponsible action or imminent harm or that there is no adequate remedy at law. It is sufficient if the plaintiff establishes by a preponderance of evidence that the relief is warranted to protect the plaintiff from harm which the restrictive covenant was intended to prevent. Group Concepts, Inc. v. Barberino, Supr. Court judicial district of New Haven, CV-030286221, Tanzer, J., 4-16-04 ( 37 Conn. L. Rptr. 9).
Whether the Restrictive Covenant is Reasonable
Our Supreme Court in Robert S. Weiss Assocs. v. Wiederlight, 208 Conn. 525, 529 n. 2 (1988), articulated five factors to be considered by the court in evaluating a restrictive covenant: (1) the length of time the restriction operates; (2) the geographical area covered; (3) the fairness of the protection accorded to the employer; (4) the extent of the restraint on the employee's opportunity to pursue his occupation; (5) the extent of interference with the public's interests.
The length of time Restriction
The restriction of two years imposed on the defendant is reasonable in the opinion of this court and has been approved by Connecticut courts under these circumstances. Wiederlight, supra at 531 (approving two-year restrictions).
The Reasonableness of the 100-Mile Radius Restriction
In this regard, the evidence introduced at trial was that the plaintiff benefitted highly from its location in Hartford, Connecticut. Inasmuch as the plaintiff's clients mainly consisted of national insurance companies which recognized Hartford as the "insurance capital of the world."
The defendant was to contact clients in the Hartford area to call or come to the plaintiff's office so they could be recruited.
Obviously, the defendant would be in a position to injure the plaintiff if he is permitted to work in an area influenced by the Hartford insurance reputation.
There was no evidence, however, that this influence extended to the entire state or 100 miles from the Hartford area. Plaintiff's business is mainly in the Hartford area. This court opines that an area encompassing the entire state of Connecticut with the exception of Fairfield County is more reasonable. Pursuant to the "blue pencil rule" and pursuant to paragraph 14 of the restrictive covenant, the court modifies the geographic restriction accordingly. Beit v. Beit, 135 Conn. 195, 204-05 (1998).
Under the so-called "blue-pencil rule" the court may modify a restrictive covenant to make its terms reasonable. Beit v. Beit, supra.
Paragraph 14 specifically permits the court to modify any position of the restrictive covenant to make it reasonable as opposed to invalid or unreasonable.
The reasonableness of the Restrictions Imposed on the Defendant
Although the scope of restrictions imposed by the restrictive covenant taken literally are extremely broad, the plaintiff actually is seeking only to enjoin the defendant from competing in its own industry, i.e., an employment agency for those who are potentially employees of the insurance industry. It further requests that the defendant be prohibited from soliciting any person who, prior to defendant's termination with plaintiff was a client or candidate. This, the court deems reasonable and not unduly restrictive. Wiederlight, supra, 531-33.
Plaintiff's requests concerning PAG are also reasonable inasmuch as the court finds PAG is in direct competition with the plaintiff. The defendant should be prohibited from being employed or associated with PAG during the restrictive two-year period.
Lastly, undeniably the defendant is in possession of confidential material taken from the plaintiff. Defendant is prohibited from disclosing or using this proprietary data without express authorization from the plaintiff or this court.
The court finds that the injunctive order imposed is fair and reasonable to the defendant inasmuch, for the most part, he is permitted to work anywhere except in competition with the plaintiff within the restricted geographical area.
The court also finds there will be no interference with the public interests under this restriction. Wiederlight, supra n. 2.
Therefore, the following order may enter:
ORDER
(1) Until April 8, 2006, the defendant, Albert Villota, is enjoined from competing with the plaintiff Grayling Associates, Inc., as further defined in this order.
(2) This injunction shall apply to the defendant working in the employment recruiting field which is in competition with the plaintiff in the state of Connecticut except Fairfield County.
(3) The defendant is further prohibited within the above-defined geographical area from soliciting any potential employees for the insurance industry.
(4) Any such employment specified above shall include employment as owner, employer, employee or agent.
(5) Defendant is specifically enjoined from employment or any association with Park Avenue Group, Inc.
(6) Defendant is enjoined from soliciting any person who, prior to defendant's termination of employment with plaintiff was a client or candidate for employment with or through the plaintiff.
(7) The defendant is further prohibited from disclosing to anyone proprietary data obtained from the plaintiff during his employment or prior to his departure from plaintiff's place of business.
Freed, J.