# Non-Competes in American Samoa[^about]

American Samoa has no non-compete statute and no on-point case law found in our review; its High Court would gap-fill through the imported common law of A.S.C.A. § 1.0201 and the Restatement reasonableness test, while local public policy and a tiny island economy make aggressive covenants hard to enforce.

## Are employee non-compete agreements enforceable in American Samoa? {#employee-noncompetes}

**Short answer.** Probably sometimes, but the law is genuinely unsettled. American Samoa has no statute that governs employee non-competes and no High Court decision that has squarely enforced or struck one down. A covenant would be judged under the common law the High Court imports through A.S.C.A. § 1.0201 [^asca-1-0201], which in practice means the Restatement reasonableness framework.

American Samoa is an unincorporated U.S. territory with no federal district court, so an employment-covenant dispute is decided in the first instance by the High Court of American Samoa applying territorial law. It is not a per se ban jurisdiction like California or North Dakota, and it has no statutory-reasonableness regime either. The starting point is the reception statute: A.S.C.A. § 1.0201 makes effective *so much of the common law of England as is suitable to conditions in American Samoa* [^asca-1-0201], and the High Court has long read that to import modern U.S. common law and the Restatements.

For in-house counsel, the practical consequence is that almost every operating rule below is a *prediction* rather than a holding. There is no code section to cite and no controlling non-compete case, so a covenant that would survive comfortably in a blue-pencil state carries real first-impression risk here.

## What test would the High Court of American Samoa apply to a non-compete? {#governing-test}

**Short answer.** The High Court would most likely apply the reasonableness framework of the Restatement (Second) of Contracts § 188, imported through A.S.C.A. § 1.0201. It has said it should ordinarily follow the Restatement when it construes the common law [^tung-restatement], and that the common law of contracts applies in American Samoa unless a territorial statute or local conditions displace it [^ilalio-common-law].

Two local decisions anchor that prediction. In *Tung v. Ah Sam*, the High Court adopted the Restatement as its default tool for defining the common law [^tung-restatement], and in *Development Bank of American Samoa v. Ilalio* it confirmed that imported contract doctrine governs ordinary contract disputes [^ilalio-common-law]. Restatement § 188 asks whether a restraint is greater than necessary to protect a legitimate interest and whether the employer's need is outweighed by hardship to the worker and injury to the public.

"In defining the common law, and where not bound otherwise by prior decision of this Court, it is ordinarily appropriate that the Restatement of the Law be followed in order to more nearly effect uniformity of decision."[^tung-restatement]

American Samoa is not hostile to restraints as a category. In *Lindgren v. Betham*, the High Court enforced a restrictive covenant in a lease and framed the governing principle as enforcement subject to an equity and public-policy override [^lindgren-covenant]. Translated to employment, an employer would have to show a genuine protectable interest and a scope no broader than necessary, knowing that equity and public policy supply the limits.

"When presented with a violation of a restrictive covenant, courts are obligated to enforce the covenant unless the complaining party can show that enforcement would be inequitable or contrary to public policy."[^lindgren-covenant]

## Does any American Samoa statute address non-competes? {#statutory-silence}

**Short answer.** No. The American Samoa Code Annotated has no chapter on restrictive covenants, employee mobility, or trade secrets, and the restraint-of-trade language that does appear in the code sits in sector-specific statutes, not in any employment provision [^asca-20-0401]. The nearest labor provision is a right-to-work rule about union membership, not competition [^asca-32-0104].

The statute titled *Illegal trade restraints*, A.S.C.A. § 20.0401, regulates only the transportation of passengers and freight by water — deferred rebates and discriminatory shipping contracts [^asca-20-0401]. The territory's other competition provisions are similarly narrow — for example, a separate section bars restraint of trade in the business of insurance. None is a general restraint-of-trade or employment-covenant statute, so none supplies a rule for a worker's covenant.

Title 32's labor chapter confirms the silence. A.S.C.A. § 32.0104 makes it unlawful to condition employment on union membership or dues [^asca-32-0104]; it governs union-security arrangements, not post-employment competition. This legislative vacuum is itself load-bearing: with no statute either authorizing or banning non-competes, the entire question falls to the High Court's imported common law.

## What consideration supports a non-compete, and what is the employment baseline? {#consideration}

**Short answer.** There is no American Samoa authority on what consideration supports a non-compete or on whether continued employment alone suffices. The baseline is at-will employment [^palelei-atwill], and a covenant extracted through an unfair bargaining process is exposed to the High Court's unconscionability doctrine [^ilalio-unconscionability].

American Samoa presumes at-will employment unless the parties contract otherwise. *Palelei v. Star-Kist Samoa, Inc.* states that without a fixed term or a contractual restriction on discharge, employment is at will [^palelei-atwill], and *Velega v. Legislature of American Samoa* repeats that the presumption yields only to an express or implied contractual provision [^velega-atwill].

"In American Samoa, employment is presumed to be at will, and the employee can be fired without just or good cause, unless there exists an express or implied contractual provision restricting the employer's rights to terminate the employee."[^velega-atwill]

What the local cases do *not* settle is whether merely keeping an at-will job is enough to support a covenant signed after hiring. The High Court has, however, signaled skepticism of one-sided bargains: *Ilalio* will refuse to enforce a contract where both its substance and the bargaining process are unconscionable [^ilalio-unconscionability], and *Atofau v. Tuufuli* holds that a bare gratuity cannot be turned into consideration by a later promise [^atofau-consideration].

> [!CAUTION]
> **Drafting note.**
>
> Because no American Samoa case blesses continued employment as consideration, give a mid-stream covenant its own distinct consideration — a signing bonus, a raise, or a guaranteed term — rather than relying on continued at-will employment. A covenant imposed on a lower-paid worker without new consideration is the fact pattern most exposed to an unconscionability defense [^ilalio-unconscionability][^atofau-consideration].

## Will the High Court narrow an overbroad covenant, or void it? {#court-narrowing}

**Short answer.** The High Court may be open to narrowing it, but no American Samoa case has narrowed an employment covenant. On reconsideration of a defective-lease dispute, the court held that a court can excise illegal portions of a contract and enforce the remainder, or modify an illegal term to conform to law — citing a non-compete case as its authority [^samoa-aviation-excise].

In *American Samoa Gov't v. Samoa Aviation, Inc.*, the High Court refused to void a defective lease and instead endorsed broad equitable power to sever or modify unlawful terms [^samoa-aviation-excise]. Tellingly, it anchored that power in *Alston Studios*, a federal covenant-not-to-compete case — which suggests the court might be receptive to reforming an overbroad employment restraint rather than discarding it.

"Finally, it is well settled that a court can excise the illegal portions of a contract and enforce the remainder, with or without other compensating adjustments in the contractual obligations of the parties; or may modify an illegal term to make it conform to the law."[^samoa-aviation-excise]

That tendency is reinforced by *Ilalio*'s reliance on Restatement § 208, which lets a court enforce the remainder of a contract or limit an unconscionable term rather than strike everything [^ilalio-partial]. Still, reformation here is a prediction: no American Samoa decision has blue-penciled an employee non-compete, so an employer should draft to a defensible scope rather than count on judicial rescue.

## Does the restricted period toll or extend if the employee breaches? {#tolling}

**Short answer.** American Samoa law is silent. No statute or High Court decision addresses whether a non-compete clock pauses during a breach, during litigation, or during an injunction application — and the deep-research record finds no local authority on either contractual or equitable tolling. The prudent assumption is that a court will not pause the clock unless the contract says so, so any extension-on-breach must be drafted expressly [^asca-1-0201-tolling].

Because the territory imports common-law contract principles through A.S.C.A. § 1.0201 [^asca-1-0201-tolling], a clearly drafted contractual tolling clause — extending the restricted period for any time the employee is in breach — preserves the employer's best argument, though no American Samoa authority confirms such a clause will be enforced. Judicial or equitable tolling is a weaker bet still: there is no local authority granting it, and nothing suggests the High Court would rewrite a covenant to add time a party did not bargain for.

> [!CAUTION]
> **Drafting note.**
>
> Do not assume the High Court will equitably extend a covenant while litigation runs. Write the tolling mechanism into the agreement expressly, keep the base term short enough to be reasonable on its own, and treat tolling as an open question of first impression in the territory [^asca-1-0201-tolling].

## What remedies can an employer obtain for a breach? {#remedies}

**Short answer.** Injunctive relief is available but hard-won. American Samoa's injunction statutes require a substantial likelihood of success plus great or irreparable injury for a preliminary injunction [^asca-43-1301], and a permanent injunction issues only after trial and only where money damages are inadequate [^asca-43-1302].

The statutory standard is exacting, and the case law enforces it. In *Drabble v. Mikaele*, the High Court restated the two-part preliminary-injunction test — substantial likelihood of success and great or irreparable harm before trial [^drabble-standard].

"For a preliminary injunction to issue, the applicant must show a substantial likelihood that he will prevail at trial on the merits and obtain a permanent injunction, and that he will suffer great or irreparable harm before a full and final trial can be fairly held on the requested permanent injunction."[^drabble-standard]

Two further limits matter for a covenant plaintiff. The High Court will not issue an injunction that merely punishes a breach: in *Leaana v. Laban* it refused relief that would serve no purpose but punishment [^leaana-punishment]. And *Thompson v. Toluao* makes inadequacy of a legal remedy the defining prerequisite of an injunction [^thompson-inadequacy], so an employer whose loss is quantifiable as money damages may be left to those damages alone.

"Punishment is not the purpose behind injunctive relief."[^leaana-punishment]

Damages are correspondingly constrained. *Moea'i v. Reid* declined to apply a wage statute's punitive-damages provision to a contractual wage claim above the statutory minimum [^moeai-punitive], a reminder that territorial punitive damages are creatures of specific statutes; the local non-compete corpus identifies no special damages remedy, so a covenant plaintiff should expect to prove ordinary compensatory damages.

## How are confidentiality clauses, non-solicits, physician, and sale-of-business covenants treated? {#other-covenants}

**Short answer.** There is no American Samoa authority drawing distinct rules for non-solicitation, confidentiality, physician, or sale-of-business covenants. Each would be analyzed under the same imported reasonableness framework, with trade-secret confidentiality recognized in a limited agency-records regulation [^asac-24-0109] and sale-of-business covenants likely treated more leniently than employee restraints.

American Samoa has not adopted the Uniform Trade Secrets Act. The closest territorial recognition of trade secrets is narrow: an administrative-code provision shields trade secrets in environmental-agency records from public disclosure [^asac-24-0109]. There is no general trade-secret statute and no authority on employee confidentiality covenants, so the enforceability of an NDA remains a common-law prediction. A non-solicitation or confidentiality clause that operates as a *de facto* bar on competing would be analyzed as a non-compete under the same Restatement § 188 reasonableness test.

A physician or other scarce-professional covenant is likely to be especially vulnerable. Under Restatement § 188's injury-to-the-public prong, removing a single doctor, technician, or other scarce professional from a remote island economy is a strong public-interest argument against enforcement — the kind of *likely injury to the public* that the High Court's equity-and-public-policy override in *Lindgren* could weigh heavily [^lindgren-covenant-2]. Sale-of-business covenants, where bargaining power is more even and goodwill is being purchased, would likely be enforced more readily than an employee restraint.

## Why might enforcement be harder in American Samoa than on the mainland? {#island-economy-public-policy}

**Short answer.** Two territorial features cut against aggressive covenants: a public policy that prioritizes the Samoan way of life [^tavai-policy], and a tiny island economy in which a territory-wide restraint can amount to banishment from the worker's profession. A.S.C.A. § 1.0201 imports only common law *suitable to conditions in American Samoa*, and § 1.0202 preserves Samoan custom [^asca-1-0202].

The High Court has described the protection of the Samoan way of life as its primary responsibility [^tavai-policy], and § 1.0202 preserves the customs of the Samoan people where they do not conflict with law [^asca-1-0202]. Those commitments give a worker a territory-specific public-policy argument: a covenant that meaningfully limits a local person's ability to earn a livelihood may be *unsuitable to conditions* in the territory in a way the suitability and custom provisions invite a court to weigh.

Geography compounds the point. American Samoa is roughly 76 square miles, so a territory-wide non-compete does not merely limit where a worker competes — it can force the worker to leave the territory entirely. Under the Restatement reasonableness test the High Court would import, that scale makes overbreadth and undue-hardship objections far easier to sustain than a comparable restraint in a large mainland market.

## What recent developments should employers monitor? {#recent-developments}

**Short answer.** As of June 3, 2026, nothing has displaced the imported-common-law framework. American Samoa's Fono has not enacted a non-compete statute, so A.S.C.A. § 1.0201 gap-filling still controls [^asca-1-0201-current], and the vacated federal FTC Non-Compete Rule supplies no operative territorial rule.

Two background developments matter only for monitoring. The FTC's 2024 Non-Compete Rule was struck down in litigation and the agency has abandoned it, so there is no federal ban to apply in American Samoa. And no targeted non-compete enactment was located in the public Fono legislative materials reviewed for this note. The framework therefore remains entirely judicial, which means the most reliable signal of change would be a first High Court decision on an employee non-compete rather than a statute [^asca-1-0201-current].

The practical takeaway is stability layered on uncertainty: the rules will not move by legislation soon, but because no court has yet decided an employee non-compete, the first case to reach the High Court could set the baseline in either direction.



[^about]: By Steven Obiajulu, J.D. Published by [openagreements.org](https://openagreements.org). Last reviewed 2026-06-03. License: CC BY 4.0. Steven Obiajulu, J.D. is admitted in New York, not American Samoa. This article synthesizes American Samoa primary law and is not legal advice from a American Samoa-admitted attorney. This article is for informational purposes only and does not create an attorney-client relationship.

[^asca-1-0201]: **A.S.C.A. § 1.0201 — Laws applicable in American Samoa** — "so much of the common law of England as is suitable to conditions in American Samoa and not inconsistent with this section." *A.S.C.A. § 1.0201.* <https://asbar.org/code-annotated/1-0201-laws-applicable-in-american-samoa/>

[^tung-restatement]: **Tung v. Ah Sam** — "In defining the common law, and where not bound otherwise by prior decision of this Court, it is ordinarily appropriate that the Restatement of the Law be followed in order to more nearly effect uniformity of decision." *Tung v. Ah Sam, 4 A.S.R. 764 (Trial Div. 1971).* <https://asbar.org/case-law/ah-sam-tung-v/>

[^ilalio-common-law]: **Development Bank of American Samoa v. Ilalio** — "The common law of contracts applies in American Samoa unless it conflicts with a territorial statute or is unsuitable to local conditions." *Development Bank of American Samoa v. Ilalio, 5 A.S.R.2d 1 (Trial Div. 1987).* <https://asbar.org/case-law/development-bank-v-ilalio/>

[^lindgren-covenant]: **Lindgren v. Betham** — "When presented with a violation of a restrictive covenant, courts are obligated to enforce the covenant unless the complaining party can show that enforcement would be inequitable or contrary to public policy." *Lindgren v. Betham, 20 A.S.R.2d 98 (App. Div. 1992).* <https://asbar.org/case-law/lindgren-v-betham/>

[^asca-20-0401]: **A.S.C.A. § 20.0401 — Illegal trade restraints** — "No person may directly or indirectly, in respect to the transportation by water of passengers or freight between a port or landing of American Samoa or between islands of American Samoa or between a port of American Samoa and a port of another country:" *A.S.C.A. § 20.0401.* <https://asbar.org/code-annotated/20-0401-illegal-trade-restraints/>

[^asca-32-0104]: **A.S.C.A. § 32.0104 — Unlawful acts of employer** — "It is unlawful for any employer to: (1) require an employee, as a condition or employment or of continuance of employment, to be or become or remain a member or affiliate of a labor organization;" *A.S.C.A. § 32.0104.* <https://asbar.org/code-annotated/32-0104-unlawful-acts-of-employer/>

[^palelei-atwill]: **Palelei v. Star-Kist Samoa, Inc.** — "If the parties to an employment contract have neither fixed a definite term of employment nor created any contractual obstacle to the right of discretionary discharge, then the contract is for employment at will and the employer may discharge the employee without incurring liability." *Palelei v. Star-Kist Samoa, Inc., 5 A.S.R.2d 162 (Trial Div. 1987).* <https://asbar.org/case-law/5asr2d162/>

[^ilalio-unconscionability]: **Development Bank of American Samoa v. Ilalio** — "A contract is ordinarily rendered unenforceable on the ground of unconscionability only when both its substance and the bargaining process leading up to it are unconscionable." *Development Bank of American Samoa v. Ilalio, 5 A.S.R.2d 1 (Trial Div. 1987).* <https://asbar.org/case-law/development-bank-v-ilalio/>

[^velega-atwill]: **Velega v. Legislature of American Samoa** — "In American Samoa, employment is presumed to be at will, and the employee can be fired without just or good cause, unless there exists an express or implied contractual provision restricting the employer's rights to terminate the employee." *Velega v. Legislature of American Samoa, 4 A.S.R.3d 145 (Trial Div. 2000).* <https://asbar.org/case-law/4asr3d145/>

[^atofau-consideration]: **Atofau v. Tuufuli** — "Gratuity cannot be turned into consideration by subsequent promise to pay therefor so as to make valid contract, and promise to give land after receipt of gratuity is not enforceable." *Atofau v. Tuufuli, 2 A.S.R. 414 (1948).* <https://asbar.org/case-law/atofau-v-tuufuli/>

[^samoa-aviation-excise]: **American Samoa Gov't v. Samoa Aviation, Inc.** — "Finally, it is well settled that a court can excise the illegal portions of a contract and enforce the remainder, with or without other compensating adjustments in the contractual obligations of the parties; or may modify an illegal term to make it conform to the law." *American Samoa Gov't v. Samoa Aviation, Inc., 13 A.S.R.2d 65 (Trial Div. 1989) (on motions for new trial and modification).* <https://asbar.org/case-law/american-samoa-govt-v-samoa-aviation-inc-d96/>

[^ilalio-partial]: **Development Bank of American Samoa v. Ilalio** — "A contract is ordinarily rendered unenforceable on the ground of unconscionability only when both its substance and the bargaining process leading up to it are unconscionable." *Development Bank of American Samoa v. Ilalio, 5 A.S.R.2d 1 (Trial Div. 1987).* <https://asbar.org/case-law/development-bank-v-ilalio/>

[^asca-1-0201-tolling]: **A.S.C.A. § 1.0201 — Laws applicable in American Samoa** — "so much of the common law of England as is suitable to conditions in American Samoa and not inconsistent with this section." *A.S.C.A. § 1.0201.* <https://asbar.org/code-annotated/1-0201-laws-applicable-in-american-samoa/>

[^asca-43-1301]: **A.S.C.A. § 43.1301 — Injunctions: Definitions** — "there is a substantial likelihood that the applicant will prevail at trial on the merits and that a permanent injunction will be issued against the opposing party; and (2) great or irreparable injury will result to the applicant before a full and final trial can be fairly held on whether a permanent injunction should issue." *A.S.C.A. § 43.1301(j).* <https://asbar.org/code-annotated/43-1301-definitions/>

[^asca-43-1302]: **A.S.C.A. § 43.1302 — Issuance of permanent injunction** — "A permanent injunction may be issued by a court having subject matter jurisdiction of the case and personal jurisdiction of the opposing party only after a full and final trial on the merits of the applicant's claim and determination that a judgment for money damages will inadequately remedy the complained of wrong." *A.S.C.A. § 43.1302.* <https://asbar.org/code-annotated/43-1302-issuance-of-permanent-injunction/>

[^drabble-standard]: **Drabble v. Mikaele** — "For a preliminary injunction to issue, the applicant must show a substantial likelihood that he will prevail at trial on the merits and obtain a permanent injunction, and that he will suffer great or irreparable harm before a full and final trial can be fairly held on the requested permanent injunction." *Drabble v. Mikaele (Land & Titles Div. 2004).* <https://asbar.org/case-law/drabble-v-mikaele/>

[^leaana-punishment]: **Leaana v. Laban** — "Punishment is not the purpose behind injunctive relief." *Leaana v. Laban, 12 A.S.R.2d 93 (Land & Titles Div. 1989).* <https://asbar.org/case-law/laban-leaana-v/>

[^thompson-inadequacy]: **Thompson v. Toluao** — "As an equitable remedy, the most distinguishing prerequisite of permanent injunctive relief is the inadequacy of a remedy at law, usually money damages." *Thompson v. Toluao, 24 A.S.R.2d 127 (Land & Titles Div. 1993).* <https://asbar.org/case-law/24asr2d127/>

[^moeai-punitive]: **Moea'i v. Reid** — "this provision does not apply to an action for breach of contract where, although the employee has not been paid, his contractual wage was higher than the statutory minimum." *Moea'i v. Reid, 9 A.S.R.2d 48 (Trial Div. 1988).* <https://asbar.org/case-law/9asr2d48/>

[^asac-24-0109]: **A.S.A.C. § 24.0109 — Confidentiality of records (trade secrets)** — "would otherwise tend to affect adversely the competitive position of such person by revealing trade secrets, the Commission shall consider such record, report, information, or particular portion thereof confidential." *A.S.A.C. § 24.0109.* <https://asbar.org/code-annotated/24-0109-confidentiality-of-records-exceptions-in-government-usage/>

[^lindgren-covenant-2]: **Lindgren v. Betham** — "When presented with a violation of a restrictive covenant, courts are obligated to enforce the covenant unless the complaining party can show that enforcement would be inequitable or contrary to public policy." *Lindgren v. Betham, 20 A.S.R.2d 98 (App. Div. 1992).* <https://asbar.org/case-law/lindgren-v-betham/>

[^tavai-policy]: **Tavai v. Silao** — "the protection of the Samoan way of life is the court's primary responsibility." *Tavai v. Silao, 2 A.S.R.2d 1 (Land & Titles Div. 1981).* <https://asbar.org/case-law/2asr2d1/>

[^asca-1-0202]: **A.S.C.A. § 1.0202 — Preservation of Samoan customs** — "The customs of the Samoan people not in conflict with the laws of American Samoa or the laws of the United States concerning American Samoa shall be preserved." *A.S.C.A. § 1.0202.* <https://asbar.org/code-annotated/1-0202-preservation-of-samoan-customs/>

[^asca-1-0201-current]: **A.S.C.A. § 1.0201 — Laws applicable in American Samoa** — "so much of the common law of England as is suitable to conditions in American Samoa and not inconsistent with this section." *A.S.C.A. § 1.0201.* <https://asbar.org/code-annotated/1-0201-laws-applicable-in-american-samoa/>