First Circuit Upholds Non-Compete Agreement Under Massachusetts Law

Michael Hermalyn was employed until 2024 with DraftKings, a sports betting and online gambling company headquartered in Massachusetts. He left to join a rival company, Fanatics, which is based in California. However, his contract with DraftKings included a non-compete clause. Such clauses are enforceable under Massachusetts law but not under California law. DraftKings sued Mr. Hermalyn for breach of the non-compete agreement, and a district court ruled that Massachusetts law governed the dispute and preliminarily enjoined Mr. Hermalyn from working for Fanatics for one year.  Mr. Hermalyn took an interlocutory appeal.

In Hermalyn v. DraftKings, Inc., the First Circuit, in an oddly jokey opinion, affirmed. As indicated, the case is remarkable, if at all, not for its humdrum holding that Massachusetts law governs a Massachusetts non-compete agreement but for the odd tone that the court adopts. Mr. Hermalyn, we are told irrelevantly, left “a plum job” with DratKings. The opinion is filled with parenthetical caveats and asides that aren’t quite gratuitous but certainly become a stylistic tic. The tone throughout is oddly casual and conversational, employing contractions in ways that are unusual in judicial writing and transitioning with phrases like “Read on to learn why” and “So on to Bay State law then.” And then the Court rejects Mr. Hermalyn’s primary choice-of-law argument — that California has a materially greater interest in the case — with a gusto that borders on bullying.

The opinion includes headings that suggest a stage play: There is the “STAGE-SETTING,” two “wrap-ups,” and “LAST WORDS.” Clearly, something in the case or the lawyering of the case got on the judges’ nerves.

While I appreciate humor in almost all of its forms, I don’t care for opinions that convey contempt for litigants. In this case, it’s as though the Court has decided to publish an extended inside joke to which the reader is not privy. Yes, it seems that Mr. Hermalyn, despite being represented by reputable firms, has very weak legal arguments. Perhaps the judges were annoyed to have their time wasted with an expedited appeal of an open-and-shut case. Well, that’s something the judges can tell the attorneys face-to-face during oral arguments; it’s not something that needs to be shared with the public or the litigant, who is not culpable for being mistaken about the weight of his legal claims. When I was a clerk on the Eleventh Circuit, our judges could just affirm under Federal Rule of  Appellate Procedure 36(a)(1) in one sentence for the reasons given by the District Court. That seems to be what happened here, and so a sentence would have sufficed.