In the employment context, courts frequently construe the language of a non-compete against the employer who drafted it, reasoning that the employer’s stronger bargaining position and the public policy against restraints of trade favor that approach. As a result, drafting errors, ambiguities or other issues can come back to not only haunt the employer who drafted an agreement but a business that ultimately acquires or merges with that employer. Case in point is the recent ruling in OfficeMax v. Levesque, Case No. 10-2423, U.S. Court of Appeals for the First Circuit (Sept. 29, 2011); in that case, the First Circuit applied a literalistic approach to the non-competes at issue and found that they were no longer enforceable because they had expired 15 years before. (A PDF copy of the opinion is below and thanks to Zachary C. Jackson who wrote an article about this case in JDSupra).
 
In 1996, David Levesque and Dana Rattray were asked by their employer LS&H, an office services company, to sign non-competes in anticipation of its acquisition by another office services company, BCOP. The non-competes expressly contemplated that the acquisition was the reason for the non-competes; in addition, Levesque and Rattray specifically agreed to enter into substantially similar non-competes with BCOP after the acquisition. However, the specific provisions detailing the scope of the non-competes stated they would run “[f]or a period of 12 months after termination of my employment with LS&H.” After BCOP completed the acquisition, Levesque and Rattray refused to sign new non-competes but were permitted to continue working at BCOP. In 2004, BCOP merged with OfficeMax.

Levesque was terminated in 2009 and Rattray resigned in 2010. Both tried to find work in the printing services business, but ultimately found that they could only find work in the office supply business. (This factor, although not discussed, likely had some impact on the First Circuit’s determination). When OfficeMax brought separate actions to enforce the non-competes, the district court enforced them. The First Circuit, however, reversed. The First Circuit empahsized the fact that despite the parties’ awareness of the imminence of the acquisition, the non-compete’s language was nevertheless limited to LS&H and did not mention BCOP or any successor or assign. As a result, the plain language of that provision had to control.
 
There are three lessons to be drawn from OfficeMax: (1) from the drafting standpoint, broadly defining the “employer” or “company” to include affiliates and successors and assigns would have included BCOP and OfficeMax; (2) insisting upon execution of the new non-competes as a condition of employment after the acquisition would have eliminated this possibility; and (3) from the acquirer’s perspective, thorough diligence and insistence on new agreements with broader language prior to the acquisition would have remedied this problem.