Heraeus Medical, LLC, et al. Appellants (Defendants)
Zimmer, Inc., et al. Appellees (Plaintiffs)
Argued: September 26, 2019
from the Kosciusko Superior Court, No. 43D04-1802-PL-21 The
Honorable David C. Cates, Judge.
Petition to Transfer from the Indiana Court of Appeals, No.
ATTORNEYS FOR APPELLANTS ROBERT G. DEVETSKI PETER D. HAMANN
BARNES & THORNBURG LLP SOUTH BEND, INDIANA MARK J.
CRANDLEY BARNES & THORNBURG LLP INDIANAPOLIS, INDIANA
GERALD E. BURNS PATRICK D. DORAN BUCHANAN INGERSOLL &
ROONEY, PC PHILADELPHIA, PENNSYLVANIA
ATTORNEYS FOR APPELLEES JOSHUA B. FLEMING LUCY R. DOLLENS
QUARLES & BRADY LLP INDIANAPOLIS, INDIANA
courts employ the "blue pencil doctrine" to revise
unreasonable noncompetition agreements. This doctrine,
though, is really an eraser.
the blue pencil doctrine, courts can make overbroad covenants
reasonable by deleting language, but they may not add
terms-even if the agreement contains a clause authorizing a
court to do so. Here, the overbroad covenant cannot be
blue-penciled to render it reasonable; so we vacate the
section of the trial court's preliminary injunction
purporting to enforce that provision.
and Procedural History
employee Robert Kolbe signed a noncompetition agreement
(Kolbe Agreement) soon after he transitioned into a group
director role. At issue today is a provision within the Kolbe
Agreement-a nonsolicitation covenant.
nonsolicitation covenant, which Zimmer drafted, prohibited
Kolbe from recruiting Zimmer employees to work for a
competitor. At the time, Zimmer was the exclusive United
States distributor of one of Heraeus's major medical
couple years later, Heraeus created an affiliate-Heraeus
Medical-to sell its products in the United States. Kolbe then
left Zimmer and joined Heraeus Medical to build a sales team.
In his new role, Kolbe recruited agents "on a weekly
basis" for Heraeus Medical. Eventually, several
positions at Heraeus Medical were filled by former Zimmer
ensued. Asserting multiple claims, Zimmer sought damages from
Heraeus Medical, Kolbe, and other former employees.
relevant here, Zimmer alleged that Kolbe violated the
nonsolicitation covenant by recruiting former Zimmer
employees to work for Heraeus Medical. Zimmer also sought a
preliminary injunction to enforce the Kolbe Agreement. After
a hearing, the trial court ...