The matter slated to be heard Sept. 12 stems from a 2009 lawsuit lodged by Home Paramount Pest Control against a former employee at its Falls Church branch who the company alleges illegally solicited customers after he left to work for a Springfield-based competitor, Connor’s Termite and Pest Control (
Home Paramount Pest Control Cos. Inc. v. Justin Shaffer, et al.)
Shaffer’s non-compete agreement sought to restrict his ability to perform pest control services for a competitor in the same part of Fairfax County he had been working in while at Home Paramount, the company argued. The trial court denied the claim, saying the non-compete agreement was too broad.
Attorneys for Shaffer, at the Reston law firm Hall, Sickels, Frei & Mims, did not return a request for comment. Home Paramount’s lawyer, Zachary Kitts at Cook Kitts & Francuzenko in Fairfax, declined to comment because the case is pending.
The second case, which the state Supreme Court has agreed to hear but has not set a date for, arises from a 2009 complaint filed by BB&T subsidiary BB&T Insurance Services, which accused former executive William Moore of violating his non-compete agreement by soliciting customers after he went to work for another insurance provider, Rutherfoord Inc. (BB&T Insurance Services v. Thomas Rutherfoord Inc.)
Moore’s attorney maintains that Moore didn’t poach customers and that the non-compete shouldn’t be enforced because it’s overly broad. The trial court agreed.
BB&T’s attorney at the Richmond law firm Williams Mullen did not return a call seeking comment. In court filings, he indicated that because the non-compete agreement involved the sale of a business — Moore became an employee of BB&T Insurance Services after he sold his business to the company — a different standard should apply that would make the non-compete enforceable when he moved to Rutherfoord 10 years later.
How the state’s high court rules in both cases could clarify what employees and businesses in Virginia can and can’t do when they move to, or hire from a competitor. Over the past decade, the Virginia Supreme Court has, through several rulings, made it harder to enforce non-competes because the terms could bar the employee from taking a job that doesn’t directly compete with the former employer. But since the rulings come on a case-by-case basis, the murky state of the law leaves Virginia companies struggling to draft non-competes to protect their business that will hold up in court.
“Those who do a lot of these cases are anticipating these decisions with some eagerness because there’s a tremendous lack of clarity right now as to what exactly the law of covenants for non-competes is in Virginia,” said Mark Dare, a partner at Tysons Corner law firm Isler Dare Ray Radcliffe & Connolly who is not involved in either case. His firm represents both sides in non-compete lawsuits: companies suing former workers and their new employers, as well as employers that get sued by their employee’s former bosses.
The rulings could also define the limits on what workers can do if they leave their job for a competitor.
“This decision will also be helpful to an employee who has an agreement but who is interested in knowing what his or her options would be if he wanted to accept employment with a competitor,” said Todd Leeson, a partner at Gentry Locke Rakes & Moore who is representing William Moore (no relation) and Rutherfoord in the BB&T matter.
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