Court Clarifies Boundaries of Post-Employment Restrictions

On June 13, 2025, the Massachusetts Supreme Judicial Court (SJC) issued a decision in Miele v. Foundation Medicine, Inc. that reinforces the distinction between noncompetition and nonsolicitation agreements under the Massachusetts Noncompetition Agreement Act, G.L. c. 149, § 24L (the “Act”). The court concluded that a forfeiture clause triggered by a former employee’s breach of a nonsolicitation agreement does not convert that agreement into a “forfeiture for competition agreement” subject to the Act’s strict requirements.

This ruling offers some welcome clarity for Massachusetts employers who include post-employment restrictive covenants in severance or transition agreements, particularly those concerned about how to enforce nonsolicitation provisions without running afoul of the Act.

Susan Miele, a former executive at Foundation Medicine, Inc. (FMI), had entered into both a restrictive covenant agreement at the outset of her employment and a transition agreement upon her separation in 2020. The restrictive covenant included a standard employee nonsolicitation clause, which prohibited her from recruiting FMI employees for one year after her departure. The later transition agreement incorporated that nonsolicitation clause and added a forfeiture provision: if Miele breached any agreement with FMI, she would forfeit remaining severance payments and be required to return those already made. FMI ultimately paid Miele approximately $1.2 million.

After leaving FMI, Miele joined Ginkgo Bioworks and allegedly solicited several FMI employees. FMI ceased her severance payments and demanded repayment. Miele sued FMI for breach of contract and argued that the forfeiture clause violated the Noncompetition Agreement Act because it imposed financial penalties based on post-employment conduct.

The Superior Court initially sided with Miele in part, holding that the forfeiture provision rendered the nonsolicitation clause a “forfeiture for competition agreement” — a type of post-employment restriction covered by the Act. Under that reasoning, FMI’s forfeiture clause would be unenforceable because it did not meet the Act’s strict procedural and substantive standards for noncompete agreements.

FMI sought direct appellate review, arguing that the Legislature expressly excluded nonsolicitation agreements from the scope of the Act and that attaching a forfeiture clause does not change that characterization.

The SJC agreed with FMI and reversed the Superior Court’s partial grant of judgment in Miele’s favor. The court emphasized that the Act expressly excludes nonsolicitation agreements from the definition of noncompetition agreements. Since forfeiture for competition agreements are a subset of noncompetition agreements, the court reasoned, they too must exclude nonsolicitation provisions. Allowing a forfeiture clause to change the character of the underlying agreement would, in the court’s view, effectively undermine the Legislature’s clear exclusion of such provisions from the Act’s coverage.

The court also rejected Miele’s attempt to reinterpret “competitive activities” in a way that would sweep solicitation back into the Act’s coverage. To do so, the court said, would contradict the plain language and would render the statute internally inconsistent.

For employers, this decision reinforces the legal distinction between noncompetition and nonsolicitation agreements in Massachusetts. While the two types of provisions may serve similar business interests, they are treated differently under the statutory framework. Employers incorporating nonsolicitation clauses into severance or other post-employment agreements may find some reassurance in the court’s conclusion that doing so, even with an accompanying forfeiture mechanism, does not implicate the Act.

At the same time, the case serves as an important reminder of the scrutiny that restrictive covenants can invite, especially where severance pay or other post-employment benefits are conditioned on continued compliance. Companies reviewing or updating such agreements should consider how these provisions are structured, what remedies they contemplate, and whether the agreements are likely to withstand legal challenge in light of evolving interpretations of the statute.

Summer 2025 Newsletter

Laredo, Smith & Kane’s Marc C. Laredo Named to The Legal 500’s Boston City Elite Rankings for Commercial Litigation

Laredo, Smith & Kane announces that Partner Marc C. Laredo has been named to The Legal 500’s inaugural Boston City Elite rankings in the area of Commercial Litigation. The Legal 500 U.S. City Elite rankings highlight leading lawyers at regional powerhouse firms who are handling work at the top of the legal market in their respective cities. The full rankings list can be viewed here.

Laredo brings a strategic legal approach to business litigation, general business law and employment law. He represents clients in disputes among owners of closely held businesses and a wide array of other business litigation matters including commercial contract cases, business torts, employment and non-competition litigation, government investigations and construction cases. Additionally, Laredo serves as counsel to closely held businesses, advising them on issues such as the initial formation and maintenance of the business entity, contract and employment matters, crisis situations and exit strategies.

The Legal 500 is a comprehensive research guide that highlights the practice area teams and attorneys who are providing the most cutting edge and innovative advice to corporate counsel around the world. Research is based on feedback from more than 300,000 clients worldwide, submissions from law firms, and interviews with leading private practice lawyers.

 

About Laredo, Smith & Kane, LLP

For nearly 30 years, Laredo, Smith & Kane has helped clients grow their businesses and resolve legal matters–offering clients big-firm expertise with the client-centered strategy that only a small firm can provide.  The firm’s attorneys successfully combine a strategic approach to running a business with thoughtful, thorough, and protective legal representation. The firm represents clients in matters related to business law and litigation, white collar criminal defense, government investigations, employment law, and school disciplinary and Title IX matters.

Laredo, Smith & Kane Attorney Brendan Cox Speaks on Direct Examination Workshop

Laredo, Smith & Kane Attorney Brendan S. Cox served as a visiting faculty member for a Direct Examination Workshop conducted by the New Jersey Office of the Public Defender, February 18-19. Topics included effective direct examination techniques for client and non-client witnesses, handling objections, and client-centered, advocacy based storytelling through witness examination.

Cox is an experienced litigator and criminal defense attorney. A versatile advocate, he counsels businesses and individuals to build strong cases that provide maximum protection and minimize serious risks. He has extensive experience managing trial court matters for complex civil and criminal cases, as well as advising companies of all sizes on business litigation matters. Cox’s criminal defense experience includes litigating all aspects of the criminal process, from probable cause hearings and arraignments through complex evidentiary motions and trial. He represents clients on a wide range of matters, including minor misdemeanors through serious, life-changing felonies. In addition to managing a full caseload of trial court matters, Cox also serves as a business advisor to companies on a range of matters such as employment agreements, business law, contracts, and intellectual property concerns.

 

About Laredo, Smith & Kane, LLP

For nearly 30 years, Laredo, Smith & Kane has helped clients grow their businesses and resolve legal matters–offering clients big-firm expertise with the client-centered strategy that only a small firm can provide.  The firm’s attorneys successfully combine a strategic approach to running a business with thoughtful, thorough, and protective legal representation. The firm represents clients in matters related to business law and litigation, white collar criminal defense, government investigations, employment law, and school disciplinary and Title IX matters.

Laredo, Smith & Kane’s Matthew A. Kane Presents on BBA Webinar, “State and Federal Interlocutory Appeals In Massachusetts”

Laredo & Smith & Kane announces that Partner Matthew A. Kane will present on the Boston Bar Association’s (BBA) webinar, “State and Federal Interlocutory Appeals In Massachusetts: What You Didn’t Know You Didn’t Know.”

The webinar will cover the procedural differences of interlocutory appeals, which are governed by an array of rules, statutes, and common-law doctrines. Kane and fellow panelists will discuss the potential mechanisms, applicable rules, practice tips, dos and don’ts, and common pitfalls, for securing appellate review of civil decisions before a full judgment on the merits. Designed for Massachusetts litigants, the program will cover both state and federal interlocutory appellate rules and practice – highlighting key similarities and differences between the two.

Kane is Laredo’s managing partner and a member of the firm’s management team. As a business litigation attorney, he focuses on business and commercial law. Representing banks, financial institutions, businesses, and individuals, Kane is a key member of the firm’s business litigation practice. He is known for his extensive experience in consumer finance, employment, construction, real estate, and general litigation. He is also particularly skilled in appellate advocacy, having successfully argued before the Massachusetts Supreme Judicial Court and the Massachusetts Appeals Court. His experience resolving banking and financial services litigation includes handling complex cases involving mortgage and title disputes, commercial workouts and collections, civil check fraud, and fair debt collection issues. Regularly appearing at all levels of state and federal courts across Massachusetts and Rhode Island, his firsthand advocacy experience couples with his strong appellate experience and strategic approach, making him a trusted advisor in the legal community. Kane serves on the BBA’s Business and Commercial Litigation Section Steering Committee.

About Laredo, Smith & Kane, LLP

For nearly 30 years, Laredo, Smith & Kane has helped clients grow their businesses and resolve legal matters–offering clients big-firm expertise with the client-centered strategy that only a small firm can provide.  The firm’s attorneys successfully combine a strategic approach to running a business with thoughtful, thorough, and protective legal representation. The firm represents clients in matters related to business law and litigation, white collar criminal defense, government investigations, employment law, and school disciplinary and Title IX matters.

Laredo, Smith & Kane Attorneys Serve as Faculty for MCLE’s 10th Annual Appellate Practice Conference

Laredo, Smith & Kane attorneys Matthew A. Kane and  Payal Salsburg served as faculty for Massachusetts Continuing Legal Education’s (MCLE) 10th Annual Appellate Practice Conference. Kane spoke about a number of issues peculiar in civil matters. Salsburg was conference co-chair and spoke to the newest appellate judges in Massachusetts about their backgrounds and advice for practitioners appearing before them. The in-person conference took place on Dec. 5, and included a live webcast option.

The Appellate Practice Conference covered developments in criminal and civil law, new judges, new clerks of court, and more. The newest appellate judges in Massachusetts provided an overview of their backgrounds and advice for practitioners appearing before them. State and federal appellate court clerks discussed recent developments in each court’s procedures and offered practical tips for litigants.

Kane is a member of Laredo, Smith & Kane’s management team, and is the incoming managing partner effective Jan. 1, 2025.  As a business litigation attorney, he focuses on business and commercial law. Representing banks, financial institutions, businesses, and individuals, Kane is a key member of the firm’s business litigation practice. He is known for his extensive experience in consumer finance, employment, construction, real estate, and general litigation. He is also particularly skilled in appellate advocacy, having successfully argued before the Massachusetts Supreme Judicial Court and the Massachusetts Appeals Court.

Salsburg is a member of the firm’s management team. As a business and litigation attorney, she focuses her practice in the areas of business litigation, corporate advice and counsel, and white-collar criminal defense. She represents corporations, small businesses, and individuals in contract and business disputes, False Claims Act matters, State Ethics Commission inquiries, and government and internal investigations. Salsburg also advises closely held businesses on corporate and employment matters.

MCLE is a non-profit corporation that aims to raise the caliber of lawyers’ professional and ethical service to their clients and communities by providing comprehensive and practical continuing legal education of the highest quality to the broadest possible audience.

About Laredo, Smith & Kane, LLP

For nearly 30 years, Laredo, Smith & Kane has helped clients grow their businesses and resolve legal matters–offering clients big-firm expertise with the client-centered strategy that only a small firm can provide.  The firm’s attorneys successfully combine a strategic approach to running a business with thoughtful, thorough, and protective legal representation. The firm represents clients in matters related to business law and litigation, white collar criminal defense, government investigations, employment law, and school disciplinary and Title IX matters.

Laredo, Smith & Kane’s Payal Salsburg Spoke on MCLE’s Live Webcast, “Federal Court Civil Practice 2024”

Laredo, Smith & Kane attorney Payal Salsburg spoke on Massachusetts Continuing Legal Education’s (MCLE) Nov. 14th webcast, Federal Court Civil Practice 2024: Demystifying Litigation in Federal Court. The program covered the basics of taking a case from its inception to trial in federal court and the considerations at play in deciding to bring an action in federal court. The challenges faced at the outset of litigation were also discussed, including preliminary injunctions and temporary restraining orders, the handling of discovery, dispositive motions, alternative dispute resolution, and trial.

Salsburg is a member of Laredo, Smith & Kane’s management team. As a business and litigation attorney, she focuses her practice in the areas of business litigation, corporate advice and counsel, and white-collar criminal defense. Salsburg represents corporations, small businesses, and individuals in contract and business disputes, False Claims Act matters, State Ethics Commission inquiries, and government and internal investigations. She also advises closely held businesses on corporate and employment matters. Prior to joining the firm, Salsburg was a litigator at a large international law firm, in its Florida and Boston offices. She is a sought-after speaker on many topics, including ethics, inclusivity and lawyer well-being. Salsburg is recognized for her deep commitment to volunteerism in the community. Her pro bono experience includes several successful CORI-sealing petitions, petitions for asylum, an appeal from an inmate on Florida’s death row, litigation, and appeal to assist a not-for-profit foundation, and invoking Hague Convention protection to return a child wrongfully removed to the United States by a parent. She was also a bar advocate for criminal matters at the Boston Municipal Court (Central).

MCLE is a non-profit corporation that aims to raise the caliber of lawyers’ professional and ethical service to their clients and communities by providing comprehensive and practical continuing legal education of the highest quality to the broadest possible audience.

About Laredo, Smith & Kane, LLP
For nearly 30 years, Laredo, Smith & Kane has helped clients grow their businesses and resolve legal matters–offering clients big-firm expertise with the client-centered strategy that only a small firm can provide.  The firm’s attorneys successfully combine a strategic approach to running a business with thoughtful, thorough, and protective legal representation. The firm represents clients in matters related to business law and litigation, white collar criminal defense, government investigations, employment law, and school disciplinary and Title IX matters.

Four Laredo, Smith & Kane Attorneys Recognized by Boston Magazine as 2024 “Top Lawyers”

Laredo, Smith & Kane announces that four of its attorneys were selected by Boston Magazine for inclusion in the 2024 Top Lawyers list. The exclusive list honors the best attorneys in the region, from corporate to family law.

The four Laredo, Smith & Kane attorneys named to the list include:

●     Marc C. Laredo: Business Law

●     Payal Salsburg: Commercial Litigation

●     Jessica L. Conklin: Criminal Defense/White Collar

●     Darshana Indira: Labor and Employment

Boston Magazine’s annual Top Lawyers list is compiled through peer nominations. Attorneys are invited to nominate up to three of their peers in a select number of law specialties. Top vote-getters in each specialty are reviewed by an advisory board of select lawyers, chosen for their credentials and the high number of votes they received.

About Laredo, Smith & Kane, LLP
For nearly 30 years, Laredo, Smith & Kane has helped clients grow their businesses and resolve legal matters–offering clients big-firm expertise with the client-centered strategy that only a small firm can provide.  The firm’s attorneys successfully combine a strategic approach to running a business with thoughtful, thorough, and protective legal representation. The firm represents clients in matters related to business law and litigation, white collar criminal defense, government investigations, employment law, and school disciplinary and Title IX matters.

Laredo, Smith & Kane Earns Top Metropolitan and National Rankings in “Best Law Firms” 2025

Laredo, Smith & Kane received both high metropolitan and national rankings in the Best Lawyers® “Best Law Firms” 2025 edition. Law firms included on the “Best Law Firms” list are recognized for professional excellence and consistently strong ratings from clients and peers. Below are the firm’s complete rankings.

Metropolitan Tier 1 (Boston)

  • Closely Held Companies and Family Businesses
  • Commercial Litigation
  • Criminal Defense: White-Collar

Metropolitan Tier 2 (Boston)

  • Employment Law – Management

National Tier 3

  • Commercial Litigation

The Best Lawyers “Best Law Firms” rankings are determined by an exhaustive evaluation process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in their field and review of additional information provided by law firms as part of the formal submission process. To be eligible for a ranking in a particular practice area and metro region, a law firm must have at least one lawyer included in Best Lawyers in that particular practice area and metro.

About Laredo, Smith & Kane, LLP

For nearly 30 years, Laredo, Smith & Kane has helped clients grow their businesses and resolve legal matters–offering clients big-firm expertise with the client-centered strategy that only a small firm can provide.  The firm’s attorneys successfully combine a strategic approach to running a business with thoughtful, thorough, and protective legal representation. The firm represents clients in matters related to business law and litigation, white collar criminal defense, government investigations, employment law, and school disciplinary and Title IX matters.

Payal Salsburg Quoted in article: “Netflix’s ‘Varsity Blues’ Setback Puts Media On Watch”

Laredo, Smith & Kane partner, Payal Salsburg was quoted in a recent article covered by Law360. Payal discussed cases involving fair reporting privilege that were often determined at the summary judgment stage. She noted that there was no requirement that a documentary report both sides of an issue. But she did say the information Wilson provided to Netflix “can be used to show that Netflix had prior warning that maybe there wasn’t truth to this, and they proceeded anyway.” Regardless of how the Wilson suit plays out, Salsburg predicted more litigation if the hugely popular docudrama genre continues to blur or cross the line between fact and fiction.”People are really engrossed by docudramas and documentaries because of that dramatic tension. There is a fascination with dramatizing events,” Salsburg said. “I think these kinds of cases are going to come up a lot.”

We invited you to read the entire article using a Law360 subscription.

Seven Laredo, Smith & Kane Attorneys Recognized in the 2024 Edition of Massachusetts Super Lawyers

Laredo, Smith & Kane announces that seven of its attorneys have been recognized in the 2024 edition of Massachusetts Super Lawyers , with five included on the Super Lawyers list and two on the Rising Stars list.

The Laredo, Smith & Kane attorneys on the Massachusetts Super Lawyers list and their corresponding category/practice area are:

In addition, Super Lawyers named Kane, Laredo, and Salsburg to the Top 100 list, recognizing the top 100 attorneys in Massachusetts. Further, Salsburg was included on the Top 50 women list, recognizing Massachusetts’s top 50 women attorneys.

The Laredo, Kane & Smith attorneys on the Massachusetts Rising Starts list and their corresponding category/practice area are:

Super Lawyers is a research-driven, peer-influenced rating service of lawyers who have attained a high degree of peer recognition and professional achievement. The mission of Super Lawyers is to bring visibility to those attorneys who exhibit excellence in practice.

 

About Laredo, Smith & Kane, LLP

For nearly 30 years, Laredo, Smith & Kane has helped clients grow their businesses and resolve legal matters–offering clients big-firm expertise with the client-centered strategy that only a small firm can provide.  The firm’s attorneys successfully combine a strategic approach to running a business with thoughtful, thorough, and protective legal representation. The firm represents clients in matters related to business law and litigation, white collar criminal defense, government investigations, employment law, and school disciplinary and Title IX matters.