The Seven Year Itch: Recent Guidance on the Massachusetts Noncompetition Act

Unfortunately, that guidance has been slow to come and, by and large, has not yet provided direct guidance on the biggest open questions, including what exactly satisfies the consideration requirements under the law.

Below, we discuss some of the recent case law from this year under the MNAA and what steps employers should take as a result.

An Overview of the MNAA

The MNAA provides that noncompete agreements are only valid and enforceable if they meet certain requirements.

All noncompetes that fall within the scope of the MNAA, regardless of when they are entered, must:

• Be in writing and signed by both the employer and employee.
• Expressly state that the employee has the right to consult with counsel prior to signing.
• Be no broader than necessary to protect the employer’s legitimate business interests.
• Extend for no more than 12 months post-employment (except in limited circumstances).
• Be reasonable in scope of geography and proscribed activities.
• Comply with the statute’s choice of law and venue requirements.
• Be supported by “a garden leave clause or other mutually-agreed upon consideration.”

Valid noncompete agreements entered into at the time employment begins must also be provided to the employee by the earlier of the formal offer of employment or 10 business days before the commencement of the employee’s employment.

Valid noncompete agreements entered into after the commencement of employment must also be supported by “fair and reasonable consideration independent from the continuation of employment” and be provided at least 10 business days before the agreement is to be effective.

The MNAA also clarified that “noncompetition agreement” includes “forfeiture for competition” provisions, which are provisions which impose adverse financial consequences on a former employee only if the employee engages in competitive activities. The MNAA does not include non-solicitation provisions or “forfeiture agreements” in the definition of noncompetition provisions. Forfeiture agreements are those that impose adverse financial consequences on a former employee regardless of whether the employee engages in competitive activities.

Recent Decisions

Anaplan Parent LP, et al., v. Brennan (No. 2584-CV-02350; Massachusetts Superior Court, dated Sept. 11, 2025)

• Summary: The court ruled that a noncompete provision contained in a former executive’s equity grant agreement was unenforceable under the MNAA. The court determined that the agreement was entered into between the executive and the parent company, rather than the subsidiary company that directly employed the executive. The court held that the agreement failed to adhere to the MNAA because the employer did not sign the agreement. In reaching its decision, the court held that although the term “employer” is undefined under the MNAA, it would not interpret the definition of “employer” to include parent or grandparent companies or similarly affiliated entities of the direct employer.
• Facts: Anaplan Inc. and its parent/grandparent company Anaplan Parent LP moved to enforce a noncompete agreement that would prevent Timothy Brennan, a former employee, from working with Anaplan’s competitor.
• Takeaways: The decision reinforces two concepts. First, the importance of adhering to the many technical requirements of the MNAA is critical because Massachusetts courts generally trend toward narrow enforcement of restrictive covenants and will be quick to invalidate those that do not comply. Second, the case provides critical insight on Massachusetts courts’ hesitancy to broadly interpret the definition of the term “employer.” To satisfy MNAA requirements, enforceable noncompete agreements must be signed by both the “direct employer” and “employee.” 

Miele v. Foundation Medicine, Inc., SJC-13697, 2025 WL 1667748 (Jun. 13, 2025)

• Summary: The Massachusetts Supreme Judicial Court (SJC) held that the MNAA does not apply to a forfeiture clause triggered by a breach of a non-solicitation agreement. The SJC reasoned that noncompetition agreements expressly do not include non-solicitation agreements, and forfeiture for competition agreements must therefore also exclude forfeiture for non-solicitation agreements.
• Facts: Susan Miele received severance benefits in the amount of $1.2 million as part of her separation from Foundation Medicine, Inc (FMI). In exchange, Miele agreed to restrictive covenants, including a one-year non-solicitation provision that barred Miele from soliciting FMI employees to leave their employment for any reason. If Miele breached the non-solicitation provision, she would trigger a forfeiture clause and forfeit any then-unpaid benefits owed to her under the agreement, as well as allow FMI to seek repayment of all previously paid benefits. Miele subsequently began working for a competitor and recruited several FMI employees to join her. FMI ceased making further payments and demanded repayment of money provided to Miele. Miele sued for breach of contract and argued that the forfeiture clause was unenforceable under the MNAA.
• Takeaways: Employers may use non-solicitation covenants with forfeiture provisions without triggering the MNAA’s technical requirements.

For a more detailed discussion of this decision and takeaways, please read our previous alert here.

Warren v. Zapata Computing, Inc., No. CV 23-13197-BEM, 2025 WL 1556040 (D. Mass. June 2, 2025)

• Summary: A federal court ruled that counterclaims based on an employee’s violation of a noncompete provision failed because the agreement was unenforceable under the MNAA. The court held that no evidence established that the employee was expressly informed of the right to consult with legal counsel prior to signing the agreement.
• Facts: The plaintiff, Michael Warren, sued his former employer Zapata Computing and several executives for violations of the Massachusetts Wage Act. Zapata Computing filed counterclaims alleging that, in relevant part, Warren violated a noncompete agreement.
• Takeaway: The technical requirements of the MNAA will be enforced with specificity. Employers must ensure that employees are explicitly informed, in writing, of the right to consult with counsel prior to entering into a noncompete agreement.

Takeaways and Next Steps

• Equity/Award agreements are in the crosshairs.
  • Many Massachusetts employers place restrictive covenants in equity grant documents issued by a parent/grandparent or holding company. In Massachusetts, those noncompetes are at risk if the employing subsidiary is not also a party and signatory. Companies should carefully examine noncompete covenants contained in equity or award agreements, particularly when those are the only restrictive covenants to which an employee is bound. If the parent/grandparent is the only employer side signatory to the agreement, companies will need to review whether the parent/grandparent would constitute an “employer,” and if not, take prompt steps to ensure there is an existing and enforceable noncompete agreement between the actual employer and the employee.
• Employers should carefully comply with each of the technical requirements in the MNAA to ensure enforceability.
  • It is critical that employers carefully follow the specific technical requirements of the MNAA. Missing even one such requirement could invalidate the restriction in its entirety.
• Carefully crafted forfeiture clauses do not run afoul of the MNAA.
  • Companies with employees in Massachusetts may now opt to incorporate or bolster the use of non-solicitation provisions accompanied by carefully drafted forfeiture clauses in agreements with employees in order to protect talent without triggering the MNAA.

For any questions about this update or restrictive covenants generally, please contact your ArentFox Schiff Labor, Employment & OSHA attorney.