Browne v. Merkert Enterprises, Inc.

8 Mass. L. Rptr. 309
CourtMassachusetts Superior Court
DecidedMarch 30, 1998
DocketNo. 98386
StatusPublished

This text of 8 Mass. L. Rptr. 309 (Browne v. Merkert Enterprises, Inc.) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Browne v. Merkert Enterprises, Inc., 8 Mass. L. Rptr. 309 (Mass. Ct. App. 1998).

Opinion

Doerfer, J.

This action is before the Court pursuant to requests by both parties for injunctive relief relating to a noncompetition ¿greement. Plaintiff Theodore Browne (“Browne”), a former employee of Merkert, seeks a judgment declaring that the non-compete agreement he entered with Merkert Enterprises, Inc. (“Merkert”) is void and unenforceable and requests that the Court enjoin Merkert from enforcing the agreement. He wishes to accept employment with Pezrow New England, Inc. (“Pezrow”) a competitor of Merkert. Browne argues that he signed the agreement under duress, the agreement does not protect a legitimate business interest of Merkert, and that the agreement is unreasonable in scope. Merkert has responded by requesting that the Court enforce the agreement and enjoin Browne from engaging in conduct that violates the agreement. Merkert argues that the agreement protects its legitimate business interest in preserving its good will and confidential information, that the agreement is reasonable in scope and that Merkert will suffer irreparable harm if the agreement is not enforced. The issues set forth in the opposing motions are the same. For the reasons stated herein, the Court finds that Merkert has a reasonable likelihood of establishing at trial that the agreement is valid and enforceable. Furthermore, Merkert has satisfied the other conditions justifying the issuance of a preliminary injunction. Merkert’s motion for a preliminary injunction is ALLOWED1 and Browne’s motion is DENIED.

BACKGROUND

The facts set forth in the submissions by the parties are as follows:

Merkert is a Massachusetts corporation in the business of providing brokerage services to various manufacturers of goods and foods. Merkert assists manufacturers (also referred to as Principals) in marketing their products to retailers such as supermarkets and drug stores.2 The nature of the business requires Merkert to develop strong relationships with both the Principals and the retail customers.

Browne was employed by Merkert from 1984 until March 1998. In 1994, Browne became the Business Manager for Unilever, an important Principal of Merkert since 1983. In October of 1996, he was appointed Director of Merkert’s Health and Beauty Care/General Merchandise (HBC/GM) division. In December of 1996, Browne was promoted to Vice President of HBC/GM. Browne’s duties included, inter alia, maintaining and targeting Principal relations, maintaining relationships with retailers, developing and planning sales and determining services for price setting. Browne continued to act as Business Manager to Unilver when he became Vice President of HBC/GM. When Browne was promoted he was required to sign a noncompetition/nondisclosure agreement. In connection with his promotion and with the expectation that he sign the agreement, Merkert gave Browne a 14.8% raise. After consulting with his attorney, Browne proposed some revisions to the agreement. Some changes were made and Browne signed the agreement. The agreement provides, inter alia, as follows:

13. Restrictive Covenant

(b) The Employee covenants and agrees that, during the period of his or her employment by the Employer and for a period of six (6) months following the termination of such employment . . . the Employee will not, directly or indirectly, individually or as a consultant, advisor, agent, partner, employee, officer, director, stockholder, trustee, beneficial owner, creditor or in any other capacity,

(i) engage in a Restricted Business . . .

. . . the term “engage in Restricted Business” shall mean:
“conduct, or become associated with or have any financial interest in any individual or entity that is engaged in, any business which is competitive with (1) a business conducted by the Employer . . . within any state where a division of the employer to which the Employee has been assigned conducts such business ... , or (2) any [310]*310business known to the Employee to be identified in the Employer’s business strategy for commencement by the Employer within two (2) years from the Employee’s termination date, within any area so identified by the Employer."
(ii) contact or otherwise solicit any employee of the Employer with the intention or effect of encouraging such employee to terminate his or her employee to terminate his or her employment with the Employer; or
(iii) contact or otherwise solicit any principal, supplier or customer of the Employer (or of any such principal) with which the Employee has had contact, on behalf of the Employer, during the period of the Employee’s employment with the Employer, with the intention or effect of encouraging such principal, supplier or customer to terminate or reduce the volume of its business with the Employer (or such principal) or to place any portion of such business elsewhere.
14. Confidential relationship
The Employee acknowledges and agrees that all conversations, correspondence, records, files, customer lists, price lists, sales date, know-how, business confidences and other information ... of the Employer, its Principals, packers, suppliers, affiliates, and its and their customers are confidential information of the Employer. (The parties agree that confidential information does not include the general skill and knowledge that the Employee acquired during the course of his employment with the Employer.) The Employee agrees that during the period of his or her employment by the Employer and at all times thereafter, he or she shall not directly or indirectly use any such information for his or her own benefit or divulge, disclose or communicate any such information, not previously made public or known to the recipient, to any person, firm or entity without prior written authorization of the Employer. The Employee further agrees that at the termination of his or her employment with the Employer ... he or she will immediately deliver to the Employer (i) all originals and copies of documents then in the possession or under the control of the Employee containing any such confidential information, and (ii) all other property belonging to the Employer then in the possession or under the control of the Employee.

On February 9, 1998, Browne submitted a letter of resignation to Merkert. Browne wishes to work for Pezrow, a direct competitor of Merkert. Merkert contends that Browne would be in violation of the non-compete/nondisclosure agreement if he were to accept employment at Pezrow. Pezrow has withdrawn its offer of employment to Browne pending resolution of this matter. Browne requests, at this time, that the agreement be declared void. Merkert, in turn, requests that the agreement be enforced.

DISCUSSION

A preliminary injunction is warranted if the moving party establishes both a likelihood of success on the merits of the claim, and a substantial risk of irreparable harm in the absence of an injunction. Packaging Industries Group, Inc. v. Cheney, 380 Mass. 609, 617 (1980). If these factors are established, the Court must balance them against the harm that the injunction will inflict on the opposing party, including impact on the public interest. See T&D Video, Inc. v. City of Revere, 423 Mass. 577, 580 (1996).

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Bluebook (online)
8 Mass. L. Rptr. 309, Counsel Stack Legal Research, https://law.counselstack.com/opinion/browne-v-merkert-enterprises-inc-masssuperct-1998.