VII. FORMS OF RELIEF

    When a party commences an action against another, it can request from the court two types of relief: legal and equitable. Legal relief typically manifests itself in the form of damages, a judgment that uses money to try to right the wrong. Equitable relief usually involves an order from the court instructing a party to perform or refrain from performing a specified activity. In cases of restrictive covenants, the employer will typically request a court order (equitable relief) seeking to enforce the provisions of the agreement and order the former employee to cease engaging in activities that violate the agreement. In cases involving alleged breach of a noncompete agreement, equitable relief is the preferred and most common form of relief because the plaintiff employer claims that it has experienced irreparable harm that cannot be measured in monetary terms. In addition, equitable relief enjoins the other party from further violations of the agreement. Thus, the court order addresses both past and possible future breaches. 
    Equitable relief is the standard for non-compete agreement cases, but Connecticut courts have, on rare occasion, awarded money damages to plaintiffs as a supplement to equitable relief. For example, in National Truck Emergency Road Service, Inc. v. Peloquin, the court ordered a former employee to return documents that were used in illegal competition, and then awarded damages to the employer for losses directly connected to breach of the non-compete agreement. 112
    In a different case113 the court awarded only damages, since equitable relief was not a viable option because the non-compete agreement expired by the time the plaintiff commenced the litigation. The court held that the “plaintiff’s request for injunctive relief [had] become moot” due to the expiration, but it allowed the plaintiff to proceed with the action for money damages. 114 The enforcing party was permitted to introduce evidence and facts that enabled the court to calculate the lost profits directly associated with the breach of the non-compete agreement. The court ultimately concluded that the plaintiff was “entitled to recover damages from the defendant in that amount as to the proven breach of the covenant not to compete.”115 The court, unable to grant injunctive relief, awarded damages for the breach of a restrictive covenant to compensate for the loss suffered by the enforcing party.116

VIII. MODIFICATION AND “BLUE LINING”

    Under Connecticut law, in cases involving an alleged breach of a non-compete agreement, it may be possible to modify the terms of the contract so as to make an otherwise unenforceable agreement reasonable and enforceable. This results when the parties specifically state in the contract that the court has the express authority to alter its terms in order to enforce it. As another possibility, the court can apply the “blue pencil doctrine,” under which the court, 29 without the express permission of the parties, amends the terms of the agreement to render them reasonable. Connecticut recognizes the “blue pencil doctrine” but requires parties to submit evidence from which the court can conduct an informed analysis and establish appropriate geographic and/or time boundaries.117 If the parties are open to court modification of unreasonable terms to facilitate a valid and enforceable agreement, the more straightforward approach is to include contractual language and clauses in the restrictive covenant itself permitting such court action. An example of such a contractual clause is: 

    In the event that any provision of this Agreement is held, by a court of competent jurisdiction, to be invalid or     unenforceable due to the scope, duration, subject matter or any other aspect of such provision, the court making     such determination shall have power to modify or reduce the scope, duration, subject matter or other aspect of such     provision to make such provision enforceable to the fullest extent permitted by law and the balance of this     Agreement shall be unaffected by such validity or unenforceability.118

Under this scenario, both parties consent to giving the adjudicating court the express power to modify terms of the restrictive covenant in order to make the contract, as a whole, reasonable and fully enforceable under Connecticut law.

    When determining whether to modify a geographical restriction, courts will generally subscribe to and apply either the “blue pencil rule” or the “Massachusetts rule.”119 These rules are divergent with respect to a court’s ability to modify geographical terms based on whether the area is divisible according to the language of the contract. The “blue pencil doctrine” permits courts to modify geographical restrictions only when the contractual language creates several distinct areas; the “Massachusetts rule” is much more lenient and allows a court to modify the terms “even though the territory is not divisible in the wording of the contract.”120 Connecticut courts are more receptive to the application of the “blue pencil doctrine” and feel that the 30 “Massachusetts rule” gives the court expansive, broad powers that, when exercised, result in courts crafting new contracts between the parties. 121 
    Connecticut follows the “line of authority which states that if the territory specified in the contract is by the phraseology of the contract so described as to be divisible, the contract is separable and may be enforced as to such portions of the territory so described as are reasonable.”122 One such case where the court applied the “blue pencil rule” was EastCoast Guitar Center, Inc. v. Tedesco123, where the court held that the original “geographic area in the agreement [was] too broad and [was] not reasonable or necessary to protect the plaintiff’s business.”124 The court dissected the contractual language pertaining to the geographical restriction and reduced it to certain enumerated counties (Fairfield, Litchfield, and New Haven) in order to make the agreement reasonable and enforceable. 125
    Modifications to contractual time restrictions can also occur based on a contractual provision or a court’s application of the “blue pencil rule.” Connecticut courts have asserted that they may “reduce the time limitation because of the ‘blue-pencil rule’ which states that under certain circumstances, a court may enforce parts of an agreement and not others.”126 In the absence of a contractual provision consenting to modifications, parties can demonstrate to the court that they are open to the possibility of the court modifying the restrictions during the litigation process. This provides the court with a certain degree of freedom to assess the current time restriction and reduce its length if the court finds it excessive and unreasonable. Courts can simply reduce the duration of the time restriction, and may instruct the parties to submit arguments regarding a potential extension to the full contractual period of time prior to expiration of the new restriction. In the latter situation, the court will consider the specific facts 31 of the case in determining whether it is necessary to enforce the original provision of the agreement. 127

IX. CONCLUSION

    The combination of the greatest recession since the Great Depression and the weakest job market in a generation has created for employers a “buyer’s market,” where non-competition covenants are flourishing. These covenants have become an employer’s weapon of choice for maximizing employee value: by reducing job mobility they increase employee “loyalty,” and should an employee be let go, they minimize the competitive damage that he can inflict in the marketplace. For at least the short term, we can expect employers to require post-employment restrictive covenants (most significantly, non-compete clauses) where they historically were not required or where market conditions have created employer leverage for their imposition. Simply put, non-compete agreements will, for the foreseeable future, be a regular fixture in the workplace. It is not too strong a statement to say that their enforcement can have life-changing consequences as a result of being foreclosed from one’s chosen profession, even for a relatively short period of time. 
    The attorneys here at Maya Murphy, P.C. regularly deal with restrictive covenants. Ideally, we can become involved when such covenants are being negotiated and drafted to ensure that our clients retain maximum flexibility with regard to employment. Our litigators have also argued successfully for such covenants read narrowly, or declared null and void, because of their legal infirmities. Often, an aggressive approach to litigation results in employer concessions that might not otherwise be offered. Each case is unique, as no two employees or positions are exactly the same. Whether it is negotiation or litigation, the attorneys at Maya Murphy, P.C. 32 stand ready to take whatever steps may be necessary or appropriate to protect your interests in either retaining existing employment or obtaining alternative employment of your choice.

112 National Truck Emergency Road Service, Inc. v. Peloquin, No. CV96025959S, 2001 Conn. Super. LEXIS 2393, at 11, 14 (Conn. Super. Ct. Aug 14, 2001). 113 Van Dyck Printing Co. v. DiNicola, 43 Conn. Supp. 191, 648 A.2d 898 (1993). 114 Id. at 191. 115 Id. at 201. 116 Id. at 200. 117 Beit v. Beit, 135 Conn. 195, 204-5, 63 A.2d 161 (1948); Ranciato v. Nolan, No. CV970401729S, 2002 Conn. Super. LEXIS 489, at 13-4 (Conn. Super. Ct. Feb. 7, 2002). 118 Weseley Software Dev. Corp. v. Burdette, 977 F. Supp. 137, 142 (D. Conn. 1996); See also, Ranciato v. Nolan, No. CV970401729S, 2002 Conn. Super. LEXIS 489, at 3 (Conn. Super. Ct. Feb. 7, 2002); United Rentals, Inc. v. Frey, CIV. NO. 3:10CV1628, 2011 U.S. Dist. LEXIS 16375, at 16-7 (D. Conn. Feb. 17, 2011). 119 Timenterial, Inc. v. Dagata, 29 Conn. Supp. 180, 184-5 (1971). 120 Id. 121 Id. at 185. 122 Id. at 184. 123 East Coast Guitar Center, Inc. v. Tedesco, No. CV 990337066S, 2000 Conn. Super. LEXIS 320 (Conn. Super. Ct. Feb. 7, 2000). 124 Id. at 4. 125 Id. 126 Access America, LLC v. Mazzotta, No. CV054001863, 2005 Conn. Super. LEXIS 2579, at 11- 2 (Conn. Super. Ct. Sept. 29, 2005). 127 Maintenance Technologies International, LLC v. Vega, No. CV054005177S, 2006 Conn. Super. LEXIS 136, at 13 (Conn. Super. Ct. Jan. 12, 2006).