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Volume XI, Number 106

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California Court Issues Non-Competition Order

Covenants not to compete have been in legislative disfavor in California since 1872.  This animus is currently codified at Section 16600 of the Business and Professions Code which provides that with certain statutory exceptions ”every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void”.  Thus, I was very surprised yesterday to read an opinion by Justice Maria P. Rivera that seemed to sanction court ordered non-competes.

As the case name suggests, In re Marriage of Greaux & Mermin, 2014 Cal. App. LEXIS 149 (Cal. App. 1st Dist. Feb. 14, 2014) involved a marital dissolution.  Although both spouses had worked to establish and grow the business, the family court judge awarded the corporation to the husband and ordered the wife to ”refrain from further conduct intended or likely to damage either business in any way”.  The judge further directed that the wife be subject to a five-year non-competition order.

On appeal, the wife argued that the non-competition order violated California’s strong public policy favoring competition and that the legislature had not authorized judicial non-competition orders.  Justice Rivera framed the issue as “whether the public policy affirming an individual’s right to engage in a trade or business of his or her choosing trumps the family court’s authority to issue any orders—and specifically a noncompetition order—to achieve an equal division of marital property.”  She concluded that as a general proposition, a party to a marital dissolution may be ordered not to compete when it is necessary to protect the value of a marital asset (i.e., the goodwill of the business).  The Court of Appeal nonetheless vacated the family court’s order because it failed to restrict the non-competition order to the geographic area in which the business was carried on.

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© 2010-2021 Allen Matkins Leck Gamble Mallory & Natsis LLP National Law Review, Volume IV, Number 50
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Keith Paul Bishop, Corporate Transactions Lawyer, finance securities attorney, Allen Matkins Law Firm
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Keith Bishop works with privately held and publicly traded companies on federal and state corporate and securities transactions, compliance, and governance matters. He is highly-regarded for his in-depth knowledge of the distinctive corporate and regulatory requirements faced by corporations in the state of California.

While many law firms have a great deal of expertise in federal or Delaware corporate law, Keith’s specific focus on California corporate and securities law is uncommon. A former California state regulator of securities and financial institutions, Keith has decades of...

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