actual, can be proved. Furthermore, thePlaintiff shall be entitled to any and allreasonable attorneys fees or court costsincurred as a result of any action againstDefendant for such action. Under clause 7.5,the provisions within this non-competeprovision are void if the Plaintiff violatesterms of this agreement and fails to remedysuch violation within 60 days after beingnotified per section 15 herein. This is theagreement that was signed by Jonathan Arstas the Independent Sales Agent. TheAgreement was not signed by the Plaintiff.
Shortly after his involuntary terminationfrom the Plaintiff, the Defendant involvedhimself in a competing business,establishing his own company, where hewas designed as president.
In order to prevail on its request for apreliminary injunction, the Plaintiff bearsthe burden of showing its likelihood of success on the merits; that it will sufferirreparable harm if the injunctive relief sought is not granted; and that its harm,without the injunction, outweighs any harmto the Defendant from him being enjoined.
GTE Products Corp. v. Stewart,
414 Mass.721, 722-23 (1993);
Packaging IndustryGroup, Inc. v. Cheney,
380 Mass. 609, 616-17 (1980). Before assaying these issues, it isappropriate to canvas the relevant elementsof the Massachusetts law dealing with theenforcement of non-competition agreements.Employee covenants not to competegenerally are enforceable only to the extentthat they are necessary to protect thelegitimate business interests of theemployer.
Novelty Bias Binding Company v.Shevrin,
342 Mass. 714 (1961). Suchlegitimate business interests might includetrade secrets, other confidential informationor the good will of the employer that wasacquired through dealings with itscustomers. See
All Stainless, Inc. v. Colby,
364 Mass. 773 (1974). Protection of theemployer from ordinary competition,however, is not a legitimate business interestand a covenant not to compete designedsolely for that purpose will not be enforced.
Richmond Brothers, Inc. v. WestinghouseBroadcasting Company, Inc.,
357 Mass.106, 111 (1970).A non-competition agreement to beenforceable also must be reasonable ingeological scope and length of time, in otherwords, must be reasonable in time andspace. See
Blackwell v. E.M. Helides, Jr.,Inc.,
368 Mass. 225, 228;
Becker College of Business Administration and Secretarial Science v. Gross,
281 Mass. 355 (1933).Here, the protection for the Plaintiff was thatthe agent or the Defendant for a period of two years would not compete with thePlaintiff. However, the agreement itself hasno geological limits. An unlimited, country-wide area, or the area where the Plaintiff does business, is simply not acceptable. Thenet effect would be that the Defendantwould be enjoined from competing with thePlaintiff within the Continental UnitedStates and beyond.The Court must also consider and balancethe harm to the Plaintiff from failure to grantthe injunctive relief it seeks. Contracts likethe one before me here, “are scrutinized withparticular care because they are often theproduct of unequal bargaining power andbecause the employee is likely to give scantattention to the hardship he may suffer lateron through the loss of his livelihood.”
SentryInsurance v. Firnstin,
14 Mass.App.Ct. 706(1982). The burden is on the Plaintiff to