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Early v. MiMedx Group Inc.

A clause in the parties' consulting agreement requiring the employee to "devote her full working time" to the performance of her duties under the agreement, without limitation concerning either scope or territory, was an illegal and unenforceable restraint of trade.

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We granted this interlocutory appeal to determine whether a provision in a Consulting Agreement that requires a designated employee of the Consultant to “devote her full working time” to the performance of the Consultant’s duties under the Agreement constitutes an illegal and unenforceable restraint of trade, and if not, whether the provision is enforceable against the employee named in the agreement, even though she did not expressly agree to be bound by the provision at issue. We answer the first question in the affirmative and thus need not reach the second question.

Pertinent to these issues, the record shows1 that appellee MiMedx Group, Inc. “MiMedx” develops, manufactures, and markets patent protected biomaterial-based products, including bioimplants made from human amniotic membrane. Appellant Ryanne Early2 was experienced in this field, and had worked for a “now defunct emerging competitor of MiMedx.” Sometime around January 2011, MiMedx and Early entered into negotiations about a possible “business relationship,” and later that month MiMedx and Early, as founder and president of ISE Professional Testing Consulting Services, Inc. “ISE”, entered into a “Mutual Confidentiality and Nondisclosure Agreement” “Nondisclosure Agreement” prohibiting Early from disclosing trade secrets and confidential information, which might be revealed to her during negotiations with MiMedx.

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