Moreover, these decisions require some evidence that the terms of the underlying employment contract had been negotiated. See Sentry Ins. v. Firnstein, 14 Mass. App. Ct. 706, 442 N.E.2d 46, 47-48 (1982) (denying injunctive relief where defendant did not receive anything in return and signed agreement "on pain of dismissal from Century's employ"); First Eastern Mortgage Corp. v. Gallagher, 1994 WL 879546 (Mass.Super. July 21, 1994) (refusing to enforce restrictive covenant because employee forced to sign agreement). In Sentry, for example, the Massachusetts Court of Appeals reviewed a case factually similar to the instant matter and affirmed the trial court's denial of an injunction, recognizing that the non-competition agreement was imposed on the employee under "practical duress."
A court must consider, however, based on the facts of the particular case, whether the good will in issue belongs to the employer or to the employee. See Sentry Ins. v. Firnstein, 14 Mass.App.Ct. 706, 708 (1982) ("The objective of a reasonable noncompetition clause is to protect the employer's good will, not to appropriate the good will of the employee."); Carl Getman Cleary Schultz Ins., LLC v. USI Holdings Corp., Civil No. 2005-3286, 2005 WL 2183159, at *3 (Mass.Super.Ct. Sept. 1, 2005) [19 Mass. L. Rptr. 679] ("The good will . . . that [the former employer] legitimately may preserve is its own good will, not the good will earned by the employee that fairly belongs to the employee"); First E. Mortgage Corp. v. Gallagher, Civil No. 1994-3727, 1994 WL 879546, at *1 (Mass.Super.Ct. July 21, 1994) [2 Mass. L. Rptr. 350](denying injunction where good will "was the defendant's own making, which he had developed with customers as a result of his own enthusiasm, personality and abilities"); compare W.B. Mason Co. v. Staples, Inc., Civil No. 2000-5042, 2001 WL 227855, at *5 (Mass.Super.Ct. Jan. 18, 2001) [12 Mass. L. Rptr. 603] (salesmen for office supply retailer had not developed their own good w
I construe the 1996 agreement strictly against plaintiff, because plaintiff is the drafter of the contract and because the contract is a post-employment restraint.Sentry Ins. v. Firnstein, 14 Mass. App. Ct. 706, 707 (1982). Therefore, I focus on the word "solicit" and construe the non-solicitation clause to bar only this type of contact.2.
IKON, 59 F. Supp. 2d at 131 (citing First E. Mortg. Corp. v. Gallagher, No. 943727F, 1994 WL 879546 (Mass. Super. Ct. July 21, 1994) (unpublished) and Sentry Ins. v. Firnstein, 442 N.E.2d 46 (Mass. App. Ct. 1982)). Neither case, however, directly addresses the question of whether continued employment can constitute sufficient consideration in this context.
Its object is, indeed, the familiar concern with the unequal bargaining power of employee and employer, which is understood to call for construing the agreement against the latter and limiting the availability of equitable enforcement accordingly. Sentry Ins. v. Firnstein, 14 Mass.App.Ct. 706, 442 N.E.2d 46, 47 (1982). That policy, of course, applies squarely here.
Unable to resolve the ambiguity in the contract language, the court properly resorted to the familiar principle that an ambiguous "post-employment restraint imposed by the employer's standardized form contract" will be construed against the drafter. Sentry Ins. v. Firnstein, 442 N.E.2d 46, 46-47 (Mass.App.Ct. 1982) (citing Restatement (Second) of Contracts § 188 cmt. g (1981)). The court's conclusion that Lanier had not demonstrated a substantial likelihood of success on the merits reflected factual findings that are not clearly erroneous and a correct understanding of the law.
Id. at *1. The court determined that the non-solicitation agreement was enforceable, but “only to the extent that it strikes a fair balance between protecting [the employer's] confidential information and the good will it has earned as a company vs. taking the good will earned by and belonging to [the employee] individually.” Id. at *3; see Sentry Ins. v. Firnstein, 14 Mass.App.Ct. 706, 708, 442 N.E.2d 46, 47 (1982) (“The objective of a reasonable noncompetition clause is to protect the employer's good will, not to appropriate the good will of the employee.”)
In contrast, under Massachusetts law, a restrictive covenant in an employment contract, particularly an employment contract drafted by the employer, is strictly construed against the employer. See Sentry Ins. v. Firnstein, 14 Mass.App.Ct. 706, 442 N.E.2d 46, 46–47 (1982) (citing Restatement (Second) of Contracts § 188, comment g ). Finally, MacMillan's contention that she did not breach the non-compete provision because she did not simultaneously sell products for both PartyLite and Park Lane ignores the language of the non-compete provision which barred MacMillan from “promoting products, or actively representing other direct sales companies” while she was associated with PartyLite.
In contrast, under Massachusetts law, a restrictive covenant in an employment contract, particularly an employment contract drafted by the employer, is strictly construed against the employer. See Sentry Ins. v. Firnstein, 442 N.E.2d 46, 46-47 (Mass. App. Ct. 1982) (citing Restatement (Second) of Contracts § 188, comment g).Finally, MacMillan's contention that she did not breach the non-compete provision because she did not simultaneously sell products for both PartyLite and Park Lane ignores the language of the non-compete provision which barred MacMillan from "promoting products, or actively representing other direct sales companies" while she was associated with PartyLite.
Should contract ambiguity become an issue, any ambiguity is likely to be strictly construed against Elizabeth Grady as the drafter. See Sentry Ins. v. Firnstein, 14 Mass. App. Ct. 706, 707 (1982) (noting that non-compete contracts are "scrutinized with particular care" because of the probability of unequal bargaining positions).III. Conclusion