IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
PAYSCALE INC., ) ) Plaintiff, ) ) v. ) C.A. No. 2025-0118-BWD ) ERIN NORMAN and BETTERCOMP, ) INC., ) ) Defendants. )
MEMORANDUM OPINION GRANTING MOTION TO DISMISS
Date Submitted: May 27, 2025 Date Decided: June 9, 2025
Steven L. Caponi, Megan E. Hunt, K&L GATES LLP, Wilmington, DE; OF COUNSEL: Kathleen D. Parker, K&L GATES LLP, Boston, MA; Attorneys for Plaintiff Payscale Inc.
John A. Sensing, Jesse L. Noa, Tyler E. Cragg, Hannah L. Paxton, POTTER ANDERSON & CORROON LLP, Wilmington, DE; Attorneys for Defendants Erin Norman and BetterComp, Inc.
DAVID, V.C. The plaintiff in this action, Payscale Inc. (“Payscale”), has sued a former
employee and her new employer to enforce restrictive covenants, including a
noncompete, contained in two incentive equity agreements the employee signed
while working at Payscale. Payscale also brings claims for breach of nonsolicitation
and confidentiality provisions in the same agreements, as well as tortious
interference with contractual relations and tortious interference with prospective
business relations. This memorandum opinion concludes that the noncompete is
unreasonable in scope, rendering it unenforceable, and that the remaining counts fail
to state a claim upon which relief may be granted.
I. BACKGROUND Unless otherwise noted, the following facts are taken from Payscale’s
Amended Verified Complaint (the “Amended Complaint”) and the documents it
incorporates by reference. Am. Verified Compl. [hereinafter “Am. Compl.”], Dkt.
26.
A. Payscale Hires Norman As Its Director Of Sales.
Payscale is a Washington corporation that provides compensation data,
software, and services throughout the United States. Am. Compl. ¶¶ 13, 15, 32. On
November 29, 2021, defendant Erin Norman (“Norman”) began working for
Payscale as Director of Sales, reporting to Payscale’s Senior Vice President of Sales.
Id. ¶ 45; id., Ex. 4.
1 B. Topco And Norman Enter Into The First Incentive Equity Agreement.
Non-party Sonic Topco, L.P. (“Topco”) is a Delaware limited partnership that
serves as the parent holding company for Payscale and Payscale’s subsidiaries. Am.
Compl. ¶ 14; id., Ex. 3.
On March 14, 2022, Topco and Norman entered into an incentive equity
agreement (the “First Incentive Equity Agreement”) under which Norman was to
receive 150,000 Topco “Profit Interest Units” in the form of “Service Units” and
“Performance Units.” Id., Ex. 1 [hereinafter First Agt.] §§ 1, 4(a). Under the First
Incentive Equity Agreement, Norman was to receive 25% of the Service Units on
February 23, 2023; the remaining 75% of the Service Units over the next three years;
and the Performance Units only upon a sale of Topco. Id. § 4(b). The fair market
value of the Profit Interest Units when Norman received them was $0.00, and they
cannot be transferred or sold unless Topco is sold or agrees to repurchase them. Id.
§§ 5–6, 15.
The First Incentive Equity Agreement includes restrictive covenants (the
“Restrictive Covenants”), including a covenant not to compete (the “Noncompete”),
a nonsolicitation covenant (the “Nonsolicitation Provision”), and confidentiality
obligations (the “Confidentiality Provision”). Id. §§ 7–8. Section 8(e) of the First
Incentive Equity Agreement (the “Cancellation Provision”) states that if Norman
2 breaches the Restrictive Covenants, her Profit Interest Units “shall automatically be
cancelled without payment of any consideration”:
Notwithstanding anything to the contrary herein, if it is determined following [Norman]’s Separation that [Norman] has breached any of the covenants in Section 7 or Section 8, in addition to the other remedies provided herein, (i) [Topco] shall be permitted to retroactively treat [Norman]’s prior Separation as though [Norman] had been terminated for Cause for purposes of this Agreement, (ii) all Profits Interest Units (whether held by [Norman] or one or more of [Norman]’s Transferees . . . shall automatically be cancelled without payment of any consideration and (iii) [Norman] shall pay to [Topco] (and/or the Investor Partners to the extent they exercised the Repurchase Option) the amount (if any) received by [Norman] (or any of [Norman]’s transferees) in consideration for the Profits Interest Units pursuant to the Repurchase Option; provided that the foregoing is not an election of remedies by [Topco] and [Topco]’s remedies are cumulative and is entitled to both forfeiture of the Profits Interest Units and actual damages.
Id. § 8(e) (emphasis added).
The Noncompete provides that, for eighteen months following Norman’s
separation from Payscale (the “Protection Period”), Norman “shall not engage in a
Competitive Activity,” id. § 8(a), defined as follows:
[W]ith respect to [Norman], directly or indirectly, whether as principal, agent, partner, officer, director, stockholder, employee, consultant or otherwise, alone or in association with any other Person or entity, own, manage, operate, control, participate in, render services for, or in any other manner engage in, anywhere in the United States, any Competitive Business other than for or on behalf of [Topco] or any Subsidiary of [Topco]; provided that nothing herein shall prohibit [Norman] from
3 (a) owning a passive interest of up to 2% of any class of securities of any corporation that is traded on a national securities exchange or
(b) being employed or engaged by an entity where such work (i) would not involve any level of strategic, advisory, technical, creative, or sales activity or (ii) is exclusively in connection with an independent business line of such entity that is wholly unrelated to the business operated by the Partnership Group and the Confidential Information.
Id. § 9 (emphasis added). “Competitive Business” is defined to include “any
business conducted by [Topco] or any of its Subsidiaries as of [Norman]’s
Separation Date or any business proposed to be conducted by [Topco] or any of its
Subsidiaries as evidenced by a written business plan in effect prior to [Norman]’s
Separation Date.” Id. The “Partnership Group” includes Topco and its direct and
indirect subsidiaries, although Payscale is Topco’s “only direct or indirect subsidiary
. . . that is an operating entity.” Id.; Am. Compl. ¶ 69.
The Nonsolicitation Provision provides that during the Protection Period,
Norman shall not:
(i) induce or attempt to induce any employee, advisor or independent contractor of any member of the Partnership Group to leave the employ or engagement of the Partnership Group, or in any way interfere with the relationship between any member of the Partnership Group and any of their respective employees, advisors or independent contractors, or
(ii) induce or attempt to induce any client, customer, supplier, vendor, licensor, lessor or other business relation of any member of the Partnership Group (or any prospective client, customer, supplier, vendor, licensor, lessor or other business relation with which any member of the Partnership Group has entertained discussions regarding a prospective business relationship) to cease or refrain from doing
4 business with any member of the Partnership Group, or in any way interfere with the relationship (or prospective relationship) between any such client, customer, supplier, vendor, licensor, lessor or other business relation and any member of the Partnership Group . . . .
First Agt. § 8(b) (emphasis added).
C. Payscale Promotes Norman To Senior Director Of Sales.
On February 26, 2023, Norman was promoted to Senior Director of Sales,
overseeing Payscale’s “Enterprise Sales teams” for the “West region.”1 Am. Compl.
¶¶ 47–48; id., Ex. 5. In that role, Norman supervised seventeen individuals and
reported to the Senior Vice President of Revenue, the head of Payscale’s sales
division who, in turn, reports to the Chief Operating Officer. Am. Compl. ¶¶ 48–
49.
D. Topco And Norman Enter Into The Second Incentive Equity Agreement. On August 14, 2023, Topco and Norman entered into another incentive equity
agreement (the “Second Incentive Equity Agreement,” and with the First Incentive
Equity Agreement, the “Incentive Equity Agreements”), under which Norman was
1 Payscale divides its customers into “East” and “West” regions, based on where the customers are headquartered. Am. Compl. ¶ 37. The West region included Alaska, Arizona, Arkansas, California, Colorado, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Louisiana, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, South Dakota, Texas, Utah, Washington, Wisconsin, Wyoming, and certain Canadian provinces. Id. ¶ 38. “During Norman’s employment at Payscale, Enterprise customers were entities with over 1,200 employees.” Id. ¶ 35.
5 to receive an additional 25,000 Profit Interest Units. Am. Compl., Ex. 2 [hereinafter
Second Agt.]. The Second Incentive Equity Agreement contains the same
Restrictive Covenants and Cancellation Provision as the First Incentive Equity
Agreement. Compare First Agt. §§ 7–8 with Second Agt. §§ 7–8.
E. Norman Leaves Payscale And Joins Korn Ferry, Then BetterComp.
On December 1, 2023, Norman resigned from Payscale. Am. Compl. ¶ 77.
Later that month, she accepted a position as a Client Director at Korn Ferry, a global
organizational consulting firm. Id. ¶ 80. Payscale did not seek to enforce the
Restrictive Covenants at that time. Defs.’ Opening Br. in Supp. of Mot. to Dismiss
Am. Compl. [hereinafter OB] at 9, Dkt. 29.
Ten months later, in October 2024, Norman updated her LinkedIn profile to
reflect that she had left her position at Korn Ferry to work for defendant BetterComp,
Inc. (“BetterComp,” and with Norman, “Defendants”), a California “compensation
market pricing software company and direct competitor of Payscale.” Am. Compl.
¶¶ 6, 17, 82–83. On November 22, 2024, Payscale informed Norman that she was
in breach of the Restrictive Covenants. Id. ¶ 98.
F. Procedural History
On January 31, 2025, Payscale initiated this action through the filing of a
Verified Complaint, seeking to enforce the Restrictive Covenants. Verified Compl.,
Dkt. 1. Payscale moved for expedition and a temporary restraining order. Id. At a
6 February 13 hearing, the Court granted expedition but denied Payscale’s request for
temporary injunctive relief. See Dkt. 17.
On March 14, Payscale filed the operative Amended Complaint. Dkt. 26. On
March 21, Defendants moved to dismiss the Amended Complaint (the “Motion to
Dismiss”).2 The Court heard oral argument on May 27. Dkt. 51.
G. The Protection Period Expires. The Protection Period expired on June 1, 2025. Am. Compl. ¶ 78. However,
Section 8(d) of the Incentive Equity Agreements states that “the Protection Period
will be extended for a period of time equal to the time period” that Norman breached
the Restrictive Covenants, “such that [Norman] is ultimately foreclosed from
engaging in the activities set forth in this Section 8 for a time period equal to the
Protection Period.” First Agt. § 8(d); Second Agt. § 8(d).
II. ANALYSIS Defendants have moved to dismiss the Amended Complaint under Court of
Chancery Rule 12(b)(6) for failure to state a claim upon which relief may be granted.
When reviewing a motion to dismiss under Rule 12(b)(6), Delaware courts
“(1) accept all well pleaded factual allegations as true, (2) accept even vague
2 On March 28, Payscale filed its Answering Brief in Opposition to the Motion to Dismiss. Pl.’s Answering Br. in Opp’n to Defs.’ Mot. to Dismiss Am. Compl. [hereinafter AB], Dkt. 36. Defendants filed their Reply Brief in Further Support of the Motion to Dismiss on April 4. Reply Br. in Supp. of the Mot. to Dismiss Am. Compl. [hereinafter RB], Dkt. 44.
7 allegations as ‘well pleaded’ if they give the opposing party notice of the claim, [and]
(3) draw all reasonable inferences in favor of the non-moving party.” Cent. Mortg.
Co. v. Morgan Stanley Mortg. Cap. Hldgs. LLC, 27 A.3d 531, 535 (Del. 2011)
(citing Savor, Inc. v. FMR Corp., 812 A.2d 894, 896–97 (Del. 2002)).
The Amended Complaint brings three counts: Count I alleges a claim against
Norman for breach of the Restrictive Covenants in the Incentive Equity Agreements;
Count II alleges a claim against BetterComp for tortious interference with
contractual relations; and Count III alleges a claim against Norman and BetterComp
for tortious interference with prospective business relations. Am. Compl. ¶¶ 138–
66. For the reasons that follow, all three counts are dismissed.
A. Count I Is Dismissed. In Count I of the Amended Complaint, Payscale alleges a claim against
Norman for breach of the Restrictive Covenants in the Incentive Equity Agreements.
Id. ¶¶ 138–48. Defendants raise several arguments in support of dismissal, including
that (1) the Incentive Equity Agreements are not binding because they were not
supported by valid consideration; (2) Payscale is not a third-party beneficiary of the
Incentive Equity Agreements and therefore lacks standing to enforce the Restrictive
Covenants; (3) the Restrictive Covenants are unreasonable in scope, rendering them
unenforceable; and (4) the Amended Complaint fails to adequately allege that
8 Norman has breached the Nonsolicitation or Confidentiality Provision. The
following analysis focuses on Defendants’ third and fourth bases for dismissal.
1. The Noncompete Is Unenforceable. “Delaware courts do not ‘mechanically’ enforce non-competes.” FP UC
Hldgs., LLC v. Hamilton, 2020 WL 1492783, at *6 (Del. Ch. Mar. 27, 2020) (quoting
McCann Surveyors, Inc. v. Evans, 611 A.2d 1, 3 (Del. Ch. 1987)). Instead,
“agreements not to compete must be closely scrutinized as restrictive of trade.”
Faw, Casson & Co. v. Cranston, 375 A.2d 463, 466 (Del. Ch. 1977). A noncompete
is enforceable only when it “(1) [is] reasonable in geographic scope and temporal
duration, (2) advance[s] a legitimate economic interest of the party seeking its
enforcement, and (3) survive[s] a balancing of the equities.” FP UC Hldgs., 2020
WL 1492783, at *6 (quoting Lyons Ins. Agency, Inc. v. Wilson, 2018 WL 4677606,
at *5 (Del. Ch. Sept. 28, 2018)). “To determine the reasonableness of the Non-
Compete, the Court must read the contractual language as a whole, in the context of
the employment relationship.” Hub Gp., Inc. v. Knoll, 2024 WL 3453863, at *8
(Del. Ch. July 18, 2024).
Under the Noncompete, for eighteen months following her separation from
Payscale, Norman “shall not engage in a Competitive Activity,” meaning she cannot
“own, manage, operate, control, participate in, render services for, or in any other
manner engage in, anywhere in the United States, any Competitive Business” for
9 anyone but Topco or its subsidiaries, where “Competitive Business” includes “any
business conducted by [Topco] or any of its Subsidiaries as of [Norman]’s
Separation Date or any business proposed to be conducted by [Topco] or any of its
Subsidiaries as evidenced by a written business plan in effect prior to [Norman]’s
Separation Date.” First Agt. §§ 8(a), 9; Second Agt. §§ 8(a), 9. In other words, for
an eighteen-month period, Norman is prohibited from working anywhere in the
country, in almost any role, for any company engaged in business that Topco or its
subsidiaries were conducting or had proposed to conduct as of Norman’s departure.
a. The Noncompete Is Overbroad In Geographic And Temporal Scope. Defendants argue that the Noncompete is overbroad in geographic and
temporal scope, and that it exceeds Payscale’s legitimate business interests.
Beginning with geography and duration, this Court has explained that:
The[se] two dimensions necessarily interact. To be barred for five years from working in a single county leaves open opportunities for the former employee in surrounding areas. To be barred from an entire state for a shorter period, such as a year or less, leaves open the possibility that the former employee could live off savings, take a long vacation, or enjoy some garden leave. All else equal, a longer restrictive covenant will be more reasonable if geographically tempered, and a restrictive covenant covering a broader area will be more reasonable if temporally tailored.
Del. Elevator, Inc. v. Williams, 2011 WL 1005181, at *8 (Del. Ch. Mar. 16, 2011).
The Noncompete here is eighteen months in duration—not unreasonable in
isolation—but nationwide in geographic scope. “[T]his court has enforced non-
10 competes with a nationwide scope, but only in instances where the competing party
agrees, in connection with the sale of a business, to stand down from competing in
the relevant industry . . . anywhere . . . for a stated period of time after the sale.” FP
UC Hldgs., 2020 WL 1492783, at *7. “These broader restrictions make sense
following the sale of a business” because “[t]he buyer has just paid handsomely for
the business and the broad non-compete clears the seller from the competitive space
while the buyer strives to make the business he just bought successful.” Id. But
where, as here, an employer provides an employee only minimal consideration to
secure a noncompete, this Court has found a nationwide scope overbroad. See, e.g.,
Centurion Serv. Gp., LLC v. Wilensky, 2023 WL 5624156, at *5 (Del. Ch. Aug. 31,
2023) (finding the nationwide scope of a noncompete overbroad, noting the
consideration received was minimal where the employee agreed to the noncompete
“when he was already employed by [the employer]”); FP UC Hldgs., 2020 WL
1492783, at *7 (finding the nationwide scope of a noncompete overbroad where the
employee did not receive “substantial consideration in exchange for his commitment
not to work in [the employer]’s industry anywhere in the United States”).3
3 Payscale relies on Lyons Insurance Agency, Inc. v. Wilson, 2018 WL 4677606 (Del. Ch. Sept. 28, 2018), where the Court concluded that a noncompete without an “express geographic limitation” was enforceable. Importantly, however, the Court in that case denied the plaintiff’s request for injunctive relief in favor of a liquidated damages clause.
11 Defendants argue that the consideration exchanged for the Noncompete here
is not just minimal, but illusory, such that no enforceable contract was formed. They
rely on this Court’s recent decision in North American Fire Ultimate Holdings, LP
v. Doorly, 2025 WL 736624 (Del. Ch. Mar. 7, 2025), where an employee executed
a contract under which he was to receive incentive units “subject to time and
performance vesting.” Id. at *1. The contract included restrictive covenants, and
stated that if the employee breached those covenants, his vested and unvested units
would be “automatically forfeited.” Id. The employer later sued to enforce the
restrictive covenants, and the Court dismissed the complaint, finding that when the
employer “declared that [the employee] forfeited the Units” by breaching the
restrictive covenants, the employer “eliminated the sole consideration for the
restrictive covenants.” Id. at *3.
Defendants contend that, as in Doorly, the only consideration Norman
received in exchange for the Restrictive Covenants—nontransferable Profit Interest
Units with no value at the time of issuance—was “automatically cancelled” upon
her purported breach, “eliminat[ing] the sole consideration for the restrictive
covenants.” Id.; OB at 20. I need not go so far as to conclude that Norman received
12 no consideration in exchange for the Noncompete, however.4 Assuming the Profit
Interest Units had some value when the parties executed the Incentive Equity
Agreements, it nevertheless is not reasonably conceivable that the consideration
exchanged—vanishingly small compared to that received for the sale of a business—
could support an eighteen-month, nationwide prohibition on work in almost any role
for any company engaged in business that Topco or its subsidiaries were conducting,
or had even proposed to conduct, as of Norman’s departure.5
4 Payscale seeks to distinguish Doorly on the basis that the Incentive Equity Agreements here were “executed in connection with [Norman]’s hiring and promotion.” Am. Compl. ¶ 2; see also id. ¶ 63 (alleging that the Restrictive Covenants were agreed to “in consideration of the mutual covenants contained in the [Incentive Equity] Agreements and other good and valuable consideration, including Norman’s signing bonus, salary, raise, [and] access to Payscale’s confidential information”). As our case law makes clear, new consideration supporting restrictive covenants “may include a beneficial change in an employee’s status, like a bonus or promotion.” Doorly, 2025 WL 736624, at *3. Defendants point out, however, that the Incentive Equity Agreements were executed months after Norman’s respective hiring and promotion. Norman was hired on November 29, 2021, but the First Incentive Equity Agreement was executed more than three months later, on March 14, 2022. Similarly, Norman was promoted on February 26, 2023, but the Second Incentive Equity Agreement was signed more than five months later, on August 14, 2023. 5 Compare, e.g., Kan–Di–Ki, LLC v. Suer, 2015 WL 4503210, at *20 (Del. Ch. July 22, 2015) (concluding that a non-compete restricting competition for five years in twenty-three states was enforceable, in part, because “when [the purchaser] paid $4 million and then roughly $300,000 to acquire [the seller’s] interests in two successive businesses, [the purchaser] acted reasonably and legitimately in insisting on some measure of protection from the possibility that [the seller] simply would go out and take those clients or otherwise undermine [the purchaser’s] business”); O’Leary v. Telecom Res. Serv., LLC, 2011 WL 379300, at *3 (Del. Super. Ct. Jan. 14, 2011) (reviewing a four-year national noncompete that was negotiated after the sale of a business for a substantial price); Tristate Courier &
13 b. The Noncompete Is Broader Than Necessary To Protect Payscale’s Legitimate Business Interests. The Noncompete is also broader than necessary to protect Payscale’s
legitimate business interests.
First, the overbreadth of the Noncompete’s nationwide scope is compounded
by the unlimited geographic scope of the Nonsolicitation Provision. It is difficult to
conceive how Norman could work as a salesperson in Topco’s or its subsidiaries’
lines of business anywhere in the world and be certain not to run afoul of the
Nonsolicitation Provision’s broad prohibition on soliciting even prospective clients,
given the difficulty in knowing who those unnamed prospective clients might be.
The practical effect is that Norman is restrained from working not only nationwide,
but worldwide. An international scope exceeds Payscale’s legitimate economic
interests, as Payscale provides “services to customers nationwide”—not worldwide.6
Am. Compl. ¶ 15. While “a noncompete’s geographic scope need not perfectly
Carriage, Inc. v. Berryman, 2004 WL 835886, at *1–2, *10, *13 (Del. Ch. Apr. 15, 2004) (reviewing a noncompete entered into in connection with a sale of stock for $150,000 and observing, “[b]ecause the Covenant is part of a contract for the sale of stock, this inquiry is less searching than if the Covenant had been contained in an employment contract”); Faw, Casson & Co., 375 A.2d at 465 (explaining that noncompetes “are subject to somewhat greater scrutiny when contained in an employment contract as opposed to contracts for the sale of a business”). 6 Notably, while the Noncompete applies nationally (and arguably internationally), Norman was responsible only for Enterprise customers in the West region. Am. Compl. ¶¶ 48, 59.
14 match the employer’s footprint at the time of contracting, at least in the context of a
sale of the business[,] . . . the employer must still have a legitimate business interest
in the protected area.” Cleveland Integrity Servs. v. Byers, 2025 WL 658369, at
*10–11 (Del. Ch. Feb. 28, 2025). Here, Payscale does not. See id. (finding “a
geographic scope prohibiting competition anywhere in North America” was
“facially broader than necessary to protect Plaintiff’s U.S. business interests”);
Intertek Testing Servs. NA, Inc. v. Eastman, 2023 WL 2544236, at *4 (Del. Ch. Mar.
16, 2023) (explaining that “incongruity between the [global] geographic scope” of a
noncompete and the plaintiff’s nationwide business “leads me to conclude the non-
compete is unreasonably broad and unenforceable”).
Second, although Payscale argues that the Restrictive Covenants are intended
to protect Payscale’s business, the Noncompete applies more broadly to Topco and
all of its unnamed subsidiaries. The Noncompete does not describe the lines of
business in which any of those entities operate, rendering the provision unreasonably
vague. See, e.g., Hub Gp., Inc., 2024 WL 3453863, at *9 (finding a noncompete
overbroad where the plaintiff “could not articulate or describe” the business
conducted by all the entities included under the definition of “Competing
Business”); Centurion Serv. Gp., 2023 WL 5624156, at *4 (finding a noncompete
overbroad because it “fail[ed] to define precisely what [the company’s] ‘business’
is”); FP UC Hldgs., 2020 WL 1492783, at *7 (same). The Noncompete also
15 prohibits Norman from working in the same line of business as Topco (managing
investments), even though Norman is not alleged to have any special knowledge of
Topco’s business that it conceivably could have an interest in protecting.
Finally, two limitations to the definition of “Competitive Activity” do not save
the Noncompete. The Incentive Equity Agreements define “Competitive Activity”
to permit work in a position that “(i) would not involve any level of strategic,
advisory, technical, creative, or sales activity or (ii) is exclusively in connection with
an independent business line of such entity that is wholly unrelated to the business
operated by the Partnership Group and the Confidential Information.” First Agt.
§ 9; Second Agt. § 9. Those carve-outs do little to limit the reach of the Noncompete.
“[S]trategic, advisory, technical, creative, or sales activity” is so broad as to
encompass virtually any position. And, as noted above, the Incentive Equity
Agreements do not define the business lines “operated by the Partnership Group.”
First Agt. § 9; Second Agt. § 9. Even with these limiting clauses, the Noncompete
prohibits activity beyond Payscale’s legitimate economic interests, rendering it
unenforceable.
c. The Court Will Not Blue Pencil The Noncompete. The Court will not blue pencil the Noncompete. “Delaware courts have the
discretionary power to blue pencil overbroad restrictive covenants to align a
company’s legitimate interests and an individual’s right to be free from unreasonable
16 restrictions on their livelihood.” Sunder Energy, LLC v. Jackson, 2024 WL
5052887, at *8 (Del. Dec. 10, 2024) (emphasis added). “[T]he court’s decision to
exercise that equitable power should be based on the covenants themselves and the
circumstances surrounding their adoption . . . .” Id. at *12. For example, “Delaware
courts have exercised their discretion to blue pencil restrictive covenants under
circumstances that indicate an equality of bargaining power between the parties,
such as where the language of the covenants was specifically negotiated, valuable
consideration was exchanged for the restriction, or in the context of the sale of a
business.” Id. at *8.
Even drawing all reasonable inferences in Payscale’s favor,7 the Amended
Complaint does not allege any facts that conceivably could warrant blue penciling.
The Amended Complaint does not allege that Norman entered into the Incentive
Equity Agreements in connection with the sale of a business, but through her
employment. Nor does the Amended Complaint allege facts suggesting that the
parties enjoyed equal bargaining power, or even that the Restrictive Covenants were
7 Payscale argues that the availability of blue penciling raises fact issues. AB at 34. “Although the Supreme Court’s affirmance [in Sunder Energy, LLC] was based on a developed record after trial, I do not read Sunder to require a trial on the availability of blue penciling where, as here, a noncompete is facially invalid and the [alleged] facts do not support such a remedy.” See Weil Hldgs. II, LLC v. Alexander, 2025 WL 689191, at *7 n.7 (Del. Ch. Mar. 4, 2025).
17 negotiated. Accordingly, the Court will not exercise its discretion to blue pencil the
Noncompete.
2. The Amended Complaint Fails To Adequately Allege A Breach Of The Nonsolicitation Or Confidentiality Provision.
The Amended Complaint fails to adequately allege that Norman has breached
the Nonsolicitation Provision or the Confidentiality Provision. The Amended
Complaint alleges “on information and belief” that, through her work for
BetterComp, “Norman breached . . . Section 8(b)(ii), which prohibits the solicitation
of Payscale’s customers or prospective customers,” and “is using Payscale’s
confidential information to solicit prospective customers to enter into contracts with
BetterComp instead of with Payscale.” Am. Compl. ¶¶ 96, 132. These conclusory
allegations, unsupported by any additional pled facts, fail to state a claim for breach
of either provision. See Intertek Testing Servs. NA, Inc., 2023 WL 2544236, at *5–
6 (dismissing a claim for breach of contract where the complaint only “assert[ed]—
without supporting facts—that [the defendant] ‘violat[ed] his various duties under’”
a stock purchase agreement’s nonsolicitation provision); Fitzgerald v. Cantor, 1999
WL 66526, at *1 (Del. Ch. Jan. 14, 1999) (“Conclusory allegations . . . are not
accepted as true without specific supporting factual allegations.”).
* * *
18 To summarize, the Noncompete is unenforceable, and the Amended
Complaint fails to state a claim for breach of the Nonsolicitation Provision or the
Confidentiality Provision. Count I is dismissed.
B. Count II Is Dismissed. In Count II of the Amended Complaint, Payscale alleges a claim against
BetterComp for tortious interference with contractual relations.
To state a claim for tortious interference with contract, a plaintiff must allege
“(1) a contract, (2) about which defendant knew, and (3) an intentional act that is a
significant factor in causing the breach of such contract, (4) without justification,
(5) which causes injury.” Bhole, Inc. v. Shore Invs., Inc., 67 A.3d 444, 453 (Del.
2013) (emphasis omitted) (citation omitted).
The parties’ briefing concedes that Count II turns on the enforceability of a
contract, and therefore rises or falls on Count I. See OB at 37; AB at 35. Because
Count I dismissed, Count II is also dismissed.
C. Count III Is Dismissed. In Count III of the Amended Complaint, Payscale alleges a claim against
Norman and BetterComp for tortious interference with prospective business
relations.
To state a claim for tortious interference with prospective business relations,
a plaintiff must allege “(1) a reasonable probability of a business opportunity;
19 (2) intentional interference by a defendant with that opportunity; (3) proximate
causation; and (4) damages.” Beard Rsch., Inc. v. Kates, 8 A.3d 573, 607–08 (Del.
Ch. 2012). When evaluating the sufficiency of such allegations, “[o]ur courts reject
‘vague statements about unknown customers,’ allegations of ‘a nebulous,
unascertainable class of business relationships,’ or speculative prospects.” Preston
Hollow Cap. LLC v. Nuveen LLC, 2020 WL 1814756, at *12 (Del. Ch. Apr. 9, 2020)
(citations omitted). “Instead, to succeed, [a plaintiff] must . . . . ‘identify a specific
party who was prepared to enter into a business relationship but was dissuaded from
doing so by the defendant.’” Id. (emphasis added) (citation omitted).
Count III fails to state a claim because the Amended Complaint does not plead
facts supporting an inference of either a reasonable probability of any specific
business opportunity, or intentional interference with any such opportunity. The
Amended Complaint alleges “on information and belief” that “Norman and
BetterComp knew and know of Payscale’s prospective and potential contractual and
business relations with its existing customers and prospective customers” and “have
interfered with and continue to interfere with Payscale’s prospective business
relations without justification or privilege,” but fails to plead any facts in support.
Am. Compl. ¶¶ 161–62. “[C]onclusory statements that Defendants thwarted
Plaintiffs’ business opportunities, . . . are insufficient to survive at the motion to
dismiss stage.” Glob. Discovery Biosciences Corp. v. Harrington, 2023 WL
20 8295946, at *7–8 (Del. Ch. Dec. 1, 2023) (finding that a plaintiff “fail[ed] to plead
a prima facie claim for tortious interference with prospective business relations”
where the complaint did not “assert potential contracts or opportunities that
Defendants interfered with”).
The Amended Complaint also alleges that “BetterComp has been deliberately
targeting Payscale’s customers by recruiting Payscale’s employees,” but fails to
allege that BetterComp acted unfairly when competing for employees. Am.
Compl. ¶ 135. A claim for tortious interference with prospective business relations
“is unusual, in that its application, even if the[] elements are met, is circumscribed
by consideration of competing rights. Thus, the elements of the tort must be
considered in light of a defendant’s privilege to compete in a lawful manner.”
Kuramo Cap. Mgmt., LLC v. Seruma, 2024 WL 1888216, at *33 (Del. Ch. Apr. 30,
2024) (quoting Preston Hollow Cap. LLC, 2020 WL 1814756, at *12). A defendant
has a privilege to compete if “(a) the relation concerns a matter involved in the
competition between the actor and the other and (b) the actor does not employ
wrongful means and (c) his action does not create or continue an unlawful restraint
of trade and (d) his purpose is at least in part to advance his interest in competing
with the other.” Id. at *34 (quotation omitted). The only “wrongful” conduct
adequately alleged is violation of a Noncompete that the Court has found
unenforceable. Count III therefore fails to state a claim.
21 III. CONCLUSION For the reasons explained above, the Motion to Dismiss is GRANTED and
the Amended Complaint is DISMISSED.