Tag Archives: contracts

Noncompetition agreements and restrictive covenants

Kristin Olson published an article regarding the treatment of noncompetition agreements and restrictive covenants in various jurisdictions throughout the United States in this month’s edition of the International Association of Defense Counsel’s Business Litigation Newsletter.

Kristin is an experienced litigator who has extensive experience handling commercial litigation cases.  Kristin has litigated cases concerning noncompetition agreements and restrictive covenants, as well as trade secrets.

Clients rely on Kristin to assist them with interpretation and negotiation of noncompetition agreements in various employment contexts.

In Oregon, noncompetes in an employment context are governed by a lengthy statute, ORS 653.295, which provides that:

“(1) A noncompetition agreement entered into between an employer and employee is voidable and may not be enforced by a court of this state unless:

“(a)(A) The employer informs the employee in a written employment offer received by the employee at least two weeks before the first day of the employee’s employment that a noncompetition agreement is required as a condition of employment; or

“(B) The noncompetition agreement is entered into upon a subsequent bona fide advancement of the employee by the employer;

“(b) The employee is a person described in ORS 653.020(3);

“(c) The employer has a protectable interest. As used in this paragraph, an employer has a protectable interest when the employee:

“(A) Has access to trade secrets, as that term is defined in ORS 646.461;

“(B) Has access to competitively sensitive confidential business or professional information that otherwise would not qualify as a trade secret, including product development plans, product launch plans, marketing strategy or sales plans; or

“(C) Is employed as an on-air talent by an employer in the business of broadcasting and the employer:

“(i) In the year preceding the termination of the employee’s employment, expended resources equal to or exceeding 10 percent of the employee’s annual salary to develop, improve, train or publicly promote the employee, provided that the resources expended by the employer were expended on media that the employer does not own or control; and

“(ii) Provides the employee, for the time the employee is restricted from working, the greater of compensation equal to at least 50 percent of the employee’s annual gross base salary and commissions at the time of the employee’s termination or 50 percent of the median family income for a four-person family, as determined by the United States Census Bureau for the most recent year available at the time of the employee’s termination; and

“(d) The total amount of the employee’s annual gross salary and commissions, calculated on an annual basis, at the time of the employee’s termination exceeds the median family income for a four-person family, as determined by the United States Census Bureau for the most recent year available at the time of the employee’s termination. This paragraph does not apply to an employee described in paragraph (c)(C) of this subsection.

“(2) The term of a noncompetition agreement may not exceed 18 months from the date of the employee’s termination. The remainder of a term of a noncompetition agreement in excess of 18 months is voidable and may not be enforced by a court of this state.

“(3) Subsections (1) and (2) of this section apply only to noncompetition agreements made in the context of an employment relationship or contract and not otherwise.

“(4) Subsections (1) and (2) of this section do not apply to:

“(a) Bonus restriction agreements, which are lawful agreements that may be enforced by the courts in this state; or

“(b) A covenant not to solicit employees of the employer or solicit or transact business with customers of the employer.

“(5) Nothing in this section restricts the right of any person to protect trade secrets or other proprietary information by injunction or any other lawful means under other applicable laws.

“(6) Notwithstanding subsection (1)(b) and (d) of this section, a noncompetition agreement is enforceable for the full term of the agreement, for up to 18 months, if the employer provides the employee, for the time the employee is restricted from working, the greater of:

“(a) Compensation equal to at least 50 percent of the employee’s annual gross base salary and commissions at the time of the employee’s termination; or

“(b) Fifty percent of the median family income for a four-person family, as determined by the United States Census Bureau for the most recent year available at the time of the employee’s termination.

“(7) As used in this section:

“(a) ‘Bonus restriction agreement’ means an agreement, written or oral, express or implied, between an employer and employee under which:

“(A) Competition by the employee with the employer is limited or restrained after termination of employment, but the restraint is limited to a period of time, a geographic area and specified activities, all of which are reasonable in relation to the services described in subparagraph (B) of this paragraph;

“(B) The services performed by the employee pursuant to the agreement include substantial involvement in management of the employer’s business, personal contact with customers, knowledge of customer requirements related to the employer’s business or knowledge of trade secrets or other proprietary information of the employer; and

“(C) The penalty imposed on the employee for competition against the employer is limited to forfeiture of profit sharing or other bonus compensation that has not yet been paid to the employee.

“(b) ‘Broadcasting’ means the activity of transmitting of any one-way electronic signal by radio waves, microwaves, wires, coaxial cables, wave guides or other conduits of communications.

“(c) ‘Employee’ and ‘employer’ have the meanings given those terms in ORS 652.310.

“(d) ‘Noncompetition agreement’ means an agreement, written or oral, express or implied, between an employer and employee under which the employee agrees that the employee, either alone or as an employee of another person, will not compete with the employer in providing products, processes or services that are similar to the employer’s products, processes or services for a period of time or within a specified geographic area after termination of employment.”

Please contact Kristin should you have any questions concerning noncompetition agreements or restrictive covenants.

Lease agreements and consent provisions

Lease agreements are common.  But what if your lease agreement says that you can’t do something without the consent of the lessor?  Olson Brooksby deals frequently with airplane lease agreements.  For example, the owner of an airplane might have certain repair facilities that it likes and the lease might contain a consent provision that requires the owner to consent to the repair facility if the plane needs repairs.  This can be very frustrating for the lessee, who has to pay for the repairs.  The lessee might be concerned that the lessor wants an expensive repair facility or a facility that requires transportation of the plane to a faraway place.  How do conflicts over these provisions get resolved?

The following is from Kristin Olson and Scott Brooksby’s article published in the International Association of Defense Counsel’s Business Litigation, “Consent Provisions in Lease Agreements: Must the Lessor Act Reasonably?”

CONSENT PROVISIONS IN LEASE AGREEMENTS: MUST THE LESSOR ACT REASONABLY? 

Experienced business litigators are generally familiar with a broad range of real estate, equipment, and other forms of lease agreements, as well as litigation stemming from such agreements.  But what happens when a lease contract has a provision that requires the consent of the lessor before the lessee takes a certain action?  Does the lessee have recourse against the lessor if the lessee’s consent is, for example, withheld arbitrarily?

Equipment or airplane leases provide a useful case study.  Provisions in airplane lease agreements, for example, may require consent of the lessor.  By way of illustration, an airplane owner (the lessor) leases an airplane to an airline (the lessee) and the lease agreement includes provisions that require that the owner consent to the choice of airplane repair facility if the airplane needs repairs.  In cases where there are those types of contractual provisions, the owner might argue that the lease effectively allows it to unilaterally choose the repair facility for the airplane.  Under that hypothetical lease provision, even if the airline is allowed to initially choose the facility, the owner must consent to the airline’s choice.  This may have serious economic consequences for the airline, which may be concerned that the repair facility chosen by the owner is a slower repair facility than the one that the airline would have chosen, forcing the airline to incur loss of use damages.  The airline may also be concerned that the repairs conducted at the facility approved by the owner will be more costly—this is particularly a concern if, under the lease, the airline is required to pay for the repairs or if the airline’s pilots or mechanics damaged the plane.  The airline may also be concerned that the repair facility chosen by, or approved by, the owner is far away (a common issue with airline repair facilities)—particularly if the lease requires that the airline pay for all transport costs to the repair facility.

So what happens?  Is the airline subject to the owner’s choices?  In the hypothetical above, does the owner get to dictate where the airplane is repaired?  The answers to those questions vary depending on jurisdiction and whether the lease explicitly requires that the lessor act reasonably, as explained in further detail below.

Does the lease explicitly require that the lessor act reasonably?

A lease may explicitly provide that the lessor’s consent “may not be unreasonably withheld.”  If the lease contains this explicit provision, that is obviously helpful to the lessee.  However, it still does not resolve the issue in some jurisdictions.  Some jurisdictions require an examination of the facts and circumstances in order to determine whether the withholding of consent was “unreasonable” under the explicit terms of the lease.

For example, in Georgia, even if there is an explicit provision requiring that a lessor’s failure to consent be reasonable, there are common law tests of “fairness and commercial reasonableness” that must be applied to the lessor’s conduct.  WPD Center, LLC v. Watershed, Inc., 765 S.E.2d 531, 534 (Ga. App. 2014).  In that case, the court found that there was “a jury issue” as to whether consent was unreasonably withheld concerning a proposed sublease.  Id. at 534-35.

In some jurisdictions, courts will not require a lessor to act reasonably unless the lease explicitly requires it.                                                                                 

In New York, if there is no explicit requirement of reasonableness in the lease, the court will not impose such a requirement on the lessor.

In General Electric Capital Corp. v. Gary, 2013 WL 390959, *1 (S.D.N.Y. 2013), the court examined a loan agreement for the purchase of an aircraft.  The loan documents “specified that any assignment, lease or other transfer of any interest in or possession of the Aircraft or any of its parts required prior written approval by the lender.  Notably, the agreement did not require the lender to have a reasonable basis for withholding such consent”.   Id. at *4.  The court explained that, under New York law, when “’a contract negotiated at arm’s length lacks specific language preventing plaintiff from unreasonably withholding consent, the Court can not and should not rewrite the contract to include such language which neither of the parties saw fit to insert in the contract.’”  Id. (quoting Teachers Ins. & Annuity Assn. of Am. v. Wometco Enters., Inc., 833 F.Supp. 344, 349 (S.D.N.Y. 1994)).

In the Second Circuit case of State Street Bank & Trust Co. v. Inversiones Errazuiriz Limitada, 374 F.3d 158, 170 (2d Cir. 2004), cert. denied, 543 U.S. 1177 (2005), the court applied New York law and held that a credit agreement allowed a bank to unreasonably withhold consent on a sale of assets if the other party defaulted on its loans because it was an arms length contract that did not put explicit restrictions on the consent provisions.

Although the court in State Street acknowledged that New York law recognizes the implied covenant of good faith and fair dealing, it explained that the covenant must be consistent with the explicit terms of the contract before it is applied.  Id. at 169-70.  The court held that, under the terms of the agreement at issue in State Street, the bank had the right to “’withhold consent for any reason or no reason . . . .’”  Id. at 170 (quoting Teachers Ins. & Annuity Assn. of Am, 833 F.Supp. at 349).  The agreement did not explicitly restrict the bank’s right to refuse to consent to a sale of assets if the other party defaulted on its loans.  Id.  The court went on to note that, even if the implied covenant of good faith and fair dealing were hypothetically applied to these circumstances, “the bank’s refusal to consent to such a sale was neither unreasonable nor arbitrary” and was “made for a legitimate business purpose.”  Id.

Under South Dakota law, the implied covenant of good faith and fair dealing is generally applied to every contract. However, as long as the parties act honestly, South Dakota courts will probably broadly enforce most contractual terms that explicitly require consent.

In Taylor Equip., Inc. v. John Deere Co., 98 F.3d 1028, 1029 (8th Cir. 1996), Midcon was John Deere’s former industrial equipment dealer.  Midcon argued that John Deere breached the implied covenant of good faith and fair dealing by refusing to approve Midcon’s request to assign its dealership to a willing buyer.  Id.  at 1029-30.  As a result, Midcon had to sell its dealership to the approved buyers for a significantly lower amount of money.  Id. at 1030.  The contract between Midcon and John Deere provided that Midcon could not assign its dealership to any buyer “without the prior written consent of [Deere].”  Id. (internal quotation marks omitted.)  The court held that the implied covenant of good faith and fair dealing “cannot override this express term of the contract”.  Id.

Although “South Dakota law implies a covenant of good faith and fair dealing into every contract”, id. at 1031, the court explained that the definition of “good faith” is “’honesty in fact in the conduct or the transaction concerned.’”  Id. at 1032.  Additionally, under South Dakota law, the implied covenant of good faith and fair dealing “does not affect every contract term” and “cannot ‘block use of terms that actually appear in the contract.’”  Id.

The court explained that, as long as John Deere acted honestly, it had “an unrestricted right to withhold approval” under the contract.  Id. at 1034.  The court noted that, “’[I]n commercial transactions it does not in the end promote justice to seek strained interpretations in aid of those who do not protect themselves.’”  Id.

Michigan law recognizes the implied covenant of good faith and fair dealing. However, Michigan courts will generally refuse to apply the covenant of good faith or reasonableness to a contract that explicitly requires prior consent.

In James v. Whirlpool Corp., 806 F. Supp. 835, 838, 840 (E.D. Mo. 1992), the court applied Michigan law to a distributorship contract between St. Louis Appliance Parts, Inc. (SLAP), an appliance part distributor, and Whirlpool, the appliance manufacturer.  SLAP argued that Whirlpool breached its covenant of good faith and fair dealing because it refused to approve the sale and proposed assignment of SLAP to Aberdeen, another distributor.  Id. at 843.  The court explained that, “Michigan common law recognizes an implied covenant of good faith and fair dealing that applies to the performance and enforcement of all contracts.”  Id.  However, the court also noted that, under Michigan law, the implied covenant of good faith and fair dealing will only limit the parties’ conduct if the covenant does not contradict an explicit provision in the contract.  Id.  The court held that the contract explicitly restricted SLAP from assigning its rights under the contract without Whirlpool’s prior written consent.  Id. at 843-44.  The contract also provided that Whirlpool could terminate the contract “for a change in management or control which it found unacceptable.”  Id. at 844.  The court therefore refused to apply the covenant of good faith and fair dealing because it would “override the express terms” of the contract.  Id.

Under Minnesota law, prior consent requirements in contracts are generally upheld without restriction.

In In re Bellanca Aircraft Corp. v. Anderson-Greenwood Aviation Corp., 850 F.2d 1275 (1988), the court applied Minnesota law and held that Bellanca’s contracts with two companies to manufacture aircrafts were worthless assets because both contracts required the consent of the companies before Bellanca could assign the contracts to a different manufacturer.  Id. at 1285.  Under the contracts, “consent could be withheld for any reason whatsoever, arbitrarily or rationally.”  Id.  The court noted that the duty of good faith under the UCC did not prevent parties from negotiating provisions requiring consent that “may be reasonably or unreasonably withheld.”  Id.  Additionally, the court based its decision on the fact that that the parties did not cite to any common law supporting the idea that the UCC imposes “a duty not to withhold consent to assign unreasonably.”  Id. 

In Colorado, Alaska, Oregon, and Ohio, the courts generally apply the implied covenant of good faith and fair dealing, even if the contract does not explicitly state that the withholding of consent must be reasonable.

Colorado

In Larese v. Creamland Dairies, Inc., 767 F.2d 716, 717–18 (10th Cir. 1985), the court applied Colorado law and held that a franchisor may not unreasonably or arbitrarily withhold its consent to transfer rights to a franchise.  The court explained that, “the franchisor must bargain for a provision expressly granting the right to withhold consent unreasonably, to insure that the franchisee is put on notice.  Since, in this case, the contracts stated only that consent must be obtained, [the franchisor] did not have the right to withhold consent unreasonably.”  Id. at 718.

Alaska

In Alaska, “Where the lessor’s consent is required before an assignment can be made, he may withhold his consent only where he has reasonable grounds to do so.”  Hendrickson v. Freericks, 620 P.2d 205, 211 (Alaska 1980).

Oregon

In Oregon, the lessee has an objectively reasonable expectation that the lessor will consent, especially if the lessor has no objective reason to refuse its consent.  See Hampton Tree Farms, Inc. v. Jewett, 892 P.2d 683, 693 (Or. 1995) (“jury could find that [seller’s] unilateral action in discontinuing to supply logs frustrated [buyer’s] objectively reasonable expectation”).  Oregon courts recognize the implied covenant of good faith and fair dealing as long as it does not contradict an express contractual term.  Stevens v. Foren, 959 P.2d 1008, 1012 (Or. App. 1998).  In other words, the court will require reasonable conduct as long as the contract does not contain an explicit provision that allows the lessor to unreasonably withhold its consent.   Oregon, what is “reasonable” generally depends on the facts and circumstances.  Reasonable expectations include the right of either party to further its own legitimate business interests.  U.S. Genes v. Vial, 923 P.2d 1322, 1325 (Or. App. 1996).

Ohio

In Littlejohn v. Parrish, 839 N.E.2d 49, 50 (Ohio App. 2005), the court found that there was an implied covenant of good faith and fair dealing in a mortgage note, which stated that prepayment was subject to the mortgagee’s approval, but did not explicitly include a requirement that the mortgagee act reasonably.  The court noted that, under Ohio law, “there is an implied duty of good faith in almost every contract.”  Id. at 53.

Best Practices

If you are assisting parties in negotiating a contract, it is best if you include explicit provisions concerning consent.  If you represent the airplane owner in the introductory hypothetical, you may want to include a provision that states that consent is required and may be unreasonably withheld.  If you represent the airline, you obviously want to omit any consent provisions.  However, if the airplane owner requires a consent provision to do business, the airline should try to negotiate for a provision that explicitly states that consent may not be unreasonably withheld.  The airline could also try to negotiate for a specific list of agreed-to repair facilities in advance.

 

 

In Lease Agreements With Provisions Requiring the Consent of the Lessor, Consent May Not be Unreasonably Withheld, Unless There is an Express Provision Stating Otherwise

Olson Brooksby works with many commercial industries, including airline owners and airline insurers, regarding lease agreements.  A common issue in lease agreements is whether the lessee is totally at the mercy of the lessor if there is a provision in the lease that requires the lessor’s consent.  May a lessor unreasonably withhold consent?

Under Oregon law, a lessor may not unreasonably withhold consent to a lease provision.

Take this hypothetical, for example.  Let’s say that there is a provision in the lease that requires the lessor’s consent before the lessee can fly the plane over a certain number of miles.  What if the lessee unexpectedly needs to exceed the mileage in that lease provision and the lessor refuses to consent?  Under Oregon law, a lessor may not unreasonably withhold its consent.  To do so would be a violation of the implied covenant of good faith and fair dealing. The key issue is what is “unreasonable”?  If the lessor proffers a reason that would seem objectively reasonable to an average juror, the lessor has met its burden and the lessee probably may not fly the plane beyond the agreed-upon mileage amount.

The standard is whether an objectively reasonable juror would believe that the lessor’s withholding of consent was unreasonable.

Oregon courts have held that every contract includes an implied covenant of good faith and fair dealing, also known as a “duty of good faith”.  See Uptown Heights Associates v. Seafirst Corp., 320 Or 638, 645, 891 P2d 639 (1995); Pacific First Bank v. New Morgan Park Corp., 319 Or 342, 344 n 1, 876 P2d 761 (1994) (Oregon courts use the terms “duty of good faith” and “duty of good faith and fair dealing” interchangeably).  This covenant implies that neither party will engage in any act that will “have the effect of destroying or injuring the right of the other party to receive the fruits of the contract.”  Perkins v. Standard Oil Co., 235 Or 7, 16, 383 P2d 107, 383 P2d 1002 (1963) (quoting 3 Arthur Linton Corbin, Corbin on Contracts §561, at 278 (1960)).  The Oregon Supreme Court has “sought through the good faith doctrine to effectuate the reasonable contractual expectations of the parties.”  Pacific First Bank 319 Or at 351 (internal quotation marks and citations omitted).

The lessee has an objectively reasonable expectation that the lessor will consent, especially if the lessor has no objective reason to refuse consent.  See Hampton Tree Farms, Inc. v. Jewett, 320 Or 599, 616, 892 P2d 683 (1995) (“jury could find that [seller’s] unilateral action in discontinuing to supply logs frustrated [buyer’s] objectively reasonable expectation”).

The lessor must act in good faith and within the bounds of the “objectively reasonable expectations” of the parties.  Uptown Heights Associates, supra.  The express terms of a contract help to define the objectively reasonable expectations of the parties.  Uptown Heights Associates, supra; see Pacific First Bank, supra; Stevens v. Foren, 154 Or App 52, 58, 959 P2d 1008 (1998) (“[t]he duty of good faith and fair dealing cannot contradict an express contractual term, nor does it provide a remedy for an unpleasantly motivated act that is permitted expressly by contract”).  Reasonable expectations include the right of either party to further its own legitimate business interests.  U.S. Genes v. Vial, 143 Or App 552, 559, 923 P2d 1322 (1996).

If there are consent provisions in a lease, it is best if there is an express contractual provision requiring the parties to act in good faith. 

It is best if there is an express contractual provision of good faith, but if there isn’t one, you can rely on the common law above to argue that the lessor, by unreasonably withholding consent, is not exercising good faith and fair dealing, which is implied under the contract.  Pollock v. D.R. Horton, Inc.-Portland, 190 Or App 1, 12–13, 77 P3d 1120 (2003).

The duty of good faith and fair dealing applies to lease agreements implicitly, even if there is not an explicit provision requiring good faith. 

In Pacific First Bank, 319 Or at 353, a landlord-tenant case, the Oregon Supreme Court held that the duty of good faith and fair dealing applies to lease agreements.  The court cited Milton R. Friedman, 1 Friedman on Leases § 7.303e2 (3d ed 1990), which notes that, “there is a rapidly growing minority to the effect that if [a] lease states ‘tenant may assign only with landlord’s consent’ or ‘tenant may not assign without landlord’s consent’ there is engrafted on this language by implication the phrase ‘which consent shall not be unreasonably withheld’”.  Pacific First Bank, 319 Or at 353.  The only way that the lessor could get around this is if there is a “’freely negotiated provision in the lease’” giving the lessor “’an absolute right to withhold consent’”.  Id. (quoting Restatement (Second) of Property § 15.2(2) (1977 & 1993 Supp) (emphasis added to the Restatement quotation by the Pacific First Bank court).

The Pacific First Bank case involved a tenant who had merged into its wholly owned subsidiary and a bank, the lessor, who refused to consent to the transfer and who argued that, under the terms of the lease, transferring the lease required the bank’s prior written consent.  Id. at 344.  The court found in favor of the tenant noting that, although there was a term in the lease that gave the lessor “a unilateral, unrestricted exercise of discretion,” in regard to the lease transfer provision, there was also a term in the lease that provided that the bank would “’not unreasonably withhold its consent to a sublease to a tenant’”  Id. at 354 (emphasis added by the Pacific First Bank court). 

It would thus be helpful if there is a term in the contract providing that the lessor cannot unreasonably withhold its consent—particularly if the lease also includes a term that gives the lessor a unilateral, unrestricted exercise of discretion in regard to the particular provision at issue.  However, in the absence of a unilateral, unrestricted exercise of discretion provision in favor of the lessor, it is not necessary to have a term providing that the lessor will not unreasonably withhold consent, given the court’s Friedman quotation above (“there is engrafted on this language by implication the phrase ‘which consent shall not be unreasonably withheld’”.  Id. at 353 (quoting Friedman, supra).

The lessor’s exercise of consent is thus tempered by the lessor’s duty of good faith and the lessor must not “unreasonably restrain” the lessee’s ability to conduct business in a reasonable and efficient manner.  Carey v. Lincoln Loan Co., 165 Or App 657, 670 (2000), aff’d, 342 Or 530 (2007).  In other words, the provision regarding the lessor’s consent is “not * * * absolute” or subject to the lessor’s “’whim.’”  Id.