Retroactive Hiatus

Due to a Supreme Court brief, a major Appellate Division brief, some personal matters, and issues as to the hosting of this blog, there were no postings here for the last part of July. So this post is in the nature of a retroactive declaration of a hiatus. Hopefully, things will be (closer to) normal going forward.

All that is not to say that the courts were inactive. One case in particular, in which Judge Currier wrote one of the longest and most detailed opinions of the current Term, deserves special mention.

In ADP, LLC v. Kusins, ___ N.J. Super. ___ (App. Div. 2019), the Appellate Division faced six cases, all of which addressed a post-employment restrictive covenant that ADP had with employees. That covenant was also the subject of a number of other cases, in both state and federal court.

The entire opinion, a comprehensive discussion of the applicable law in this area, is well worth reading in full. But Judge Currier’s bottom line was that “because ADP presented evidence of a legitimate business interest to support the imposition of the covenant’s restrictions, the covenant is not entirely unenforceable. However, its non-solicitation and non-compete provisions are overly broad and require blue-penciling [that is, judicial tailoring] to ensure they reasonably guard ADP’s interest in protecting its customer relationships without imposing an undue hardship on its former employees.”

The result was that summary judgment rulings at the trial level were reversed, as Judge Currier applied the de novo standard of review of the legal issues and blue-penciled solicitation and market segment provisions of the covenant. In the lead case, Kusins, the panel remanded for a determination of whether the defendant employee breached the covenant as modified. The other cases were remanded for a decision as to the appropriate remedy for each defendant’s violation of the covenant. In all six cases, the remands are to include consideration of “the propriety of a counsel fee award commensurate with each defendant’s violations.”