# Non-Compete Agreement Review Checklist — Indiana[^about] A clause-by-clause reviewer checklist for Indiana employee restrictive covenant agreements — confidentiality, non-solicits, non-competes, and non-disparagement under the common-law reasonableness test, the strict eraser blue pencil, and the layered physician statutes. ## Parties and cover-term identification {#parties-and-cover-term-identification} Review every item below the way an Indiana court would: there is no general non-compete statute, covenants are disfavored restraints construed strictly against the employer, and the employer must prove both a legitimate protectable interest and reasonableness in time, activity, and geography. The blue pencil here is an eraser — a court may strike divisible overbroad language but will never rewrite a clause to save it — and a layered statute stack governs physician covenants by execution date. For the question-by-question legal analysis behind these items, see the [Indiana non-compete practice note](/legal/non-compete/indiana). - [ ] **Parties identified by name** (Recommended) — Confirm the named employer is the entity that actually holds the goodwill, customer relationships, or confidential information the covenant claims to protect. Indiana puts the burden of proving a legitimate interest on the employer, so a covenant papered with a parent or staffing affiliate that owns none of the protected assets starts the enforcement case a step behind. [#identify-parties] - [ ] **Effective date** (Recommended) — The execution date does decisive work for physicians: covenants entered on or after July 1, 2020 must carry the statutory contract terms, primary care physician covenants entered on or after July 1, 2023 are banned, and physician-hospital covenants entered on or after July 1, 2025 are void. An undated physician agreement leaves the reviewer unable to tell which statutory layer governs. [^sea475-date-cover] [#identify-effective-date] - [ ] **Employee title** (Recommended) — Record the role precisely — it selects the legal track. A primary care physician cannot be bound at all under the 2023 statute, a specialist physician's covenant must satisfy the 2020 contract-term requirements, and for everyone else the role defines the only activity scope a court will accept: a restraint must track the work the employee actually performed. [^sea7-primary-care-cover] [#identify-employee-title] - [ ] **Governing law state named** (Recommended) — Check that the governing state is stated. Indiana generally honors a choice-of-law clause, but treat a foreign-law selection in an otherwise Indiana-centered agreement as a deliberate move worth questioning — the usual motive is escaping the strict eraser rule, and the construction-contract limit covered later in this checklist voids the tactic outright for one industry. [#identify-governing-law] ## Definitions {#definitions} - [ ] **Confidential information** (Recommended) — Test the definition against what Indiana actually protects. Confidential information is a recognized protectable interest, but an employee's general skills and routine industry knowledge are not — so a definition that sweeps in everything the employee learned on the job converts a protectable-interest recital into evidence of overreach. [^krueger-interest-defs] [#define-confidential-information] - [ ] **Trade secrets** (Recommended) — Track the statutory definition: independent economic value from secrecy plus reasonable efforts to keep the information secret. Indiana's trade-secret act runs alongside the covenant rather than replacing it, and for hospital-employed physicians whose non-competes are now void, the trade-secret and confidentiality definitions are the protection that remains — they deserve a careful read, not boilerplate treatment. [^iutsa-trade-secret-defs] [#define-trade-secrets] - [ ] **Restricted period** (Recommended) — One defined Restricted Period keeps every duration auditable against the reasonableness test, where the employer bears the burden on time along with activity and geography. Confirm the period is stated as its own severable term — if the duration is tangled into an indivisible clause, an Indiana court cannot shorten it and the whole covenant is at risk. [^krueger-scope-defs] [#define-restricted-period] - [ ] **Restricted territory** (Recommended) — Tie the geography to where the employer actually does business or where the employee held influence — the employer must prove the territorial reach reasonable, and an everywhere-the-company-operates footprint rarely survives that showing. Prefer a territory drafted in severable tiers (county, then region) so an eraser pass can remove the outer ring without killing the core. [^krueger-scope-defs] [#define-restricted-territory] - [ ] **Covered customers** (Recommended) — Bound the class to customers the employee actually served or about whom the employee held confidential information, with a stated look-back window. A customer restriction that sweeps in the employer's entire book regardless of contact has drifted from the protectable interest that justifies it — and the employer is the party who must prove that connection. [^krueger-interest-defs] [#define-covered-customers] - [ ] **Covered employees tied to a real interest** (Recommended) — This definition decides the no-poach clause's fate. Indiana voided an employee non-solicitation covenant precisely because it applied to all of the company's employees, and the eraser rule means a court cannot rewrite an all-employees class into a narrower one. Confirm the class is limited to workers with confidential information or specialized value — typically through a worked-with look-back — and that the limiting language is severable. [^heraeus-all-employees-defs] [#limit-covered-employees-to-protectable-interest-roles] - [ ] **Protected business interests** (Recommended) — Name the specific goodwill, customer relationships, trade secrets, or confidential information at stake. In Indiana this recital maps directly onto the employer's first burden of proof — showing a legitimate interest before reasonableness is even reached — so a generic desire to avoid competition written here is an admission, not a protection. [^krueger-interest-defs] [#define-protected-interests] - [ ] **Competitive business** (Recommended) — Describe the genuinely competing activity in concrete terms tied to what the employee did. The activity dimension is where Indiana covenants most often die: a definition that bars work for a competitor in any capacity — including roles untouched by any protectable interest — was held unreasonably broad, and no court here will trim it into shape. [^med1-any-capacity-defs] [#define-competitive-business] - [ ] **Small public-stock carve-out** (Recommended) — Where ownership or investment in competitors is restricted, look for a passive-holdings carve-out below a stated percentage. A clause that technically forbids holding index funds or ordinary public shares is gratuitous overbreadth — exactly the kind of unreasonable restriction an Indiana court refuses to enforce and will not soften by rewriting. [#permit-de-minimis-passive-public-investment-carveout] - [ ] **Passive public holdings** (Optional) — A drafting convenience, not a requirement — many agreements inline the carve-out language instead. If the capitalized term appears, confirm its percentage matches the operative carve-out it supports. [#define-passive-public-holdings] - [ ] **What counts as soliciting** (Recommended) — Pin the verb down so enforcement is not a fact-by-fact dispute over who called whom. A definition limited to initiating contact keeps the restraint modest; one that also captures passively receiving inquiries widens the clause toward the overbreadth that Indiana courts strike rather than narrow. Whatever shape it takes, draft it as its own severable term. [#define-solicit] - [ ] **Termination of employment** (Recommended) — Verify the trigger covers resignation, dismissal, and expiration of a fixed term the same way, since every covenant clock runs from this event. For physicians the cause distinction is statutory: a physician covenant becomes unenforceable when the employer terminates the physician without cause, so the definition must make who ended the relationship — and on what grounds — unambiguous. [^sea7-without-cause-defs] [#define-termination-of-employment] ## Timing and execution acknowledgements {#timing-and-execution-acknowledgements} - [ ] **When the agreement was signed** (Recommended) — Consideration is not the fight in Indiana: continued at-will employment supports a covenant signed mid-employment, even one presented as sign-or-be-fired. The acknowledgement still earns its place by pinning the signing date — which selects the governing physician statute — and by recording what was exchanged, but do not expect a consideration recital to carry an overbroad covenant past the reasonableness test. [^med1-consideration-timing] [#acknowledge-timing] - [ ] **Chance to consult a lawyer** (Recommended) — No Indiana statute demands it, but it is cheap procedural-fairness evidence in a state whose courts construe every ambiguity against the employer. The acknowledgement reads best alongside a real review window rather than a same-day signature. [#acknowledge-opportunity-to-consult-counsel] ## Confidentiality and trade-secret treatment {#confidentiality-and-trade-secret-treatment} - [ ] **Trade-secret protection without an end date** (Required) — Trade-secret obligations should last as long as secrecy does — both the federal definition and Indiana's act key protection to continued secrecy, not a contract date. A fixed expiry quietly converts a statutory right into a lapsing contractual one, and in Indiana the trade-secret layer often matters most where the covenant itself is shaky or, for hospital-employed physicians, statutorily void. [^dtsa-trade-secret-definition][^iutsa-secrecy-duration] [#treat-trade-secret-protection-as-perpetual] - [ ] **Confidentiality end date** (Recommended) — Give ordinary confidential information its own finite term, separate from the perpetual trade-secret track. A perpetual lid on non-secret information is the kind of unreasonable reach Indiana courts refuse to enforce — and the two-track structure is itself a severability play, keeping the defensible obligation divisible from the aggressive one. [#state-confidentiality-duration] ## Permitted disclosures and protected conduct {#permitted-disclosures-and-protected-conduct} - [ ] **DTSA whistleblower notice** (Required) — Federal law, fully applicable to Indiana agreements: omit the immunity notice and the employer forfeits exemplary damages and attorney fees in a later trade-secret suit against the worker. Because the trade-secret track is often the sturdiest protection an Indiana employer has, giving away its best remedies over a missing paragraph is an unforced error. [^dtsa-immunity-notice] [#disclose-dtsa-notice] - [ ] **Wage-discussion carve-out** (Required) — Confidentiality and non-disparagement language has to leave wages, hours, and working conditions discussable. Federal labor law protects that speech in every state, and the Board has been striking overbroad clauses in employee agreements — a federal overlay no Indiana drafting choice can contract around. [^nlra-section-7-rights][^mclaren-macomb-protected-activity] [#carve-out-nlra-protected-discussion] - [ ] **Court-ordered disclosure allowed** (Recommended) — Confirm the carve-out for disclosure required by law, court order, or a government investigation, with notice to the employer where lawful. Confidentiality obligations cannot block legally compelled disclosure, and a clause that pretends otherwise hands the employee an overbreadth argument against the whole confidentiality section. [#permit-compelled-disclosure] ## Property return and certification {#property-return-and-certification} - [ ] **Property return and sign-off** (Recommended) — Return-or-delete at separation, certified in writing. In a state where the covenant itself may not survive review, the certification is the cleanest contemporaneous evidence for the trade-secret and confidentiality claims that will — and it costs nothing to police. [#require-property-return-and-certification] ## Restrictive covenants (each independently includable) {#restrictive-covenants-each-independently-includable} - [ ] **Employee non-solicit** (Optional) — Optional, and analyzed under the same reasonableness and eraser rules as a non-compete. The decided Indiana case is a warning, not a blessing: a clause reaching all of the company's employees was held overbroad, so confirm this covenant rides the protectable-interest-limited Covered Employees class and the defined Restricted Period rather than restating a workforce-wide ban. [^heraeus-all-employees-covenants] [#permit-employee-nonsolicit] - [ ] **Customer non-solicit** (Optional) — Often the most defensible restraint in the Indiana family — but only when tied to the legitimate interest that justifies it. A clause limited to customers the employee served or knew confidentially sits on firm ground; one sweeping in every customer regardless of contact invites the same overbreadth finding as a bad non-compete, with no judicial trimming available. [^krueger-interest-covenants] [#permit-customer-nonsolicit] - [ ] **Non-dealing covenant** (Optional) — Non-dealing bars serving covered customers even when they call first — a materially broader restraint than non-solicitation. Indiana construes every covenant strictly against the employer, so treat this clause as a deliberate risk decision that needs its own protectable-interest story, and confirm it is drafted severably from the narrower non-solicit so the modest clause survives if the broad one falls. [^krueger-strict-covenants] [#permit-non-dealing] - [ ] **Non-compete covenant** (Optional) — The most disfavored covenant in the family. If it appears, run it through the Indiana gates at the end of this checklist: the employer must prove a legitimate interest plus reasonableness in time, activity, and geography, and the eraser rule means an overreaching version dies rather than shrinks [^dicen-disfavored-covenants][^krueger-scope-covenants]. One posture note: a covenant ancillary to the sale of a business or an equity interest is judged under a more liberal, buyer-favoring standard, so classify the relationship before judging the breadth. [^zollinger-sale-covenants] [#permit-non-compete] - [ ] **Named-competitor narrowing** (Recommended) — When the employer can name its real competitors, bind those instead of leaning on an open-ended Competitive Business definition. Indiana rewards the structure twice: a named list is strong reasonableness evidence, and discrete list entries are exactly the kind of clearly divisible parts the blue pencil can strike individually while leaving a working covenant behind. [^heraeus-divisibility-covenants] [#narrow-non-compete-by-specified-competitors-when-provided] - [ ] **Non-investment covenant** (Optional) — Rare and deliberate. Confirm the passive-holdings carve-out is intact, the clause shares the defined Restricted Period, and the restriction connects to a protectable interest rather than to a general wish to keep the employee's capital out of the industry — the latter reads as pure anti-competition, which Indiana refuses to protect. [#permit-non-investment] ## Non-disparagement {#non-disparagement} - [ ] **Non-disparagement** (Recommended) — Standard to include with a stated term, but audit the carve-outs: truthful testimony, statements to government agencies, and protected workplace speech must sit outside the clause. The federal Board polices overbroad versions in every state, and a muzzle drafted wider than those carve-outs allow invites the same strict-construction reading Indiana gives every restraint. [^mclaren-macomb-nondisparagement] [#require-non-disparagement] ## Physician-specific notices and carve-outs {#physician-specific-notices-and-carve-outs} - [ ] **Physician rights and notices** (Recommended) — The dedicated clause should state which statutory layer governs and implement it. For a physician covenant entered on or after July 1, 2020, the statute conditions enforceability on a list of mandatory provisions — including the physician's option to purchase a complete and final release at a reasonable price, an undefined term that has become a recurring dispute, so look for a stated price mechanism rather than a bare recital. The Indiana gates at the end of this checklist carry the two outright bans. [^hea1004-clause][^sea7-buyout-clause] [#address-physician-specific-rights] ## No conflicting obligations {#no-conflicting-obligations} - [ ] **No conflicting obligations** (Recommended) — The worker's representation that no earlier agreement or order blocks the new role. It surfaces an incoming covenant before the first customer call instead of after it — and because Indiana enforcement turns on fact-heavy reasonableness questions, knowing about a prior restraint early is worth far more than litigating it late. [#require-no-conflicting-obligations-representation] ## Notice to future employers and other third parties {#notice-to-future-employers-and-other-third-parties} - [ ] **Notice to future employers** (Optional) — A genuine drafting choice, not a legal requirement. If the clause appears, keep the permitted disclosure factual — the covenant exists and says what it says — because a warning letter built on a covenant that later fails Indiana review is raw material for a tortious-interference counterclaim against the employer that sent it. [#address-notice-to-future-employers] ## Tolling during breach {#tolling-during-breach} - [ ] **Restriction extended during a breach** (Recommended) — The agreement should say whether the clock pauses during a breach — but flag any extension mechanism as an open Indiana question. No statute or precedential appellate decision endorses automatic tolling, an extension clause is itself covenant scope the employer must prove reasonable, and a court that can only erase language will not manufacture extra restricted time the contract did not clearly provide. The most defensible shape is a separate, severable provision tied to the duration of an actual breach. [^krueger-scope-tolling][^heraeus-eraser-tolling] [#address-tolling-during-breach] ## Remedies {#remedies} - [ ] **Injunction availability** (Recommended) — Look for the acknowledgement that breach may cause irreparable harm and that an injunction is appropriate relief — then remember its limits here. An Indiana court will not enforce an unreasonable restriction however emphatic the recital, and the reported pattern is exactly that: injunctions denied because the employer could not carry the reasonableness burden, recitals notwithstanding. [^krueger-unreasonable-remedies] [#require-injunctive-relief-availability] - [ ] **Attorney fees and costs** (Optional) — A commercial choice against an American Rule backdrop: absent a contractual provision, Indiana shifts fees only for claims or defenses that are frivolous, unreasonable, groundless, or litigated in bad faith. Parties routinely contract around that default with a prevailing-party clause — if one appears, check that it runs both ways rather than only toward the employer. [^fees-bad-faith-remedies] [#address-attorneys-fees-and-costs] ## Severability and reformation {#severability-and-reformation} - [ ] **Severable drafting, no court rescue** (Avoid) — Treat any reformation or modification clause as a dead letter: Indiana courts cannot add terms to an unenforceable covenant even when the agreement purports to authorize it. The blue pencil only deletes, and only where the covenant is clearly divisible — an overbroad restriction written as one interconnected whole dies entirely. So review the structure, not just the breadth: each activity, customer class, territory tier, and duration should stand as its own grammatically severable unit a court could strike individually, with an ordinary severability clause tying the package together. [^heraeus-no-added-terms][^clarks-indivisible-severability] [#draft-severable-covenants-for-the-eraser-blue-pencil] ## Survival {#survival} - [ ] **Survival after the agreement ends** (Recommended) — Per-covenant survival keeps each clock independently checkable — perpetual for trade secrets, finite elsewhere. In Indiana the structure doubles as severability insurance: covenants whose durations stand apart are easier to defend as clearly divisible parts, while a single bundled survival clause is where an indivisible overbroad term hides. [#address-survival-per-covenant] ## Assignment and successors {#assignment-and-successors} - [ ] **Assignment and successors** (Recommended) — Confirm employer-side assignability to successors and that the worker cannot assign. Whoever ends up enforcing inherits the Indiana posture along with the covenant: the protectable interest must be one the successor can actually claim as its own, and the reasonableness burden travels with the clause rather than being settled by the assignment. [#address-assignment-and-successors] ## Governing law, venue, dispute process {#governing-law-venue-dispute-process} - [ ] **Governing law, venue, dispute process** (Recommended) — State the governing law, venue, and dispute process. Indiana generally honors these selections, with one hard statutory exception worth screening for: in a contract for the improvement of Indiana real estate, a clause choosing another state's law or requiring out-of-state litigation, arbitration, or dispute resolution is void — so a construction-industry employer cannot route around Indiana covenant law by contract. Elsewhere, a foreign-forum selection paired with an aggressive covenant should be read as a signal the drafter wanted a softer reformation rule than the eraser. [^in-construction-forum-void] [#specify-governing-law-and-venue] ## Entire agreement, amendment, waiver, e-signatures {#entire-agreement-amendment-waiver-e-signatures} - [ ] **Entire agreement, amendments, e-signatures** (Recommended) — Standard boilerplate, with one Indiana-specific consequence to check: because continued employment alone supports a replacement covenant signed mid-employment, a routine amendment can quietly re-paper the restraint — and for a physician, the new execution date can move the agreement into a stricter statutory layer than the one it left. Confirm the merger clause states which covenant survives. [^med1-consideration-boilerplate] [#address-entire-agreement-amendment-waiver-and-e-signatures] ## Indiana gates (reasonableness and the physician statutes) {#indiana-statutory-gates} The five items below exist only on this Indiana page: the common-law reasonableness and protectable-interest gate every covenant must pass, the three-layer physician statute stack keyed to execution date, and the penalty rule that polices liquidated damages. - [ ] **Protectable interest plus reasonable scope** (Required) — Every restraint in the agreement must clear the two-step the employer will have to prove: first a legitimate protectable interest — goodwill, customer relationships, trade secrets, or confidential information, never the employee's general skills — and then reasonableness in the time, activity, and geographic area restricted [^krueger-interest-gate][^krueger-scope-gate]. Activity scope is the usual failure point: a clause barring work for a competitor in any capacity was held unreasonably broad even though consideration was solid, so walk each covenant back to the job the employee actually did. [^med1-any-capacity-gate] [#keep-covenants-reasonable-and-tied-to-a-protectable-interest] - [ ] **Statutory terms in physician covenants** (Required) — A physician covenant entered on or after July 1, 2020 is enforceable only if it contains every provision the statute mandates, including the physician's option to purchase a complete and final release at a reasonable price — verify each required term is present and the buyout has a workable price mechanism rather than a bare recital of the statutory phrase [^hea1004-gate][^sea7-buyout-gate]. Check the termination interaction too: the covenant becomes unenforceable when the employer terminates the physician without cause, so the enforceability question is never fully settled at signing. [^sea7-without-cause-gate] [#require-hea-1004-provisions-in-physician-noncompetes] - [ ] **No non-competes for primary care physicians** (Prohibited) — For covenants entered on or after July 1, 2023, a primary care physician and an employer may not enter into a noncompete agreement — notwithstanding any other law. The ban is categorical for the covered class: no buyout, compensation level, or reasonableness showing revives it, and the contract-term requirements for other physician covenants are irrelevant to a clause the statute forbids outright. Confirm the physician's specialty before reviewing anything else in a physician agreement. [^sea7-primary-care-gate] [#prohibit-primary-care-physician-noncompetes] - [ ] **No physician-hospital non-competes** (Prohibited) — For covenants entered on or after July 1, 2025, a physician may not be bound by a noncompete with a hospital, a hospital parent company, an affiliated manager of a hospital, or a hospital system — any agreement in violation is void and unenforceable. The ban reaches new agreements only, and it leaves the employer three narrow tools: trade-secret nondisclosure terms, a current-employee non-solicit of at most one year that does not restrict patient interactions, referrals, clinical collaboration, or professional relationships, and covenants tied to the physician's sale of a majority-owned practice. Identify the employer entity first — a private-practice group falls back to the contract-term and primary-care layers instead. [^sea475-void-gate] [#prohibit-physician-hospital-noncompetes] - [ ] **Liquidated damages sized to real loss** (Prohibited) — If the agreement stipulates a damages figure for covenant breach, test it as an Indiana court would: a sum grossly disproportionate to the loss from the breach, or one that prices conduct beyond the protected interest, is an unenforceable penalty — and the state supreme court struck every liquidated-damages provision before it in the leading case. Look for a figure tied to a documented estimate of the specific loss, not a flat in-terrorem number standing in for an injunction. [^amconsulting-penalty-gate][^amconsulting-holding-gate] [#keep-liquidated-damages-a-reasonable-forecast-of-loss] [^about]: By Steven Obiajulu, J.D. Published by [openagreements.org](https://openagreements.org) · Maintained by [UseJunior](https://usejunior.com). Last reviewed 2026-06-12. License: CC BY 4.0. Steven Obiajulu, J.D. edits this review checklist for Indiana (US) coverage. It synthesizes legal sources and is not legal advice. This article is for informational purposes only and does not create an attorney-client relationship. [^sea475-date-cover]: **Senate Enrolled Act 475 (2025), Ind. Code § 25-22.5-5.5-2.3** — "Any agreement in violation of this section is void and unenforceable." *Ind. Code § 25-22.5-5.5-2.3(c) (Senate Enrolled Act 475, P.L. 207-2025).* [^sea7-primary-care-cover]: **Senate Enrolled Act 7 (2023), Ind. Code § 25-22.5-5.5-2.5** — "Notwithstanding any other law, a primary care physician and an employer may not enter into a noncompete agreement." *Ind. Code § 25-22.5-5.5-2.5(b) (Senate Enrolled Act 7, P.L. 165-2023).* [^krueger-interest-defs]: **Central Indiana Podiatry, P.C. v. Krueger** — "In arguing the reasonableness of a non-competition agreement, the employer must first show that it has a legitimate interest to be protected by the agreement." *Central Indiana Podiatry, P.C. v. Krueger, 882 N.E.2d 723 (Ind. 2008).* [^iutsa-trade-secret-defs]: **Indiana Uniform Trade Secrets Act, Ind. Code § 24-2-3** — "‘Trade secret’ means information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (1) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy." *Ind. Code § 24-2-3-2.* [^krueger-scope-defs]: **Central Indiana Podiatry, P.C. v. Krueger** — "The employer also bears the burden of establishing that the agreement is reasonable in scope as to the time, activity, and geographic area restricted." *Central Indiana Podiatry, P.C. v. Krueger, 882 N.E.2d 723 (Ind. 2008).* [^heraeus-all-employees-defs]: **Heraeus Medical, LLC v. Zimmer, Inc.** — "As written, the Kolbe Agreement's employee nonsolicitation covenant is overbroad because it applies to all Zimmer employees." *Heraeus Medical, LLC v. Zimmer, Inc., 135 N.E.3d 150 (Ind. 2019).* [^med1-any-capacity-defs]: **Med-1 Solutions, LLC v. Taylor** — "We find that the scope of activity restricted by the covenant is unreasonably broad." *Med-1 Solutions, LLC v. Taylor, No. 24A-PL-450 (Ind. Ct. App. Nov. 25, 2024).* [^sea7-without-cause-defs]: **Senate Enrolled Act 7 (2023), Ind. Code § 25-22.5-5.5-2** — "The employer terminates the physician's employment without cause." *Ind. Code § 25-22.5-5.5-2(b)(1) (Senate Enrolled Act 7, P.L. 165-2023).* [^med1-consideration-timing]: **Med-1 Solutions, LLC v. Taylor** — "We hold that, where an at-will employee signs a non-competition agreement as a condition of their hiring and is later told to sign a new non-competition agreement or they will be fired, the employee's continued employment can serve as consideration for the latter agreement." *Med-1 Solutions, LLC v. Taylor, No. 24A-PL-450 (Ind. Ct. App. Nov. 25, 2024).* [^dtsa-trade-secret-definition]: **Defend Trade Secrets Act — definition of a trade secret, 18 U.S.C. § 1839** — "the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, another person who can obtain economic value from the disclosure or use of the information" *18 U.S.C. § 1839(3)(B) (2018).* [^iutsa-secrecy-duration]: **Indiana Uniform Trade Secrets Act, Ind. Code § 24-2-3** — "‘Trade secret’ means information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (1) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy." *Ind. Code § 24-2-3-2.* [^dtsa-immunity-notice]: **Defend Trade Secrets Act — employer immunity-notice requirement, 18 U.S.C. § 1833(b)** — "An employer shall provide notice of the immunity set forth in this subsection in any contract or agreement with an employee that governs the use of a trade secret or other confidential information." *18 U.S.C. § 1833(b)(3)(A) (2018).* [^nlra-section-7-rights]: **NLRA Section 7 — protected concerted activity, 29 U.S.C. § 157** — "Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection" *29 U.S.C. § 157 (NLRA § 7).* [^mclaren-macomb-protected-activity]: **NLRB news release on McLaren Macomb, 372 NLRB No. 58 (2023)** — "simply offering employees a severance agreement that requires them to broadly give up their rights under Section 7 of the Act violates Section 8(a)(1) of the Act." *McLaren Macomb, 372 NLRB No. 58 (2023); NLRB Office of Public Affairs (Feb. 21, 2023).* [^heraeus-all-employees-covenants]: **Heraeus Medical, LLC v. Zimmer, Inc.** — "As written, the Kolbe Agreement's employee nonsolicitation covenant is overbroad because it applies to all Zimmer employees." *Heraeus Medical, LLC v. Zimmer, Inc., 135 N.E.3d 150 (Ind. 2019).* [^krueger-interest-covenants]: **Central Indiana Podiatry, P.C. v. Krueger** — "In arguing the reasonableness of a non-competition agreement, the employer must first show that it has a legitimate interest to be protected by the agreement." *Central Indiana Podiatry, P.C. v. Krueger, 882 N.E.2d 723 (Ind. 2008).* [^krueger-strict-covenants]: **Central Indiana Podiatry, P.C. v. Krueger** — "We construe these covenants strictly against the employer and will not enforce an unreasonable restriction." *Central Indiana Podiatry, P.C. v. Krueger, 882 N.E.2d 723 (Ind. 2008).* [^dicen-disfavored-covenants]: **Dicen v. New Sesco, Inc.** — "Covenants not to compete are not favored in the law." *Dicen v. New Sesco, Inc., 839 N.E.2d 684 (Ind. 2005).* [^krueger-scope-covenants]: **Central Indiana Podiatry, P.C. v. Krueger** — "The employer also bears the burden of establishing that the agreement is reasonable in scope as to the time, activity, and geographic area restricted." *Central Indiana Podiatry, P.C. v. Krueger, 882 N.E.2d 723 (Ind. 2008).* [^zollinger-sale-covenants]: **Zollinger v. Wagner-Meinert Engineering, LLC** — "Covenants in typical employment contracts are reviewed under a ‘skeptical’ standard, while covenants that arise ancillary to the sale of a business are subject to a more liberal standard." *Zollinger v. Wagner-Meinert Eng'g, LLC, 146 N.E.3d 1060 (Ind. Ct. App. 2020).* [^heraeus-divisibility-covenants]: **Heraeus Medical, LLC v. Zimmer, Inc.** — "A court can blue-pencil unreasonable provisions from a restrictive covenant if the covenant is clearly divisible into parts and if a reasonable restriction remains to be enforced after the unreasonable portions have been eliminated." *Heraeus Medical, LLC v. Zimmer, Inc., 135 N.E.3d 150 (Ind. 2019).* [^mclaren-macomb-nondisparagement]: **NLRB news release on McLaren Macomb, 372 NLRB No. 58 (2023)** — "simply offering employees a severance agreement that requires them to broadly give up their rights under Section 7 of the Act violates Section 8(a)(1) of the Act." *McLaren Macomb, 372 NLRB No. 58 (2023); NLRB Office of Public Affairs (Feb. 21, 2023).* [^hea1004-clause]: **House Enrolled Act 1004 (2020), Ind. Code § 25-22.5-5.5-2** — "To be enforceable, a physician noncompete agreement must include all of the following provisions:" *Ind. Code § 25-22.5-5.5-2 (House Enrolled Act 1004, P.L. 93-2020).* [^sea7-buyout-clause]: **Senate Enrolled Act 7 (2023), Ind. Code § 25-22.5-5.5-2** — "(4) A provision that provides the physician whose employment has terminated or whose contract has expired with the option to purchase a complete and final release from the terms of the enforceable physician noncompete agreement at a reasonable price." *Ind. Code § 25-22.5-5.5-2(a)(4) (Senate Enrolled Act 7, P.L. 165-2023).* [^krueger-scope-tolling]: **Central Indiana Podiatry, P.C. v. Krueger** — "The employer also bears the burden of establishing that the agreement is reasonable in scope as to the time, activity, and geographic area restricted." *Central Indiana Podiatry, P.C. v. Krueger, 882 N.E.2d 723 (Ind. 2008).* [^heraeus-eraser-tolling]: **Heraeus Medical, LLC v. Zimmer, Inc.** — "The doctrine, however, does not allow a court to rewrite a noncompetition agreement by adding, changing, or rearranging terms." *Heraeus Medical, LLC v. Zimmer, Inc., 135 N.E.3d 150 (Ind. 2019).* [^krueger-unreasonable-remedies]: **Central Indiana Podiatry, P.C. v. Krueger** — "We construe these covenants strictly against the employer and will not enforce an unreasonable restriction." *Central Indiana Podiatry, P.C. v. Krueger, 882 N.E.2d 723 (Ind. 2008).* [^fees-bad-faith-remedies]: **Ind. Code § 34-52-1-1** — "In any civil action, the court may award attorney's fees as part of the cost to the prevailing party, if the court finds that either party: (1) brought the action or defense on a claim or defense that is frivolous, unreasonable, or groundless; (2) continued to litigate the action or defense after the party's claim or defense clearly became frivolous, unreasonable, or groundless; or (3) litigated the action in bad faith." *Ind. Code § 34-52-1-1(b).* [^heraeus-no-added-terms]: **Heraeus Medical, LLC v. Zimmer, Inc.** — "Consistent with the history and purpose of Indiana's blue pencil doctrine, courts cannot add terms to an unenforceable restrictive covenant in a noncompetition agreement—even when that agreement contains language purporting to give a court the power to do so." *Heraeus Medical, LLC v. Zimmer, Inc., 135 N.E.3d 150 (Ind. 2019).* [^clarks-indivisible-severability]: **Clark's Sales and Service, Inc. v. Smith** — "Paragraph 7(C) is indivisible and unreasonable as a whole, and the blue pencil doctrine is inapplicable." *Clark's Sales and Service, Inc. v. Smith, 4 N.E.3d 772 (Ind. Ct. App. 2014).* [^in-construction-forum-void]: **Ind. Code § 32-28-3-17** — "A provision in a contract for the improvement of real estate in Indiana is void if the provision: (1) makes the contract subject to the laws of another state; or (2) requires litigation, arbitration, or other dispute resolution process on the contract occur in another state." *Ind. Code § 32-28-3-17.* [^med1-consideration-boilerplate]: **Med-1 Solutions, LLC v. Taylor** — "We hold that, where an at-will employee signs a non-competition agreement as a condition of their hiring and is later told to sign a new non-competition agreement or they will be fired, the employee's continued employment can serve as consideration for the latter agreement." *Med-1 Solutions, LLC v. Taylor, No. 24A-PL-450 (Ind. Ct. App. Nov. 25, 2024).* [^krueger-interest-gate]: **Central Indiana Podiatry, P.C. v. Krueger** — "In arguing the reasonableness of a non-competition agreement, the employer must first show that it has a legitimate interest to be protected by the agreement." *Central Indiana Podiatry, P.C. v. Krueger, 882 N.E.2d 723 (Ind. 2008).* [^krueger-scope-gate]: **Central Indiana Podiatry, P.C. v. Krueger** — "The employer also bears the burden of establishing that the agreement is reasonable in scope as to the time, activity, and geographic area restricted." *Central Indiana Podiatry, P.C. v. Krueger, 882 N.E.2d 723 (Ind. 2008).* [^med1-any-capacity-gate]: **Med-1 Solutions, LLC v. Taylor** — "We find that the scope of activity restricted by the covenant is unreasonably broad." *Med-1 Solutions, LLC v. Taylor, No. 24A-PL-450 (Ind. Ct. App. Nov. 25, 2024).* [^hea1004-gate]: **House Enrolled Act 1004 (2020), Ind. Code § 25-22.5-5.5-2** — "To be enforceable, a physician noncompete agreement must include all of the following provisions:" *Ind. Code § 25-22.5-5.5-2 (House Enrolled Act 1004, P.L. 93-2020).* [^sea7-buyout-gate]: **Senate Enrolled Act 7 (2023), Ind. Code § 25-22.5-5.5-2** — "(4) A provision that provides the physician whose employment has terminated or whose contract has expired with the option to purchase a complete and final release from the terms of the enforceable physician noncompete agreement at a reasonable price." *Ind. Code § 25-22.5-5.5-2(a)(4) (Senate Enrolled Act 7, P.L. 165-2023).* [^sea7-without-cause-gate]: **Senate Enrolled Act 7 (2023), Ind. Code § 25-22.5-5.5-2** — "The employer terminates the physician's employment without cause." *Ind. Code § 25-22.5-5.5-2(b)(1) (Senate Enrolled Act 7, P.L. 165-2023).* [^sea7-primary-care-gate]: **Senate Enrolled Act 7 (2023), Ind. Code § 25-22.5-5.5-2.5** — "Notwithstanding any other law, a primary care physician and an employer may not enter into a noncompete agreement." *Ind. Code § 25-22.5-5.5-2.5(b) (Senate Enrolled Act 7, P.L. 165-2023).* [^sea475-void-gate]: **Senate Enrolled Act 475 (2025), Ind. Code § 25-22.5-5.5-2.3** — "Any agreement in violation of this section is void and unenforceable." *Ind. Code § 25-22.5-5.5-2.3(c) (Senate Enrolled Act 475, P.L. 207-2025).* [^amconsulting-penalty-gate]: **American Consulting, Inc. v. Hannum Wagle & Cline Engineering, Inc.** — "When liquidated damages are grossly disproportionate to the loss that results from the breach or are unconscionably in excess of the loss sought to be asserted, appellate courts will treat the sum as an unenforceable penalty rather than as liquidated damages." *American Consulting, Inc. v. Hannum Wagle & Cline Eng'g, Inc., 136 N.E.3d 208 (Ind. 2019).* [^amconsulting-holding-gate]: **American Consulting, Inc. v. Hannum Wagle & Cline Engineering, Inc.** — "In sum, we find that all of the liquidated damages provisions at issue are unenforceable penalties." *American Consulting, Inc. v. Hannum Wagle & Cline Eng'g, Inc., 136 N.E.3d 208 (Ind. 2019).*