In the news recently has been the case of Martin Tremblay, who left his job as COO of Ubisoft Montreal. Because Mr. Tremblay had signed an employment contract containing a non-compete clause, Ubisoft has been able to secure an injunction (court order) preventing him from accepting employment at Vivendi or from any Ubisoft competitor in the United States, Canada, or Mexico.
Enforcement of these non-compete clauses differs on a state by state basis. If Mr. Tremblay were to come to California, he would find the state will not permit enforcement of these clauses except under the narrowest circumstances. These circumstances generally center on an agreement not to compete when someone sells an interest in a business. Provided that Mr. Tremblay did not sell a material interest in Ubisoft when he departed, California public policy would be unlikely to permit enforcement of the Ubisoft non-compete or recognize the validity of the injunction. He would be free to literally leave his job and start the next day in the same position for a direct competitor across the street.
While other states may not take the extremely broad view of California in such matters (it is obvious Canada does not in that Ubisoft has successfully enjoined Mr. Tremblay from accepting employment from a competitor), the enforceability of non-competes generally hinges on whether the court believes the restrictions are “reasonable” under the circumstances. So a ninety day restriction within a hundred mile radius may be reasonable; a two year restriction covering all of North America may not. This determination can be highly fact sensitive.
