The finding that an employee is unique can be very difficult, as was demonstrated in a case before the New York Department of Appeals last year. In that case, Harris appealed to Patients Med., P.C.14, a doctor`s office appealed a judgment that dismissed his application for an injunction, which deters a former employee, a doctor, from violating restrictive agreements in her employment contract. The Appeal Division found that the employer had no significant probability of success because of the merits of its rights. In particular, the Court found that the former employer had not demonstrated that the restrictive agreements were necessary to protect his legitimate interests, as he did not demonstrate that the physician`s benefits were unique or exceptional, which gave him an unfair advantage over the employer.15 Analysis, Inc. v. Balzano,16 the First Division justified this decision by the fact that the employee, an elevator inspector, does not provide unique or exceptional services or does not have access to trade secrets or decency information that would require the application of a non-formal notice provision. At Reed Elsevier, the parties had reached an agreement that limited TransUnion`s right to recruit members of the REI management team for a period of time. After REI`s Chief Technology Officer joined TransUnion, REI filed a complaint. But the Court refused to implement an otherwise clear agreement. A non-invitation provision not to apply to customers is generally easier to apply than a non-compete clause, as it does prevent the former employee or owner from requesting and/or performing services for certain categories of clients or clients specifically identified for a specified period.9 King v. Marsh – McLennan Agency LLC10 is an example of a recent case in which a New York court imposed a non-demand regime.
In King, the Tribunal found that the employer had an undeniable interest in enforcing a non-appeal agreement to protect its customer relationships. The agreement covers a period of more than one year after the termination of a worker`s mission. In April 2018, the DOJ filed a cartel and abuse of dominance action against two of the world`s largest railway equipment manufacturers, Knorr-Bremse AG and Westinghouse Air Brake Technologies Corporation, along with a civil transaction. The complaint alleged that these companies and a third company, Faiveley, had spent nearly a decade in violation of Section 1 of Sherman`s ”No Poach Nude” Act.