Collier HMA v. Menichello a medical noncompete dispute, considers whether a third party can enforce a noncompete after a merger. Jettisoning the “changed corporate culture and mode of operation” test, the Florida appeals court applied basic principles of corporate law to determine whether a parent company’s merger necessarily meant its subsidiary merged too and couldn’t enforce a noncompete involving one of its staff doctors.
Halfway through a three-year employment contract between the plaintiff and doctor defendant, the plaintiff’s corporate parent was acquired by another entity. The plaintiff-doctor employment contract contained a 12-month noncompete and specifically said it was not enforceable by third parties, successors or assignees of the parties.
After the acquisition, the doctor defendant quit and went to work for one of plaintiff’s competitors. The plaintiff sued the doctor for violating the 12-month noncompete. The doctor defended by stating that the parent company’s merger with another entity made the plaintiff a successor under the law that could not enforce the restrictive covenant. The trial court agreed and entered summary judgment for the doctor. The employer appealed.
Held: Reversed. Plaintiff employer can enforce the doctor’s noncompete.
Under Florida law, S. 542.335(1)(f), Florida Statutes (2012), an employment contractual provision that authorizes a third-party beneficiary, assignee or successor to enforce a restrictive covenant is valid.
The statute is silent on the meaning of “successor” but case law defines it to mean “a corporation that, through amalgamation, consolidation or other assumption of interests, is vested with the rights and duties of an earlier corporation.”
Here, the plaintiff employer’s status did not change after its parent company’s merger. Under the law, a parent corporation is a separate and distinct legal entity from its wholly-owned subsidiary. As a corollary, a parent company cannot exercise rights of its subsidiary.
The subsidiary plaintiff here continued its existence after the merger as the same single member LLC and didn’t sell or transfer its assets to another entity. Any change in company ownership several tiers up the corporate chain simply didn’t impact the doctor’s employment contract since plaintiff continued to operate and to employ the doctor. As the lone signer of the employment contract that contained the noncompete, plaintiff could enforce it.
The Court refused to apply the nebulous “culture and mode of operation” test which looks to the parties’ post-merger conduct (i.e., did the parties act as though the acquiring company was dictating the acquired company subsidiary’s actions?) to decide whether a third-party can enforce a noncompete. Instead, the Court considered whether the plaintiff continued its operations (it did) in the wake of the parent company’s merger.
Under black-letter corporate law principles, the Court found that the plaintiff’s parent company’s merger had no impact on the plaintiff as “no other entity emerged from the transaction as a successor to [plaintiff].” Summary judgment for the plaintiff reversed.