It is not difficult to imagine a case where a long time salesperson leaves her former employer and begins work with a new employer. When the salesperson began employment with her former employer, the former employer required the salesperson to sign an employment agreement. This agreement contained a covenant not to compete that stated that the salesperson would not compete with the former employer after he resigned. It also provided that she would not use the former employer's confidential information. But the agreement did not provide any express promise that the former employer would ever give the salesperson any confidential information. Moreover, the agreement contained a merger clause that provided that the agreement was the only agreement between the parties and that there could be no implied promises by either party. After the salesperson begins working for the new employer, she begins communicating with customers whom she contacted while previously employed with her former employer. The former employer files suit and attempts to enforce the covenant not to compete. The issue in this example is whether the covenant is enforceable: Is there an otherwise enforceable agreement regarding confidential information even though there was no express promise by the former employer to provide any confidential information?
Jay J. Madrid, David F. Johnson & Joseph P. Regan,
The Merger Clause: A Potential Defense to the Mann Frankfort Implied Promise?,
Tex. Wesleyan L. Rev.
Available at: https://doi.org/10.37419/TWLR.V18.I4.3