At the beginning of the year, we predicted that health care related litigation would continue to rise through 2012 as that industry continues to grow, in large part because of our aging population. Mentioned in the post were some lawsuits filed by Synthes, a European-based medical device manufacturer. Synthes has historically enforced its non-compete and non-solicitation agreements against former sales persons around the United States. The medical device industry is big business and in many cases, based on strong relationships with doctors.
Synthes continues to enforce those agreements. In a recent case, Synthes filed suit against a former salesperson in the Denver, Colorado area, who left Synthes and went off to start his own competing medical device venture. Synthes sued and the employee counterclaimed. The counterclaim is interesting. Whether it has any merit, is another question. Basically, he asserts that Synthes tactics violate antitrust laws.
Whether you love or hate Synthes, you have to respect their tenacity and the seriousness with which they approach their post-employment covenants. As we have discussed here previously, employers with these type of agreements should uniformly enforce them, and not make exceptions or ignore violations of them. This both supports the actual claim in court and also acts as a deterrent when an employee is considered breaching a post-employment covenant. Bottom line, if you’re going to draft these agreements, enforce them and take them seriously. Post-employment covenants make sense in certain situations depending upon your venue and law.