1. Covenants Not To Compete in Healthcare: A Maryland Primer Robert R. Niccolini, Esquire McGuireWoods LLP rniccolini@mcguirewoods.com

2. Asking the Right Questions About Covenants 1. Are Covenants enforceable in the Healthcare Industry? 2. What is the Rule of Reason? 3. What is the Blue Pencil Rule? 4. What Remedies are Available? 5. Drafting Considerations

3. Are Covenants Enforceable in the Healthcare Industry? Yes, in Maryland No, in Minority Rule Jurisdictions

4. Are Covenants Enforceable in the Healthcare Industry? Warfield v. Booth, 33 Md. 63 (1870) Lofton v. TLC Eye Care Centers, 2001 U.S. Dist. LEXIS 1476 (D.Md. 2001) Holloway v. Faw. Casson & Co., 319 Md. 324 (1990)

5. What is the Rule of Reason? Courts will uphold a covenant “if the restraint is confined within limits which are no wider as to area and duration than are reasonably necessary for the protection of the business of the employer and do not impose undue hardship on the employee or disregard the interests of the public.” Holloway, 319 Md. at 334

6. Rule of Reason Considerations 1. Protectable Business Interest 2. Adequacy of Consideration 3. Temporal Scope 4. Geographic Scope 5. Undue Burden and Public Policy

7. Protectable Business Interest 1. Customer/Patient Relationships (Importance of personal contact) 2. Specialized Training (Unique?) 3. Confidential Business Info./ Trade Secrets

8. Adequacy of Consideration 1. Initial employment 2. Change in terms and conditions of employment 3. Continued Employment

9. Temporal Scope 1. No longer than reasonably necessary to protect biz interest 2. In Healthcare: 1 to 5 years *** Over 12-18 months *** 3. Holloway: personal contacts key, time necessary for clients to “disassociate”

10. Geographic Scope 1. No wider than reasonably necessary to protect biz interest 2. Service/Patient Area 3. Length of Patient Travel

11. Undue Burden/Public Policy 1. Ability to practice profession 2. MD rejects per se ban, but Judges are patients too 3. Minority Jurisdictions 4. AMA Opinion “discourages”

12. What is the Blue Pencil Rule? 1. Typical Approach: Excise invalid/overbroad provisions if severable 2. Flexible Approach: if intent unreasonable/oppressive, invalid; otherwise, make reasonable 3. MD Unclear on approach

13. Remedies 1. Injunctive Relief and Provable Damages vs. Liquidated Damages 2. Cost of Injunction and Future Violations Key to Decision 3. Attorney Fees Provision

14. Remedies – Injunctions 1. Procedure: TRO (ex parte vs. limited notice, 10-20 days); Preliminary Injunction; Trial on Permanent Injunction and Damages 2. Injunction: Likelihood of Success on the Merits; Balance of Convenience (greater injury); Irreparable Injury; Public Interest

15. Remedies – Liquidated Damages 1. Clear and Unambiguous 2. For Sum Certain 3. Reasonably Calculated to Anticipated Loss, not a Penalty

16. Drafting Considerations 1. Non-Solicitation of Employees and Customers/Patients Separate 2. Confidentiality Separate 3. Temporal Restrictions: Remember Holloway “time to disassociate” 4. For Physicians: time to rehire/retrain

17. Drafting Considerations 5. Geographic Restrictions: Area of Service/ Client Base 6. Geographic Restrictions: Remember Public Policy and Don’t Over-reach 7. Blue Pencil Options: Broader Reach vs. Certainty

18. Drafting Considerations 8. Arbitration Clauses: Allow for Injunctive Relief 9. Remedies Decisions 10. Sale of Business Options

19. Covenants Not To Compete in Healthcare: A Maryland Primer Robert R. Niccolini, Esquire McGuireWoods LLP rniccolini@mcguirewoods.com